No: 2009/3938/D4 
Neutral Citation Number: [2010] EWCA Crim 1379
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 6 May 2010
 
B e f o r e:
 
LORD JUSTICE TOULSON 
MR JUSTICE ROYCE 
 
MRS JUSTICE SWIFT DBE 
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R E G I N A 

v 

COLIN JOHN C
 
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Mr J Lyons appeared on behalf of the Appellant
Mr S Rose appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE TOULSON:  This appeal comes before the court on a Reference by the Criminal Cases Review Commission.  On 29th September 1997 at Chelmsford Crown Court before His Honour Judge Pearson the appellant was convicted of one count of rape per anum (count 2) and three counts of indecent assault (counts 5, 6 and 7).  The appeal is based on fresh medical evidence which is said to make the convictions unsafe.  
2.	The offences were alleged to have occurred between Easter 1996 and February 1997.  The complainant, M, was a girl then aged nine.  The appellant was then aged 14.  Their families knew each other and the appellant used to babysit for M and her younger brother.  M complained from time to time to her mother about the appellant's strictness over her bedtime and preferred his sister to babysit, but there were no more serious complaints about him than that and M's mother thought that he was doing his job.
3.	On 6th March 1997 the complainant made allegations about the appellant to her mother.  She confronted him with them and he denied them.  On 13th March 1997, M's mother reported them to the police and on the same day M was examined by a consultant paediatrician, Dr Kugan.  It will be necessary to say more about her evidence, her examination and her conclusions.
4.	The complainant was video interviewed and the appellant was arrested.  He was charged on an indictment containing 10 counts.  He was acquitted on counts 3 and 4 by direction of the judge and it is unnecessary to make further reference to them.  Count 1 was a specimen charge of rape per vagina.  He was acquitted on that count but convicted on an alternative count of indecent assault (count 7) in the form of intercrural intercourse, that is, thrusting his erect penis up and down between her thighs.  Count 2 was a specimen count of anal rape.  He was convicted on that count and so no verdict was returned on the alternative count of indecent assault (count 8).  Counts 5 and 6 were counts of indecent assault.  Count 5 alleged digital penetration of her anus and vagina.  Count 6 alleged that he put his penis in her mouth.  
5.	M's evidence in brief was that the appellant used to undress her, he would put his penis in her mouth, he would put his penis in her vagina and her bottom, and he would put his fingers in her vagina.  He did this regularly.  She said that when he penetrated her she would "scream the place down" because it really hurt.  On one occasion her brother saw his naked bottom.  The appellant had nothing on his top.  She was trying to push him off her.  He shouted at her brother.  She and her brother had separate bedrooms but they could shout to each other and would play "knock knock".  Her brother was interviewed.  He made no reference to the incident described by the complainant and said that the accusations against the appellant came to him as a complete surprise.  
6.	The appellant in his evidence denied all the allegations.  He said that he had never had sex with anybody.  He did not suggest that he had ever found the complainant to be untruthful, but he said that he did not do any of the things which she said.  He was shocked by the allegations and had returned home to his mother in tears.
7.	We turn to the medical evidence.  At the trial two medical witnesses were called by the prosecution and none by the defence.  The first witness was Dr Kugan, a consultant paediatrician who had examined the complainant.  Her evidence was that she concluded from a combination of findings that the complainant had been sexually abused.  Those findings were as follows:  
1.  There was pigmentation of the labia majora.  
2.  The labia minora was narrow, thin and almost splayed.  
3.  There was marked flattening of the area.  
4.  There was asymmetry on the hymenal margin and a notch at 5 o'clock.  
5.  There were two healed fissures of the anus at 5 and 6 o'clock.   
These findings suggested that there had been heavy friction from an erect penis going over the genitalia and the notch to the hymen indicated either partial penetration with a penis or digital penetration.  The injuries to the anus suggested penetration either by a penis or fingers or a blunt instrument.  Viewed in isolation the anal injuries could have been caused by constipation but Dr Kugan questioned M's parents whether there had been constipation and was told that there had not.  She also tested for constipation by feeling M's abdomen.
8.	In answer to questions from the judge, she said that from her examination of all the genitalia she formed the professional opinion that M had been abused.  Constipation could not explain the findings apart from the anus, ie pigmentation, flattening of the labia majora and the hymenal changes.  
9.	Counsel for the prosecution picked up the judge's theme in re‑examination.  His final question was: 
"Having found what you did with M's vagina and the findings that you made there, does that help you decide whether it is more likely that the anal fissures were caused by constipation or by sexual contact of some sort?"  
No objection was taken to the suggestive (ie leading) nature of the question, no doubt because by then it would have been too late, and the witness agreed.  She said:
"Yes, the genital findings as well as the history given by M and the video interviewing lead me to think that they are ... it is significant finding of sexual abuse rather than constipation."  
10.	The second witness called by the prosecution was a consultant pathologist, Dr David Rouse.  His opinion was that the notch in the hymen was very strongly suggestive of trauma.  It was an injury caused by a blunt object, whether a penis or a finger.  He thought it more likely to be partial penetration by a penis but could not exclude digital penetration.  He said that it was not uncommon for a child to believe that she had been penetrated when actually there was intercrural intercourse not involving penetration, but for the hymen to be damaged as it was there had to have been an object pushing up against it.  As to the anus, he said that the findings were not grossly abnormal and were not typical of repeated penile penetration.  The healed tears could have resulted either from penetration or from passing a large stool.  He also volunteered in cross‑examination that:
"... you can have constipation by a child not reported to any carers and subsequently forgotten by the child of being of any relevance and this is the problem in this case.  If you have more injuries or changes to the anus it supports penetration.  Two simple fissures by themselves could be the result of constipation alone, reported or unreported, and then that is again still consistent with the allegation made by the child of intercrural intercourse taking place."  
In re‑examination he was asked about the relevance of the condition of the vagina when considering the anus and he described it as "a corroborative sign, although the injury to the anus could be the result of constipation".  At the end of his re‑examination the judge asked him to consider the injuries as a whole and whether sexual activity was the likely cause of them, to which he agreed that it was.
11.	The defence had a medical expert but did not call her for good reason.  She raised various points on which the prosecution's experts could legitimately be questioned and she expressed concern about certain matters.  In particular she did not think that constipation had been adequately addressed, but overall her evidence would not have been helpful to the defence.  
12.	On the subject of constipation, the complainant did suffer from constipation during the trial but her mother said that she had not had that problem since a young age.  That would seem to have carried the implication that she had had constipation when a young child but the matter was not pursued.  The possibility raised by Dr Rouse in cross‑examination that long forgotten constipation could have caused the anal fissures may have come as a surprise to counsel then appearing for the appellant, because it had not been raised in the appellant's expert's report.  In any event, there would have been no point in seeking to recall the complainant in order to put to her the possibility that she might have had constipation as a young child and forgotten about it.  It would by its very nature be an impossible question to answer, because if she had forgotten about it she would not be able to answer the question.
13.	The judge in his summing‑up referred understandably to the undisputed nature of the medical evidence and he put considerable emphasis on it.  The main part of the summing‑up was given on a Friday.  After summarising the evidence of the doctors, he said:
"Members of the jury, Dr Kugan and Dr Rouse were the medical experts and they were clear on one thing.  In their view sexual abuse had taken place."  
He continued a little later:
"What does this medical evidence mean, if you accept it?  It means that M had been involved, does it not, in sexual activity?"  
He referred later to a suggestion advanced in argument by the appellant's counsel as to possible reasons why the complainant's evidence might be unreliable, and he continued: 
"You will consider that but how do you account for the medical evidence?  If you accept that then M's account as to what happened is given strong support.  The medical evidence is repeated sexual interference.  Do you reject that, too?" 
Later, after observing that both the complainant and the appellant seemed to be upright young people from good homes, but that somebody was not telling the truth, he said: 
"... has M made up a pack of lies and falsely accused an innocent young man?  Might she have done?  If so acquit Colin.  Have the doctors got it wrong?  Might they have found a series of innocent causes which have come together coincidentally or by chance to support her account or might someone else have interfered with her?"  
On the Monday morning the judge concluded his summing‑up with a brief resumé of the issues in which he said:
"Both Dr Kugan and Dr Rouse were satisfied that M had been sexually interfered with.  ... 
Both doctors agreed that the anal injuries, the two fissures, were caused by penile penetration.  But both also agreed that the sexual activity described by M was, in fact, intercrural intercourse, rather than sexual intercourse as we all understand it."  
Pausing there, this would readily account for the acquittal on the count of rape per vagina and conviction on the alternative count of indecent assault.  The judge continued:
"It may be that, save in relation to counts 1 and 2, you will have little difficulty in deciding what happened to M; but that is a matter for you.  The real issue may be: who did these things to her, the repeated sexual interference over a period, as described by the medical experts?  Was it Colin, when babysitting, as M insists; or, if these things happened, might they have been done by someone else?"
At the very end of his summing‑up he posed the question:
"Could it, realistically, have only been Colin, if you accept the evidence of the doctors?"
14.	We do not wish to seem over‑critical of the judge because the matter plainly appeared to him to be open and shut on the medical evidence ‑ a point repeated, as we have noted, on a number of occasions in what was not a particularly lengthy or complex summing‑up.  But the medical evidence to which we are about to turn is now different, and it is that which has given rise to the present appeal.  There was a previous unsuccessful appeal to this court, but the grounds are not relevant to this appeal.  
15.	The fresh medical evidence which the appellant seeks to introduce came from Dr Mary Pillai, a consultant gynaecologist and forensic medical examiner.  We have from her a report and supplemental report.  Her evidence is not challenged by the prosecution.  In her first report she stated:
"7. Opinion
The examination of M occurred in 1997.  Although this is only 12 years ago considerably more information is available now to guide interpretation of genital findings than was available in 1997.  The RCP [Royal College of Paediatricians and Child Health] published guidance in 1997...  This was withdrawn several years ago.  Revised guidance was published in April 2008 and this was based on an extensive evidence based review of the published literature.  It clarifies that many findings previously considered diagnostic or suggestive of sexual abuse are non‑specific (they occur equally often in children carefully screened for non‑abuse)."  
She then considered the individual features relating to the flattened and pigmented labia majora, the splayed labia minora and the notched hymen, which had led Dr Kugan to her opinion, and said that experts in the field would not now regard any of those as suggestive of abuse, because all could be normal and naturally arising.  As to the anus, she agreed with the view previously expressed that the fissures could have come from penetration or constipation.  She noted that M's mother had implicitly suggested that she had had constipation as a young child and Dr Pillai thought this had not been adequately explored.  Dr Kugan's palpitation of the abdomen was not a reliable test for whether the child had or had not had constipation.  She concluded in paragraph 8.1 of the report: 
"The physical findings which Dr Kugan described, and upon which both she and Dr Rouse relied in coming to their opinion, are not diagnostic of sexual abuse.  I would regard them within the range seen in non‑abused children.  I would therefore regard them as normal or non specific (no more common in abused than non abused girls)."
Dr Rouse, to whom her report was sent, agreed with Dr Pillai in the light of the more developed state of medical knowledge in this area.  In short, his overall conclusion today is radically different from that which he gave at the trial because of the development of medical knowledge and, in particular, the more extensive research base now available to experts in this field.  A fair summary of Dr Kugan's response to Dr Pillai's report was that things were considerably less clear than they appeared to be at the trial in a number of respects, but she still thought that the evidence was suggestive although not diagnostic of sexual abuse.  Her reasons were not more fully developed and the prosecution did not seek to call her on the appeal.  They were content to accept the evidence of Dr Pillai, supported as it was by the opinion of Dr Rouse.
16.	Mr Rose, who has conducted the case for the prosecution with skill and good judgment, asked Dr Pillai no questions in cross‑examination about anything other than the anal fissures.  In relation to all the other factors concerning the hymen, labia majora and labia minora he accepted that these were neutral.  
17.	The case which he developed in cross‑examination of Dr Pillai and in his submissions is that in relation to the anus there has been no advance in medical knowledge.  If constipation could be excluded, then the anal fissures were suggestive of sexual abuse.  The observations of experienced trial counsel when asked to comment on matters raised by the CCRC were that she explored the possibility of constipation leading to the physical findings with all the relevant witnesses, as far as she was able to do so, and that this included M, her mother and the doctors.  Mr Rose submitted that the jury, having heard M and her mother and the doctors, were entitled to discount constipation as a cause of the anal fissures, in which event there was supportive medical evidence.  Moreover, he submitted that the primary question was whether they believed the complainant's account or the appellant's account, and upon that they were in a good position having seen and heard them both.
18.	Skilfully as the submission was made, the difficulty that we have with it is twofold.  One is that it seeks to detach the evidence about the hymen and the vagina from the evidence about the anus, whereas that involves a volte‑face from how the medical witnesses (particularly Dr Kugan but also to some degree Dr Rouse), the prosecution and the judge all invited the jury to approach the medical evidence.  We cannot of course know if the jury approached the medical evidence in the way that they were invited to do, but it is difficult for the prosecution to say that they probably did not.  The second problem is the emphasis placed on the medical evidence in the way that the jury was invited to consider the fundamental question whether the complainant or the appellant was to be believed.  We have referred to the passages in the summing‑up where the jury were told in the plainest of terms that the doctors were clear on one thing, that there had been sexual abuse.  This led the judge to suggest to the jury that the real issue in the case was not whether M had been the subject of repeated sexual interference, but who had done, it and it caused him to leave as one of his parting questions: 
"Could it realistically have only been Colin if you accept the evidence of the doctors?"  
If the medical findings were in truth nonspecific, ie neutral, as Dr Pillai says and Dr Rouse agrees, that approach is fundamentally invalidated.  
19.	As was emphasised by the House of Lords in the leading case of Pendleton [2002] 1 Cr.App.R 34, [2001] UKHL 626 at 19, this court is not and should not become the primary decision‑maker.  The question for this court is not whether the appellant was guilty but whether the convictions are safe.  In the Privy Council case of Bain [2007] UKPC 33, Lord Bingham said at paragraph 103:  
"A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it acting reasonably to reach a different verdict if it had had the opportunity to consider it."  
That case came from New Zealand, and New Zealand law is not identical to that of England and Wales, but the paragraph cited is entirely consistent with the approach of the House of Lords in Pendleton.
20.	The question whether the conviction is safe is necessarily fact‑specific.  Counsel sought to refer us to decisions of this court in Martin T [2008] EWCA Crim. 3229, and PF [2009] EWCA Crim. 1086.  For good reason neither of those cases has found its way into the law reports, the good reason being that they establish no new principle.  The result of following the approach set out in Pendleton will vary according to the facts of the case.  But it is not helpful to look at the facts of other cases for comparative purposes, because cases inevitably differ in the way that they may have been presented to the jury at the trial and the potential significance of the fresh evidence.  Our task is not to seek to reconstruct the views of an appellate court on the facts of another case and then seek to decide by reference to the facts of that case how the instant case should be decided.  It is for this court to consider whether this evidence ought to be admitted and whether the convictions should be regarded as safe, on the facts of the present case applying the guidance in Pendleton and in the passage cited from Bain.
21.	In this case the complainant and the appellant were both seemingly honest young people.  There were arguments which could be put either way.  The complainant was a bright girl, her complaint was fresh and her evidence was consistent.  The appellant also had points to be made for him.  There was favourable character evidence about him; there was Dr Rouse's evidence that the state of her anus was not grossly abnormal, that is, it was not consistent with repeated penetration; and there was the point that her brother had not recalled seeing the episode she recounted and had heard nothing.  Nobody would suggest that any of those points were decisive.  Small children can be deep sleepers.  The really significant point to our mind is that the case was presented to the jury on the basis that the medical evidence was for practical purposes decisive in at least establishing as a fact that M had suffered abuse.  The fresh evidence makes that proposition anything but plain.  
22.	In these circumstances we are satisfied that justice requires that we should admit the fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968.  The evidence could not have been adduced at trial, it is credible and in the light of that evidence we are unable to regard the convictions as safe.  
23.	We accordingly allow the appeal and quash the convictions.