No. 2006/01626/C4

Neutral Citation Number: [2006] EWCA Crim 2325
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  25  August  2006

B e f o r e:

LORD  JUSTICE  HUGHES

MR  JUSTICE  MACKAY

and

MR  JUSTICE  TREACY

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R E G I N A

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DAVID  STEPHENSON
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
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MR R DANIELLS-SMITH appeared on behalf of THE APPELLANT

MR J O'HIGGINS appeared on behalf of THE CROWN
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J U D G M E N T
Friday  25  August  2006

LORD JUSTICE HUGHES:
1.  This appellant was convicted in the Crown Court at Canterbury of offences of historic sexual abuse of a teenage girl who lived in the same house as he did.  His appeal against conviction is founded upon the contention that he was not permitted to develop through cross‑ examination of the complainant his suggestion that her allegations were entirely false and the product not so much of spite or malice, but of a miserable and exploited up‑bringing as a result of which she had become psychologically disturbed and apt to see abuse in adult males with whom she had contact, whether it was true or not.  That at least is how we understand the case to be advanced in the grounds of appeal and in the skeleton argument.  
 
2.  The background circumstances of the case are these.  The appellant was born in 1964.  The allegations related to the years 1995 to 1997.  By then he had been married and divorced and on his own case had been in and out of prison, having committed offences of dishonesty, low‑ level violence and motoring.  
 
3.  The complainant was born in October 1981.  It seems to have been accepted that her father and mother separated when she was about 6 years old.  Her father stayed in Germany, where he was serving in the forces, and her mother brought the child back to England.  
 
4.  The complainant's evidence was that the relationship between her father and mother had been characterised by violence on the part of her father and by both heroin and alcohol abuse and addiction on the part of her mother.  Thereafter she said that her mother remained gravely addicted to heroin and alcohol, and subject to the many distortions of behaviour which accompany such a condition.  All that seems to have been accepted as the truth.  Her mother had various boyfriends from time to time, one of whom was a man called Darryl, who was associated with the mother at about the time when the complainant was around 12 years of age.  The complainant said that Darryl was violent to her mother and that eventually in the course of an argument he threw a bowl of vomit over her (the complainant) and as a result of that she left and went to live at the home of a friend called Tracey.  The adults in Tracey's home were a Mr and Mrs David and Anna Ralph.  It seems that at least at some stage Social Services approved, whether formally or informally, the fostering arrangement under which the complainant lived in that household.  
 
5.  Also living in the Ralph household, ostensibly at least as a lodger, was this appellant.  He, it was common ground, was rather more than a lodger because he was having an affair with Anna of which everybody, including Anna's husband, seems to have been aware.  On the appellant's own case that had begun the day after he first met Anna, at which point he moved in.  It appears to have been established by independent evidence that the complainant lived in that household for two periods.  She lived there first for a few months, and then she returned to her mother.  Not long after that, in July 1995, she discovered her mother dead in the house through an overdose of drugs.  Within a short time of that event, having briefly visited her father in Germany, she returned to live in the Ralph household, where she remained on this occasion for something well over 18 months.  
 
6.  The sleeping arrangements in the Ralph household found the complainant sharing a room with her contemporary and friend, Tracey, Mr and Mrs Ralph ostensibly sharing a bedroom (although Mr Ralph worked nights and was not normally there at night), two boys sharing the only other bedroom and the appellant sleeping in the downstairs sitting room (at least when he was not sharing the bed of Anna Ralph).   
7.  According to the complainant, during the first spell in which she lived in this household, the appellant began to approach her sexually.  It began, according to her, when she went downstairs during the night to watch the television, which was in the room where he was.  So it was her case that she went down to where he was.  She said that he used to ask her if she wanted a cuddle and that matters progressed from there to him getting her to masturbate him and to suck his penis, and later, in the period of her second stay at the house, to full and frequently repeated sexual intercourse more than once a week.  Her case was that throughout this period she was lonely and truanting from school.  She had by then no parent with whom she could live.  Her account of the relationship with the appellant was that she believed that they were in love.  She said that he spoke to her of their being together when she was 16 and indeed of marrying her in Scotland at that time.  He comes from Scotland.  
 
8.  All this went on, according to the complainant, until she left the house to live with another friend.  On her account she did that because Anna Ralph found her kissing Anna's husband, David Ralph.  From that Anna also discovered that the complainant had slept with David Ralph on (as the complainant said) a single occasion.  She then left the household, but there was at least one further incident of sexual intercourse with the appellant, according to the complainant, because she gave an account of having run into him unexpectedly in a public house, ending up at the flat of a friend and of there having intercourse with him in the sitting room in the presence of the friend and the friend's infant son.  
 
9.  The indictment charged two specimen counts of indecency with a child which were designed to cover the activities falling short of sexual intercourse.  At a very late stage in the trial it was noticed that the Indecency with Children Act had been amended to apply to children of the age of 14 or 15 only after the events in question.  One of the counts related to a time when the complainant was on her own evidence 14, and so the jury was directed that that offence could not be made out whatever had occurred.  
 
10.  In addition to those counts there were three counts of rape.  Those were each laid as specimen charges covering respectively the years when the complainant was 13, 14 and 15.  In the end the complainant's evidence suggested that in the last year there was only the incident at the friend's flat and so that formed the basis of the last count; but in respect of each of the earlier years her case was that sexual intercourse between them was regular.  
 
11.  The appellant's case was that none of this had ever happened.  There had been, he said, no sexual contact or any degree of familiarity of an intimate kind between the complainant and himself at all.  
 
12.  There was evidence that the complainant had spoken to contemporaries of her own at about the time when, if she was right, this relationship was continuing, and she had revealed it to her friends.  She had, however, made no complaint to anybody in authority about the appellant and did not do so until 8 December 2004, which was something like nine years after the last incident.  It is a fact that by then she was undergoing intensive therapy for psychological disorders.  She had attempted suicide (how seriously we do not know) on a number of occasions.  It is suggested, and may well be the case, that her counselling included methods designed to recover suppressed memories of abusive experiences.  
 
13.  Before the trial judge there was a detailed defence case statement.  It asserted that the complainant was emotionally damaged, having had an appalling childhood.  It made reference to some of the features of that childhood to which we have already referred.  It went on to say this:  
 
		"Since that time, the complainant has accused every adult male, with whom she had any significant contact, with sexually abusing her.  In particular she has accused her own father of sexually abusing her (before the age of 6) ....  
		She has accused her stepfather, Darryl, of sexually abusing her ...  
 
		She turned for protection to a local old man (unnamed) whom she accused of being a paedophile ....  
 
		She accused the defendant ‑‑ an adult male lodger living at her address.  
 
		She accused David Ralph, her foster father of unlawful sexual intercourse and indecency...  
 
		The defence say that these accusations are part and parcel of her ongoing psychiatric illness ....  
 
		The defence believe that she subconsciously blames men for her mother's and her own personal suffering, and these allegations .... are part of the illness she is suffering and/or part of the retrieved repressed memory ...."  

14.  In addition to that, the trial judge had before him a skeleton argument from counsel on behalf of the appellant making application to cross‑examine the complainant on her sexual history.  The application was necessary because of the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999.  The skeleton put it in this way:  
 
		"The defence seek leave to cross‑examine on sexual history limited strictly to:  
 
		(a)	the incident in which the complainant states that her stepfather Darryl Manners put his hand up her top [the page reference in the complainant's statement is given]; 
 
		(b)	the consensual sexual relationship she had with David Ralph her foster father (see p14)."  

The skeleton went on to assert, as the case statement had, that it was a feature of the case (according to the appellant) that every significant adult male in the complainant's life had been the subject of some allegation of abuse, either sexual or physical.  It named the men who were listed in the case statement and added to that list another male, a young man called Ring, who for a period had been the complainant's boyfriend when she was about 16.  However, it is clear that, although the skeleton referred to those other people, the application which was made to the trial judge was "limited strictly to" Manners and the foster father David Ralph.  
 
15.  The nature of the application which was made to the trial judge was not apparent from the case statement, from the notice of appeal, or from the skeleton which was lodged in support of the proposed appeal.  It appeared from those documents that what was being suggested was that the appellant had been wrongly prevented by the trial judge from developing a case that the complainant had been so damaged by her life experiences that she had come to make a pattern of false allegations against numerous people, and that the allegations against the appellant were simply part of it.  
 
16.  We would like to make it absolutely clear that if there is a proper basis for suggestion that that is what has happened, the law allows it to be explored before the jury.  Providing that there is a proper ground for supposing that other false allegations of sexual abuse have been made by the complainant against other people, questioning the complainant about those other false allegations does not constitute questioning about the sexual behaviour of the complainant and is not within section 41.  There is clear authority for that.  The line of authority begins with R v RT and MH [2001] EWCA Crim 1877, and it proceeds through a number of subsequent cases which we need not recite.  It is important to register that there have to be grounds for saying that the allegations against other people were false before that line of authority becomes relevant.  
 
17.  That appeared from the documents to be the case which the appellant sought to make.  We are wholly unsurprised that, faced with such an assertion, the single judge gave leave to pursue the appeal.  However, for the reasons that we have explained, that is not the way in which this appeal is put; nor, more importantly, is it the way in which the application was made to the trial judge.  First and foremost, the matters relating to the two men in respect of whom an application was made before the trial judge (Darryl Manners and David Ralph) were in neither case suggested to have been false.  The material available in relation to Darryl Manners was that in the course of the kind of questions which police officers normally ask complainants in a case of this kind about her general family history, the complainant mentioned that on a single occasion Manners (who was then her mother's boyfriend) had put his hand up or down her upper clothing and onto her chest.  The matter had gone no further than that.  She had rebuffed him and the following day he had apologised.  That was her account and that was all there was to it.  No one suggested that it was a false allegation; on the contrary, everybody accepted that it was true.  Mr Daniells‑Smith, on behalf of the appellant, tells us that he would have wished to explore with the complainant whether that was the reason why she left her mother and went to live in the Ralph household.  But there was no possible basis for any such suggestion.  The complainant gave a vivid and entirely convincing reason why she left her mother's household: Manners was routinely violent to her mother and then an incident occurred when he threw a bowl of vomit over the complainant's face.  
 
18.  So far as David Ralph was concerned, the material available which counsel on behalf of the appellant sought to cross‑examine about was (as it is put in the skeleton) "a consensual sexual relationship as per page 14".  The complainant said that she had been ejected from the house by Anna Ralph, having been found kissing David Ralph, and that there had been an incident of sexual intercourse between them before that.  
 
19.  The application was plainly made to the trial judge simply on the basis that it was in some way necessary for the jury to understand or to know about that matter in order to judge the veracity of the complainant's allegation against the appellant.  That simply does not follow.  That the complainant had had some brief sexual experience with another adult man (if that is all there was to it) was of no assistance at all on the question of whether her allegations against the appellant were true or false.  That seems to have been the only basis upon which the matter was put to the trial judge.  Today Mr Daniells‑Smith has suggested that the relationship with David Ralph may have had a different and more far‑reaching significance for the question of whether the complainant was truthful about the appellant or not.  He says that his instructions from the appellant were that there had not been a casual single episode with Ralph, but an affair which had continued at any rate for the latter months of the long second period in which the complainant had lived in the Ralph household.  Mr Daniells‑Smith submits to us today that it may be the case that, as a damaged witness, the complainant had attributed to the appellant the activities in which she had actually engaged with Mr Ralph.  
 
20.  It suffices to say that that is not and did not begin to be the way in which the application was put to the trial judge and the trial judge cannot be faulted for not having divined by some means that that might be the suggestion.  In any event there was a wholly insufficient basis for it.  The only material that there was was what the complainant said.  Beyond that there was nothing, except (although we do not know because we have not seen it) the unsupported assertion of the appellant.  Moreover, even on the appellant's case as presented to us today, the furthest that the suggestion went was that for the last part of the second period of residence in the Ralph household there had been a continuing sexual relationship between the complainant and Mr Ralph.  The complainant's evidence in relation to the appellant was that what had happened between her and him had begun in the first period of her residence and continued throughout the second and indeed beyond it.  It was not a question, even if it had been put in this way to the judge, of her transposing events from one man to the other.  The accounts of her relationship with the appellant was quite different from the suggested relationship with Ralph.  
 
21.  The only rulings that the trial judge was ever asked to make related to questions concerning Manners and Ralph.  It is impossible to fault the judge's ruling in relation to either of those men, given the way that the application was made to him and given the nature of the available material as we have now explained it.  
 
22.  The material in relation to other men (in relation to whom no application under section 41 was ever made to the trial judge) was even more exiguous.  The suggestion that the complainant had been abused by her natural father at some time before the age of 6 was founded upon a single, subsequently retracted suggestion made to a counsellor in the course of counselling and went no further than, "I do not know, but my father may have abused me".  The old man referred to in the list of males that we have catalogued was a neighbour who lived close by when the complainant lived with her mother and Manners.  She had gone to him, she said, to register her complaint about the occasion when Manners put his hand under her clothes.  She made no complaint whatever about him; she said that he was kind to her.  In the course of her interviews with the police she repeated local gossip which she said she had heard later to the effect that the man was a paedophile, but she did not make any allegation against him, nor did she suggest that he had laid a finger on her.  
 
23.  The boyfriend Ring, with whom she had been in a relationship when she was about 16, was not somebody about whom she made any complaint at all.  The only thing that she said about him was that, according to her, she had met the appellant at some stage and had told him that Ring was HIV positive.
 
24.  That short reference to the other males listed demonstrates that the assertion in the defence case statement that the complainant had accused every adult male with whom she had any significant contact of sexually abusing her was not simply not founded in fact, but was grossly overstated.  
 
25.  We are quite satisfied that there is nothing in the trial judge's ruling in relation to the section 41 application which was made to him about which there can possibly be any complaint.  Perhaps because he too was a little puzzled about what was being suggested, the judge expressly left open to the applicant the opportunity to return and make further application and indeed, we are told, enquired at a later stage of the trial whether further argument needed to be addressed to him.  As Mr Daniells‑Smith informed us, he was told that there was none.   

26.  There is a second ground of complaint which Mr Daniells‑Smith puts very much as a secondary basis of appeal.  The complainant, who was aged about 24 by the time of the trial, had in the late 1990s two cautions and a conviction.  She had been cautioned in May 1996 (when she would have been 14) for receiving stolen goods; she must therefore have admitted it.  She had been cautioned in March 1997, when she would have been 16, for stealing by way of shoplifting.  In January 1998 (when she would have been 17) she had a recorded conviction in the magistrates' court for receiving stolen goods.  The history does not relate whether she admitted it or not, but it does reveal that it was an offence which was dealt with by the magistrates by way of a conditional discharge.  
 
27.  Application was made to the trial judge to cross‑examine the complainant about those matters.  That would have involved cross‑examining as to bad character and accordingly the provisions of section 100 of the Criminal Justice Act 2003 applied.  The judge refused to permit it on the basis that dishonesty was not the same as untruthfulness.  In reaching that decision he referred to the observation of this court in R v Hanson [2005] EWCA Crim 824, in particular at paragraph 13.  In Hanson this court considered an application made by the Crown to admit evidence of bad character of the defendant on trial.  In such a case, as this court held as recently as yesterday when the point was fully argued, particular caution must be adopted, but it does not follow, as we have held, that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non‑ defendant under section 100, or for that matter of a co‑accused where the application is made by him under section 101(1)(e).  It is, as we then explained, wholly rational that the same degree of caution which is applied to a Crown application when considering relevance and discretion does not fall to be applied when What is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge.  Accordingly (though he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson to the situation which was before him.  It may be, therefore, that had he addressed the question without believing himself fettered in that way, he might have come to the conclusion that these three incidents were capable of having substantial probative value in relation to the truthfulness of the complainant, which was an important matter in issue in this case.  Whether he would or not would have been a matter for the feel of the case and for him at the time.  Whether he would or not, we are satisfied that, had those matters been known to the jury, they could not in this case have made any significant difference.  This complainant was on her own evidence the product of a thoroughly chaotic and disreputable lifestyle.  The convictions were for relatively minor matters.  They were a significant time ago in the life of someone of the complainant's age.  They related to events in her late teens some eight or nine years before the relevant time which was whether she was truthful when she gave her evidence in court.  We are quite satisfied that, even if those three incidents ought to have been before the jury, it is quite impossible to say that these convictions are unsafe as a result of the fact that they were not.  In those circumstances this appeal must be dismissed.