Case No: 201604701 C1
Neutral Citation Number: [2017] EWCA Crim 983
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORWICH 
HIS HONOUR JUDGE BATE
T20160055
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/07/2017
Before:

LORD JUSTICE McCOMBE
MRS JUSTICE CHEEMA-GRUBB DBE
and
 HIS HONOUR JUDGE ZEIDMAN QC
(sitting as a Judge of the Court of Appeal (Criminal Division)) 

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Between:
	PF	
Appellant	
	- and -		
	REGINA	Respondent	

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Mr Paul Jarvis (instructed by Registrar of Criminal Appeals) for the Appellant 
Mr Andrew Oliver (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 30 June 2017

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Judgment
Lord Justice McCombe: 
1.	The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case and under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. The prohibition applies unless waived or lifted pursuant to s.3 of the Act. Certain names are therefore anonymised in this judgment.
2.	The charges preferred against the present appellant were sexual offences said to have been committed against his two sisters, X (born in March 1970) and Y (born in September 1971). He was born on 22 January 1969. There were also two brothers, V and M; V is two years older than the appellant and the youngest child is M who is 6 years younger than him. 
3.	There were thus 5 children. As for the parents, the father was an RAF pilot and, when the children were young, the family moved around from one RAF base to another; the mother, it appears, had mental health problems and problems with alcohol. The family moved to RAF Brüggen in Germany in about October 1977 and from there to RAF Coltishall in Norfolk in the summer of 1981. Home life was clearly difficult and in August 1983 final care orders were made in respect of X, Y and M, with only the appellant and V being left with the parents. This date marks the end of the indictment period. 
4.	On 14 September 2016 in the Crown Court at Norwich, after a trial before HHJ Bate and a jury, the appellant was convicted on one count of indecent assault, contrary to s 14(1) of the Sexual Offences Act 1956 (Count 4) and one count of indecency with a girl under 14 years of age, contrary to s 1(1) of the Indecency with Children Act 1960 (by a majority of 10 to 2; count 6).  
5.	The offences were said to have been committed by him, on dates between 11 May 1979 and 7 July 1983, when he was aged between 10 and 14; X was aged between 9 and 13 and Y was aged between 10 and 12. The counts on which the appellant was convicted (counts 4 and 6) related to X. He was acquitted of offences against Y: these were count 1 – indecent assault (by jury verdict) and counts 2 and 3, also indecent assault (on the judge’s direction, following successful submissions of “no case to answer”). It emerged in evidence that Y was saying that the incident in count 2 had occurred in Germany (thus outside the court’s jurisdiction) and hence the direction to the jury to acquit on the submission of no case. In respect of count 3, Y simply did not give evidence of the indecency alleged in that count. So again a submission of no case was upheld.
6.	On 3 November 2016 the appellant was sentenced to a Community Order for 6 months with a curfew condition for 4 months on each count, to be served concurrently. 
7.	The appellant now appeals against the convictions on counts 4 and 6 by leave of the Single Judge. 
8.	The complainant did not know exactly when the offences occurred between 1979 – 1983 (during which time the appellant was aged between 10 years and 4 months and – 14 years and 6 months). Consequentially HHJ Bate directed the jury that the appellant must be treated as being below the age of 14 and that the rebuttable presumption of doli incapax applied to all counts, meaning the appellant, as a child, was to be deemed incapable of committing a crime unless the prosecution could rebut that presumption. 
9.	The requirements for the rebuttal of the common law presumption of doli incapax were summarised in R v M (D) [2016] EWCA Crim 674 at [16] (see further below) as follows: “The presumption was rebutted only if the prosecution proved beyond reasonable doubt both (i) that the child had caused an actus reus with mens rea, in other words committed the crime, and (ii) he or she also knew that the particular conduct was not merely naughty or mischievous but seriously wrong.” 
10.	The rule was abolished as from 30 September 1998 by s 34 of the Crime and Disorder Act 1998 but that provision did not have retrospective effect. Thus, the common law presumption applied in the present case. 
11.	The Judge gave written directions to the jury which included a direction on doli incapax (14E – 15C; 46A – F) as follows: 
“In order to convict the Defendant of the individual count you are considering, the prosecution must make you sure that:
a)	the genital touching took place in the way described on the Indictment and
b)	he knew at the time that right thinking people would say touching his sister in this way (or her doing so to him) was indecent and 
c)	he knew at the time that this act was seriously wrong not merely naughty or mischievous.”
12.	The Learned Judge repeated those directions in answer to a question from the jury after they retired to deliberate (Transcript of Summing-up pp. 46B – F]:
“You asked the question ‘At what age does someone become culpable?’ The answer in English law is that somebody must be at least ten to be guilty of any criminal offence of whatever kind. In the particular context of these offences under that Act at the time which we’re concerned, culpability and the proof thereof is reflected fully and in a very case specific way by the directions I’ve already given you. In other words, to prove culpability, or to put it another way, to prove the offence, you must be sure of all three ingredients in respect of each count that you’re considering. In other words, proof the physical fact, the act happened at all, which is the main dispute, did that conduct take place of a sexual kind and if it did, did the defendant realise it to be indecent and seriously wrong in summary, so culpability as I say, don’t worry about as it were, more general concepts. Those are matters for us lawyers. Your task, of course, is to focus on the facts that we’ve got in this case and apply my directions to them.” 
13.	The appellant’s single ground of appeal is that the Judge misdirected the jury on the issue of doli incapax in that, although he directed them that they had to be sure, on each count, (a) that the appellant did the act alleged against him and (b) that he knew that it was seriously wrong he failed to direct them (c) that, to be satisfied of (b), there had to be clear positive evidence to that effect distinct from the doing of the alleged act itself.
14.	The common law position was stated in C (a minor) v DPP [1995] 2 Cr App R 166; [1996] AC 1 (House of Lords). At page 38D - F Lord Lowry, having reviewed previous authority, said:
“I turn…to consider what must be proved to rebut the presumption and by what evidence…
A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief. […]
The second clearly established proposition is that evidence to prove the defendant’s guilty knowledge must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act might be…
The cases show, logically enough, that the older the defendant is and the more obviously wrong the act, the easier it we to prove guilty knowledge. The surrounding circumstances are of course relevant and what the defendant said or did may go to prove his guilty mind…”. 
(See also L (A Minor) v DPP [1996] 2 Cr App R 501 (Divisional Court, Otton LJ and Newman J) at p. 504 B-C.) 
15.	The importance of the inclusion in any jury direction of the final element going to the rebuttal of the presumption (the finding of clear evidence beyond the doing of the act in question), if not clear already, was made so in the decision of this court in R v M (D) [2016] EWCA Crim 674; [2016] 2 Cr App R 20 (supra). The judgment was delivered on 20 May 2016, prior to the commencement of the trial in the present case but, as both counsel before us frankly acknowledged, it had not come to their attention by the time of the trial in September 2016. The Judge was not referred to it.
16.	In that case, as in this, the appellant was charged with offences (three in number) of indecent assault upon a younger sibling, two of these were said to have been committed when he was aged between 14 and 16 (counts 2 and 3). The other (count 1) was said to have been committed at a time when, on the complainant’s evidence, she was not sure whether he had been under 14. Thus, the presumption of doli incapax arose and the judge had to direct the jury about it. 
17.	The judge in M’s case directed the jury in terms similar to those used by Judge Bate in this case. He omitted specific reference to the need for the jury to be satisfied, on evidence independent of the alleged act itself, that M knew what he did on the relevant occasion was seriously wrong.
18.	It was held that the direction was defective. Simon LJ (giving judgment for himself Langstaff J and HH Judge Cutler) said:
“27 The direction was in our view deficient in one material respect. The presumption of incapacity could only be rebutted by the prosecution by clear positive evidence, not consisting merely of acts amounting to the offence itself, but that the defendant knew that his acts were seriously wrong as distinct from mere naughtiness or childish mischief.”
The court referred again to the passage from Lord Lowry’s speech in C which we have quoted above. The conviction on the relevant count was found to be unsafe and was quashed.
19.	It is, we think, material to note that in the M case there was admitted before the jury evidence of “bad character” of the appellant about two other alleged incidents, committed when the appellant had been aged between 11 and 13, in which acts of indecency were said to have occurred. After the first (called in the case “the Lego Incident”) M had told his half-sister to deny that anything had happened if questioned by their mother. In the second (called “the Swimming Pool Incident”) the appellant had coerced her into performing oral sex upon him and had prevented her from getting out of the changing cubicle door until she had done so. No reference had been made in the summing-up to either of these incidents as being capable of sustaining a finding of the necessary guilty mind on M’s part. Nor was it suggested that the conviction on count 1 was safe because, in context, such evidence could have been taken by the jury as the necessary evidence, absent a direction to that effect from the judge. The conviction on count 1 was simply quashed.
20.	Both counsel before us accept that the Judge’s directions in this case suffered from the same deficiency as that of the judge in R v M(D), in failing to put the necessary additional limb of the rebuttal test before the jury. For the appellant, Mr Jarvis submits that this renders the convictions on counts 4 and 6 unsafe.
21.	Mr Oliver for the Crown submits that the judge directed the jury extensively as to the evidence of both X and Y as to the bullying and coercive behaviour of the appellant, as the context in which any sexual acts were committed. Such conduct, he argues, was evidence well capable of rebutting the presumption of incapacity which the jury must have considered as part of their conclusions in the case.
22.	He referred us, by way of example, to the following passages of the summing up: pp. 4D-E; 23F; 24E; 25E-G; 26B-C; 26D-H; 28C; 28F-G of the transcript, e.g.: 
i)	“It is said by the Crown that he sexually abused his younger sisters, [X and Y], by a mixture of coercion and bribery when the children were left to find for themselves outside of school hours because their father was working nights on the base and their mother was ill.” [4D-E]
ii)	On page 24, there are references to evidence of the children not having enough food and the Defendant using food and cigarettes to bribe his sisters for sexual intimacy. 
iii)	At pp. 25 E-G reference is made to Y’s evidence that “Paul would give me a cigarette after sex. It wasn’t as blatant as offering it beforehand, sometimes I didn’t know I’d be rewarded. I didn’t think it was a choice at the time, it was something I had to do so I thought I might as well have the fag. It was emotional and mental rather than primarily physical. He never threatened to beat me up. He threatened to do things to my sister or mum.” [25E – G]
iv)	At p. 26B-F the judge summarises X’s evidence of the appellant’s controlling behaviour towards the other children and the use of what amounted to bribery or reward as the quid pro quo of sexual favours: “She recalled that she did touch his penis and that she went on to do so a number of times in order to obtain access to cigarettes or food. Again, a common theme which is accepted is that the children always felt hungry”.
v)	The judge referred [at 28C] to X’s evidence that “we felt we had to do it because he had food or goaded us in some way. We were fearful of him.”
23.	Thus, Mr Oliver argues, the evidence of the defendant’s coercive and bullying behaviour towards his siblings did extend beyond the evidence of the offences and the jury were reminded of this evidence thus inviting them to take it into account. This, he submits, was the equivalent of a full direction on rebuttal of the presumption along the lines now required in accordance with the decision in M’s case. 
24.	In contrast, Mr Jarvis submits that, notwithstanding this evidence of bullying and coercion the convictions remain unsafe in the absence of the full requisite direction. This, he argues, was a case in which the jury might have convicted simply on the basis of being satisfied that the relevant acts had been committed. It is noteworthy that the appellant denied any sexual activity with Y and he was acquitted of the one outstanding count before the jury in relation to her. However, as the judge recorded in the summing up (p. 28D et seq.) he said in evidence that he got on better with X than with Y and he accepted a “modest degree of sexual contact between her, between [X] and him. The judge said to the jury, “He told us, ‘It was about four times, looking at each other, touching and finding out about different parts of our bodies. [X] sometimes instigated it. It didn’t seem wrong to us. I was never violent to her.’ He denied any coercion, bullying or bribery and denied offering “after the event” rewards of the kind described by the girls…”. 
25.	Mr Jarvis argues that the jury were never directed specifically to decide whether the bullying or coercion ever occurred. The evidence about it was contested not merely by the appellant but by one of the brothers also. He submits that it was possible that convictions resulted simply from the jury’s satisfaction that the sexual acts took place against X. In contrast they may not have been satisfied, in the case of the offence alleged against Y in the face of the denial of any sexual activity with her, and acquitted on the surviving count in respect of her. All the jury needed to find, on the judge’s directions as given, was a) that the acts against X were committed; b) that right thinking people would have regarded them as wrong and c) that he knew that they were seriously wrong, without any reference at all by them to any independent evidence that might support a finding of c) and without having been told to decide whether or not they accepted that evidence.
26.	Mr Jarvis also argues that, on Mr Oliver’s argument, in the M case the evidence of M’s conduct over and above the acts in issue in the Lego Incident and/or of the Swimming Pool Incident might have been capable of saving the conviction on count 1 in that case, even though not specifically relied upon as meeting the requirement for independent evidence. However, that clearly was not so in the light of this court’s decision.
27.	For our part, we accept these submissions of Mr Jarvis. It is clear, and it is accepted by Mr Oliver, in the light of the decision in M, that the directions to the jury in this case were defective, even though we can well understand why they were given as they were. The jury were never directed for the need to find evidence independent of the acts in question to rebut the presumption. They were never told that the Crown relied upon the bullying and coercion alleged by the sisters (but denied by the appellant – and it seems by his brother M) as being the necessary independent evidence. They were not told that, before convicting, it was necessary to consider this evidence and to find that such behaviour had been proved before they could be satisfied that the Crown had established that the appellant knew what he did was seriously wrong. 
28.	It may be that the jury (or some of them) did accept that the bullying conduct took place. However, they had admissions of sexual acts with X, but not with Y. In such circumstances, as it seems to us, it was particularly important for the jury to be directed as to the evidence, independent of the acts committed on X, which was capable of showing that the appellant knew whatever he did to X was seriously wrong and to be told that they must be satisfied of the accuracy of that evidence before convicting. As the High Court of Australia said in RP v The Queen [2016] HCA 53 (a decision to which we were helpfully referred by Mr Jarvis) at [33]:
“It is common enough for children to engage in forms of sexual play and to endeavour to keep it secret, since even very young children may appreciate that it is naughty to engage in such play. The appellant’s conduct went well beyond ordinary childish sexual experimentation, but this does not carry with it a conclusion that he understood his conduct was seriously wrong in a moral sense, as distinct from it being rude or naughty.”
It seems to us that in a case where such sexual conduct of a nature of childish experimentation is admitted, it is particularly important to focus the jury’s attention upon the evidence said to be properly capable of demonstrating that the particular defendant must have known that his conduct went well beyond the mere “rude or naughty” and to direct them that they must be satisfied by that evidence that the defendant knew that what he did was seriously wrong in the relevant sense. That did not happen here.
29.	For these reasons, we find the convictions on counts 4 and 6 are unsafe and should be quashed. The appeal is, therefore, allowed.