Neutral Citation Number: [2013] EWCA Crim 1295
Case No: 2012/3361/B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 28 June 2013
 
B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE MACKAY 
 
SIR RODERICK EVANS 
 
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 R E G I N A 

v 

M.B.
 
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Mrs G Hale appeared on behalf of the Appellant 

Mr R Thatcher appeared on behalf of the Crown 
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 J U D G M E N T 
LORD JUSTICE ELIAS:  On 14th June 2010 in the Crown Court at Nottingham before His Honour Judge Lea, the applicant was convicted of two counts of cruelty to a person under 16 years.  On 1st November 2010 before the same judge she was sentenced to concurrent sentences on both counts of 20 weeks' imprisonment suspended for two years, with an unpaid work requirement of 150 hours.  She was acquitted of a further count of the same offence.  She applies for an extension of time of almost two years in which to apply for leave to appeal against conviction by leave of the single judge.  
The facts essentially are these.  The applicant was the mother of EF, who at the time of the alleged offences was aged about three‑and‑a‑half years old.  There was a co‑accused, who was acquitted in relation to count 3.  He was only ever indicted in relation to count 3.  He was the applicant's husband, YF.
EF attended the BB Nursery from February 2009.  There were computerised lists which showed which children were expected to attend the nursery on any given date.  These were produced in advance and then there was a daily log recording when the children actually did attend.  The records showed that on 28th April EF attended the nursery between 12.40 and 16.30.  The log had been signed by one of the nursery leaders, KM, which indicated the time when EF left the nursery.  It was alleged that on that date, 28th April, another nursery employee, HC, witnessed the applicant disciplining EF firstly by pinching his arm, whilst doing so twisting his fingers, and then biting his arm over his jumper in the same place that she had just pinched him.  A second member of staff, JF, also gave evidence that she had witnessed the pinch.  
There was a second allegation that on 19th May 2009 three nursery employees, LH, KM and LG witnessed the applicant slap EF, firstly using an item or items of clothing and then with her hand.  These employees drew up a report and a plan of the alleged incidents.  Following the second incident the nursery manager, KL, made a referral to the Children and Young Persons Services alerting them to the possibility that EF was a child at risk.  Two social workers attended the family home the following day and EF was taken to be medically examined.  He was found to have a number of bruises on his upper right back, his upper right and left arms and on the right and left side of his lower back.  There was expert opinion that the lower back injuries might well have been bite marks.  
In interview the applicant denied slapping, hitting or pinching EF.  She said that on occasions she would try and calm him by shaking his shoulders and tapping him on the face.  Her case was that the witnesses were lying in their account of these incidents.  As to the first occasion, the child had not even been at the nursery on 28th April and the records had been fabricated.  She in fact had seen marks on EF on 18th May, after he had returned from the nursery.  He had been complaining about staff at the nursery.  She had wanted to move him to another nursery but she was told she could not.  She said she had made a complaint to staff on 19th May and it was as a result of that that they had invented allegations against her and reported the matter to the social services.  This was therefore on her case an entirely malicious fabrication by the staff to protect their own misconduct.  She did not however give evidence before the jury at trial and no evidence was called on her behalf.  The prosecution did call these nursery witnesses, each of whom gave evidence to verify the accounts they had given in interview.
The principal issue for the jury therefore was whether the nursery employees had provided a truthful account as to what had occurred and whether there had been two incidents of deliberate assault as they had alleged.  
There are essentially two grounds of appeal.  The first is that the judge failed properly to sum up her defence as disclosed in her police interviews.  The second, and it is a related ground, is that he failed to give a good character direction and at the time when she was facing this trial she had no previous convictions of any kind.  It is submitted that the judge ought to have done that and that the failure to do so seriously prejudiced the fairness of the trial and renders the convictions unsafe.
We will deal first with the question whether the judge fairly summed up her case as given in interview and as put by her counsel to witnesses for the prosecution.  We have absolutely no doubt that he did.  It is true she had given a large number of rambling interviews, but the essence of her case emerging from them was that the child was not present on the first occasion, the allegations had been fabricated to conceal the fact that it was the nursery staff themselves who had harmed this little boy.  The judge at page 3 of the summing‑up said this:  
"Now the defence asserts, through her advocate, that these injuries were caused at the nursery and nothing whatever to do with any treatment by the mother and that in order to cover up those injuries sustained in the nursery false allegations have been made against the mother that she struck her son not only on 19th May ‑ the date of the referral ‑ but also on an earlier occasion, 28th April, when she says he wasn't even present at the nursery."  

That is a most admirably succinct summary of her case.  There were various other passages in the summing‑up where he reminded the jury of her case.  Just to take a few examples.  At page 10 he reminded the jury that her case was that she had not slapped her own child; at page 14 that the child had not even been at the nursery on 28th April; on the same page he reminded the jury that her case was that these were malicious fabrications designed to conceal the nursery's own misdeeds and that point was put again and again throughout the course of this relatively brief summing‑up.  At the bottom of page 21, for example, the judge said this: 
"You have to decide whether these are lying witnesses who have come to court and told lies as a consequence of this conspiracy at the nursery or whether they are actually telling you the truth about what happened."  

It is true that the judge did not in terms state that this summarised the account which the applicant had advanced in interview.  Indeed he made no mention of the interview as such until counsel for the prosecution reminded the judge, after the jury had initially been sent out, that the originals of the daily register for the school were available for the jury, as were the witness statements.  The judge then said this at page 31 of the summing‑up, having recalled the jury: 
"I didn't make reference to the interview.  Of course that's not evidence because it's not given on oath but it is evidence of what she said at the time which of course you can have regard to.  I haven't gone through it because you've got a copy of it.  But doubtless when you retire and consider this case you'll want to look and refresh your memory as to what she was saying to the police when she was interviewed about these matters."  
 
We were referred to a number of cases which the appellant submitted supported her case.  In Curley and Cadwell [2004] EWCA Crim 2395 it was contended that the judge had not properly given any adequate summary of the appellant's case to the jury.  As in this case, the defendant Curley had not given evidence or called any witnesses.  He had however given a detailed account of rather complex financial transactions which constituted the basis of the charge against him of conspiracy to defraud.  This court held that in the circumstances it was not enough for the judge simply to tell the jury to read the transcripts.  The critical passage of the decision of the court given by May LJ was at paragraph 73 where he said this:  
"It needs to be emphasised and emphasised again that it is the plain duty of a judge summing up a criminal case to a jury to put fairly and sufficiently the defence case.  Where a defendant has not given evidence, and in addition has not called any evidence on his behalf, there is no evidence from the witness box in support of that defence other than such evidence as has been gleaned by one way or another from other witnesses which have been called.  Where that defendant who has not given evidence has been interviewed in detail and has given an account in interview which is relevant to their defence and which so far as it goes contains their defence, that is evidential material in the way that we have described and it is the duty of the judge, in our judgment, in putting the defence case properly and fairly to make such proper and structured reference in summary to the material in the interview which constitutes the defence case in the criminal trial.  That we conceive to be a principle which applies to the present case and in our judgment the judge failed to live up to it." 

There was also reliance on the case of Akhtar referred to in 2001 Archbold News page 2 where the case summarised as follows:  
"Where the defendant neither gives or calls evidence but has been extensively interviewed, it is of particular importance that the summing­up should at least summarise the main points made by the defendant. Only rarely if ever would a conviction be adjudged safe notwithstanding a failure to sum­up the defence." 

We do not of course dissent from the statements of principle enunciated in these cases but there was no breach of them here.  Had the only reference to the defence been the judge's observation about the interview being available for the jury to consider at the end of the summing‑up, there would be considerable force in this submission.  But, as we have indicated, that is far from the case.  This summing‑up was eminently fair to the appellant.  It did not simply remind the jury that there was an interview for them to consider.  It put the appellant's case fairly, cogently, on a number of occasions and there could be no doubt that the jury fully understand the nature of the case they had to deal with and the defence which she was putting forward.  We therefore categorically reject that appeal.  
We turn to the second ground which is whether good character should have been referred to by the judge in his summing‑up.  There is absolutely no doubt that it is in principle a very important direction to give in favour of a defendant who is charged with a serious criminal offence, provided of course that it is appropriate for the judge to give the direction in the particular circumstances.  If good character is raised by a defendant a judge will be required to give directions in relation to the two respects in which it is relevant, namely credibility and propensity.  Moreover, the direction should be given even where a defendant fails to testify but gives an exculpatory account in interview.  The jury should in the normal case have regard to the defendant's good character when assessing the credibility of that account – see the observations of Lord Taylor LCJ in  Vye [1993] 1 WLR 473, , subsequently approved by the House of Lords in Aziz [1996] AC 41.  The failure to give a direction as to the relevance of the defendant's good character will often render verdicts unsafe, but not inevitably so ‑ see the observations of Lord Bingham in Singh [2006] 1 WLR 156 when he said that a failure to give a good character direction on credibility is not necessarily fatal to the fairness of trial or the safety of the conviction.  Having said that, the need to give the direction will be the more pressing where the veracity of the defendant and prosecution witnesses is directly in issue.  
The primary responsibility for raising the good character of a defendant lies on counsel, but typically a judge will raise the issue with the defence where it appears that a defendant is of good character. The judge would be wise to raise the matter in that way because if a good character direction is omitted when it ought to have been given, the mere fact that it was not given may be enough to render the verdicts unsafe, irrespective of the reason why it was not given or who was responsible for the error ‑ see the observations of Lord Kerr giving the judgment of the Privy Council in Nigel Brown v The State [2012] UKPC 2, paragraphs 30‑31.  As Lord Kerr went on to note, however, not every omission to put a defendant's character in issue demonstrates a failure by counsel to carry out his duty.  That observation, it seems to us, is highly material in this case.  
Because of the criticism of the trial lawyer advanced in these grounds, the applicant waived privilege.  We have an account of what occurred from the Solicitor Advocate Mr Posner who had represented the applicant below.  He provided an explanation as to why he had not put good character in issue.  It appears that at the time of the trial the appellant was charged with other offences of affray and of a threat to kill her husband and child.  In fact subsequently the magistrates committed the case for trial but it was not proceeded with because the prosecution offered no evidence.  So at the material time the applicant faced these serious charges which were, of course, connected with this child.  Counsel says he discussed the matter with prosecution counsel and he was under the clear impression that if he wanted to pursue a good character direction, prosecuting counsel in turn would be considering a bad character application to have this matter brought to the attention of the jury.  It would not necessarily have been right for this applicant to be treated as a woman of good character in the circumstances.  Prosecuting counsel is present today and he has confirmed that there were discussions which took place precisely along the grounds indicated by Mr Posner.  
In our view, it was a realistic concern that Mr Posner had that this evidence might come before the jury.  He was making serious allegations against the witnesses for the prosecution and in principle any evidence of bad character would be admissible under gateway (g) of section 100 of the Criminal Justice Act.  These disputed offences potentially fell within the scope of the definition of bad character in section 98.  It may well be that a judge would have been reluctant to let in the evidence in case it resulted in satellite litigation, but as against that it was a single incident with few witnesses.  The position was not clear although it would have been difficult in any event for the judge to have given an unqualified good character direction given this pending case.  Some modification would have been required.  
We need not speculate what the judge would have done had the matter been raised before him.  It seems to us that the critical point is that here the solicitor advocate considered this matter and exercised a judgment why he did not think it appropriate to press for a good character direction.  It was in our view a reasonable judgment to make.  If the evidence of the other alleged offences had gone before a jury it would have been devastating.  
We do not therefore accept that counsel failed in his duty and thereby deprived this applicant of a valuable direction in her favour.  This was a tactical decision, taken in what he perceived to be the applicant's own best interests.  It is not open to an applicant to come to court now and to seek to reopen the case on the grounds that it was the wrong tactical call.  One of the complaints is that there was no discussion about this matter with the applicant herself.  It is not easy for us to know whether that was so.  We would be surprised if there was not some discussion of this matter, but in any event it seems to us that this was a proper decision for counsel to have made.  No doubt other counsel would have dealt with it differently, but we do not think that this counsel can be criticised for taking the stance that he did.
In any event, we are persuaded that even if there had been a good character direction given in this case, we do not accept that it would have rendered the verdicts unsafe.  This was not just a case of word against word.  There was powerful evidence here to show the EF was at the nursery on 28th April as the prosecution claimed.  The records would have had to be distorted in a rather complex way, it seems to us, in order to represent otherwise.  Furthermore, the applicant did not give evidence herself.  Her accusations against the staff would necessarily carry far less weight than the evidence which the prosecution witnesses were able to give on oath.  
In our judgment, on the facts here, this was in any event a safe conviction.  We have not gone into the detail of the very extensive delay in lodging the appeal.  We do not find the explanations for such delay convincing or satisfactory.  In part the delay can be satisfactorily explained but not, we think, the period of almost two years before lodging this appeal.  Had we considered that there was a very powerful case, then we would have allowed an extension notwithstanding the lack of any adequate explanation.  But since we do not think there is a strong case, in the circumstances we refuse to extend time.  We indicate that had we done so we would have refused permission to appeal in any event for the reasons we have given.   
MISS HALE:  I am instructed to apply for a representation order for those instructing who were involved in taking four statements from the appellant, a statement from DR and indeed a statement from the solicitors himself.
LORD JUSTICE ELIAS:  You have a representation order, do you not? 
MISS HALE:  I do, yes.  
LORD JUSTICE ELIAS:  Were these statements taken after you had a representation order? 
MISS HALE:  The statements were taken by those who instructed as a result of the skeleton argument received from the Crown in dealing with factual matters.
LORD JUSTICE ELIAS:  Yes, we will grant that representation order.  It will be in the following terms: for work already done following the decision of the single judge in further preparing the application for an extension of time, for leave to appeal and in advising and obtaining a statement from the applicant in respect of the waiver of privilege procedure.  That would be the standard form? 
MISS HALE:  Indeed, that is right.  Thank you.