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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bright, R v [2003] EWCA Crim 2169 (25 July 2003) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2003/2169.html Cite as: [2003] EWCA Crim 2169

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CAMBRIDGE CROWN COURT
(HHJ HAWORTH)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 July 2003

Lord Justice Potter:

Introduction

1. On 27 September 2001 in the Crown Court in Cambridge before His Honour Judge Haworth and a jury the appellant was convicted on an amended indictment containing 11 counts relating variously to charges of indecent assault on a female and indecency with a child. In its original form the indictment had contained 15 counts, the original counts 1-4 relating to indecent assault on Lynne Herbert who, by the time of trial, was too ill to attend. As a result counts 1-4 of the original indictment were ordered to remain on the file on the usual terms, the matter proceeding on the basis of a renumbered indictment in relation to which the defendant was convicted on all 11 counts save count 10.
2. The appellant was sentenced as follows (the original count numbers appearing in brackets after the number of the count in the amended indictment).

Indecent assault on a female

Count 1 (5) : 6 months

Count 2 (6) : 2 years

Counts 5 (9) and 6 (10) : 3 years on each count

Count 7 (11) : 3 years 6 months

Count 11 (15) : 6 months

Indecency with a child

Counts 3 (7), 4 (8), 8 (12) and 9 (13) : 18 months on each count

3. The totality of the sentences on Counts 2 to 6, i.e. 3 years was ordered to run consecutive to Count 1 (6 months) and the totality of the sentences on Counts 7-9, i.e. 3½ years was ordered to run consecutively to the total on Counts 1 and 2 to 6. Thus the total sentence passed was one of 7 years' imprisonment. The appellant was ordered to register indefinitely under the Sex Offenders Act 1997 and his licence was extended to the whole sentence under s.44 of the Criminal Justice Act 1991.
4. The appellant appeals against conviction with leave of the single judge who referred his application for leave to appeal against sentence to the full court. The judge refused leave in respect of certain grounds of appeal and, in relation to those grounds, the appellant renews his application for leave.

The facts

5. The appellant was charged with sexual offences committed between 1967 and 1982 against young girls who were variously related to him through marriage, including his own daughter, or were otherwise acquainted with him as the children of friends. Some were members of the Saxon Street Girls Brigade in Soham near Newmarket in which the appellant's wife and her friend Brenda Jaggard were involved.
6. In 1999 the appellant was tried at the Cardiff Crown Court for various sexual offences against young girls and, following publicity in the local newspaper in Cambridge, further complaints were made to the local police. So far as the time-span of the instant offences is concerned, the appellant married his wife in 1967; however, they have since divorced and his former wife gave evidence for the prosecution at his trial. The appellant and his wife had two children, one of whom was a complainant, Marina, born on 10 February 1973. The appellant served in the Royal Air Force between 1962 and 1968, his period of service including a posting to Aden between January 1965 and January 1967.
7. We shall turn to the individual Counts in a moment. Meanwhile we record that Counts 1-4 of the original indictment concerned allegations by Lynne Herbert that, between 1962 and 1966 when she was aged between 9 and 12, the appellant on occasions would touch her private parts over her clothes. He also put his finger in her vagina, displayed his erect penis and once simulated intercourse with her. Following her becoming medically unfit to attend trial the indictment was amended, as we have already recorded, so that the Counts remaining related to five other young women; Julia Farley, Helen Wing, Alison Daines, Clare Muckley and the appellant's own daughter Marina Baldock. The Crown's case was that Counts 1, 2, 4 and 5 of the amended indictment were sample counts reflecting a course of conduct in respect of their subject and that Counts 3, 6, 7, 8, 9, 10 and 11 were specific incidents.

The prosecution case

Count 1

8. Julia Farley said she first met the appellant when he was the boyfriend of her cousin Dianne; she was Dianne's bridesmaid when they married. She liked Dianne but was very nervous and frightened of the appellant because he put his hands inside her knickers. It had started in Twickenham before she was 10 years old and before the marriage. She tried not to be alone with the appellant which was difficult. Each time they were alone he had done it. She was frightened to tell anyone. He told her that it was a secret and that bad things would happen if secrets were told. She believed him and was terrified. Once, when she was "about eight" her mother found blood on her knickers and she feared that the secret would be revealed. The touching was done quickly each time when people were out of the room.
9. The last time it happened was in Hanworth when she had turned 10. The appellant visited their house with her aunt and uncle. They were in the front room. When they went to the front door the appellant pulled her back and put his hands down her knickers. Her sister Lynne walked in and ran out screaming "Vivien's touching Julie." Her mother then appeared and, as the appellant left, he threatened her with "bad things" because she had told them what happened.
10. She did not see the appellant again when she was a child or teenager and did not say what had occurred until the trial. She had found the incidents frightening, just as it was frightening for her to give evidence. In May 1999 Lynne told her about the appellant being tried in Wales for indecent assaults and said that the appellant had done similar things to her as well. They were both shocked. She had not read any witness statement made by Lynne or been told what Lynne had said. She said they did not discuss it. It was possible that she had told her mother that the mother touched her once when she was 13 but she did not recollect that. She had not told any of the appellant's family or others.

Count 2

11. Helen Wing was the daughter of friends of the Brights and the Jaggards and a member of the Girls Brigade who said that the appellant helped there on occasions and was friendly and good fun. Sometimes she visited the Bright's home in Newmarket. When she was between the ages of 9 and 11 she lived in Soham and the Brights visited her family. When they were saying goodbye in the hall the appellant picked her up and tried to put her legs round his waist as she faced him which she was reluctant to do. He held her inside her skirt and put his finger in her vagina. Nobody noticed what he was doing. It was a large hall. He kissed her cheek which she did not want. She said she disliked him. It happened on a number of occasions and stopped when she left Soham aged 11.
12. Once at Soham she was at the appellant's home. Dianne Bright was putting the car away and the appellant entered the front room when she was sitting on the settee. She was frightened that he would touch her. He sat close to her and she got up, crying. He said "Don't you like it?" She said "No" and left the room. Sometimes she and her cousin, Alison Daines, babysat for the Brights. She saw pornographic magazines there which she said were unknown to her previously and were horrible. She had not spoken to the appellant for many years. She told Alison what went on but no-one else. Alison told her that the appellant had masturbated but she did not understand what that meant at the time. She did not tell any of her family and became wary of all men. She remembered the 'hall' occasion with confidence and thought that similar incidents had happened on other times but said she could not recall with certainty. She read in the paper about the trial in Wales and discussed it with Alison. This made them realise that the appellant's conduct was continuing and they decided to stop it for other people by making statements.

Counts 3 - 6

13. Alison Daynes had lived at home in Saxon Street until she was 16. When she was about 7, the appellant and his wife had moved to Newmarket and sometimes she and her sister Caroline had slept at their home there. She said that they were lovely people and very nice to the girls, being closer to them than other members of their family. The appellant sometimes did babysitting at their house. However things changed so far as the appellant was concerned when she was about 8 or 9 and Caroline was about 6. They had stayed overnight with the Brights when their mother was in hospital. When they were in bed she saw the appellant standing in the open doorway with the landing light on wearing an open dressing-gown and masturbating. His heavy breathing got faster and he wiped himself with a handkerchief and walked away. Caroline asked what he was doing and Alison told her to shut her eyes. It happened on other occasions. When she was downstairs watching television he would enter the room either naked or wearing a dressing-gown and masturbate into a handkerchief breathing heavily. He would then leave the room. Later when she was about 11 he would show her pornographic magazines depicting intercourse before he masturbated.
14. Sometimes when the appellant had babysat at her house, he would go to her bedroom after she had gone to bed, pull up her nightdress and squeeze her breasts. He forced her legs apart put his fingers in her vagina which hurt her. This occurred several times. She tried to push him away and once he had tried to put her hand over his penis. Once he licked her body using orange juice. Sometimes he licked her vagina. He told her not to tell anybody and she did not do so. Finally, when he was babysitting at her home, he came to her bedroom and made several attempts to force her legs apart saying "You'll enjoy it. Just relax." He was very determined. He then went towards Caroline's room. She shouted towards Caroline but did not see him do anything to her. The appellant stopped babysitting before she was 13. She told nobody until she told her husband. She explained why she did not complain earlier but decided to do so when she saw the newspaper about the Welsh trial. She said that the appellant had been given a lenient sentence and she thought he should be punished for everything he had done to children.
15. Caroline, being Alison's sister, gave supporting evidence. She said she had joined the Girls Brigade when she was 5. The appellant was sometimes involved and liked to handle the girls. She said at first she was very naïve and later kept clear of him. She recalled two specific occasions (Count 3) when the appellant was looking after her and Alison at his house. They stayed overnight and were in the same bedroom. She could see the appellant near the toilet, possibly naked, and he seemed to shake his penis with his hands for a long time. She thought he was going to the toilet and Alison told her not to look and she turned away. She said the appellant was physical with the girls but she kept out of his way, being often told to do so by Alison who did not give her details as to why. She said that in 1999 Alison had telephoned her and said the appellant had been imprisoned in Wales. They discussed the event and decided that they should speak up about their own experiences. She did not recall saying in her statement that it would increase his sentence. They continued talking about it since, but she did not know the details of Alison's statement. They had discussed protecting their children and about perverts generally. She said she had spoken with Helen Wing twice.

Counts 10 and 11

16. These Counts concerned Clare Muckley. Count 10 involved an alleged incident of indecent touching in the swimming pool, in relation to which the appellant was acquitted. So far as Count 11 was concerned, Clare said she was on a Girls Brigade outing at a summer fete when she was 13. The appellant approached her from behind and put his hands over her shoulders and down the front of her tee-shirt onto her chest. She was not sure if he touched her breasts which were then developing. She moved away feeling panic and discomfort. She had told a friend about the incidents a long time ago but spoken about them since until she spoke to the police.

Counts 7, 8 and 9

17. Marina Baldock, the appellant's daughter, said she got on well with her father when she was young but that changed when she was aged between 8 and 10 because of what he did to her during that time. Once, after a bath, he dried her with a towel in the front room and touched her private parts and inside her vagina. She did not know then what had happened was wrong and she trusted her father. She did not tell anyone. On another occasion she was in her parents' bedroom when her mother was out and the appellant, who was naked, showed her how to masturbate him. He ejaculated.
18. At one time she was lying naked on her parents' bed. The appellant stood close to the bed masturbating and ejaculated onto her stomach. He said "I want to come on your tummy" which she thought was disgusting, but she did not tell anyone. She said she was never close to the appellant after those events and tried to avoid being alone with him. She began to realise what he did was wrong. However she did not tell her mother because she thought it would break up the family.
19. Brenda Jaggard, the mother of Alison and Caroline, gave evidence. She was a friend of the appellant's wife. He sometimes babysat for her daughters at their home. The two families also visited each other and the Brights helped at the Girls Brigade and their events. She had thought that the appellant was too friendly around girls though it appeared to be innocent. However she became concerned and mentioned it to Dianne Bright who was honest and responsible. She knew of Alison's circumstances several years before the trial but had not discussed the allegations. She only heard that the appellant's daughter Marina was involved when the police were investigating after she had made her statement in 1999. She did not know the details of the complaints.
20. Dianne Bright, the appellant's wife gave evidence. She had first met the appellant in 1961. He joined the RAF and was posted to Aden and then back to the United Kingdom in November 1967, when they married. He was then posted to Newmarket, leaving the air force in 1968 when she joined the Saxon Street Girls' Brigade and met Brenda Jaggard. She confirmed that the appellant babysat for Alison and Caroline at either home. She described the appellant's assistance with charitable works and the way in which he mixed with other people. She said she did not know or suspect any wrongdoing with children although she had found pornography depicting adults in the house. Her relationship with the appellant had deteriorated about 1986. However they were still married at the time of the prosecution in Wales which was of acute concern to her and she had talked about it to friends including Brenda. The other matters then came to light. She had spoken to Lynne Herbert but not directly with Julia Farley. She did not know the details of the allegations. She had not spoken to Alison, Caroline or Helen Wing. She did not know Clare Muckley. She spoke to Marina just before the sentence in Cardiff and found out what had happened to her. She then divorced the appellant. She had noticed that Marina did not get on very well with the appellant from the age of 9 or 10 but had been quite unaware of the reasons.
21. Following his arrest on 16 March 2000, the appellant was interviewed at length. He denied each of the allegations or any sexual contact with any of the girls. He denied showing pornography to any of the complainants but said he might have had some magazines hidden at home or mixed up with other publications.
22. The appellant denied the offences in evidence. He said that between January 1967 and January 1969 he had visited the homes of Lynne Herbert and Julia Farley but had never gone without his wife. He denied indecently assaulting Julia Farley by putting his hand down her knickers. He said his relationship with her was excellent. There were kisses and hugs but no friction. He described the friendship with the Jaggards and said that they spent a lot of time together socially. He did not remember babysitting for Alison and Caroline although there were times when he was with them. They had stayed at his home when Brenda Jaggard went to hospital in March 1974. That evening his wife brought the two girls to the house. Alison was not feeling well and went to bed. He got ready for bed and assumed he wore pyjamas and a dressing-gown. He denied masturbating at the door in the girls' sight or before Alison downstairs and said he did not produce pornography to her. Occasionally he had pin-up magazines such as Playboy and Mayfair which he took home in his briefcase keeping them in the spare room or in the loft. He did not recall his wife ever finding them and he did not show any such thing to either girl. He said his relationship to Alison was friendly. He treated her as an adult rather than a child and always got on well with her. He used to tease, chase and jump out on the girls and they screamed and ran away. However he never caught them. He never sexually assaulted Alison in her bedroom and he did not try to part her legs when she was in bed.
23. So far as Helen Wing was concerned, he and his wife were friendly with her family and visited them in their home. He denied the allegation that he had assaulted her in the hall. There was no truth in that allegation nor the allegation that he had tried to get close to her when his wife was parking the car.
24. So far as his daughter Marina was concerned, he described their relationship as excellent and denied that she had tried to avoid him from the age of 8 or 9. He said they were still close and denied any improper conduct with or towards her.
25. So far as Clare Muckley was concerned, he did not remember her and denied that he had ever assaulted her.
26. He said that he was arrested on 9 July 1998 and interviewed in respect of the Welsh matter. At that time his wife was very supportive. He pleaded guilty and was sentenced to imprisonment. His wife divorced him. By the time of his release from prison in June 2000 he had been charged in respect of the instant offences.

The Grounds of Appeal

27. We shall deal first with the Grounds of Appeal in respect of which the single judge gave leave to appeal.

Ground A. I

28. This ground arises from a ruling by the judge in relation to the witness statement of Lynne Herbert who had been the subject of Counts 1-4 of the indictment as originally drawn but who was too ill to attend trial. The Crown did not apply to read her statement or rely upon it in any way. Lynne Herbert was the elder sister of Julia Farley, who was the subject of Count 1 as amended.
29. It was the appellant's contention that Julia Farley (like all the other complainants) was lying and that she had colluded with Lynne Herbert to make a false complaint. There were in the statement of Lynne Herbert two passages which, for the purposes of advancing the defence, counsel (Mr Harrison) was concerned to elicit if he could. The first was a statement of Julia Farley's recollection that when, on the first occasion she saw the appellant's penis it looked scarred "as if he had burnt it in Aden". The second was a statement that, at the age of 7, she had been indecently assaulted on a number of occasions by the head teacher of her school. In preparation for the trial, at a stage when it was understood that the evidence of Julia Farley would be relied on, the defence had obtained the report of a doctor to rebut the suggestion that the penis of the appellant was scarred, the only blemish in his genital area being a wart or cyst upon one of his testicles. In relation to the allegations of assault by the head teacher, it was proposed to suggest to the jury that such allegation, which had apparently never been the subject of any complaint, was inherently unlikely and therefore a lie. Lynne was thus susceptible to making false allegations which made collusion with, and falsehood on the part of, Julia the more likely. It was anticipated that by attacking the veracity of Lynne in making her complaint, the evidence of Julia and the other complainants could be attacked by association, it not being in issue that there had been a degree of discussion as between various of the complainants. The proceedings went as follows.
30. Julia Farley was cross-examined to elicit the fact that she had discussed matters with Lynne Herbert prior to making her own allegations and to seek to establish that this discussion had led to her own false allegations against the appellant. In the course of the cross-examination, Julia Farley revealed that Lynne Herbert had made allegations to her of a sexual nature against the appellant but said that Lynne did not disclose the details. She denied collusion and falsehood. She was asked whether she was aware that Lynne Herbert had made a statement to the police and whether she was aware that in that statement Lynne had stated that she had been sexually assaulted by her headmaster. The witness stated that she had no knowledge of such an allegation and that Lynne had not mentioned it to her. The matter was not pursued further with that witness nor explored with any other witness. Thus the state of the jury's knowledge as a result of the cross-examination of Julia Farley was that they were aware of the simple fact that Lynne Herbert had made allegations of a sexual nature against the appellant, but neither of the two matters which counsel sought to establish in evidence were elicited. Nor were the jury aware from counsel's questions of any suggestion that Lynne Herbert had described the appellant's penis as being apparently "scarred". Nonetheless, in the hope of establishing this later from a police witness, when counsel cross-examined the appellant's wife Dianne Bright, he elicited that the appellant did not have scarring on his penis, although it had a "slight blemish".
31. In those circumstances, before cross-examination of the relevant police officer, Mr Harrison applied for leave to ask questions in order to adduce before the jury the limited facts that (a) Lynne Herbert had referred to scarring on the appellant's penis and (b) that she had made allegations of sexual assault by her head teacher when a young child.
32. He submitted to the judge, as he has submitted to this court, that the evidence sought to be adduced did not offend the rule against hearsay (as contended by the Crown in objecting to his application) because it fell within the broad exception to the rule articulated in the classic statement in Subramanian v Public Prosecutor [1956] 1LR 965 at 969:

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made." (emphasis added)

33. Mr Harrison submitted that, far from seeking to prove the truth of the statements which he sought to elicit, (a) he simply sought to establish the fact that the statements were made with a view to (b) proving (in the case of the penis allegation) and inviting the jury to infer (in the case of the head teacher allegation) that the statements were false.
34. The Crown objected to the adducing of the evidence on the grounds that it was irrelevant to the issues facing the jury, which depended upon the evidence of the witnesses called. It was submitted that it was not permissible for the defence to adduce before the jury part of the contents of a third party non-witness statement solely for the purpose of thereafter knocking it down and that, even if relevance could be established, the only valid way for the rule against hearsay to be avoided was for the defence to introduce the statement under s.23 of the Criminal Justice Act 1988.
35. The judge refused the defence application on two grounds. First, he held that the evidence sought to be adduced was in fact hearsay. He said that in order for the jury properly to draw an inference of untruthfulness or unreliability they had first to decide whether the assertion by the witness was true or not. He said:

"It is not simply the fact that the words are said in the statement that is sought to be proved but the very truth, or untruth of those words. To say, as Mr Harrison does, that in these circumstances he is ascertaining neither their truth or untruth, or both, or only their untruth, is to compress those stages and elide the logical process in a way that is not susceptible to logical analysis. In fact, in each case he is asking the jury to consider the truth of what the witness asserts and not the mere fact that she said those words. I repeat, the whole process of inference drawing is dependent upon the jury reaching a conclusion as to the truth, or otherwise, of what the witness says in evidence.

A jury cannot, in logic, draw any inference here unless they cross the forbidden line by embarking upon an assessment of the truth of what the person is saying. If asked to do that from the contents of a third party's witness statement, and not from assessing the witness in person, that is the adducing of hearsay evidence in a very clear form for impermissible purposes."

36. He also accepted the submission of the Crown that the selective introduction via the officer of passages in the statement of a witness not giving evidence before the court was objectionable and that, if the unreliability of Lynne Herbert as an historian capable of contaminating a witness was to be asserted, the jury should be entitled to hear the whole of her statement. The judge said it was open to the defence, if it saw fit, to introduce that statement via s.23 of the 1988 Act on the basis that it would be the subject of specific cautions from the judge when summing up in respect of the remainder of its contents.
37. Whilst sympathetic to the judge's reasoning, we think that it mischaracterized the purpose for which the defence sought to elicit the two pieces of evidence. It was not sought to call the evidence in order to establish the truth of the facts stated but rather the fact that particular complaints had been made which, by other means, were to be proved (or asserted) untrue, as a step towards establishing how (putatively) false complaints by colluding witnesses had come to be made. Further, we do not consider that it was a course either desirably or realistically open to the defence to seek to adduce the whole statement of Lynne Herbert under s.23 of the 1988 Act.
38. However, we are satisfied that the judge was right to accept the submission of the Crown that the evidence was, in the circumstances of the case, not relevant.
39. Whether or not Lynne Herbert was telling the truth in her statement was an issue which was simply not before the jury. No charges were proceeding in respect of her and the Crown was not relying upon her statement or evidence in any way. The relevant issue which the defence sought to put before the jury was whether or not the witnesses who were giving evidence in support of the counts being tried were telling the truth. In that respect, the fact that Lynne might herself have been untruthful in the complaint she had made to the police could not itself be probative of the issue whether or not the witnesses were to be believed in respect of their complaints and was, therefore, prima facie not relevant. In the circumstances, the particular question for the judge was whether, by reason of the defence of collusion and fabrication by the witnesses sought to be advanced, he should in his discretion permit the evidence of what Lynne Herbert had said to be adduced on the basis that the jury might infer from it that the testimony of the witnesses called required closer examination than it would otherwise have received: see R v David R [1999] Crim LR 909.
40. In R v Summers [1999] Crim LR 745, this court affirmed the general rule that evidence is not admissible to contradict answers given by a witness to questions put in cross-examination concerning 'collateral matters' i.e. matter going only to the credit of the witness which are otherwise irrelevant to the issues in the case. However it also recognised that, in cases where the disputed issue is a sexual one between two persons in private, a flexible approach to the rule is necessary so as not to defeat the interests of justice by an over-pedantic approach (see R v Funderburk (1990) 90 Cr App Rep 466 at 469). In this connection the court made clear that the issue of 'sufficient relevance' was one for the trial judge, with which the Court of Appeal would only interfere if it concluded that the decision to exclude the evidence as insufficiently relevant was either wrong in principle or plainly wrong as being outside the wide ambit of judicial discretion.
41. In our view the judge was plainly right in the view which he took in this case.
42. The application was made after the civilian witnesses had completed their evidence and before counsel cross-examined the police officer in the case. It was made when Julia Farley, Lynne Herbert's sister, had denied collusion, making it clear that the question of sexual interference with Lynne had only been discussed in general terms and she had not been aware of the details. In particular, in respect of the allegation of abuse by Lynne's headmaster, she had said "I was never aware of such an allegation and I recall nothing said to me about such a thing". No reason was advanced or apparent as to why she should be disbelieved. Other witnesses had similarly denied collusion. In order to attack the credit of those witnesses, Lynne Herbert's reference to the appellant's penis, and to her having been abused by her head teacher when very young, were 'cherry picked' from a statement in which she gave considerable detail of the sexual interference on the part of the appellant which had formed the subject of the original Counts 1-4.
43. So far as the first matter was concerned, it was a statement by a woman 30 years after the event, as to her recollections of the impression she had formed as a child. It was scarcely a benchmark as to the accuracy of the rest of her evidence; nor, indeed, was it an assertion reasonably capable of an inference of deliberate falsehood, as opposed to merely mistaken impression. As to the allegation against the headmaster, there was no evidence whatever available to the defence that this allegation was untrue or even that it was known to the witnesses. It was thus not apparent that it was relevant to the question of collusion or the veracity of the witnesses called. Furthermore, the Crown made clear its stance that it would be quite wrong to admit two short passages of Lynne Herbert's statement for the purposes of inviting the jury to infer that the passages were deliberate lies, without such passages being considered in the context of the whole statement which, apart from those two passages, contained significant passages supportive of the evidence of the witnesses. It was inevitable that, if the questions were asked, the Crown would seek to have the full statement put in, albeit the original counts 1-4 were not before the jury. If admitted, it would give rise to a classic example of the mischief which the rule as to finality is designed to avoid, namely introduction of a multiplicity of essentially irrelevant issues. In this case it would have led to diversion of the jury's attention from the issues directly before them into a side alley which was at best of dubious assistance and peripheral relevance for the purpose of advancing the defence. In our view the judge was right to exercise his discretion as he did and we see no grounds to interfere.

Ground A. II

44. Count 1 of the indictment as amended was a specimen of indecent assault relating to the period between 7 November 1967 and 6 November 1968 when Julia Farley was around 10 years old. Julia spoke of a number of occasions when the appellant put his hand down her knickers and the judge correctly directed the jury that they would have to be satisfied that such an incident had occurred on at least one occasion during that period.
45. There was agreed evidence that between January 1965 and 1967 the appellant had been in Aden, returning in November 1967 to be married and thereafter to stay in England. He had returned to England for one month's leave in the last three months of his tour of duty i.e. during the period August 1967 – November 1967.
46. In evidence, Julia said that the first time such an incident had happened, she thought she was 8 years old. However, she also said it had happened on several occasions, she having been a bridesmaid at the wedding and the last occasion being when she had 'turned 10'. The judge fully re-canvassed her evidence when summing up. However, it is complained for the appellant that he failed to give an alibi direction to the jury in respect of the period of the appellant's service in Aden, and gave no direction as to the effect on Julia's credibility if they concluded she had lied in part of her evidence.
47. We are satisfied there is no substance in this ground of appeal. On the overall facts, an alibi direction was not necessary. There were ample opportunities for the offence or offences to have occurred over the period charged and the judge adequately directed the jury as to the burden of proof and upon the need for unanimity in relation to the verdict as to any particular incident.

Ground A. VI: The Character Direction

48. The appellant has two previous convictions. The first was a conviction by a Court Martial in Aden on 4 March 1966 for indecent assault on a male over the age of 16. In evidence he stated that he had pleaded not guilty and denied touching the man sexually. He said that there was nothing sexual about what he did but the court did not believe him and found him guilty of the offence. On 22 January 1999 he pleaded guilty to offences of indecent assault on a female and on 2 March 1999 was sentenced to 2½ years imprisonment. The evidence of his convictions was adduced in his evidence in chief. In the summing-up the judge gave a character direction in what may be described as the conventional form. He said:

"You have heard in evidence that the defendant has previous convictions for offences of indecent assault. Now, this has been given in evidence because he has attacked the prosecution witnesses, accusing them of deliberately lying. It is right in those circumstances that you should know the character of the person making the attack. He has given evidence of the good things he says he has done in his life. So, it is right that you should be aware of those convictions so that you have the full picture of his character. So, what is the relevance of the defendant's convictions in this case?

Apart from the introduction of the Cardiff case to explain why these allegations arose, the only reason why have heard of his previous convictions is that knowledge of the character of the defendant who has made this attack may assist you to judge the truthfulness of his evidence when you come to consider that issue."

 

49. The judge went on to direct the jury that previous convictions were only relevant to the credibility of the appellant. He warned the jury against using convictions as evidence of propensity. This passage of the summing-up ends:

"His previous convictions are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about his truthfulness."

 

50. Mr Harrison criticises the character direction on two grounds. First, he submits that the judge was wrong to tell the jury that the convictions had been adduced because of the attack made by the appellant on the prosecution complainant witnesses. He explained that they were led in evidence as part of the narrative necessary in order to introduce the issue of collusion. He accepts that an attack was made on the credit of the witnesses but he submits that it is by no means certain that, if an application had been made by the prosecution to cross-examine the appellant on his convictions, it would have succeeded. He submits that the convictions had no probative value and were so prejudicial as to make it more likely than not that the judge would have exercised his discretion to exclude such cross-examination. He further submits that, on this assumption, the judge should not have given the usual credibility direction. He should have restricted his direction to a warning against using previous convictions as evidence of propensity.

 

51. Secondly, Mr Harrison submits that, even if the prosecution had successfully applied to cross-examine the appellant on his convictions, the direction was unbalanced and unfair. He submits that there was no attempt to balance the "good things" that the appellant had done in his life against the prejudicial effect of the previous convictions.

 

52. We do not accept those submissions. We accept that it was factually inaccurate for the judge to state that evidence of previous convictions was adduced because the appellant had attacked the prosecution witnesses. However, the fact is that the appellant himself, for whatever reasons, adduced the evidence of his previous convictions and it was incumbent upon the judge to give the jury a direction in respect of those convictions. Had he only given a direction in respect of propensity, that would have been only half the proper direction. In our judgment, once there is evidence of a defendant's previous convictions before a jury, it is necessary and proper for a judge to give a character direction which deals with both credibility and propensity. In our view a defendant, by adducing evidence of previous convictions, for whatever reason, should not ordinarily gain the benefit of a propensity warning while escaping the disadvantage of a credibility direction. In any event, we consider that, in the light of the attack upon the prosecution witnesses, if the appellant had not adduced such evidence in chief, an application by the prosecution to cross-examine on his previous convictions would have been almost bound to succeed.
53. Finally, we reject the submission that the direction was unbalanced and unfair. The judge was at pains to warn the jury against using the convictions as evidence of propensity. When summarising the evidence of the appellant elsewhere the judge referred to his service background, his work for the Red Cross and his assistance with holidays for the disabled. This ground of appeal therefore fails.
54. We now turn to deal briefly with the grounds upon which the single judge refused leave to appeal, but in relation to which the appellant has renewed his application before us.

Ground A. III

55. It is submitted for the appellant that the judge was wrong not to leave the allegation of Helen Wing to the jury as a count relating to a single incident only. The judge said of the count:

"It relates to when she was between the ages of nine and eleven approximately (1970-1973). Again, it is a specimen count. It relates to the goodbyes in the hall, you remember. You must be sure that on at least one occasion the defendant indecently assaulted Helen Wing by putting his finger inside her vagina when saying goodbye to the family – lifting her up, legs around him, holding her by her bottom, and working his fingers into her vagina."

56. The allegation was opened as a sample and Helen Wing gave evidence at first as if describing a course of conduct. However, as she progressed, her evidence related almost entirely to:

"One incident [which] is clear in my mind. There is one that I remember and it is the first time that I can remember clearly. I don't know why that is. As far as subsequent occasions, it possibly did happen again but I can't recall that clearly."

57. It is said that, in the circumstances, the judge should not have left the incident in Count 2 as a sample and should have reminded the jury that the witness testified in a manner which tended to suggest that she was only alleging one incident.
58. We can see the force of the submission that, on the evidence, it was appropriate to leave the matter as a single count, rather than a sample. However, we see no real vice or any likelihood of an unsafe verdict in relation to the course taken. The judge faithfully recounted the evidence from which it was crystal clear that the account of the witness centred upon one incident which she said she recalled clearly. There does not seem to us any realistic possibility that the jury convicted on the basis of any other incident and there is no substance in this ground of appeal.

Ground A.IV

59. It is said the judge erred in directing the jury that they should not approach the evidence of any particular complainant on the basis that, if they found fatal flaws in her evidence, they must necessarily reject it as a whole. Mr Harrison has pointed out that, save in relation to an allegation by Alison Daines, there was no corroboration of the allegations the subject of the various counts, which depended upon the credit of the individual witnesses concerned. There were a number of inconsistencies in the evidence of the various complainants which Mr Harrison submitted to the jury amounted to 'fatal flaws' in their evidence. It is further complained that the judge linked the direction to which we have just referred with a conventional direction on the effect of previous inconsistent statements. It is said he should not have done so, because the 'fatal flaw' points were not confined to examples of inconsistency with witnesses' previous statements. In this context it is complained that the judge referred on occasion to the jury "deciding where the truth lies" or asked them to consider "who is telling the truth" in a manner which watered down the burden of proof.
60. Mr Harrison has conceded that this ground is in itself not enough to render the verdict of the jury unsafe, however he relies upon it as having a cumulative effect, with the other grounds of appeal, so as to render all the verdicts unsafe. Having carefully considered the summing up as a whole, we do not think that the judge was in error or that he left the jury in any doubt as to where the burden of proof lay. We do not consider that, on its own or taken cumulatively with the other grounds of appeal, Ground A.IV renders the verdicts unsafe.

Ground A.V

61. This ground is a complaint about the judge's directions as to the effect of delay upon the proceedings. It is submitted that the judge failed sufficiently to emphasis the prejudice or potential for prejudice so far as the appellant was concerned. In refusing leave to appeal, the single judge observed that the trial judge clearly directed the jury about the relevance of delay in relation to the appellant at page 10C-E and page 10H-11C of the transcript of his summing up; also in relation to witnesses "whoever they may be". His direction and comments were adequate to alert the jury to the dangers inherent in delay. We agree with the observations of the single judge and find no substance in this proposed ground of appeal.

Conclusion on Appeal against conviction

62. We are satisfied that the verdicts of the jury were safe and the appeal against conviction is dismissed.

Sentence

63. Mr Harrison has submitted to us that, despite the long and lamentable series of indecent assaults involved in this case, there are various features which render the total sentence of 7 years' imprisonment excessive. There was extraordinary delay between the commission of the relevant offences and the trial of this appellant. By the time he was tried, he had already been convicted at Cardiff and sentenced to a total of 2½ years imprisonment in respect of other indecent assaults separated in time, place and victim from the instant offences. However, we do not consider that, had all matters been heard together, a sentence of more than 7 years would have been imposed. Although repeated and inexcusable, the assaults alleged over the years were not of the most serious kind in this category of offence. In all the circumstances we consider it right to reduce the total sentence imposed from one of 7 years to 4½ years imprisonment. To this end, we propose to reduce the sentences imposed from 3 years to 2 years imprisonment on each of Counts 2-6 and to reduce the sentences from 3½ to 2 years imprisonment on Counts 7-9, with a consequent reduction in the total sentence to one of 4½ years imprisonment. To that extent, the appeal against sentence is allowed.