Case No: 201100202 D2
Neutral Citation Number: [2011] EWCA Crim 1990
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LINCOLN
His Honour Judge Morris
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/08/2011
Before :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE COOKE
and
MR JUSTICE BLAKE
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Between :

	STEWART JOHN BURTON	Appellant	
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	THE QUEEN	Respondent	

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Timothy Palmer for the Appellant 
Stephen Lowne (instructed by the CPS) for the Respondent 

Hearing dates : 27 July 2011
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Judgment
Lord Justice Stanley Burnton: 
Introduction 
1.	On 17th December 2010 in the Crown Court at Lincoln, before His Honour Judge Morris, the Appellant was convicted of Sexual Activity with a Child. On 24th January 2011 he was sentenced to a Community Order with a supervision requirement of 36 months and a programme requirement that he must participate in a Community Sex Offender Groupwork Programme.  The consequential requirement was imposed under Schedule 3 of the Sexual Offences Act 2003 requiring him to comply with the provisions of Part 2 of the Act (Notification to the police) for 5 years.
2.	On 27 July 2011 we heard his appeal, brought with leave of the single judge, against his conviction. The sole ground of appeal was that the judge should not have allowed the hearsay evidence to which we refer below to go before the jury. After hearing the submissions of counsel dismissed the appeal, and said that we should give our reasons for doing so in a judgment to be handed down subsequently. This judgment sets out our reasons for dismissing the appeal.
The facts
3.	The Appellant, a man of previous good character, was aged between 26 and 27 at the time of the alleged offence. X was aged fourteen.
4.	On 22nd January 2010, X’s mother was tidying her daughter’s bedroom when she found some empty alcoholic drink bottles, a laptop computer, various “Me to you” teddy bears, a bottle of perfume, and pregnancy test kits. She also found a number of letters, which appeared to be love letters, on which the name “Stewart” appeared. The only person called Stewart whom X’s mother knew was the Appellant. He had previously been in a relationship with her older daughter, Z. The letters included passages such, “When we lay together and kiss I want this all the time with you by my side…” and “The way you hold me in your arms and kiss me makes me go weak at the knees.”
5.	When X returned home, her mother attempted to confront her as to what she had found in her bedroom, but X flew into a temper and refused to speak to her mother. Her mother contacted the police who attended the house, but X continued to refuse to speak with her mother.
6.	A female police officer, PC Watson, did speak with X and made a record of their conversation in her notebook. The officer recorded that she asked X how she knew the Appellant, to which X had replied, “He was my boyfriend some months ago and we have remained good friends.” Asked whether she had had a sexual relationship with him she replied, “No, I have not slept with him, but we have kissed and cuddled.” It was also recorded that X had said that the Appellant had bought her alcohol and a phone. X had not been prepared to say anything further. She refused to provide either a statement or a video interview to the police. 
7.	The Appellant was arrested. In interview he appeared to suggest that he and X were boyfriend and girlfriend. He said that they had kissed and cuddled whilst they had been in a relationship. He further explained that they had ‘snogged’ with tongues. He said that he had feelings of love towards her. 
The application to the judge
8.	The prosecution applied to adduce the hearsay evidence of what X had said to the officer under section 114(1)(d) of the Criminal Justice Act 2003. The defence objected, on the ground that this provision was being used to circumvent the restrictions on hearsay evidence in section 116. In his judgment on the prosecution application, the judge considered the applicable considerations listed in section 114(2), and commented on each. In relation to paragraph (g) of that subsection, “whether oral evidence of the matter stated can be given and, if not, why it cannot”, he said:
“The defence say the Crown can call her.  I am told the girl just flatly refuses to make a statement or to come to court and the Crown have taken the view - and I think they're right - that this is one of those rare cases where it wouldn't be right to force somebody into coming along.  She is still of tender years.”
9.	The judge referred to two of the authorities on the admission of evidence under section 114(1)(d) that had been cited to him, namely the judgments of this Court in Ibrahim [2010] EWCA Crim 1176 and Z [2009] EWCA Crim 20 [2009] 1 Cr App R 34, and said:
“It is correct to say that this particular method of admission of hearsay must be very sparingly used.  It has to be genuinely in the interests of justice that this evidence is allowed to go before the jury.”
10.	He explained his conclusion as follows:
“Counsel [for the prosecution] has said maybe in some years to come [X] will realize that what was happening was wrong, but at the moment [she] does not.  They say in effect that they need protecting from themselves and people who go out and target young girls should be brought to book in effect.  … there is a great public interest in ensuring that people who choose to target fourteen-year-old girls for their own sexual gratification realize that it will not be up to the child to decide whether this case proceeds or not and that evidence may in the interests of justice be admitted. 
I think that is a very powerful argument and I think that just tips the scales in my book that this evidence is in the interests of overall justice and should be admitted.”
He added:
“The jury will have to be told and given proper warnings about how to approach that hearsay evidence and that's what will happen.  It is not the sole evidence in the case; it is not the sole and decisive evidence in the case.  It says in effect no more than what the defendant himself said in interview.”
The evidence of what X had said to the police officer was therefore admitted. 
11.	The Appellant gave evidence. He explained the terms of his letters to X on the basis that she had requested them to show to her friends that someone was interested in her, and his apparently incriminating statements in interview on the basis that he had been referring to X’s older sister. He had given X no more than a kiss on the cheek and a hug when she had been feeling down, and such touching as there had been was not sexual in nature.
12.	The judge summed up and directed the jury in terms of which no complaint is or could be made. Hence, as mentioned above, the sole ground of appeal is that the judge erred in allowing the hearsay evidence of what X had said to the police officer to go before the jury.
The contentions before us
13.	In substance, counsel repeated the submissions they had made to the judge. For the prosecution, it was said that the judge had been right to allow the evidence to go before the jury; he was right not to require the prosecution to compel X to attend court. The evidence was significant, as being her reaction to the discoveries made by her mother, including the letters written by the Appellant. It was in the interests of justice that the evidence go before the jury, particularly since it was important that those who prey sexually on young persons should be prosecuted and if appropriate convicted.
14.	For the defence, Mr Lowne submitted that the prosecution had sought to avoid the limitations on hearsay evidence imposed by Parliament and contained in section 116. The prosecution could and should have called X. It was true that the defence could also have called her, but to have done so would have been dangerous. 
Discussion
15.	In our judgment, this was indeed an exceptional case. The judge was correct to have been reluctant to require the prosecution to call X, who was still a child, and who had refused to provide a statement and who apparently harboured a degree of affection towards the Appellant. It was right for the jury to be informed of her immediate reaction to the discovery of the Appellant’s letters, particularly since otherwise they would have wondered whether her possession of pregnancy testing kits was due to his having had sexual intercourse with her. Indeed, to the extent that she denied that he had done so, the evidence was helpful to the Appellant. In any event the use that the prosecution intended to make of the statement was not as the sole or primary evidence but to confirm the accuracy of the admissions made in interview
16.	We think that the consideration that, in effect, children need to be protected from their own feelings towards older persons who exploit them, is one that needs to be addressed carefully and cautiously, since it assumes what the prosecution seek to prove. In the present case, given what the Appellant had written in his letters and had said on interview, it was a pertinent consideration.
17.	On the other hand, if there was reason to believe that the complainant would positively support the defence case of no sexual contact it was open to the defence to call her. We think that the defence rejection of the possibility of calling X because it would have been dangerous to do so is not a significant consideration. A criminal trial is not a game. The danger to which the defence refer is the possibility that X would confirm that she had had a sexual relationship with the Appellant, although not one that went as far as sexual intercourse. If that had happened, and her evidence had been accepted by the jury, there would have been no injustice.
18.	If either the prosecution or the defence had called X, the likelihood would have been that the hearsay statement in question would have gone before the jury. If called by the prosecution, she would have refused to incriminate the Appellant, and been treated as hostile and cross examined on the statement. If called by the defence, and denied that there was any sexual element in her relationship with the Appellant, she would have been cross examined by the prosecution on her statement to the police officer. 
19.	In Z, this Court said, at paragraph 25:
“The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under section 114(1)(d). It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made. The Court will be more willing to interfere with his decision if he has not taken into account, or has not shown that he took into account, relevant matters listed in subsection (2).”
20.	In the present case, the judge took into account the matters required to be taken into account under subsection (2). His ruling is not marred by legal error. It follows that the sole ground of appeal was not made out.
21.	We would add that had we reached a different conclusion it does not follow that we would have allowed this appeal. The Appellant’s explanation of his letters to X was not likely to be one to impress the jury. It was made belatedly and was inherently improbable, as was his explanation of his admissions in interview. 
22.	It follows that we were satisfied that the Appellant’s conviction was safe.