No: 201501854/B3 
Neutral Citation Number: [2015] EWCA Crim 1684
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 8th September 2015
 
B e f o r e: 
LORD JUSTICE BURNETT 
MR JUSTICE LINDBLOM
MRS JUSTICE CARR DBE 

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R E G I N A 

v 

MICHAEL BOXER
 
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Computer Aided Transcript of the Stenograph Notes of  
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Ms T Lloyd‑Nesling appeared on behalf of the Appellant
Ms S Thomas appeared on behalf of the Crown

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J U D G M E N T
1.	LORD JUSTICE BURNETT:  Between 17th and 20th March 2015 the appellant was tried in the Crown Court at Merthyr Tydil before His Honour Judge Richards and a jury on an indictment containing two counts of sexual activity with a person with a mental disorder impeding choice, contrary to section 30(1) of the Sexual Offences Act 2003. 
2.	The complainant, whom we shall call "A", was a 46‑year‑old man with a mental functioning age of a child of 7 or 8.  The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence to protect the identity and anonymity of A.  The two alleged offences were part of a course of conduct over a short period said to have occurred on 16th March 2014 in a park in Aberdare.
3.	The appellant was convicted on count 1 but not on count 2.  He was later sentenced to a community sentence with various ancillary orders and restrictions.
4.	The appellant appeals with leave of the single judge on four grounds, albeit that the terms in which he gave leave indicated his view that there might be substance in only the first.  They are: 
(i) The judge was wrong to allow the prosecution to play the Achieving Best Evidence interview of A because the officer who conducted it failed to adhere to the guidelines for conducting such interviews.  It is said that judge should have excluded it under section 27(2) of the Youth Justice and Criminal Evidence Act 1999; 
(ii) Notes from the jury, one during the evidence and one after they retired, suggested that they were speculating in particular about the appellant's character; 
(iii) In consequence the judge should have discharged them and 
(iv) The verdicts were illogical and thus the conviction unsafe.
5.	It was common ground at the trial that A was competent to give evidence and also that he was unable to consent to sexual activity.  That was the expert view of both an intermediary and psychiatrists.  
6.	A lived with his cousin, John, who was also his carer.  He was able to go out and about alone and also held down a job.  He often visited the park where he was well known to other park users including the appellant who had known him for some years.  The park keeper also knew him well.  The appellant used to walk his dogs in the park.  The park had public lavatories, close to which were some bushes or small trees.  On 16th March A went alone to the park.  At about 10.30 he and the appellant were seen by Konrad Pastor to enter the area of bushes.  Mr Pastor knew the appellant, who he saw standing in the bushes making eye contact with A.  He sat on a bench nearby and continued to observe because he felt uneasy about the situation.  Both men were still in the bushes.  A few minutes later he saw A jogging away and the appellant "scuttled" out of the bushes.  He reported the matter to the park keeper.  He thought there were two separate incidents of the appellant going in and out of the bushes.  He observed the appellant adjusting his flies on one of those occasions.
7.	The park keeper ran over to investigate but neither A nor the appellant was any longer there.  About five minutes later he saw A by the cricket pitch.  He spoke to A who said that the appellant had put his hand inside his trousers.  A kept apologising but was told by the park keeper that he had done nothing wrong.  Later the park keeper spoke to John and also contacted the police.
8.	Later that evening A repeated his allegation to John saying that it was the "lollipop man". That was a description he was also to use in his ABE interview.  He knew the appellant from the days when the appellant was indeed a lollipop man working outside a nearby school.  It was common ground that they knew each other from those days.
9.	John asked the complainant to explain precisely what had happened because there had previously been a misunderstanding when some girls had put their hands in his pockets.  On that occasion it was assumed that the girls were trying to take some money from him.
10.	A was ABE interviewed on 19th March 2014.  There was no intermediary present.  The essence of his account was that the appellant had sexually assaulted him twice, by undoing his trousers and touching his penis.  Before doing so A said that the appellant had tied up his dogs.
11.	The appellant was arrested the next day.  In his first interview he explained that he had entered the bushes to urinate. Although A had followed him into the bushes nothing else had happened.  In a subsequent interview the appellant repeated that he had gone to the bushes to urinate but said that A had been masturbating.  As a result he, the appellant, left.  He denied any wrongdoing.
12.	At trial the appellant's case was that he was not involved in any sexual activity with A.  The allegation was completely false.  A had unexpectedly removed his penis from his trousers and started to masturbate of his own accord.  The appellant had told him to stop and put it away.
13.	The appellant said that the account he gave in his second interview was the correct and true account.  The omission in his first account to explain the additional detail was because he could not believe he was in the cells and he just wanted to get home.  He explained that his failure to use the lavatories which, as we have indicated, were close by the bushes was because it would have been inconvenient to do so given he had two dogs with him.
14.	In advance of the trial the prosecution sought the advice of an intermediary about the appropriate way to deal with A's evidence in court.  The intermediary provided a report and also gave evidence before the jury at the trial.  She explained that A had moderate to severe learning difficulties, in relation to both receiving and expressing information.  Nonetheless he could communicate in a basic way.  He had some problem in identifying colours.  He could understand concepts of "what" and "where" but he had more difficulty in explaining "why" he had done things.  He would not find it easy to express his own motives.
15.	Questions for cross‑examination of A were agreed in advance by all concerned with the assistance of the intermediary.  The answers given by A in the course of his cross‑examination added very little to the account which he had given in the ABE interview.  In that cross‑examination he repeated that he had told both the park keeper and John about what had happened.  He denied that he had touched his own penis.
	Ground 1, the ABE interview
16.	  As material, Section 27 of the 1999 Act provides:  
"27 Video recorded evidence in chief. 
 (1)A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness. 
 (2)A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted. 
 (3)In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview."
Comprehensive guidance is available for those who conduct specialist ABE interviews known as "achieving best evidence memorandum of guidance".
17.	Ms Lloyd‑Nesling submitted to the judge, as she submits to us, that the ABE interview should not have been played to the jury because of failures by the interviewing officer, DC Powell, to conduct the interview in accordance with that guidance.  It is her contention on behalf of the appellant that the evidence should not have been placed before the jury in DVD form because the failings were, for the purposes of section 27(2), circumstances which should have led to the conclusion that it was not in the interests of justice for it to be played.  She also formulated the application before the judge by reference to section 78 of the Police and Criminal Evidence Act 1984.
18.	In her written submissions to the judge Ms Lloyd‑Nesling relied upon four factors: 
(i) The officer did not involve an intermediary. 
(ii) There was an inadequate explanation whether A understood the difference between truth and lies.  
(iii) DC Powell used many leading questions during the course of the interview and also what are known as "tag" questions.  They are a form of leading question which comprise a statement followed by a tag such as "isn't it" or "that's right" at the end.  The guidance cautions against using such questions.  
(iv) No assessment was made regarding A's competence to give evidence before he was questioned by the police officer.
  No point is now taken regarding the questions of competence or A's understanding of the difference between truth and falsehood.  The result of the application, had it succeeded, would have been to require the prosecution to elicit A's evidence in chief in the conventional way, albeit with appropriate special measures in place including, no doubt, the advice of, and careful crafting of questions with the help of, an intermediary.
19.	The correct approach of a trial judge when confronted with an application of this nature is well settled.  It is summarised in two judgments of Hooper LJ in this court, namely in R v Hanton [2005] EWCA Crim 2009 and R v K [2006] EWCA Crim 472 [2006] 2 Cr App R 10.  The test is found in paragraph 23 of K: 
"In R v Donald Hanton ... the Court of Appeal ...   was concerned with a case where there was a number of alleged breaches.  Having considered G v The DPP, it adopted as the test: 'Could a reasonable jury properly directed be sure that the witness has given a credible and accurate account on the video tape, notwithstanding any breaches?'  If 'Yes', it was a matter for the jury.  If 'No', the interview would be inadmissible (see paragraphs 10, 19).  The test could also be expressed in this way: 'Were the breaches such that a reasonable jury properly directed could not be sure that the witness gave a credible and accurate account in the video interview'.  
20.	That formulation recognises that the guidance is designed to elicit evidence which can be relied upon.  If on any view the evidence cannot be relied upon it should not go before the jury.  The test echoes the well‑known formulation in the second limb of R v Galbraith [1981] 1 WLR 1039.
21.	The first question for a judge when considering such an application is whether there has been a failure to comply with the guidance.  
22.	The interviewing officer spoke to A before the interview and had also spoken to John about him.  She was aware of his developmental problems and that he had an intellectual age of 7 or 8.  She was trained in dealing with vulnerable adults.  Following her assessment she concluded that an intermediary was not required at that stage.  Having watched the totality of the DVD interview we can well see why she formed that view.  The guidance requires consideration to be given to an intermediary and then, if it is decided to use one, to take advantage of the assistance an intermediary can provide in the form and structure of questions.  
23.	There was no non-compliance with the guidance in this regard.  The fact that later the prosecution involved an intermediary who gave advice on the form of questioning does not lead to a conclusion that the guidance was breached at the interview stage.  That said, it may provide support in an appropriate case for an argument that the evidence is so unreliable that it should be excluded under section 78.
24.	As it happens, in this case the intermediary gave evidence about her assessment of A which explained in detail his difficulties and the shortcomings of his evidence including shortcomings relating to his understanding of tag questions and so forth.  It is clear that the jury had the full picture.
25.	At this point we note an additional factor raised by Ms Lloyd‑Nesling in her oral submissions which although not a feature in the written submissions before either the judge or the grounds in this appeal, is a point upon which she places some reliance.  It is that the officer should not have had a discussion with A before the interview.  During that discussion he gave an account which was essentially the same as that which appeared in the ABE interview.  The guidance cautions against such an approach, no doubt to avoid any unintentional possibility of coaching.  We shall bear that argument in mind when we come to determine the issue.
26.	It is clear that the interview did not comply with guidance in that there were indeed many leading and tag questions.  Furthermore, at the beginning of the interview, when the officer was performing introductions, she suggested that "something has happened that its not very nice, is it" along with other observations that A was there to explain what had happened in the park.  Ms Lloyd‑Nesling submits that is an expression of view by the officer which raises at least a danger of encouraging A to make a complaint which is not true or not accurate.  It is the sort of suggestive language which the guidance cautions against.
27.	We remind ourselves that it is for the trial judge to form the opinion or not identified in section 27(2) of the 1999 Act.  This court will interfere only if the conclusion was not open to the judge.  In his ruling the judge correctly identified the test he was obliged to apply, namely the test which we have quoted from K.  The judge accurately identified the shortcomings in the interview process.  That said, the judge took the view that A had given his central account at least as regards the first incident early on in the interview in response to an open invitation to him to explain what had happened.  A gave direct answers.  As the judge noted, he gave an account relating to the whole of the events without leading questions.  For the most part leading questions came later in the interview, by way of repetition.  The officer had the good sense to use appropriate language when questioning A.  By that the judge meant using language of the sort that A himself used rather than more complex language which might ordinarily be employed with an adult.  The judge found that feature compelling.  He had particular regard to the overall impression he gained from viewing the video in coming to his conclusion on what he described as the fundamental question, namely "could a reasonable jury come to the conclusion that he is giving a reliable and accurate account of something which happened to him during the course of this video‑tape?" Ms Lloyd‑Nesling criticises the ruling for failing to deal, if not with each and every of the leading and tagged questions, at least with many of them.  We do not accept that criticism.  The ruling was clear.  It set out the test at the beginning and at the end.  It summarised the substance of the interview in the context of the breaches of the guidance which the judge recognised.  It reached a clear conclusion.
28.	We asked for a copy of the DVD and have watched it.  We too would come to the same conclusion as the judge, were it for us to make the primary decision.  It follows that we have no doubt that he was entitled to come to the conclusion that he did.  It appears to us that A gave a coherent and clear account in answer to open rather than leading questions. The criticised observations at the outset of the interview in our judgment were made almost in passing; and we did not form the impression that they conditioned anything that followed.
29.	The answers given by A suggested a degree of confidence and no obvious lack of comprehension.  For example, he quickly corrected the officer when she mistakenly suggested that he had earlier said the appellant was wearing a red hat.  When asked which hand the appellant had used A without hesitation immediately said his right hand and then demonstrated.  A was clear when asked about his underwear that he was wearing pants and not boxers.  He asked some questions including when the police would sort this out.  When asked: "What have you come to tell me" he gave his account.  In answer to the question whether the appellant had asked him, that is A, to touch the appellant he gave an immediate and clear answer in the negative.  We would add that we can see no basis for believing that the criticism of the officer in having an anterior discussion rendered the interview which followed unreliable.
30.	Despite Ms Lloyd‑Nesling's careful submissions, in our judgment the circumstances of this interview were far removed from those which would have called for the exclusion of the DVD for use as evidence in chief by applying the test in K.
31.	The DVD was then edited to exclude questions and answers about which the defence team had concerns.  In his summing‑up the judge went out of his way to make sure that the jury was alive to the shortcomings in the process including in the cross‑examination of A. The judge emphasised the need for the jury to bear all that in mind in fairness to the appellant.
	Grounds 2 and 3, the jury notes 
32.	Underpinning the appellant's concerns arising from the jury notes is that they were speculating about his character.  No good character direction was given because the appellant has a conviction as a man in his early 20s for indecent assault on a male under 16.  He is now 76.  For reasons which are understandable the appellant was anxious that this conviction should not be in evidence before the jury.  It may also explain why no character evidence was called on his behalf.
33.	On the second day of the trial the jury asked two questions in one note:  
"John (cousin & carer) said the first words [A] said walking up the stairs was 'The lollipop man'.  John, in turn, said something like 'That caused alarm, due to the past/history' What was his reason to be alarmed?"  
Second question: 
"[A] said "The parky doesn't like him' (Mr Boxer) What made him think or say that?"
34.	We do not have a transcript of how the judge dealt with those questions but do have Ms Lloyd‑Nesling's helpful note.  As to the first part the note reads: 
"Not a great deal of light that I can shed your note.  You have no evidence as to that.  [The cousin]now not here, so couldn't asked him today and not sure it would be proper use of court time to wait for him to answer.  The defence have closed their case anyway.  Wrong to speculate on what, if he had been, both counsel had the opportunity to present whether evidence they think appropriate.  That is what was said it would be speculation to try to work out what was said.  Try not to speculate."  
As to the second the note continues: 
"Re park keeper, we don't know the answer to that question. Counsel couldn't ask it because advice of intermediary was he had great difficulty with questions beginning why and he shouldn't be asked.  Intermediary said he would not be able to explain and to ask why another person didn't like someone would be too long and complex given his communication difficulties....  Could he might be asked by either counsel. Neither counsel chose to ask and he didn't express his views about Boxer.  No suggestion he had any adverse view still less he had been influenced in his behaviour.  Would be simple speculation to attribute any views to him, or that A correct.  In these circumstances, important you don't speculate, down attribute anything significant to anything not explored.  It is counsel's job to explore.  Pity not here to give his account don't speculate." 
35.	These exchanges took place before speeches and the summing‑up. The questions appear to us to be an example of a relatively common phenomenon in criminal trials of the jury asking for a loose end to be tied up which, for one reason or other, the parties have overlooked, considered irrelevant or left alone for good reason.  No criticism is made of the way in which the judge dealt with it.  It maybe the questions were prompted by an interest in whether there was something about the appellant which the jury had not been told.  We cannot know.  However, in the summing‑up which followed the judge gave a clear warning against speculation about which no criticism is made.
36.	During their retirement the jury asked this question:  "Did the court disallow any character witness or other on behalf of the defendant?" This led Ms Lloyd‑Nesling to submit that the jury was necessarily speculating and thus ignoring the clear direction given in the summing‑up.  In the result she submitted that the jury should be discharged.  She prayed in aid the cumulative effect of the three questions.  As one would expect the judge answered the question and also repeated his speculation direction.  He did so in those terms: 
"JUDGE RICHARDS: Well you have sent me a note ladies and gentlemen, which reads, 'Did the court disallow any character witnesses or other on behalf of the defendant?' The simple answer to that question is no, there has been no disallowing of any witnesses on either side. I should emphasise because the suspicion might arise that you were thinking as it were beyond the actual evidence which you have heard, it is extremely important that you confine your considerations to the evidence which you have heard and endeavour to reach verdicts based on that evidence. I did say during the course of my summing‑up that you must not speculate, and that is extremely important. The only way in which a fair trial can take place is if juries apply their minds to the evidence which they have heard and endeavour to reach verdicts based on that evidence. So I do underline that." 
37.	The last of these jury questions does suggest that the jury were thinking about the appellant's character.  They were reminded in clear terms not to speculate and in those circumstances we consider that the judge was right not to discharge them.  Juries regularly asked questions about why something they might expect to have heard about was not given in evidence.  On questions of character the reality is that the jury's interest may be sparked because one or more of them may have sat on another jury where a good character direction was given and character witnesses were called.
38.	At a more prosaic level the ubiquity of television court room dramas may provide the background to questions of this nature.  If such questions arise it is the judge's duty firmly to remind the jury that they should not speculate and must try the case on the evidence.  That the judge did. For that reason there was no basis for discharging the jury.
	Illogical verdicts ‑ ground 4  
39.	Ms Lloyd‑Nesling's submission is a simple one. The appellant's credibility was central to the case.  He had described two incidents, albeit separated by a short time and so too had Mr Pastor.  If the jury was not sure on one count they could not logically be sure on the other.
40.	  The judge gave the jury a direction they should consider the two counts separately, to which no objection was taken.  Having considered the evidence in the round, we do not consider that the jury's verdict reflected any illogicality.  In the video interview A gave a clear account of the first incident.  However, his account of the second was more vague.  Furthermore, the agreed editing of the DVD excised much of the officer's attempt to clarify matters relating to the second alleged incident, because many of the questions were indeed leading or tagged.  Thus, the jury was presented with evidence in chief much less compelling as regards the second alleged incident by comparison with the first.
41.	It is quite correct that Mr Pastor gave evidence that he saw the men in the bushes on two occasions.  That said, it was only on the first occasion that he saw the appellant doing his zip up.  Given the standard of proof and the judge's clear and extended warning to the jury of the difficulty the appellant faced in dealing with A's evidence, in our view, the differential verdicts do not more than reflect the care that the jury took in considering the evidence.
42.	We would not wish to leave this appeal without noting the very high quality of the submissions placed both before the judge and before us by Ms Lloyd‑Nesling and by Ms Thomas for the Crown, who in the event we did not call upon.  
43.	In the result we dismiss the appeal.