R v Gareth William Jones
| Jurisdiction | England & Wales |
| Judge | Simon LJ,Carr J,HHJ Picton |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] EWCA Crim 2816 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | 2016/1365/C4 |
Neutral Citation: [2018] EWCA Crim 2816
Judges: Simon LJ, Carr J, HHJ Picton
2016/1365/C4
Court and Reference: Court of Appeal;
Facts: In 2008, GWJ, a care assistant who had a learning disability, was convicted of sexual activity with a person with a mental disability, an elderly woman with dementia, and sentenced to 9 years' imprisonment, reduced on appeal to 7 years. The main circumstantial evidence on which the prosecution relied was: significant genital injuries to the woman which were consistent with forceful penile penetration (though there was no clear evidence that it was the only likely cause); she had no injuries before a brief period alone with GWJ (some 4 minutes, ending when he sounded the alarm); he lied about being alone with her (and encouraged a co-worker to lie). The prosecution also relied on GWJ's demeanour in giving evidence: he gave a coherent account in chief but faltered under cross-examination. His account was that he discovered the injury when changing an incontinence pad and sounded the alarm, and had lied because he was worried about losing his job; there was no forensic or other evidence against him.
GWJ appealed the conviction on several grounds, with supporting fresh evidence. Leave was refused on a ground that he was unfit to stand trial; other grounds related to the failure of the legal representatives and judge to consider fully the impact of GWJ's learning disability, the fairness of the trial in light of the lack of a direction to the jury about the impact of his learning disability, and medical evidence suggesting additional causes of the injury to the woman. The evidence as to GWJ was that he had a significant learning disability, which would make him compliant and suggestible, the extent of which might have been masked at the time of the trial.
Appearances: P Evans QC and T Naylor for GWJ, W Hughes QC for the prosecution
Simon LJ:
1. On 9 July 2008, the appellant (Gareth Jones) was found guilty in the Crown Court at Cardiff, following an 8-day trial, of an offence contrary to s38 of the Sexual Offences Act 2003: sexual activity by a care worker with a person with a mental disability.
2. On 29 July he was sentenced by the trial judge, HHJ Philip Richards, to 9 years' imprisonment, reduced on appeal to a term of 7 years.
3. This is an appeal against his conviction brought out of time by leave of the Full Court, linked to an application to adduce fresh evidence under s23 of the Criminal Appeal Act 1968.
4. Those facts which were not in issue can be summarised shortly.
5. In February 2007, JP (who was then aged 77) was a resident at The Mountains Nursing Home, Libanus, Brecon. She suffered from severe dementia; and was doubly incontinent, wearing incontinence pads at all times. She shared room 30 in the nursing home with another elderly woman.
6. The appellant was a care assistant there. It is now common ground that he had learning difficulties. The extent of those learning difficulties, and their impact on the fairness of the trial and the safety of his conviction, is one of the main issues raised on the appeal.
7. On 13 February, he was scheduled to work a 12-hour shift from 8.00pm with another care assistant, Jana Junasova. The procedures at the Nursing Home were such that care assistants were required to work in pairs.
8. At about 10.10pm the appellant was seen taking Mrs P from the living-room on the ground floor, upstairs to her bed in room 30. He remained with her there for approximately 4 minutes until he sounded an alarm.
9. A number of members of staff responded to the alarm. Among these were Jana Junasova and Rebecca Morante (a senior care worker). On entering the room, Ms Morante saw Mrs P wearing a short nightie with her backside exposed. She was bleeding very badly. Ms Morante noticed an incontinence pad on the bed and another on the table, as well as some bloodstained wet wipes on the table.
10. The appellant said that the pad on the table was the one he had removed from Mrs P and that it was blood stained; although neither Ms Morante nor Ms Junasova who both examined the pad saw blood on it. The appellant said, ‘Rebecca, I took the pad off and the blood just started to flow down from her’.
11. The emergency services were called; and at about 11.10pm a paramedic arrived at the scene. A short time later Mrs P was taken to the Accident & Emergency Department, and thence to the Gynaecology Ward, at the Prince Charles Hospital in Merthyr Tydfil. The appellant accompanied her.
12. She was examined in hospital, initially by Dr Sanjay Curpad and subsequently by a Consultant Obstetrician and Gynaecologist at the hospital, Mr Sanjay Chawathe.
13. She was discovered to have injuries which included a perineal tear between the vaginal opening and the anus, which extended towards the anal margin, together with a 6–8cm vaginal tear. Mr Chawathe said he had never previously seen such a condition in a person of Mrs P's age. She had also suffered extensive vaginal bleeding.
14. The appellant returned to the nursing home. At about 7.35am the following day, 14 February 2007, he spoke to Elizabeth Shone, the team leader. This was shortly before he went off duty and after she started her shift. He said that he had taken the pad off Mrs P and that it was covered in blood. He had put another one on and she was still passing blood. He said he had been working with Jana. On the same day he spoke to Jana Junasova and said that, if she were asked about the situation, she was to say that ‘we were at all times together’. This request figured during the trial and was relied on by the Prosecution.
15. The appellant was aged 24 at trial and was of good character.
16. On 24 February 2007, the appellant was arrested at his home where he lived with his parents. He was subsequently interviewed on 5 occasions. On each such occasion his father was present in the role of an Appropriate Adult.
17. He provided details of his movements during the day and evening in question. He said he had prepared Mrs P for bed and was in the process of changing her pad when he noticed fresh blood. He put the old pad back on her and walked her towards her bed. He turned her onto her side to find where the bleeding was coming from. He raised the alarm when he saw the blood coming out quickly. He used wet wipes to try to clean up the blood.
18. In his 3rd interview he admitted that in panic he had asked Jana Junasova to lie on his behalf. He accepted that he had been alone with Mrs P at the time; but could not say how she sustained the injury.
19. In his 5th interview he answered ‘no comment’ when it was put to him that neither Ms Morante nor Ms Junasova had seen blood stained pads.
20. The prosecution case was that the appellant had caused the genital injuries to Mrs P. There was no direct or forensic evidence, no CCTV and, due to her dementia, no evidence from Mrs P. The prosecution therefore relied on circumstantial evidence: agreed medical evidence that the injuries were at least consistent with forceful penetration by a penis or penis sized object; the fact that there was no evidence that Mrs P had been injured before she was (effectively) alone with the appellant in her room; the admitted lies told by the appellant and the jury's view of his evidence before them.
21. The appellant gave evidence in his defence. He maintained the accounts he had given in interview. He said that when he discovered that Mrs P was bleeding from her vagina, he pressed the emergency button. He did not know how the injury was caused.
22. The first ground of appeal was that the appellant was unfit to plead or unable to participate in his trial. Leave to appeal was refused on that ground; and 3 grounds remain, each of which is the subject of applications to call fresh evidence. The remaining grounds fall into 2 categories. The first relates to the impact of the appellant's learning disability and the fairness of the trial (grounds 2 and 3); the second relates to medical evidence directed to Mrs P's injury (ground 4). Both categories are relied on to impugn the safety of the appellant's conviction.
23. Ground 2 is a contention that inadequate consideration was given to the appellant's learning disability by trial defence counsel and by the Judge. Ground 3 is a related complaint that the Judge failed to provide any direction to the jury in relation to those learning difficulties.
24. It is now common ground that the appellant suffers from a learning disability associated with a diagnosis of Von Recklinghausen's disease (neurofibromatosis type 1), whose symptoms include memory deficiency, problems with articulation, and confusion.
25. The appellant seeks leave to adduce evidence which was not called at trial from a number of witnesses: reports from 2 psychologists (Dr Steven Killick and Dr Keith Coaley) and 2 reports from a neuropsychologist (Dr Tanya Edmonds). We have considered the contents of these reports, as well as that of a consultant forensic psychiatrist (Dr Ian Cummings) placed before the Court by the prosecution, with a view to deciding whether the evidence should be admitted under s23 of the Criminal Appeal Act 1968.
26. There is a further witness statement from Ms Paula Morgan who has known the appellant for many years. The statement describes the appellant's longstanding learning difficulties, which, she says were made known to the appellant's trial solicitor.
27. Dr Killick, Dr Coaley and Dr Edmonds are in agreement that the appellant has a significant learning difficulty and is highly vulnerable. The evidence of Dr Coaley and Dr Edmonds is that he has been assessed with scores of 63 and 60 respectively applying the WAIS-IV criterion for...
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