No: 2002/6503/C1 
Neutral Citation Number: [2003] EWCA Crim 3641
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 24 November 2003
 
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE PITCHFORD 
 
THE RECORDER OF CARDIFF
HIS HONOUR JUDGE GRIFFITH WILLIAMS QC  
(Sitting as a Judge of the CACD)
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R E G I N A 

-v- 

ALAN V
 
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MR C BURTON appeared on behalf of the APPELLANT
MR I WADE appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE LAWS:  In September 2002, this appellant faced his trial before His Honour Judge Hucker and a jury at the Kingston on Thames Crown Court upon an indictment containing 19 counts all alleging sexual offences.  On counts 1 to 11 the alleged victim was the appellant's daughter, to whom we shall refer by the letter S, born on 21st August 1978.  The offences against him were said to have been committed between 1987 and 1992 when she was between 9 and 14 years of age.  On counts 12 to 19 the alleged victim was the appellant's niece, D, born on 26th June 1965.  The offences against him were said to have been committed between 1972 and 1975, when she was between seven and eight years of age.  Thus the two groups of offences are separate in time by 12 years or more.
2.	On 27th September 2002 the jury returned verdicts as follows:  counts 1 and 2, gross indecency with a child, guilty; count 3, rape, guilty; count 4 alleged an offence of incest and was charged as an alternative to count 3: accordingly the jury were discharged from giving a verdict on that count; count 5, gross indecency with a child, guilty; count 6, buggery, guilty; count 7, gross indecency with a child, guilty; count 8, buggery, not guilty; count 9, buggery, guilty; counts 10 to 15, gross indecency with a child, guilty; and counts 16 to 19, attempted buggery, guilty.  On 20th December 2002 the appellant was sentenced to prison terms totalling eight years.
3.	We turn to the facts.  The V family lived at various addresses and ultimately at home in Battersea.  S's mother, the appellant's wife, suffered from a mental illness and was in and out of hospital.  At length there was a divorce and the mother has since died.  But it is convenient to go back in time and deal with the offences alleged against D which, as we have stated, were first in time.
4.	From 1972 when she was seven years of age, D often stayed at her grandmother's house where the appellant (her uncle) was also then living.  He would have been 19 in 1972, having been born on 6th June 1953.  At the grandmother's house D often shared a bed with the appellant.  The first offence against her (count 12) occurred on her evidence when they were in the double bed together and he put her hand on his erect penis and with her hand there masturbated to ejaculation.  Conduct of this kind persisted over two years and is represented by counts 12 to 15 inclusive.  
5.	Some time after this had started he began also to try and penetrate her anus with his penis.  It started after about six months.  It happened she said about once a month.  D's evidence was that she did not know "if he went into her or not".  Hence counts 16 to 19 were charged as attempted buggery.  
6.	Eventually, years later in August 2001, D spoke to the police.  She was 37 years of age when she gave evidence at the appellant's trial.  She said that she had no recent contact with her cousin S, the alleged victim on counts 1 to 11, whom she had last seen eight-and-a-half years before the trial.
7.	We turn to counts 1 to 11 relating to the other girl, S.  Because of the mother's illness the appellant had care of S and her brother at the home in Battersea where the living conditions were poor.  The first incident giving rise to count 1 was said to have occurred in 1987 when the appellant lay naked beside S, gave her a handkerchief and told her to hold onto it over his penis.  He masturbated to ejaculation.  Thereafter this happened twice a week, so it was said, and that we understand is represented by count 2.
8.	Count 3, the rape charge, refers to an occasion in 1998.  The accusation was that the appellant undressed S before she went to bed.  She was half asleep when he lay on top of her.  She described his penis moving in her vagina.  It lasted about five minutes.  She felt wet on her chest and thought it was blood because of the pain she had endured.  The appellant gave her lavatory paper to clean herself.
9.	S began to menstruate when she was 10.  She was to say to the jury that the appellant told her in terms that they could not have vaginal sex because she might fall pregnant.  He said there could not be any accidents.
10.	Before reciting the facts said to support the remaining counts concerning S, that is counts 5 to 11, we should briefly refer to another aspect of the history of the case that was happening shortly before this.  In October 1987, S complained that she had been raped more than once by a 15-year-old boy called G.  The judge reported some details of her evidence about that to the jury - see summing-up transcript 17E to G.  We need not set it out.  At length G was convicted on his plea of guilty to offences of having unlawful sexual intercourse.  The importance of G's part in the story arose because of the suggestion by the defence that in light also of other factors in the case there was a real possibility that S might have transposed her recollections of what G had done to her onto her father.
11.	Counts 5 and 7 represent other occasions on which the appellant made S masturbate him, upon her account of the matter.  Count 6 pleaded the first offence of buggery.  S said that this took place on an old bed set up downstairs in the Battersea home. S was on the bed watching the television.  The appellant got in behind her.  She felt a lot of pain in a different place from the vaginal rape which had happened eight months to a year earlier.  She said that he did this on five occasions altogether: one other act of buggery was charged as count 9.  Count 8, on which the appellant was acquitted by the jury, alleged another act of buggery said to have taken place when S was on holiday in the Isle of Wight.  She said it happened in 1991, but there was objective evidence that she had only been on holiday in the Isle of Wight in May 1987 which was before the date of any alleged offences against her by the appellant.
12.	Lastly counts 10 to 11 relate to other incidents in which S said that she was made to masturbate the appellant and he pushed his penis into her mouth.  
13.	S was aged 24 at the time of the trial.  She said she had told her partner what had happened in 1997, and after getting very depressed at length told the police about it in 2001.  She said that she knew that D was also a complainant against the appellant but that the two of them had not spoken.
14.	The appellant made no comment when he was interviewed by the police and did not give evidence in his defence.  The case put on his behalf was that he had not done any of the acts alleged against him in the indictment and that, as we have foreshadowed, S had transposed her recollections of what the youth G had done to her onto her father.  That was in particular a possibility because she had suffered an illness which affected or might have affected her memory.  The appellant relied on the evidence of a police officer, P.C. Gadd, to the effect that in her initial complaint to the police she had located the appellant's acts of abuse against her not in the Battersea home but at a place called the Laburnham Club where in 1987 she said she had been abused by the boy G.  As for the counts relating to D, the appellant's case was that they had been invented.
15.	The sole ground on which the single judge gave leave was ground B as pleaded.  That was to the effect that the trial judge's ruling at the end of the evidence that he would direct the jury that the evidence of each complainant was admissible in proof of the other complainant's allegations as well as her own was a material irregularity, such as to render all the convictions unsafe.  Mr Burton for the appellant has pursued that ground today and has also sought to support additional arguments in which the judge's treatment of what may for short be called the issue of similar fact evidence falls to be criticised.  
16.	In order to understand the force of the ground on which leave was given, or the lack of it, it is necessary briefly to look at the earlier procedural history of the case.  
17.	On 2nd August 2002 the judge had to deal with two applications made by the defence.  The first was to the effect that the counts relating to S and the counts relating to D were not lawfully joined in the same indictment having regard to Rule 9 of the Indictment Rules 1971:
"Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form part of a series of offences of the same or a similar character."  
The second application was that even if the counts were properly joined, they should in the judge's discretion be severed so that there would be separate trials on the S counts and the D counts.  The judge refused both applications and those refusals were complained of in ground A, on which the single judge did not give leave.  In both rulings the judge stated that there were "striking similarities" between the two sets of accusations.  He did not then distinctly hold that the evidence on one set of accusations was admissible in proof of the other, nor was he at that stage invited to do so.
18.	The trial commenced on 16th September 2002.  The appellant's counsel asserts in the grounds, and we understand this to be uncontentious, that in opening their case the prosecution specifically stated that the evidence of each complainant was to be treated separately and was not mutually corroborative.  At no stage before opening was the question of mutual corroboration of similar fact canvassed with either defence counsel or the judge.  A further application to sever was made on 17th September 2002.  The judge merely reaffirmed his earlier ruling of 2nd August 2002, stating in effect that nothing had changed, and so the trial proceeded.  The appellant said that the defence case was conducted on the basis that the jury would in due course be directed to treat the evidence of each complainant on its merits as being relevant to that complainant's accusations only.  
19.	After all the evidence had been given and before counsel's speeches, the Crown raised the question whether the judge would be directing the jury that the evidence of each complainant might corroborate or support that of the other.  The judge said this (transcript volume 4, 2F to H): 
"My immediate reply was that he had specifically opened the matter excluding any reference to corroboration between S and D, and they had not applied until now, but that I would consider the application on its merits having heard Mr Burton's arguments on behalf of the defendant." 
Then this at 3F: 
"I came to try the case on 16th September, and it was opened by Mr Wade to the jury upon the basis that they would have to consider the case involving S and D quite separately and come to separate conclusions." 
Then at 3H to 4A: 
"It is correct to say that Mr Wade did not suggest that he would make an application and reserve his position until the evidence was completed.  Nothing of that nature occurred, and I did not raise it with Mr Wade." 
At 4D:
"Mr Burton states in terms that because of the opening it did not cross his mind that this was still an issue.  He said that he conducted his case throughout on the basis that D could not corroborate S, or vice versa, and he is now put at a complete disadvantage if I give a full direction on corroboration." 
Then the judge concluded as follows (4H):
"There is a striking similarity well above the requirements of the case of R v P [that is the decision of the House of Lords DPP V P [1991] 2 AC 447] and, in particular, with reference to Lord McKay's opinion, which I have just taken the opportunity to read yet again." 
Then at 5C:
"After very careful consideration, I have to say I cannot really believe that the defence can be surprised.  Certainly Mr Burton never asked for the matter to be excluded from my summing-up in terms, which is odd because there are very few points in this trial that he has missed with regard to making applications to me.  
I rule that counsel may refer to corroboration in these terms, and I shall direct accordingly in my summing-up based firmly on the JSB page 20.3.  [That is a reference to the Judicial Studies Board specimen direction]  
That is my ruling." 
20.	That then was the ruling which gave rise to the ground on which alone the single judge gave leave, that the jury would be directed that the evidence of S could support that of D and vice versa.  The judge accordingly gave a direction to the jury about mutual corroboration or support, and it is convenient at this stage to read the material passage at 3E to 5E of the summing-up: 
"What I must say to you now is very important.  You do not need corroboration in order to convict the defendant on any of the counts, provided that you believe either S in respect of counts 1 to 11, or D in respect of counts 12 to 19.  What you must do is look at those witnesses separately and ask if they are telling you a reliable, accurate and truthful account of what took place on each particular occasion.  You should note that a complaint made by either S or D, after the event, to someone, does not amount to corroboration, because the complaints of themselves cannot prove that S and D's allegations are true.  
What may amount to corroboration, that is to say matters that are capable of amounting to corroboration, is the evidence of D and S's evidence, and vice versa, one corroborating the other in turn.  This is for you to decide, and you must be sure that one woman's evidence corroborates the other.  
In order to decide this you must ask the following questions.  Are you sure that S and D did not put their heads together to make false accusations.  If you are not sure of the evidence of D in respect of S, and S in respect of D, it is of no value.  If you are sure there was no collaboration, no getting of the heads together, you are entitled to consider one woman's evidence against the other when considering whether each complainant is telling you the truth.  Secondly, you must then ask, is it reasonably possible that two persons, independently making similar accusations, could be lying or mistaken.  If you think that it is incredible, then you will be satisfied that both S and D are telling you the truth.  
In answering this question you must consider two important aspects of the evidence.  Firstly, the degree of similarity between the accusations.  The greater degree of similarity, the more likely it is that independent witnesses are speaking the truth.  But the less degree of similarity, the less weight should be given to that evidence.  Secondly, whether S and D may have been influenced in their evidence through hearing complaints by others.  That is a matter of fact for you to consider, and they are the two things you must consider under that heading.
As far as counts 3 and 4 are concerned, that evidence is not capable of being corroborated or corroborating any other evidence, for obvious reasons, that 3 and 4 only concern [S] and nobody else."
It will be remembered that count 3 was the rape charge, and an offence of that kind was not replicated in the accusations relating to D. The judge continued:  
"So far as the other counts are concerned, gross indecency, and anal penetration, or attempted penetration, the following similarities are capable of being corroborative if you find that they are so, that you are sure.  Firstly, the general age of each girl when the offences took place.  Secondly, the form of the invitation to touch the penis.  Thirdly, the systematic progression of one matter following into another.  Fourthly, the forced masturbation as described by both girls.  Fifthly, the ejaculation on a regular basis into a handkerchief.  It is a simple one to pause at, just thinking, is it sheer coincidence that it happened to one girl in '72 to '74, and another in '87 to '92.  You would have to consider that.  It is a factual matter for you to determine.  The form of the anal intercourse, or attempted anal intercourse, and the fact that nothing, from the evidence, was said by anybody but the defendant, in particular, during the sexual activity in respect of both girls.  
So that is my direction.  As to the effect of corroboration, and the fact that you having been told what is capable of being corroboration, it is for you to decide whether it is so or not as a matter of fact." 
We shall return to parts of this passage in dealing with Mr Burton's criticism of the summing-up.
21.	We turn then to the ground on which the judge gave leave.  The real complaint here is not that the evidence of each girl was incapable of lending support to the evidence of the other, but rather that the defence was taken unawares by the judge's decision to treat the case as one of potential mutual corroboration after all the evidence had been given: the case had been distinctly opened, as we have explained, on the basis that the two sets of counts should be considered wholly separately.  A similar situation arose in R v Davies and Poolton, 16th December 1999, a case involving two defendants and multiple counts of offences of ill-treating a patient contrary to section 127(1) of the Mental Health Act 1983.  There too the case had been conducted without any reliance on similar fact.  The judge proposed of his own motion however to give a similar fact direction and he proceeded to do so.  This court said this at paragraph 27:
"... since the Crown had never suggested that in relied in relation to any incident upon similar fact evidence relating to any other incident(s), there had been no detailed attention paid in evidence to (a) what might or might not be the similarities or, more importantly, (b) the possibility of collusion."  
Then in the next paragraph, 28:
"We think in these circumstances that the judge erred in giving the direction that he did.  He should have given a direction that the jury should consider each count separately by reference to the evidence dealing with that count, and not allow their view on any one incident to be influenced by evidence of witnesses addressed to other incidents.  Looking at the pattern of convictions in respect of Davies, we cannot exclude the possibility that the jury's verdicts on the counts on which guilty verdicts were entered were influenced by this misdirection.  We consider that the verdicts in respect of Davies must be regarded as unsafe accordingly." 
Mr Burton submits that much the same applies here.  He said that had the possibility of cross corroboration been live from the start, the cross-examination of S and D would have concentrated more on differences between the cases and the possibility of collusion than was in fact the case.  That submission has been made in somewhat general terms in the grounds prepared by Mr Burton and indeed in his recent skeleton argument.  Accordingly, we asked him about it in the course of his submissions this morning.  It is clear from his answers that there was, at any rate a degree of cross-examination as to the possibility of some form of collusion or discussion between the two girls so as to give rise to a case of contamination, whether innocent or otherwise.  The judge reported the girls evidence about it: pages 21 and 23.  Mr Burton said that he cross-examined the complainant D suggesting that she had, for reasons that were put to her to do with the family history, made accusations of abuse about a member or members of the V family.  He also asked her questions as to whether or not she had been in contact with another cousin in the family and as a result had become aware of S's allegations.  
22.	It seems to us plain that the question of collusion or contamination was canvassed in the evidence to a point sufficient to avoid any unfairness to this appellant.  Mr Burton said that had the question of similar fact been live from the start there would have been cross-examination specifically directed to the similarities or dissimilarities between the two accounts given by the two girls.  We do not of course suggest that there would have been no difference whatever in the way in which the girls were cross-examined had the defence been on notice of the possibility that points as to similar fact might be taken.  But we consider it unreal to conclude that this is a case, like Davies and Poolton, where the trial would have taken an essentially different course had Mr Burton known of the possibility of a direction about similar fact.  We are not persuaded that these convictions are rendered unsafe upon the footing on which the learned single judge gave leave to appeal.
23.	Mr Burton, as we have said, has sought today to criticise the summing-up.  Strictly speaking he needs the court's leave to do this.  Without objection from Mr Wade for the Crown we have considered his submissions and we give leave for him to advance a ground to the effect that the judge's directions in relation to cross-corroboration or similar fact were defective.  
24.	The points are as follows: they principally relate to what the judge said on page 4 of the transcript beginning with the sentence (we have already quoted the passage):
"In order to decide this you must ask the following questions." 
The judge then went on to say, it will be recalled:
"Are you sure that S sand D did not put their heads together to make false accusations.  If you are not sure of the evidence of D in respect of S, and S in respect of D, it is of no value.  If you are sure there was no collaboration, no getting of the heads together, you are entitled to consider one woman's evidence against the other when considering whether each complainant is telling you the truth." 
The judge clearly had in mind the specimen direction commended by the Judicial Studies Board.  Indeed he indicated that that would be the basis of his directions to the jury.  In dealing with the possibility of actual collusion, which is the subject matter of this passage we have just again quoted the judge was obliged to direct the jury that if they considered that there was a real possibility that the two girls had deliberately put their heads together to make false accusations, then their evidence was of no value and should be ignored by the jury.  In the sentence "if you are not sure of the evidence of D in respect of S and S in respect of D, it is of no value", the judge was, as it seems to us, seeking to put that message across to the jury.  But of course the jury do not have the text of the specimen direction.  We are not confident that the words actually used by the judge in this sentence, which with respect to him is very far from clear, would have given the necessary message loud and clear.  
25.	But that is by no means the end of it; and if that stood alone, it perhaps would not be enough for Mr Burton's purposes.  The paragraph in which that sentence appears continues and concludes thus:
"Secondly, you must then ask, is it reasonably possible that two persons, independently making similar accusations, could be lying or mistaken.  If you think that it is incredible, then you will be satisfied that both S and D are telling you the truth." (emphasis added)
The commended direction suggests a different form of words to the effect that in the circumstances being contemplated the jury may well be satisfied that the witnesses are telling the truth (emphasis added).  This is not mere pedantry.  As was pointed out in the course of argument by my Lord, Pitchford J, it is important that the matter should be left open to that extent because in giving these directions the trial judge has not yet reached the point at which he deals with the possibility of innocent contamination.  This sentence, which is at 4D of the transcript, reads as if the judge is really closing off the question as to whether S and D might be telling the truth by reference only to the possibility of direct collusion.  That seems to us less than satisfactory.  
26.	The next paragraph begins with the sentence:
"In answering this question you must consider two important aspects of the evidence."
It is perhaps not entirely clear what this question refers to.  It might refer to the question asked at the earlier part of the foregoing paragraph 'Are you sure that S and D did not put their heads together'.  But it more likely refers to the question later in that foregoing paragraph 'You must ask is it reasonably possible that two persons independently make similar accusations could be lying or mistaken?'  The difficulty is in what follows in this further paragraph.  The judge says: 
"Firstly, the degree of similarity between the accusations.  The greater degree of similarity, the more likely it is that independent witnesses are speaking the truth. But the less degree of similarity, the less weight should be given to that evidence.  Secondly, whether S and D may have been influenced in their evidence through hearing complaints by others.  That is a matter of fact for you to consider, and they are the two things you must consider under that heading." 
27.	With great deference we feel driven to say that this is somewhat garbled.  The judge here was required to give the jury a direction about the possibility of innocent contamination.  The specimen direction has it thus:
"Whether W, X or Y may have been consciously or unconsciously influenced in their evidence through hearing of complaints made by others.  If you think it is possible that they, or any of them, may have been influenced in making the accusation at all, or in the detail of their evidence, you must take that into account in deciding what weight, if any, you give to their evidence."  
The importance of this direction is that it assists the jury in deciding what approach to take if they are faced with a case in which they regard it as a real possibility that there was innocent contamination between complainants.  Unfortunately guidance of that kind is entirely absent from the learned judge's formulation.  That sentence which we have now quoted twice, beginning "secondly whether S and D", contains no such guidance and the possibility was an important one here.  There were family relationships between these girls and the jury would have had to be alert to the possibility that there was no innocent contamination even if they had excluded, as it seems they may very well have done, the possibility of actual collusion.
28.	We have considered very anxiously whether these defects reached a point where the conclusion to be drawn from them is that the convictions are unsafe.  These accusations go far back in time, certainly those relating to D.  The case was not an easy or straightforward one.  The issue as to similar fact and cross-corroboration arose very late in the day, though we have held that the way it arose does not itself render the conviction unsafe.  However, it did mean that it was especially incumbent upon the judge to make it crystal clear to the jury what they had to decide and the approach they had to take when considering the suggestion that the account given by one of these complainants might support the account given by the other.  That degree of clarity in the directions that had been given are not to be found in these material passages in the summing-up.  We are accordingly driven to the conclusion that the convictions are unsafe.  On this ground only the appeal against conviction succeeds.  
29.	Are there any applications? 
30.	MR WADE:  My Lord, ordinarily I would like to be able to ask the court for an order for a retrial.  
31.	LORD JUSTICE LAWS:  Yes. 
32.	MR WADE:  But in this particular case I have to tell the court that the background history makes it not an easy decision whether these mature women should be asked to go through this trial again.  I happen to know that S has had to go back to the mental hospital a number of times from which she sought treatment many years ago.  I wonder if in those circumstances the Crown could be given time to reflect on whether it is appropriate to seek a retrial? 
33.	LORD JUSTICE LAWS:  Do you contemplate returning to court later this week? 
34.	MR WADE:  My Lord, yes.
35.	LORD JUSTICE LAWS:  It would need to be on Thursday, Mr Wade, because the court is not sitting on Friday and Wednesday is a reading day.  I think, subject to anything Mr Burton has to say, we would leave it this way: we will have this case listed just for a 10 minute application on Thursday.  If before then, it is only three days off, the Crown decides not to make any application for a retrial let the court know and the matter can be taken out of the list and nobody need attend.  
36.	Mr Burton do you wish to say anything about this matter at this stage?
37.	MR BURTON:  My Lord, I have certain observations obviously to make in relation to any application the Crown do make for a retrial based on the usual principle. 
38.	LORD JUSTICE LAWS:  That of course will be entirely open to you if the application is made.
39.	MR BURTON:  I do not know if there is any point in my submitting at this stage whether an order would be appropriate, regardless of the prosecution's own view as to the matter.  I am in your Lordships' hands to that extent.  Had they decided today I would have made representations in relation to the question of whether in all the circumstances such an order -- 
40.	LORD JUSTICE LAWS:  I suppose you could try and persuade us today that whatever stance the Crown take this could not possibly be a case for a retrial, but I would have thought that it is more sensible to wait and see whether an application is made against you. 
41.	MR BURTON:  My Lord, with respect, I agree. 
42.	LORD JUSTICE LAWS:  Very well then. 
43.	MR BURTON:  My Lord, there is the question of the appellant. 
44.	LORD JUSTICE LAWS:  Yes, exactly so.  If you wish to apply for bail pending Thursday you may do so. At present we are minded not to release him until Thursday. 
45.	MR BURTON:  My Lord, at present I am not entirely in possession of matters that would be relevant to bail, so far as addresses and such like are concerned.  In those circumstances I would have to adjourn any application until further consultation with the appellant. 
46.	LORD JUSTICE LAWS:  I follow.
47.	MR BURTON:  But my Lord can I say that if following consultation with the appellant after this, if there is a further matter to be raised would your Lordships hear me at the conclusion of the next case? 
48.	LORD JUSTICE LAWS:  Yes, you want to make an application this afternoon. Yes, but it would mean that Mr Wade would have to be here. 
49.	MR BURTON:  My Lord I hope to be able to see him in five minutes' time, at least. 
50.	LORD JUSTICE LAWS:  The alternative is to ask Mr Wade to see that the Crown make up its mind whether to apply or not by tomorrow. 
51.	MR WADE:  My Lord yes. 
52.	LORD JUSTICE LAWS:  Is that realistic, Mr Wade?  It is a matter of great importance.  It cannot actually be too difficult to see what the relevant materials are. 
53.	MR WADE:  My Lord, I agree.  I am pleased to say that the officer in the case attended court today.  I will have her assistance immediately.  Counsel's freedom to make these decisions, as I am sure your Lordships are aware, is a little carte blanche, I must consult with the Crown Prosecution Service in Kingston. 
54.	LORD JUSTICE LAWS:  I entirely respect that.  It is a question of timetable and the man's prima facie right to be released immediately. 
55.	MR WADE:  Of course.  I think it likely that I will be able to take the appropriate instructions this afternoon. 
56.	LORD JUSTICE LAWS:  I think we will not bail him at this moment.  I think we will leave it over the midday break and let it be mentioned this afternoon, either before or after the next case, at which time you may be in a position firmly to say whether or not you want a retrial or if you have not been able to take the relevant instructions at least firmly to say when that application will be made, if it is to be made.  We will rise now. 
Later:	
57.	MR WADE:  My Lord, I cannot obtain instructions on the question of a retrial, nor can I raise any response from the victims who the Crown consider must be consulted.  However, the court will want to consider the question of bail and it seems to the Crown that the application for bail should not and cannot be resisted, whatever the universal decisions will be.  In the circumstances I would only seek to address your Lordships on any conditions of bail, if the court agrees that the matter of bail could and should be considered now. 
58.	LORD JUSTICE LAWS:  Can you indicate as to whether you might have the appropriate instructions by tomorrow or Thursday, as we were contemplating earlier?  
59.	MR WADE:  I am still confident that I will have the instructions by Thursday.  I know that the relevant people that I must take instructions from are at their place of work today, they just were not at their desks.  
60.	LORD JUSTICE LAWS:  I follow that.  Thank you.  Mr Burton, have you seen your client over the short adjournment?
61.	MR BURTON:  I have.
62.	LORD JUSTICE LAWS:  Presumably you would like to make an application for bail?  
63.	MR BURTON:  My Lord, yes. 
64.	LORD JUSTICE LAWS:  Which is not resisted, subject only to conditions.  I think first of all we will give, subject to my Lords, we will give the directions that I was contemplating earlier, namely that the matter can be mentioned on Thursday if the Crown advisedly choose to pursue an application for a retrial.  If they are not going to take that position they only have to notify the court and nobody need turn up.  Unless notified we will expect to see you on Thursday.  All right, Mr Wade?  
65.	MR WADE:  Certainly, my Lord. 
66.	LORD JUSTICE LAWS:  As regards bail, again subject to my Lords, if it is not resisted we would be at pains to see that proper conditions are set but it would not seem to me to be right to refuse it.  
67.	Pitchford J has rightly pointed out to me that if you do not make an application for a retrial on Thursday the appellant would then undoubtedly be entitled to be discharged as opposed to merely bailed, so the matter would have to be mentioned then for that purpose if no other.  That seems to me to be right, with respect.  
68.	MR WADE:  Yes. 
69.	LORD JUSTICE LAWS:  As regards conditions of bail between now and Thursday, what do you say?  
70.	MR WADE:  My Lord, the Crown is very concerned that the victim S lives but a few streets away from the only known address of the appellant and that her mental condition would be at risk if she encountered him, even if unexpectedly.  The Crown would invite the condition that he should not enter the London Borough of Wandsworth.  
71.	LORD JUSTICE LAWS:  I see.  Do you want any other conditions?  
72.	MR WADE:  Not to contact directly or indirectly S or D or Mrs G? 
73.	LORD JUSTICE LAWS:  Who is Mrs G?  
74.	MR WADE:  SG, the witness is the appellant's ex-wife and mother of S.  
75.	LORD JUSTICE LAWS:  Yes.  Mr Burton, where would he live if he is bailed. 
76.	MR BURTON:  That is the problem.  
77.	LORD JUSTICE LAWS:  It would be in Wandsworth?  
78.	MR BURTON:  Yes, the only address that he can go back to now, your Lordships will appreciate he has lost any previous addresses he may have had, is that of his mother who lives at another home in Battersea.  He was residing there at the time shortly before.
79.	LORD JUSTICE LAWS:  That is the only address you have?  
80.	MR BURTON:  My Lord, yes, it is.  At this stage that is the only address that the appellant can offer.  (Pause)
81.	LORD JUSTICE LAWS:  We think this is a delicate situation.  Although you are not resisting bail in principle, Mr Wade, given that the only address that is available would in effect make what is a necessary condition of that bail inoperative, we will not grant bail but the matter will be listed in any event on Thursday morning and he will then be dealt with appropriately according to what we are told at that stage.  Mr Burton, it might be in your client's interests if some investigation could be made between now and Thursday to see whether another address -- 
82.	MR BURTON:  My Lord I can tell your Lordship that he was at that address before he was remanded in custody because he lost through arrears his own previous of address.  Previous efforts to find an alternative address were not successful. 
83.	LORD JUSTICE LAWS:  So be it.  You see what the difficulty is.  This woman is in a vulnerable condition.  Of course if he is entitled to be discharged then there is nothing else to be said and that may be the position on Thursday, but if not whether he gets bail or not may depend, I only say may, on the position relating to where he can stay. 
84.	MR BURTON:  Can I only then -- I do not wish to take up much of the court time -- can I invite your Lordships then to say in the very special circumstances of this case, given that the respondents have known this appeal was to be heard for some time now, that the decision if not taken by now as to what would happen in the event of it being allowed, can be taken by tomorrow.  
85.	LORD JUSTICE LAWS:  I would prefer to deal with it tomorrow, but Mr Wade are you telling us you are unable or may be unable to deal with it tomorrow?  
86.	MR WADE:  My Lord, I simply do not know what the position is.  I felt that Thursday was a certain date that I could promise, but I do not know about tomorrow. 
87.	LORD JUSTICE LAWS:  Subject to my Lords we will leave it like this.  The case will be relisted on Thursday.  If you are able to deal with it tomorrow at say 2 o'clock or 12 o'clock, and having been in touch with your opponent, let the court know and we will hear you tomorrow.  Otherwise it will be Thursday morning.  
88.	MR WADE:  I am grateful. 
89.	LORD JUSTICE LAWS:  In the meantime he will not be bailed but the matter will be disposed of finally one way or the other not later than Thursday.  Thank you very much for your assistance.