Neutral Citation Number: [2013] EWCA Crim 819
Case No: 201204126/B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
HIS HONOUR JUDGE BOWERS
REF: 201204126B1*1
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/05/2013
Before :

LORD JUSTICE ELIAS
MR JUSTICE WILKIE
and
HIS HONOUR JUDGE PERT QC 
sitting as a judge of the COURT OF APPEAL CRIMINAL DIVISION
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Between :

	ANDREW CRAIG HOBSON	Appellant	
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	REGINA	Respondent	

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Miss S Mallett (instructed by Messrs Paul J Watson) for the Appellant
Mr I Mullarkey (instructed by The Crown Prosecution Service) for the Respondent

Hearing date : 30 April 2013
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Judgment

Lord Justice Elias : 
1.	This is an appeal against conviction and sentence by leave of the single judge. The appellant was convicted of two counts of indecent assault, counts 1 and 4 before His Honour Judge Bowers following a retrial at the Teesside Crown Court in June 2012. He was sentenced to 4 years on count 1 and 12 months concurrent on count 4, both of which were specimen counts. There was also a sexual offences prevention order imposed. He was acquitted of two further counts, 2 and 6, and the jury were unable to reach a verdict on three remaining counts, counts 3, 5 and 7. At the earlier trial he had been acquitted of offences against a third victim. 
2.	The assaults related to two female children who were sisters. Count 1 related to a child, K, who was aged between 6 and 9 at the relevant time.  She alleged that she had been sexually abused between the ages of 6 and 9 by the defendant regularly touching her on her vagina on numerous occasions. Count 4 related to her sister, N, and was said to have occurred when she was between the age of 9 and 12 and involved touching her genitals over her clothes, again on many occasions. 
3.	The two counts on which the defendant was acquitted were also specimen counts. Count 2 was an allegation that the defendant had digitally penetrated K’s vagina, and count 6 was an allegation that he had digitally penetrated N’s vagina, in each case on numerous occasions between specified dates.  Count 3 was a specific incident when it was alleged that the defendant had placed K’s hand on his penis; count 5 was a specimen count alleging that the defendant had placed his hand on N’s vagina under her clothing; and count 7 was another specific count, this time with respect to N, that the defendant had placed her hand on his penis.
4.	The appellant was a family friend and the abuse was said to have occurred on occasions when the families were visiting each other. The alleged incidents all occurred between some fifteen and twenty years ago.
5.	The appellant denied these offences and asserted that the allegations were so preposterous that they did not require an answer from him. He suggested that the women may have been colluding. He did not give evidence at the trial but did give full answers in interview.
6.	The complainants’ father gave evidence and said that the appellant had confessed when K had first complained about his actions some fifteen years ago but the appellant denied this.
The grounds of appeal.
7.	There were three grounds of appeal against conviction identified in the notice of appeal. Each of them related to aspects of the summing up.  The single judge gave permission in relation to only one of them.  This concerned the way in which the judge summed up with respect the failure of the appellant to give evidence. It is said that the summing up was confusing, unhelpful and potentially misleading; it was a sufficiently egregious error to render the verdicts unsafe.
8.	Permission was not given with respect to the other two grounds. One, which concerned the way in which the judge summed up with respect to good character, was not pursued orally before us.  The other raises the question whether the guilty verdicts are safe because, it is said, the judge summed up to the  jury in a way which left open the real possibility that the jury may not all have been sure that the offence had been committed on the same occasion.  We will consider each ground separately.
The failure to give evidence.
9.	The matters which a judge should identify in the summing up when dealing with the case of a defendant who has chosen to exercise his right to silence were identified by the Lord Taylor, Lord Chief Justice in Cowan [1996] QB 373:-
	(1) 	The judge will have told the jury that the burden of

     	  	 proof remains upon the prosecution throughout and what the

      	  	required standard is.

       	 (2) 	It is necessary for the judge to make clear to the

        		jury that the defendant is entitled to remain silent.

       	 	That is his right and his choice. The right of silence

      	  	remains.

      	  (3) 	An inference from failure to give evidence cannot on

      	 	 its own prove guilt. That is expressly stated in section

      	  	38(3) of the Act.

       	 (4) 	Therefore, the jury must be satisfied that the

       	 	prosecution have established a case to answer before

       	 	drawing any inferences from silence. Of course, the judge

     	   	must have thought so or the question whether the defendant

      	  	was to give evidence would not have arisen. But the jury
	
      	 	may not believe the witnesses whose evidence the judge

       	 	considered sufficient to raise a prima facie case. It

    	    	must therefore be made clear to them that they must find

     	   	there to be a case to answer on the prosecution evidence

       	 	before drawing an adverse inference from the defendant's

      	  	silence.

        	(5) 	If, despite any evidence relied upon to explain his

        		silence or in the absence of any such evidence, the jury

        		conclude the silence can only sensibly be attributed to

        		the defendant's having no answer or none that would stand

        		up to cross-examination, they may draw an adverse

        		inference.

10.	It is not disputed that at page 49 of his summing up the judge did in terms identify to the jury each of these elements. The complaint relates to a passage in the judgment a little later when, having said a little more about how that direction would play out in the circumstances of a particular case, the judge added this (page 51, lines 14 to 20):
“Now, I know I have given you some very difficult points of law to consider. Let me tell you what I think you might – a possible approach you could deal with when you go out. Decide, perhaps fairly early on, whether the defendant’s failure to give evidence, as I have just explained to you, does strengthen the Prosecution case. If it does not then just put it out of your minds. If it does, you can bear it in mind during the rest of your deliberations.”
11.	It is this passage which is said to be confusing. The complaint is that it would have misled the jury into believing that they were being encouraged to consider the defendant’s failure to give evidence before concluding that he had a proper case to answer, thereby failing to apply the principle identified by Lord Taylor LCJ in the fourth paragraph. 
12.	If the passage is taken in isolation, that might be a sustainable argument; but it must be read in context. It seems to us that although this was perhaps an unfortunate observation by the judge and not, we think, particularly helpful to the jury, nonetheless the judge did state in terms that the jury had to consider whether the failure to give evidence assisted the prosecution case by applying the principles which he had just explained. These included the obligation to consider first whether there was a sufficiently strong case for the defendant to meet before drawing any adverse inference. Counsel says that there is a real chance that this requirement might have been overlooked by the jury because of this additional and potentially conflicting observation. Reading the summing up on this point as a whole, we do not think that the jury would have been confused in that way. Accordingly, we dismiss this ground.
Summing up on the specimen counts.
13.	This ground relates to the way the judge directed the jury with respect to the specimen counts. It arises in this way. Count 1 alleged indecent assault and framed the particulars as follows:
“ANDREW CRAIG HOBSON between the 3rd day of April 1994 and the 2nd day of April 1998 indecently assaulted K …., a female person aged between 6 years and 9 years of age, touching her vagina.”
14.	It is to be noted that whilst counts 4 and 5 distinguished touching the vagina over and under the clothing respectively with respect to N, there was not the same differentiation made with respect to K. We think that “touching” more naturally involves direct touching i.e. under the clothing. However, that is not how the judge interpreted it. He told the jury that count 1 related to touching the vagina and said that K had alleged that “it happened both on top of her clothes at first and also inside her knickers; that is what count 1 is”.  Later, he confirmed that count 1 could be committed by touching either over or under the clothing when he said this (p.13): 
“In relation to N, counts 4 and 5 are equivalent really to count 1 because count 4 is a specimen where she was being touched over her clothes and count 5 is being touched under her clothes on her genitals, on her vagina.”
15.	The other counts in relation to both K and N then identified different sexual acts, namely digital penetration and placing the victim’s hands on his penis. The jury acquitted of digital penetration with respect to both girls.
16.	Given that the complainants each alleged repeated conduct over many years, specimen counts were in principle appropriate. Moreover, there was no request by the defence with respect to any of the specimen counts for the particulars to be identified with greater precision. Nonetheless, when giving evidence both  K and N spoke with some particularity about particular occasions relating to count 1.  K described incidents when the defendant came up to her bedroom to read her a story when she was going to bed and would touch her vagina under her clothing. She said that this happened on many occasions. She also said that it happened on a number of occasions in his garden shed. She then identified in much greater detail a specific incident which she said had occurred when she and the adults were all sitting on a patio and she was on the appellant’s knee. She said that the applicant requested that her parents get a blanket for her. Someone got a blanket to cover her and the defendant then abused her under the blanket by touching her vagina in the presence of the other adults. The judge recounted her evidence and then directed the jury as follows (page 12):
“All you have to decide is this. Are you sure he touched her at least once? Forget about dates, do not worry about legal definitions, are you satisfied that he touched her outside her vagina but on her vagina at least once during those years?”
17.	Later, at paragraph 53, he repeated this injunction in the following way:
“You can then go through each of the individual indictment counts and say in respect of each, are we sure using all the relevant evidence are we sure he did this to that girl at least once?”
18.	The complaint is that this does not tell the jury that they have to be unanimous about the same incident. They were not told that they should be unanimous about the patio incident for example, or else be sure that on at least one unspecified occasion the offence was committed. We agree that the direction does not tell the jury that they must approach matters in that way. The question is whether that renders the summing up defective and casts doubt upon the safety of the verdicts. 
19.	The appellant submits that it does. The failure to issue such a direction leaves open the possibility that some members of the jury could believe that one of the incidents occurred, such as the patio occasion, and other members could believe that a different incident occurred, such as touching in the bedroom at bed-time, but the jury may not be agreed about the same occasion.
20.	The position with N was essentially the same. In her evidence with respect to count 4 she gave evidence that the defendant regularly touched her over her clothing. She also recounted in some detail a specific occasion in his garden shed when he assaulted her in that way when he was teaching her to play the guitar; and a separate occasion in the bedroom when her sister was there and he was reading a story to them both.
21.	Again the judge told the jury that it was enough that the jury were sure that he had assaulted her by touching her over her clothing at least once. The appellant makes the same point as with respect to K: the jury could have convicted without being unanimous with respect to the same incident. Without a direction to the effect that they had to be sure about the same incident, it was possible that the jury were not in fact in agreement, in which case the verdict is unsafe.
Discussion.
22.	In R v Rackham [1997] 2 Cr. App. R. 222 the defence asked for identification of the various specific incidents on which the Crown relied in a specimen count of sexual misconduct. The judge refused to order this and this court held that he was wrong not to do so.  The defendant should be allowed to know with such particularity as the circumstances admit what case he has to meet. Furthermore, it is incumbent on the judge to relate the evidence to the particular counts: R v Farrugia The Times, January 18 1988.
23.	No doubt in most cases where a specimen count is relied on, it is enough for the judge to tell the jury, as the judge did in this case, that they may convict if they are sure that the offence has been committed at least once. Where the complainant cannot particularise any specific incident and merely alleges a pattern of similar conduct, the question for the jury will be whether they are sure that the account of the complainant is reliable.  There will be no room for the jury to focus on one incident rather than another because no single occasion is sufficiently distinct, and it would be meaningless and unhelpful to tell the jury that they had to be sure in relation to the same incident. 
24.	However, where the complainant gives evidence identifying specific occasions alleged to be part of a pattern of conduct and there is evidence before the jury which could cause a reasonable jury to acquit on the specimen charge but convict on the particularised occasion or vice versa, then it is possible that the jury is not at one on any specific occasion. Where that is the case, an obvious solution is for the prosecution to apply to amend the indictment and add the particular incident or incidents as separate counts on the indictment. But if these specific occasions are not particularised in the indictment, it will be incumbent on the judge to tell the jury that they can only convict if they are sure that the offence has been committed on the same occasion, either on an occasion in the course of the unspecified pattern of offending, or on one of the particular occasions identified in the evidence.  
25.	Mr Mullarkey, counsel for the prosecution, contended that this would be unduly onerous. We do not agree; it simply requires that a specimen offence should be directed to a pattern of conduct which cannot be particularised in any specific way. It is an elementary principle that the jury should be sure about each element of the offence and that is not the case if it is open to a reasonable jury to convict on the basis of different incidents or occasions. Absent such a direction, it will not be possible to say that the jury were unanimous with respect to the same occasion.  Take this appeal, if the specific occasion relating to occasion on the patio had been the subject of a separate count to an occasion in the bedroom, it plainly would not have been possible to convict on either count where only half the jury were sure that the bedroom incident had occurred as alleged and the other half had only been sure of the patio incident.   There can be no magic about the fact that these incidents are wrapped up together in the context of a specimen count: it cannot lead to a different conclusion. The position is analogous to the case of Brown (1984) 79 Cr.App.R.115, where the defendant was charged with fraudulently inducing investments. The prosecution relied upon a number of statements which allegedly constituted the unlawful inducement.  This court held that the judge was wrong to direct the jury that they did not have to be agreed with respect to the making of any particular statement. Since the dishonest statement was an essential element of the offence, the jury had to be agreed on the same statement.  
26.	Of course, where an offence can be committed in different ways, such as possessing drugs with intent to supply, the jury can be satisfied that the offence has been committed even though some of the jury may believe that the intention was to supply socially and others that it was to supply commercially: see Ibramima [2005] Crim LRR 887.  They are all satisfied that the element of the offence charged has been satisfied. 
27.	Similarly, where the essence of the offence is a course of conduct, such as neglect of a child, the jury may be satisfied that the offence has been committed even though they are not at one as to precisely how that neglect has been manifest: R v Young 97 Cr App R 280.  But in this case it is not a question of the jury possibly concluding that the same offence has been committed in different ways.  That could only be so if a specimen count  constituted a single offence and each incident or occasion was but one way in which that offence had been committed. But that is not the nature of a specimen count; it is not a single offence but a systematic course of multiple offending.
28.	It follows that, in our view, the critical question is whether the evidence before the jury was such that there was a realistic possibility that a reasonable jury could have reached its verdict in respect of a specimen count by focusing on different occasions. If so, the summing up would be defective and the convictions would be unsafe without a direction that the jury had to be sure with respect to the same occasion.
29.	In answering that question in this case, we bear in mind that the defendant did not give evidence; and we note too that the defence did not at the time raise with the judge the need to distinguish between any particular incidents or occasions.  Nevertheless, in our view the nature of the incidents here was such that the members of the jury could on the evidence have been satisfied about the course of conduct but not the specific occasion, or vice versa. The distinctive feature of the patio incident was that it allegedly occurred in the presence of K’s parents. Some members of the jury may have thought that it distinctly unlikely that the defendant would have acted in such a risky manner.  Others may have felt that the detail had the ring of truth.  Similarly, with respect to N’s account of the offence occurring in the presence of her sister (who does not appear to have confirmed this in her evidence). Also, in her case there was some evidence, albeit slender, from a defence witness that children were not allowed into the hut where the first incident was alleged to have occurred.  Moreover, the fact that the jury found the defendant not guilty of other specimen counts suggests that they must have had some doubts about the reliability of the evidence of the complainants. In these circumstances it cannot be said that the verdicts are safe and therefore they must be quashed.
The sentence.
30.	It is not strictly necessary to consider the appeal against sentence.  However, the prosecution concede that the judge was not entitled to sentence as he did. He sentenced on the basis that the defendant had repeatedly over many years assaulted K beneath her clothing, and had on a number of occasions touched N over her clothing. The defendant did not expressly agree to the specimen count being treated in that way, and in those circumstances the judge must sentence on the basis that there was only one offence: see Hartley [2012] Cr App R (S) 28, confirming the principles in the earlier case of Canavan [1998] 1 WLR 604.  
31.	Indeed, with respect to count 1, given the way in which the offence was described to the jury, the sentence would have had to be on the basis most favourable to the defendant, namely that the offence might have been committed over the clothing.  So even if the convictions had not been quashed, there would have needed to be a very significant reduction in the sentence to reflect the fact that the sentence had to be based on two single occasions against different victims of touching over the clothing.  However, we need say no more about the sentence given that we have determined in any event to quash the convictions.
32.	The prosecution seek a retrial. We are satisfied that this would now be oppressive and not in the public interest.  The appellant has already been tried twice and been acquitted of a number of the allegations made against him; he has served the equivalent of an eighteen month sentence which is arguably longer than the sentence he ought to have served had the convictions stood; the alleged offences were all committed a long time ago; and there is no evidence of his having committed subsequent offences of this kind.