R v M.(T.)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY |
| Judgment Date | 20 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Crim J0720-5 |
| Docket Number | Case Nos: 9802048/4174/4175/4176/5516/5517/W2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 July 1999 |
[1999] EWCA Crim J0720-5
Lord Justice Kennedy
(vice President Of The Queen's Bench Division)
Mr Justice Newman and
Mr Justice Sullivan
Case Nos: 9802048/4174/4175/4176/5516/5517/W2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand London WC2A 2LL
MR M MEEKE appeared on behalf of TM
MR G BONEY QC (MISS A WARD, 20.7.99) appeared on behalf of PM
MR G MERCER (MISS S PHILP, 20.7.99) appeared on behalf of PAM
MISS P MAY (MISS S PHILP, 20.7.99) appeared on behalf of MB
MR P DUNKELS QC appeared on behalf of the Crown
Tuesday 20th July 1999
Introduction
In January 1998 in the Crown Court at Plymouth nine defendants faced trial on an indictment which contained 43 counts. Almost all of the defendants were members of the family of GM and EM, and it was the prosecution case that between 1961 and 1974 they, their friends and their son TM, had sexually abused five of their seven children, so the first 21 counts in the indictment set out offences of rape, buggery and indecent assault, allegedly committed in those years �the "first generation" offences. Counts 22 to 43 related to a later period, between 1982 and 27th August 1995, when it was alleged that offences of the same type were committed by GM and EM, their sons TM and PM, their daughters EA and DB, their son-in-law MB, their daughter-in-law PAM, and two of their friends against four of their grandchildren, JB and TB and VM and HM �the "second generation" offences.
(A) First Generation Trial.
The appeal of TM.
In order to make the trial manageable it was decided, no doubt rightly, to sever the indictment, and to deal first with the first generation offences. Those offences were tried and GM and EM were both convicted of a large number of offences. TM was convicted of one offence, count 19, in which it was alleged that on a day between 17th February 1971 and 18th February 1973 he raped his sister SS, a girl then under sixteen years of age. He was acquitted of a similar offence charged in count 18 in relation to the preceding two year period. He was also in due course acquitted of the only second generation offence with which he was charged. His application for leave to appeal against conviction was refused by the single judge, but on renewal we granted leave to appeal on one ground, namely that the trial judge erred in allowing evidence of sexual relations between TM and his sisters EA and DB to be led from EA and DB, and from his brother DM.
In order to deal with that ground of appeal it is necessary to say a little more about the general nature of the prosecution case in relation to the first generation offences, and in particular in relation to counts 18 and 19. It was the prosecution case that GM and EM and their friends, in the 1960's, raped and buggered their young daughters DB, EA and SS, and their son DM, and the counts other than counts eighteen and nineteen were instances of that kind of activity. GM, it was said, created and maintained a culture of abuse in the house. From a very early age DB and EA were raped and buggered by their father. TM was brought in as a spectator and then made to take part. The girls were required to provide oral sex and were treated like dirt, but when these matters came to light many years later they did not blame their brother TM for what he had done to them as a child. Their attitude, and that of his brother DM, was that in reality TM had no choice.
SS was the second youngest of the M family and it was the prosecution case that when she was about 9 or 10 years of age TM, then aged 15 or 16, began to abuse her as he had seen her other sisters abused by his father. Count 18, of which he was acquitted, was an allegation a violent rape in some garages at the bottom of a lane near to the family home. Count 19, of which he was convicted, concerned events in a nearby coal house. In dealing with SS's evidence as to that in his summing-up the judge said at 82 C -
"She got dragged in there by him. She could stand up straight because she was little, but he could not. There was no light in there, it was dark, and she thought there was coal in there as well. He had a knife, and threatened her with it, and she said the aggression in him returned and he punched and hit her. He just seemed to want to hurt her. He ran the knife up and down her body and inserted it inside her vagina, then had sexual intercourse with her and left. Throughout, he said to her that this was how women should be treated, and she said that for her part, she just shut her ears to it and accepted that that was the way she was to be treated by him." SS also made it clear, both in relation to count 18 and in relation to count 19, that she was scared of TM. Although others abused her he was "really different. He just seemed to want to hurt her and was very very angry".
So far as counts 18 and 19 were concerned there was no independent evidence to support the evidence of the complainant, and so, at the start of proceedings in the Crown Court, in January 1998, Mr Meeke for TM applied to the judge for those two counts to be tried separately from the rest of the first generation counts (Counts 1 to 21). His alternative application was that the Crown should not be allowed to lead evidence from EA and DB of TM's alleged involvement with them, or from their brother DM as to what he had seen of that involvement.
As to the first of those two applications it seems clear to us that counts 18 and 19 were properly joined in the indictment with the remainder of the counts, in accordance with the spirit of rule 9 of the Indictment Rules 1971. Pursuant to section 5(3) of the Indictment Act 1915 the court could have ordered a separate trial of those counts, but in the circumstances it would have been surprising if the judge had decided to do so, because -
(1) the complainant in counts 18 and 19 was also the complainant in other counts, and it was clearly desirable to limit so far as possible the number of occasions when she and others would be required to testify.
(2) Although the primary evidence in relation to counts 18 and 19 was separate from the evidence in relation to other counts, the case against TM could not properly be understood without a good deal of reference to the family background. For example the jury would need to know some of that background in order to understand why the complainant did not turn to her parents for help.
(3) Juries are habitually required to consider different evidence in relation to different counts properly joined in the same indictment, and they seem to be able to undertake that task, so there was no reason other than the disagreeable nature of the charges to believe that the appellant would be prejudiced if counts 1 to 21 were all considered at the same time.
(4) Considerations of time and expense also militated in favour of a joint trial.
Hence we found no substance in the renewed application for leave to appeal in relation to ground 1.
The alternative application.
As to the alternative application, Mr Meeke originally assumed that the Crown would seek to lead the evidence from EA and DB on the basis that it satisfied the criteria for the admission of evidence of similar facts as set out by Lord Mackay L.C. in DPP v P (1991) 93 Cr App R 267. Mr Meeke submitted that it did not satisfy those criteria. But that was not the basis on which Mr Dunkels QC, for the Crown, relied. He contended that in order to understand the evidence of the complainant the jury would need to know the background. As indicated above, that would help to explain why she felt unable to seek help, and it could also help to explain why TM ever contemplated behaving in the way alleged, and why he felt able to behave in that way without fear of retribution from other members of the family. As Mr Dunkels put it in his skeleton argument which he prepared for the judge -
"The prosecution do seek to rely on the evidence of 'introduction incidents' as essential background to the case against TM. There is a progression by age, TM, aged 10, watches the sexual abuse of DB in 1964 and is 'taught' to sexually abuse EA in 1965/66 at the age of 11/12. SS is five years younger than EA and six years younger than TM. The Crown's case is that he has been 'groomed' into the family web of abuse. At the age of about 16, he sets about the serious sexual abuse of his sister then aged about 10, well aware that he is not her only abuser and well aware that she cannot complain of her treatment at his hands. The jury cannot comprehend this unless they have the full background facts."
The judge seems to have accepted that argument. His ruling was simply that the evidence was "both relevant and admissible", but when he came to sum up he required the jury to make only very limited use of the evidence which had been the subject matter of Mr Meeke's second application. The relevant passage in the summing-up reads -
"How should you approach the evidence against TM? The Crown's case against him is that his father encouraged him to have sex with his sisters EA and DB. In doing so, at his then young age, he was no more than the instrument of his father. No one blames him for those earlier incidents if they indeed took place, and that is why he has not been charged with them here. However, they are part and parcel of the background in this case. But the mere fact, if you accept that this occurred that he was encouraged to abuse his sisters EA and DB, does not mean that he did so with SS, or would have been more likely to have done so with her. The only relevance, if you are sure that there was an earlier involvement with his sisters, and to his knowledge of abuse...
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