R v F

Hearing date: 17 th February 2011

Lord Justice Jackson:

This judgment is in five parts, namely:

Part 1. Introduction,

Part 2. The Facts,

Part 3. The Criminal Proceedings,

Part 4. The Law,

Part 5. The Appeal to the Court of Appeal.

Part 1. Introduction

This is an appeal against conviction by a 62 year old man who has been convicted of committing sexual offences against his step-daughter and daughter between 30 and 40 years ago.

This appeal raises the familiar but intractable problem of when justice requires proceedings to be stayed in cases of historic sexual abuse. This problem is a sensitive one, because the criminal justice system must protect the victims of sexual abuse, who often, for understandable reasons, do not make complaint for many years. The criminal justice system must also protect defendants from facing a jury and possible conviction in circumstances where a fair trial is no longer possible.

After these introductory remarks, we must now turn to the facts of the present case.

Part 2. The Facts

In 1969 the appellant married Pamela Hill. Pamela Hill had a daughter called Karen, born on 8 ^th September 1967, who became the appellant's step-daughter. The next child of the family was Angela, who was born on 19 ^th October 1969. Angela was the daughter of the appellant and Pamela Hill and, therefore, the half sister of Karen. The appellant and Pamela Hill had two more children after that, Keith born on 20 ^th January 1971 and Paula born on 24 ^th July 1974.

Karen lived in the family home until 1975. When Karen reached the age of 8 she went to live with her grandmother. Angela lived in the family home until 1983. At the age of 14 Angela was placed into care. In 1984 the appellant left the family home and went to live with a woman who subsequently became his second wife, Mrs Gloria Fuller.

Many years later, when they were both married with children of their own, Karen and Angela made complaints to the police about serious sexual offences committed by the appellant. It was in 2008 that Angela, whose name is now Angela Plane, went to the police about these matters. The police then contacted Karen, whose name is now Karen Finch. Karen Finch then made similar allegations against the appellant.

In essence each of the two half sisters was alleging that the appellant had committed a series of sexual assaults upon them, starting when they were very young and culminating in sexual intercourse.

The police arrested and interviewed the appellant, who denied all allegations. Those denials were not accepted. Criminal proceedings then followed.

Part 3. The Criminal Proceedings

The appellant was charged on an indictment containing thirteen counts. Counts 1 to 4 were allegations of indecent assault against Karen. Count 1 alleged that the appellant had touched Karen's vagina while she sat on his lap at her grandmother's house when she was about 2 or 3. Count 2 alleged that the appellant had rubbed his penis between her legs while she was in bed with him and her mother when she was probably aged 4 or 5. Count 3 alleged that the appellant had touched Karen's vagina while bathing her when she was about 4 or 5 years old. Count 4 alleged that the appellant had forced Karen to perform oral sex on him while she was seated on the lavatory, when she was aged 4 to 6. Count 5 was a specimen count of rape said to have occurred when Karen was 12 years old during a period when her grandmother was in hospital. Count 6 was a specific allegation of rape said to have occurred in the living room when Karen was aged 12 or 13, during the same period when her grandmother was in hospital. Count 7 was a specimen count of indecency with a child reflecting Karen's allegation that the appellant had forced her to masturbate him when she was about 13 years old, again during the period when her grandmother was in hospital.

Counts 8 and 9 were allegations of specific indecent assaults against Angela. Count 8 alleged that the appellant had touched Angela's vagina while she was in bed with him, her mother and brother during a thunderstorm when she was aged 4 or 5. Count 9 alleged that the appellant had put his hand up Angela's skirt and touched her over her knickers while she was standing on the cellar stairs at her grandmother's house, when she was aged between 4 and 6. Count 10 was a specific allegation of rape when Angela was aged 7, which was said to have occurred in the living room while her mother was out working. Count 11 was a specimen count of sexual intercourse with a girl under 13, reflecting Angela's allegation that from the age of about 7 to 11, the appellant had sexual intercourse with her in the living room more than ten times. Count 12 was a specimen count of buggery arising from Angela's allegation that the appellant had anal sex with her two or three times when she was aged 8 or 9. Count 13 was a specimen count of indecency with a child, reflecting Angela's allegation that the appellant had forced her to masturbate him. She could not give her age at the time.

The appellant pleaded not guilty to all counts. He stood trial at Woolwich Crown Court in March 2010 before Judge Shorrock and a jury. Both Karen and Angela gave evidence in support of their allegations. Pamela Hill, who was the mother of both Karen and Angela, gave evidence for the prosecution. Ms Hill said that anal sex had never been a part of her sex life with the appellant. Between 1980 and 1985 she worked at the Twilights nightclub in the evenings. In relation to count 7, she walked into the living room unannounced. She saw Karen and the appellant sitting next to each other and Karen was masturbating him. This was in June or July 1980. Karen shot out of the room. Ms Hill was horrified. The appellant admitted to what he had done but said that he was drunk, that it had never happened before and would never happen again. Ms Hill did not accept that he was drunk. She spoke to Karen in her bedroom and asked her whether anything like that had ever happened before. Karen said "no, mummy, no". Ms Hill was going to call the police but did not do so, partly because the appellant begged her not to and partly because of the advice her brother gave her. Ms Hill's brother did not give evidence at the trial. However, the jury were informed that the brother had been contacted and was unable to recall Ms Hill contacting him regarding this incident.

Karen Finch's husband, Ian Finch, gave evidence. He said that Karen told him about the sexual abuse in early 1992. Also, a friend of Angela Plane called Toni Harding gave evidence about complaints of sexual abuse which Angela used to make sometime before the police were involved.

The appellant gave evidence firmly denying all the allegations. He said that Angela had come to stay with him and Gloria at Christmas 1984, when they enjoyed a normal father/daughter relationship. The appellant said that many of the incidents could not have happened. For example, he could not have committed the alleged indecent assaults in the grandmother's house without being seen. This was because of the layout of the house. Also, he said that he was often away from home in connection with his work or in connection with his hobby, which was banger racing.

The appellant called four further defence witnesses. Gloria Fuller, the appellant's wife, gave evidence that she had never seen the appellant behaving inappropriately towards young girls. He certainly never interfered with her daughter. She trusted the appellant with her own children and had no reason to suspect him of anything untoward. She confirmed the appellant's evidence that when Angela visited them for Christmas in 1984 she behaved towards the appellant in a way that someone who had been abused would not have done. She also confirmed that thereafter they saw Angela regularly.

Keith Fuller, the appellant's son, gave evidence that he did not recall ever seeing the appellant behaving inappropriately towards Karen. He never got the impression that she felt uncomfortable in his presence. He trusted the appellant with his own children and had no reason to suspect him of anything untoward.

Paula Shea, the appellants' daughter, gave evidence that she was never abused by him. She also went to live with her grandmother when she was 13 or 14, not to escape the appellant but because her grandmother was house bound. She did not recall ever seeing the appellant behaving inappropriately towards Karen when she was younger. She never got the impression that Karen felt uncomfortable in his presence. She trusted him with her own children and had no reason to suspect him of anything untoward.

Sarah Lewis, Gloria Fuller's daughter, gave evidence that she had never seen the appellant behaving inappropriately towards young girls. He certainly never interfered with her. She confirmed that when Angela visited them for Christmas in 1984, she behaved towards the appellant in a way that someone who had been abused would not have done. She, Sarah Lewis, trusted him with her own...