R v D.; R v J
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS |
| Judgment Date | 03 November 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J0710-16 |
| Docket Number | No. 94/4098/S2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 November 1995 |
[1995] EWCA Crim J0710-16
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Swinton Thomas Mr Justice Mccullough and Mr Justice Newman
No. 94/4098/S2
94/4102/S2
MR P ECCLES QC & MR J TILLYARD appeared on behalf of the Appellant DAVIES
MR A FULFORD QC appeared on behalf of the Appellant JONES
MR G ELIAS QC & MR H REES appeared on behalf of the Respondent
MR D BODEY QC & MR A MOYLAN appeared on behalf of the Official Solicitor
On 10th, 11th and 12th June 1994, DAD and PAJ and four others were convicted of very serious sexual offences against children. They were sentenced to substantial periods of imprisonment. All six appellants appeal against their conviction following leave given by this Court.
The convictions followed a trial lasting some seven months. The appeals are due to be heard in October 1995.
The prosecution arose as a result of allegations that these appellants and others engaged in sexual abuse of children, both boys and girls, between 1987 and 1991. A number of adults and a number of children were involved.
Mr D was said to be the ringleader. A number of children gave evidence at the trial. Possibly the most important of the child witnesses was a boy called D, who is the son of the appellant Mr D. However, it should be stressed that there were a number of other children who gave evidence, and there was other evidence in the case, apart from the children. It is important in the context of the present application that the children did give oral evidence in the criminal proceedings.
Following the criminal proceedings there was a hearing in the Family Division before Connell J, in care proceedings brought by the DAFYD County Council, in which the judge had to consider the future care of some of the children who had given evidence in the criminal proceedings and certain other children whose parents had been involved in those proceedings.
Connell J, after a long hearing, gave judgment on 19th December 1994. The children did not give oral evidence to Connell J, but he had transcripts of evidence given by them in the criminal proceedings, video recordings and transcripts of interviews between the children and social workers and others.
The issue to be resolved at this preliminary hearing is whether the judgment of 19th December 1994, given by Connell J, can be considered by this Court in the criminal appeal. It is quite clear, as stressed by Mr Elias QC, on behalf of the Crown, that the factual issues considered by Connell J were not identical to the issues considered by the trial judge in the criminal proceedings, Kay J, and the jury in the criminal proceedings, and in some respects they were not similar.
However, it is said on behalf of the appellants D and J that Connell J did make certain findings which are capable of being relevant to the issues to be considered by this Court in the criminal appeal and as to the credibility of some of the child witnesses. For example, the local authority alleged that Mr J had been guilty of serious acts of indecency against his own children. Connell J did not find those allegations proved. Those allegations were not the subject matter of the criminal proceedings, but the judge's finding is said by those representing Mr J to be relevant to this appeal.
Mr J, through his legal advisors, tried to persuade Connell J to make a finding that he had not committed the offences in respect of which he had been found guilty by the jury. The judge declined to make that finding. He said, at J-30 of the transcript of the judgment:
"However, this evidence is not sufficient to satisfy me that he did not commit these offences and the situation in which this court is left is that I do not know whether or not he committed the conspiracy offences, although I do know that he has been convicted of them. Unlike the case of Stupple, the central issue before this court has not been the same as the central issue before the jury, and it has not been thought appropriate to investigate fully the circumstances surrounding the conspiracies. It is not my function in any way to act as some form of appellate court from the verdicts of the jury and therefore I must proceed on the basis that Mr J did commit the offences of which he has been convicted."
The issue which has to be resolved by this Court today is whether, as a matter of principle, Connell J's judgment can be considered by this Court at all. It is said, on behalf of the appellants, that the judgment should be admitted because -
(a) it is relevant to the exercise of the trial judge's discretion to admit or exclude evidence from some of the children and the review of that discretion by the Court of Appeal pursuant to section 78 of the Police and Criminal Evidence Act 1984;
(b) It is relevant to the credibility and the quality of the evidence adduced before the jury by the Crown, most particularly the evidence of the children;
(c) It is relevant to the question of whether the verdicts of the jury were safe and satisfactory in all the circumstances.
It may be difficult to show that any finding made by Connell J in December of 1994 could be relevant to the exercise of the discretion by Kay J to admit or exclude evidence from the children made at a much earlier date, but that issue will be resolved at the hearing of the appeal.
A judgment may be admissible, as to its findings, in certain recognised circumstances. It is admissible at common law if it establishes status or is a judgment in Rem. It is submitted by Mr Fulford, on behalf of J, that Connell J's judgment, having been given in family proceedings, should be regarded as being identical to a judgment involving status or a judgment in Rem. Quite clearly, in our judgment, it is neither, and cannot fall within that exception to the general rule as to the admissibility of findings made in one set of proceedings in another set of proceedings.
Holloington v. Hewthorn (1943) KB 587 , establishes that a judgment in personam in one sense of proceedings is inadmissible in a different set of proceedings. In that case the plaintiff sought to give evidence of a conviction of the defendant of careless driving in civil proceedings arising out of the accident. Goddard LJ, as he then was, said at page 601:
"The contention that a conviction or other judgment ought to be admitted as prima facie evidence is usually supported on the ground that the facts have been investigated and the result of the previous investigation is, therefore, at least some evidence of the facts that thereby have been established. To take the present case, it could be said that the conviction shows that the magistrates were satisfied on the facts before them that the defendant was guilty of negligent driving. If that be so, it ought to be open to a defendant who had been acquitted to prove it, as showing that the criminal court was not satisfied of his guilt, although the discussion by text-book writers and in the cases all turn on the admissibility of convictions and not of acquittals. If a conviction can be admitted, not as an estoppel, but as prima facie they evidence, so ought an acquittal, and this only goes to show that the court trying the action can get no real guidance from the former proceedings without retrying the criminal case. Without dealing with every case and text-book that were cited in the argument, we are of the opinion that, both on principle and authority, the conviction was rightly rejected."
That case, subject to a number of subsequent statutory exceptions such as that contained in section 74 of the Police and Criminal Evidence Act 1967, remains good law.
The appellants, in argument, make some criticisms of it and suggest that it should be overruled but, as is conceded, it is binding on this Court.
Mr Fulford endeavoured to distinguish Hollington v. Hewthorn from the judgment of Connell J in the family proceedings but, in our judgment, it is, in reality, impossible to do so. It is quite clear that if, for example, Connell J's judgment had been given prior to the criminal proceedings then any findings by him could not have been introduced in the criminal proceedings before the jury. That does not, of necessity, mean that they cannot be introduced in this Court in a criminal appeal.
It is then submitted that the findings of Connell J can be admitted under section 24 of the Criminal Justice Act 1988. The section is headed "Business etc Documents" and then it reads:
"Subject to certain statutory provisions, a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible if the following conditions are satisfied. (1) the document was created or recived by a person in the course of a trade, business, profession or other occupation or as the holder of a paid or unpaid office and (2) the information contained in the document was supplied by a person whether or not the maker of the statement who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with."
A simple reading of the section shows that it is wholly inapt to provide for the admission, in evidence, of a judgment given in family proceedings and that point was not actively pursued by Mr Fulford in his submissions.
In our judgment, the point of substance that arises on the issue of principle is whether the combination of section 2(1) and section 23 of the Criminal Appeal Act 1968 means that a court hearing an appeal in a criminal case can consider findings made in a...
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