Case No: T 2012 0537
Neutral Citation Number: [2014] EWCA Crim 1421

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
HHJ Richard Brown DL 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/7/2014
Before :

Lord Justice Gross
Mr Justice Simon
and
Mr Justice Burnett
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Between :

	Neil Midgley
	Appellant	
	and
		
	R	Respondent	

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Mr R Scamardella (for the Appellant)
Mr E Hand for the (for the Prosecution)

Hearing date: 5 June 2014
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Judgment
Mr Justice Simon: 
Introduction
1.	On 24 May 2013 at Lewes Crown Court the Applicant was convicted (before HHJ Brown and a Jury) of two counts of indecent assault, contrary to s.14(1) of the Sexual Offences Act 1956 (counts 1 and 2), and was acquitted of a further charge of indecency with a child (count 3). He was sentenced on count 1 to a term of 7 years, and on count 2 to a term of 3 years imprisonment, to be served concurrently. The total sentence was therefore one of 7 years imprisonment. In addition, various ancillary orders were made that are not the subject of any complaint on this appeal.
2.	His applications for leave to appeal against conviction and sentence, and to rely on fresh evidence in relation to the former, were referred to the Full Court by the Single Judge who also granted a representation order. We grant leave.
The background
3.	The charges related to allegations of historic sexual abuse of the Appellant’s step-daughter (whom we will refer to as ‘N’) between January and March 2000. N was 5 or 6 years old at the time, and was 19 by the time of the trial.
4.	In 2000 N’s mother (whom we will refer to as ‘T’) was in a relationship with the Appellant; and the Appellant would (from time-to-time) look after N and her two younger siblings when their mother attended a course of studies on Thursday evenings. 
5.	The Prosecution case was that on 3 or 4 occasions while N was alone in the Appellant’s care he sexually abused her by digitally penetrating her vagina (count 1) and by placing her hand on his penis and forcing her to masturbate him (count 2). 
6.	Importantly for present purposes the Prosecution case was that the offences took place in the Appellant’s car repair workshop, where a man named ‘Richard’ also worked. It is common ground that this was a man known as Richard Lloyd or Richard Wilmot.
7.	The offences came to light in 2000, when T saw N putting her finger into the vagina of her 2 year-old younger sister in the bath. T said that when she asked N what she was doing, N had told her, ‘this is what Daddy Neil does to me.’ ‘Daddy Neil’ was the name which her children called the Appellant. The Prosecution relied on this as evidence of recent complaint.
8.	The allegations were investigated by the police at the time and N was interviewed on video on 30 March 2000. There were a number of difficulties with what N said in this interview, which were the subject of cross-examination in the trial in May 2013.
9.	The Appellant was interviewed and denied that any assault had occurred. 
10.	The trial in 2013 came about as a result of an incident in 2011 when T assaulted N. As a result Social Services became involved and N repeated her allegations of sexual abuse by the Appellant.
11.	N made a statement on 11 May 2011 and, as a result of this statement, the Appellant was re-arrested and further interviewed. Again he denied that any assault had taken place.
12.	A number of issues were canvassed at trial, but it is convenient for present purposes to focus on the evidence about where the assaults were said to have taken place, and where ‘Richard’ was (or may have been) when the assaults were said to have taken place. 
13.	In circumstances which we will come to, neither side called Richard Lloyd to give evidence; and the basis of the appeal is that the evidence he is now able to give, which could not have been obtained at the time of the trial, renders the verdicts unsafe. 
The trial
14.	At trial, N gave evidence via video-link. She said that when she was about 5 or 6 and living in Hastings, the Appellant took her to his garage. It was getting dark and she was not with her brother and sister. He spoke to his friend Richard in the office at the back of the garage and then returned to a sofa near to the entrance shutters. They sat together, and he told her to pull down her trousers and pants, which she did. He then undid and lowered his jeans. He took her hand and placed it on his erect penis (Count 2); and he then digitally penetrated her vagina, which hurt her (Count 1). After that he told her to get dressed and they went home. This happened at the garage 3-4 times in the same way, but she placed her own hand on his erect penis on subsequent occasions because she was aware of what the Appellant wanted her to do. She was asked about some of the inconsistencies between her evidence to the Jury and what she had said in the video interview in 2000. She said she was scared of getting into trouble and that the Appellant had told her not to tell anyone what had happened at the garage. She denied fabricating the allegations. 
15.	T also gave evidence. She described her daughter N’s unusual behaviour at the material time. This included the digital penetration of her younger sister. She had ended the relationship with the Appellant as a result of this, and had reported him to Social Services. She had also spoken to Richard, and had been reassured that he had been at the garage when the offences were alleged to have taken place. Later she had got back with the Appellant, and they had had a child together. However, the Appellant had confessed to her that he had touched N out of curiosity and had also masturbated in front of her other children. The police had not prosecuted the applicant in 2000, because she had asked to withdraw the allegations having spoken to Richard.
16.	The Appellant gave evidence in his defence. He was 54 years old and was of previous good character. He described his relationship with T, and said that it would have been impossible for him to have abused N at the garage because people were constantly coming in and out. Richard, a trainee mechanic, was always there in the workshop and he was never alone with N while there. When he had been confronted by T about the allegations he had denied them. Although they had got back together, there had been problems in their relationship. He had never confessed to doing anything inappropriate to N, and he did not know why she had fabricated the allegations. He admitted to having sex with T in the garage late at night, but he said he had only been to the garage with N once, and on that occasion Richard had been there.
17.	The Judge summed up the facts as we have summarised them and there is no complaint either about the factual summary or the directions of law.
18.	At some point the Jury sent a note asking various questions about ‘Richard’
1. Was Richard interviewed? 2. Did Richard make a statement? 3. If statement was made can we see it?
The Judge gave them a conventional direction that they should decide the case only on the evidence they had heard. 
19.	The Appellant relies on that question as showing the importance that the Jury might have attached to the evidence of Richard Lloyd if he had been called.
20.	The Grounds of Appeal against conviction rely on a statement that was taken from Richard Lloyd after the trial and the evidence it contains. Before considering this ground it is convenient to set out the statutory criteria for the admission of fresh evidence, as set out in s.23 of the Criminal Appeal Act 1968.
(1) For the purposes of an appeal, or an application for leave to appeal … the Court of Appeal may, if they think it is necessary or expedient in the interests of justice
 …
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to-
(a) whether the evidence appears to the Court to be capable of belief; 
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; 
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and 
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
21.	In the present case questions (a), (b) and (d) were relevant to the evidence which we heard.
The evidence in the Court of Appeal
22.	We heard evidence from three witnesses: David Battaliou, a solicitor at Holden & Co (the Appellant’s solicitor), Richard Lloyd and DC Christine Mencner, the investigating officer with Sussex Police, throughout the history of complaints. In addition Mr Scamardella addressed us from the Bar about his recollections of what occurred. The lack of relevant documentation in the Solicitors’ file available to Mr Battaliou when he gave evidence was striking.
23.	It is convenient to start with the events before August 2012 and the Plea and Case Management Hearing. At that stage the Prosecution wished to take a witness statement from the man identified in the evidence of N and T as ‘Richard’.  
24.	DC Mencner (a specialist trial protection officer) said that she had been asked by the CPS to make contact with ‘Richard’ on 22 May 2012. She went to the workshop where the Appellant worked. It was an industrial building which was divided into a number of units; and the Appellant told her where she could find Richard Lloyd. She met him in his workshop (unit 7), and he agreed to make a statement, telling her that she could come to his workshop any time. She was not able to take a statement then because she had someone held in custody back at the police station; but returned on at least two occasions. She found that his unit was locked; and the Appellant told her that she had been lucky to see him on the first occasion. She had Richard Lloyd’s mobile phone number and phoned him. She was able to speak to him by mobile phone on one occasion when he initially said he did not want to make a statement, but later in the course of the conversation changed his mind and said he would. He told her to ‘come to the garage’ at any time. She tried to make arrangements to meet him there, but was unable to do so. However, she was able to get a home address for his mother, since this was an address he had given when he had been the subject of an assault, and there was an address for him on a police computer. His mother told her that she thought he might have sold his business and gone North to be with his children, adding that he did not tell her much about what he got up to. DC Mencner left her card and asked that he call her. She heard nothing further. These events took place between May and August 2012.
25.	Mr Lloyd’s evidence about this was that he remembered two police officers visiting him at his unit and asking whether they could take a statement. He had never spoken to them again. He did not speak to a police officer on the phone and did not remember saying that he was no longer willing to make a statement. He was in his workshop throughout 2012-2013 and, although he had thought of going North he had never done so. He had never been shown a card from an officer of the Sussex police.
26.	DC Mencner was not cross-examined on this conflict of evidence; and to the extent to which there was a conflict between the evidence of DC Mencner and Mr Lloyd we accept the evidence of the former.
27.	We were told by Mr Scamardella that after the PCMH in August 2012 he gave advice that Holden & Co should contact Richard Lloyd to obtain a statement from him. They had obtained Mr Lloyd’s mobile phone number, presumably from the Appellant. Later, Mr Glendenning the solicitor at Holden & Co who had responsibility for the conduct of the Appellant’s case informed Mr Scamardella that he had been unable to make contact with Mr Lloyd. When he had rung the number that he had been given, the phone rang off without anyone answering.
28.	The trial began on 2 January 2013, but had to be abandoned soon thereafter as a result of something said by a witness in front of the Jury.
29.	Mr Scamardella did not have the assistance of a solicitor at this trial, but he and the Appellant knew that Richard Lloyd was not a Prosecution witness and they also knew that Mr Glendenning had not succeeded in contacting Richard Lloyd.
30.	Between January 2013 and the trial in May 2013, the Appellant’s case was in the hands of Mr Battaliou.  His evidence was that he did very little on the case. As far as he was concerned, the case had been prepared for trial in January and would now take place in May. In April he procured a copy of a transcript of the evidence that N had given at the trial in January and sent it to Mr Scarmadella, at his request.
31.	At the start of the trial in May the position was the same as it had been in January: the Defence knew that Richard Lloyd was not going to be called either as a prosecution witness or a defence witness.
32.	Mr Lloyd’s evidence was that he had never been contacted by Holden & Co. He added that he assumed he would be contacted if his evidence was required. This last piece of evidence could be taken at face value if he could not have known of the Defence wish to obtain a witness statement. However, he and the Appellant were friends and worked in the same building (albeit in different units) in 2012-2013. The Appellant knew where he lived and had occasionally visited his home. In our view the Appellant was clearly in a position to contact Mr Lloyd to find out if he would make a statement, and to take steps to arrange for a statement to be taken if he were willing to make one. 
33.	We have therefore concluded that there is no reasonable explanation for the failure to adduce his evidence within the meaning of s. s.23(2)(d) of the Criminal Appeal Act 1968, at either the January or May 2003 trial.
Richard Lloyd’s substantive evidence
34.	He had known the Appellant since 1993, when he was 13, and they had shared unit 7 in the on Ponswood Industrial Estate from 1999 until the Appellant’s move to units 5 and 6 in 2006. In 2000 Unit 7 was an open plan garage area, about 2½ car-lengths deep, with a sink a sofa and a ‘2-post’ car jack on the left as one entered. His area was at the back and the Appellant’s area was at the front of the unit. There was an opening at the back of the unit which led to a store room areas and an enclosed office area. There were also steps to a mezzanine floor above. He could see the sofa from where he was working in his area at the back of the unit and from the storage area. However, it was not possible to see the sofa either from the office or from the mezzanine area. There was a computer in the office at which he worked from time to time. It was rare for the Appellant to be in the office when he was not, although there were times when he was in the office and the Appellant was in the workspace.
35.	He knew T and her children and vaguely remembered N visiting the unit. He was never concerned about her. If he had been, he would have done something. The Appellant had asked him whether he would give evidence on his behalf and he had told him he would. Then the Appellant’s mother had told him that he had been sent down. It was after this that he had contacted Holden & Co.
36.	It would appear from the solicitor’s file that the initial contact with Holden & Co may have come from Mrs Hill, the Appellant’s domestic partner; but nothing very much turns on that. In any event Mr Lloyd made his statement on 14 June 2013. This included the following. 
I am aware of the accusations that have been made against [the Appellant] by [N] ... I honestly never thought that proceedings would go this far. 
I can state categorically that there was no way that N was sexually abused in any way while I was in the garage. The garage is open plan, and I would have been aware of such a thing if it occurred. 
I was always willing to meet with police to give them a statement about the case, but for various reasons no one ever spoke to me.
37.	As already indicated, we do not accept the evidence about his being willing to give the police a statement.
The appeal against conviction
38.	Although we have concluded that there is no reasonable explanation for the failure to adduce the evidence of Richard Lloyd, we received the evidence of Richard Lloyd in support of the application de bene esse; and have also considered the further questions that arise under s.23(2)(a) and (b) of the 1968 Act. Subject to the reservation we have already made as to his evidence about being willing to make a statement to the police, we accept that Richard Lloyd’s evidence is capable of belief. The question then is whether the evidence affords grounds for allowing the appeal. 
39.	At trial the Appellant relied on the fact that Richard Lloyd was always around.
40.	Evidence that Richard Lloyd was always around when she was there also came from N’s witness statement:
I remember seeing Richard in the garage each time he visited but I don’t know where about in the garage he was when this was happening to me.
And later,
After [the Appellant] finished touching me he would just get up from the sofa, fix his belt and buttons and then go and speak to Richard.
41.	The evidence led by the Prosecution was not that Richard Lloyd could not have observed the assaults; the evidence was that it was surprising he had not done so. Even taking at its highest, Richard Lloyd’s evidence was to similar effect. He did not say that the assaults could not have taken place while he was in the office and unable to observe what was happening on the sofa. They plainly could have done. N gave evidence (see summing-up at p12F) that on the first occasion, the Appellant told her to sit on the sofa and then went to the office at the back of the garage where he spoke to his friend Richard. She said that when he came back, he told her to pull down her trousers and pants. 
42.	The Jury sent a note asking whether a statement had been taken from Richard Lloyd, as well as another person. This is not uncommon; and as we have noted the Judge gave the conventional direction that they should confine their consideration to the evidence which they heard and should not speculate about evidence that they had not heard. We do not consider that a Jury note of this kind should ordinarily give rise to an appeal based on an application to call the evidence to which the Jury question is directed. 
43.	Accordingly the appeal against conviction is dismissed.
The appeal against sentence
44.	The Appellant is a man of 54 and had no previous convictions.
45.	In passing sentence the Judge took account of his mitigation, including his previous good character, his work record and his age. He took into account the statutory maximum sentence for the offences in 2000, as well as the impact on the victim, who had been abused in gross breach of trust, together with his lack of remorse. 
46.	In the course of the sentencing remarks the Judge directed that, if the matter went further, this Court should have a transcript of the submissions of counsel; and we have seen these. The discussion shows the Judge (with the assistance of counsel) considering what would have been the appropriate sentence under the sentencing regime for offences under the Sexual offences Act 1956, bearing in mind that the offending was not a single occasion.
47.	In the grounds of appeal Mr Scamardella centred his argument on the submission that the sentence for indecent assault was too close to the maximum of 10 years for an indecent assault under the 1956 Act. He submitted that sentences of 7 years were reserved for prolonged, persistent and more serious types of abuse. In the present case the abuse ended after a matter of weeks.
48.	In the case of R v. H [2011] EWCA Crim 2753, the Court presided over by Lord Judge CJ, gave guidance as to the proper approach to sentencing for historic sexual offences. The principles are summarised in Annex B of the recent definitive Guidelines at p.155. It is unnecessary for the purposes of this appeal to summarise the various principles which apply. The key to the sentencing exercise is to assess the harm from the offending and the culpability of the offender, taken with what are now specified aggravating and mitigating factors, while always bearing in mind the statutory maximum at the relevant time. At §4 the Court emphatically warned against trying to work-out the likely sentence if the offender had been convicted shortly after the date of the offence. 
49.	Applying this approach we note that although the Judge considered that N had suffered psychological harm it could not be characterised as severe, so as to place it into the intermediate level of harm. On the other hand there had been a high degree of culpability: the Appellant had abused the trust reposed in him to care for his step-daughter. In his favour (though reduced in this type of case) was the mitigation of his previous good character.
50.	Taking all these matters into account, and even allowing for the number of times the assaults took place, we consider that a sentence of 7 years was too high. In our view the appropriate sentence was a term of 5 years. Accordingly we quash the sentence of 7 years on count 1 and substitute a sentence of 5 years. To that extent alone we allow the appeal.