Neutral Citation Number: [2014] EWCA Crim 1730
Case No: 201300932 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday 8th July 2014

B e f o r e:

LORD JUSTICE TREACY 
 
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE LEWIS 
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R E G I N A 

v 

STEVEN (AKA STEVEN EDDIE) MOSES (AKA OLIVER)
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Miss R Martin appeared on behalf of the Applicant
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J U D G M E N T
1.	MR JUSTICE GRIFFITH WILLIAMS:  On 18th January 2013 in the Crown Court at Newcastle‑upon‑Tyne, the applicant was convicted of the rape of "D", a male child under the age of 13 (count 1), the sexual assault of D, a male child under 13 (count 2) and causing or inciting D, a child under 13, to engage in sexual activity (count 3).  On 28th February 2013 he was sentenced by the trial judge, the Recorder of Newcastle‑upon‑Tyne, to concurrent sentences of 15 years, two years and six months respectively, a total sentence of 15 years' imprisonment.  The Recorder made other orders all consequential upon the convictions, none of which are material for present purposes.  
2.	The applicant renews his application for an extension of time in which to appeal conviction and sentence following refusal by the single judge.  In a ground of appeal of his own making following the refusal of permission by the single judge, he seeks to adduce fresh evidence.  
3.	The Sexual Offences (Amendment) Act 1992 applies to this appeal so that nothing is to be reported that might reveal D's identity.
4.	D was born in July 2006.  He lived with his mother and older brother, "K".  He suffered from a speech impediment, had difficulty understanding spoken language and his mental ability was mildly delayed for his age (by more than one year).  Nevertheless, he was described at the age of three as a happy and active child.  
5.	In July 2010, when he was four years old, the applicant formed a relationship with his mother and lived at their address for approximately two months before he was arrested on 13th August 2010 in respect of unrelated matters and remanded in custody.
6.	The evidence was that from mid‑July 2010 it was noted that D's behaviour started to alter.  He often became angry or upset and exhibited sexualised behaviour, particularly when at his nursery.  He and his brother went to live with their natural father during 2011, and from May 2012 onwards his step‑mother "M" also lived with them.  
7.	In May 2012 D told his step‑mother that he had no friends because he was "naughty and dirty".  He explained that "Steve done naughty things to mammy" and that he, D, had done what Steve had done.  In June he informed her "Steve used to buy me big presents if I did things to him".  In due course the police and social services were informed and D was interviewed on 13th July 2012.  
8.	D explained that he was sexually abused by the applicant when he was living at their address in 2010.  On a number of occasions he had removed his trousers and exposed his backside and his penis to the child.  He recalled an occasion when he was sitting in the lounge watching television and the applicant forced his penis into his, D's, mouth.  He continued moving his penis about and only stopped when what D thought was "wee" came out (count 1).  He described the applicant coming to his room when he was sleeping, pulling down his pyjama bottoms and playing with his penis (count 2).  The applicant would also put his hand up D's mother's skirt whilst D was watching and offered to buy D a present if he did the same and touched his mother's knickers (count 3).
9.	Following his arrest on 13th August 2012 on suspicion of raping a child, the applicant made no reply.  In interview he denied the allegations and suggested that the complainant must have been told what to say by someone else, possibly his natural father.  He also suggested the nursery staff had lied about him exhibiting inappropriate behaviour in public.
10.	The prosecution case was that D had given a true and accurate account: he had been sexually abused by the applicant during the period when the applicant was living at their address.  The Crown relied upon D's account in his ABE interview, on evidence from his step‑mother and evidence from staff from D's nursery who described the applicant as behaving inappropriately in public, including fondling D's mother's breasts and putting his hand up her skirt and into her pants.  
11.	The defence case was that D's account was untrue.  He denied ever touching the child in a sexual manner as alleged or at all.  He denied that he had exhibited sexual behaviour in front of D or encouraged him to behave in any such way.  He gave evidence confirming that he had met D's mother in June/July 2010 and slept at her address two or three nights a week.  He said that he had some contact with D, but not much.  He was never alone with him at the beginning and never engaged in sexual behaviour in front of D or his brother, or in front of the nursery staff.  He denied buying the children gifts, apart from a birthday present for his sixth birthday and bars of chocolate when they went shopping.  He said that he never told D to behave in a sexual way towards his mother, he never touched or rubbed his penis, he never placed his own penis in D's mouth and he never exposed himself to D as alleged.  He said that he had had limited physical contact with D and denied blowing raspberries on his tummy, as alleged by nursery staff.
12.	The issue for the jury was a straightforward factual one: were they sure that the account given by D was true and accurate?  
13.	The grounds of appeal against conviction drafted by trial counsel have been adopted by Miss Martin, who has appeared for the applicant in this court.  We should say that we are grateful to her for her well‑focused submissions which have been made with commendable clarity and brevity.
14.	The grounds of appeal are, first, that the ABE interview should have been excluded pursuant to the provisions of section 78 of the Police and Criminal Evidence Act 1984; secondly, that there was no evidence to support a conviction on count 2; thirdly, that the convictions are unsafe because D, who had a speech impediment, had a mental age of five years at the time of trial when his actual age was six years, and was describing events which had occurred two years earlier in his short life; fourthly, that D, despite being counselled in private by the intermediary and the trial judge, refused to answer defence counsel's questions in cross‑examination and so answered defence counsel's questions which had been provided in writing to the judge and had been asked by the judge.
15.	Miss Martin's final submission was that while, with the exception of the ground of appeal relating to count 2, the individual grounds may not render any of the convictions unsafe, their cumulative effect supports the conclusion that the applicant did not have a fair trial and so his convictions should be quashed.
16.	The complaints about the ABE interview are that there was no evidence of the competency of a child in D's position who was being asked questions about events said to have occurred two years earlier in his short life; there was no intermediary present during the interview.  D was asked leading questions and prompted by the interviewing officer by questions which suggested the applicant had done wrong; D was told he had said something else to a police officer to whom he had spoken before in a direct attempt to persuade him to change his account.  It was also submitted that there was unfairness because D was being cuddled and reassured throughout the interview by his step‑mother.
17.	We observe that the issue of D's competence was not raised until the first day of the trial, and then without prior notice.  Section 53(1), (2) and (3) of the Youth Justice and Criminal Evidence Act 1999 provides:
"(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
 (2) Subsection (1) has effect subject to subsections (3) and (4).
 (3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to ‑
 (a) understand questions put to him as a witness, and
 (b) give answers to them which can be understood." 
18.	As the issue had not been raised, the court was not required to determine D's competence in accordance with the provisions of section 54 of the Act, but we observe there was in fact no evidence that D could not understand and answer questions.  Indeed, the intermediary instructed for the trial in the Crown Court in her report had stated:
"Despite his age, delayed understanding of spoken language and his speech difficulties [D] has the ability to give evidence in court and would benefit from the use of a registered intermediary to maximise the completeness, coherence and accuracy of the evidence given."
It is clear that her view was that D was a competent witness.
19.	The criticisms of the conduct of the ABE interview were for the most part, if not wholly, accepted.  Miss Martin accepted that pursuant to the provisions of section 78 of the Police and Criminal Evidence Act 1984, the interview should not have been admitted because of those failures to comply with the code "Achieving Best Evidence".  Her submission was that the admitted breaches were very significant and could only be addressed by the exclusion of the interview.
20.	In his ruling on the application to exclude the interview, the learned judge said:
"It is apparent that prior to the interview, he told others about the alleged acts by the defendant; his comments were noted and reported to the Police and the defence have been supplied with those notes.  It is right that it is not precisely known what has been said by and to [D] over the interval between the alleged acts and the recorded interview, but there is a good deal of detail from the notes and nursery, school and local authority records, which have all been disclosed to the defence.
The defence have identified the various stages in the video recorded interview at which [D] was prompted or reminded that he had said things to another officer.  The details of the prompts are set out in the skeleton argument.  I have considered them all.  It is right to observe that the questioning was, at times, a little clumsy and there were the prompts identified, but at no stage was [D] obviously led into giving any detail and such faults as there were can properly be the subject of argument and legal direction to the jury: in other words, the complaints go to the weight of the evidence, something to be determined by the jury.  With hindsight, it is clear that there should have been an intermediary present during the interview and a series of breaks: it is quite apparent that [D]'s attention span, unsurprisingly for a 6 yo boy in his circumstances, made breaks desirable.  However, he was able to address all questions in an apparently competent and coherent manner.  It is also right, as has been submitted, that there is no evidence as to [D]'s ability, aged six, to remember events almost two years earlier.  However, again, this is a matter for the jury to consider in the context of all the evidence and their life experiences.
I have considered all the points made by the defence.  I am satisfied that the trial process, by questioning, comment and submission by Counsel and by direction by me, can and should properly address the criticism raised.  The circumstances of and means by which [D]'s interview was obtained was not inherently unfair and none of the complaints, either individually or in combination are of such a nature or degree that the admission of the evidence of the interview would have such an adverse effect on the fairness of the trial that it should not be admitted." 
21.	In our judgment, there can be no criticism of the learned judge's approach to that submission.  While he did not refer to it, his reasoning is amply supported by the observations of this court in K [2006] 2 Cr App R 10 at paragraphs 23 to 26.  We observe that later, in what we consider to be a scrupulously fair summing‑up, the Recorder drew the jury's attention to all these criticisms of the interview.   
22.	Of the other grounds of appeal, no objection was taken at trial to the course followed by the Recorder when D refused to answer questions in cross‑examination.  That course was, in our judgment, both sensible and pragmatic, and the jury were in due course directed as to their approach to this part of the evidence.  
23.	The course taken by the learned Recorder reflected the views of this court in Cameron [2001] EWCA Crim 562 at paragraphs 19 to 23.  We repeat that the questions asked were the questions drafted by defence counsel and were not questions of the judge's choosing.  What matters in the judgment of this court is not who asked the question, but D's answers to them.
24.	The submission of no case on count 2 turned on answers of D when he was describing the occasion when the applicant played with his penis when he was in bed.  Miss Martin accepted that the interviewing officer clearly misunderstood what D was saying.  The evidence was helpfully summarised in the Recorder's Ruling:
"The introduction to the passage in question began with the question, 'Has Steve ever seen your willy?, and then [D] said, yes, when he was in the living room, and then said, 'I mean, when ‑ when I was in bed'.  And he went on to explain, page 27, 'He was sneaking up, and him ...' ‑ he used the word 'Him' when he meant 'He' ‑ '... and him pulled my pants down'.  And the passage goes on, 'Was [K] there?' Answer: 'Mm, but he was asleep'.  Police Officer: 'He was asleep?  So was it night‑time?' 'Erm yeah'.  Police Officer: 'And had you been asleep and woke up, or had you just not gone to sleep?  And then [D] replied, 10:06:16, 'Erm, I just went ...', and then he demonstrated in the interview, closing his eyes.  And he said, 'I just went ...' and closed his eyes, '... a few ...'  And then the Police Officer, with nothing more, said this.  'So you were asleep.  But did you wake up when Steve sneaked up ...'  [D] said, 'No', '... and pulled your pants down?'  'No'.  'You didn't wake up?'  'No'.  'So how do you know what happened, then?'  'Cause I would feel it'." 
25.	In his written grounds, Mr Callan submitted that on that evidence D was or may have been asleep and so may have been dreaming what had happened, and so there was no evidence of the alleged sexual assault and the count should have been withdrawn from the jury under the second limb of Galbraith [1981] 73 Cr App R 124.
26.	Miss Martin, who adopted that submission, argued that the learned judge in fact substituted his own interpretation of D's evidence.  We cannot accept that, and that is clear from the later part of the learned judge's Ruling:
"Now, the problem in relation to this whole passage is that at no stage does [D] ever say that he was actually asleep.  It is the assumption of the interviewing Police Officer that he did fall asleep, and she was just concerned as to ‑ that he had fallen asleep, whether he had woken up.  But what [D] then says and goes on to say in the remainder of the passage is entirely consistent with a child who is in bed, with his eyes closed, but not asleep, and is describing events that take place and that he can feel, with his eyes closed.  But he does not actually look and see who it is, what he is doing, what is happening, or what he says is happening to him, which consisted of playing with his willy, rubbing his willy with his hand, and he described, demonstrated a backwards and forwards or side to side‑type motion with his hand when he described that.  And that it was ‑ he knew it was Steve, because he said,'I know what Steve feel like', and it was not [K] or his Mum, because they would not do it.  And then there came a point when he, the person, who he says was Steve, talked once and said, 'Rock‑A‑Bye Baby'.  And he said that at a time that he was playing with his, [D]'s willy.
All this leads me to the conclusion that it is perfectly open to a Jury to conclude that he was not asleep at the time this event occurred."
27.	In the judgment of this court, that was a correct summary of the evidential position.  It was for the jury to decide what had happened.  
28.	The single judge, in his observations when he refused permission, concluded with these words:
"... I find no substance in any of your Grounds of Appeal.  Although [D] was very young, and the normal trial process had to be modified in a number of ways, the judge took great care to ensure that your trial was fair.  I can find no ground on which it could be argued that any of your convictions is unsafe."
29.	With those observations, this court respectfully agrees, and we adopt them. 
30.	The additional ground of appeal of the applicant's own making is based on an undated signed witness statement of D's mother, who states that D did not want to go to his natural father and got on well with the applicant, who was loving and caring to both D and his elder brother, "K".  She states:
"I had no concerns with Steven being around my children as he is warm and friendly and caring to be around.
I can't tell you enough how much both myself and my children loved having him around but it's the truth.  He was a breath of fresh air, he taught [K] to have confidence and not to be scared to ask if he wasn't sure on anything.  He was what we all needed, we did things together as a family, played games went out even homework was done as a family."
31.	There is extremely limited support for that assessment of the applicant in the evidence of the nursery school manager, who described the applicant as cuddling and kissing D and blowing raspberries on his tummy.  But that witness also described the applicant and D's mother behaving in a sexually inappropriate way in public (see above).  
32.	We have concluded the evidence is not capable of belief but, more importantly, there is no explanation, reasonable or otherwise, for the failure to adduce that evidence at trial.  That application would accordingly be refused if we were minded to allow the application for an extension of time, but we are not persuaded there are any arguable grounds to challenge the safety of the conviction.  
33.	We accordingly refuse the application for an extension of time. 
34.	We consider the application for leave to appeal against sentence.  The submission is that the sentence was manifestly excessive.   
35.	If we may say so, Miss Martin made her submission with understandable hesitation, recognising as she does that the starting point of 13 years applied to this offending because of D's age and the abuse of trust.  We would add that there are additional aggravating factors.  They are D's extreme youth and what the sentencing judge referred to as an element of grooming.  Additionally, the sentence had to reflect the applicant's overall criminality and culpability.  While he had no previous convictions of sexual offending, he had a number of previous convictions.  We are not persuaded there are any arguable grounds that the sentences were manifestly excessive.