No. 2007/01008/D1
Neutral Citation Number: [2008] EWCA Crim 1850
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  17  July  2008

B e f o r e:

LORD  JUSTICE  HOOPER

MR  JUSTICE  IRWIN

and

HIS  HONOUR  JUDGE  RADFORD
(Sitting as a Judge in the Court of Appeal, Criminal Division)

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R E G I N A

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RB
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Mr R Harrison and Miss G Gibbs appeared on behalf of the Appellant

Mr J M Farmer appeared on behalf of the Crown
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J U D G M E N T

LORD JUSTICE HOOPER: 
1.  On 23 January 2007, at the Crown Court at Cambridge, before His Honour Judge Haworth and a jury, the appellant (now aged 40) was convicted of one count of rape (count 3) contrary to section 1(1) of the Sexual Offences Act 1956 and two counts of sexual activity with a child (counts 4 and 5) contrary to section 9(1) and (2) of the Sexual Offences Act 2003.  Count 3 charged the appellant with the rape of his then 13 year old daughter "F" between 1 February 2003 and 30 April 2004.  Counts 4 and 5 were specimen counts alleging that between 1 January 2005 and 1 April 2006 the appellant, who would have been aged 38 at the time, had sexual activity with his "stepson" A, who was aged 8 to 9 at the time.  We say "stepson" because the appellant lived with and had had children by A's mother but had not married her.  The sexual activity alleged in the two counts was placing A's penis in his mouth.  

2.  The appellant appeals against conviction with the leave of the single judge.

3.  The offence alleged in count 3 was said to have occurred when the appellant arranged to drive his daughter to the seaside in what she thought was a dark red Vauxhall.  On the way the appellant, according to his daughter, had given her some pills.  Whilst at the seaside she felt unwell.  On the way home the appellant, on her account, stopped the car in a lay-by.  He opened the door, pushed back her seat, lifted her skirt and put his penis inside her.  He made some remark afterwards about how it was better that she had lost her virginity to him.  In cross-examination it was put to her that the appellant did not purchase a red Vauxhall until March 2004, by which time she would have been 14 years old.  His daughter replied that the rape may have taken place in another car, a green Renault.  She was sure that the incident occurred when she was 13 because it coincided with a visit to H (a place) with members of her family.

4.  Counts 4 and 5 related to A, whose date of birth was 1996.  A said in his video interview that on a number of occasions the appellant had sucked his "you know what".  In the course of giving evidence he said that the appellant had entered his back passage with his "willy".  In re-examination Mr Farmer for the prosecution asked him about the statement in the video to the effect that the appellant had sucked his penis and A said that he had.  There was no count in the indictment reflecting the alleged buggery.  The manner in which Mr Farmer was permitted to re-examine A is the subject matter of a  ground of appeal.

5.  At the outset of the proceedings we told counsel that we wished to receive argument first of all on the third ground raised by Mr Harrison on behalf of the appellant relating to the admissibility of certain evidence.  Having heard arguments from both Mr Harrison and Mr Farmer, we announced our decision that the evidence ought not to have been admitted.  We asked Mr Farmer to address us as to the consequences of our conclusion on the safety of the three convictions.

6.  We start, therefore, with the third ground of appeal.  Mr Harrison submits that the trial judge should not have acceded to the prosecution's application to admit evidence from the appellant's nephew, JB.  JB had told the police in March 2006 (at a time when he was aged in his early thirties) that the appellant had on a few occasions put his penis in his mouth.  He said in his statement that this had occurred when he was aged between eight and nine-and-a-half. Thus, so Mr Harrison submits, the appellant would have been aged 13 for most of that time.  

7.  The judge gave a ruling which can be found at volume 4, pages 10E-17F.

8.  We remind ourselves of the relevant provisions of the Criminal Justice Act 2003.  Section 101 provides that the evidence of a defendant's bad character is admissible if but only if "(d) it is relevant to an important matter in issue between the defendant and the prosecution".  This is known as gateway (d). Subsection (3) provides that the court must not admit evidence under this (and another subsection) if "on an application by the defendant to exclude it, it appears to the court that the admission of  the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". 

9. Further guidance as to what a judge should take into account when considering his power under section 101(3) is to be found in section 103 which provides:

(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) …
(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
10. Subsection (3) says that subsection (2) does not apply in the case of a particular defendant "if the court is satisfied by reason of the length of time since the conviction or for any other reason that it would be unjust for it to apply in his case".

11.  The judge of his own motion raised the issue of section 108.  As far as we are aware, there have been no reported cases on section 108.  Section 108 provides:

		"Offences committed by defendant when a child

		(1)	Section 16(2) and (3) of the Children and Young Persons Act 1963 (c.37) (offences committed by persons under 14 disregarded for purposes of evidence relating to previous convictions) shall cease to have effect.

		(2)	In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is not admissible unless --

			(a)	both of the offences are triable only on indictment, and

			(b)	the court is satisfied that the interests of justice require the evidence to be admissible.

		(3)	Subsection (2) applies in addition to section 101."

12.  It appears that subsection (2) was introduced in the House of Lords at a late stage in the deliberations on the Bill. As can be seen from its wording, subsection (2) relates only to a conviction for an offence when the offender was under the age of 14.  It seems to us likely that when section 108 was inserted into the Bill and approved, it was not realised that the bad character provisions under gateway (d) could include misconduct which had not led to a conviction.  Mr Farmer, rightly in our judgment, accepts that when a judge is asked to admit evidence of the defendant’s misconduct which is alleged to have occurred at a time when the defendant was under the age of 14, judges should apply the principles in section 108(2). If that were not the case, the prosecution would not be able to rely upon a conviction because of section 108(2), but could rely on the conduct which led up to that conviction. Mr Farmer made the same concession before the judge who, in his ruling, sought to apply section 108(2) to the evidence of the alleged misconduct with JB, treating the alleged misconduct in the same way as a conviction.  

13. The first issue that we must therefore consider relates to the age of the appellant at the time of the misconduct alleged by JB.  The judge gave his ruling after both the complainant on count 3 and the complainant on counts 4 and 5 had given their evidence.  To decide whether JB’s evidence was admissible, he was provided with a statement from JB.  During the course of his ruling the judge said that the appellant had been aged either 13 or 14 at the time of the alleged misconduct.  Mr Farmer accepts that, having regard to the contents of the statement, the judge ought to have concluded that the appellant was (or had to be assumed to be) aged 13 at the time. In any event the judge decided that section 108(2) did not apply because the conduct asserted then and now is triable only on indictment and secondly because he was satisfied that the interests of justice required the evidence to be admitted.  

14.  Mr Farmer concedes that the judge was wrong to reach the first of those conclusions.  The offence which the alleged misconduct would have revealed would have been indecent assault.  That offence still exists today in relation to conduct before the coming into force of the Sexual Offences Act 2003.  It was then, and remains, triable either way.  Thus treating the misconduct in the same way as a conviction, Mr Farmer concedes that the evidence of JB, on the basis of his statement, should have been ruled inadmissible

15.  Mr Farmer submits that when JB gave evidence to the jury, it became clear that the appellant was 14 at the time of the alleged misconduct.  We shall assume that that is right for the purposes of this judgment.  He submits, therefore, that section 108 did not in fact apply and therefore the conviction is safe. 

16.  We take the view, contrary to the submissions of Mr Farmer, that this evidence ought not to have been admitted because of the provisions of section 101(3)(adverse effect on the fairness of the proceedings).  

17.  In his ruling the judge said that the jury might well regard the allegations of assault on A with some scepticism because of count 3 and because of the previous conviction for rape, as well as some evidence from the appellant's niece, LB, to which we shall turn later in this judgment.  The judge said that it was entirely foreseeable that the jury may regard a sexual assault upon a young girl as being very different from a sexual assault on a young boy.  He went on to say that the evidence of JB had real probative force in this context. It would show, so the judge was in effect saying, that the appellant’s sexual interests were not solely heterosexual. In assessing A’s evidence, so the judge was in effect saying, the appellant’s propensity for homosexual conduct as shown by the evidence of JB tends to support A’s evidence, which the jury might otherwise not believe because of the evidence of his heterosexual interests. During the course of argument one member of the Court expressed some doubt about this reason for admitting the evidence under gateway (d).  But even if the alleged misconduct was relevant to an important matter in issue, it follows, in our view, from the fact that this alleged misconduct would have taken place when the appellant was only aged 13 or 14 that the evidence was inadmissible in the light of the provisions of section 101(3). It would be dangerous, in our view, for a jury to conclude on the facts of this case that the then 38 year old appellant male had a propensity for sexual activity with a chid because of what he (allegedly) did when he was aged 14 with a 9 year old member of his extended family.    

18.  Having informed Mr Farmer of our conclusion, we asked him how the safety of the convictions on counts 3, 4 and 5 would be affected. He accepted that the convictions on counts 4 and 5 would be unsafe, but sought to argue that the admission of the evidence had no effect on the safety of count 3.  It was therefore necessary for us to look carefully at the summing-up.  Most unfortunately there is no transcript of the summing-up, for technical reasons. We have only bits and pieces of the transcribed summing-up.  We are indebted to Mr Harrison who made notes of the summing-up, but the notes do not give us any where near as clear a picture of the summing-up as would a full transcript. We looked at a number of passages in the notes prepared by Mr Harrison.  It is right that the judge said that the jury should look at each count separately but, according to page 8 of the notes, he made a general statement that they were entitled to consider whether any previous offence or misbehaviour may make it more likely that someone has committed an offence.  He told the jury that they should use the JB evidence only insofar as counts 4 and 5 were concerned.  But what is not clear to us from the notes is how the judge directed the jury on the issue of the cross-admissibility between count 3 and counts 4 and 5. There seems to be a number of passages in the summing-up (as recorded by Mr Harrison) where the judge asked the jury to take a global view.  For example, he said towards the end of his summing-up:

		"Is the defendant the victim of a dreadful coincidence that these four witnesses should now come forward to say that they have ..... or is the reality that his activities over the years have here caught up with him." (Underlining added)

In another passage the judge said:

		"Was it reasonably possible that each or all of the witnesses could be lying or mistaken in saying that the defendant assaulted them?"

19.  In the absence of a transcript of the summing-up, we are not clear how the judge left the important issue of cross-admissibility between the counts.  In those circumstances, having concluded that the evidence of JB ought not to have been admitted, it follows that we cannot be sure that the conviction on count 3 is safe. 

20.  Having reached that conclusion, we asked whether or not the prosecution sought a retrial.  Having heard submissions, we ordered a retrial on counts 3, 4 and 5.  

21.  There were other grounds of appeal which concerned the manner in which Mr Farmer re-examined a witness and which concerned a decision by the judge that Mr Harrison could not cross-examine about why it was unlikely that the appellant would have assaulted A.  There was also general criticism of parts of the summing-up and the failure (so it was said) to give the jury the necessary assistance when coming to resolve the issues on count 3 and on counts 4 and 5.  Given our decision that there should be a retrial, it is unnecessary for us to deal with any of those.  However, the further grounds could affect the retrial and it therefore seemed right to us that we should give our views on the other grounds in the hope that this might assist the judge on the retrial. 

22.  Mr Harrison's first ground was that the judge was wrong to rule that the counts on which the appellant was convicted and two further counts alleging indecent assault on his daughter when she was about 4 or 5, could be joined in the same indictment.  As to those two further counts, at the close of the prosecution's case, the appellant was acquitted and therefore we have not been concerned with them.

23.  Rule 9 of the Indictment Rules (now superseded) provides:

		"Charges for any offence may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character."

24.  In Ludlow v Metropolitan Police Commissioner [1971] AC 29 (HL), the House of Lords gave authoritative guidance as to the interpretation of this rule.  It was held that two offences may constitute a series and that both the law and the facts should be taken into account when deciding whether offences are similar or dissimilar in character.  For there to be a series of offences of a similar character, there must be some nexus between the offences; that is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.  There may be joinder notwithstanding that the evidence on one count is not admissible in support of another count.  The fact that the incidents alleged in the counts have taken place many years apart does not mean that there has not been a series of offences: see R v Baird [1993] Crim LR 778 and R v C (1993) The Times, 4 February 1993.

25.  Mr Harrison submitted to the trial judge, and submits to us, that count 3 was not part of a series of offences of a similar character to counts 4 and 5.  He points out that count 3 alleged non-consensual heterosexual vaginal intercourse and that counts 4 and 5 alleged the homosexual sucking of A's penis.  He stresses the difference in gender of the two complainants and the gap in time between the offences.  

26.  In our judgment counts 3, 4 and 5 were offences of a similar character in that they involved the sexual abuse of children in the care of the appellant.  If called upon to do so, we would thus have rejected that ground.

27.  In his second ground of appeal Mr Harrison submits that the previous conviction for rape should not have been admitted under the bad character provisions of the Criminal Justice Act 2003.  On 13 February 1997 the appellant had been convicted of raping ET in Elvedon Forest when she was aged 16, whilst threatening her with a knife.  It was admitted that the rape took place in a car.  The appellant had received eight years' imprisonment and had been released on 2 January 2002.  The prosecution argued that the evidence of the previous rape was admissible.  Mr Harrison submitted to the contrary.  The judge gave his ruling after he had heard the evidence of the two complainants.  His ruling is contained in volume 4.  Mr Farmer submitted that the conviction was admissible under gateway (d), to which we have already made reference, and gateway (g).  He submitted that the manner of the cross-examination was such that the appellant had made an attack on another person's character.  Given our conclusion that there is to be a retrial, it is unnecessary for us to deal with the application insofar as it related to gateway (g). We express no views about it.  We are concerned only with gateway (d).

28.  The judge held that the conviction was admissible under gateway (d) to show propensity.  He held that one conviction for rape is clear evidence of a propensity to rape.  He noted the similarities, namely a teenage girl in a car in each case.  He refused to accept Mr Harrison's submission that the previous conviction for such a serious matter must prejudice the jury.  Mr Harrison submitted to us, as he submitted to the judge, that there was a difference in age between the victim of the rape and the alleged victim of count 3.

29.  Mr Harrison pointed out that the rape of which the appellant was convicted was committed with a knife, whereas the rape alleged in count 3 involved "some kind of submission".  He also referred to the conversation after the alleged rape in count 3, namely the reference to the taking of F's virginity.  In our view the judge was quite entitled to conclude that the conviction for rape was admissible under gateway (d).

30. We turn to the fourth ground of appeal.  The fourth ground of appeal related to the admissibility of the evidence of LB.  Mr Farmer submitted to the judge and to us that the evidence of LB was admissible under gateway (f), namely to correct a false impression given by the defendant.  Section 105 gives further legislative assistance relating to evidence to correct a false impression.  A false impression may be given by an assertion made by a defendant on being questioned under caution about the offence with which he is charged. 

31.  LB was the appellant's niece.  She was born in 1979.  She made an allegation to the police in June 2006, at the time that the other allegations which led to the appellant's conviction were made. The allegation was that when she was aged about 14 (about ten years before) the appellant had shown her a book.  She later said in evidence -- and we assume that this corresponds with what she said in her statement -- that the appellant had a book in his hand, "it was something like A Thousand and One Sex Positions.  It was a sex positions book".  She said that she did not remember the title, but she gained the impression, from looking at the cover, that it was about sex positions.  It was, she said, "that kind of book".  When asked, "What did the appellant say about it?"  She said, "He said, 'You can have a look at this book if you like'".  She thought it was strange and she left the house.  Nothing more happened.

32.  The admission of that evidence led to substantial cross-examination.  Mr Harrison necessarily had to cross-examine LB in some detail if he was going to show that the jury could not be sure of what LB was saying.  The necessary length of the cross-examination shows the dangers of "satellite litigation" when the prosecution rely on misconduct as evidence of bad character.

33.  The application was made under gateway (f) because during the course of his interview for the rape of his daughter, the appellant, having denied that he had raped his daughter, was asked this question:

		"Have you ever been interested in children in a sexual way?"

To that the appellant replied:

		"No, not at all.  That's disgusting to even think about that."

Then, according to the summary of the interview, the appellant stated that he had never been interested in girls under the age of 17.  That, it was said, created the necessary false impression which engaged sections 101(1)(f) and 105.  It is well established that, whereas section 101(3) does not apply to subparagraph (f), a judge must always bear in mind the provisions of section 78 of the Police and Criminal Evidence Act 1984.

34.  What the appellant had said was clearly an exculpatory statement, as indeed was the whole of his interview.  Mr Farmer, as he accepted, sought to put this passage into evidence before the jury so that it would trigger gateway (f).  It will be noted that under section 105(2)(b) evidence of the assertion must be given in the proceedings before gateway (f) is triggered. We note that R v Hanson [2005] EWCA Crim 824 gives some guidance about attacks on another person's character during the course of an interview, as does also R v Renda and Others [2005] EWCA Crim 2826, paragraphs 29 and following.  

35.  In our view, to use an answer of this kind in response to a direct question, "Are you interested in young girls?", to trigger gateway (f) is unfair.  (Indeed the conviction for rape would have corrected any false impression needed to be corrected!) We note that subsection (3) importantly provides that if a defendant withdraws or dissociates himself from an assertion, then he will not be treated as responsible for the making of the assertion but it would hardly help the appellant in this case to disassociate himself from the assertion that he was not interested in young girls.

36. In any event we have considerable doubts whether the evidence which JB gave could properly assist the jury when considering count 3.  

37. We express these views, which are of course obiter but after having heard full argument from both counsel, in the hope that they might assist the trial judge on the retrial.

38.  For these reasons we allow the appeal and quash the convictions on counts 3, 4 and 5. 

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