Neutral Citation Number: [2013] EWCA Crim 2238
Case No: 201207295 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Canterbury Crown Court
HHJ Williams
T20117181
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/12/2013
Before:

LORD JUSTICE TREACY
SIR COLIN MACKAY
and
THE RECORDER OF NEWCASTLE, HIS HONOUR JUDGE GOSS QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Between:

	Regina		
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	Jet John Matthews		

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James Mulholland QC (instructed by Registrar of Criminal Appeals) for the Appellant
Oliver Saxby QC (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 26th November 2013
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Judgment
Lord Justice Treacy: 
Background
1.	On 30th November 2012 the appellant was convicted of assault by penetration of a child under 13 contrary to Section 6(1) of the Sexual Offences Act 2003. On 12th February 2013 he was sentenced to 13 years imprisonment. 
2.	He appeals against conviction by leave of the Single Judge. 
3.	The alleged victim was a baby girl, who was 19 months old at the material time. She is the daughter of Natasha R and Richard S. They separated in September 2010. From January 2011 Natasha R and her baby lived with the appellant. 
4.	On 5th July 2011 the baby was left in the care of the appellant whilst Miss R attended a funeral. When the mother returned later and was bathing the baby, she noticed blood on her nappy. The child’s vagina appeared red and sore. The following day the child was still bleeding and so was taken to hospital by the mother after a visit to the GP. 
5.	Expert evidence concluded that the child’s vagina had been penetrated by an object causing a tear 1cm long. Those findings were consistent with trauma caused within three days of the examination on 7th July 2011. The tear was consistent with deliberate blunt force to the vagina. 
6.	The Crown’s case was that the appellant was responsible for the assault whilst she was in his care on 5th July. Accidental injury was extremely unlikely given that the child usually wore a nappy, and that there was no credible alternative explanation for the injury. It could not have been self-inflicted. 
7.	The Crown also relied on the evidence of the child’s mother as to when she had first noticed blood from that area as being consistent with an injury caused when the child had been left with the appellant. 
8.	The defence case was that the appellant was not responsible. If the injuries could not be explained by accident and were deliberate, then the appellant’s case was in reality that Miss R was responsible. It was put to her in cross-examination that this was or must be the case. 
9.	The appellant called some expert evidence to suggest that the child had a minor undiagnosed bleeding disorder. The significance of the evidence was that if there was such a disorder, the timeframe during which the injury might have been caused would be extended. However, the tear to (and bleeding from the tear to) the vagina could not result from a blood disorder, and the appellant’s own evidence appeared to acknowledge that there was no sign of bleeding in the child’s nappy until the day of the funeral. 
10.	The issues in the appeal are concerned with the question of bad character. The appellant has a bad character, but the Crown made no application prior to trial on the basis that they were unclear as to the nature of the defence to be advanced, and in particular whether it was to be asserted that Miss R was or may have been responsible for the child’s injury. 
11.	Accordingly, the initial application as to character came from the defence in raising the issue of Miss R’s credibility pursuant to Section 100 of the Criminal Justice Act 2003. 
12.	Three particular matters were raised by the defence. Firstly, an allegation that in 2009 Miss R had been accused of smacking the penis of a young child, Jamie S. The evidence in support of this was hearsay. It came from Jamie’s mother and grandmother. 
13.	The matter had been reported to the police and social services about two months after the event was alleged to have taken place. They took no action over the allegation. Miss R denied that she had slapped the child as described.  
14.	The second area of bad character evidence was Miss R’s substantial number of previous convictions for matters of dishonesty.
15.	The third area concerned a fixed penalty notice issued for an admitted offence of shoplifting committed by Miss R on an occasion later on 2011 when she had taken the complainant baby shopping with her. In addition, the defence wished to cross-examine Miss R about drinking to excess and using cannabis. 
16.	The judge ruled as follows. Firstly, she said she would permit an enquiry and questions as to whether Miss R had slapped Jamie S’s penis and as to the fact that she had been accused of it by Jamie’s mother. However, at the same time she reserved her ruling on the hearsay application to adduce the evidence of the incident from Jamie’s mother and/or grandmother because that was “a very different matter requiring very different considerations”. 
17.	As to previous convictions for dishonesty, the judge allowed cross-examination. As to the matter of the fixed penalty notice for shoplifting, the judge did not permit cross-examination as she did not consider that the defence argument that the episode demonstrated a disregard for the child’s welfare and a willingness to lie to the police about having the child with her, amounted to evidence having “substantial probative value” within the terms of Section 100(1)(b). 
18.	As to the assertion that Miss R was drinking and smoking cannabis to excess during the relevant period of time, the judge refused to admit this evidence. It fell outside Section 98, but there was no proper evidential or logical link to the issues in the case, and so she excluded it. 
19.	During the hearing of the defence application the Crown indicated that if the defence pursued the admission of bad character evidence against Miss R, it would make an application pursuant to Section 101(1)(g) of the 2003 Act to adduce evidence of the appellant’s bad character on the basis that he had made an attack on Miss R’s character. It indicated the respects in which it would seek to adduce evidence. 
20.	In the light of her ruling as to the defence application on bad character, the judge ruled that the Crown could adduce evidence of the appellant’s previous convictions, (which included offences of violence, alcohol and drug abuse and dishonesty), and also allegations of domestic violence made by Miss R and Laura B, a previous partner of the appellant. 
21.	In the judge’s view the nature of a forensic attack upon Miss R involving the allegation that she was responsible for the child’s injury, together with the evidence going to the issue of her credibility (such as her previous convictions), rendered the introduction of both aspects of the appellant’s bad character both proportionate and necessary under Section 101(1)(g). 
The Appellant’s arguments
22.	The grounds of appeal allege that the judge was in error. Firstly, having allowed cross-examination as to the allegation relating to the slapping of Jamie S’s penis, she should have admitted the hearsay evidence which supported the allegation in evidence for the defence. Although the judge had not initially ruled on the hearsay application, she had later in the trial refused to admit that evidence. 
23.	Secondly, the defence argued that it had assumed that having admitted questions as to the allegation pursuant to Section 100(1)(b), the judge would grant the hearsay application. Her initial failure to rule and her subsequent refusal to do so had unfairly affected the defence’s decision to put Miss R’s previous convictions to her and to accuse her of responsibility for the child’s injury. 
24.	It was also argued that the judge was wrong to refuse to permit cross-examination as to Miss R’s consumption of alcohol and cannabis, particularly where the appellant was cross-examined about his own use of cocaine as a potential explanation as to the circumstances in which he might have committed the offence. 
25.	Finally, it was submitted that cross-examination of Miss R about the fixed penalty shoplifting incident was wrongly excluded. 
26.	Next, in relation to the appellant’s bad character, it is argued that to admit the evidence of incidents of domestic violence was disproportionate and unfair so as to contravene Section 101(3). It was unfair because the evidence would carry a significant impact with the jury and was not relevant to the issues they had to decide, namely who was responsible for the child’s injury. There was a risk that the jury would treat it as evidence of a propensity for violence, including violence towards a child. 
27.	The Crown submitted that the judge’s rulings were correct. 
Our Conclusions
28.	The applications relating to bad character were made to the trial judge before any evidence was called. Consequently, defence counsel was aware of the nature and extent of the judge’s ruling, and had to make a judgment as to how to conduct the defence case in the circumstances. The judge had indicated that she did not intend to rule on the hearsay application until later and that the ruling she had made, permitting the putting of an enquiry about the allegation of a slapping of Jamie S’s penis in 2009, was as far as she was prepared to go in that respect at that stage of the case. Her ruling expressly left open the question of whether she would permit hearsay evidence on the topic to be called by the defence in due course. 
29.	No doubt it would have been of greater assistance to defence counsel to have had a decision made on both matters at that stage, but he was fully aware that the judge had decided not to do so. It meant that defence counsel had to make a decision as to how to proceed and what to put to the witness in the light of the judge’s decision. 
30.	It is apparent to us that as the case proceeded, a very clear suggestion was made to Miss R that she was or must have been responsible for the child’s injury. This was a position supported by the appellant in his evidence. 
31.	Whilst in theory a hypothetical argument might have been mounted that some third person had been responsible for the injury during 4th July, in the light of the appellant’s own case that he had not seen any evidence of bleeding while changing the child’s nappies twice on 5th July, the realistic position was that the jury had a choice between the appellant and Miss R as the perpetrator of injuries inflicted on 5th July 2011. Accidental injury had faded very much into the background in the light of the combined medical evidence, and the true issue was which of the pair was responsible. In those circumstances a forensic attack upon the mother was, as the judge envisaged, inevitable, and was deployed by Mr Mulholland QC. 
32.	We do not consider that the complaint of unfairness arising from the judge’s decision not to rule on the bad character and hearsay applications at the same time is made out. Many judges would have ruled at the same time and it might well have been preferable to have done so. However, Mr Mulholland was aware of the judge’s decision in that respect and chose to pursue his case in a way which inevitably triggered the provisions of Section 101(1)(g) arising from imputations made on the character of Miss R, not least the suggestion or imputation that she was responsible for the child’s injury. 
33.	By Section 101(3) the court must not admit evidence under subsection (1)(g) if to do so would have an adverse effect on the fairness of the proceedings. The allegation or suggestion that Ms R was responsible for this injury to her baby was a very serious imputation upon her character, such imputation being aggravated by the eliciting of her substantial previous convictions for dishonesty. In those circumstances it was unsurprising that the nature of this appellant’s own past should go before the jury. 
34.	No complaint is made about the appellant’s significant criminal convictions being admitted, but there is complaint that evidence of incidents of domestic violence upon Miss R and a predecessor of hers, Laura B, were admitted. It is said that to admit these episodes had a distorting effect on the trial by an investigation of satellite issues, and that there was a danger of the jury regarding such evidence as constituting a propensity towards violence in a domestic setting. 
35.	We do not consider that the judge was in error in admitting this aspect of the appellant’s character. The evidence came from Miss R and one other witness, and was responded to by the appellant himself. In the course of argument before the judge the appellant’s counsel appears on more than one occasion to have conceded that such evidence was admissible, provided it was confined to specific occasions rather than to generalities. After that the judge took time to consider her ruling overnight, and concluded that it was “proportionate and necessary” to admit the evidence. In effect she was satisfied in the circumstances that it was not unfair to admit the evidence. 
36.	In our judgment, her decision was correct. When the judge came to sum up this aspect of the evidence, she rightly told the jury that these were allegations about which the jury had to be sure before they could act on them, and she gave the jury appropriate directions as to the place this evidence had in the case, including the fact that it was not evidence of a propensity to offend in the way now alleged. We do not think there is anything in this point. 
37.	Returning to the issue of the 2009 incident, the judge had, at the outset of the trial, ruled that enquiry might be made about the fact that an allegation of that nature had been made. However, as already stated, the judge’s ruling was confined in that narrow way. In permitting that enquiry to be made, Mr Mulholland submits that the judge must have been satisfied that the provisions of Section 100(1)(b) were satisfied and that the judge had found that evidence of Miss R’s bad character had “substantial probative value” in relation to a matter of substantial importance in the context of the case as a whole. Accordingly, she should have acceded to the accompanying hearsay application under Section 114. 
38.	Strictly speaking the judge was not admitting any evidence of bad character at all. What she had permitted was a question or enquiry to be made of Miss R (which counsel accepts he knew was very unlikely to produce a helpful response) whilst reserving her position as to whether any evidence from others would be admitted. The question of substantive probative value could only truly arise if the judge was prepared to admit the hearsay evidence, which she was not prepared to do at that stage. 
39.	In assessing whether evidence has substantive probative value the court has to evaluate the nature and sources of such evidence – see R v Braithwaite [2010] EWCA Crim 1082 at paragraph 19. One relevant factor will be whether or not the evidence is hearsay, although the mere fact that it is hearsay cannot be determinative. The nature of the exercise bears some similarity to that which a judge will carry out in ruling upon the admissibility of hearsay evidence under Section 114(1)(d). 
40.	Later in the trial the judge did rule on the hearsay application, and refused to admit the evidence of Jamie S’s mother and grandmother. In our view, she was correct to do so, and the evidence did not reach the threshold of potential reliability which might have enabled its admission by the judge under Section 101(1)(b) as evidence of substantial probative value. 
41.	The allegation was an unproven one said to have been made by a three year old child with poor communication skills in terms which were vague. The allegation when raised had been disputed by Miss R. It had been investigated when made, and no action was taken by the police or social services. Jamie S’s mother’s claim that the boy’s testicles had been bruised was contradicted by the child’s father. When investigation was made after the allegation had emerged, some two months or so after the incident was said to have happened, the child could give no coherent account. The child’s nursery had no concerns. There was a background of potential jealousy between Jamie S’s mother and Miss R, who had succeeded her in the affections of this appellant. There was no medical evidence or other supportive independent evidence of any sort. Investigation of the issue would have involved up to six witnesses, and a significant satellite issue. In those circumstances we are not persuaded that the judge’s ruling on the hearsay issue was incorrect as is contended. 
42.	It follows that if the judge had ruled at the same time as the bad character applications, she would not even have permitted an enquiry as to the 2009 allegation. As it happened that enquiry was permitted and Mr Mulholland chose to make it, knowing, as he frankly concedes, that it was likely to be rejected as untrue by Miss R. 
43.	Nonetheless, despite her denial, the judge left the fact of the allegation to the jury in the summing up. Strictly speaking it had no probative value, but it was left to the jury as a consideration in looking at the case and the suggestion that Miss R might be responsible for the injury. We do not consider that any detriment was caused to the appellant by this, and regard suggestions to the contrary as speculative. 
44.	Insofar as there is complaint that the judge was wrong to take the defence and prosecution bad character applications together, we are unpersuaded that there was any harm caused by this. The judge was entitled to see the extent of the defence applications and consider whether they triggered the admission of evidence relating to the appellant’s bad character under Section 101(1)(g). She then reserved her judgment overnight and ruled on both matters together so that both sides knew what the position was before evidence was called, thus enabling them to make final decisions as to how to proceed. 
45.	In addition to the foregoing submissions, Mr Mulholland had two ancillary submissions, which he rightly acknowledged carried less weight. Firstly, he submitted that the shoplifting incident resulting in a fixed penalty was wrongly excluded, because for Miss R to have taken a child with her showed a reckless disregard for the child’s well-being. We consider that the judge was correct in concluding that this incident had little or no probative value for that purpose. Whatever criticism could be levelled of a mother shoplifting, accompanied by a very young child, we do not think it could have any relevant bearing on the issues in this case. The Single Judge refused leave on this point and we think that he was right to do so. 
46.	Lastly, it is said the judge was wrong to have refused to permit evidence of drinking and drug taking by Miss R in circumstances where the appellant was cross examined along the lines that his use of cocaine might have disinhibited him and explained his conduct towards the child. 
47.	It may well be that the judge did not foresee that line of cross examination in ruling as she did. However, the fact is that, both in his interviews with the police and in cross examination, the appellant went into some detail about what he said was joint drug use of cannabis and cocaine involving himself and Miss R. These materials were before the jury, as was evidence of Miss R’s depression at the relevant time. In our judgment therefore this issue is of peripheral significance. 
48.	It follows therefore that none of the specific matters put forward on behalf of this appellant have any real substance. There was a strong and compelling case against the appellant. The reality was that, as the Single Judge said, that there was “only the thinnest support” for the allegation that Miss R was responsible for what happened to her baby. Nothing which occurred in the trial leads us to the view that this conviction could possibly be unsafe. 
49.	Accordingly, the appeal against conviction is dismissed.