![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> KC, R, v [2022] EWCA Crim 1378 (20 September 2022) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2022/1378.html Cite as: [2022] EWCA Crim 1378 |
[New search] [Printable PDF version] [Help]
CRIMINAL DIVISION
Strand London WC2A 2LL |
||
B e f o r e :
MR JUSTICE PEPPERALL
MRS JUSTICE FARBEY DBE
____________________
R. | ||
v | ||
KC |
____________________
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected]
(Official Shorthand Writers to the Court)
MS K ROBINSON appeared on behalf of the Crown.
____________________
Crown Copyright ©
LADY JUSTICE SIMLER:
Introduction
The facts
The impugned documents
"The first page -- and I've put 'A' in the top left-hand corner of each of these, and I've done that to remind you when you go to your jury room that these are not directions of law. These are simply my suggestion from this side of the bench as how you might like to approach the evidence, a common-sense approach I would say, but I'm in your territory. So, I am not telling you how to think. I am just putting these documents before you as perhaps a way you might like to look at the evidence."
"The prosecution say it is not as simple as that. When children are abused, and whether she was abused is what you have to decide, children are often confused about what is happening to them and why it is happening to them. Remember you are dealing with a child and that is something you should have at the forefront of your minds when you consider whether this young woman is telling you the truth. The child may have had some inkling of what is going on is wrong. Sometimes children even blame themselves when there is obviously no need for them to do so.
A child can be inhibited for a variety of reasons from speaking out. They might be fearful they might not be believed, a child's word against a mature adult. They may be scared of the consequences or fearful of the effect upon relationships which they have come to know. The difficulties you may think are compounded in the family situation where they involve someone for whom the feelings of the child may be mixed. The child might not like the abuse but there may be other aspects of the abuser that causes the child to view them with some degree of affection. The fallout from disclosures can be unpredictable and sometimes far reaching. If children are abused, you may think they are subject to very mixed emotions and that can be the case particularly when there is an imposing adult in the household.
Place [V's] evidence in the context -- in such context when you consider why it was she didn't speak out to her mother at the time or to the police when the defendant had left the home for good. Examine any reasons she may have given for not speaking out.
And, ladies and gentlemen, I make it clear that I offer these matters to you -- I have put 'like the two earlier matters' but we're about to turn to those, the why question and grooming -- not by way of directions in law -- and I put that in bold to emphasise it -- but as things which in common sense and with your knowledge of the world and people you might like to consider when assessing whether you find there is a reason for the delay here and of course the honesty and truthfulness of [V]."
HHJ Hickey continued:
"You have heard explanations given by [V] and it is entirely a matter for you what you made of [V] when she said, 'It may sound stupid but I felt I couldn't say to my mum, 'I've been doing stuff with your boyfriend' or I was ashamed. It was hard to be a child in a second relationship. I tried so hard to be good and after the defendant left, she [referring to her mother] had given him up. He had gone from our lives. I didn't go to the police. I didn't want to bring him back. Or, looking back, I thought mistakenly we'd had an affair and I am still living with the outcome. Shame. I still think I've done something wrong. He was an adult. I was a child. I couldn't turn to anyone. They were so happy to have him around. I was a girl with absent parents. He is powerful and he is scary. He still scares me.'
Examine those explanations, ladies and gentlemen. They are for you to assess along with any evidence in the case."
A direction in similar terms, albeit without the evidential context in the final paragraph which we have quoted, was criticised in Miller as being longer than might have been expected but in the context of a summing-up that extended to 94 pages was not regarded as too long.
"That means D won [V's] trust by doing things that would normally be innocent, such cuddling up together on the sofa, watching TV in the conservatory, before placing his hand, & later his mouth, on [V's] breast area. Then, over time, the D would take a shower with [V], be in the bedroom that he shared with the girl's mother, before going on to touch [V's] private area, before finally, in Florida, on holiday, D invited the girl to shave her private area before performing oral sex upon her. That is to say, D 'incrementally' moved 'up the scale' in his behaviours toward [V].
In this situation, a child is unlikely to realise that she is at any risk at all. And when the behaviour changes from something 'innocent' to something that is sexual, the child may not realise there is anything wrong. The child may accept the sexual touching without any feeling of discomfort or dislike, & the child might not make any complaint about it or resist or protest when it happens again. In these circumstances a child is unlikely to be able to say when behaviour that was 'innocent' changed to something that was sexual.
In explaining this I am not suggesting what you should decide did, or did not, happen. I am simply making sure you understand a potential difficulty a child in such a situation could face. It is for you to decide whether or not [V] faced this situation."
"Here, the [defendant] suggests that [V] did have an improper motive to make these allegations up:- namely that she was angry that the [defendant] had left her to cope with a drunken Mother.
Remember what I told you about the burden and standard of proof? The Prosecution must prove their case. The defendant does not have to prove anything. He does not have to make you sure that there is some improper motive. Even if you reject [defendant's] suggestion for [V] having had an improper motive, that in itself proves nothing. The Prosecution have to make you sure that, first, there is no improper motive for making such allegations and, secondly, the allegations are truthful and accurate."
"And the second matter, ladies and gentlemen, as I hope I made clear, indeed it is on the face of the documents, when I opened my remarks about the evidence in this case, I gave you three documents with a letter A in the top left corner. They are not directions of law, as I told you. They are simply ways I invite you perhaps to approach the case. How you approach the case is entirely for you. You are the jury, I am not. It is simply for assistance whereas the other documents that you had earlier in the case on law, they are to be followed, as you appreciate.
I can see you nodding. I am sure you got the point. Thank you very much."
The appeal
"Here, the [defendant] suggests that [V] did have an improper motive to make these allegations up:- namely that she was angry that the [defendant] had left her to cope with a drunken Mother."
as an inadequate summary. The appellant's case on "WHY" was more nuanced than that reflected by the judge. His case was that V's mother was an alcoholic, and her condition varied over time. V blamed him for her mother's distress and for the decline in her condition that occurred after he left her and ultimately led her to commit suicide. For V, there may have been a mixture of anger about the leaving and the breaking up of a family unit and concern at the reaction of her mother to that breakup and to the decline in her health.
Our Analysis
"Written materials that may assist the jury in relation to a complex direction, or where the case involves a complex chronology, competing expert evidence or differing descriptions of a suspect."
The Practice Direction makes clear that it can be done at any time which will assist jurors to evaluate the evidence. That, of course, is right and it is well established practice that judges should submit such documents to counsel for consideration in good time before their closing speeches and should discuss and seek agreement on the content with counsel in the absence of the jury.
The sentence application