R v H
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix |
| Judgment Date | 25 October 2011 |
| Neutral Citation | [2011] EWCA Crim 2344 |
| Date | 25 October 2011 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 20105356 B4 |
[2011] EWCA Crim 2344
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT IN PRESTON
HIS HONOUR JUDGE RUSSELL QC
T 20047388
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Mr Justice Stadlen
Hhj Stephens Qc
Case No: 20105356 B4
Mr Mark Barlow (instructed by Jordans Solicitors) for the Appellant
Ms Louise Blackwell QC (instructed by CPS Special Crime Division) for the Respondent
Hearing dates : Thursday 21 st July 2011
This is the appeal against conviction, with the limited leave of the full court, of H, who on 18 May 2005 in the crown court at Preston before HHJ Russell QC and a jury was convicted on 22 out of 23 counts of sexual abuse against three stepsons and was sentenced to a total of 15 years imprisonment.
Counts 1 to 5 concerned the appellant's stepson to whom I will refer as D, the son of a woman with whom the appellant had had a brief relationship. There were two counts of indecent assault on a male person and three counts of indecency with a child. The five counts spanned the period from July 1987 to July 1994, when D was between the ages of 3 and 10: but from the evidence given at trial the more likely dating of the offences which the jury found had occurred as represented by these specimen counts was during the three or four years from 1989 to 1992 or 1993, when D was 5 to 8 or 9 years old (the earlier counts had covered a three year period). D had been 3 when the relationship between the appellant and his mother started, but about 5 when the family moved to an address at which the abuse was stated to have occurred, on occasions when his mother was out at bingo. On one such occasion D said that the appellant had put on a photographic video, masturbated him and then made D masturbate him. That kind of incident was said to have happened regularly each month. Once, when they were out in a car together, the appellant made D masturbate him until just before he ejaculated into tissues. The jury convicted on counts 1, 2 and 5 by a majority of 10 to 2, on count 3 by a majority of 11 to 1, and on count 4 unanimously.
Counts 6 to 17 concerned the second complainant, to whom I will refer as C, who was the elder of two full brothers, the sons of the appellant's subsequent partner (to whom I will refer as P). They were half-brothers to a sister, the daughter of the appellant and P. Count 12, a count of indecency with a child was the only count on which the jury were unable to return a verdict. The other counts were 3 counts of indecent assault on a male person, 5 counts of indecency with a child, and 3 counts of attempted rape. C gave evidence of abuse by the appellant for about six years, 1998 to 2004, when he was between the ages of 9 and 15. When he was about 9 he was in the attic when the appellant pulled down his lower clothing, fondled his genitalia and carried out an act of oral sex on him. Another specific incident took place in the bathroom, when the appellant stood him on the toilet seat and carried out an act of oral sex. He would also regularly masturbate C and get C to masturbate him. From the age of 13, he made C carry out oral sex on him. He often did these things when sharing a bed with C. On one occasion he mentioned that he missed doing things to D. On a number of occasions the appellant had attempted to penetrate C anally. The last occasion of abuse occurred about only one month prior to C being interviewed by the police in May 2004. He said that on one occasion ("just once") he was present when the appellant had sexually abused his brother, but he had also elsewhere in his evidence related at least two incidents of abuse to his brother at which he had been present. He told his mother about these matters in 2003, but she did not believe him. The jury convicted on counts 6 and 10 by a majority of 11 to 1, on counts 8 and 9 on a majority of 10 to 2, and on counts 7, 11, 13, 14, and counts 15–17 (the attempted rape counts) unanimously.
C's brother M was the third complainant. He was almost exactly one year younger and in his case the abuse took place for about 4 years between about 1999 and 2003, when he was 9 to 13 years old. The first occasion was in bed one night when the appellant woke him, pulled his shorts off, played with his genitalia and masturbated him. The last occasion was late in 2003 when he made M masturbate him in the living room. His case concerned counts 18 to 23, which comprised four counts of indecent assault on a male person and 2 counts of indecency with a child. He gave evidence that the appellant regularly played with his penis, masturbated him when they shared a bath together, and would masturbate himself in M's presence. M said that the appellant had abused both him and his brother together "sometimes" and also said that was "six or seven times". He also said that he had complained to their mother in 2003, but she did not believe him. He said that he had not discussed the case with D, and had only learned of what had happened to D on the day of his interview. The jury convicted on all five counts which concerned M unanimously.
That was the evidence of abuse which came from the three boys.
The matters had come to light with a complaint to the police by D, as he explained in his evidence. That had occurred in May 2004, when he was 19. He was 20 at the time of trial. In May 2004 he had been staying with the appellant for some months together with his pregnant girlfriend. He accepted that for some 10 years there had been no abuse, and that he had often stayed with the appellant in his home or in his caravan even after the relationship with his mother had ended. He had told his girlfriend about the abuse, because he was concerned for his child to be. She had encouraged him to bring it into the open. They moved out on the day he made his complaint to the police (his witness statement was dated 23 May 2004). On the next day, 24 May, the two younger complainants had given their evidence on video. D's girlfriend was not a witness.
The two brothers had previously spoken of their treatment to their mother, in the summer of 2003. She gave evidence about this complaint. She said that the children were mixed up and angry, and had returned (from visiting the appellant) and had complained to her of the sexual abuse at his hands. They said it had been going on for some time. She said: "I was shocked at first I didn't know what to think. I spoke to a friend. I was scared to deal with it. I did believe them but didn't want to believe them, and I did not complain to the police." However, she did raise it with the appellant a few days later. He denied it and brushed it off, and asked if the children were still coming for the weekend. She continued to allow the children (and other siblings) to visit and stay with the appellant. The judge said this of her evidence: "You may think some of her evidence was designed to justify herself and was not really very much assistance in the case, but it is important that you should be reminded of some of what she said."
The appellant gave evidence denying the allegations, as he had done when arrested and interviewed. He said the three complainants were lying. The only reason he could think of for D to lie was that they had argued about a motorbike about a week or more before his arrest (on 27 May 2004). D had been staying with him at the time with D's girlfriend. After the argument D and his girlfriend had left and not returned. He said that even after his relationship with D's mother had broken down, D had continued to visit him and to stay every weekend, and that when D left school at 17 he had lived permanently with him, right up to the time of D's complaint to the police. As for the brothers, he said he had no idea why they had made up the allegations other than spiteful jealousy of D and the brothers' sister. He agreed that P had confronted him about a year prior to his arrest: he reacted with shock and anger. He offered to take the children to the police station to have tests, but she refused. Thereafter the children had continued to visit and stay overnight with him, as before, until the time of his arrest.
There are four grounds of appeal for which the full court has given leave, and granted a considerable extension of time (some five years). On behalf of the appellant Mr Barlow has varied the order in which he has presented the four grounds. In his written material he gave greatest emphasis to his first ground, but in his oral submissions he left that for last. In those oral submissions he presented his grounds in the following order. First, the judge had misdirected the jury in failing to tell them that the brothers' complaint to their mother was not independent evidence. Secondly, the judge had misdirected the jury in not expressly telling them that the evidence of the three complainants was not cross-admissible across the various counts. Thirdly, the judge had failed to direct the jury appropriately about the dangers of conscious or subconscious contamination of the evidence of D. And fourthly, the judge had failed to tell the jury of the dangers, at any rate in the case of D, who was speaking of historic abuse going back to his very early childhood, of delay and false childhood memories. In his written material, Mr Barlow had presented these four grounds, which we will here number in the order in which they were addressed in our court, as above, by promoting his ultimately fourth ground to first place.
The first ground: the direction as to the complaint to the mother
Mr Barlow submitted that the judge failed...
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