No. 2010/06084/D4
Neutral Citation Number: [2011] EWCA Crim 1824
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  28  June  2011

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  OWEN

and

MR  JUSTICE  WALKER

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R E G I N A

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Miss E Goodall appeared on behalf of the Appellant

Mr C Stimpson appeared on behalf of the Crown
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J U D G M E N T
Tuesday  28  June  2011

THE LORD CHIEF JUSTICE:  I shall ask Mr Justice Owen to give the judgment of the court.

MR JUSTICE OWEN:
1.  On 14 October 2010, in the Crown Court at Isleworth, before His Honour Judge Johnson and a jury, the appellant (now 28 years of age) was convicted of assault occasioning actual bodily harm.  He was sentenced to three years nine months imprisonment.  He appeals against both conviction and sentence with the leave of the single judge.

2.  The victim is 6 years of age.  In consequence, the provisions of section 39 of the Children and Young Persons Act 1933 are engaged.   We assume that the appropriate order protecting anonymity was made in the Crown Court, but for the avoidance of doubt we made such an order at the outset of this hearing.  It is for that reason that we will refer to the protagonists by their initials.

3.  The complainant JE was born on 20 May 2005.  He was therefore 4 years of age at the date of the events in issue.  He lived at a flat in Shepherds Bush with his mother (RE) and his siblings (AE, then aged 5, and ME, aged 1).  The appellant was in a relationship with RE and would regularly spend time with the family.

4.  On 22 June 2009 the appellant stayed the night at the address, as did CE (the 16 year old sister of RE).  It was the prosecution case that on the morning of 23 June the appellant punished JE for having defecated in his pants by repeatedly slapping and kicking him.  That afternoon a neighbour (KY) and her foster sister (IE) visited the flat, saw the injuries to JE and were sufficiently concerned to remove the child whom they took to KY's home.  The matter was then reported to Childline, who in turn notified the police.  

5.  The police went to KY's address and saw the injuries to JE.  His older sister AE gave an account of what had occurred.  JE was reluctant to speak to the police but said that when the appellant hit him he had fallen to the floor and cut his head.

6.  The following morning, 24 June 2009, the boy was examined by a consultant paediatrician, Dr Abrahamson.  He recorded extensive bruising and abrasions to both sides of the face, upper neck and both ears.  Such injuries were suggestive of slapping as a possible causative mechanism.  He also found innumerable pale, circular bruises on the child's back extending from the lower leg to just above the buttock line.  

7.  The appellant was arrested and interviewed.  He submitted a prepared statement in which he described seeing the child in the bathroom where he had "pooed" himself.  He had sent him back to bed.  He denied hurting him or assaulting him in any way.

8.  At trial both the child and his sister AE gave evidence.  Their ABE videos were played to the jury and stood as their evidence in chief.  Both were then cross-examined via video-link.  In his ABE interview JE had stated that the appellant had slapped him.  He demonstrated being hit on the face and legs, but was unable to say when or why that had happened.  He described being kicked "loads" and being stamped on.  Nothing like this had happened to him before. His mummy was asleep downstairs when this had happened and his sister AE was also downstairs.  During the interview he asked to see his sister and then had to be coaxed into sitting up and continuing to answer questions.

9.  In cross-examination JE maintained his initial account that the appellant had slapped and kicked him.  He provided some additional detail in his evidence.

10.  In her ABE interview his sister had said that it was when she was watching television with CE downstairs that she had heard the appellant shouting and her brother receiving lots of slaps in the bathroom because he had "pooed" his pants.  In cross-examination she said that her brother was quite naughty and sometimes told fibs.

11.  The third witness in the flat at the material time was the child's aunt, CE, who was then 16 years of age.  It is in relation to her evidence that the appellant's first ground of appeal against conviction arises.  She was interviewed by the police on 24 June 2009.  The interview was video recorded.  However, on 2 February 2010 she made a withdrawal statement indicating that she did not want to give evidence at trial.  The statement was in the following terms:

		"I would like to withdraw my statement that I made to the police on 24 June. Everything in my statement is true.  The reason I would like to withdraw my statement is because I felt pressured at the time to make the statement by [IE] and [KY].  The reason being that they told me that [JE] had a lot of injuries on him, which I never saw.  I suffer from nervous breakdowns, diabetes, anaemia and cystic fibrosis.  This is all very stressful to me.  I do not want to attend court and give evidence.  I am very close to my sister [RE] and have not been able to see or speak to her, which is very upsetting.  I would like to add that [RE] told me that [JE] did not have any injuries to him when he left the flat on 24 June ....  I believe my sister."

12.  On 21 September 2010 the prosecution applied for a witness summons to compel CE's attendance at trial.  She duly attended at court on 5 and 6 October.  She was not reached on 5 October, but on that day the prosecution made an oral application for special measures in relation to her evidence.  The application was granted on the following day when she was called.

13.  In accordance with the special measures direction, her video interview stood as her evidence in chief.  In a long answer, which was uninterrupted by the interviewing officer, she said:

		".... I could hear screaming from upstairs.  I could tell it was [JE].  It was -- I could hear slapping.  It weren't a normal slap, probably constant smacking and like non-stop and I hear him say: 'What is this in your pants?'  He said: 'It's pooh, [J], it's pooh'.  So I was sat there, I said to myself, pooh, [J] don't pooh himself ever since he was born".

14.  Shortly after the commencement of cross-examination CE said that she did not want to answer any further questions, that she felt pressurised.  She went on to say that she had been told by the officer in the case, Detective Sergeant Lisa Day, that if she did not want to answer any more questions she should say so to the court.  It emerged that during the short adjournment she had seen DS Day, and had told her that she did not want to answer questions.  According to a witness statement from the officer, she told CE that she could not force her to answer questions.

15.  In any event, the learned judge then intervened and asked the jury to retire.  He addressed the witness.  She repeated that she did not want to answer any more questions.  The following exchange then took place:

		"JUDGE JOHNSON:  Miss [E], will you please listen to me.  You are a witness and a witness has obligations.  That means that you do not have a choice as to whether you answer questions, you do have to.
		A.  Yes, I do have a choice, my choice, my rights, my human rights.

		JUDGE JOHNSON:  Miss [E], you do not have a choice and if you do not answer the questions then I have the power to punish you.  Do you understand that?  Now, I am not going to force you to do it right now, I am going to give you a little time to think about it.
		A.  I am going to be punished for something I do not want to do.

		JUDGE JOHNSON:  That is the law.
		A.  That isn't the law.

		JUDGE JOHNSON:  And I apply the law.  So you can have five minutes now to think about the future, but I want you to be aware that if you fail to answer reasonable questions that Miss Goodall wishes to put to you, you are at risk of punishment and that punishment can be serious.  So I am going to turn off the screen now, I am going to ask you to stay with the usher and think about your future for the next five minutes."

16.  Miss Goodall, who appeared for the appellant at trial as before this court, then raised the question of whether the witness ought to have legal advice to explain the nature of any punishment to her.  The learned judge indicated that he thought that that was premature, saying:

		"Well, I think this is all a little bit further down the line, Miss Goodall.  I simply want her to apply her mind to this knowing that there are sanctions available and if she fails to do this, I am reluctant to start making enquiries of her as to why she is reluctant to do this.  I do not know if either of you have any views on that?"

Miss Goodall then drew the attention of the learned judge to the withdrawal statement made in February 2010, to which we have already referred.  After further discussion he adhered to his view that it was not necessary for the witness to receive legal advice at that stage.  He said:

		"Well, everyone knows that I cannot physically make her answer questions.  She is a 17 year old girl.  She knows that I cannot force her and what I have said is that she does not have a choice, she has to answer them and there are serious consequences if she does not.  I am not going to deal with the consequences before she is represented."

17.  The court reconvened and cross-examination continued.  The witness answered many questions, "I don't know", but she gave substantive answers to others.  The cross-examination was robust.  It was put to her in terms that the injuries sustained by JE were inflicted after he left his mother's flat.  At one stage in the cross-examination the witness became distressed.  At another point Miss Goodall put to her part of the contents of the withdrawal statement that she had made on 2 February.  She also put to her that she had not been prepared to come to court voluntarily and had attended in response to a witness summons.  In re-examination she answered a number of questions, but when invited to comment as to whether or not passages from her video interview in which she described what she had heard in the flat on the night in question were true, she repeatedly said that she did not know.

18.  At a later stage in the trial, CE's father was called by the defence.  He gave evidence to the effect that CE had told him that she had been threatened by IE and KY and had lied to the police in her original video interview.  He had gone with her to Earls Court Police Station both in July 2009 and on 2 February 2010 when she had made her withdrawal statement.

19.  At the conclusion of CE's evidence Miss Goodall applied for its exclusion, pursuant to section 28 of the Police and Criminal Evidence Act 1984; alternatively, for the discharge of the jury.  The application was refused.  It is that refusal that is the subject of the first ground of appeal which is in the following terms:

		"(i)		The learned judge's treatment of the witness [CE] amounted to a material irregularity.

		(ii)		The learned judge erred in law by failing to exclude the evidence of [CE].

		(iii)		The learned judge erred in law by failing to discharge the jury.

		(iv)		The learned judge erred in law by admitting the withdrawal statement of [CE]."

20.  There were a number of strands to the argument advanced by Miss Goodall in support of the submission that the learned judge should have excluded the evidence of CE, or, alternatively, should have discharged the jury, and that his failure to take either course rendered the verdict unsafe.  First, it is submitted that, prior to the calling of CE, the prosecution did not disclose to the defence any express reluctance upon her part to answer questions asked of her.  Miss Goodall submits that such disclosure would have permitted an application or enquiry to be made prior to the calling of the witness and thereby militating against the prejudice that she asserts ultimately occurred.

21.  There are two points to be made.  First, it is far from unusual for a witness to be reluctant to give evidence, particularly in a case such as this where there are plainly conflicting loyalties within the family.  But in the event, CE appeared in response to the witness summons, both on 5 October and on the following day, the day on which she gave evidence.  Secondly, the defence was well aware of her reluctance to attend as they knew about the withdrawal statement, and they called her father to give evidence about it.  They also knew that a witness summons had been issued to compel her attendance.  In our judgment it was not incumbent on the prosecution to make any further disclosure as to her reluctance to give evidence in advance of her being called.

22.  Secondly, Miss Goodall contends that the learned judge's treatment of the witness when she indicated that she was not prepared to answer any further questions amounted to a material irregularity in the trial process.  She submits that he gave an erroneous warning to the witness by his reference to "serious punishment" which "would give rise to the spectre of custody" when, in fact, there is no power to impose a sentence of imprisonment for a witness under 18 who is found to be in contempt: see R v Byas (1995) 16 Cr App R(S) 869.  She further argued that a witness who is liable to a finding of contempt ought to be afforded the protection of legal representation.

23.  In our judgment there was nothing irregular in the manner in which the learned judge dealt with the situation that arose in the course of the cross-examination of CE.  He was faced with a situation that arises not infrequently and requires a firm response.  It will usually be necessary for the witness to be told that, as a witness in a court of law, he or she is under an obligation to answer questions and does not have a choice in the matter.  That is precisely what the learned judge made clear to CE.  Furthermore, and having had the opportunity to make an assessment of her from the video interview, in her evidence in cross-examination before the problem arose, and in her feisty response to being told that she had no choice in the matter, he was fully entitled to reinforce his direction to her by pointing out that he had power to punish her if she refused to answer questions.  In our judgment the learned judge handled the situation with the requisite blend of sensitivity and fairness.  He gave her the opportunity to reflect on what he had said before continuing.  His approach cannot be faulted.

24.  It is further submitted that the condition and attitude of the witness prohibited the defence from eliciting comprehensive and appropriate responses in cross-examination and that in consequence she was not available for cross-examination in any effective sense.  However, it is clear from the transcript that Miss Goodall was able to put the appellant's case forcefully.  Furthermore, she elicited a number of answers that provided the basis for submissions to the jury as to the reliance that could be placed upon CE's evidence and that she had been subjected to pressure to fabricate an account to the police.  In particular, she accepted in the course of cross-examination that KY and IE had put pressure on her to speak to the police; she accepted that they wanted her to blame the appellant for what had happened and that IE had accompanied her to the police station.  She further accepted in cross-examination that she did not want to make the initial complaint or statement, that she did not know if JE's injuries were caused in the flat, and she confirmed that she had not attended court voluntarily and had had to be the subject of a witness summons.  In short, the contention that she was not available for cross-examination in any effective sense is, in our judgment, simply not borne out by the transcript of her evidence.

25.  Miss Goodall also criticises re-examination by prosecuting counsel.  She asserts that it went beyond that permitted by the rules.  Her complaint is that it amounted to cross-examination; prosecuting counsel put passages from the video interview to the witness and asked whether or not they were true.

26.  Whilst we see some force in the criticism, as it could be argued that prosecuting counsel was simply taking the opportunity to reinforce CE's evidence by repeating what she had said in the video interview, no objection was taken at the time.  In our judgment, when her evidence is viewed as a whole, the manner in which the questions were put cannot have caused any real prejudice to the appellant.

27.  The final point advanced with regard to the evidence of CE is that the learned judge erred in permitting CE's withdrawal statement to be adduced through the evidence of her father and in the evidence in chief of DC Griffin.  

28.  However, that submission fails to take account of the fact that it was counsel for the defence who had introduced the evidence as to the withdrawal statement in cross-examination of CE, and then called evidence from her father as to the circumstances in which the retraction statement had come to be made.  In cross-examination counsel had been selective in putting the statement to CE.  The passage that she put to her did not include the statement that everything in her original evidence was true.  The thrust of Miss Goodall's complaint, as it was developed in the course of her submissions, was not so much that evidence as to the full content of the statement went before the jury, but the timing at which it occurred.

29.  In our judgment it cannot be argued that the fact that such material went before the jury rendered the verdict unsafe.

30.  It follows from that analysis of the specific criticisms made of the manner in which the learned judge handled the evidence of CE, that there is no basis for the submission that he ought to have acceded to the application, either to direct the jury to exclude such evidence from their consideration of the case against the appellant or to have discharged the jury.  Furthermore, his direction to the jury as to their approach to her evidence was conspicuously fair and careful.  He reminded them of her change of heart, her reluctance to give evidence, and the fact that she had not confirmed her original evidence "with any degree of certainty". He concluded:

		".... it follows that as a matter of common sense you should approach her evidence with particular care.  If you thought the reason she gave evidence in the way she did was she is not being truthful, for whatever reason, in her taped interview, then clearly the whole of her evidence is suspect and of no value.  Likewise, if you accept the evidence of her father, that [CE] had been threatened and had admitted to him that as a result she had given a false statement, not only does this make her statement worthless but it also calls into serious doubt the testimony of [IE].  If you think that it might even be unsafe to rely on her account, taking into account all the evidence you have heard about it, reject her evidence as a whole, ignore it and continue your deliberations by examining the other evidence in the case.  If, having given it that careful scrutiny, you are sure that on some or all matters she has been, even at one stage, truthful and accurate, then, bearing in mind the warning that I have given you, you may rely on her evidence."

That is a direction that could not be improved upon.  It follows that we find no substance in the first ground of appeal.

31.  By ground 2 the appellant contends that the learned judge erred in law by admitting evidence of good character of the prosecution witness IE and the non-witness KY; and secondly, that he failed to give an adequate direction in his summing-up upon the evidence of character that had been adduced.

32.  The context in which the point arises is that the defence case was conducted upon the explicit basis that the two young women who removed JE from his mother's flat and reported his injuries to Childline, were themselves responsible for the injuries that he sustained.  In cross-examination of IE it was put to her that KY had been in care as a result of assaulting her own sister when she (KY) was 14 or 15, and that KY had slapped IE's children when looking after them.  They were allegations repeated by the appellant when he gave evidence.  It was further put to IE that she was responsible for repeatedly dislocating her own daughter's elbow and had allowed her access to sleeping pills.

33.  Against that background the learned judge properly gave leave for evidence to be adduced as to the appellant's criminal record, which included convictions for assaults on police, minor public order offences and offences of dishonesty.  The evidence was given by the officer in the case, DS Day, who also gave evidence that neither KY nor IE had any convictions, although KY had been reprimanded for a public order offence when aged 15, and cautioned for criminal damage when she was 17.  

34.  It is submitted on behalf of the appellant that the learned judge erred in permitting such evidence to be adduced.  In this context Miss Goodall invited our attention to R v Hamilton (TLR 25.07.98).  That decision was referred to in R v Mazhar Ali [2006] EWCA Crim 1976, in which, in giving the judgment of the court, Maurice Kay LJ said:

		"34.  We accept that as a matter of general principle and historic doctrine, whereas the good character of a defendant is relevant and admissible, the good character of a prosecution witness is not -- a position described as 'anomalous' as long ago as 1865, in the case of Rowton.  That doctrine was more recently referred to by Buxton LJ in R v Errol Hamilton ....  Nevertheless there are cases in which the good character of a prosecution witness may become relevant and admissible, not least because it may go to an issue in the case. ...."

35.  It had been put to IE not only that she and/or KY were responsible for the injuries to JE, but that they had also committed criminal acts against children in the past.  In those circumstances we are entirely satisfied that the evidence that such allegations had not resulted in criminal convictions was both relevant and admissible.  It bore on a central issue in the case.

36.  The second strand of the argument with regard to ground 2 is that the learned judge failed adequately to sum up the character evidence.  In our judgment the argument is unsustainable.  The learned judge gave an impeccable direction; if anything it was favourable to the appellant.  He explained to the jury why they had heard about the appellant's convictions.  He said:

		".... let me explain how this evidence is relevant to your consideration in this case.  When the case was being advanced for the defence it was suggested that [JE] was actually harmed once he had left .... his mother's address.  Those who were with him were [IE] and [KY] and the defence put it in fairly robust terms to [IE] that if she herself had not caused these injuries alone or with another then she was at least complicit in the assault, the other main candidate for the offence being [KY].

		In fairness to those women it would be wrong for you to be let in ignorance about the character of the man making these accusations against these women.  You are entitled to have regard to the character of this defendant as revealed by his convictions when deciding what the truth is.  I have said that you may have regard to his character; whether and to what extent it assists you, you must judge."

He went on to emphasise to the jury that bad character evidence was simply part of the evidence in the case and that its importance in the case should not be over-emphasised.  He also explained why the jury had heard evidence about the women's records, or lack of them, in the following terms:

		"The reason you have heard about the women's records or lack of them was so you could know that while these allegations were made they did not result in convictions or any other remedy in the criminal process, save for those matters you heard concerning [KY] -- that is the public order offence and the criminal damage when she was a teenager.  You must assess what evidence of bad character against these women you accept. If you do accept some or all of it, it does not prove that one or both was [JE's] assailant but it is there for you to assess when deciding whether it was indeed [the appellant] who was [JE's] assailant."

37.  In our judgment this ground of appeal is also without substance.  It follows that the appeal against conviction is dismissed.

38.  We turn to the appeal against sentence.  It is submitted that it is manifestly excessive and that it fell outside the sentencing bracket indicated in the Overarching Principle: Assaults on Children and Cruelty to a Child.

39.  Miss Goodall invited our attention to the suggested bracket of 26 weeks to two years custody for assault occasioning actual bodily harm.  However, in passing sentence the learned judge identified a number of serious aggravating features.  First, the appellant stood in loco parentis to the child.  Secondly, he rightly regarded the assault as an abuse of power; JE was particularly vulnerable because of his very young age.  Thirdly, he rejected the submission that the injuries sustained by JE were not serious.  In the course of his sentencing observations he said:

		"One just has to look at the photographs of the number of bruises sustained by [JE] to realise that these were serious injuries."

He added, not surprisingly in the circumstances:

		".... these bruises may clear up, but what harm remains in that child no one will ever know."

We, too, have seen the photographs.  That is an observation with which we are in full agreement.  The learned judge concluded that the assault was "at the very upper end of the scale".  Fourth, he was satisfied that the appellant had subjected the child to a sustained beating, evidenced by the large number of bruises and scratches over his face, head and ears, and the injuries to his back.  The assault could so easily have resulted in very much more serious injuries.  

40.  We take account of the relatively young age of the appellant, and of the fact that there were no comparable convictions in his record.  But there were no other mitigating features.  In the light of the aggravating features to which we have referred, the sentence of three years and nine months imprisonment, although severe, cannot, in our judgment, be said to have been manifestly excessive. 

41.  Accordingly, the appeal against sentence is also dismissed.