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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 >> Saxon, R v [2016] EWCA Crim 598 (14 April 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/598.html Cite as: [2016] EWCA Crim 598

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 April 2016

1. LORD JUSTICE McCOMBE: On 24th July 2015 in the Crown Court at Luton, after a trial before His Honour Judge Kay QC and a jury, the appellant was convicted by majority verdicts of 10 to 2 of seven offences of sexual assault of a child contrary to section 7 of the Sexual Offences Act 2003. This was a second trial of the charges. At an earlier trial in 2014 before His Honour Judge Foster the jury had been unable to reach agreement.
2. On 8th September 2015, after the second trial, the appellant was sentenced by Judge Kay to four years' imprisonment on each count to be served concurrently with each other, giving rise to a total sentence of four years' imprisonment.
3. The appellant now appeals against his convictions by leave of the single judge. The appeal centres upon the decision of the judge to accede to the Crown's application to admit into evidence at the trial the video recorded interview with the police of the complainant, a girl whom we will call X, held on 29th August 2012. The judge so decided because X was found to be unfit to be a witness because of her mental condition and the decision was made by the judge pursuant to section 116 of the Criminal Justice Act 2003. In the course of making that decision the learned judge rejected the submission of the defence that the interview should not be admitted pursuant to the court's power under section 78 of the Police and Criminal Evidence Act 1984.
4. X was born on 9th November 1999. She is now therefore 16 years old. She was aged between 10 and 12 at the dates of the incidents alleged in the indictment.
5. The circumstances giving rise to the application to admit the evidence of the video recorded interview were as follows. The first trial at which X had given evidence over the live link and had been cross-examined before the first jury had been held in July 2014. The second trial was fixed to take place in the July of the following year, 2015.
6. On 30th June 2015 the Crown gave notice that the complainant X was unable to give evidence for the foreseeable future because of her admission to an adolescent psychiatric hospital. A statement was produced from a consultant psychiatrist stating that X had been admitted to the hospital on 22nd June 2015 with a reported history of suicidal ideation, feelings of hopelessness and poor sleep. Further, her body mass index was at the figure of 16, ie within the anorexic range. She had been admitted for the purposes of assessment and for management of potential suicide risk and eating problems. The doctor's statement said her admission was initially for six weeks although treatment could, it was said, take up to a year. The doctor strongly recommended that X should not attend court as this might increase the suicide risk and worsen her eating disorder.
7. By application, therefore, of 6th July 2015 the Crown applied to have the recorded interview admitted in evidence in the absence of X's presence as a witness.
8. The appellant is now 58 years old and seven years ago in 2007 he met X's mother. They began a relationship together and in the following year, 2008, X's mother left her husband (X's father) and she, X and X's brother moved into a new home.
9. In the interview in question, recorded as we have said on 29th August 2012, X related the events giving rise to the seven counts on the indictment. They can be summarised as follows. The complainant alleged that on many occasions over a period of approximately two years the appellant had touched her in a sexual way. Count 1, a specimen count, alleged that on a number of occasions he had squeezed her behind. Count 2 alleged that on one occasion he put his hands into her trousers and ran his hands down her buttock. Count 3 alleged that on two occasions at least he had rubbed her vagina over her clothing. Count 4 alleged that on one occasion he had repeatedly pushed his penis towards her clothed buttocks while playing a game. Count 5 alleged that on two occasions he touched her breasts while she was using a computer in his home. Count 6 alleged a single incident of the appellant touching her breasts while the mother was asleep on a sofa. Count 7 alleged a final incident on 25th July 2012 when the appellant was said to have rubbed her breasts and nipples.
10. The defence case was that the appellant had never touched the complainant in a sexual way at all. The complainant, said the appellant, hated him for causing difficulties between her parents and had fabricated the allegations in order to bring his relationship with the mother to an end.
11. The defence case, broadly so indicated, was known to the judge at the time of the application, from the record of the appellant's police interview and from what he had said in evidence at the first trial.
12. The judge heard the application on 9th July 2015 and ruled that the recorded interview should be admitted into evidence. We return a little later to the arguments presented to the court and to the judge's reasons for ruling as he did.
13. The trial proceeded and we can give a broad summary of the evidence given to put into context the arguments now raised on appeal. The evidence was rather more wide-ranging than the summary of the basic allegations which we have outlined already. The recorded interview of 2012 was played to the second jury who in accordance with the judge's ruling also had before them the transcript of X's cross-examination at the first trial and could therefore see the nature of the challenges that had been made to her account. To give an illustration of the type of evidence that X gave orally at the first trial, through the video recorded interview and in cross-examination, we can pick out some examples. In cross-examination at that first trial it had been put to X that she was a strong natured individual who would make her feelings known if something occurred which she had not wanted. She agreed with that suggestion to an extent, but had also said that she had to "hide it a lot". She agreed she had a strong temper but said it was only because of the appellant. She agreed with the suggestion that on the occasion giving rise to the final incident in count 7 she had asked the appellant to help her select an item as a present for her friend. She denied that the appellant had merely hugged her affectionately on that occasion. In summing it up she said what had happened to her felt like "dirt on her shoe" because she could not do anything about it. She said she felt sick and sometimes she felt she did not want to live any more. She said she never felt safe with the appellant being around and said in cross-examination at that first trial that she did not tell anyone about what had been happening because she thought that something worse might happen, she thought her mother would not believe her and that the appellant might hurt her. She said she felt trapped. She said she could not say anything for these reasons about what had been happening.
14. Importantly X's mother, whom we will from time to time refer to as "A", also gave evidence. That evidence related to the acrimonious circumstances of her separation from X's father and the hostility that the father had displayed towards the appellant. She also gave evidence of how X's allegations first came to be made and of meetings between her and the appellant and statements which she said the appellant had made to her on those occasions.
15. A's evidence can be summarised as follows. She described her relationship with the appellant. She answered questions about her ex-husband. She said he had been bitter about the break-up of their marriage and blamed everything on the appellant. He tried to poison the children against her and the appellant and had gone so far as to soil the appellant's garage door with urine and excrement. The complainant, said the mother, was close to her father but when the hostility began to tail off she began quite to like the appellant, said the mother. She had a strong character and was wilful. She could be violent, the mother accepted, and had hit and thrown things at her. When the complainant was approximately ten-and-a-half to 11 years old she began to be rude towards the appellant again. Her mother thought the appellant over-pandered to her and told him he should not tolerate her behaviour. She could not understand why the appellant put up with it. The complainant would not discuss why she was rude and violent towards the mother. She later told her mother it would have led to her disclosing what the appellant was doing and the end of her mother and the appellant's relationship.
16. The mother also gave evidence about how the allegations came to light. On 25th July, she said it was she herself who suggested the appellant help the complainant choose a present for a friend. The mother was in another room and could not see them. At some point she went in and found the complainant slumped on a table. She said: "What's the matter?" and the appellant said: "I don't know." The appellant seemed to want to get out of the premises quickly and left within 10 minutes. She then asked the complainant, she said, what is the matter. The complainant and said: "No, mum, I can't, you won't believe me." Eventually the complainant said: "It's Steve, he's been touching me." She looked really upset. She told her mother that he had just touched her breasts. Her mother said: "Are you sure?" To which she replied: "He's touched me between the legs" and said that when the appellant massaged her feet, which she liked, his hand went up her leg. The complainant's mother telephoned the appellant, who had said: "Oh my God" three times. She said he did not sound outraged and did not deny touching her. She told him to come to the house, which he did. He was shaking and sweating, she said. (That was of course denied by the appellant in his evidence.) The appellant spoke to the complainant and said: "I'm sorry if you think I've done something inappropriate or interpreted it in that way." He apologised. He did not ask her what he was supposed to have done. He asked for the complainant's forgiveness but she said no. The mother asked the appellant if the complainant was lying. His response was, "neither yes nor no". According to her he said: "In her eyes perhaps I've done it." She was upset that the appellant did not stand up and shout that he had not done it and they parted.
17. There was another meeting two days later she said on 27th July. The appellant denied touching the breast of the complainant. He said he had just been affectionate. When she asked him about his hand going up her leg and touching her vagina, he said: "I can see how it might have happened." He consistently apologised. At one stage when she asked: "Did you fiddle between her legs?" he confessed saying "I did it", but within minutes he retracted it.
18. On 29th July the appellant and the mother had met again. He seemed to be nervous, she said. When she asked if he had done it he broke down and evaded questions. She continued to ask. He put his head in his hands and said: "Yes, I did it." She said he was crying and shaking and said: "I thought she was asleep. It was an accident." He said he had been dozing and fiddled with her thinking it was the complainant's mother. He realised it was not her, took his hands away and thought "What I have I done?"
19. The following day, 30th July, said the mother, the complainant had returned from staying with her father and gave information to her mother about the other incidents that had occurred. On 2nd August 2012 she said she had spoken to the police for the first time. She denied telling the police that the appellant had not touched the complainant on any intimate area which had in fact been recorded on the first police report.
20. Those matters were very much in dispute at the trial between the mother in her evidence and the appellant, in which the appellant did not accept that he had made the admissions that the mother said he had.
21. In his own defence the appellant gave evidence. He said that the complainant was given to outbursts of uncontrolled violence and was very close to her father. He accepted that he had massaged her, as did others, but only at her request. If he did not do it she was inclined to throw a tantrum. His relationship with the mother was dominated by the complainant's behaviour who she said was disrespectful and defiant. He said she was a compelling liar. He denied all the allegations of sexual assault. The first thing that could possibly have been described as inappropriate touching was a hug that he gave the complainant on that last occasion on 25th July 2012. The complainant was on her computer, she was wearing a new dress, there were no apertures in that dress that one could get one's hand in, as the complainant had said he had done. The complainant called him over to help her find jewellery for a friend on the computer. He found a piece of jewellery that was interesting and then he returned to do some washing up. The complainant called him over again, he said. The complainant's mother came in and said something about the present. The complainant was agitated and said: "Shut up, go away". The complainant was, said the appellant, sweating. The appellant said again "Your mummy's just trying to help you" and hugged her in an emotional way for no more than a couple of seconds. He said he was feeling emotional at the time because of the death of his own mother. He should not have done it. The complainant appeared to be wriggling and appeared uncomfortable about being hugged. He stopped and went back to the dishes. He did not see her slumped on the table.
22. When the mother phoned him and alleged that he had pulled the complainant's top and interfered with her breasts, he told her that he had only gave her a hug and he should not have done it. He returned to the house. He was shocked. He was not sweating or shaking as the mother alleged. The complainant's mother had repeated the allegation. The appellant asked how he could have done it given what the complainant was wearing. The complainant's mother seemed to believe him and he did for that reason not get angry. He told the complainant that if he had done or said anything to cause upset or offence he was very sorry about it. When he met the mother two days later and she asked him about the touching of the complainant's bottom he did not admit it, but said he could see how it happened. He refused to admit something he had not done and they had therefore parted on that occasion on bad terms.
23. With regard to the incident on 29th July he said there had simply been an exchange of keys and a satellite navigation machine on the doorstep. The first time he had found out the allegations were more than tweaking of nipples or touching of a backside was on his arrest. He said he remembered the complainant coming round to his house to do homework but denied touching her in any appropriate way and he denied touching her during the game that the appellant had mentioned.
24. We turn to the application to admit the video recorded interview. The judge was invited to admit the evidence pursuant to section 116 of the 2003 Act. In its relevant part the section provides as follows:

"Cases where a witness is unavailable

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are—

...

(b) that the relevant person is unfit to be a witness because of his bodily or mental condition..."

25. Section 114(2) of the Act provides a non-exclusive list of matters to be borne in mind by the court in considering such applications:

"(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it."

26. Written arguments on the point were given to the judge and, most helpfully, we have been provided with copies of both counsel's arguments that were put before Judge Kay. For the Crown, it was urged that the doctor's statement adequately made out the primary case for admission of the evidence on the basis of the unfitness of X to attend as a witness. It was submitted that this was important evidence which was available in visual form through the recording. There was additional supporting evidence to be given from A, the mother, as to the appellant's alleged admissions. Questions as to the reliability of X's evidence could be put to the mother and other family members who it was anticipated would also give evidence.
27. The defence objection can be summarised in these terms. It was said it would be impossible for the appellant to have a fair trial if this recording was admitted. It was argued that the medical evidence was insufficiently detailed and further disclosure of medical records was required. It was emphasised there would (if the evidence be admitted) be no cross-examination of the most important witness. Moreover, Mr Long, who has presented the appellant's case throughout both at trial and here, urged the delay between the initial complaint being made by X to her mother on 25th July and the interview which took place over a month later on 29th August giving rise to the possibility of collusion between X and A. Mr Long this morning has said to us that he thinks perhaps he might have made more of that point, but from the written argument it seems to us that it must have been well in the learned judge's mind. Further, it was put in the argument that A had been present in the interview, even though she was to be a witness, in clear breach of the Ministry of Justice guidelines governing interviews of this type - the reason for the undesirability of that happening being clearly obvious.
28. The judge in his ruling referred to the statutory provisions and to the judgment of Hughes LJ (as he then was) in Riat [2012] EWCA Crim 1509, from which a number of extracts were set out for the judge's benefit in the written argument.
29. In his ruling, the judge found that the statutory condition for the admission of the evidence, namely the "unfitness" of the witness was satisfied. He considered that the doctor's statement established this and he did not need to see the underlying medical records, although he ordered their subsequent disclosure. He referred to the matters raised by Mr Long on behalf of the appellant as pointing to the potential unreliability of the evidence and to the argument of Miss Blackband for the Crown. We think it is clear that Mr Long may do himself disservice when he says he did not make enough of the potential unreliability of the evidence in the submissions he made to Judge Kay.
30. The judge turned to the question of the ability to test and assess the evidence. He noted that the jury would be able to see the witness, live as it were, in the recording and would have available the transcript of cross-examination at the first trial - the principal areas of dispute having been tested in that process. He acknowledged and took into account that this was not as good as seeing cross-examination conducted firsthand. He referred to the requirement of exclusion of the evidence under the Police and Criminal Evidence Act, section 78, in an appropriate case and his final conclusion he expressed in the following terms at page 5H to 6G in these terms:

"I have considered the submissions made. It involves a careful assessment of the importance of the evidence in the case, the risks of unreliability, and whether the reliability of the absent witness can safely be tested and assessed such that there can be a fair trial, so that the prejudicial effect does not outweigh the probative value. I have considered many of those points already in this judgment. It seems to me plainly that this is crucial evidence in the case, it is the evidence of the complainant. It is not the sole evidence in the case, because there is some evidence from the complainant's mother, and possibly some evidence by way of texts, but it is plainly the most significant evidence. As to unreliability, whether it can be tested - well, I have already dealt with the matter. There are indications going both ways and it seems to me that the testing of the evidence has already, to a large extent, taken place, and the fact that it is not going to be tested live in this trial can be dealt with in the course of the trial management, with appropriate warnings being given to a jury."

He referred to the reported authorities and the potential of the power to stop the case under section 125 of the Act. There is then a passage which is unfortunately inaudible on the recording and has not been transcribed. The judge continues:

"So, I have considered all the points, and it seems to me that the evidence should be admitted. There needs to be a transcript available of her cross-examination in the previous case, it should be made available, and there should be disclosure of medical records now, ASAP."

31. On the present appeal, Mr Long for the appellant submits that the judge should not have admitted the evidence. He takes a number of points. First, he notes the breach of the guidelines concerning the interviews brought about by the presence of the mother who could during the course of the interview, it is said, be seen cuddling, stroking and hugging X as she gave her account. He has emphasised the points made in paragraph 14 of his skeleton argument, which we have of course read before the hearing this morning, pointing to potential features of unreliability in the following terms. He said her video evidence cannot be shown to be reliable by independent confirmation by other evidence. The reliability of the interview is undermined by other evidence, among other things the first complaint, the admitted bias of the complainant against the appellant, the circumstances of the marriage breakdown, the unusual behaviour of the father, the potential motive to divide the mother from the defendant, the presence of the witness mother during the interview and the animus displayed by the mother towards the witness and the complainant's behaviour. He also relies on a passage from the judgment of Hughes LJ in Riat to the following effect in paragraph 3:

"From the point of view of a defendant, the loss of the ability to confront one's accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interests of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe."

32. Thirdly, Mr Long argues that the only potential corroborative evidence for the Crown was the mother's evidence as to the alleged admissions made by the appellant after the events came to light.
33. Fourthly, it is pointed out that the mother had said that at first she did not believe the allegations made and the first report to the police indeed had said that "no intimate areas" had been touched. Following that, as Mr Long has emphasised to us this morning, there had been an escalation of the allegations made by the time of the interview at the end of August 2012, giving rise, says Mr Long, to the inevitable suspicion that X and her mother had discussed the matter in some detail and prepared themselves to give a false account in interview.
34. Finally, it is noted that the police did not obtain a statement from X's father. He submits that might be a conscious decision to prevent the inclusion of evidence of someone who had demonstrated bias towards the appellant.
35. It is not submitted however that the judge ought at any stage have stopped the case at any point in the trial relying on section 125 of the Act on the basis that the evidence the complainant gave in the interview was unconvincing.
36. Since the matter was before the single judge, indeed less than a month ago, Mr Long has prepared an application for leave to appeal on the additional ground that the learned judge's summing-up with regard to this interview evidence was inadequate. The judge's summing-up on the point appears at page 12A of the transcript through to page 13, in the following terms:

"So I turn then to the - to the evidence. There is one thing I need to say which is - is about the evidence but it's also a direction and it's this: The evidence of Child A [the complainant X]; you've been told that she's unwell and she's unwell for the foreseeable future and so she is not here at this trial. So you haven't seen her give evidence other than over the interview and the video of that interview. That is a disadvantage to everybody, disadvantage to you; it's a disadvantage to the prosecution and it's a disadvantage to the defence.

When she was interviewed, the one time you have seen her being interviewed, she was, you may think, in a comfortable environment, with her mother present, holding her hand and giving her hugs. You know from the evidence that's contrary to Ministry of Justice guidelines except where perhaps it's unavoidable because a person won't give - won't speak without somebody being present. It was contrary to the guidelines because - not least because the mother was a witness; she'd already given a statement. And it's not, as you know, best practice.

You've read, and you can have with you, the questions (sic) she gave at the trial a year ago when the jury had to be discharged. You've read those questions and those answers; it's not the same of course as seeing the person take - promise to tell the truth in her case, and answer questions in what may be a less comfortable environment. So you haven't seen how she answered those questions, how she behaved when she answered. You've only got the words on the piece of paper. So you must, therefore, exercise caution because you haven't had the advantage of seeing that evidence in its best form. So you must exercise caution about it. That's not to say you can't believe it, that's a matter for you, but you must exercise - exercise caution before you believe it."

There is one further passage in the summing-up where the judge refers to the need for caution in relation to the video recorded evidence.

37. In his additional application Mr Long suggests there are a number of features that ought to have been further included in the summing-up. These are summarised at paragraph 16 of his very helpful skeleton argument. He submits that the jury should have been specifically directed about the following matters. First, the circumstances in which the statement was made. Secondly, how reliable the maker appears to be. Thirdly, how reliable the making of the statement appears to be. Fourthly, the amount of difficulty involved in challenging the statement in the absence of cross-examination. Fifthly, the reliability of the reporter. Sixthly, the extent to which the hearsay is supported by or is inconsistent with other evidence. Seventhly, the scope for error or existence of a reason to be untruthful. Eighthly, the jury were entitled, says Mr Long, to the assistance of such directions to assist them correctly to consider the hearsay evidence.
38. Mr Long submits that the summing-up here was defective in pointing to the potential for disadvantage to both parties caused by the absence of the witness. In the passage we have just read the judge refers to the disadvantages for both the Crown and for the defence. Mr Long submits that the judge was under an obligation to recite the disadvantage in the defence in particular in being unable to present a live cross-examination. He argues that the judge seemed to justify the breach of the Ministry guidelines constituted by the presence at the interview rather than setting out expressly the consequences of a breach. He says this ought to have been more emphasised. It is submitted that the judge should have directed the jury as to the purpose of the existence of the guideline and, as we say, the potential consequences of breach. It should have been pointed out that the mother was a person with whom X had been living in the weeks between the complaint and the interview giving opportunity for collusion.
39. We have set out those arguments in full. Mr Long has repeated them this morning and has very helpfully expanded upon them in his submissions.
40. Having considered all that and the learned judge's ruling on the question of the admission of the interview evidence, we do not consider that the judge was wrong to admit it into evidence. The recording enabled the jury to see the witness give her evidence in chief in the same way as would have occurred had she attended the trial. They were able to judge in that interview her demeanour and the manner in which she answered the questions. They were also able to see the presence of the mother at the interview and see how, if at all, that affected the course of the questioning. Clearly the chief deficiency in the trial process from the point of view of the trial itself was the absence of an ability to conduct a live cross-examination. The judge was clearly well aware of that, as were all parties. However, we consider that the disadvantage was much reduced by the jury having had the transcript of the cross-examination at the first trial. The features of the unreliability potentially in X's account and the reasons why she might have wished to fabricate her allegations were as open to be made to the court as they had been to the previous jury. An important feature of the case too was the evidence of the mother herself, as the judge knew was to be given. The cogency and credibility of her account was vital to the Crown's case, particularly in view of the alleged admissions made to her by the appellant. There was every opportunity to challenge that evidence and had the jury been dissatisfied with what she had said it would have had a significantly adverse impact on the Crown case.
41. The judge was very clearly alive to the features impacting upon X's evidence when he considered the application and in our judgment he reached a proper conclusion after full consideration of the material matters.
42. Turning to the summing-up, we also found that the judge's summing-up on this issue adequately covered the ground. Clearly more could have been added along the lines urged by Mr Long in his paragraph 16. In our view the essential features of the direction were present in telling the jury they had to exercise particular caution (which he did more than once) before accepting evidence that had been given in this way. He reminded them that while they had read and would have had with them the transcript of the cross-examination at the first trial, this was not the same thing at all as seeing the witness promise to tell the truth on oath and seeing how such a witness answered the questions in cross-examination. He also reminded the jury of the breach of the guidelines in permitting the mother to be present in the interview.
43. For these reasons we do not consider the appellant's convictions are unsafe, either on the original grounds or on the basis of the material advanced in the new application to add the further ground of appeal that has been presented most recently in an attractive fashion. We have considered that ground too on its merits. However, having done so we refuse leave to appeal on the additional ground and dismiss the appeal.