Simmons [2018] EWCA Crim 2534

R v Simmons [2018] EWCA Crim 2534 concerned an appeal against conviction for sexual offences against a child, referred by the Criminal Cases Review Commission on the ground that the prosecution had failed to disclose relevant material and had misled the defence in correspondence about disclosure.

On 23 April 2007 at Lewes Crown Court Mr Simmons was convicted by a majority of 10 to 2 of causing a child to watch sexual activity and sexual activity with a child (digital penetration). He was acquitted of three further counts of sexual activity with a child and one further count of causing a child to watch sexual activity in respect of the same complainant. On 25 April 2007 he was sentenced to a total of four years’ imprisonment, which he had served by the time of the appeal. The single judge refused leave to appeal on the basis of allegedly inconsistent verdicts on 4 September 2007 and the application was not renewed. Five years later fresh solicitors and counsel applied to the CCRC, which subsequently referred the case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.

The complainant (referred to as X) was 14 years of age at the time of the alleged offending and was in the foster care of the appellant’s mother. She first complained in September 2005 after locking herself in the bathroom following a dispute with other children in the house, when she had allegedly taken an overdose. Her father’s telephone questions prompted her to make the allegation. In an ABE interview she claimed that over two to three weeks in 2005, when the appellant’s mother left her in his care, he behaved in sexually inappropriate ways including showing her pornographic material involving the sexual abuse of young people using a LimeWire application, rubbing her vagina, kissing her with his tongue, attempting to photograph her breasts, digital penetration, placing her hand on his erect penis and simulating intercourse. She said she had not told anyone at the time because she was 14, felt scared, worried and creepy, and had no one to tell, though she did tell someone within days of the abuse ending. Forensic examination of computers seized from the appellant’s home address revealed no images on the family computer but on a computer tower registered to his daughter an expert recovered an image showing child abuse within a file. The link to the “child lover” series (a method of file sharing amongst paedophiles) was described as tenuous. Another expert discovered that the LimeWire application had been downloaded on a computer belonging to the appellant’s mother, on which 56 file names were discovered, 10 of which potentially related to child abuse images. Search terms such as “preteen rape girls”, “underaged Lolitas”, “15-year-old chicks” and “14-year-old sexy girls” had been used. None of the files were videos and they had apparently been downloaded before the LimeWire application had been installed. A cleaning programme had been installed and had been used the day before the appellant’s mother returned home. The appellant was interviewed and gave an account denying the sexual activity, asserting that the complainant was lying. He accepted using his mother’s computer to view pornography but denied showing it to the complainant and said she must have seen it by accident. He relied on his own account and that of his wife, sister and mother to rebut the specific allegations.

The CCRC’s review focussed on the pre‑trial disclosure process. By letter dated 20 July 2006 a Crown Prosecution Service lawyer, Ms Travis, informed the appellant’s solicitors that there was no prosecution material requiring disclosure at that stage. A schedule of non‑sensitive unused material accompanied the letter revealing that X had received a reprimand for three offences against the person in April 2005 and two assaults occasioning actual bodily harm on 16 and 17 May 2005. Ms Travis sought copies of the material on the schedule from the police because she wished to review them. The defence case statement dated 3 August 2006 set out fully the defence case that X had fabricated the entirety of the allegations for unknown personal and psychological reasons. The defence requested disclosure of any material relating to previous allegations made by the complainant against her grandfather and a summary of any decision to withhold material. Ms Travis asked DC Staker, who knew the complainant and had dealt with her before, to review social services and child protection team material for secondary disclosure. He reported on the material but a copy of that report was not sent to the defence. Another officer, Mr Parsons, conducted a review of the material Mr Staker had identified and agreed with Mr Staker’s assessment that X’s problems appeared to be behavioural brought on by her troubled family history rather than mental health issues.

By letter dated 3 October 2006 Ms Travis wrote to the trial solicitors indicating she had not identified any further prosecution material that might assist the defence. In response to their direct inquiry she confirmed she had been informed that X had told clinic staff that her grandfather was a paedophile and that her mother and stepfather were “in on it” but she did not make any direct allegation that offences had been committed against her. Ms Travis explained the background to the allegation that the grandfather was a paedophile, namely that X was simply asserting a statement of fact because her grandfather admitted an offence or offences against another or others, and she did not allege he had abused her. Other than that Ms Travis had no information that the complainant had made any complaint of sexual abuse against anyone inside or outside her family. She explained that the complaints of physical abuse X made against her mother had been substantiated by evidence of injury and information from X’s sister. Ms Travis further explained that X had been taken into care because of physical and emotional abuse by her mother and that she had harmed herself in the past. The defence were told she had been admitted to a psychiatric unit in October 2004 and was not discharged until March 2005 with a diagnosis of adjustment disorder, mixed anxiety and depressive disorder. The lawyer concluded there was no evidence to suggest that previous mental health difficulties had given rise to her making a false allegation that she was the victim of any criminal conduct including sexual abuse. She made no mention of the fact that medical staff treating X for alleged overdoses questioned whether she might be suffering from Munchausen Syndrome, though no diagnosis was ever made. On 25 January 2007 Ms Travis wrote a further letter repeating her assurance there was nothing more to disclose and that her intention was strongly to resist any speculative trawl.

The trial solicitors, by letter and affidavit dated March 2007, requested disclosure of records held by third parties. On 3 April 2008 trial counsel Ms Farrelly appeared at court instructed to make the third party application. The Crown was directed to review the social services files for material of potential relevance. It was agreed the review would be carried out on the first day of trial. The Crown’s papers were passed to prosecuting counsel Ms Briscoe. During the CCRC’s review they were unable to establish whether Ms Briscoe ever reviewed the files as the Crown had been directed. She did not respond to the CCRC’s letters requesting her to provide her notes, which may have been because she was no longer in practice. The Crown Prosecution Service file no longer existed. The CCRC concluded there was a strong inference that Crown prosecuting counsel had all the material generated in respect of disclosure and the reports of the officers but failed to review it. Mr Price QC for the Crown before the Court of Appeal did not suggest the court should approach the case on any other basis. No further disclosure was made, which was confirmed by Ms Farrelly.

The CCRC unearthed material that Mr Price accepted should have been disclosed. Ms Farrelly stated that had she seen it she would have sought to use at least some of it. She could have placed the material before the jury as agreed admissions thereby limiting the need to cross‑examine the complainant. Unfortunately the original material was returned to social services and it had been destroyed. Mr Barlow for the appellant and Mr Price were content to rely on the schedule produced by the CCRC. The CCRC identified about 20 items that should have been disclosed because they were capable of undermining the Crown’s case. These included: in 2001 X aged 9 made allegations of assault by her stepfather; in October 2002 X aged 11 made her first allegation of assault against her mother to a teacher which was investigated and marked no further action; in December 2003 X aged 12 made a second allegation of assault against her mother; in March 2004 there was a third allegation of assault against her mother; in April 2004 X aged 13 made a comment about sexual abuse at home to paramedics following her taking an overdose at school; in June 2004 X’s doctor wrote a letter about her mental health when she was 14 revealing concerns about her mental health and attention‑seeking; in July 2004 X was allegedly violent to her mother, brother and stepfather; in September 2004 X self‑harmed at school; in November 2004 there was a discussion about whether X suffered from borderline Munchausen Syndrome; in November 2004 X made allegations about a paedophile ring including her grandfather; in March 2005 X’s father reported she had tried to stab herself and alleged her mother had beaten her; later that month a neighbour reported a similar incident of self‑harm after an argument with her mother; in May 2005 X made another allegation against her mother, making a 999 call reporting her mother had attacked her, kicking and punching her and throwing her against a wall and that she had taken a packet of 96 ibuprofen tablets (an ambulance crew examined her and noticed just one bruise and did not believe she had taken any tablets); in May 2005 X’s mother called the police because X had locked herself in the kitchen and was threatening to stab herself (this incident led to X being placed into the appellant’s mother’s foster care) and X admitted having difficulties in controlling herself when provoked, that she retaliated sometimes, losing her temper, and she had assaulted her mother on three separate occasions; in August 2005 X confirmed that the week with Mr Simmons was fine; on 29 August 2005 she gave her first account of her relationship with him, telling Nurse Fuller she was involved in a relationship with the appellant which she described as happy, caring and loving, that she loved him and he loved her, and he had told her that if he was not married with his own child they would be together (the day before the ABE interview she was recorded as saying she did not want to get him into trouble); in the run up to the trial X admitted misuse of cannabis and cocaine; in January 2006 there was a further hospital admission; in May 2016 (presumably May 2006) she received a final warning for assault occasioning actual bodily harm (on her ex‑stepfather’s girlfriend) and possession of cannabis; in October 2007 X was convicted of battery (this was after the trial had concluded but presumably was relevant because she must have been awaiting trial for it at the time of the appellant’s trial).

Mr Barlow advanced two interlinked grounds of appeal. First, the misleading nature of the correspondence from the CPS would have misled the defence into thinking there were no records of X making complaints of sexual abuse, that her complaints of physical abuse against her mother were substantiated, that her mental health difficulties were in response to the abusive family situation and there was no evidence those difficulties had ever given rise to a false allegation of criminal conduct. Second, the failure of the CPS and Ms Briscoe to disclose to the defence relevant material from the child protection team and social services files meant the defence were prevented from making the necessary inquiries and then obtaining the judge’s permission to admit material either by way of admission or in the form of cross‑examination of the complainant. Mr Barlow contended the material uncovered by the CCRC was relevant and admissible because it indicated first that X was capable of making her complaints known, second that her behaviour demonstrated a pattern of attention‑seeking, third that the circumstances in which she made some of the complaints were similar (they usually followed a falling out with someone or expressed hostility towards someone), fourth that she had a history of violence and admitted she had a temper and lashed out at those immediately around her, fifth that she told a social worker that having spent a week with the appellant everything was fine, and sixth that her first account of abuse at the hands of the appellant was very different from what she told the police and the jury. Mr Barlow emphasised his intention was not to suggest the material could have been used to establish that X had a history of making false allegations but that the defence were entitled to elicit the fact that X made the complaints and the circumstances in which they were made. Accordingly it would not have been necessary to engage in satellite litigation over whether X had made genuine complaints about physical abuse at the hands of her mother. He claimed, supported by Ms Farrelly’s observations, that had the jury been made aware of the material or some of it, it would have impacted upon their assessment of the reliability of the complainant. Mr Barlow reminded the court the jury acquitted on those counts where evidence was called that undermined the complainant’s account. Accordingly he maintained the appellant did not receive a fair trial and the convictions were unsafe.

Mr Price for the Crown invited the court to consider the appeal in stages: whether the material should have been disclosed, whether the defence would have wished to deploy it, whether the material was admissible, and if it was admissible the impact on the safety of the conviction. Generally Mr Price accepted the material within the files identified by the CCRC met the test for disclosure and ought to have been disclosed. He divided the material into two categories: material to do with the facts of the case and material to do with X’s history. The only material directly relating to the allegations at trial related to the first complaint against the appellant. She gave an account of her relationship with the appellant between 29 August and 1 September 2005 before the police became involved. Mr Price accepted X spoke about the appellant in terms of affection and that her later accounts differed. Mr Price suggested there could be many reasons why an adolescent who has willingly taken part in sexual activity with an adult may change their account in this way, for example regret, embarrassment, shame or guilt. This was an argument that could have been advanced successfully before the jury. Her comments before the police were involved showed there had been a relationship between the complainant and the appellant and this was supported by other evidence showing an overly familiar physical relationship between X and the appellant. On that basis he submitted that had this material been disclosed to the parties the Crown would have used it under section 117(2) of the Criminal Justice Act 2003 as evidence of the truth of its content. He submitted that as such it would have amounted to compelling evidence. It would also have explained why she did not complain until a few days after the appellant had ceased caring for her.

Mr Price then considered the remaining material to do with her history. He submitted that for much of it significant issues of admissibility would have arisen, particularly under section 100 of the Criminal Justice Act 2003. In respect of the allegations of assault by her mother and stepfather Mr Price insisted the material was simply not admissible. First there was no evidence of falsity and second the allegations were not pursued because the police officers doubted the truth of what X was saying. The documents revealed that although X was only 9, at that early age she was being characterised by her mother as an attention‑seeker and this may well have come to influence the response of professionals to her subsequent

Richard Carroll [2019] EWCA Crim 1396
Richard Carroll [2019] EWCA Crim 1396