Case No:  98/06635/X4
Neutral Citation Number: [1999] EWCA Crim 2274
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 4th November 1999

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE OWEN
and 
MR JUSTICE DOUGLAS BROWN
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REGINA
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M.B.

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Handed-down judgment of Smith Bernal Reporting Ltd
180 Fleet Street, London EC4A 2HG
Tel No:  0171 421 4040  Fax No:  0171 831 8838
(Official Shorthand Writers to the Court)
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MR DAVID HOLBORN appeared on behalf of the Appellant
MR PETER WALSH appeared on behalf of the Crown

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JUDGMENT

Lord Justice Henry:
	This is the judgment of the Court.  On 26th June 1998 in the Central Criminal Court before His Honour Judge Hardy, the appellant was convicted on three counts of rape on his quasi-stepdaughter, ‘S’, and two counts of unlawful sexual intercourse with a girl under 16 on her schoolfriend ‘D’.  The victims were 14 and 15 at the time.  He was sentenced to a total of five years in all for these offences.  He now appeals against conviction with the leave of the Single Judge.  The facts appear sufficiently from the consideration of the two grounds of appeal on which we have focused.

	Before Mr B was charged, when he was being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, he was asked whether he could think of any motive for the girls making up these allegations against him, and he said that he could not.  In her evidence at trial, S gave an answer to that question.  She said she hated him, she did not like him living with her mother, he had come between her and her mother, with the result that her mother was not putting her first, which she should do.  She had entered the bedroom whilst the appellant and her mother were having sexual intercourse, and had called her mother a slag and a tart, because she did not like the fact that there was a sexual relationship between them.  So on her evidence, her jealousy and hatred of him was her motive.  And in his evidence in chief, the appellant did say that he thought that S was jealous:
	"She didn’t like [J] and I being in a relationship ..."

	The judge in summing up sought to apply Section 34 of the Criminal Justice and Public Order Act, 1994 to this situation.  That Section, so far as is relevant reads:
	"34-(1)	Where in any proceedings against a person for an offence, evidence is given that the accused -
			(a)	at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings ...
		being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned ... sub-section (2) below applies.
		
	(2)	Where this sub-section applies -
		...
			(d)	the court or jury, in determining whether the accused is guilty of the offence charged
		may draw such inferences from the failure as appear proper."

	The judge’s direction on this matter was as follows:
	"Members of the jury ... the defendant now [in evidence at the trial] for the first time was mentioning the issue of jealousy as the motive which, of course, he had not mentioned before.  He admits that he did not mention it [in his interview] and the prosecution are saying, in the circumstances, when he was questioned in October he could reasonably have been expected to mention it then if it were true.
	
	The way to approach it, members of the jury, is if you are sure he did fail to mention it then you have got to decide, in the circumstances, if it was a factor he could reasonably have been expected to mention then, because, of course, the police say that they asked him ... whether there was any motive for these allegations being made.  Failure to mention such a factor cannot on its own prove guilt, of course, but depending on the circumstances you may hold it against him when deciding whether he is guilty.  That is to say, take it into account as some additional support for the prosecution case.  You are not bound to do so, it is for you to decide whether in all the circumstances it is fair to do so."

	Mr Holborn, for the appellant, initially submitted that the question, which he characterised as an invitation to speculate on the mental processes of another, was a question that should never have been asked, in that it reversed the burden of proof.

	We cannot accept that the question should not be asked.  It seems to us perfectly sensible and acceptable for investigators to ask such a question - because if the interviewee were to rely in his defence on the complainant having a malicious motive, such as a feud, clearly the sooner that the alleged feud is investigated the better.  If there was some motive for the complainant to make a false accusation, then it is in everyone’s interest for that fact to be discovered early in the proceedings.

	Next Mr Holborn relied on the case of R -v- Nickolson [1999] Crim LR 61.  There the appellant in evidence was asked if he could think of any way in which his semen might have found its way onto the complainant’s night-dress.  He offered an explanation as to how this might have happened.  The prosecution pointed out that he had not put that explanation forward at interview, and invited the jury to draw an inference adverse to the appellant from that failure.  The judge directed them that they might do so if they thought it right.  There the Court held that the explanation could not be described as:
	"any fact relied on in his defence ....  In the present case the appellant had not asserted as a fact that the seminal staining was due to the complainant visiting the lavatory, it was merely proffered as an explanation, being more in the nature of a theory, a possibility or a speculation." (emphasis added)

So, submits Mr Holborn, this appellant was merely being asked to speculate, and was not being asked a question as to any fact relied on in his defence.  As Professor Birch’s comment on Nickolson in the Criminal Law Review (see above) made clear, that is not a complete answer.  If the accused did not know that the complainant was jealous of his relationship with her mother, then clearly he could not reasonably have been expected to mention that “fact” at interview.  If on the other hand he did know and that knowledge was based on some specific incident between them, such as a heated argument over discipline, then such a motive would be based on fact, and the interviewee could reasonably be expected to mention such fact in interview, and to rely on it in his defence.

	Here we are told that there was no attempt to explore with the appellant when it was that he first realised that his step-daughter might have a motive of jealousy and hatred.  He clearly could not reasonably have been expected to mention the “fact” at interview if he did not know how the complainant felt about him at the time.  If on the other hand it could be shown that the interviewee then knew that the complainant bore him a grudge caused by a difference between them, then he could reasonably be expected to mention the grudge and the causative event.  But that would entail the prosecution establishing that the appellant knew of the way that his step-daughter felt about him at the time of the interview, and that they did not do in this case.  They could not therefore show that his answer was not mere speculation, rather than a fact relied on in his defence.  Therefore in our judgment the jury should have been positively directed that no adverse inference should be drawn from his failure to come forward with that explanation in interview - see R -v- McGarry [1999] 1 Cr App R 377:
	"When a judge had concluded that the requirements of Section 34 of the 1994 Act had not been satisfied, and that therefore it was not open to him to leave the possibility of drawing adverse inferences to the jury, it was incumbent on him positively to direct them that they must not in any way hold against the accused his failure to answer questions;  that unless the jury receive such a direction they would be left without any guidance as to how to regard the accused’s refusal to answer which might be seriously prejudicial;  and that accordingly the judge’s direction was wrong ..."

That was not done here, and accordingly the principal ground of appeal is made out.

	There is a second, linked ground.  As is well known, Section 32(1) of the Criminal Justice and Public Order Act, 1994 abrogated what Lord Taylor CJ described as the:
	"... whole florid regime of corroboration rules." (R -v- Makanjuola [1995] 2 Cr App R 469 at 472)

There Lord Taylor said:
	"Where, however, the witness has been shown to be unreliable, [the judge] may consider it necessary to urge caution.  In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material for acting on the impugned witness’s evidence."

	Counsel for the appellant submitted to the judge that some such warning should be given in relation to the complainants in this case, and the judge agreed.  The warning he gave was:
	"There does not have to be independent supporting evidence in these sort of cases where sexual allegation are made.  By their very nature it is unlikely, very often, that there is independent supporting evidence, but where possible in cases of this sort you ought to look for supporting evidence and it is not essential but you ought to look for it whenever you can and pay attention to it and compare it with the evidence of the girls, the two girls who are central to this case."

As Makanjuola makes clear, under the new regime it is a matter for the judge:
	"... to decide the strength and the terms of the warning ..."

and that is a matter for his discretion.  There is no complaint on that score.  What is complained of is at the conclusion of the summing-up, in the absence of the jury, counsel for the appellant, with the support of counsel for the Crown invited the judge to draw the jury’s attention to those matters which were considered to be capable of being supporting evidence.  It was the joint view of counsel in the case that there was no such supporting evidence.  In the event the judge did not accede to those submissions, and did not add to his summing-up in this regard.

	The mischief complained of is that the jury were told that it was essential for them to look for and pay attention to supporting evidence, but were given no help at all as to what might or what might not be such evidence.  Without such help, the risk of a juror wrongly identifying what was not supporting evidence as being supporting evidence would be high.

	The path taken by the judge was contrary to the old rules, which required that the jury should be directed to look for corroboration, and should be told what evidence there was that was capable of amounting to corroboration (see eg R -v- Ensor 1 [1989] WLR 497 at 505).  It is believed that the judge was of opinion that the appellant’s failure at interview to ascribe a motive to the complainants was capable of supporting the girls’ story.  For reasons already given, in our judgment that is not so.  The jury needed careful direction on this point.  The right direction would have been that there was no independent supporting evidence.  But if the judge thought that there was independent supporting evidence, he was bound to identify it, both to guide the jury, and to enable the defendant and his advisors to consider whether that direction was right in law.

	Accordingly, the appellant has in our judgment made out those two grounds of appeal.  The jury’s view as to the credibility of the parties was crucial in this case.  There was a real risk that, as a result of the misdirection, the jury might have treated as evidence supporting the girls’ accounts matters that could not in law support them.  That being so, we must allow this appeal against the conviction as being unsafe.
LORD JUSTICE HENRY:  We will now hear counsel on the issue of retrial.
 
MR WALSH:  My Lord, so far as the respondents are concerned, we would seek a retrial.  We would invite the Court to consider the very serious nature of the allegations, aggravated by the considerable breach of trust in the relationship between the appellant and his stepdaughter, S.  We also invite the Court, if the complainant's account was a true one, to take into consideration the persistent nature of the offending ‑ happening, on her account, sometimes twice a week for a substantial period of time.
 
      My Lords, the police have endeavoured, in the short time that they were given, to locate S.  They have discovered that she has in fact left home because of the break down in the relationship within the family ‑ her mother of course giving evidence on the part of the appellant during the trial.  She then moved to a foster home.  The relationship with her foster mother subsequently broke down.  She is now living alone in bed and breakfast accommodation in Romford.  The police know where she is, my Lords, but, because of the sensitivity required in a case such as this and because of the turmoil that she appears to have suffered since the case, moving from one home to another and now living without emotional support in bed and breakfast accommodation alone in Romford, the police felt it would not be wise or helpful to her to ask her, without some sort of warning and build up, the question ‑ could she give evidence again.  They wish to ‑ I hope for understandable reasons, my Lords ‑ approach this issue very carefully.
 
LORD JUSTICE HENRY:  Yes.
 
MR WALSH:  Their view, however, knowing her as they do, is that she would, when approached in the sensitive way they propose, understand what has happened and would be willing to give evidence again.
 
      The same sort of problems do not attach to the second complainant, D.  Although she herself has also not been asked, the police anticipate no problems on that score.
 
      My Lords, the respondents therefore submit that this is, in the interests of justice, a case which ought to be retried.  The evidence of particularly S was in accordance with her statement; and the jury, in that trial, accepted her evidence on oath.
 
LORD JUSTICE HENRY:  Thank you.
 
MR HOLBORN:  My Lords, I have been informed of the Crown's effective decision only a few moments ago, and I had understood that your Lordship asked your clerk to inform me certainly of the result of the appeal, although I have only just seen the transcript first thing this morning ‑ well, about five minutes ago.  The position seems to be that there is a possibility that one or both of the complainants in this case may decline to give evidence in a further retrial.  I was told by your clerk that if this hearing was to last longer than five minutes if it was proposed to argue against a retrial, then the matter would not be dealt with today. I am not aware of the moment, and your Lordships cannot be aware, whether the Crown can be seeking a retrial on either one or both; and of course that would be a material consideration in any argument against a retrial in due course.  One just does not know the position.
 
      It is for those reasons that, with some regret, and in any event, as I understand it, there would be no court time, I am not really in a position to argue the matter because I do not actually know whether it is one or both.
 
LORD JUSTICE HENRY:  I imagine that if the complainant S is unavailable, there probably will not be a retrial. It would not necessarily follow if the other complainant was unavailable.
 
MR WALSH:  The more important complainant, my Lords, is S.
 
LORD JUSTICE HENRY:  Yes, that is what I understand.
 
MR WALSH:  That would be the important witness.
 
LORD JUSTICE HENRY:  Yes.  Mr Holborn, I do not see what your difficulty is.
 
MR HOLBORN:  My Lord, if it is only to be a retrial on S, the way that this matter came out initially ‑‑ it began as a result of a discussion of what was described as a "sleep over", where a game was played of something called "dare" or "dare truth", where the young girls in question were inviting each other to tell a story or to tell something that happened to them that was of a serious nature; and that is how these matters initially arose.  It was very much a part of the appellant's case at the trial that these matters arose out of that and as a result of contamination and fabrication by the complainants in this case.  In my submission, if only one is to be giving evidence, then prejudice may accrue.
 
MR JUSTICE OWEN:  That surely is something you can deal with at the trial.  If this Court orders a retrial and, say, one of them dies and they offer no evidence; if one girl says, 'I am just not going to say it all over again', they offer no evidence:  they have to.  I do not see that there is any real difficulty as to this.
 
MR HOLBORN:  My Lord, in my submission the appellant would be precluded from having the argument before this Court as to whether or not there should be a retrial.
 
MR JUSTICE OWEN:  If you are saying that there is a basic unfairness, there is nothing to stop you taking that point, is there, before whatever judge is required to try the case?
 
MR HOLBORN:  My Lord, the Criminal Appeal Act provides that this Court has power to decide whether or not there should be a retrial on the basis of whether there is unfairness or prejudice to the defendant.  There are a number of authorities on the area.  Because I did not know until now what the Crown's position was - it may have been that they would have said this morning that they were not going to ask for a retrial.  With respect to my learned friend, if one of the complainants says, 'No, we are not going to give evidence,' then that would be an end of the matter.  If she then says that she is going to give evidence ‑‑
 
LORD JUSTICE HENRY:  Your time to argue it is now: this is the opportunity for it.  The fact that we do not know as yet is normal.
 
MR HOLBORN:  As I hope I indicated, and I hope I frankly indicated, I had been given to understand that if this matter was to be argued and would take more than five minutes, there would be no argument this morning.
 
LORD JUSTICE HENRY:  We know the authorities, we propose to deal with it today.
 
MR HOLBORN:  Yes.
  
LORD JUSTICE HENRY:  We find no difficulty about the concept of a retrial: it is what the interests of justice require.  You have heard the case against you.
 
MR HOLBORN:  My Lord, the position is that, whilst your Lordships' Court is familiar with these authorities, I have to confess that I am not as familiar as I could, because it is not, with respect, something one is doing everyday, with respect.
 
LORD JUSTICE HENRY:  It is the interests of justice: it is not nuclear science.
 
MR HOLBORN:  Looking ‑ and obviously I have looked at the matter in Archbold, but I have not had an opportunity of taking the authorities out ‑ one of the questions the Court has considered previously is the length of time that has elapsed between the hearing of the matter and the delay.  There is authority: R v Saunders.
 
LORD JUSTICE HENRY:  Yes, we know that case.
 
MR HOLBORN:  Then Grafton, where I accept that the Court says that, since 1973, it has become much more common for trials to take longer to come to court. Whilst I see your Lordships' point ‑ I hope respectfully ‑ that the matter could be taken before the trial judge in due course, the appellant has the opportunity to argue before this Court whether or not there should be a retrial.
 
LORD JUSTICE HENRY:  That is what you are doing.
 
MR HOLBORN:  The difficulty is, if one complainant is not going to give evidence, then there may be additional argument to say, well, he is precluded from advancing before this Court the point that there could be prejudice to him.  Because, if for example, D did not give evidence and she was at the sleep over, then it would be very difficult for him at the trial to adduce before the jury the evidence of the sleep over and what D said, because if she refuses to give evidence, all of that evidence will not be heard by the trial judge. There were a number of witnesses called by the Crown at the trial, all of whom dealt with what happened and what was called in the trial the sleep over.  That will, in my respectful submission, prejudice the appellant.  But  he has the opportunity to argue that before this Court, but the answer to the question is not known.  That would be the prejudice.
 
LORD JUSTICE HENRY:  We have heard the argument.
 
MR HOLBORN:  Yes.
 
	(The Court adjourned for a short time.) 
 
LORD JUSTICE HENRY:  We think that there should be a retrial here because of the gravity of the case.  If it were to transpire that one or other complainant was not willing to give evidence, then as to whether the trial should continue in those circumstances would, as in any prosecution, be a matter for the Crown, the defence and the court on the facts as are then available.
      Therefore, we allow the appeal.  We quash the conviction.  We direct that a fresh indictment be preferred. We direct that the appellant be re‑arraigned on the fresh indictment.
      We would like that to be done as soon as possible, because the earlier this trial is held the better. Two months is the statutory period; we would like that abridged.  Can you help us as to that, Mr Walsh?
 
MR WALSH:  My Lord, subject to the matters I raised with your Lordships earlier, we do not anticipate any problems regarding any of the witnesses' availability.
 
LORD JUSTICE HENRY:  But the fresh indictment can be preferred and the appellant be re‑arraigned within what time?
 
MR WALSH:  Seven days, my Lord.
  
LORD JUSTICE HENRY:  You can do it within seven days?
 
MR WALSH:  My Lord, yes, I would hope so. 
LORD JUSTICE HENRY:  Very well.  The appellant to be re‑arraigned on the fresh indictment within seven days, unless that time is extended by the Court, for whatever reason.
      We direct that the appellant be held in custody, without prejudice to his right to make an application for bail to the Crown Court.
 
MR WALSH:  My Lords, thank you.
 
MR HOLBORN:  The only other matter ‑ and I am not sure if I should make the application to you ‑ is the question of costs.  He was legally aided in the trial. Because he is not being produced this morning until much later, I have not been able to ascertain what his position was with contributions.  Normally, in the Crown Court, any contribution that he has made should be returned.  I am not sure, frankly, that that is the order this Court should make; but if I need that order, can I ask for that order?  He will have his legal aid certificate extended, I suspect, and he will have to start paying his contributions again.
 
LORD JUSTICE HENRY:  We will order legal aid, junior counsel only, for the retrial.  Why do not you, if the situation arises that he was making contributions, which seems to me unlikely on what we know --
 
MR HOLBORN:  I had the feeling that he was, but it was some time ago.  Obviously I was going to ask him if I saw him this morning, but he is not here.
 
LORD JUSTICE HENRY:  But as this Court will not be together after today, would it not be convenient to make that application to the judge in the Crown Court who will be the trial judge?
 
MR HOLBORN:  Certainly, and I will make an application for bail.  He was on bail throughout these proceedings without difficulty.
 
LORD JUSTICE HENRY:  Yes.  We will put that matter over to the judge that considers the bail application and/or the trial judge. 
 
      Where will the retrial be?
 
MR HOLBORN:  Central Criminal Court, I would imagine.
 
LORD JUSTICE HENRY:  Yes, very well.  The trial will be at Central Criminal Court.
 
MR HOLBORN:  May I just ask this one question?  As far as bail is concerned, can I fairly represent the position to the judge who hears the bail application that this Court is not making a determination one way or the other and has not remanded him in custody just because the Court thinks he is not entitled to bail; it is a matter you have left to the trial judge?
 
LORD JUSTICE HENRY:   Yes.