R v W and M
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 27 July 2010 |
| Neutral Citation | [2010] EWCA Crim 1926 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 July 2010 |
| Docket Number | No: 2010/3403/D2 & 2010/3633/D2 |
[2010] EWCA Crim 1926
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Vice President
(Lord Justice Hughes)
Mrs Justice Rafferty DBE
Mr Justice Maddison
No: 2010/3403/D2 & 2010/3633/D2
Miss L Strudwick appeared on behalf of W
Miss C Patel appeared on behalf of M
Miss R Cottage appeared on behalf of the Crown
: The legal issue in these applications for leave to appeal is a strictly limited one. It is whether or not the evidence led by the Crown as a whole established a case upon which it was properly open to the jury to conclude that the offences charged were proved to the criminal standard of proof.
It is fundamental to the system of jury trial which we operate in this country that it is the jury and not the judge which makes up its mind which evidence it accepts and which it does not. The judge has vital duties relating to the management of the case, the admissibility of evidence and rulings upon questions of law where they arise. But when it comes to the assessment of evidence the judge's role is confined, and it should be confined, to deciding, if there is dispute about it, whether the evidence if taken at its highest is evidence upon which a jury could properly convict - see R v Galbraith [1981] 73 Cr.App.R 124. If that question arises at the trial for decision, the judge's ruling on it is a matter of law and can accordingly be challenged on appeal, if it is contended that he was wrong. If that happens, the role of this court is as confined as that of the judge. Our task is to say whether or not the judge was wrong on the grounds that the evidence, taken at its highest, was such that no jury could properly be sure that the offence had been committed. The words we have underlined are of fundamental importance. Whether the evidence ought in fact to be accepted at its highest, or whether it should be rejected altogether, or whether the correct position is somewhere in between those two poles, are all matters for the jury to decide and not the judge. On those questions neither the judge's view nor, for that matter, ours are of any significance at all. Of course trial judges, and for that matter judges who sit here, cannot avoid forming some at least tentative opinions, but it is their and our plain duty to put them firmly to one side.
The present case is unusual. It will have attracted a measure of public attention. For that reason it is important that anybody considering it, and especially anybody tempted to comment upon it, should understand the confines of the law within which courts are obliged to operate.
The jury in this case found itself enquiring at the Crown Court into the exact details of what physically had occurred when three children of primary school age were playing together outside during half term. The two defendants, both boys, were children of 10 years of age. There was no suggestion that either of them habitually misbehaved. In the case of one of them there was a glowing report from his school which demonstrated him to be a model pupil, as well as quite lacking in any aggression or sexualised behaviour.
The age of these children is significant because until a child is 10 he cannot in law be guilty of any criminal offence. If he or she misbehaves under that age what is done may lead to a variety of remedial actions of one kind or another, but it cannot result in a criminal trial. These children were 10 years and three months and 10 years and six months old respectively.
The complaint of the prosecution was that in the course of playing together and with a little girl neighbour of eight, all those three children had looked at each other's private parts, but then that the boys had gone on to put their penises into the girl's vulva and anus, or at least had tried to do so. There was no sign of any physical injury to the girl, but all that tells anyone is that if there has been any degree of penetration it has not gone beyond the hymen. The absence of physical injury tells nobody anything at all about the vital question which is whether there has been a lesser or indeed minimal element of penetration of the labia or of the anus. The law is and has been for as long as anyone can remember, and for obvious reasons, that it is impossible to distinguish between degrees of penetration and, accordingly, any degree of penetration whether of the vulva or the anus suffices, however minimal it may be.
Next, the Sexual Offences Act 2003 made a change by Parliament in the definition of sexual offences. Where the child is under 13 years of age any act of penetration of the vulva or the anus is now defined as rape - see section 5(1). This is often misunderstood because if one is considering an act with a person over 13, rape involves proof that that person did not consent to the act. However, a child under the age of 13 is unable to consent in law, whether he or she in fact agrees to what happens or not. It is easy enough to see why this is what the statute says if one contemplates the case of an adult abuser and a child under 13. But the Act of Parliament does not confine the rule to a case where the defendant is an adult and it applies equally to young defendants, even to those who are only a few months past their tenth birthday. It follows that it was technically open to the Crown Prosecution Service to charge these two 10-year-old defendants with rape because it was alleged that one of them had put his penis (however minimally) into the girl's vulva and that the other had put his penis (however minimally) into her anus. Once they had been thus charged the inescapable duty of the courts is to try them.
In this case, accordingly, the two boys were charged with joint offences of rape and they were alternatively charged with joint offences of attempted rape. Those latter alternatives were clearly added to the indictment by the prosecution in case there should be doubt about whether any degree of penetration at all had actually occurred. Given the absence of any physical evidence and the inevitable difficulty for any child of this age in knowing how far any physical contact had gone, doubt on this topic was plainly foreseeable and foreseen. In the event, the jury acquitted the boys unanimously of the offence of rape. However, after further retirement they reached majority verdicts of guilty of attempted rape in each case.
This appeal is now brought by both boys on the principal ground that whilst the case necessarily depended almost entirely on the evidence of the eight-year-old girl, she was said to have changed her account significantly at the trial. The question for us reduces itself to this: “Was the judge entitled to leave to the jury the question of whether she truly had altered her account?”
It follows from what we have said about the legal framework that the jury would convict if it was sure that there had been an attempt at penetration, however minimal, and whatever the little girl's attitude towards what was happening was.
The evidence
On a Tuesday, early in the afternoon, during half term, the little girl, who we will call A, was playing outside her home. So too were the two little boys who lived nearby. Their respective mothers knew in general terms where they were. At least one of them was in touch by text messaging and there was no suggestion that any of the children was being in any way neglected. The boys, on the evidence, were playing at jumping over a thorn bush. A, on any view, joined them there. She was at the time with a younger boy who was only six, whom we will call C. Her younger sister was somewhere outside also but not in their company. That meant a group of four: the girl, C and the two boys. They moved around together. Their exact movements remain less than crystal clear, but this much is plain. They went into a block of flats where they all knew one or more children whose families lived there and in that block of flats they spent a little time in the general stairwell area and a little time in a bin shed either downstairs or outside at the back. After they left the bin shed they went outside again and into some parkland or grassy area. When A's younger sister came home their mother went to look for the girl. En route she met C (by now separated from the other three), who told her that the boys were doing something really bad to A and hurting her. Mother then met the group of three (that is to say the two boys and A) returning together. At that point A was showing no sign of distress and had not separated herself from the two boys. Mother asked what they had been doing and all of them returned an answer familiar to any parent, namely “nothing”.
Having taken A home, however, mother was sufficiently concerned to notice that she appeared a little quiet. She asked her what had happened and A then told her that the boys had taken down her pants and “had sex with her”. When mother asked what she meant by that, A said that they had put their willies inside her.
By the time of the trial there was no dispute that in the block of flats at the two places which we have mentioned and then again on the grassy area the two boy defendants and the little girl had all had their underwear down and all had looked at each other's private parts.
In the event neither of the boys gave evidence. Given their ages the judge inevitably directed the jury that their absence from the witness box could not begin to support the case against them. It was, as he put it, “completely neutral”. The case which was advanced on behalf of both of them was that A had pulled...
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