Alan Paul Wills v The Crown
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ramsey,Judge |
| Judgment Date | 02 August 2011 |
| Neutral Citation | [2011] EWCA Crim 1938 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201005560 B2 |
| Date | 02 August 2011 |
[2011] EWCA Crim 1938
IN THE COURT OF APPEAL (CRIMINALDIVISION)
ON APPEAL FROM TRURO CROWN COURT
HIS HONOUR JUDGE ELWEN
T20097072/T20090176
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hooper
Mr Justice Ramsey
and
His Honour Judge Peter Thornton QC
Case No: 201005560 B2
Mr Robert Linford for the Appellant
Mr Jonathan Barnes for the Respondent
Introduction
This is a case to which the Sexual Offences (Amendment) Act 1992 applies and therefore nothing must be published which might lead to the identification of any victim of an offence. The names of the victims have accordingly been anonymised in our judgment.
On 17 September 2011 in the Crown Court at Truro the appellant was convicted on seven counts of sexual activity with a child (Counts 1 to 3, 8 to 9, 13 and 15); three counts of rape of a child under 13 (Counts 4, 6 and 12); two counts of attempted rape of a child under 13 (counts 5 and 7) and two counts of causing or inciting a child to engage is sexual activity (Counts 10 and 11). The appellant and a co-defendant also faced another count of sexual activity with a child (Count 14). Both were acquitted on that count which was the only count against the co-defendant.
On 23 September 2011 the appellant was sentenced to 16 years imprisonment on Counts 4 and 6 (rape of a child under 13) to run concurrently on each count and 6 years imprisonment on each remaining count to run concurrently on each count. A direction was given that 55 days spent on remand should count towards sentence. The total sentence was therefore 16 years less 55 days.
The appellant was also made the subject of an indefinite Sexual Offences Prevention Order, had to comply with notification requirements and was included in the relevant list of the Independent Safeguarding Authority.
The appellant appeals against conviction by leave of the single judge.
The Facts
The prosecution case was that from December 2008 to April 2009 the appellant had groomed the complainants by providing them with access to cigarettes and alcohol before sexually abusing them at his home, whilst he was the only other adult person present in the house.
There were eight young female complainants. Count 1was an allegation that, on a single occasion, the appellant slapped JP, born in May 1995 and aged thirteen at the time, on the bottom and that he touched her breast. It was said that the applicant had got Jessica drunk and had behaved in an openly sexual way in front of some of the other girls.
Count 2 involved CM, a girl born in October 2000 who was aged eight at the time of the alleged offences. It was alleged that, during a sleepover at the appellant's house in the company of NB, the appellant had touched her on the breast and over her vaginal area
Counts 3 to 7 involved, NB, born in September 1999 and aged about nine at the time of the complaints. It was alleged that during the course of a sleepover at the appellant's house involving CM, the appellant had touched her on her breast and vaginal area, she was forced to give the appellant oral sex and that he attempted to penetrate her vagina with his penis. She also said that on another occasion in a van with SF she was forced to give the appellant oral sex and that on another occasion he attempted to penetrate her in the front room whilst, again, being present with SF.
Count 8 involved JW, born in July 1993 and who was fifteen at the material time. It was alleged that the appellant caused her, SF and RF (SF's sister) to take their clothes off and get into bed with him and she, JW had to climb on top of the appellant while she was naked.
In Counts 9 and 10 the complainant was SF, born in August 1995 and aged thirteen at the time. The allegation was that in the company of JW and RF, the three of them were naked on the bed at the appellant's house and she had to lie on top of him. On count 10 the allegation was that at the appellant's house SF, together with RF and a number of girls, were in bed with the appellant.
Counts 11 and 12 involved SP, born in September 1997 and aged eleven at the material time. It was alleged that at the appellant's house she, SF and RF got into bed together in various states of dress or undress. On the following day it was alleged that the appellant made SP give him oral sex.
Count 13 involved LB, born in June 1995 who was aged thirteen at the time. It was alleged that the appellant put his hands up her top and down her trousers.
In Count 15 the complainant was EB. It was alleged that the appellant touched her feet and knees and kissed her on the mouth when she was aged eleven to twelve.
The defence case was that the allegations were false and had been contrived or stirred up by CP, SP's mother and NB's aunt, who in about April 2009 had threatened to have the appellant "put away by any means possible". Various of the complainants had fallen out with the appellant's daughter and now these complainants, spurred on by CP, had made up their allegations to get back at the appellant's daughter, through him. It was also said that some of the evidence advanced by the complainants clearly related to the allegations made against another person who was then awaiting trial for offences of sexual abuse.
Grounds of Appeal
There were originally three grounds of appeal and a fourth ground was raised in the appellant's skeleton argument. However Mr Linford, who appeared on behalf of the appellant, took the realistic view that, in the light of the cross-admissibility of evidence on different counts, an appeal on the basis that the judge should have acceded to a submission of no case to answer was not one that he would pursue. In addition the appellant raised a ground in the skeleton argument relating to an application under Section 41 of the Youth and Criminal Justice Act 1999. The appellant had applied successfully to cross examine SF in relation to allegations that SF had touched the appellant's daughter and two other complainants indecently during a sleepover; that the appellant's daughter had complained and the appellant had banned SF from playing at his house and that, in consequence made, SF had made false allegations. The judge permitted that cross examination but refused permission to cross-examine the other two complainants. In the event that ground, for which leave had not been given was not pursued.
As a result there were two grounds of appeal which were pursued. The first related to the judge's direction as to cross-examination of young complainant witnesses, in particular, complaint was made that whilst Mr Linford had complied with the judge's direction in relation to his cross-examination of those complainants, counsel who acted on behalf of the co-defendant did not do so.
The second ground arose because the prosecution listed RF as one of the witnesses on whom they relied but did not call RF at the trial. Mr Linford submits that the prosecution should have called RF; alternatively RF should have been called by the court.
Cross-Examination of Young Complainant Witnesses
During the course of the hearing Mr Linford applied to the judge to have the jury discharged on the basis that, at the judge's direction, he had adopted an approach to the cross-examination of young complainant witnesses in which he desisted from challenging the witnesses and was not expected to put the appellant's case. He says that he asked open questions which were short and not "tagged" with a comment to prompt an answer. In contrast he says that counsel for the co-defendant adopted a less constrained and more traditional approach to cross-examination of the witness LB. He submits that on this basis the judge should have discharged the jury and, although the judge gave a direction in summing-up which referred to the manner of cross-examination by Mr Linford and counsel for the co-defendant, that direction was not adequate to deal with the situation.
Mr Barnes, who appears for the prosecution, submits that the limitations imposed on cross-examination were entirely suitable and appropriate and that the cross-examination by Mr Linford was effective. He accepts that counsel for the co-defendant adopted a more traditional and robust approach to cross examination but says that, in the event, there was no injustice caused by that.
In relation to young vulnerable witnesses guidance was given in the case of R v B [2010] EWCA Crim 4 where the Lord Chief Justice considered the circumstances in which very small children might give evidence in criminal trials. At [42] he referred to the fact that the trial process must and increasingly had catered to the needs of child witnesses and that the forensic techniques of the advocate, in particular in relation to cross-examination, had to be adapted to enable the child to give the best evidence of which he or she is capable. He added:
"At the same time the right of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily appropriate...
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