Case No: 2003/05278/B2
Neutral Citation No [2004] EWCA Crim 303
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE CRIPPS
IN THE CROWN COURT OF ST.ALBANS
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20th February, 2004

Before :

LORD JUSTICE PILL
 MR JUSTICE GRAY
and 
MR JUSTICE AIKENS
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Between :

	BL	Appellant	
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	THE QUEEN	Respondent	

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MR ALI BAJWA for the Appellant
MS ISABEL DELAMERE for the Respondent
Hearing dates : 26 January 2004

JUDGMENT
Lord Justice Pill: 
1.	On 10 September 2003 in the Crown Court at St Albans before His Honour Judge Cripps and a jury, BL was convicted of 4 counts of indecent assault (Counts 1, 3, 4 and 5) and two counts of indecency with a child (Counts 2 and 6).  On 6 October 2003 he was sentenced to 5 years imprisonment on each of the counts alleging indecent assault and 2 years imprisonment on the counts alleging indecency with a child.  All sentences were ordered to run concurrently.  L appeals against conviction by leave of the single judge.
2.	The complainant, JD, was born in March 1964 and the appellant is her grandfather.  She and her brother regularly visited the home of their grandparents.  The offences are alleged to have occurred when the complainant was aged between 7 and 13 years and the appellant was in his fifties.  
3.	Counts 1 and 2 related to alleged incidents in the greenhouse.  The appellant kissed the complainant, placing his tongue inside her mouth.  He touched her between her legs, initially over her clothing but later within it.  He took his penis out of his trousers and placed her hand on it.  This happened on many occasions, it was alleged.  
4.	Count 3 reflected alleged assaults in the bedroom.  The appellant would lie on top of her on her bed and try to kiss her.  He rubbed is groin against her pubic area.  She lay still until he went away.  On occasions her clothing felt damp.  
5.	Counts 4 and 6 related to events in the bathroom, Count 4 alleging incidents similar to those in the greenhouse and Count 6 to his making her sit on the edge of the bath and trying to put his penis into her mouth.  Count 5 alleged an assault in a car in a multi-storey car park.  Having tried to kiss her, the appellant put his hand between her legs and digitally penetrated her vagina.  
6.	The complainant told her mother of the greenhouse incidents when she was 13 or 14 years old.  The visits to the grandparents then ended.  She had told no one else.  The appellant had told her it was a secret and that no one would believe her.
7.	In the mid to late 1980s, the complainant decided to go to the appellant’s house with a friend with the intention of confronting him.  In the event, all she could say was: “Do you have any idea what you have done to me ?”  When he began to speak to her about his ill-health, she lost her resolve and they left.  She said that her two marriages had been unsuccessful because of what had happened.  In 2002 she decided it was time to finish matters once and for all and went to the police.
8.	The complainant was fully cross-examined.  She denied that the allegations were untrue, that she had invented or imagined them or that she had misinterpreted what had happened.  She denied seeking out the appellant  in the greenhouse.  She agreed that her brother was a few feet away in the bedroom when incidents occurred.  They were afraid of the appellant.  They were small and did not know what was happening.
9.	Evidence was given by the complainant’s mother, AP, and the grounds of appeal relate to the admission of her evidence and to the way in which it was considered in the summing-up.  Her evidence was that, a decision having been taken that the visits to the grandparents would cease, the complainant had told  her that she was pleased that they would not be visiting the appellant because he had done things to her which she had not liked.  He had touched her intimately between the legs and done other things which were horrible.  The complainant did not go into detail.  The complainant was 13 or 14 at the time.
10.	The appellant gave evidence that he was 81 years old and of good character.  He denied any sexual impropriety towards the complainant.  He denied ever entering the bedroom.  He was never alone with the complainant in the bathroom.  He denied touching or kissing her in a multi-storey car park.  He did not recall a visit from her in the 1980s.  The occurrence of the visit was not challenged but the alleged conversation was.  There had never been a falling out between him and the complainant and he did not know why contact had ceased. 
11.	The prosecution had first sought to adduce the evidence from AP as a recent complaint.  The judge refused the application.  It was renewed at the end of the cross-examination of the complainant and the evidence was sought to be admitted as rebutting an allegation of recent fabrication.  The judge referred to the relevance of the jury knowing when the allegation came to light and held that the material before the jury amounted to a suggestion that “more recently than 1977 these allegations were made up by [the complainant] for some reason best known to herself.  In those circumstances, it seems to be only fair that I should allow the Crown to lead evidence before the jury that allegations were in fact made when  JD was 14 years old.  The sole reason of doing so is to rebut the defence that they were made up later, which in my understanding would be recent within the meaning of that term in the expression  ‘allegation of recent fabrication’ ”.
12.	On behalf of the appellant, Mr Bajwa refers to the care with which he sought to cross-examine the complainant without suggesting that her complaint had recently been fabricated.  Plainly, he had to challenge the credibility and reliability of her evidence but, he submits, he did so in a way which did not suggest that, and could not lead to an inference that, the allegations had been fabricated at some time after the contact with the appellant ceased.  In those circumstances, the jury were not entitled to know from the mother of the complaint to her and should have been directed not to speculate about when the complaint was first made.  It is conceded that in this context ‘recent’  meant any time after the contact had ceased in 1977 or 1978.  It is also conceded that, had the complainant been asked in cross-examination, which she was not, why she had not complained to the police earlier, her mother’s evidence would have been admissible.
13.	Mr Bawja submits that the difficulties faced by the defendant in cases where there has been a long lapse of time are considerable and, where cross-examination has been limited to a challenge to the truthfulness of the allegations, should not be increased by the admission of evidence of a complaint as rebutting an allegation of recent fabrication.  The general rule that evidence of a statement in confirmation of other testimony is inadmissible should apply.
14.	In Oyesiku [1972] 56 Cr. App. R 240, Karminski LJ, giving the judgment of the court, accepted as a correct statement of the law the judgment of Dixon CJ in the High Court of Australia in Nominal Defender v Clements [1961] 104 CLR 476 at 479:
“If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness, if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.  But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possible self-serving statement made by the witness, great care is called for in applying it.  The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court.  It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party, but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.  It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness’s account of a material incident or fact as a recently invented, devised or reconstructed story.  Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course.”
In Tyndale [1999] Crim.L.R. 320, it was held that a statement may be admitted under this exception although it has been rejected as a recent complaint on the ground that it was not made at the first opportunity that was reasonably offered.

15.	For the prosecution, Miss Delamere relies on material which was in evidence:
a)	The appellant’s statement to the police in interview
DC Barrett	“And what, and, and what about J ?
L	Because that, that, this is all so vicious.  J’s been talked into something or, or as she’s older, she’s got the ideas in her head.  But nothing that J’s said there really happened, there’s no way that I would do a thing like that.	Well, that’s the only explanation that I can see.
DC Barrett	Right
L	Cause it all seems to me to be so vindictive, you know.”
b)	The complainant was cross-examined about the alleged meeting in the 1980s:
Q. 	And that when you went to the house with SB remember, in mid to late 1980s ------
A.	Yes.
Q.	I accept you went to the house, but I suggest you didn’t say to Mr L at any time:  “Do you not realise what you have done to me” or something to that effect.
A.	I did.	
c)	The complainant was cross-examined as to why she had continued, for a long period, to go to her grandparents’ home.
Q. 	I appreciate what you have said in evidence is that you were not allowed to tell, I appreciate that.  I am not asking you whether you ought to have or did tell anyone, what I’m asking about is did you think to say: “ I just don’t want to go”, either to his house or with him for a drive, without telling, just simply saying: “I don’t want to go”.
A.	I couldn’t
16.	We understand the difficulties faced by the defence and accept that counsel did all he properly could to prevent AP’s evidence being admitted.  However, on the basis of that material cited, the judge was in our judgment entitled to admit the evidence of the 1977 complaint.  In the absence of that evidence, the inference likely to be drawn by the jury in the circumstances was that the complaint was recent in the accepted sense that it was made after the occasion  in 1977 (or 1978) when contact ceased.  In his statement to the police, the appellant suggested that the complainant had been “talked into something or, as she’s older, she’s got the ideas in the head”.  The suggestion that what in effect was a complaint during the house visit during the 1980s was a fabrication (which on instructions counsel had to put) invited the inference that no complaint was made until after that date.  The question as to why visits continued during the 1970’s was, as Mr Bawja observes, a question about willingness to go rather than about failure to complain but, with the other material, was likely, unless redressed, to support the inference that no complaint was made until much later.  Bearing in mind the time lapse of well over 20 years before the complaint to the police, the door was open to the admission of  evidence of a complaint in 1977.
17.	Ms Delamere has referred us to Birks [2002] EWCA Crim 3091. While we have not been influenced by it in our consideration of what the law is, we cite the statement of Rix LJ, at paragraph 27, as to how the law could, in the view of the constitution hearing that case, preferably develop:
“We think that, subject to appropriate directions of course, it is undesirable for juries to be kept in the dark as to what has happened between the time, sometimes many years or even decades in the past, of the alleged abuse and the time at which they are trying the case.  If complaints, albeit not recent complaints in the existing sense of that term have come forward in circumstance which are safe to put before the jury for their evaluation, then we think that they should be.  Ultimately it would be for the jury, subject to proper directions, to decide what they make of a proper narrative of events which would explain to them how it is that the charges put before them for their decision arise when they do, either against the background, depending on the facts of the case, of a complete silence of decades,  however that is explained, or against some other  possibly highly significant background.
18.	The second ground of appeal, made with leave of this court granted at the hearing of the appeal, is that, having admitted AP’s evidence, the judge failed properly to direct the jury as to the use to which they could put it.  The judge stated:
“Before the defendant went into the witness-box to tell you his account, you heard evidence from AP, JD’s mother.  You are probably wondering why you heard her evidence and you are probably wondering how it helps you.  Well, I decided that you should hear her evidence for one simple and only reason.  The reason was to allow you to know whether when J said she told her mother when she was 13 or 14 that was correct or not.  Because it was suggested to her, quite properly, that she had made the whole thing up.  It appears, you may think, from AP’s evidence that if she did make it all up she was doing so back then, as opposed to done it in the mid-seventies done it in the early eighties, done it in the mid-eighties done it in the late eighties, done it in the nineties.
So AP came before you simply for that reason, to put a start date, if you like, as to when JD was saying what she was saying – right or wrong – but that is when she started saying it.”
Having summarised AP’s account of her conversation with the complainant, the judge added:
“Now, that does not mean that J is right.  It does not mean that J is wrong.  The only reason you heard it is to show when J first said anything to anyone about it, so that any inventing must have started by then.  So you understand the very, very limited use the evidence is to you ?”
The submission is that in addition to being told why the evidence was admitted, the jury should have been told in terms that it cannot of itself prove that the complaint is true.
19.	In Islam [1999] 1 Cr.App.R 22, convictions were quashed where the trial judge had not given a direction as to the limited effect of evidence of complaint.  In that case, however, the complainant’s evidence was put before the jury “on the same footing as any other part of the evidence”.  Giving the judgment of the court, Buxton LJ stated, at page 28B:
“In those circumstances it is in our view essential that the jury should be told by the judge of the very limited effect that they are permitted to give to it.  Without such a direction, there is every danger of the jury thinking, as on one view might be a commonsense reaction, that such evidence is indeed further evidence of the truth of the complaints, rather than being of, limited, assistance in assessing the veracity of the complainer.  Certainly, there is no reason at all to think that the jury, without direction on the point, will realise for themselves that the evidence that they have heard, no differently from other evidence, has this odd and difficult status.  Particularly in a case such as the present, which turned on word against word, it is difficult to feel confident in the safety of a conviction when the true legal status of part of the evidence has not been made clear to the jury.”
20.	By contrast, the judge in the present case twice told the jury, and in strong terms, of the only reason the evidence had been admitted and of the very limited use to which the evidence could be put.  It would have been better to have added in terms that the evidence could not of itself prove that the complaints were true but, on the directions given to them, the jury cannot have failed to appreciate that.  They were not directed, as they could properly have been, that the fact of the complaint might help them to decide whether the complainant had told the truth, a direction which could only have been to the advantage of the prosecution in the present case.  The judge limited the relevance of the evidence to establishing the date of the complaint and there is no real possibility that the jury might have given it broader significance.
21.	We have no doubts about the safety of these convictions and it was for those reasons that the appeal against conviction was dismissed.
Sentence
22.	BL appeals against sentence by leave of the single judge.  When sentencing the appellant, the judge referred to the prolonged unhappiness caused to the complainant by his treatment of her.  The circumstances were such that a prolonged sentence would normally be required.
23.	The judge acknowledged that the appellant was in the “twilight of [his] days” and was not “a well man”.  He is now 83 years old.  Medical evidence establishes that he is suffering from chronic illnesses: diabetes, cardiovascular disease and depression. 
24.	In Harold Nicholas S [1978] 1 Cr. App R (S) 261 a sentence of 3 years imprisonment on a man aged 82 for rapes and indecent assaults on his granddaughter committed over a period of 11 years was upheld.  Giving the judgment of the court, Garland J stated:
“It is the view of this court that the only permissible approach to sentencing in a case of this nature is to arrive at an appropriate sentence commensurate with the seriousness of the offences having regard to the age, infirmities, and circumstances of the appellant.  Those circumstances include such things as a lack of remorse on the one hand but the extreme unlikelihood of any offence of a similar nature being committed in the future. ”
25.	Notwithstanding the seriousness of the offences, we consider that the sentence was manifestly excessive in the circumstances in this particular case.  The sentence of 5 years imprisonment is quashed.  On Counts 1,3 and 5 a sentence of 2½ imprisonment on each count is substituted and on Counts 2 and 6 a sentence of 18 months imprisonment on each count.  All sentences will run concurrently so that the total sentence is one of 2½ years.  To that extent, the appeal against sentence is allowed.