England and Wales Court of Appeal (Criminal Division) Decisions
CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
MR JUSTICE POOLE
RECORDER OF WINCHESTER
HIS HONOUR JUDGE BRODRICK
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| R E G I N A | ||
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| PAUL A |
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Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR J CHARLES KELLETT appeared on behalf of the CROWN
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- MR JUSTICE POOLE: On 30th November 2004 in the Crown Court at Ipswich before His Honour Judge Thompson the appellant was convicted of three counts of indecent assault, all by a majority of ten to two, and was sentenced to two years' imprisonment concurrent on each count. He was acquitted of two counts of rape on counts 4 and 5. He now appeals against these convictions by leave of the single judge.
- The brief facts were these. The trial involved allegations of sexual assault between 1975 and 1985, that is to say between about 19 and 29 years before trial. The assaults were said to have been committed on the appellant's stepdaughter, W. By the time of the trial she was aged 35 and he was 60.
- She first complained to the Gosport police on 11th August 2003 saying that she had been indecently assaulted, which, the defence pointed out, was inconsistent with her later version that she had been both assaulted and raped on a number of occasions. The prosecution case depended ultimately upon the evidence of the complainant alone. The defence case was complete denial. The complainant, it was submitted, had invented the allegations, and inconsistencies in the Crown Court were relied upon.
- The issue for the jury was therefore the credibility of the witnesses, in particular of course the appellant and complainant, on whom the entire case turned.
- The complainant gave evidence from behind a screen and said that she had hated the appellant before he did anything to her. He was a Jekyll and Hyde character, a disciplinarian who would use his slipper from time to time to chastise the children. They were all scared of them all of the time.
- The abuse, she said, had started in 1975. At the end of 1976 she had gone to live with her natural father for about a year and then to her grandmother's for a couple of months before returning to her mother's home, at which point the abuse started again. She would wake up, she said, to find the appellant touching her all over. He offered to buy her gifts. Her mother was unaware at first, she said, of what was going on. She, the mother, would often drink and fall asleep on the sofa downstairs.
- Sometime after January 1980 the complainant went to a boarding school while the appellant and his wife went to live in Germany. However, she spent holidays there with them and woke one night to find the appellant in her room, where he got on top of her and rubbed himself up and down until he ejaculated. One year, possibly 1982, the family had holidayed in Spain when the appellant took the complainant for a walk and made her masturbate him. These two incidents abroad were not the subject of any counts on the indictment, occurring, as they did, outside the jurisdiction, but were treated as evidence in support of a continuing course of conduct.
- By the time she was 16 the complainant was living back at home and the family had moved to Suffolk. There, she said, the abuse continued. Eventually in September 1985, she went to live with her natural father and stepmother, a lady called Patricia, telling them that she hated the appellant. In that house she shared a room with her stepsister Karen whom she eventually told about the abuse. Karen told her mother, and the complainant said they went to a Wimpey bar and talked about the abuse, all three of them together, though not in detail. After that her stepmother took her to see a Dr McNutt. He advised the stepmother not to take her to the police to report the abuse because she would not have been able to deal with it.
- Turning to the individual counts, count 1 was an incident which was said to have occurred when the complainant was 7. One night at the weekend the complainant woke up to find the appellant in bed with her. He held her down and kissed her all over, before leaving. She thought her mother was downstairs but did not call out or tell anybody because she was too scared. That type of incident happened again some weeks later. Such assaults always occurred after the appellant and his wife had argued. At first the appellant said nothing, but then he told the complainant that he knew that what he was doing was wrong and would go to prison for it, which would kill her mother.
- Count 2 related to digital penetration of the vagina in similar circumstances.
- Count 3 was a specimen count reflecting repetition of conduct similar to that in counts 1 and 2 up to a total of some 50 times.
- Count 4 was a count in which she claimed that shortly before her 16th birthday the appellant raped her in her bedroom while her mother slept downstairs. After the rape she had washed and left the house and had called the Samaritans from a nearby phone box. But they just came and picked her up and took her back home again. On her return, in response to her mother's questions of where she had been, she said that she had simply been to make sure that a friend who had been kicked out of her home was all right. But later that day she told her mother what was happening and was disbelieved. Her mother denied that when she, the mother, came to give evidence.
- Count 5 was a specimen count representing some nine or ten rapes of the complainant said to have taken place when she was 16, in her room and during the night.
- In cross-examination the complainant agreed that her brothers, who frequently shared a room with her when the indecent assaults took place, had never noticed anything and that her mother would have been within earshot had she cried out. There was an occasion, she said, when the appellant had assaulted her and her mother had come into the room, looked at her and touched her between the legs as if she knew what had been happening but said nothing. The next day, on finding blood in her knickers, she had told her mother what was happening but the latter had just laughed it off. So it was a feature of the case that the Crown were saying in effect that the mother was complicit in what was going on or in at least a part of what was going on.
- She accepted when asked about the Samaritans taking her home, that when interviewed by the police she had told them that she had simply sneaked back into the house and explained that it was only later that she remembered the conversation with her mother that day.
- Patricia, her stepmother, gave evidence and was cross-examined. She said that when she had first met the complainant aged 6 or 7 she was a shy girl. Then when she was 15 or 16 her own daughter Karen had told her that the complainant had complained of abuse by her stepfather so she had taken the complainant to see a doctor.
- Karen, the stepsister, gave evidence of the conversation when the complainant had told her she was being abused. They shared a bedroom, and eventually the complaint was made.
- In cross-examination she was challenged about inconsistencies between her evidence and her witness statements, and said that she could not remember precisely what had been said in each conversation.
- A Detective Constable Little produced the interviews with the appellant. These had taken place at first on 17th February 2004. He said that he was being treated like a wicked stepfather; the children used to complain to the neighbours about being deprived of sweets and being undernourished. He denied all the allegations and said that he had a strong sexual relationship with his wife. He had tried to encourage good manners amongst the children and had never laid a hand on them. Furthermore, he said the walls of the house were thin and everything would have been heard through them. There was no insulation in the floors. He did not know why the allegations were being made. The first allegation had been made seventeen or eighteen years earlier and had come to him via Karen and the stepmother and then his wife. He had felt embarrassed at the time, worrying that mud sticks even though it was not true.
- The defendant gave evidence at the trial which mirrored the account he had given in his police interview. He accepted in cross-examination that he was a disciplinarian but denied generating fear in the children. They seemed to be good normal children and the complainant had not seemed like a liar. He thought that she had always believed that he was the cause of the break-up between her parents, though she had never voiced that opinion. He denied that his wife had ever slept downstairs after arguments.
- His wife, Pauline, gave evidence about the setup in the family home. In the children's bedroom there was a single bed and bunk beds almost abutting each other so that the heads of the two boys were near W's head. The walls were thin. It was possible from downstairs to hear beds creaking upstairs and yet she had never been aware of any indecent assaults. She confirmed that she and the appellant had an affectionate relationship and denied that she had been in the habit of drinking heavily and sleeping downstairs. She denied ever touching the complainant between the legs. She agreed that she had once found the appellant sitting on the complainant's bed. He had then come upstairs after going down but nothing had happened and she had not touched the complainant between the legs. When she had been told of the allegations by her sister-in-law she had confronted the appellant, who had emphatically denied them.
- In cross-examination she denied knowing what was happening but just closing her mind to it. She denied that the complainant had ever told her that the appellant was a sexual pervert.
- Two character witnesses gave evidence; one of them in person, the other in writing.
- A ruling was required from the judge on an application by defence counsel to discharge the jury. What had happened was this. During Crown's counsel examination of the complainant, right at the beginning of the trial, she (the complainant) made allegations of domestic violence by the appellant against his wife, who was later in the trial to give evidence on his behalf. The passage went like this. She was asked by Mr Kellett, prosecuting:
- Defence counsel submitted, unsurprisingly, that this material was inadmissible and prejudicial, and applied for the discharge of the jury. The learned judge, however, ruled that, although there was a degree of prejudice to the appellant, the allegations were outside the nature of the indictment and were minor compared to the issues before the court. The jury would be reminded of that in the summing-up and would not be discharged.
- There were further defence submissions later, to the effect that there was no safe case for the jury to consider. They were in these terms: that in light of the evidence that had emerged, the case could not safely be left to the jury. Counsel cited R v Selwyn B and R v Smolinsky, to which we shall return, in relation to delay.
- The complainant, it was submitted, had given extraordinary evidence about the way in which the Samaritans had dealt with her call to them; and the veracity of this evidence could not, after so long a time, be checked. The complainant's evidence about complaining to her mother could not be easily denied by the defence because of the evidence before the court about the domestic violence alleged to have been perpetrated on the mother by the appellant. Dr McNutt had been traced but could not recall anything, and there was no medical evidence. The evidence of the stepsister and stepmother was not corroboration in the strict sense, and the evidence of distress was not proximate in time to the allegations. The reports from the Hampshire and Suffolk police were inadequate and imprecise. The places where the assaults were said to have taken place could no longer be viewed due to passage of time; and the appellant's mother, who may have been able to give evidence for him, particularly in relation to the incident in Germany, was dead.
- The Crown submitted that although the matter had to be kept under review, the close of the prosecution case was not the appropriate time for the matter to be considered and that this was not such a different and difficult case as to fall within the exceptional category defined by the Court of Appeal in Selwyn B and Smolinsky. The judge ruled that he accepted that the Court of Appeal had shown grave concern over cases of this kind and that the case required careful scrutiny. However, the case of Smolinsky was very different in terms of its facts from the instant case. Bearing in mind the test that the learned judge had to apply, that is the test of fairness to the appellant, he did not find that it would be right to stop the trial at that stage. The matter was revisited at the conclusion of the evidence. But the judge ruled again that the defence evidence heard since the last application had not changed his opinion: the decision was one for the jury. In the course of his directions the judge gave a direction to the jury urging them to put the issue of domestic violence between the appellant and his wife out of their minds.
- In grounds of appeal settled by counsel and developed by him before us today, it is submitted that the convictions are unsafe for the following reasons: first, the delay of nineteen to 29 years between offences and trial in a case where the defence was one of complete denial; secondly, the prejudice occasioned to the appellant by the unavailability of medical and Social Services records; third, the prejudice occasioned by the inability to trace potential defence witnesses from the Samaritans; fourth, the prejudice occasioned by the impossibility of viewing the scene of the alleged offences; fifth, prejudice occasioned by the death of the mother; sixth, the failure of the Hampshire and Suffolk police forces to keep adequate records; seventh, the failure of the judge to discharge the jury after hearing the inadmissible evidence of violence; eighth, his failure to direct the jury adequately on the impact of delay on the formulation and conduct of the appellant's defence; ninth, his failure to direct the jury that any previous consistent statement by the complainant could not be taken as evidence of the truth of its contents; tenth, the acquittal of the appellant by the jury on counts 4 and 5 of the indictment, which depended, as did counts 1-3, on the uncorroborated evidence of the complainant whose credibility was in issue.
- Counsel has developed those grounds in this way. First, the complainant's statement included allegations that the appellant used violence against his wife. This evidence was omitted from the prosecution opening by agreement as being inadmissible because of its irrelevance and prejudicial effect. Unfortunately the complainant was not told to make no mention of those matters, so she began to give evidence about them. The prosecution, to counsel's surprise, as Mr Colman puts it, seemed to be pursuing the subject, and the jury began to hear of the allegations before objection could be raised. In fairness to Mr Kellett, it is not the impression of this court that he was deliberately pursuing this subject; and we accept from him his explanation that he was as much taken by surprise as anybody else.
- An application to discharge the jury followed but was refused. No further mention of domestic violence was made in the course of the evidence. The defendant and his wife both gave evidence. However, they were constrained from denying violence because the appellant had admitted, in a passage which had been excised from his interview for its irrelevance, to having slapped his wife on one occasion following an argument, and denials of violence would necessarily have reintroduced that evidence.
- Mrs A was the only witness as to fact other than the defendant himself called by the defence. The fact that the jury improperly heard allegations that she had been subjected to violence by the defendant was, it is argued, likely to undermine the value of her evidence on his behalf. Counsel concedes that the learned judge in his summing-up told the jury to disregard the evidence regarding domestic violence and concedes that if this were the only complaint that could be made against Mr Anderson's convictions he would think it insufficient to mount a successful appeal. But, he goes on to argue, it must be viewed in the context of the case as a whole.
- Counsel for the appellant then draws our attention to the following: the application to withdraw the case from the jury was based on the authorities of R v B [2003] 2 Cr App R 197 and R v Smolinsky [2004] 2 Cr App R 661. The court was not referred to the case of R v Terence E [2004] 2 Cr App R 621 as that only came to counsel's notice after the trial. Although, counsel submits, there is on the face of it a degree of conflict between these authorities, this is no more than an illustration of the obvious truth that where the Court of Appeal is considering whether a conviction is safe, each case must be decided on its own facts. In Smolinsky the Court of Appeal indicated that if there was an appeal in which evidence was given after so many years the court would scrutinise the situation with care.
- Counsel goes on that the situation that requires scrutiny here begins with the circumstance common to historic sexual abuse allegations, that no complaint was made at the time. The complainant said that she was a child who lived in fear of her stepfather who disciplined her and beat her on the behind with a slipper. Unusually, the indecent assaults are said to have occurred in the presence of her brothers, a matter of feet away in the same room. Despite the fact that the appellant is not alleged to have made any attempt to keep the complainant quiet by stifling, threatening or bribing her, the complainant said that she did not cry out to alert her brothers as she did not want them to see what was happening to her. Both brothers were seen by the police. Neither had noticed anything. One said that he never saw the appellant discipline W. The room in which all three children slept was said to measure about 10' by 12', but was no longer available to be viewed due to the lapse of time.
- The complainant alleged that after the first instance of digital penetration her mother had come into the bedroom. She claimed that her mother looked her in the eye, touched her between the legs and appeared to realise what had happened but did nothing about it. Mrs A, giving evidence, denied any such event.
- Two further episodes were relied on by the prosecution. In 1980 the family were in Germany. The complainant went there for her holidays and complained that during those Christmas holidays a further act of indecency took place. The defence claimed that the appellant's mother was sleeping in the room where this was alleged to have happened whilst W was sleeping with her brothers. But Mrs A senior was no longer available to give this evidence, having died some five years before trial.
- By the time she was 16, the complainant was living back home. Just before the Christmas the family moved to Suffolk. She claimed that, shortly after her 16th birthday, she had been raped by the defendant there. She said that after the rape she left the house at 4 am and called the Samaritans. She told them what had happened, but that their response was to insist on taking her straight back home again. After the lapse of time that had taken place, no records were available from the Samaritans to verify or refute this description of what had happened.
- The complainant claimed to have told her mother the following day that the appellant was an evil pervert. Mrs A denied any such conversation.
- The complainant alleged that the appellant raped her numerous times thereafter and that she had then gone to live with her natural father and stepmother in Gosport. Enquiries about whether there were any Social Service records relating to her proved futile because Hampshire Social Services only kept their records for six years and Suffolk for five after the child's 18th birthday. Therefore, due to the lapse of time, that avenue of enquiry was closed to the defence.
- At the end of 1985 or the beginning of 1986 the complainant alleged to her stepsister Karen that she had been abused by the appellant. The detail and extent of the complaint were confused at this remove of time. It was clear that the complainant did not want anybody else told. But her stepmother was in fact told and confronted the complainant about it, taking her immediately afterwards to be examined by Dr McNutt. But no record of any medical examination took place beyond a brief entry in the doctor's records for 21st January 1986. Dr McNutt was contacted about this, but he was in his 80s by the time of trial and could remember no more about either the complaint or the results of his examination.
- The making of the allegations was transmitted back to the appellant through various family members. He denied any of the allegations, and no further action was taken against him and he heard no more about them for eighteen years, until the police came to see him.
- By 2003 the complainant was married with a number of children. She told her husband about the allegations, and he persuaded her to go to the police. Thereafter she made her first complaint to the police at Gosport. Unfortunately, counsel complains, no notes were kept of that complaint, and the only document recording it is a Hampshire constabulary message form stating that she reported "an indecent assault" by her stepfather when she was younger and requesting the Suffolk police to contact her. When they did so on 6th November, again no notes were kept of what she had said, except that "she reports this is more than indecent assault and involves rape between the ages of 7 and 16 by the suspect".
- The appellant was arrested on 17th February 2004 and interviewed later that day. He denied the allegations. When interviewed later on the 21st he again denied each allegation.
- The defence at trial then remained a denial of any of the offences that were said to have taken place. It was submitted that the case could not be safely and fairly left to the jury due to the passage of time and due to the other incident of prejudice to which we have already referred.
- Both submissions to the trial judge that the case be withdrawn from the jury were overruled.
- The learned judge summed the case up to the jury on 29th November. In dealing with the question of delay he told them to make allowances for the fact that the lapse of time caused difficulties for the defence and that the longer the time since the incident the more difficult it may be for a defendant to answer the allegations. He suggested, fairly, that the jury might give more than usual weight to the defendant's previous character. However, counsel complains, he did not relate the issue of delay specifically to the impact on the formulation and conduct of the defence, as has been suggested in one authority: R v Percival, Times Law Report July 20th, 1998. As this court has already observed in the course of argument that is an authority which should be treated with some caution in the light of remarks by the Vice President concerning that judgment and other cases of this kind. There is no universally applicable formula and what is required by way of warning will depend on the particular facts of the cases: R v G(M) [1999] Crim Lr 763 CA.
- It was agreed during the trial that the evidence of Karen, the stepsister, and of Patricia, the stepmother, could not amount to recent complaint. It was admitted since any examination of why the complaint to the police had been so long delayed was bound to lead to its admission and the trial could not be conducted without examining that central question. The learned judge, summing up their evidence, told the jury it was not based on observation but on what the complainant had told them; so the evidence essentially came from her. However, counsel complains, he did not go on to tell the jury that the fact that she had made this complaint could not be used to support her own credibility. The judge was invited to do that at the conclusion of the summing-up but declined to do so.
- Counsel concedes as to the verdicts that the mere fact that the jury acquitted the appellant of the rape counts but convicted him on the indecent assaults, where all five counts depended on the uncorroborated evidence of the complainant, does not of itself render the verdicts so inconsistent as to call for interference by an appellate court. He refers this court to the case of R v Bell [1997] 6 Archbold News 2. The fact that verdicts are apparently logically inconsistent does not make the verdicts complained of unsafe unless the only explanation must or might be that the jury were confused or adopted the wrong approach. R v McCluskey 98 Cr App R 216 is referred to. Nonetheless this is another factor, counsel submits, that the court can take into account when deciding on the safety of the convictions. He further submits that, given the way in which the verdicts were returned, it is difficult to avoid a suspicion that the jury arrived at an improper compromise.
- If the acquittals of rape be attributed to concerns about when and whether the complainant alleged rape, for example to the Samaritans or to the Hampshire police, this serves to reinforce the possibility that the jury placed improper reliance on the fact that previous complaint had been made of abuse in general terms.
- He reminds us that the Court of Appeal has recently demonstrated repeated concerns about the safety of convictions in some cases of historic sexual allegations such as this one, and submits that, in looking at the case as a whole, there are sufficient matters of concern here to raise substantial doubts about the safety of the convictions.
- Mr Kellett replied on behalf of the respondent. He points out that grounds 1-5 of the grounds of appeal all relate to the question of delay; that following the cases of Smolinsky and B, the trial judge addressed the question as to whether the case should be withdrawn from the jury. He carefully reviewed the evidence. He clearly directed his mind to the correct burden and standard of proof. He considered the correct tests. The matters were within his discretion, and it could not be said that his decision was Wednesbury unreasonable. When the position was further reviewed at the end of the evidence, again he asked himself the correct questions, and again the conclusion that he reached was within the limits of his discretion. When he came to sum up, he specifically dealt with the questions of delay and gave appropriate directions. It is apparent from the transcript, Mr Kellett adds, that there is a gap in the summing-up which occurs when the learned judge was dealing with Detective Constable Little's evidence. There is no record at all of what the officer dealt with in his cross-examination. A transcript, however, of it is available, and we have seen it. That cross-examination dealt with a number of topics raised in the grounds.
- It is inconceivable, submits Mr Kellett, that the judge would not have reminded the jury of the essence of Detective Constable Little's evidence.
- As to ground 5, the evidence which the appellant's mother might have given, that was only relevant to the evidence of events in Germany; and the learned judge had given proper directions and summaries as to that.
- As to ground 6, the failure of the Hampshire and Suffolk police to keep records, this could only have relevance to the complainant's consistency.
- As to ground 7, the failure to discharge the jury after they had heard inadmissible evidence of the appellant's alleged violence to his wife, the learned judge described the allegation of domestic violence as being a minor matter compared to the subject matter of the indictment and stated that it was a matter for his discretion whether he should discharge the jury or not. Later he gave the jury appropriate directions.
- As to ground 9, it is submitted that a direction was not called for in relation to the complaint to the stepmother and stepsister. The judge had made it plain to the jury that their account of what W had said was not independent. He returned to the topic in his addendum dealing with the question of possibly inconsistent statements, stating that it was essentially a matter for the jury. He had made it plain to the jury throughout his summing-up that it was their duty to assess questions of credibility.
- As to ground 10, the possibility of inconsistent verdicts, he had directed the jury, correctly, as to their approach to the different counts of the indictment. This was not one of those cases where the learned judge was to tell the jury or was in a position where he ought to have told the jury that all the counts stood or fell together.
- It cannot be said, submits Mr Kellett, that the verdicts on counts 1-3 and counts 4 and 5 were logically inconsistent as a ground for quashing the convictions as being unsafe. The judge made it plain throughout his summing-up that the case turns almost entirely on the credibility of the two witnesses, W and the appellant. It was their decision and they were entitled to come to it. In the circumstances, submits Mr Kellett, the verdicts could not be described as unsafe and therefore the appeal, he argues, should be dismissed.
- We have been referred to a number of authorities: R v B [2003] 2 Cr App R (S) 197; R v Smolinsky [2004] 2 Cr App R (S) 661; and R v Terence E [2004] 2 Cr App R 621. In R v B, a case like this of historic abuse, the trial judge had refused an application for a stay by reason of delay - in that case a delay of about 30 years. The appellant was convicted and appealed on the ground that the evidence relied on was unreliable and unsupported by any independent evidence. In allowing the appeal, Lord Woolf CJ held that there remained in the Court of Appeal a residual discretion to set aside a conviction if it was felt to be unsafe or unfair. That was so even where the trial process itself could not be faulted. It was a discretion to be exercised in limited circumstances and with caution. No criticism, he said, could be made of the judge's summing-up and directions in that case. However, it was felt by the court that in all the circumstances it was one of those residual cases where in the interests of justice the conviction should be set aside. Because of the delay, the appellant had been put in an impossible position to defend himself.
- R v Smolinsky was another case of historic abuse - about twenty years in that case. It was recognised that in many cases it was difficult for young children to talk about abuse and there might well be delays of many years before offences came to light. However, it was also said that if there was an appeal where there had been a long period of delay and where the complainants were young the court would scrutinise the situation with particular care. On the peculiar facts of the case, including discrepancies in the evidence and the inability of the jury to reach a verdict on one of the counts, the convictions were quashed.
- In the case of R v Terence E - another case of historic abuse - the appellant's appeal was dismissed because the court was satisfied on the peculiar facts of the case that the conviction was not unsafe and because the appellant was not put in an impossible position to defend himself. Juries, it was said, could be trusted to make allowances for the difficulties faced by a defendant when, following a long lapse of time, he could do no more than deny the offences.
- It seems to us that there are two plain principles to be garnered from these authorities: first, cases of historic abuse, like others, are ones that necessarily turn on their own peculiar facts; second, that the court has a duty in cases of long delay where the complainants were young at the time of the alleged conduct to scrutinise the situation with particular care. That is what this court has endeavoured to do.
- In our judgment it was particularly unfortunate that, notwithstanding agreement between prosecution and defence that evidence of the appellant's alleged violence towards the mother should be excluded, such evidence was in fact given. It is perfectly true that the judge had a discretion to allow the trial to continue and that later, at page 16 of the summing-up, he gave the jury appropriate directions about the non-relevance of that evidence. But, exercising its duty of scrutiny, this court does not share the prosecution's confidence that on the peculiar facts of this case those directions would have sufficed to put the inadmissible evidence out of the jury's mind. We say that because the mother was herself an important witness at trial and because the concern that lingers is that the jury might have used the inadmissible evidence in assessing her reliability in the context of a question whether she had fallen unduly under the husband's influence by reason of his allegedly violent disposition. We also note that this evidence arrived very early on in the trial. The complainant had barely started to give her evidence. Very little, it seems to us, would have been lost, and a great deal gained, if, following the defence application, the jury had been discharged at that stage and a fresh jury empanelled, the complainant having been forewarned this time not to refer to the inadmissible evidence.
- We do not, however, view the unfortunate admission of that evidence in isolation. We have had regard also, first, to the unavailability of medical and Social Services records due to lapse of time; second, the potential prejudice engendered by the death of the appellant's mother; third, to the failures of the Hampshire and then the Suffolk police forces to keep adequate records of what the complainant first said; and, fourth, not least, the specific prejudice that may have been engendered by the inability of the defence after so many years to trace potential witnesses from the Samaritans organisation with a view to refuting, it may be, the complainant's account of their involvement following one of the alleged offences.
- It will be appreciated that each of these factors is specific and peculiar to the present case. This court does not accept any general proposition that mere delay, even extensive delay, in itself casts doubt on the safety of convictions in cases of historic abuse. But given the inadmissible evidence heard by the jury, impacting, as it very possibly did, upon their assessment of a witness important, if not vital, to the defence and one said to have been to a degree complicit in the offending, and given the other factors to which we have referred and to which we have had regard, we are unable to regard these convictions as safe.
- We add this. First - and we say this with due caution given that we are told that the transcript of the summing-up is incomplete - that while we recognise that the judge did give directions to the jury on the possible effects of delay at pages 6 and 7 of the transcript of the summing-up, he did not thereafter, so far as we can see, in his review of the evidence, put over the specific effects of delay on the defence conduct of the case: for example, on the absence of the medical and Social Service records; on the impossibility of viewing any of the scenes of the assaults; or so far as the availability of the appellant's mother or witnesses from the Samaritans' organisation were concerned. If he did not do this, in a case such as this, it was, we believe, desirable that he should have done so, as recommended in this court in the case of R v Percival The Times Law Reports July 20th 1998, though we fully recognise, as emphasised by the Vice President, Rose LJ, in R v M [2000] 1 Cr App R 49, that that case lays down no general template as to how such directions should be given.
- Second, that so far as the complainant's complaints, recent or not so recent, were concerned, the appellant was entitled to, but did not, receive a direction, as the law then stood, that they did not constitute independent confirmation of the complainant's evidence. We make it clear however that we do not in the event give a great deal of weight to that part of the appellant's argument, which by itself would certainly not, in our judgment, have affected the safety of these convictions.
- Thirdly, we are not attracted by the argument of inconsistency as between the verdicts on counts 4 and 5 and those on counts 1-3. The jury had been directed, rightly, that they should consider each of these counts separately. Nobody objected to that direction. It would be idle to speculate on the reasons for the differences between the verdicts; but we are not driven to the conclusion that this was any logical inconsistency, or any that by itself would have affected the safety of the convictions.
- Nonetheless, for the reasons that we have already given, this appeal will be allowed and the convictions will be quashed.
- LORD JUSTICE LONGMORE: So the conviction is quashed. Are there any applications?
- MR KELLETT: I have no application, thank you, my Lord.
- LORD JUSTICE LONGMORE: Very well.
"Q. What about things between Paul and your mother?
A. He used to hit her a lot.
Q. And would you be aware of this? Would you hear it, or what?
A. We would hear it; it was mostly on a night, a lot of the time when they'd been drinking and we'd often see the bruises and hear her screaming and shouting.
Q. Would this be during the day time or the evening, after you had gone to bed, or what?
A. Usually of the evening when we were in bed."
So evidence had now been given of frequent violence visited upon the mother by the appellant, resulting frequently, it was said, in her screams and in bruises that were visible afterwards.