Neutral Citation No. [2003] EWCA Crim.907                                                                              Case No: 2001/6551/W4
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
(HH JUDGE MAHER)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3rd April 2003

Before :

LORD JUSTICE MANCE
MR JUSTICE COLLINS
and 
H.H. JUDGE ZUCKER QC

Between :

	R	Respondent	
	- and -		
	IAN DOUGLAS MITCHELL	Appellant	

Mr Paul Hynes (instructed by Gordon Young & Co.) for the Appellant
Ms Samantha Cohen (instructed by CPS Bedfordshire) for the Respondent

Hearing dates : 27th February 2003

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Mr Justice Collins : 
1.	On 29 October 2001 the appellant was convicted at the Luton Crown Court before H.H. Judge Maher and a jury of three counts, two alleging indecent assault and the third rape.  He was sentenced to a total of 8 years imprisonment on 19 December 2001.  He appeals against his convictions by leave of the single judge.
2.	The offences were all allegedly committed against the appellant’s niece whom we shall call ‘V’.  She was born on 9 May 1988 and gave her evidence by means of a video link.  The indecent assault alleged in Count 1 took place in about May 1994 when she was 6, that in Count 2 took place when she was 8 and the rape in Count 3 when she was 10.  The allegations were first aired in about October 2000 when V told a close friend.  They became known to the appellant and he went round to his sister’s and V’s mother’s home where there was what was referred to at the trial as a confrontation.  We shall return to that in due course when considering the evidence upon which the convictions were based in more detail.  The matter was not pursued until March 2001 when V’s father contacted the authorities and V was eventually seen by the police on 1 May and a Video interview took place on 2 May.  On 10 May the appellant was arrested and interviewed.  He denied any sexual impropriety.  In interview and at trial he denied that he had done anything untoward to V.
3.	V herself was the subject of a statement of special educational needs. When her mother gave evidence, she was asked about V by the judge.  He put to her that the impression which he had formed of V (although he attributed that to all in court) was that she was a little bit slow and not very good with words, that she had a small vocabulary and that she took her time over answering questions.  She was not confident or outgoing.  She had learning difficulties; she was in a mainstream school but struggled to keep up with the rest of her class.
4.	Any case such as this requires sensitive and careful handling by the judge.  He must ensure that any cross-examination of a child witness is fair and that the child is able to understand what is being put so that any answers do not result from misunderstandings.  But he must also ensure that the defendant has a fair trial, that his case is properly put and that the jury can judge for themselves whether the child is telling them the truth.  He must be careful that in protecting the child he does not act in a way which gives the impression that he is favouring her to the detriment of the defendant.
5.	The appeal is based on the contention that the judge did overstep the mark and that his conduct during the trial, in particular his interventions during the evidence of a number of the witnesses, was such as to render the convictions unsafe.  It is also said that he misdirected the jury in at least two respects in his summing-up.  The case against the appellant was, it is said, a weak one in the sense that there was little independent evidence to support it and it contained inherent improbabilities.  The jury considered its Verdicts for 8 ¾ hours and convicted by a majority of 10 to 2.
6.	The principles to be applied where it is said that improper interventions by the trial judge have rendered a conviction unsafe have been set out in a number of decisions of this Court and are accurately summarised in Archbold.  In Matthews 78 Cr. App R 23, Purchas LJ, having cited observations of Lawton LJ in Hulusi and Purvis 58 Cr. App R 387 at p.382, said this (at p.32):-
“To summarise these authorities the following propositions appear to emerge: (1) Whilst a large number of interruptions must put this court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive; (2) the critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either upon the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf upon vital prosecution witnesses by cross-examination administered buy his advocate on his behalf; (3) In analysing the overall effect of the intervention, quantity and quality cannot be considered in isolation, but will react the one upon the other; but the question which is posed ultimately for this court is “ Might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury’s verdict might be unsafe?”
At the end of his judgment (at p.39) he observed:- 
“This court must be especially on notice to detect whether at any particular point the possibility of prejudice to the fair trial of the applicants is demonstrated.”
7.	Frequently, the number of interruptions has been the basis of the appeal.  But quantity is not determinative: indeed, in Matthews, one of the complaints was that the judge had asked 524 questions to counsel’s 538 but, despite this, the court decided that the judge had not committed the cardinal offence of diverting counsel from the line of the topic of the questions into other channels.  Thus it decided that the convictions were not unsafe.  The crucial question is whether when the conduct of the trial, including the summing-up, is looked at as a whole, there is a real possibility that there has been such unfairness or denial of justice that the convictions are unsafe.  A judge is of course entitled to put questions to clarify matters and to intervene to prevent repetition, discursiveness or oppression of witnesses and to ensure that irrelevant matters are not pursued.  But he must be careful not to appear to enter the arena or to give the impression to the jury that he thinks little or nothing of the defendant’s case or is promoting a witness as one whom the jury ought to believe.  And the defendant must be permitted to give his evidence so that his case, however implausible the judge may think it to be, is properly put before the jury and he is not thrown off course by judicial interruptions.
8.	V’s account of the three incidents, which the jury must be taken to have accepted, was as follows.  So far as Count 1 was concerned, when she was about 6 the appellant had collected her with his bicycle and walked with her from where she was then living to his house.  They went through what she described as a fairly big wood, although in fact it was a path with a fairly thin line of trees on either side.  When they were in the wood, he put her on a log and forced his tongue into her mouth and told her he was giving him a kiss.  They then continued on their way.  Count 2 concerned an incident when she was about 8.  She was at the appellant’s house in a bedroom.  The appellant got her onto the bed, pulled his trousers down, undid her trousers and pulled them and her underwear down and started rubbing his penis against her, lying on top of her.  The appellant’s son came into the room and saw what was happening.  He then got off her.  Count 3 was when she was about 10.  There had been a family gathering at her house and the appellant was there.  He said he had to go home to clean out the hamster’s cage and to collect some biscuits and toys.  V went with him reluctantly at the instigation of the appellant’s wife.  When he had cleaned the hamster’s cage, he shut his 2 year old (who was also there) into his bedroom and told her to sit on the sofa.  When she refused, he pushed her on to it and the rape then took place.
9.	We should set out her account of how the rape took place in some detail.  Her initial account was as follows:-
“He pulled down my trousers and my underwear and sat on me.  He stuck his willy into me and he pushed and then it hurt so I pushed him, he fell down on the floor.  I got up, got my stuff on and my trousers.  I pulled my knickers up and I walked out of the door …”
He told her to say nothing and they returned to her house.  She was asked further questions by the police.  She said that he pulled down his trousers and pants and then hers and ‘he sort of like sat on me’.  She was sitting at the end of the sofa with her feet on the ground and his boxers were down round his ankles.  She added that when he was putting his willy into her vagina he was looking to see what he was doing and had his hands on his willy to go putting it into her vagina.  It hurt her so much that she got really angry and pushed him away so that he fell to the floor.
10.	The appellant is and was then a large heavy man – he weighed some 16 stone.  The description given of what occurred is not perhaps impossible to visualise, but there are obvious difficulties in it.  Mr. Hynes described it as implausible.  The jury was entitled to bear in mind that V was someone who might find it difficult to express in words what had happened and, if satisfied that she was being truthful and that there had been penetration by the appellant albeit she could not describe precisely how it had occurred, to find that rape was proved.  Nevertheless, the need for the greatest caution before convicting in the light of the description given is obvious.
11.	V was medically examined and the medical evidence was the subject of formal admissions.  The examination found that the state of her hymen was such that there had been repetitive penetration which could have been by a penis, a finger or any other object of appropriate size.  It was not consistent with only one or two episodes of penetration.  This evidence was of considerable importance because V had said to the police that she could only remember the three incidents and in cross-examination that no-one had done anything like what had happened to her in the incident the subject of Count 3 before she was examined by the doctors in May 2001.   She was questioned about a boyfriend but denied that there had been any sexual activity with him.  The medical evidence meant that her account of what she had experienced sexually could not have been accurate generally and, although it showed that penetration had occurred, it was hardly supportive of the particular case presented against the appellant.
12.	We do not find it necessary to lengthen this judgment by referring to all the interventions relied on by Mr. Hynes.  The first point to make is that they were not particularly numerous and this is not a case of quantity.  What is said is that the judge appeared to bolster the complainant and to belittle the appellant’s account and that of his witnesses.  Mr. Hynes submits that his comments in summing-up, albeit he said and repeated that it was a matter for the jury to decide whether they accepted or rejected his observations, were generally hostile to the defence.  In addition, during Mr. Hynes’ final speech to the jury the judge got up from his seat and walked over to say something to the usher.  Shortly thereafter the usher brought him a law report.  This was certainly discourteous and should not have happened, but it also may have conveyed the impression that he was not listening to the defence case because he thought little of it.  Mr. Hynes dealt with the situation admirably.  He stopped talking and he tells us that the judge looked embarrassed.  We would only comment that he should indeed have been thoroughly embarrassed.
13.	The judge’s observations to V when her evidence was about to be given, that she should say if she did not understand a question and to admit she did not know the answer if that was the case, were perfectly proper.  He was right to try to put her so far as he could at her ease.  Equally, he interrupted Mr. Hynes’ cross-examination when he thought Mr. Hynes’ questions were too complicated.  No proper complaint can be made about that nor of the judge’s rephrasing to make them comprehensible.  Nor was it wrong of the judge to indicate to V that if she found a question too hard to answer she should say so.  However, there was an obvious danger that it might be seen as an attempt to come to her rescue.  That was how it struck Mr. Hynes, but he may understandably have been somewhat over sensitive.         
14.	There were two occasions when the judge’s interventions were unfortunate.    The first was when Mr. Hynes was asking V about the confrontation.  This was important since V’s mother confirmed that V had not said that the appellant had raped her and that V’s sister had apologised for spreading rumours about him at school. Mr. Hynes when asked about the confrontation had asked a question of V which was in the form ‘Do you remember …?’  The judge interrupted saying that the question was one which contained a hidden assumption that there was something to remember.  This was over pedantic and unnecessary and broke Mr. Hyne’s flow.  The other was as follows:-
  “Q (Mr. Hynes)   Before you were examined by the doctors, had you ever had sexual intercourse?  You know what I mean by that?
    A. Yeah.
Q. That is the question.  Before you were examined, have you ever had sexual intercourse?
A. No.
Judge (having cut off the witness, but in the presence of the jury).  You know that the answer to that is ‘Yes’.  You know what the medical evidence is.
Mr. Hynes. Your honour, with respect, the answer is ‘No’, because that is the answer she has given.”
The judge then asked Mr. Hynes whether he was seeking to go behind the medical evidence to which Mr. Hynes very reasonably answered that he could not suggest there had never been sexual intercourse with anyone but he was entitled to ask the question he had asked and ask the jury to assess the answer given.  The judge then went on to suggest she might not have understood what sexual intercourse involved saying:-
“She is not articulate.  She does not have a big vocabulary.  She is not fluent. So, what I would say to you is that if you are putting these matters – and there is no reason why you cannot say to her that your client did not do this with his private parts and put it into hers – that is the appropriate way to do with a girl of this level of emotional and intellectual attainment, instead of using grown-up vocabulary.”
When the video was switched on again, Mr. Hynes asked V whether anyone had done anything like her uncle had done to her and got the answer no.  The judge’s interruption was ill advised since (a) the medical evidence did not prove penile as distinct from any other form of penetration, and the judge did nothing to clarify to what Mr Hynes was referring by his questioning about “sexual intercourse” and (b) it wrongly criticised Mr. Hynes and seemed to come to V’s rescue.

15.	The appellant called his mother and his 12 year old son to give evidence.  His son said that he had not come into the bedroom to find his father with V as V had alleged.  The judge asked the appellant when he was giving evidence whether he had spoken to his son (as it appeared from material available to the judge that he had) about “the unpleasant consequences which might happen to anyone convicted of offences” such as the appellant faced.  This was an issue which should have been left to prosecuting counsel to deal with.  It led the judge in summing-up to deal with the son’s evidence in this way:-

“How you assess witnesses is entirely a matter for you, but this little boy, aged 12, was clearly so anxious that he asked me ‘Why are you trying to take my daddy away?’.  He has been made aware by his father of the consequences which he, the defendant, fears might befall.  Which is why I said to him was it really wise in retrospect to convey to your little son the very real fears which the defendant has got in his mind.  It is a matter for you, whether those fears, if they were conveyed, were conveyed out of some improper motive or to what extent, if at all, they may have influenced the evidence which this little boy gave that he had seen and come across nothing, as it were, of a disturbing nature.”
Mr. Hynes complains that this was in effect to tell the jury to reject the son’s evidence. 
16.	The appellant’s wife said in relation to Count 3 she recalled the appellant going home to change his small son’s nappy and V going with him.  They returned about 45 minutes later and she noticed nothing untoward.  In cross-examination, the judge intervened suggesting there was no reason why she should remember such an ordinary occasion.  He concluded his questioning thus:-
“Q.  So if I were to ask you, say, what happened on Christmas Day four years ago, you would have the same detail in your mind, would you, about where you went and what time you ate, and who was there, and so on and so forth?
A. Probably.
Q. Oh right. Jolly good.”
The tone of Voice is not recorded, but it is obvious that the judge was showing a degree of scepticism that anyone could remember in the way described.
17.	There were complaints made of other interventions in the appellant’s evidence but they do not in our view constitute anything objectionable.  Overall, Ms. Cohen accepted that the judge’s behaviour was, as she put it, not a model but submitted that he had not been unfair.  We are satisfied that he did on occasion intervene in a manner which was inappropriate.  However, we are equally satisfied that his conduct was not such as would have rendered any verdicts unsafe provided that the summing-up had been clear and that the points he had intervened to make had not been underlined by adverse comments.  
18.	Unfortunately, the summing-up did not pass this test.  We have already referred to the comments about the appellant’s son’s evidence.  The judge dealt with his wife’s memory thus:-
“One can remember events and not necessarily remember details.  That is one of the reasons why when Mrs Mitchell, the defendant’s wife, gave her evidence.  I said to her, remember she was going into a lot of detail about this hamster cage event when her husband left the house for a short period apparently, according to her evidence, principally not to clean the hamster cage, but to change their little boy’s whose nappy was wet.  From her point of view it was an event devoid of any significance whatsoever.  She had no way of knowing that two or three years down the line the events of that particular day would be the source of so much scrutiny.  It is not an unreasonable question, is it so this is why I asked her “how can you remember this?”  She said, and fine she may have this sort of memory, “I have got a good memory and I do remember it.  I could also remember if you ask me” – no one ever did – what she was doing on Christmas Day three/four years ago.  Whereas if you put yourself in Maxine’s shoes, if you assume for one moment she is telling the truth, a matter for you, there are very good reasons why she would remember that day because something rather traumatic happened to her.  This is why if something memorable happens you may remember it years down the line.  If there is nothing memorable about a particular event it may only have the vaguest shape in your mind, but we have all got a memory which enables me to say we know how memory work.”
  That passage was hardly helpful to the appellant’s case.
19.	The first 14 pages of the summing-up are a somewhat diffuse introduction, no doubt intended to help the jury in approaching its difficult task.  The judge then directed the jury on rape and dealt with the medical evidence when giving a direction about the need to establish penetration. At p.16H to 17G of the transcript he said this:-
“We do, of course, have some medical evidence here which may be of assistance to you.  I will remind you of it at this stage and possibly later.  It was one of the findings set out in those formal admissions.  [V] was examined by [two doctors] on 22 May of this year.  The genital examination found that she had a very irregular hymen with only remnants persisting laterally on either side and a little piece inferiorly at about the seven o’clock position.    The findings as described above are not within the range of normal and show a loss of tissue at the sides and back known as attenuation.  The findings are not consistent with only one or two episodes of penetration.   
Attenuation of the hymen is considered to result from chronic, repetitive abuse rather than one or two episodes.  The findings suggest that repetitive penetration has occurred.  It is not possible to specify whether this would have been a penis, a finger, or some other object.  Nor is it possible to put a time on when this could have occurred, or whether it was in the last year, or the last five years.  That is agreed medical evidence which has been put before you.
You may feel that certainly supports, really inescapably, although medical evidence, expert evidence, is always strictly speaking a matter for you to evaluate.  We have trial by jury not trial by expert, but that is an agreed piece of testimony which is put before you.  Something has been happening, you may feel, to that little girl’s private parts.”
This last paragraph was not only confused but in our view also amounted to a serious misdirection.  The reality was that the medical evidence of repeated penetration did not support the case against the appellant since it was inconsistent with V’s account.  And the last sentence may well have led the jury to approach the case on the basis that they might believe that the appellant was responsible for the something that had happened to V’s private parts.  The judge did return to the medical evidence at the end of his summing-up and dealt with the defence comments on it fairly.  But this could not repair the earlier damage.
20.	The judge went on to give a lengthy, confusing, inaccurate and wholly unnecessary direction on consent.  The vice in it was that the jury might have thought that he did regard it as material which it would only be if sexual intercourse had taken place.
21.	We have carefully considered the interventions and the summing-up together.  We bear in mind that V’s description of how the rape took place was not easy to follow, although we recognise that the jury may have considered that she had simply been unable to describe in words what had occurred.  In addition, her denial of any other sexual activity by anyone to her was inconsistent with the admitted medical evidence.  We are persuaded that the judge’s interventions and comments may have had the effect of bolstering V’s evidence at the expense of the appellant and his witnesses. In particular, the jury may well have been led to believe that the judge thought little of the defence.  The summing up failed to compensate for any of these matters and is open to positive objections.  We accordingly take the view that the convictions are indeed unsafe and must be quashed.
22.	We have considered whether we should direct a retrial.  The appellant has served 14 months in prison.  We are told by Ms. Cohen that V would be willing to give evidence again.  The rape in particular but all the allegations are serious.  The evidential problems, arising from V’s account and the medical evidence must be taken into account.  So too must the length of time served by the appellant and the length of time since the alleged offences occurred.  Nonetheless, we consider in all the circumstances that the public interest does require a retrial.