PR v The Crown
| Jurisdiction | England & Wales |
| Judge | Lord Justice Fulford |
| Judgment Date | 12 July 2019 |
| Neutral Citation | [2019] EWCA Crim 1225 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201803228 C5 |
| Date | 12 July 2019 |
[2019] EWCA Crim 1225
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARDIFF
His Honour Judge Gaskell
T20180031
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Fulford
Mrs Justice May DBE
and
Mr Justice Swift
Case No: 201803228 C5
Mark Cotter Q.C. (instructed by Richard Nelson solicitors) for the Appellant
Caroline Rees Q.C. (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 6 June 2019
Approved Judgment
The Issue
This appeal concerns whether the trial judge was right to allow the case to proceed when evidence gathered by the police in 2002, relevant to the appellant's defence, was destroyed by water damage and was unavailable for the trial in 2018.
The appellant submits that the judge wrongly refused his application, which was renewed following the prosecution's evidence, to stay the proceedings as an abuse of process.
Background
On 6 July 2018 in the Crown Court at Cardiff the appellant, now aged 72, was convicted (by a majority of 10 to 2) of four counts of indecency with a child, contrary to s.1(1) Indecency with Children Act 1960.
On 9 August 2018, the trial judge, His Honour Judge Gaskell, sentenced him to concurrent special custodial sentences under section 236A of the Criminal Justice Act 2003 of eight years, comprising a custodial term of seven years' imprisonment and an extended licence period of one year (on counts 1, 2 and 3), and two years' imprisonment concurrent (on Count 4).
On 25 October 2018 the Court of Appeal Criminal Division (Sir Brian Leveson P., Baker and Goss JJs) allowed an application by the Attorney General under section 36 Criminal Justice Act 1988 to refer his sentence to the Court of Appeal. The sentences on Counts 1, 2 and 3 were quashed and the court substituted concurrent sentences of 10 years', comprising a custodial term of nine years' and an extended licence period of one year. The concurrent sentence of two years' imprisonment on Count 4 remained undisturbed.
He appeals against conviction by leave of the single judge.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the victim shall during her lifetime be included in any publication if it is likely to lead members of the public to identify that she is the victim of any of these offences. Given the familial relationships, which are relevant to a proper understanding of this case, it has been necessary to anonymise this judgment.
The Evidence
SR, the complainant, was born in December 1995; she was aged between five and six during the indictment period. She lived with her parents. The appellant was her natural uncle. At the relevant time he was in his mid-fifties. The appellant lived with his mother (the complainant's paternal grandmother) at her home Cardiff. The complainant and her mother regularly visited the home of the complainant's grandmother. The appellant developed a close relationship with the complainant, and she received gifts from him. She regularly played in his bedroom where he kept colouring books, a children's play tent, an exercise bicycle and various videos for her entertainment.
The prosecution's case was that while the complainant played in his bedroom, the appellant incited her to perform oral sex on him (Counts 1, 2 and 3) and he masturbated in front of her (Count 4). The complainant was aged six at the time. The offences were committed, in part, within a small play tent in the appellant's bedroom while the complainant's mother and grandmother were downstairs.
SR's first memory of anything sexual occurring was when the appellant got his penis out over his jeans, while sitting in an armchair, and she touched it. On his instruction, she remembered her lips coming into contact with his penis, which she put in her mouth. She went on to describe it as wrinkly, weird and long. She could not recall seeing anyone else's penis prior to this.
They sometimes played in the tent together, when she was topless. He had a musty scent. They sat on the exercise bicycle together, the appellant touched her “down there” and they used to kiss. She performed oral sex on him, on a number of occasions.
She recalled a particular occasion when the appellant masturbated to ejaculation whilst she was sitting next to him; she watched because it was something she had not seen before. Generally, she recalled the appellant would “come”, resulting in him being “wet”. She asked him what it was. She allowed this activity to continue although she did not understand what was happening. She got used to the normality of it.
She said the appellant would take his penis out of his trousers rather than take his trousers off, so he was able to quickly put his penis back in if anyone were to go upstairs.
She thought she remembered an occasion when the appellant pushed her head down while she was performing oral sex. This hurt the back of her throat. As a result of that experience she reported – she believed to her mother – what had been happening, particularly given she did not want to go back to the appellant's address.
The police were first told of these events on 1 August 2002, and the complainant was interviewed on 5 August 2002 (a 50-minute Achieving Best Evidence (“ABE”) interview), of which a video recording was made.
At that time, the complainant's father (ZR) was unsupportive of his daughter and of any steps taken to prosecute the appellant, his brother. The latter was arrested and interviewed, and he denied the offences. The play tent was forensically examined for the presence of semen, with a negative result. In December 2002, the Crown Prosecution Service made a decision not to prosecute on the basis that there was insufficient evidence, following a report on 9 October 2002 indicating that there was no forensic or medical evidence.
The police paper file from the 2002 investigation was stored in portacabins at Fairwater Police Station. In due course the file was damaged by water. Some of the documents became mouldy and, in 2008, a decision was taken to destroy them.
Other records survived. In August 2002, South Wales Police had made a referral to the Family Support Unit and there were Social Services documents which dealt with the allegations, the history of the interviews and the response of the complainant's father to the allegations.
The available material included:
a. A witness statement from Anthony Evans, a Police Officer employed at the Child Protection Unit;
b. A two-page ‘index of interview’ (“The Index”), which summarised the principal allegations reported during the interview on 5 August 2002 (it is to be noted that in a typed copy this ends with the words “Asked if she can recall when it all happened” although in the original handwritten version the answer to that question is provided: “S is unclear, a couple of days off, way back, think it was last year”.
c. A complete copy of the transcript of the appellant's police interview; and
d. The forensic science report which indicated a negative result following a test to determine whether there was semen on the play tent (it is unclear whether other items were seized).
Moving forwards in time, on 21 January 2016 SR went to the appellant's house and made a secret recording of the conversation she had with him. The appellant said to SR that she had led him on and that it was her fault. He indicated nothing sexual had occurred.
On 22 January 2016, SR requested the police to reinvestigate her complaint against the appellant.
On 30 January 2016, SR went back to the appellant's house and called him a “dirty paedophile”.
The following day, 31 January 2016, the complainant's mother went missing and has not been seen since. During the investigation into her disappearance, the police discovered a document the complainant had written to her then boyfriend, in which she admitted that she had lied about, and exaggerated, what the appellant had done. This was in order to get her boyfriend's attention. She had put on “fake tears”. When questioned on this issue during the trial, she said that her partner was very volatile and abusive, leading her to make these false statements.
There was a second ABE interview with SR on 5 July 2017. She described performing fellatio on the appellant, touching his penis and him masturbating.
SR gave evidence during the trial of these events, as summarised above [8] – [14].
JR, one of SR's uncles, gave evidence during the trial that approximately 12 years prior to the trial, while holidaying in Tenby, the appellant said words to the effect of: “All those years ago, when I had that trouble, if the worst came to the worst, I could have gone to jail but I didn't want to sign the Sex Register” and “I'm just saying if the worst came to the worst I could have done the time”. JR described being shocked as they did not seem to be the words of an “innocent man”. The appellant made another comment which concerned him, namely that he had blanked out certain videos after he had showed them to SR.
In approximately 2015, JR told ZR (the complainant's father) about this conversation with the appellant. He said to ZR to tell the complainant that he believed she had been telling the truth.
ZR explained how he first became aware of the allegations after his son had asked him to “come and listen to this”. He saw the complainant was crying. She told him, “(the appellant) put his wee wee in my mouth”. ZR was in a terrible state and confronted the appellant, who grabbed the sideboard, sweated profusely but said nothing.
ZR testified that his brother, JR, told him the appellant admitted, “Yes, I did do it. You can F off”. Following that conversation, ZR told the complainant...
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