R v Freeman (Daniel Robert); R v Crawford (Jerome)

Hearing date: 21 July 2008

These applications raise in different ways the question of the appropriate direction to the jury where bad character evidence within the meaning given to that phrase in s.98 of the Criminal justice Act 2003 is put before the jury by the Crown. In particular they raise the question of how a judge should deal with the cross-admissibility of evidence relating to two or more counts in the same indictment. This court has considered the problem in the past, in particular in Chopra[2006] EWCA Crim 2133, Wallace[2007] EWCA Crim 1760, S[2008] EWCA Crim 544 and DM[2008] EWCA Crim 1544. It may be helpful to draw the threads of these decisions together. We have accordingly given leave to appeal to both appellants; at the end of the hearing we announced our decision, namely that both appeals would be dismissed. This joint judgment sets out our reasons.

Freeman

On the 10 ^th October 2007 at the Crown Court at Guildford, the appellant was convicted of three counts of indecent assault and two counts of sexual assault of a child. He was later sentenced to a total of 42 months imprisonment. At the hearing we heard and allowed his appeal against that sentence, which we reduced to one of 30 months imprisonment.

The indictment related to complaints made by two young girls, L, who was 6 years old at the time of the events about which she complained, and B who was 9 years old at the relevant time. As far as L was concerned her complaint related to events on the 19 ^th April 2002 when she was staying in the appellant's flat with her mother and brother who were going to a family wedding the following day. At some point in the evening, L's mother went out with the appellant's partner. L said that the appellant had then entered the room where she was sleeping, and put his hands under the duvet and touched her body around the chest and neck, kissed her on and around her mouth, rubbed her side, stomach and thighs and rubbed her vaginal area. He had left the room but then returned on two separate occasions and repeated the assaults. L's mother said that when she returned home, she saw the appellant emerging from L's bedroom. L made no complaint at the time. The matter however surfaced in 2006 when L's mother questioned her about whether anything had happened. L said that the appellant had gone into her room. L's mother took her to the police station in Cork, Eire where they were then living. A statement was taken from L and her mother without the safeguards which would have been in place in this jurisdiction. L later told her mother that something else had happened and L's mother took her in September 2006 to the police station in Farnham in Surrey where she made a second statement in which she made the allegations which form the subject matter of the counts.

The other two counts related to the child B. They arose out of an event on the 23 ^rd April 2006 when B had visited the appellant's flat with her parents. At one point B had been alone in the nursery with the appellant when the appellant offered B a foot massage. He started to rub her legs and then moved his hands up to touch her vaginal area over her knickers. He then did the same with the other leg, once again touching her vaginal area over her knickers. B told her parents what she said happened later that day. B was interviewed on the 17 ^th May 2006 and gave the account we have just set out.

The appellant was interviewed in relation to the allegations made by B on the 8th June 2006. He said that he had massaged B's foot for no more than twenty five seconds as she had pins and needles, but had not touched her vaginal area. He was interviewed about the allegations made by L on the 16 ^th October 2006 when he denied that he had even gone into the room where L was sleeping. He stated that L's mother may have influenced her.

Counsel made an application to sever the counts relating to the two incidents on the basis that the joint trial would prejudice the appellant's ability in particular to explore in detail reasons for the lateness of the complaint by L. The judge rejected the submission. He held that the fact that L had made her complaint late was not an unusual occurrence where young children were concerned. He accepted that if anything emerged to suggest that L's evidence was contaminated, then he would have to consider exercising his powers under s. 107 of the Criminal Justice Act 2003 either to direct the appellant's acquittal, or order a retrial.

At the end of the prosecution case, the appellant's counsel submitted that there was no case to answer in respect of the allegation made by L on the basis that the prosecution evidence was unreliable and had been obtained in a highly unsatisfactory manner. The judge rejected the submissions. The appellant then gave evidence generally in accordance with the account that he had given in interview.

The judge in his summing-up reminded the jury of the appellant's submissions as to the potential unreliability of L's evidence and in particular on the basis that it might have been influenced by the mother. He then dealt with the question of how the jury should treat the evidence of each of the complainants when considering the evidence of the others. He said:

“Moving on to the next topic. As you know, in this trial you are considering two alleged incidents, separated in time by a period of four years, and the topic I am considering now is the extent to which the evidence of one incident is relevant to your judgment in respect of the other. If you decide, and you are sure about it, that Mr Freeman is guilty in respect of one of the incidents and the evidence of one of the two witnesses, the complainant witnesses, then when you are considering the evidence of the other it would be evidence that he has a bad character in the sense that he had committed offences other than the ones that you are considering and it would be important for you to understand how you could use that. If you decide, and you are sure about it, that Mr Freeman did commit offences against one of the two young girls and he, therefore, has a bad character in that sense, you must not convict him in respect of the offence alleged by the other girl solely, mainly, because of the conclusion you have previously reached. But what the prosecution do say is that a conviction, if you reach it, in respect of one of the girls would demonstrate a tendency to commit sexual offences against young girls. The prosecution say that there are similarities between the circumstances and the nature of the allegations which, if you find one proved would demonstrate a tendency to commit offences of a similar kind.

Well, you will bear in mind that while there is no minimum number of previous incidents necessary to establish such a tendency, the fewer the incidents the less firm is the basis for deciding a person has such a tendency and, in any event, if you decide that Mr Freeman did commit offences against one of the two girls, that would be no more than background when you are considering the evidence in relation to the other. What really matters in respect of each of the two groups of counts in the indictment is the evidence relating to that group, but you may take the other into account when you are considering one in the way I have just described.”

The appellant appeals on the ground that the judge was wrong to refuse to sever the indictment, wrong to refuse the submission of no case to answer in relation to L, the directions given to the jury regarding admissibility were insufficient and that the judge erred in referring to bad character at all during the course of his summing-up.

Crawford

On the 24 ^th April 2008, before Mr Recorder Boyce QC, the applicant was convicted of two counts of robbery and was sentenced to 1014 days imprisonment on each count to run concurrently. The first count arose out of an incident shortly before midnight on the 23 ^rd February 2007. Linette Tadeo was on her way home on her own. She got off the bus in New North Road, London N1 just...