Case No: 00/7058/W3
Neutral Citation Number: [2001] EWCA Crim 2828  
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
(HHJ PATIENCE, QC.)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 20 December 2001
B e f o r e :

LORD JUSTICE MANCE
MR. JUSTICE ROUGIER
and 
HIS HONOUR JUDGE FOX

- - - - - - - - - -

	R	Respondent	
	- and -		
	ROBERT CLIFFORD BROWN	Appellant	

- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -

Fiona Moore-Graham (instructed by the CPS for the Respondent)
Rex Bryan (instructed by Messrs Holden & Co. for the Appellant)

- - - - - - - - - -
Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mance: 
Introduction
1.	On 24th November 2000 the appellant was after a seven day trial at Maidstone Crown Court before HHJ Patience QC unanimously convicted on a single count indictment of indecent assault. He was sentenced to 2 years imprisonment. He now appeals against conviction with leave of the Full Court given on 19th June 2001. The Full Court also referred to us his application for leave to appeal against sentence. This judgement concerns only the appeal against conviction.
2.	The appellant, who was born on 13th October 1963, had a relationship with a 21-year old, NL. On 14th January 2000 the complainant, MC, a 14-year neighbour and friend of NL visited. The Crown case was that the appellant plied both NL and MC with alcohol; that he encouraged NL to go upstairs to lie down; that he made sexual advances to MC, removing her clothes from above her breasts to her ankles in the course of doing so; that she was not only drunk but suffering a fit at the time; and that he was only interrupted by NL coming downstairs.  The complainant gave evidence that she was conscious enough to realise that her trousers were being pulled down, although she thought for a time that this was her mother putting her to bed, but unable, due to the fit she was suffering, to say or do anything about it. The Crown also called NL, although she was a reluctant witness.
3.	Medical evidence called by the Crown was that the complainant was prone to genuine non-epileptic fits, and had been on medication as a result since at least 1998. Such fits might be triggered by psychological causes or emotional stress; during them the sufferer might or might not be aware of what was being said or done, and might want to speak but be unable to do so; it would be possible for clothing to come adrift, but not possible, and certainly unlikely or very difficult, for a sufferer to undress herself. There was no indication that MC had ever removed clothing during any previous fit. The appellant accepted that he knew before the evening in question that the complainant was prone to fits, and that alcohol could bring them on. 
4.	When the police arrived, the complainant was curled up on the sofa, hysterical, and then became unconscious, shaking violently and apparently suffering a fit. She started talking and mumbling, with eyes very slightly open, and this continued until the ambulance arrived.
5.	The appellant’s case was that MC removed her clothes of her own free will, and that he had only touched her in the course of administering first aid to her in the course of what he believed at the time (but now did not think) was a genuine fit. More particularly, he said in evidence, that, after the three of them had drunk considerable quantities of vodka, he had told NL to go upstairs because she said that her head was spinning; that before she went upstairs MC had started to have a fit; that he doubted its genuineness at that stage; that after NL had gone upstairs he became concerned and went to the kitchen for two glasses of water; that, when he returned, MC’s clothing was removed; that he got between her legs and put his hands on her hips to restrain her, and was at that point interrupted by NL coming downstairs and saying that he had raped a 14-year old and hitting him. 
6.	In the face of the medical evidence, any suggestion that the complainant’s clothing was removed in the course of a genuine fit must - as counsel for the appellant accepted before us - have appeared unrealistic. In these circumstances, it was put to the complainant that she must deliberately have removed her clothes, with the implication, as the judge observed to the jury, that she set out seduce the appellant or offer herself to him. There was no evidence positively supporting this theory at all, and the jury cannot have found it easy to reconcile with the appellant’s own evidence that he believed at the time (after an initial doubt as to whether she was play acting) that the complainant was suffering one of the fits to which he knew that she was prone.
The grounds of appeal
7.	The grounds of appeal are two-fold: (1) the judge erred on Friday, 17th November 2000 in refusing to allow the appellant to adduce evidence, through cross-examination of NL and/or a doctor, as to prior sexual activity on the part of MC; and (2) the judge erred on Wednesday, 22nd November 2000, before the appellant went into the witness box to give his evidence, in failing to discharge the jury and order a re-trial, on the ground of apparent bias on the part of one or more jurors.
The first ground - prior sexual activity
8.	As to the first ground, NL, after saying that the complainant looked about 18, and wore make-up and current trendy clothing, went on in her statement:
“I know [MC] to be sexually active and taking “the pill” because she told me this. I am aware of two previous sexual partners. I am only aware of the Christian names ….. She has told me that she was pregnant at one time but aborted.”

One doctor, Dr. Bundy, called by the Crown said in his statement, on the basis of information supplied by the complainant:
“…. she had been taking contraception since September 1999 and stated that she last had sexual intercourse some 12 days previously, although it did seem that that relationship was at an end.”
Another doctor, Dr McCormick, called by the Crown said in his statement:
“[MC] is sexually active and any specific feelings or sensations which she has which might point to genital manipulation or intercourse having taken place should be treated as important.”
9.	The appellant put no questions to the complainant herself about prior sexual activity. Counsel for the appellant conceded that the judge would have rightly refused to allow such questioning as a matter of discretion. He now submits that that concession was wrong. The situation did not fall within s.7(2) of the Sexual Offences (Amendment) Act 1976, since the charge was indecent assault, not a rape offence, and s.41 of the Youth Justice and Criminal Evidence Act 1999 only came into force on 4th December 2000.
10.	Counsel did, however, apply to adduce by cross-examination evidence from NL and Dr. Bundy along the lines of the passages quoted above from their statements. The judge refused to allow this. In our judgment, the judge was correct, for a number of different reasons.
11.	Firstly, without cross-examination of the complainant on the subject, it would have been wrong to allow evidence to be adduced of statements allegedly made by the complainant, which might have been challenged by her or might have given only a partial picture. By the time the application was made to cross-examine NL and/or Dr Bundy, the complainant’s evidence had been given.
12.	Secondly, counsel for the appellant never sought further to cross-examine the complainant. If he had done, the judge might, understandably, have been reluctant to submit her to the ordeal of yet further cross-examination.
13.	Thirdly, there is a difference between cross-examination as to credit and the adducing of positive evidence. In relation to the former, a wider latitude may be allowed, but the cross-examiner is generally bound by the witness’s answers. Here, the application was to adduce positive evidence through NL and Dr Bundy.  Such evidence could only be admissible, if the matter sought to be adduced was of sufficient relevance to the issue in the case to justify it. In so far as the appellant’s argument is that the prior sexual activity, such as described in the statements of NL and Dr Bundy, could indicate greater likelihood on the part of the complainant to remove her clothes deliberately and/or with seductive intention in the presence of her girl-friend’s partner, the argument has in our view only to be stated to be seen to be unacceptable.
14.	The appellant seeks to buttress his case by suggesting that the jury may have assumed that any 14-year old would be a virgin. We do not accept that that makes the evidence sought to be adduced admissible. No suggestion was made by the Crown at any point during the trial that the complainant was a virgin.  As a matter of fact, it would presumably have been apparent to the jury that the complainant was, as NL said in her statement, someone who looked much older than her actual age.  In any event, the central issue was whether the complainant indulged under the influence of drink in the wanton behaviour in relation to her girl-friend’s partner which the appellant was suggesting.  We do not consider that that was an issue, the resolution of which could be assisted in any meaningful way by considering whether the complainant was or was not a virgin.
15.	Relevance is ultimately a matter of context, fact and degree. The issue of admissibility of evidence of prior sexual experience is not a new one. Archbold (2002) notes at para. 8-123l:
“Apart from questions directed to previous sexual experience with the defendant and those directed to the issue of prostitution, it seems that the common law regarded all other questioning of the complainant as to previous sexual experience as going only to credit, to which the answers were final …”
Lord Steyn also summarised the position in R. v. A. [2001] 3 AER 1, 11e by saying that the Youth Justice and Criminal Evidence Act:
“deals sensibly and fairly with questioning and evidence about the complainant’s sexual experience with other men. Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged in the indictment or to her credibility”.
He continued at p.11j, referring to a review of the literature of the subject:
“When the issue of the relevance of sexual experience between a complainant and a defendant was raised there was broad agreement that such evidence is sometimes relevant (e.g. an ongoing relationship) and sometimes irrelevant (e.g. an isolated episode in the past).”
Here there was no suggestion of any previous relationship between the complainant and the appellant, and no other basis taking the situation outside the general common law rule identified in the quotation from Archbold.
16.	Finally, we need not decide whether, if the judge had been concerned with an application to cross-examine the complainant as to credit, he would have been right to reject it, though there may be something to be said for this view.  Nothing in the evidence sought to be elicited from either NL or Dr Bundy, suggested any propensity to or likelihood of conduct by the complainant in relation to the appellant, her girl-friend’s partner, such as the appellant was suggesting. Nothing in it bore on the central issue whether she was someone who had only been pretending to have a fit, and had deliberately removed her clothing and/or set about seducing the appellant. Questioning to elicit the matters mentioned by NL and Dr Bundy would not have achieved anything, except, in all probability, intrusive exposure of private matters, including fuller explanation of the relationships involved and their irrelevance to the complaint .
The second ground - jury bias
17.	The trial was, it appears, regularly attended by someone who looked as if he was, and was it appears in fact, the appellant’s brother as well as the latter’s presumed wife, and on at least the fourth day another, younger woman, who may have been their daughter. The appellant was allowed bail throughout the trial. There were, we were told, temporary works in the court building at the time, which had an effect on the feasibility of achieving proper separation between jurors and defendants and their relatives. The main part of the court canteen on the third floor was closed but the jurors’ route to and from the jury reception area passed - in an unsatisfactory manner - through the end section of the canteen (which also contained seating and the only public drink dispensers). There in particular, as well as in other locations, jurors were exposed to the undesirable risk of meeting the appellant or his family. For the most part, such meetings, although no doubt unwelcome, passed uneventfully. But on 21st November 2001 two jurors, S and P, made complaints about what had happened during the lunch adjournment. The judge adjourned the trial, and caused investigations to be made with all jurors by a detective constable. These led to two statements in which S and P gave the following accounts.
18.	Both had walked through the canteen area together to leave the building and do some shopping. As they did so, according to S, the younger appellant’s presumed brother and the younger woman were there, the latter lent over and said something inaudible to the former, to which he replied: “They’re probably off to the pub”, and both then laughed. S says that she did not see the appellant on this occasion when walking through the canteen. After leaving the canteen, S said to P: “Did you hear what he said?” to which P replied: “What a cheek”. S said that P more than she herself was quite annoyed about it, but that she herself “did not see it as funny and felt that it was an inappropriate comment”
19.	P’s account of this episode was slightly different, in that she mentioned the appellant as being in the company of his brother and the younger woman, and she heard the younger woman’s initial comment as having been “There they are”. She too however said that ”they both laughed” - so apparently excluding the appellant. She added however: “I felt very vulnerable and felt intimidated by them all”.
20.	S and P returned separately to court at the end of the adjournment. S said that she walked through the canteen area behind three other jurors, that the defendant and his brother were at this stage together in the canteen area, the former standing facing away from her, the latter sitting facing towards her, but both looked at her as she came in. As she passed, the arm of the brother sitting came out in front of him towards her posterior, and the appellant then said: “You won’t win her over like that”. S commented in her statement: “I was angry and annoyed that they were able to sit there and make comments and act like that knowing that I was a juror in the trial …. and I thought that I had been singled out”. She sat in the jury area, intending to tell the staff what had happened because she “thought that it was wrong what had happened and that something should be done about it”.
21.	P, on returning a little later and travelling alone in the lift to the third floor, found herself, when the door opened, face to face with the appellant, his brother, brother’s wife and the younger woman. The brother said: “Here she is back from the pub”. They laughed. P recorded in her statement: “I tried to ignore them as they laughed but I felt very vulnerable and heavily outnumbered”.
22.	S’s summary in her statement of her position was: “I was not frightened but annoyed and am concerned that others may find such actions intimidating. I am not easily scared or frightened by other people’s actions.” P’s summary was: “At no time have any threats been made to me. I just feel that I have been singled out for being a juror on their case, and this upset me as I feel threatened by them”.

23.	The jury was brought back into court on the next day, Wednesday, 22nd November, when the judge after referring to the investigation which he had instigated, said that he would, as he put it, “ask you, all collectively sitting there listening to me, but individually, two questions”. The first was: “Will what you have heard about matters taking place outside this courtroom adversely affect your view of any evidence which the defendant will give?”. He said: “If any of you answers that question “yes” please indicate by putting up your hand”. He then gave the members of the jury time sitting in court to think about the answer, and no-one answered affirmatively. The second question was: “Will what you have heard about matters taking place outside this courtroom prevent you from reaching, in due course, a true and unbiased verdict?” Again, after inviting any member answering affirmatively to put up a hand, he gave the jury time sitting there to reflect, and no member of the jury gave such an answer.

24.	We observe that these two questions were not very apt to address the actual experience of two of the jurors, as recorded in their statements. Further, questions to a jury en bloc in open court, and without opportunity to consider or respond to them individually and privately, may not have been the best way of dealing with the problem. We add for completeness that the judge did not seek at any other point or in his summing up to address the problem that had arisen. These general points combine with the caution which is necessary with regard to responses to such questions as the judge did put to the jury. As Lord Goff pointed out in R. v. Gough [1993] AC 646:
“.… there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias ….”

25.	After responding to the judge’s questions, the jury was asked to leave the court, and counsel submitted that, although the judge had satisfied himself that the jury was not displaying any actual bias, “the perception is clear that the jury are all of one mind, whatever that mind is”; that such perception must be derived from the two statements and the anger, etc. referred to therein, and that “the perception must be that there is a real danger of bias in this case and ….. it cannot be perceived that the jury will not display either favour or disfavour towards this defendant”.

26.	The judge refused to discharge the jury. He started by taking as the test to be applied that laid down in R. v. Gough [1993] AC 646, namely “whether there is a real risk of bias affecting the mind or minds of the relevant juror”. Moving to counsel’s submission that the perception must remain that there is a possibility of bias, he said: “by that he means in particular a perception in the mind of the defendant”. He went on to refer generally to the citation of jurisprudence in the European Court of Human Rights in Archbold. This in fact summarised (and still summarises) the relevant case-law as involving “a dual test, examining first the evidence of actual bias, and then making an objective assessment of the circumstances alleged to give rise to a risk of bias” and indicates that the “applying the objective test, the question is whether a legitimate doubt as to the impartiality of the tribunal can be “objectively justified”.

27.	The judge continued:
“I have very much in mind those matters contained in the passages in Archbold to which [counsel for the appellant] drew my attention. I have to note that we are in the position, it seems, because of the behaviour of the defendant’s brother, the woman with him, and to an extent the defendant himself. I say that recognising that the matters contained in those statements provided by those two jurors have not yet been the subject of investigation, that they are not admitted, but I have to deal with them on the basis that they raise a prima facie case.

I am not persuaded that these jurors, conscious as they have been, despite what they say and feel, will be prevented from reaching a true and unbiased verdict in this case. I have to observe that these matters have been brought upon the defendant by the actions of his brother, the woman with that brother and by the defendant himself.”

He added that, although it “cannot weigh substantially with me”, he was entitled to bear in mind that discharging the jury would bring the trial to a premature end, and a re-trial would require the re-attendance at court of the by then 15-year old complainant, who had clearly found the experience of giving evidence an ordeal. That factor could not, he said, be decisive, but was one that he was entitled to take into account. Having weighed up all the matters argued, he considered that the appellant could and would still be tried fairly.

28.	Before us counsel for the appellant submits that the judge did not recognise the true impact of European jurisprudence on the test in R. v. Gough. Since the trial in this case, the Court of Appeal has described that in In re Medicaments (No. 2) [2001] 1 WLR 700, where it said at paras. 85-86 that:
“85 …. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

86 The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in R. v. Gough, had the truth of the juror’s explanation [we interpose that this was that she had not appreciated that she lived next to the defendant’s brother and alleged co-conspirator until after the jury delivered its verdict] not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded observer would not necessarily find the juror’s explanation credible.”

29.	Counsel further submits that the judge erred in proceeding (a) on the basis of the prima facie case raised by the jurors’ statements (b) on the basis that the defendant had, at least to some, material extent, brought the matters upon himself. Counsel points out that the appellant disputed the jurors’ account.

30.	Further, it is to be observed that the two jurors’ accounts did themselves differ slightly in that only P saw the appellant with his brother and the younger woman on the first occasion when she and S left the canteen. On any view, however, the appellant was not the prime mover in any of the episodes complained about. The judge did not purport to determine any issue as to the correctness of the jurors’ accounts or the appellant’s precise involvement. He did not hear the appellant’s account. Yet he proceeded on the basis of the jurors’ account, and on that basis concluded that the defendant must bear material responsibility for what happened.

31.	We fully understand any judge’s reluctance to discharge a jury in circumstances for which a defendant bore material responsibility, although there are no doubt gradations of responsibility, starting with deliberate misconduct by a defendant aimed at achieving a discharge in circumstances where a trial was going badly, or at achieving a favourable verdict, and ranging downwards in seriousness from those situations. Counsel for the appellant thus, rightly in our view, accepted before us that it cannot be open to a defendant to obtain the discharge of a jury by deliberately creating some ground of aggravation or discord between him and the jury, whether inside or outside court. But, in order for a judge to rely on the appellant’s responsibility for events occurring as a ground for not discharging a jury, the circumstances giving rise to such responsibility must, it seems to us, either be agreed or ascertained by the judge to exist. They cannot be assumed, simply because there is a prima facie case which the defendant disputes. 

32.	It seems to us therefore that the judge erred in a central part of his reasoning when refusing the appellant’s application to discharge the jury. We are not satisfied in the circumstances that he ever properly addressed his mind to the true test indicated by the European authorities, particularly the objective aspect of the test, which has now, since his ruling, been authoritatively introduced into English law by the decision in In re Medicaments (No. 2).

33.	We do not however accept counsel’s further criticism of the judge, for taking into account the potential consequences of discharge, namely a re-trial and the need for the complainant to repeat the ordeal of her evidence. We note that the Court of Appeal recorded in In re Medicaments (No. 2 at para. 100 that the “immense amount of industry” and “substantial costs” which would be thrown away in that case, as a result of the court’s decision, were not considerations that ought to influence the court’s decision. That the court can and that a fair-minded and informed observer would have in mind, as a background factor, the undesirability of discharging juries too freely and the hardship that any discharge can involve for complainants, not to mention the waste of time and costs seems to us correct, and to be confirmed by the reasoning in R. v. Thorpe [1996] 1 CAR 269, 281-2. As Beldam LJ there said, such factors cannot be determinative, if the case is one where there is a real risk that injustice may be caused by not discharging the jury. But they are part of the background to any consideration whether there is a sufficiently real risk of lack of impartiality to justify discharge.

34.	Our previous conclusions mean that the judge’s exercise of discretion was flawed, and cannot stand as such. We have to consider for ourselves whether in all the circumstances the jury should have been discharged; it was not suggested before us (despite the inherent unlikelihood attaching to the appellant’s case) that the jury’s verdict could be regarded as safe, if the judge ought to have discharged the jury. We face the continuing difficulty, however, that there is no firm basis of fact on which to proceed, since the jurors’ accounts were not accepted and remain in dispute. The position may therefore need to be considered both as it stands on the facts which are known, and as it might have been if and in so far as we conclude that further factual investigation was called for.

35.	Firstly, as we have pointed out, there is no firm basis for treating the appellant as responsible for any problems. Since the two jurors’ accounts are challenged by the appellant, that leaves a possibility, even if it may seem remote, that the jurors misunderstood what was being said or done, and that the appellant bore no real responsibility for and did not participate in any exchanges. If misunderstanding of this nature did occur, the question could arise whether these jurors had, for whatever reasons, formed an unbalanced attitude regarding the appellant and his family.

36.	Secondly, even if the appellant bore some responsibility for what was said or done, there is no basis, even on the jurors’ statements, for treating what happened as the appellant’s primary responsibility and as involving either a deliberate attempt by anyone to derail a jury trial which was going against him or to intimidate the jury into a favourable verdict. Yet the general impression given by the statements from S and P is that they viewed what happened as the collective responsibility of the appellant and those with him. This is particularly so, in the case of P, whose statement indicates that she felt intimidated “by  them all” when leaving and “heavily outnumbered” on the second occasion, and concludes by saying that she felt singled out for being a juror “on their case”.

37.	Thirdly, the general questions posed by the judge in open court were, as we have observed, not aptly phrased, and did not allow members of the jury any opportunity to reflect or to respond privately and individually. Further, although we quite understand that the judge may have taken the attitude that the less said the better, the jury did not in fact receive any further guidance or assistance.

38.	In all the circumstances, we are not satisfied that, in the situation which - most unfortunately - arose, the judge was right to refuse to discharge the jury. In a case where the judge erred in his approach and did not properly address the right question, we think that it would only be if we were satisfied that the judge would have been right, on any realistic view of the facts, to refuse to discharge the jury that we could in this court uphold this conviction. We regret this conclusion in so far as it re-opens a matter determined, after hearing apparently strong evidence given by the complainant, over a year ago, and we have born that consideration in mind. But, as we have said, that cannot be determinative if there is still a real risk that injustice may have been caused. In the light of the considerations which we have identified, we consider that a fair-minded and objective observer would have had considerable doubt whether all the members of the jury would have been able so to compose themselves as to view the appellant and his defence in an appropriately dispassionate frame of mind. In so far as the judge arrived at a different conclusion on the basis that the appellant was in effect the author of his own misfortune, the judge was wrong to do so, since the two jurors’ statements were, as the judge acknowledged, the subject of an unresolved dispute and could as such constitute no more than a mere prima facie case. Although we have described the evidence as strong, we think that the appellant’s entitlement to trial before an objectively impartial tribunal of fact must in this case prevail and lead to the quashing of the appellant’s conviction.

39.	This appeal will therefore be allowed and the conviction quashed on the second ground. We will hear counsel on the appropriateness of ordering a re-trial. Before addressing us on this, we expect that the Crown will have ascertained the position and attitude in this respect of the complainant.