Stephen Hamilton v The Queen
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWCA Crim 1555 |
| Docket Number | Case No: 2013 03235-B2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 July 2014 |
[2014] EWCA Crim 1555
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mrs Justice Patterson D.B.E.
and
Sir Richard Henriques
(sitting as a Judge of the Court of Appeal)
Case No: 2013 03235-B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTEER
His Honour Judge Mansell Q.C.
T20127444
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Tania Griffiths Q.C. for the Appellant
Miss Louise Blackwell Q.C. for the Crown
Hearing date : 11 June 2014
Sir Brian Leveson P:
On 22nd May 2013 in the Crown Court sitting at Manchester before His Honour Judge Mansell QC and a jury, the applicant was convicted unanimously of cruelty by neglect to a person under 16. On the following day, he was also convicted (in each case by majority verdict) of three specimen counts of cruelty to a person under 16, six specimen counts of rape of a child under 13 and three specimen counts of sexual assault of a child under 13. A count of administering a noxious substance had been withdrawn at the close of the prosecution case.
On 20 June 2013, the applicant was sentenced to concurrent terms of 5 years imprisonment for the cruelty offences, 18 years imprisonment for the rape offences and 12 years imprisonment for the sexual assault offences, making 18 years imprisonment in all. Appropriate notification and safeguarding consequences flowed from the sentence. His application for leave to appeal against conviction and sentence has been referred to the full court by the Registrar. The sole child concerned has the protection of the Sexual Offences (Amendment) Act 1992 and s. 39 of the Children and Young Persons Act 1933 and her identity must be anonymised accordingly.
The Facts
The facts may be summarised in this way. The complainant ('X') is the applicant's daughter. On 7 November 2011, when she was 15 years of age, she made a complaint that her father had sexually abused her over a period of 2–2 1/2 years, from when she was 10 until aged 12/13 years. She was twice interviewed and recorded following the process of achieving best evidence. She said the abuse "happened a lot, it was almost a daily thing for a while" and happened more in the winter months. It took place at the family home in Manchester. Sometimes it happened when she was off school, poorly. Sometimes her mother and her sister would be in the house. It happened either in the evening after her father, a General Practitioner, returned from work or whilst he was off work ill (he was off work with stress and depression for some time).
X described how he would take her clothes off and lie on top of her. He would take his clothes off and would feel different parts of her body. He would use his hands and run them down her neck and her chest. His head would follow his hands and he would bite her chest. He would take his penis out and put it inside her (represented by six specimen counts). At times he would also put his hands around her neck and tighten them whilst he was still inside her. He would say "You deserve to fucking die" (three specimen counts). Sometimes, she thought that she would pass out for a few seconds. There was, she said, often an element of strangulation during the intercourse, although it did not happen as often as the rapes.
There would also be occasions, whilst having a shower or a bath, when he would come in and put his hand on her forehead and put her head back. He would keep one hand on her head whilst using the other to digitally penetrate her vagina. He would then leave as if nothing had happened (a further three specimen counts). The abuse ended shortly before her father moved out in February 2009, her parents divorcing during the following month. He told her, she said, that if ever she told anyone he would prove she was mentally ill.
At the trial X's mother and sister gave evidence. Her mother said that her husband and X had an odd relationship. One minute he would be very loving, another he would be crying, another angry. They would have intellectual debates but he would have to win them. Her husband would goad the complainant into fighting him. They would fight and this would continue upstairs. She would stay with her other daughter. She heard a lot of banging from the bedroom and then silence. The arguments seemed horrendous. Her husband was violent to X and would goad her saying "Hit me… Hit me …". He would slap her and hold her off and hurt her in a sort of self-defence way. The sister said that her father and X were very clever people. The arguments would start with shouting and then become quite physical. X (who had an eating disorder and would often be ill) would often barricade herself in her room.
The defence case was simple. The applicant gave evidence and said all the allegations were totally untrue: no physical or sexual abuse happened at all. He accepted that on occasions he had restrained his daughter when she was attacking him or trashing her bedroom, as indeed the mother had restrained her on occasions. He, as the father, had intervened to stop her hurting her mother. After he left the house, X did on occasions attack her mother. The allegations, the defence said, were likely to be the product of her mental illness, pre-trial therapy and suggestion i.e. that her mental illness was the cause of the allegations, rather than the defendant's alleged actions being the cause of the mental illness. Effectively, it was the defence case that the X's mental illness was such that her evidence could not properly be relied upon. However the possibility of malicious allegations could not be excluded especially given their emergence in the midst of matrimonial breakdown. We will return to other aspects of the defence later but should add that the applicant called character witnesses who all spoke as to his good qualities: these were the practice manager at the Medical Centre, an old school friend, a patient of his and Dorothy the spouse of a patient.
In the circumstances, the issues for the jury were whether the complainant was telling the truth or whether she was making up malicious allegations against her father; and whether she gave a reliable, accurate account of alleged physical and sexual abuse. In that context her mental health was a significant issue in the trial; that background needs shortly to be summarised.
It was in the autumn of 2007 that X started to show signs of illness; it is worthy of note that the first counts of the indictment covered the latter part of that year. The applicant took her to the doctors and a paediatric specialist, Dr Sankar, to conduct a variety of tests to rule out a physical cause for her symptoms. The applicant also showed an apparent enthusiasm to take her for Child and Adolescent Mental Health Service ("CAMHS") appointments so that a psychiatrist, Dr Eminson, could assess her. In the event, she did not attend. Later, when she was due to attend hospital as an in-patient for tests to exclude a physical cause, the doctors there recommended a referral to CAMHS.
However on each of the three occasions the applicant cancelled the appointments citing unwillingness or refusal to attend on the part of his daughter and/or her mother. The prosecution said the applicant's reasons for cancelling the appointments were to prevent X from reporting the sexual abuse identified in the early part of the indictment. The applicant treated his daughter with anti-depressants including citalopram.
Although the drug citalopram was at all times unlicensed for use by children under 18, at trial the weight of the evidence suggested that citalopram was appropriate to use for children and, indeed, became the treatment of choice for the complainant whilst she was an in-patient at hospital. Further, whilst there, the prescription of citalopram to the complainant far exceeded the modest amounts that the applicant had arranged for her to have and exceeded the recommended safe dose for children. No criticism was made of that fact, it being accepted that the "recommended usage" was effectively set by the drug companies to avoid litigation rather than accepted medical practice.
The applicant said that he started giving his daughter escitlopram, his wife's tablets, with his wife's knowledge, in February/March 2008. X's evidence, not accepted by her mother, was that her mother had sometimes given her the medication crushed up in milk. In any event, provision of this medication was continued for some months without the applicant informing any other doctor who had seen her and without recording anything on her medical records (until after returning from a holiday in Egypt in July 2008). This treatment of X was the subject of the count alleging administration of a noxious substance in respect of which Judge Mansell acceded to a submission of no case to answer.
As for the counselling, in evidence, the mother said she did not know who Dr Sankar was, knew nothing about a psychological or psychiatric assessment and knew nothing of the CAMHS appointments. The applicant, she said, took charge of X's health. On the other hand, he said that his wife was aware of the various appointments but she did not want to engage with CAMHS. Her unwillingness to engage with CAMHSs was one of the main reasons he prescribed his daughter antidepressants. The issue of the applicant's cruelty by neglect in failing to obtain appropriate medical treatment (in respect of which the judge had rejected a submission of no case to answer) was represented by the only count upon which the jury returned a unanimous guilty...
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