SR [2019] EWCA Crim 887

SR [2019] EWCA Crim 887 concerned an appeal against conviction by SR, who on 5 February 2018 at Bristol Crown Court before His Honour Judge Longman was convicted on nine counts: one count of sexual assault of a child under 13 (count 2); two counts of assault of a child under 13 by penetration (counts 4 and 6); one count of rape (counts 5, 7, 8 and 10); and one count of assault by penetration (count 9). He was sentenced on 9 March 2018. Count 2 attracted three years’ imprisonment; count 4 an extended sentence under section 236A Criminal Justice Act 2003 comprising a custodial term of eight years and an extended licence of one year; counts 5, 7, 8 and 10 each attracted 12 years’ imprisonment concurrent; and counts 6 and 9 attracted eight years’ imprisonment concurrent. The total sentence was one of standard determinate sentence of 12 years and an extended sentence of nine years to be served concurrently. The appellant appealed against conviction by leave of the single judge.

SR was the half-brother of the complainant, E, and six years her senior. In 2008 E moved to live with SR and their mother in Brighton when she was 10 years old. In 2009, following a referral from social services, E alleged that SR had sexually abused her. On 8 December 2009 temporary Detective Constable Josey Kennedy and social worker Paula Pettit visited E and her mother. The police log recorded that E alleged that SR had initially touched her breasts and bottom and that this had later progressed to digital penetration. She also alleged that a few days previously SR had tried to put her hand down his trousers. E’s mobile phone was seized and she was due to undergo an ABE interview on 10 December 2009, but she took an overdose on the preceding day and was admitted to hospital. The log records that on 12 January 2010 E and her mother told the social worker they no longer wished to participate in an ABE interview, and E’s phone was returned to her. On 18 January 2010 the social worker emailed DC Kennedy stating that E was not retracting but did not want to proceed with the ABE interview. E and her mother were by then moving to Bristol.

On 26 January 2010 DC Kennedy interviewed the appellant. The tape or record of that interview no longer exists; the only account is a summary in the police log. The appellant denied E’s allegations but described one incident when E had grabbed his hand and tried to put it on her breast. He said he pulled away and slept in another room. Text messages were exchanged in which E said he should tell their mother. The appellant denied any sexual feelings towards E and suggested she had made advances towards older males and was trying to blame him for something she had done. Following that interview DC Kennedy recorded in the police log a note to her Detective Sergeant stating that neither E nor her mother wished to make a formal allegation, that E had made similar allegations in the past against her father which were not proven true, and that both DC Kennedy and social worker Paula Pettit had doubts about the truthfulness of the allegation and the motivations of both mother and daughter. On 9 February 2010 DC Kennedy informed the appellant that the police would be taking no further action.

E and her mother moved to Bristol, and the appellant later joined them. On 31 July 2013 E reported to police further sexual abuse by the appellant during their time in Bristol, together with the earlier abuse in Brighton. She underwent an ABE interview on 12 August 2013, but the officer conducting the interview omitted to ask any questions about the Brighton allegations. On 13 February 2015 the appellant was interviewed and denied the Bristol allegations. It was not until 24 January 2017 that E was ABE interviewed in respect of the Brighton allegations by which time DC Osborne had taken charge of the investigation. DC Kennedy, by then no longer in the police, was contacted by DC Osborne and declined to assist, refusing to meet him. The tape of the appellant’s first interview no longer existed. It was the Crown’s understanding that no ABE interview of E in Brighton in 2009 had taken place.

At the outset of the trial counsel for the appellant applied for the indictment to be stayed on the basis of abuse of process, arguing that a fair trial was impossible. The essence of the argument was that the appellant’s case relied upon the credibility of E, who was the only witness of fact for the prosecution. Ms Kennedy’s refusal to meet DC Osborne meant that questions could not be asked of her. Ms Kennedy and the social worker Paula Pettit had doubted the truthfulness of the allegations, but there was no investigation as to the reason for those doubts. The tape of the appellant’s 2009 interview was missing, and there was no evidence relating to any examination of E’s mobile phone. The judge refused the application, holding that the appellant could receive a fair trial. The jury could be directed about the need to take into account difficulties confronting the appellant when deciding if the prosecution had made them sure of his guilt. Relevant parts of the log would be placed before the jury, and the jury would be able to judge the credibility of the complainant and whether the Crown had discharged the burden of proof.

At trial E gave evidence through the ABE interviews and was cross-examined. She alleged that in 2009 in Brighton the appellant had on multiple occasions entered her bed, touched her breasts and thighs (counts 1 and 2), and digitally penetrated her vagina (counts 3 and 4). In Bristol, after the appellant moved back in with E and their mother, the appellant digitally penetrated and vaginally raped E (counts 5 and 6), later anally raped her while forcing her head into a pillow causing difficulty breathing (count 7), vaginally raped her after his girlfriend returned home (count 8), digitally penetrated her after she returned home intoxicated from a party (count 9), and in June 2012 vaginally raped her after she awoke to find him in her bed (count 10). DC Osborne gave evidence explaining that he had taken over the investigation and realised his predecessor had failed to ask E about the Brighton allegations. He wished to speak with Ms Kennedy because she held all the information from the Brighton investigation. He spoke with her on two occasions. She said she could not remember the case, there was nothing she could add, and she did not wish to meet, provide a statement or review the material. DC Osborne concluded that Ms Kennedy was being wilfully obstructive. He stated that he had concerns about the integrity of her investigation.

DC Osborne confirmed that the tape of the appellant’s 2010 interview had been destroyed and it could not be known precisely what was said. As to E’s telephone, there was no mention in the log of a download having been undertaken and he had no idea of the basis of the information that the phone contained messages between E and the appellant. DC Osborne accepted that if E’s account was correct that she had given an ABE interview in Brighton in 2009 or early 2010 then the police log was inaccurate because there is no mention of such an interview. As to the medical examination on 9 December 2010, there was a letter from a paediatrician recording the result as neutral. DC Osborne said that entries in the log that E had made similar allegations against her father were not something he had read in the unused material, and he would have wanted to ask Ms Kennedy the basis for her view that both E and her mother had some mental health problems. He also said he would have liked to have asked the mother about the alleged admission by the appellant. The appellant gave evidence and denied any sexual abuse, saying there had been one occasion in 2009 when E had tried to touch him sexually. He relied on his previous good character.

At the conclusion of the evidence counsel for the appellant renewed his application to stay the indictment on the basis that the police log of the Brighton investigation, now accepted as incomplete and inaccurate, indicated that E had not been video interviewed, but the complainant had insisted in her later ABE interview that she had been. The prosecution accepted that what she said must be correct because of the detail she gave as to the location and circumstances of the interview. If the complainant was interviewed the evidence was missing, and its absence meant that the court and the appellant did not know whether her evidence on this issue was accurate or not. The application was refused, the judge accepting it was properly made but holding that the matters raised were capable of being dealt with by the trial process with proper comment and appropriate legal directions.

The judge gave the jury written directions on the effect on the defendant of delay and missing material. He directed that there had been considerable delay in the case, none of which was the appellant’s responsibility. When E first went to the police in December 2009 she made a complaint and the appellant was interviewed, but no further action was taken. When E spoke to the police again in 2013 she was not asked about part of her complaint in the first interview because the investigating officer forgot. The previous investigating officer had wilfully refused to help with the present investigation, and her intransigence meant that she had given no help in interpreting entries on the case log which as a result could not be regarded as reliable. She had not explained why she doubted E’s truthfulness or her motives for making her complaint. The fact that she did doubt E’s truthfulness was not in itself relevant because police officers are not allowed to say in evidence whether they do or do not believe an account. The difficulty was that the reason for her doubts was not known and no one could ask her. As a result of the delay material had been lost. E’s phone was taken by the police and handed back to her, but it was not known if it was examined or, if it was, what was or was not found because there was no record. The tape recording of the appellant’s interview was not available, so the summary could not be checked. Although E said she was video-interviewed in 2009 to 2010, the log suggests she was not; one interpretation was that the log is inaccurate, another was that E’s recollection is inaccurate. If she was interviewed, it was not known what she said, so the defence could not compare it with what she said later or what she now says and point out any discrepancies. There was enormous delay between E being interviewed about Bristol and then about Brighton, so that by the time the appellant came to be tried he had to cast his mind back many years as well as having incomplete information with which to present his defence. The jury were directed that if they felt that because of the delay or because of the absence of material or information the defendant was disadvantaged or prejudiced in his ability to defend himself, that was something they should take into account in his favour when deciding whether or not the prosecution had made them sure of his guilt.

The grounds of appeal were that the prejudice suffered by the appellant in his defence could not fairly be rectified by the directions given to the jury, and that proceedings should have been stayed as an abuse of process. Counsel on appeal amplified the detail of the original grounds. The judge’s direction on delay and missing material was described as economical. The jury were told that they could not know the reason why Ms Kennedy doubted the truthfulness of the complainant; omitted from the direction was the fact that the social worker Paula Pettit, who was involved in the initial complaint, shared the adverse view as to the truthfulness of the allegation. Two professionals had reason to doubt the complainant, but only one was included in the legal directions. The role of Paula Pettit and her independent review of the truthfulness of E and her motivation were important given the criticism of Ms Kennedy and her professionalism. It was said that the full effect of the missing ABE interview of E and the appellant’s 2010 interview was not explained to the jury. The loss of both created serious prejudice. An ABE interview would have shown E in a video, her demeanour could be observed, and the interview would have disclosed any relevant background areas in respect of which E could have been cross-examined. The prejudice was that the appellant did not have the opportunity to see or comment upon such evidence. The loss of the appellant’s 2010 interview together with the delay meant that the appellant had no detailed record of his contemporaneous response to the allegations. The absence of the phone was relevant in three respects: any communications between the appellant and E, information from E commenting on her friends and family and a wish to find her way out from the family home, and evidence of her behaviour with other males, although it was accepted that the latter would contravene section 41 Youth Justice and Criminal Evidence Act 1999. Missing medical files and school records may have given indications of sexualised behaviour. The judge did little to point out the effect that delay may have on the appellant’s ability to call witnesses.

The Crown accepted that it was regrettable that Ms Kennedy was not present at trial, but submitted that her absence resulted in powerful evidence going before the jury, namely the views of the former police officer and the social worker that they did not believe the complainant. This evidence would not of itself have been admissible as it represented personal views, but it was admitted because it was not known why either professional had come to the view that she had. If Ms Kennedy had attended and a voir dire had been held, much of the reasoning for her doubts would likely have related to personal judgment which would not have been admissible. The Crown accepted that within the legal directions it would have been better had the jury been reminded that it was not only the police officer but also the social worker who had doubts about E, particularly as the judge had stated that the police officer had wilfully obstructed the investigation. However, although not dealt with in the legal directions, reference was made to Paula Pettit’s evidence in the summing up. As to the entry in the log that E had made similar allegations against her father, DC Osborne did not know where Ms Kennedy had obtained that information, and applying section 41 this evidence would not have been admissible. The absence of the appellant’s interview was before the jury, as was the summary contained in the admissions. The absence of the phone was a limited point. If an analysis had been carried out indicating that E had contact with other males, such evidence would have contravened section 41 and would not have been admissible. The jury were alive to the potential significance of the missing evidence and were correctly directed not to hold that against the appellant.

Lady Justice Nicola Davies, giving the judgment of the court, held that the judge had correctly applied the law when refusing the applications to stay. In order for the judge to have acceded to the defence application the appellant needed to establish serious prejudice to the defence so that no fair trial could be held. The appellant’s case was that he had suffered prejudice, but he did not identify serious prejudice. The judge was aware of the difficulties caused, in particular by the absence of Ms Kennedy and the appellant’s 2010 interview, and referred to the same in his legal directions. His rulings were correct. As to the prejudice to the appellant and legal directions, this was a short trial with evidence occupying only two court days. The court accepted that within the legal directions there should have been reference to the absence of Paula Pettit as well as DC Kennedy, given the admitted evidence of her view as to the credibility of the complainant. However, no issue was taken by defence counsel upon this omission. Although the direction was silent as to Paula Pettit, her views had been adduced before the jury and in his summing up the judge repeated the entry made by DC Kennedy that both herself and Paula

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