R v Steven Cottrell ; R v Joseph Fletcher
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 31 July 2007 |
| Neutral Citation | [2007] EWCA Crim 2016 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2006/03431/B5 (1) |
| Date | 31 July 2007 |
[2007] EWCA Crim 2016
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT (1)
His Honour Judge Scott-Gall
ON APPEAL FROM DERBY CROWN COURT (2)
His Honour Judge Burgess
Royal Courts of Justice
Strand, London, WC2A 2LL
the President of the Queen's Bench Division
Mr Justice Golding and
Mr Justice Beatson
Case No: 2006/03431/B5 (1)
2007/01084 C1 (2)
Joel Bennathan QC for the Appellant
Michael Auty for the Crown
The Chairman of the Criminal Cases Commission
D Wallbank for the Director of Revenue and Customs Prosecution
Michael Aspinall for the Applicant
Sally Howes QC for the Crown
Hearing dates: 25/26/27 April, 22 June, and 23 July 2007
Judgement
President of the Queen's Bench Division
Steven Cottrell was convicted at Lewes Crown Court on 8th August 2003 before His Honour Judge Scott-Gall and a jury of two counts of indecent assault with a female aged under 16 years. Joseph Fletcher was convicted at Derby Crown Court on 24 th October 2003 before His Honour Judge Burgess and a jury of seven counts of indecent assault on two females aged under 16 years.
Fletcher appeals against conviction (and sentence) following a Reference to the Court by the Criminal Cases Review Commission (the Commission). Cottrell seeks leave to appeal against conviction nearly three years out of time. Fletcher's appeal and Cottrell's application for an extension of time and leave to appeal are both consequent on the decision of the House of Lords in R v J [2005] 1 AC 562. Factually the two cases are unconnected, but they raise difficult and troublesome common features of principle. Accordingly they were heard together, and judgment was reserved.
While the judgment was in the course of preparation it became apparent that our decision might impinge on the responsibilities and practice of the Commission. Our concern was with the decision in R(Director of Revenue and Customs Prosecution) v Criminal Cases Review Commission) [2007] 1 CAR 384. The Divisional Court held that the Commission “was under no obligation to have regard to, still less to implement” the practice of this court in applications to extend time in “change of law cases”. Paragraph 14 of the Commissions' most recent policy memorandum reflected this judgment. The matter was listed for mention 22 June. The Commission was notified, but was not represented by counsel. Its chairman, Professor Graham Zellick, attended, and in response to an invitation by the court, made a number of observations. In the light of what he said, the court invited the parties to the appeal and the Commission to advance argument on the broad issue of concern to the court. The court made clear that, although the Commission was not formally a party to the appeal and the application, it considered it important for the Commission to be given an opportunity to make submissions. The Commission made written submissions, adding that it had decided not to instruct counsel, and repeating the submissions before the Divisional Court. When the matter came before us on 23 July, Professor Zellick again attended, briefly amplified the Commission's written submissions, and responded to questions by members of the court. By that date we were also provided with written submission on behalf of the Director of Revenue and Customs, and Liberty, and further written submissions from counsel for Cottrell and Fletcher. We shall address what we shall summarise as the change of law issues later in the judgment.
The Facts – Steven Cottrell
At all relevant times Steven Cottrell was a serving police officer. In late 1999, NB a girl born in February 1984, started a short period of work experience with the police force. She complained that on an occasion when she was alone with the applicant in his patrol car, he touched her breasts. Thereafter, between November 1999 and the end of the year, he had consensual sexual intercourse with her. She told him she was 15 years old.
During 2002 the applicant was arrested and charged with sexual allegations involving two other girls. In the course of their investigations, the police interviewed NB.
By the time the offences against NB had come to light, it was not possible for the applicant to be charged with offences of unlawful sexual intercourse. More than twelve months had elapsed since the last act of intercourse. Accordingly, in accordance with common practice, the applicant was charged with and faced trial for indecent assault.
At trial, the applicant admitted having sexual intercourse with NB. His case was that she told him that she was sixteen years old. In his evidence he described the development of the relationship between them. On occasions she sat in the back of his police car. He learned that she was still at school, and keen to join the police service. In answer to a direct question, she told him that she was 16 years old.
He described an occasion when she was in the front office learning about the system of instructions to police officers on the radio, and he passed her a note. He could not recall exactly what it said. He denied her allegation that it read, “can I lick you?” It was more likely to have been a comment on her inefficiency on the radio. He denied the complaint by NB, that when they were alone in the car, before a full sexual relationship began, he reached across and touched her breasts. He denied touching her in an intimate way at all before she was sixteen years old.
After her period of work experience was concluded, he told that she could contact him, or another officer, if she needed help with her application form. She found out his mobile telephone number, and indeed his home telephone number, and she invited him to her birthday party in early 2000, which he assumed was her seventeenth birthday. He told her that he would be unlikely to attend, but would like to take her out for a belated drink. Arrangements were made for him to do so. That evening they had a couple of drinks, kissed and he took her home. A matter of days later they entered into a more physical relationship and during a two week period they had sexual intercourse on three or four occasions at his home.
He was then thirty four years old. He became worried about the age difference between them. She wanted to move in with him, and was talking about marriage and children. She gave him a book with handwritten poems and a number of gifts. By then, however, he was already developing strong feelings for his future wife, and so he ended the relationship. NB did not take it very well.
The sexual relationship between NB and the applicant was not in dispute. His case was that she was, and that he honestly believed that she was, sixteen years old at the time.
After an impeccable summing up, the applicant was convicted on two counts of indecent assault based on the two occasions when NB reported that sexual intercourse had taken place. The jury was unable to agree on the separate count of indecent assault arising from the allegation that the applicant had touched NB's breasts in the police car. The verdicts meant that the jury accepted that the sexual relationship occurred when NB was fifteen years old, and the applicant knew it. It was sensibly decided that no public purpose could be served in pursuing the count of indecent assault on which the jury were unable to agree. A not guilty verdict was entered under section 17 of the Criminal Justice Act 1967.
The applicant was sentenced to six months imprisonment on each count. Appropriate notification and disqualification orders were made.
No application was made for leave to appeal either conviction or sentence. After the decision of the House of Lords in R v J, the case was referred to the Commission. After dealing with, and in effect rejecting a number of extraneous complaints, the Commission concluded that in view of the decision there was a “real possibility” that the convictions would be “overturned” if they were referred to the Court of Appeal. However there were no exceptional circumstances to cause the Commission to depart from the general practice that the case would not be referred to the court by the Commission while it remained open to the applicant to apply to the court for leave to appeal out of time. Hence the present application.
The Facts – Joseph Fletcher
We can take the summary of the facts from the Reference itself.
The prosecution case was that between about May 2000 and May 2001, the appellant, then 65 years old, and living alone, encouraged teenage girls with whom he came acquainted through his granddaughter, to spend time at his home. The temptation or inducement was alcohol and cigarettes. During March 2001, one of the girls, SB, was raped. The appellant was charged in May 2001. Four other girls were indecently assaulted by inappropriate touching or participation in number of different sexual activities with the appellant.
The defence case was that all the allegations were fabricated. The appellant was no longer interested in sex. He had never had sexual contact with any of the girls. He allowed them to come to his house and he gave them cigarettes, but that was in return for housework they did for him. He did not give them alcohol, although at times they helped themselves to small amounts of alcohol from his fridge.
The original indictment included ten counts, count one alleging rape of SB. The first trial came to an end when the appellant dismissed his legal representatives after he had concluded his evidence. The second trial concluded...
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