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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cross, R. v [2012] EWCA Crim 2277 (18 October 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/2277.html Cite as: [2012] EWCA Crim 2277

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 October 2012

This is a case to which the Sexual Offences (Amendment) Act 1992 applies.  It is an offence to publish anything which is likely to lead (whether directly or indirectly) to members of the public identifying either complainant.
1. THE VICE PRESIDENT: The appellant was convicted of four counts of relatively simple sexual molestation of two sisters, both when they were under 16. They were the daughters of family friends. He was in the position of an unrelated "uncle". The trial had been a retrial. At an earlier trial he had been acquitted of some additional counts which affected the younger of the two girls, but relating to a time after she was 16, when the issues were different. At this trial he was convicted of two counts of kissing the two girls inappropriately, several years apart, on two occasions each. He was however acquitted by the jury of counts 3 to 8. Those related to the elder of the two girls. They charged different and, as alleged, escalating behaviour culminating in an allegation of what would have been quite a serious indecent assault in the course of an incident which gave rise to counts 6, 7 and 8.
2. On the appellant's behalf Miss Young has developed three grounds of appeal. In chronological or logical order they run as follows. First, she contends that the verdicts were inconsistent, and unsafe for that reason, because of the acquittals on counts 3 to 8. Second, she complains about the direction given by the judge in the course of his summing-up on the topic of cross-admissibility. Thirdly, she contends that the balance of the summing-up was unfair. For reasons which will become apparent, we propose to take the issue of cross-admissibility first.
3. There was no doubt that there had been some conversations between the two sisters about what they alleged. The chronology of the complaints emerging was this. The incidents involving the younger girl, of which the defendant was convicted, the two kissing incidents, had taken place, it was alleged, sometime around the end of the year 2000 or a little afterwards. The incidents concerning the older girl had taken place, it was alleged, around the year 2005 or 2006. In either the autumn of 2007 or the spring of 2008, the elder girl was by then an undergraduate at university. She voiced highly distressed complaints to two student friends. Her own evidence was that before this she had learned through a sometime boyfriend of her younger sister that the defendant had been "coming on" to the younger girl and when she made her complaint to her student friends, she did so in terms which incorporated her own conviction that her younger sister had been molested in the same way as she was saying she had been. Indeed, the evidence of one of her friends was that she had made it absolutely clear that her complaint was that both of them had been raped, although by the time the complaints came to officialdom later and at the trial, there was no suggestion that whatever had happened had got that far. That then was spring 2008 or thereabouts.
4. In May 2010, two years or more later, the elder girl had been to a child protection course at a voluntary organisation to which she belonged, as did her sister. That triggered a distressed outburst to her mother on her return. Shortly, the younger girl joined the group and the two of them together enunciated their complaints. It was the evidence of both of them that a relatively short time before that outburst to mother they had compared together their assertions about the defendant. There followed a report to the police, video interviews and in due course the trials.
5. The first contention of Miss Young is that the judge should not have permitted the jury to consider the evidence of either girl in the case of the other. There should have been, she contends, no cross-admissibility direction at all. That is because, she asserts, it was clear that the girls had spoken together.
6. So far as we can see, the argument about whether there should be a cross-admissibility direction before the judge did become somewhat embroiled in the terms of the bad character provisions of the Criminal Justice Act 2003. Of course it is true that in a cross-admissibility case of this kind anything which is proved to have happened to A is within the statutory definition of bad character so far as B is concerned - see section 112(2). But the practical realities of cross-admissibility considerations in a case like this are quite different from the typical bad character situation at a trial where there is a proven incident of past misbehaviour and the argument is about propensity. The ordinary bad character direction about propensity is irrelevant and unhelpful and it was not given in this case, entirely correctly. One can usually forget about bad character in these cases. Nothing in R v Chopra says otherwise.
7. The question which matters in a case of cross-admissibility is whether the fact that there are two or sometimes more sources of complaint makes it more probable that each is accurate. Generally, it will do so if, but only if, the sources are genuinely independent. If they are, then the fact that similar behaviour is being asserted by more than one person may very well make it more likely that it happened. In effect it will do so if the chance of coincidental false or inaccurate complaints can be rejected.
8. The judge concluded that the mere fact that the girls had spoken together did not necessarily rob what they had separately said of independence and he concluded that whether it did or not was properly a matter for the jury. Thus far, we entirely agree. He was entitled to leave the question of independence to the jury. There is nothing in the complaint that there should never have been a cross-admissibility direction. It was a matter for the judge but it was proper to give it.
9. The next and much more difficult question relates to the terms of the direction. This is what the judge said:

"So the question arises as to the circumstances in which you are permitted to consider the evidence as a whole. That is to say, to use the evidence of one of the complainants to support the evidence of the other complainant ...

That, nor anything that I am about to say now, detracts from the fact that you must examine each count separately and you must ask yourselves the question, 'Are we sure he did it?' in respect of each count separately. But, you are entitled in certain circumstances to take a cumulative approach in terms of one complainant supporting the evidence of another. Before you can take, before you are permitted by law to take such a cumulative approach, you have to consider this. You must be sure that these two girls have not put their heads together to make up false allegations against the defendant and you must be sure that they have not been influenced, deliberately or unintentionally, by each other's complaint. Unless you are sure that they have not put their heads together to make up false allegations and unless you are sure that they have not been influenced in the way in which I have described, then the evidence of one of them would obviously be wholly incapable of supporting the evidence of the other and you would be required to consider the evidence of each child in complete isolation from the evidence of the other child. However, if you were sure there had been no putting of heads together and if you are sure there had been no influencing such as the influencing I have mentioned, whether intentional or unintentional would not matter, then you will ask yourselves whether it is reasonably possible that these two children, independently making the similar allegations that you have heard, could both be lying or mistaken. If you think that is incredible, you may well be satisfied that they are telling the truth."

10. Pausing there, that is in effect a more or less textbook or conventional cross-admissibility direction. There is nothing remotely wrong with it. Importantly, it contains an illustration of the fact that a lack of independence may not be confined to a deliberate, malicious plan between two witnesses to join in deliberately false accusations against a particular person. The judge's repeated references to the possibility of being influenced, deliberately or unintentionally, by the other's complaint is an essential part of the warning which it is necessary to give a jury in most cases of this kind.
11. The difficulty arises from what the judge then went on to say. Within a few sentences of the passage which we have just cited he said this:

"The direction of law I have just given you is not about talking to each other. The direction of law I have just given to you is about getting together to make up wicked lies. Before you can use the evidence of [A] to support [B] and the evidence of [B] to support [A] you have got to be sure that they have not got together to make up lies. Not that they have not talked about it. Why should they not talk about it? You have to be sure that they have not got together, put their heads together to make up wicked lies about the defendant and, of course, that they have not been influenced, deliberately or unintentionally, by hearing of each other's complaints."

12. That was a gloss on the more standard terms of the cross-admissibility direction which the judge had given in the first extract. We want to make it clear that there is absolutely nothing wrong with explaining a direction to the jury in terms of the case that they have to decide. On the contrary, it is part of the judge's job. It is not the judge's job to read the jury an all purpose direction which might apply to other cases. It is his job to tell them how to approach this case properly according to law.
13. However, the gloss which the judge clearly in our view put upon his direction was to say to the jury in effect: "Here is my one sentence summary of what I have just said over half a page. The one sentence summary is, 'Is it wicked lies? Is it a joint malicious fabrication?'". It is true that the very last phrase of the last sentence which we have quoted did return by way of afterthought to the possibility of unintentional influence, one witness upon the other. But reading the summing-up at this point realistically, we have not the slightest doubt that that did not detract from the judge's essential summary which we have just described. That is the clearer when one reads the summing-up as a whole because at not less than six different points in the narrative of the evidence the judge returned to his question posed in the course of the direction which we have just quoted, "Is it true or is it wicked lies?"
14. If those were the only two possibilities which the evidence left available for the jury to consider, the judge would not only not be wrong thus to simplify the direction, but he would be right and it is Mr Taylor's careful submission on behalf of the Crown that that was this case. Of course as a matter of generality the lack of independence is by no means necessarily confined to a joint plan to invent malicious lies. There are many other possibilities that might be encountered. Sometimes B may be minded to support A because she fears that A might not be believed. So with minimal conversation between them B might invent a similar allegation affecting herself. But that would still be the result of influence and it would not be two independently recollected events. Likewise, in some other cases, B may be led unconsciously by learning what A is alleging to misconstrue ambivalent events which have affected her, such as touchings which might be sinister or might be innocent. There are many other examples, one of which is undoubtedly that B, hearing what A said happened to her, imagines and comes to believe that it has happened to her as well.
15. The present case did not involve either of the first two possibilities, but it is plain from what we have learned from both counsel that the case which was advanced on behalf of the defendant was not that this was a wicked conspiracy between these two girls. Just the reverse. The case argued on behalf of the defendant positively disclaimed the suggestion that they had put their heads together to lie. The case advanced on behalf of the defendant was that the elder girl no doubt believed what she said but had convinced herself of something that did not happen. If there was no evidential basis for that form of argument and if, as could conceivably happen, defence counsel was thereby simply avoiding the reality of having to put to the complainants an unpalatable suggestion that they had made it up, then the judge would be quite entitled to say: 'the case simply cannot be about that and you have, members of the jury, to grasp the nettle; it is either lies or it is true. It is either deliberate, joint fabrication or it is true.' So it does not depend entirely on the way counsel chooses to argue the case.
16. However, this was a case in which there was some, if limited, evidential basis for the argument which Miss Young was advancing on behalf of the defendant. There was fairly clear evidence that the two girls were very different in character. The younger girl was outgoing, well socialised, extrovert, confident. The elder was by comparison introverted, shy, said that she had suffered from depression, compared herself unfavourably with her younger sister, enjoyed a poor image of herself and had certainly experienced confusion among other things about her sexuality. She had lived a teenage childhood in which fantasy fiction played a large part. Some of this was obliquely referred to by the judge in the course of his summing-up of the girls' evidence at pages 44 and 45. It was also apparent that there was persuasive evidence which the jury might well find put them in doubt in relation to counts 6 to 8 that the girl's account of that incident was unlikely to be accurate. It was however highly circumstantial. Amongst other things, by way of example, it included a detailed purported recollection of the movements of the girl's parents at the time of the alleged incident when it emerged in the course of evidence that they had not been in the house at all. It appeared that she genuinely believed what she was saying.
17. For those reasons, this was a case in which not only counsel did in fact advance a case of unintentional or unwitting influence as between the two girls, particularly of the elder by the younger, but there was an evidential basis for it. From the summing-up however that possibility is, apart from the formal part of the direction which we first recited, entirely absent. By contrast, the jury was invited expressly time after time to consider whether there was joint fabrication or whether what was said was true.
18. We are driven to the conclusion that those were not the only possibilities in this case. If they had been Mr Taylor would be right and the judge would be right to have simplified the case for the jury in the way that he did. But in so simplifying it, we are afraid that he removed from the jury consideration of a legitimate contention which was being advanced on behalf of the defendant. Whether it had anything in it or not is an entirely different matter, but that is not for us to say. We are quite satisfied that the terms of the direction were, on the facts of this case, not commendably robust, but over robust.
19. That is enough to compel the conclusion that these verdicts are not safe. We record very briefly that we are wholly unimpressed by ground 1 relating to supposed inconsistency of verdicts. The jury was quite entitled to say, particularly after it had been put in doubt about counts 6 to 8 for good reason, "Well we are only satisfied up to a point and this is the point up to which we are satisfied." There is legion authority, as Miss Young rightly recognises in this court, to the effect that juries may frequently have to make decisions of that kind. This one was perfectly all right.
20. We are also unimpressed by ground 3, lack of balance in the summing-up, except to the extent that the form of it was to a degree predicted by the approach which the judge took to cross-admissibility and to the relationship between the two girls. Beyond that, there is comment but it is, so far as we can see, not illegitimate.
21. However, for the reasons which we have given, confined to the terms of the cross-admissibility direction, combined with the general approach which the judge invited the jury to take and which removed from them consideration of a very important part of the defendant's case, this appeal must be allowed and these convictions must be quashed.
22. MR TAYLOR: My Lord, I do not invite the court to consider a retrial in this case.
23. THE VICE PRESIDENT: No. Well, if we may say so Mr Taylor that is plainly right on the facts. It must remain uncertain. The girls must not think that they have been disbelieved here because they have not. We just do not know. But given the sentence which was passed and the fact that there had been an earlier trial, your decision, if we may say so, is entirely right.