Neutral Citation Number: [2013] EWCA Crim 1389

Case No: 2012/06704/C2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
ON A REFERENCE FOM THE CRIMINAL CASES REVIEW
COMMISSION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 31st July 2013
Before :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE FOSKETT
and
MR JUSTICE HICKINBOTTOM
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Between :

	Regina	Respondent	
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	BRIAN BERRY	Appellant	
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(Transcript of the Handed Down Judgment of
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David Bentley QC (who did not appear at the trial or the appeal in 2010) for the Appellant
P Bennetts QC for the Respondent

Hearing dates: 14 May and 16 July 2013
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Judgment
The President of the Queen’s Bench Division: 
Introduction
1.	In this reference from the Criminal Cases Review Commission (CCRC) made on 22 November 2012, the appellant appeals against his conviction at the Crown Court at Canterbury before Her Honour Judge Williams on 19 and 20 February 2009 on counts of indecent assault or indecency with a child or other sexual offences committed between 1996 and 2002.  He was sentenced to a total of 13 years imprisonment, less time on remand.  Five counts involved a child called EG aged 14 and 14 involved 3 sisters, R, K and L.  At the time the offences were committed the appellant was in his later 50s or early 60s.  He is now aged 75.  He was tried with the half-brother of R, K and L who was alleged to have abused them between 1984 and 2004; the jury were unable to reach a verdict on the counts relating to him.
2.	An appeal was made to this court in relation to his conviction on the counts relating to EG on the basis that the judge had erred in relation to her decision not to allow cross examination of EG on the basis of material in the social services file concerning her relationships with other men.  It was contended by the appellant that EG had invented the allegations against him to draw attention away from those relationships.  On 14 May 2010, this court (Hooper LJ, David Clarke and Openshaw JJ) allowed the appeal, quashed the convictions on those counts and reduced the overall sentence to 10 years imprisonment [2010] EWCA 2317. 
3.	The appellant did not seek to contend in that appeal that the convictions on the other counts were unsafe as a result of quashing the convictions relating to EG.  The Crown did not seek a re-trial on the counts that had been quashed.
4.	The appellant then applied to the CCRC which investigated the matters advanced by him.  In its careful and clear report, it did not refer any of those matters, but referred the case to the court on two issues identified from its own investigation of the case:
a)	The judge’s direction to the jury on the way to approach the evidence of the mother of the three sisters was incorrect.  That evidence had been admitted under s.120 of the Criminal Justice Act 2003 (CJA 2003).  It was suggested that the judge had not directed the jury in accordance with the decision in R v AA [2007] EWCA Crim 1779.
b)	The quashing of the conviction on the counts relating to EG made the convictions on all the other counts unsafe.
The enquiries directed by the court
5.	The appeal came on for hearing on 14 May 2013.  It was clear that both of the points referred by the CCRC could have been taken at the hearing of the previous appeal, but neither was.  There was no explanation as to why that was so.  After hearing argument on the two issues, we directed that further enquiries be made in the light of our concern that:
a)	There was nothing by way of fresh material before us on these issues. 
b)	The Crown had not asked for a re-trial in 2010 of the counts relating to EG on the basis that the convictions on the remaining counts were not challenged.
6.	It became clear from these enquiries that after listening to the recording of the hearing of the appeal in 2010, when counsel (not Queen’s Counsel) then acting for the appellant had been asked by the Court of Appeal:
“Are we right in thinking that the appeal is limited to the counts reacting to EG?”
she answered “Yes”.
7.	After a waiver of legal professional privilege by the appellant in relation to the appeal and what had happened subsequently, it was apparent that the reason for her answer to the Court of Appeal was that she and the other junior she was leading had not considered the point before she was asked the question.  Both junior counsel did consider the point subsequently, but concluded that it could not properly be argued that the quashing of the convictions on the counts relating to EG affected the other counts.  After the CCRC had made its report on 22 November 2012, both junior counsel were instructed to act on the reference.  As we shall explain, both junior counsel advised in writing in January 2013 that neither issue raised by the CCRC could be argued and that other counsel should be instructed on behalf of the appellant.  It was in these circumstances that Mr David Bentley QC was instructed to act. 
8.	Against that background, we turn to the two issues.
The direction on s.120 of the CJA 2003
(a)	The evidence
9.	It is not necessary in relation to this issue to set the evidence out in any detail.  It is sufficient to state the mother of the three sisters, R, K and L described in her evidence the complaints made by R,K and L:
i)	 R had complained at New Year 2007 that the appellant had sexually abused her from the age of about 6 until she was about 11 or 12.  R told her that she had also seen the appellant abusing K and L.
ii)	 She then questioned K whether the same had happened to her as had happened to R; K said that it had and that she thought that L had been abused.
iii)	She then questioned L who told her that she did not want to remember it and did not want to be pressed to remember it, as she had made herself forget it.
iv)	When R was in hospital after a suicide attempt, R, when not fully conscious, stated that the appellant had raped her.  Later she told R that she knew R had been raped by the appellant, R said she had been and told the police she had been.
10.	There was also evidence from a family friend to the effect that in November 2006 he had been told by K that she had been sexually assaulted by the appellant.
(b)	The direction to the jury and the submission of the appellant
11.	When the judge came to sum up that evidence to the jury she directed them that, if they accepted the evidence of the witnesses who spoke of such complaints, it was evidence they could take into account, if they thought fit, when considering the reliability of the three sisters as witnesses and when considering the verdicts.  She then directed them in relation to whether the complaint had been made as soon as could reasonably have been expected, setting out the contentions of the prosecution and the defence on that question.  The direction closely followed that in the Judicial College specimen directions.  Nothing was said expressly about the need to bear in mind that the source of each complaint was the individual complainant and not some independent source.
12.	It was submitted by Mr Bentley QC that the direction given was wrong in law as it did not state the law as set out in s.120 of the CJA 2003 and as made clear by this court in R v AA [2007] EWCA 1779.  This was a material misdirection and the conviction was therefore unsafe.
(c)	The decisions of this court on s.120
13.	The law as to the admissibility of the hearsay statements we have set out is contained in s.120 of the CJA 2003 which provides, in so far a material, as follows:
“(1)This section applies where a person (the witness) is called to give evidence in criminal proceedings.
….
(4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if— 
(a)any of the following three conditions is satisfied, and 
(b)while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.
….
(7)The third condition is that— 
(a) the witness claims to be a person against whom an offence has been committed, 
(b) the offence is one to which the proceedings relate, 
(c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, 
(d) (repealed) 
(e) the complaint was not made as a result of a threat or a promise, and 
(f) before the statement is adduced the witness gives oral evidence in connection with its subject matter. 
(8) For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.
14.	This change in the law effected by the CJA 2003 was first considered by this court in R v AA [2007] EWCA Crim 1779.  A direction had been given in respect of the evidence of a friend to whom the complainant had complained of a sexual assault the day after she alleged it had happened.  After referring to the clear exposition by Buxton LJ in R v Islam [1999] 1 Cr App R 22 of the origins and development of the common law in relation to recent complaint in relation to sexual offences, the court made clear that the law had been changed and re-stated in s.120.  Laws LJ, in giving the judgment of the court which quashed the conviction, explained what ought to be made clear in the summing up in relation to a statement admitted under s.120:
 “16. In our judgment, in order to reflect (a) the substantive change in the law effected by s.120 and (b) the circumstance that a previous consistent statement (whether in a sexual case or otherwise) comes from the same person as later makes the accusation in the witness box, juries should be directed that such a previous consistent statement or recent complaint is, if the jury accepts it was given or made and the conditions specified in s.120 are fulfilled, evidence of the truth of what was stated: but in deciding what weight such a statement should bear, the jury should have in mind the fact that it comes from the same person who now makes the complaint in the witness box and not from some independent source. 
17. The Recorder gave no such direction here. Is the conviction thereby rendered unsafe? The case was one, as it has been put in argument, of word against word.”
15.	In subsequent decisions of this court, the court has stated that the requirements set out by Laws LJ correctly state the law:  see R v Ashraf A  [2011] EWCA Crim 1517,  R v D  [2011] EWCA Crim 1493 and R v H [2012] 1 Cr App R 30.  However, in each of these cases, the court held that the failure to set out in the summing up what had been stated in R v AA did not render the convictions unsafe.  In the last of the cases, this court observed: 
“It may be inferred that the judge was not asked by defence (or Crown) counsel for an independence direction, and much must be allowed for the feel of the case which the trial judge and counsel would have had. In circumstances where it was the defence rather than, or as much as, the prosecution which was relying on the mother’s evidence, there was a danger in overcomplicating matters.”
16.	As we have indicated in the present case, no direction of the type set out in AA was given.  It was a case where the evidence of the three sisters was the principal evidence against the appellant.  The evidence of the complaints to the mother was only being relied on by the prosecution as support.  Should the judge therefore have given the direction as suggested in AA?
17.	In our judgment it was not necessary in the circumstances of this particular case.  It must have been obvious to the jury that the evidence of the mother and the family friend was evidence that was not independent of the three sisters as they were the source of that evidence.  In our view on the facts of this case, it would have been over complicating the directions of law to have given such a direction as the matter was so obvious to the jury. 
18.	We had reached that conclusion without knowing the advice of trial counsel.  However it is clear from that advice that both trial counsel for the appellant were rightly of the view that the jury cannot have been led to believe in the circumstances of the trial that the witnesses who gave evidence of the complaints were giving evidence that did not originate from the sisters.
19.	This ground of appeal therefore fails.
(2)	The effect of quashing the conviction on the counts relating to EG on the safety of the remaining counts.
(a)	The position on the appeal in 2010
20.	As we have set out, the court hearing the original appeal in 2010 was told that no appeal was being brought in relation to the counts other than those involving EG.  When trial counsel were asked to act on this appeal after the decision of the CCRC to refer the case to this court, both trial counsel advised that R had discredited the evidence of EG, as she had denied that EG had witnessed any abuse of her by the appellant or that she had witnessed any abuse of EG; EG had had a separate reason for lying.  Thus the jury could not have relied on the evidence of EG in returning verdicts of guilty on the other counts.
21.	Mr Bentley QC, however, advanced a formidable argument that the safety of the remaining counts must have been called into question as a result of the quashing of the conviction on the counts relating to EG.  It rested on two bases: (a) the evidence of EG and the evidence of the three sisters was interrelated and (b) the judge had directed the jury expressly that the evidence of each complainant was cross-admissible and that if they found that what one of the complainants had said was true, they could use that in supporting the prosecution case on the other counts.  The jury had plainly accepted the evidence of EG by finding the counts involving her proved; they therefore may well have taken that evidence into account in determining guilt on the other counts.
(b)	The interrelationship of the evidence
22.	It is clear from the careful way in which the judge summed the case up that EG gave evidence that specifically described an incident where she said that R gave the appellant oral sex and another incident where R “had sex with the appellant’s leg”.  There was also evidence in general terms of EG seeing abuse of K.  She also gave evidence that the appellant slept in the same bed as the sisters. 
23.	It was submitted on behalf of the prosecution on the appeal that that evidence did not support the evidence of the sisters in two principal respects:
i)	The evidence of EG was that she had seen R give the appellant oral sex; the evidence of R was that when she had given R oral sex, he had given her oral sex at the same time; that mutual sexual activity had formed the express basis of count 4.  The sexual activity was therefore not the same.  There was no evidence from R that oral sex had been confined to R giving oral sex to the appellant.
ii)	EG’s evidence was that the three sisters were behaving promiscuously with the appellant; the description of having sex with his leg and sharing the same bed was evidence of their promiscuous conduct.  The evidence of the three sisters was of abuse entirely carried out by the appellant.
24.	We cannot read the record of the evidence contained in the summing up in this way.  For example, it is not clear from the way in which the judge summed up the evidence that when R performed oral sex on the appellant, the appellant always performed oral sex on her.  In any event there were close similarities; count 16 of the indictment charged the appellant with performing oral sex on K; it was a count similar to count 24 which charged him with performing oral sex on EG.  
25.	However, of far greater importance is the way the prosecution put the case to the jury and the way the judge summed up the prosecution case to the jury.  It is clear that counsel for the prosecution at trial addressed the jury in his final speech on the basis that the evidence of EG supported the evidence of the three sisters and that the evidence of the three sisters supported that of EG.  The case was not advanced at trial on the basis that EG’s account and that of the sisters was contradictory.  Indeed the trial judge summarised the prosecution’s case as follows:
“The prosecution has pointed out, on the other hand, that there are similarities in the defendant’s behaviour as described by each of them. The prosecution suggest that that is no coincidence.”
The case run by the prosecution was not one which suggested that the evidence of EG was either discredited or contradictory:  it was that the evidence was mutually supportive and cross admissible.  
(c)	The directions on cross admissibility
26.	The judge directed the jury in relation to cross admissibility as follows:
“The evidence on one count is capable of supporting the prosecution’s case against that defendant on other counts that he faces …
…. the evidence of the four complainants in each defendant’s case is capable of lending support to the others. You are perfectly entitled to view the evidence in this way, but let me explain what should be your approach. 
First, the prosecution’s point only has force if the complaints made are truly independent of one another….. You must consider the evidence and make your own decision. If you are sure that the realistic possibility of influence, conscious or unconscious, by one girl on the others has been excluded, you can treat the evidence of each complaint as supportive of the others in respect of the defendant whose case you are considering 
Second, you need to assess the value of the evidence. If you have decided that they are independent, it follows that the closer the similarities between the complaints, the less likely it is that they can be explained away as coincidences.  It is for you to decide the degree to which the evidence of one girl assists you to assess the evidence of the others. It may lend powerful support or it may not. It is for you to decide.”
(d)	The safety of the conviction on the counts involving the three sisters
27.	Although we appreciate the way in which the prosecution put the case to us on this appeal to an extent coincides with the views of trial counsel for the appellant, the sole record provided to us of what happened at the trial is the transcript of the judge’s summing up.  No transcripts of any other part of the trial were obtained by the prosecution.  There is nothing in the summing up to indicate that the prosecution was taking anything other than the position that EG was a credible witness and that the evidence each girl had given supported the account of the others on the basis that there were similarities and, in some respects, close similarities (see paragraph 24 above).
28.	The prosecution case that EG was a credible witness was a case that the jury accepted as they found the appellant guilty on the counts relating to her.  The jury were not told that the activities as described by EG were not similar to those described by R and K; on the contrary, the judge specifically referred to the evidence of all four complainants being capable of lending support to the others.  As they were told this by the judge and they accepted EG as a reliable witness, the inference in the circumstances of this case is that the jury might well have relied on the evidence of EG in determining their verdicts on the counts relating to the three sisters.  It follows that the convictions are unsafe and must be set aside.
29.	The prosecution made it clear that if we reached the conclusion that the conviction had to be quashed, they would seek a retrial on the counts relating to R.  In the light of the history of the trial and the appeals it is in the overwhelming interests of justice that there be a retrial of the counts involving R, even though the appellant may only be at risk of serving a short further period of imprisonment, if found guilty.  We will give further directions as to the retrial when this judgment is handed down.
Postscript
30.	We would like to pay tribute to the characteristically thorough work done by the CCRC.  We would, however, make one observation.  Although the CCRC normally seeks the views of trial counsel before reaching a conclusion, this was not done in this case.  As this court has had to ascertain from trial counsel an explanation for the course taken on the appeal in 2010, it would have been much better if the CCRC had done this.  It seems to us that unless there are exceptional circumstances, the better practice is for the CCRC to put itself in the position to ascertain an explanation from trial counsel and to obtain that explanation before concluding its reference to this court.