YGM [2018] EWCA Crim 2458
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YGM [2018] EWCA Crim 2458 concerned an appeal against conviction for two counts of rape of a child under 13 and a renewed application for leave to appeal against sentence, both of which were dismissed by the Court of Appeal (Lady Justice Hallett, Stuart-Smith J and May J) on the grounds that the trial had been fair and the sentence neither excessive nor wrong in principle.
The appellant had been convicted on 24 March 2017 at Kingston upon Hull Crown Court following a trial before His Honour Judge Richardson. On 21 April 2017 he was sentenced to a special custodial sentence for an offender of particular concern comprising a custodial term of sixteen years with an extended licence period of one year on both counts, to be served concurrently. He was acquitted on counts 3 and 4, which related to allegations by the complainant’s sister that had not been pursued in evidence.
The complainant was seven years old at the time of the offences. She and her younger sister were children of the appellant and his former partner. After the parents’ separation, arrangements were made for the appellant to see the children once or twice a week, but both girls told their mother they did not wish to see him without giving reasons. In July 2016 the mother saw the complainant touching her vagina and asked what she was doing. The child said that her father had rubbed his “thing” on her “front bum” and that it happened “a lot” after the separation. She added that her father had told her not to tell her mother or they would both be dead. The children were placed in foster care and the police were informed.
An Achieving Best Evidence interview was conducted with the complainant in the presence of an intermediary and lasted sixty-seven minutes. The child initially found it difficult to disclose abuse and for the first twenty minutes described liking spending time with her father. She was asked to draw a picture but said she did not know how to draw what had happened. Eventually she said her father would take her trousers down at night and “get his privates”. After a break and with the use of anatomical diagrams and arrows, she indicated that the appellant put his private part on hers and pressed down hard so that it hurt “in the inside bit”. She agreed with the officer’s summary that he had put his private inside hers and moved it from side to side. She said she had not told anyone because her father told her they would die if she did. The officer went over the complaint twice more before completing the interview. A consultant paediatrician found a complete transection of the hymen in the seven to nine o’clock position, a finding strongly supportive of past penetrative child sexual abuse. There were no signs of recent injury.
The appellant was arrested in 2017 and denied the allegations. At trial his case was that the complaints were false and made at the instigation of the mother, who was said to be living a chaotic lifestyle and taking drugs and who wished to be rid of the appellant and to prevent him removing the children from her care. Mr Genney, who represented the appellant at trial, asked a limited number of short and direct questions authorised by the judge, including matters relevant to the family situation and a direct question whether the mother had put her up to making the allegations. He cross-examined a police officer about the conduct of the interview and the mother about her lifestyle and possible motives for prompting a false complaint.
Before the summing-up, the judge circulated a draft of his proposed directions. Mr Genney invited the judge to direct the jury about the limitations placed upon him by the principles governing cross-examination of a vulnerable witness. The judge ruled that it would be appropriate to explain that cross-examination of a child cannot be as extensive or forceful as it might be of an adult. He stated that he intended to direct the jury that Mr Genney had conducted a cross-examination which was entirely proper and in accordance with the current regime but that such a cross-examination has limitations because it is not possible to test every item with depth and vigour and the jury should take that into account in weighing the evidence. The judge declined to adopt Mr Genney’s suggested wording that the limitations related to content, form and duration of the questioning, though he referred counsel to R v Lubemba [2014] EWCA Crim 2064. Mr Genney addressed the jury in accordance with those directions, submitting that the interviewers had great difficulty extracting the complaints and this was because they were untrue. In his summing-up, the judge directed the jury both orally and in writing that it is good practice that children are not cross-examined with the vigour adopted for an adult, that this inevitably has limitations because it is not possible to test every item with depth and vigour, and that the jury should take that limitation into account when weighing the evidence. He repeated that the cross-examination had been conducted entirely properly.
The appellant advanced three grounds of appeal against conviction. Ground 1 was that the disparity between the limited cross-examination and the method, content and duration of the ABE interview had a wholly disproportionate and unfair effect. Ground 2 was that the judge’s directions to the jury as to the law regarding permitted cross-examination of a child were insufficient and the judge erred in refusing Mr Genney’s suggestions for further amendment. Ground 3 was that the judge unfairly curtailed Mr Genney’s comment in his closing speech on the extent to which he was permitted to cross-examine in contrast to the questions asked in the ABE interview. In the course of argument, Mr Wright QC for the appellant combined grounds 1 and 2, describing Mr Genney’s cross-examination as a model of its kind and no longer complaining about the restrictions placed on the cross-examination itself. The complaint became one of insufficient judicial direction to the jury to compare and contrast the short, properly structured cross-examination with the one-hour ABE interview. Mr Wright also complained that the interviewers had been repetitive and asked leading, prompting or “tag” questions. He identified specific deficiencies: the judge had not explained the limitations on cross-examination prior to its occurring, as recommended in the Judicial College Compendium and in R v Wills [2011] EWCA Crim 1938; the judge failed to compare and contrast the content, form and duration of cross-examination with that of the examination in chief; the summing-up did not address Mr Genney’s concerns about the contrasting approaches; and the judge’s directions did not sufficiently remind the jury that the child’s evidence was very much in dispute.
As to ground 3, Mr Wright accepted that there may have been a degree of misunderstanding but contended that the judge restricted Mr Genney’s comments and that he should have been entitled to make further submissions on the length of time taken by the interviewers, the criticisms of the interview and the perceived imbalance between the latitude given to the prosecution and that given to the defence.
Mr Worsley for the Crown submitted that the evidence was elicited in accordance with good practice, that the defence was able to suggest editing of the interview, and that Mr Genney was allowed to put any matters relevant to the defence, the limitations being as to style rather than content. He conceded that it would have been preferable had the judge warned the jury before the cross-examination of the limitations placed on the cross-examiner and possibly discussed whether any further direction was required after the cross-examination. Nonetheless, he maintained that the experienced trial judge had given a sufficient warning in the context of a very short trial with very clear issues.
The Court of Appeal, pressed by concerns expressed by the single judge, took the opportunity to set out best practice for cases involving cross-examination of a vulnerable witness. Lady Justice Hallett held that the identification of any limitations on cross-examination should take place at an early stage, assumed to be at the ground rules hearing where the judge will discuss with advocates the nature and extent of limitations and whether they relate to style or also to content. Before the witness is cross-examined, it is best practice that as well as giving the standard special measures direction the judge also directs the jury in general terms that limitations have been placed on the defence advocate. If any specific issues of content have been identified that the cross-examiner cannot explore, the judge may wish to direct the jury about them after the cross-examination is completed, but on any view the judge should direct the jury about them in the summing-up. Finally, every advocate and trial judge is expected to ensure that they are up to date with current best practice in the treatment of vulnerable witnesses.
Turning to the safety of the convictions, the court held that it did not follow from the fact that the trial judge did not adopt best practice in every respect that a conviction is unsafe. The court rejected the assertion that the convictions were unsafe for the following reasons. First, the appellant no longer complained about the limitations placed on cross-examination and conceded that the limitations did not themselves undermine the fairness of the trial. Even if limitations as to content had been placed on the defence advocate, this would not necessarily have affected the safety of the conviction because there are usually ways in which a defence case and relevant material can be put fully and fairly before a jury without confronting a vulnerable witness and causing unnecessary distress or confusion. Second, whilst the ABE interview was probably too long for a child of seven and was not a perfect model of its kind, many of the questions asked by the officer were questions that Mr Genney would have wished to ask and he relied on some of the answers elicited. The answers were evidence whether the questions were asked by the officer or by Mr Genney. Third, whilst the judge did not warn the jury of the limitations before cross-examination took place, as the court would recommend as best practice, he gave every other direction recommended with care and precision. He directed the jury in his summing-up of the need to limit the cross-examination and repeated that warning when he reminded them of the contents of the cross-examination. He reminded the jury of the contents of the ABE interview in some detail, including a comment favourable to the defence, and referred to the defence case throughout his summing-up, summarising it in detail at the end. This included a list of seven principal submissions said to undermine the prosecution case, one of which amounted to a clear assertion that the mother had persuaded her children to make false complaints. The list was included in the written directions handed to the jury.
The court held that overall the summing-up and the judge’s directions were fair. The jury must have been well aware of the limitations placed upon Mr Genney from the judge’s directions, from the cross-examination itself and from Mr Genney’s own submissions. There could be no doubt in the jury’s mind that the child’s evidence was very much in dispute, a fact the judge reminded them of more than once. As to Mr Genney’s submissions to the jury, on the court’s reading of the transcript the only matter the judge refused to allow was the length of the ABE interview as compared to the timing of the cross-examination. The judge was entitled to form the view that it was not a relevant factor. What was relevant was the effectiveness of the questions asked and the facts elicited. In any event, both the judge and Mr Genney reminded the jury of the difficulties the police officer encountered in eliciting the disclosures and Mr Genney went through the ABE interview in considerable detail in his closing submissions. The jury would have been well aware of the length of the interview and his observations on the nature and content of the officer’s questions. The court was satisfied that the conduct of the trial was fair and sufficiently consistent with best practice, albeit with the benefit of hindsight the court would have preferred the judge to have gone further. The conduct of the trial had not tipped the balance unduly in favour of the prosecution, the appellant had had a fair trial and there was nothing to undermine the safety of the conviction.
The renewed application for leave to appeal against sentence was also refused. The appellant was aged 41 at the time of sentence with two previous convictions of a wholly different nature dating back some years. In his sentencing remarks, Judge Richardson described the appellant’s conduct as depraved and cruel and sentenced on the basis that the rapes occurred in excess of four times, probably five or six. He placed the case within category 2A of the relevant guideline and identified a number of aggravating features. Category 2A provides a starting point of thirteen years’ custody and a range of eleven to seventeen years for one offence. The aggravating features included that the victim was very young and very vulnerable, the conduct was repeated several times, the appellant was the complainant’s father and his conduct was a gross breach of trust, the offences occurred in a place where the child should have felt protected by her father, and the appellant had made threats that if the complainant told anyone something terrible would happen to her. The judge identified very limited mitigation, accepting that the previous criminality was irrelevant and that the applicant might find imprisonment more burdensome because of his language difficulties and other unspecified vulnerabilities.
Mr Wright submitted that the sentence was excessive, accusing the judge of double counting and having insufficient regard to the overall length of the sentence. He did not accept that five or six occasions of rape could be called a campaign of rape, though he conceded that the judge placed the offending in the right category and submitted that the sentence could have been somewhat shorter. The single judge, refusing leave, held that a long sentence was inevitable and a higher sentence than the category 2A starting point was justified. The relevant range for one offence extends upwards to seventeen years. The judge dealt with the case on the basis that there were five or six offences. The breach of trust and the location of the offences operated to move the case upwards within the range. It was important to avoid double counting in that respect but the overall impact of this offending on the victim is likely to be lifelong because her father violated her in her own home. For those reasons a sentence towards the top of the category range was required, and that is what the judge imposed. The Court of Appeal agreed with those observations.
In short, the Court of Appeal held that the trial had been fair notwithstanding some departure from what is now recognised as best practice, laid down guidance for the future management of vulnerable witness cases, and found both the conviction safe and the sentence neither manifestly excessive nor wrong in principle.