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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 >> Bailey, R. v [2017] EWCA Crim 35 (10 February 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/35.html Cite as: [2017] EWCA Crim 35, [2017] WLR 4545, [2017] 1 WLR 4545, [2017] WLR(D) 97

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
HER HONOUR JUDGE ROBINSON
T20150722

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 February 2017

Lord Justice Lindblom:

Introduction

1. On 29 February 2016 in the Crown Court at Woolwich, before H.H.J. Robinson, the appellant, Edward Bailey, who was then 87 years old, was convicted of four counts of cruelty to a child, contrary to section 1 of the Children and Young Persons Act 1933 (counts 1, 2, 7 and 10 on the indictment), three counts of indecent assault, contrary to section 14 of the Sexual Offences Act 1956 (counts 3, 4 and 8), and a single count of indecent assault, contrary to section 15 of the 1956 Act (count 11). He was convicted by a majority of 11 to one on counts 1, 2, 4, 7, 8 and 10, and by a majority of 10 to two on counts 3 and 11. He was unanimously acquitted on three other counts of indecent assault and one of indecency with a child. On 8 April 2016 he was sentenced by the judge to two years' imprisonment on each of counts 1, 2, 7 and 10, to run consecutively; two years concurrent on each of counts 3 and 8; 18 months on count 4; and two years on count 11. The sentences on counts 3, 8 and 4 were to run concurrently to those passed on counts 1, 2, 7 and 10. Thus the total sentence was eight years' imprisonment.
2. The appellant now appeals against conviction on the single ground he was given leave to pursue before the full court by the single judge, namely ground 2. He renews his application for leave to appeal on ground 1, which was refused by the single judge as not properly arguable. And he applies for leave to appeal on a further ground, which was not before the single judge, to which we shall refer as ground 3. He also renews his application for leave to appeal against sentence after the refusal of that application by the single judge.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. We shall therefore refer to the victims of the alleged offences anonymously, as "I", "E", "Ev" and "S". They are all children of the appellant.

The prosecution case

4. The appellant and his ex-wife had 12 children together between 1958 and 1975. I, a boy, was born in September 1965; E, a girl, in January 1968; Ev, also a girl, in November 1970; and S, a boy, in December 1974. The marriage ended in 1979, and the appellant's wife left the family home. The children remained there with him. Social Services were involved with the family both before and after his wife left.
5. The counts on the indictment spanned a period of some 17 years, from 1971 to 1988. The allegations came to light in 2013 after S returned to the former family home to speak to the appellant. When the appellant refused to let him in, S smashed a hole in the front door with a pick axe handle. S was arrested and charged with aggravated burglary. A few days later S reported to the police that he had been physically and sexually abused by the appellant as a child. After that, I, E and Ev also made complaints of abuse by the appellant. All four of them said that, as children, between the ages of about six and 14, the appellant regularly beat them using a belt, a length of hosepipe, or an electrical wire, locked them in the cellar, sometimes for days on end, and deprived them of food. These were the allegations of child cruelty in counts 1, 2, 7 and 10. E, Ev and S also complained of being indecently assaulted by the appellant. Both E and Ev described regular "virginity inspections", in which the appellant examined their vaginas, to find out whether they were still virgins. This was said to have happened on at least 20 occasions with each of them. Ev said she was only six years old when these inspections began. These were the allegations of indecent assault in counts 4 and 8. E also described the appellant moving her around while she was sitting on his lap – as she now realized, on his erect penis. She said this happened regularly – again, on no fewer than 20 occasions – from the time when she was six years old. This was the allegation of indecent assault in count 3. S described the appellant indecently assaulting him on the sofa on at least two occasions, the first time being when he was seven or eight years old. He said the appellant put his erect penis between his, S's, legs and masturbated to ejaculation. S said that his legs and the appellant's penis were exposed on each occasion. This was the allegation of indecent assault in count 11. The complainants also said the appellant beat their mother, and on one occasion they remembered her being taken away in an ambulance.
6. At trial the prosecution relied on the evidence of the four complainants, and their mother. It drew attention to the striking similarities in their accounts, and the contemporaneous complaints recorded in the family's Social Services records.
7. In his evidence I referred to an incident in which his younger brother, "T", had been killed on a railway track when he was three years old, an event to which the appellant had reacted with anger, shouting at I and beating him across the back and head with a belt. When the appellant was unhappy with the children he would say that it was "trouble time", and make them stand in a line in order of age, beating each of them in turn. The appellant regularly deprived the complainants of food. He also used to beat their mother. On one occasion he punched her so that her eyes bled and one of her ribs was broken. There was also a time when an ambulance came for her. In cross-examination I accepted that he had spoken to the other complainants before his ABE interview, but denied that they had discussed their evidence. He also denied that his complaint was motivated by a desire to get a book that he was writing about his childhood published.
8. In her evidence E also referred to the appellant making the children stand in a line and beating them with a hosepipe or flex. He had called this "problem time" or "trouble time" – though she accepted that she had not used these expressions in her ABE interviews. The appellant regularly beat her mother "to a pulp", and once chased her with a chisel. In cross-examination, E accepted that she had not mentioned being locked in a cellar until her second ABE interview, though she insisted that this had happened. She acknowledged that she suffered from continuing mental health problems, but was unaware that her diagnosis in childhood had included fantasizing. She accepted that she had spoken to the other complainants before her ABE interview. She denied that her evidence had been influenced by her mother.
9. Ev recalled the appellant punching her mother and blood being spattered on the wall. Her mother was screaming, crying and telling him to stop. An ambulance came to take her away, and she never came home again. There was an earlier occasion when the police had arrested the appellant for beating her mother and her older siblings. Ev also referred to the events of "problem time", which had happened almost every day. She accepted that she had not used that expression in her ABE interview. In cross-examination she denied lying in her ABE interview and in her evidence. She had not been encouraged or put under pressure to make her allegations by her mother or by the other complainants. She had not spoken to them about their evidence, or about compensation.
10. S, in his evidence, also recalled the assault on his mother which had resulted in her leaving the family home. The appellant had hit her on the jaw. An ambulance came, and she ran out of the door. He said the appellant had also hit his mother regularly before that incident. At "problem time", the appellant would whip each of the children. In cross-examination S denied making up the allegations of physical and sexual abuse to get himself off the charge of aggravated burglary, and lying so that he could claim compensation. When he had come to the house and broken down the front door, he had accused the appellant of being a paedophile. He had not known that the other complainants were going to make statements to the police, or that I was writing a book.
11. In her evidence the appellant's ex-wife said that he had blamed her for everything, including T's death. The appellant used to beat her and the children. He used his belt to whip them all, and a hosepipe to whip her and the older boys. Mostly, he hit her face by slapping and punching her with his hand. On one occasion he had punched her on the cheek. She had run outside with blood streaming down her face. An ambulance had been called. She had left the family home a few weeks later because of the appellant's ill-treatment of her. She accepted that she had sometimes punished the children by smacking them, but denied ever beating them or using a belt as the appellant had done. She said that he had "tortured" them. In cross-examination she denied that her motive in telling Social Services the appellant had carried out virginity checks on the girls was to strengthen her application for custody of the three youngest boys. She had not prompted Ev to reveal those events. Nor had she been told by the complainants what to say to the police.
12. There were admissions based on the family's Social Services records relating to all four of the complainants, from the family's first referral to Social Services in 1968 to an entry in September 1988 relating to S. The records contained information about various care proceedings. From 1980, the records contained several entries indicating that E had complained of being beaten by the appellant, on one occasion with a wire. There were two entries noting that the appellant had admitted hitting and strapping E, but denied using a wire. There were entries recording that E admitted to telling lies on numerous occasions, including lies in an allegation she had made that the appellant had beaten her up, and that teachers and other professional people thought she was fantasizing and attention-seeking. Between 1983 and 1985, she had been placed in two children's homes and had been admitted to a psychiatric hospital. In February 1983 the appellant had told a social worker that his girls were "whole". There was an entry in April 1983 recording that E had told a psychiatrist she had been sexually assaulted by the appellant; an entry in March 1984 recording that the appellant's wife had told a social worker that he had pulled his daughters' legs apart to find out whether they were virgins; and an entry in July 1985 recording that Ev had told her mother that the appellant used to examine her vagina. There were no records of I, E, or Ev having been injured, none of I, Ev or S complaining of physical assault, and none of Ev or S complaining of sexual assault. The complainants' medical records contained no evidence of injury or food deprivation. E's showed that in 1984 she had been diagnosed with a mental disorder which involved fantasizing, and in 1986 a schizo-affective disorder.
13. The admissions also referred to the complainants' bad character. I had been cautioned for burglary in 1980. E had been caught shoplifting in 1981, and, in 1983, cautioned for a similar offence. S had been "involved" in two offences of theft in 1988, and had been convicted of an offence of criminal damage in 2013.

The defence case

14. The appellant denied ill-treating any of the four complainants in the way they had alleged. Though he had occasionally resorted to corporal punishment, this had amounted to no more than "reasonable chastisement". He was, he said, a loving father, and had brought up his children in accordance with Christian values. This was the essence of his defence to the allegations of child cruelty in counts 1, 2, 7 and 10. He also denied that the sexual acts described by E, Ev and S had ever taken place. That was the essence of his defence to the allegations of indecent assault in counts 3, 4, 8 and 11. All of the allegations made against him were, he contended, false or exaggerated. They had been stimulated by his ex-wife, and the complainants' motivation in pursuing them was their desire to get compensation.
15. The defence relied on the account the appellant had given in interview and in his evidence from the witness box, the complainants' possible motives for lying, the timing of their complaints – which had only emerged after S was charged with aggravated burglary, evidence of "collusion" between I and S and between E and Ev, inconsistencies in the accounts each of them had given and between those accounts, discrepancies between their evidence and the Social Services records, and the entries in the Social Services records about E, which suggested she was fantasizing about the offences the appellant was alleged to have committed against her.
16. In his evidence the appellant accepted that he had been a disciplinarian. His wife had physically punished the children more often than he had. When disciplining the children he would talk to them first and would only resort to physical punishment when they failed to respond, giving them a few "licks" with his belt. He had once used a hosepipe on one of the children. He had never injured any of them. He had never lined them up and beaten them one by one, in age order. He had never used expressions such as "problem time" or "trouble time". Only once had he sent the children to the cellar, for about an hour; S would not have been with them, because he was only a baby at the time. He had not removed the light bulb from the cellar, or locked the door. He had never deprived the children of food, or left them hungry. He had not blamed I for T's death, or beaten him. He completely denied the alleged sexual offences. He had no idea why S had come to his house in a rage in 2013. He had barely had any contact with I, E, Ev or S since they left home. The only reason he could give for the complainants making false allegations against him was because he had been a strict father and had disciplined them for their wrongs as children. His ex-wife had had an influence over them, and she did not want them to have contact with him. He denied the allegations of violence towards her – apart from an occasion when he had held up his fist and she had brought her head down on it, causing an injury to her eye, which required her to go to hospital.

The appeal against conviction

17. In the course of the trial, the judge made two rulings, both of which are criticized in the appeal against conviction. The first ruling concerned the admission of evidence about the alleged domestic violence perpetrated by the appellant against his wife, as evidence of his bad character. The second concerned the availability to him of a good character direction, and, in particular, the question of whether such a direction, if given, would have to refer to his having been bound over in 1978. In the first ruling the judge rejected the argument put forward on behalf of the appellant and accepted the submissions made for the prosecution. In the second she rejected the submission of both parties that the appellant was entitled to a good character direction. At the end of the trial, before counsel made their speeches to the jury, she discussed with counsel her proposed directions on the law, and provided counsel with a document setting out the directions she intended to give. Those directions are also now criticized in certain respects.
18. There are three grounds of appeal against conviction. It is convenient to take them in order.

Ground 1 – bad character

19. Ground 1 concerns the judge's ruling on the prosecution's application to admit evidence of the appellant's bad character. As we have said, the single judge rejected this ground as unarguable, but it has been renewed before us.
20. The prosecution's application was made on the fourth day of the trial, under section 98 and section 101(1)(c) and (1)(d) of the Criminal Justice Act 2003. In the light of this court's decision in R. v PT [2013] EWCA Crim 792, the judge concluded that the evidence did not come within section 98(a). Allegations of the appellant's ill-treatment of his wife were not to do with the facts of the offences with which he was charged. Those offences concerned alleged ill-treatment and sexual abuse of his children, not his wife. The judge also rejected the submission that the evidence fell within section 101(1)(c) as important explanatory evidence. She did not accept that without the evidence the jury would find it impossible or difficult properly to understand other evidence in the case. The third basis for the application was section 101(1)(d) – that the evidence was an important matter in issue between the appellant and the prosecution. The judge concluded that, given the nature of the allegations against the appellant, which included the "wholesale ill-treatment of his children", a propensity towards violence would plainly be a relevant matter. In her view, in the context of the "defence of reasonable chastisement", evidence of the appellant's violence towards his wife was capable of establishing a propensity towards violence, "because there could be no question that such violence against her would be reasonable chastisement" and, for the same reason, "the evidence would be relevant to rebut that defence". She also accepted that the prosecution must be allowed to rebut the allegation that the appellant's wife had herself taken part in the physical chastisement of the children. In this respect too, she found the evidence admissible under section 101(1)(d).
21. In her summing-up the judge gave the jury this direction:

"You have heard allegations that the defendant assaulted his wife as well as his children. The reason for this is the prosecution says it demonstrates that the defendant had a tendency towards violence in the home which makes it more likely that his conduct towards his children amounted to physical abuse not simply reasonable chastisement. The defendant says these allegations are simply untrue and the only physical contact he had with his wife was one occasion when she was accidentally injured. These allegations, that is to say that the defendant assaulted his wife, cannot assist the prosecution case here that he also assaulted the children, unless you are sure that the defendant did assault his wife. If you are not sure as to that, then the allegations are irrelevant and you should pay no attention to them. If you are sure the defendant assaulted his wife, then you must decide (1) whether that evidence does show he had a tendency towards violence, and (2), even if you are sure as to that, whether, and to what extent, it assists you when considering whether the defendant is guilty of wilfully ill-treating his children. Even if you accept the defendant has a tendency towards violence, it does not necessarily follow that he is guilty of these charges on this indictment. In any event, be careful not to be unfairly prejudiced against the defendant by what you have heard about the alleged assaults on his wife. It is important to bear in mind that they are only background. They do not tell you whether he has committed the offences with which he is charged in this case. What really matters is the evidence you have heard in relation to the counts on the indictment."

22. For the appellant, Ms Emma Goodall submitted, first, that in her ruling the judge did not address the prosecution's failure to give written notice of its application in accordance with the Criminal Procedure Rules 2015; secondly, that the reasons she gave for her conclusion that the evidence should be admitted under section 101(1)(d) were flawed; thirdly, that she failed to address the discretion to exclude the evidence under section 101(3) of the 2003 Act and section 78 of the Police and Criminal Evidence Act 1984; and fourthly, that her direction to the jury was defective.
23. Ms Goodall argued that the judge ought to have assessed the likely prejudice generated by the lack of notice for the application as required by the Criminal Procedure Rules. There was real prejudice here. The allegations were unproven, and lacked corroboration. The evidence itself was unsatisfactory because of inconsistencies between the accounts given by appellant's ex-wife and the complainants. But in any event, Ms Goodall submitted, it was wrong in principle to admit the evidence. That the appellant had resorted to violence – though no more than "reasonable chastisement" – was not actually in dispute. The appellant had accepted using some violence to discipline the children, on occasions with a belt or some other implement. The judge was also wrong, said Ms Goodall, to conclude that the evidence was relevant not only to a propensity to violence in the context of the defence of "reasonable chastisement" but also to rebut the appellant's assertion that his wife had taken part in disciplining the children. The complainants had accepted that their mother had been involved in disciplining them, though to a lesser extent than the appellant. This was not a matter in issue in the proceedings. The judge was wrong to conclude that it was. It had been submitted on behalf of the appellant that even if this evidence was strictly admissible, it should nevertheless be excluded under section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984, for four reasons: first, the patent inconsistencies in the evidence; second, the fact that it would generate satellite litigation; third, that to exclude it would have been consistent with the principle that the unfairness inherent in delay in a case of this kind could be reduced by regulating the admissibility of evidence; and fourth, that it would be disproportionately emotive and prejudicial in the minds of the jury. Ms Goodall submitted that the judge failed to address those points in her ruling. Thus the ruling was unreasonable in the Wednesbury sense. And the judge's direction to the jury was deficient because she failed expressly to warn them that they must not convict the appellant mainly or wholly on the evidence of bad character.
24. We cannot accept that argument. It is, in our view, impossible to conclude that in the circumstances, the admission of this evidence of the appellant's bad character was wrong in principle or such as to render his convictions unsafe. This conclusion seems wholly consistent with the principles indicated by this court in R. v Hanson and others [2005] 1 WLR 3169 (in particular in paragraph 15 of the judgment of the court), as reinforced in R. v Renda and others [2006] 1 WLR 2948 (in particular in paragraphs 3 and 4 of the judgment of the court), and in R. v Hunter and others [2015] 1 WLR 5367 (in particular in paragraph 89 of the judgment of the court).
25. This is very far from being a case where the evidence of the accused's bad character was a central or decisive element in the evidential picture. Ample evidence of his violence was before the jury. He was convicted after a trial lasting four weeks, in the course of which the complainants and his ex-wife had all given evidence, as had he. The character and credibility of the prosecution witnesses was vigorously attacked by the defence. The jury were able to see and hear each of those witnesses giving their evidence and the appellant giving his, and to assess for themselves where the truth lay.
26. We think the judge was right to conclude that the evidence of the appellant's alleged violence against his wife was relevant in both of the respects she identified. In both respects it undoubtedly had probative value, and was, in our view, plainly admissible. Admitting the evidence was neither unreasonable in the Wednesbury sense nor in any sense unfair. It was clearly relevant to propensity, despite the fact that the applicant had accepted using some physical force in chastising the children. The crucial point here, it seems to us, is that the appellant's acceptance of his use of force was very firmly limited to "reasonable chastisement". But, as the judge observed, if he had used violence against his wife in the manner that she and the complainants alleged, such violence could not conceivably be justified on that basis. The reality therefore is this: the evidence of violence against the appellant's wife went significantly further than he was prepared to accept, and was capable of demonstrating a propensity to use excessive violence in the home against members of his family which could not possibly be explained or excused as "reasonable chastisement".
27. The submission that the judge failed to take into account the fact that the prosecution had not complied with the Criminal Procedure Rules is wrong as a matter of fact. The judge did take this into account. And the submission that she ought to have considered the "prejudice" to the applicant by admitting the evidence lacks any real merit. No specific prejudice has been identified. It is true that the judge did not explicitly consider the possibility of excluding the evidence in the exercise of her discretion to do so, strong as the argument for admitting it obviously was. But we cannot see how, in the circumstances of this case, it might have been appropriate to exercise that discretion. In our view it cannot be submitted that any real unfairness resulted from the admission of the evidence. The appellant had the opportunity, when giving his own evidence, to deny or explain allegations of violence against his wife, and he did so. There was, in truth, no unfairness to justify excluding the evidence on the basis of section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act.
28. We also reject the criticism of the judge's summing-up. In the direction she gave – which she had first discussed with counsel and, as we understand it, they had agreed – she did not, in so many words, tell the jury that they must not convict wholly or mainly on the basis of the evidence of the appellant's bad character. But she did tell them, and emphasized, that what really mattered was the evidence relating specifically to the counts on the indictment. If – which we would not accept – she was wrong to omit this further warning to the jury, that was not an error which in this case could sensibly be said to render the convictions unsafe.
29. We therefore refuse the renewed application for leave to appeal on ground 1.

Ground 2 – good character

30. The appellant had no convictions or cautions recorded against him, either before or since the events which gave rise to the charges against him. However, in the Social Services records there were two entries referring to his having been bound over in 1978. They indicated that in June 1978 one of his daughters, "A", who was then 19 years old, had been taken to hospital with bruising. They also suggested that the appellant had then been charged with assault, and had been subsequently bound over to keep the peace for 12 months.
31. In her ruling on whether she could give a full good character direction in the light of that evidence, the judge identified two issues. The first, she said, was whether the bind over detracted in any way from the appellant's good character. The second and separate issue was whether there was sufficient evidence for the jury to conclude that the appellant had, in fact, been bound over.
32. The judge tackled the second issue first, basing her reasoning on the decision of this court in Hunter. She observed that that decision envisaged a number of categories of evidence which may be relevant to the question of whether a good character direction should be given. Here, the appellant did not admit having been bound over. The judge noted that, in paragraph 77 of the judgment of the court in Hunter, Hallett L.J. referred to a defendant of "absolute good character", meaning a defendant who has no previous convictions or cautions recorded against him and no other reprehensible conduct alleged, admitted or proven. The judge went on to say that in her view "it must be right that if there is evidence of reprehensible conduct, even if disputed, it should be taken into account if proven". The issue here, she said, was "whether the evidence of a bind over would be sufficient such that a reasonable jury properly directed could be sure that the bind over was, in fact, ordered". She acknowledged that the Social Services records were hearsay, and that the entries relating to the bind over did not appear to be "immediately contemporaneous", in that they were both made in 1980 whereas the incident was said to have occurred on 16 June 1978. However, the records had been compiled by professionals to inform their supervision of the Bailey family. And, said the judge, for a matter as serious as a criminal charge and a bind over, one would expect the records to be accurate unless there was some reason for believing they were not. A number of entries in the Social Services records were being admitted in evidence through admissions, and the evidence relating to the bind over was of a similar nature. The judge said that in her view the evidence was "sufficient such that a jury properly directed could be sure that a bind over was ordered", and that her hearsay direction on the Social Services records would apply equally to the reference in the records to a bind over.
33. The judge then turned to the first of the two issues: whether, if the jury were sure that a bind over had been ordered, this was, in fact, something that detracted from the appellant's good character. She concluded that potentially it did, for three reasons. First, in contrast to a fixed penalty notice, for example, a bind over was "an order of the court". Secondly, "in order to make a bind over the court must consider that the conduct of the person concerned is such that there might be a breach of the peace in the future or his behaviour was … ["]contra bonos mores["], in other words contrary to a good way of life or wrong rather [than] right in the judgment of the majority of contemporary fellow citizens". Although the court "may have applied a balance of probability rather than a criminal standard of proof", binding over was a "quasi-criminal process", described as such in paragraph 4.33 of the Law Commission's report on binding over, published in February 1994 (Law Com. No.222). To impose a bind over, the court had to be satisfied that there might be a breach of the peace in the future (paragraph 2.9 of the Law Commission report). As for the bind over imposed on the appellant, there must have been some material before the court that was accepted as evidence of "past or future behaviour which was deserving of censure or blameworthy, in other words reprehensible". Thus, although the court had not necessarily been satisfied that the appellant had in fact assaulted his daughter, the bind over was "information which a jury should know about when deciding how much weight to attach to the defendant's good character", and "not to refer to it would be misleading". And thirdly, although a bind over would bring criminal proceedings to an end, this was not a process resulting in no further action being taken, because it could be enforced if the person bound over was found to have breached the peace in the future. The judge went on to say that the bind over had "happened at the same time more or less as the incidents subject of the allegations in this trial …". It was evidence of "potentially similar behaviour" and, in the light of the court's decision in Hunter (in particular, paragraph 80 of the judgment of the court), even where a defendant was treated as being of "effective good character", and so entitled to a good character direction, it was not right to omit reference to previous evidence of bad character.
34. Ms Goodall argued that the judge erred in law in her ruling, or the ruling was Wednesbury unreasonable. She made three main submissions. First, there was not enough evidence to demonstrate that the appellant had in fact been bound over. Secondly, in any event, the bind over did not derogate from the appellant's good character, and he should therefore have been entitled to a good character direction without evidence being introduced of the alleged bind over and the facts underlying it. And thirdly, the absence of a good character direction in this case, where there had been a substantial delay in the prosecution, deprived the appellant of the unqualified good character direction to which he was entitled.
35. Ms Goodall amplified those submissions in this way. The appellant did not accept he had been bound over. The only evidence that he had was an "anecdotal entry" in the Social Services records. And there was, in any event, no evidence about the circumstances in which, or the basis upon which, he had been bound over. As the judge had acknowledged, there were substantial difficulties with the evidence about the bind over, as well as uncertainties about the procedure for, and the status of, a bind over at the relevant time.
36. At trial, the prosecution had accepted that the reference to the bind over in the Social Services records did not detract from the appellant's entitlement to a full good character direction, and did not need to be disclosed to the jury. Ms Goodall submitted that the fact of a bind over is not prima facie proof of misconduct, because it "relates to possible future conduct and is not an acceptance, express or implicit, that the individual has been guilty of any wrongdoing" (see the judgment of Hickinbottom J., with which the President of the Queen's Bench Division agreed, in Newcombe v Crown Prosecution Service [2013] 6 Costs L.O. 905, at paragraph 14). The courts have long recognized a distinction between a conviction and a bind over (see, for example, R. v Benjamin [2015] EWCA Crim 1377). In R. v Hamer [2011] 1 WLR 528, this court held (at paragraph 16) that a fixed penalty notice could not constitute an admission of an offence which would affect a defendant's good character, and had no effect on his entitlement to a good character direction. Ms Goodall sought to distinguish the decision of this court in R. v Mittal [2016] 4 WLR 91, where the facts of the incident underlying the warning for theft were not in dispute, and the defendant had been otherwise able to present herself as a doctor of inferential good standing.
37. Finally, Ms Goodall contended, having accepted that the appellant was in principle entitled to a good character direction, the judge was wrong to require the fact of the bind over and the underlying allegation to be admitted in evidence. In this case, she submitted, the absence of an appropriate direction on good character was of considerable significance. Good character can form an integral part of a judge's direction on delay in a case such as this. But the effect of the judge's ruling here was that, if she was to give a good character direction at all, the jury would have to be told of the bind over and the unproven fact of the charge of assault on one of the appellant's daughters. He was thus prevented from adducing evidence of his positive good character in the period of some 40 years since the alleged offences were committed. Such evidence would have greatly strengthened his defence to the allegations he faced, and would have counterbalanced the evidence of his bad character if that were properly admitted. Ms Goodall invited us to accept that the judge's error was such as to undermine the safety of the convictions.
38. For the prosecution, Mr Tom Little – who did not appear below – submitted that the judge's ruling cannot be faulted. She gave it at the end of the prosecution's case after all of the complainants had been cross-examined. At that point in the trial she was well placed to decide this question. She was entitled to conclude that the evidence of the bind over was sufficient. She was entitled, and right, to conclude that it was sufficiently relevant to the issues between prosecution and defence to justify its being before the jury if the appellant were seeking a full good character direction. This was a matter for her in the exercise of her discretion. The conclusion she reached cannot be regarded as unreasonable in the Wednesbury sense. It was consistent with the essential reasoning of this court's decision in Hunter. Even if the judge ought to have ruled that the jury need not be told of the bind over, she could not have given an unqualified good character direction. Her ruling on the admissibility of the evidence of the appellant's bad character, which she had found relevant to his propensity to domestic violence, made that impossible. So her good character direction would still have had to be heavily qualified. This was the most the appellant could have expected (see the decision of this court in R. v Doncaster [2008] Crim L.R. 709, to which Hallett L.J. referred in paragraphs 32 to 34 of the judgment of the court in Hunter). There was ample evidence to support the allegations against him. And the likely effect of a strongly qualified good character direction, properly reflecting the bad character evidence rightly admitted by the judge, would been slight at best. The absence of a good character direction in these circumstances cannot be said to have rendered the appellant's convictions unsafe.
39. We can deal shortly with the question of whether the evidence of the bind over was sufficient. There was, in our view, clear evidence in the Social Services records to enable the jury to find that the appellant had in fact been bound over in the course of proceedings arising from an allegation of assault made against him by A, which had resulted in her being taken to hospital with bruising. There was, however, nothing to explain more fully what was said to have happened in that incident, the nature and seriousness of the injuries suffered by A, or the reasons why the proceedings had been concluded with a bind over rather than a conviction.
40. The more difficult question is whether the fact of the bind over, and the allegation underlying it, meant that the appellant was not a man of good character or that he could only be treated as a man of good character if those matters were disclosed to the jury. In our view, on the facts of this case, it would be artificial to consider that question without keeping in mind the conclusion we have already reached on ground 1 of the appeal – that the judge's ruling on the appellant's bad character was correct. It follows from that conclusion that any good character direction in this case would have had to be substantially qualified, and contingent on whatever view the jury might take about the appellant's alleged assaults on his wife. We shall come back to that point. At this stage, however, we must consider whether the judge's ruling on the issue of good character was inherently sound. In doing so, we acknowledge that the prosecution had not sought to rely on the bind over as detracting from the appellant's good character.
41. In Hunter, this court referred (at paragraph 77) to a defendant being of "absolute good character" where there was no "reprehensible conduct alleged, admitted or proven" against him. The reference there to "alleged" reprehensible conduct is to allegations adduced as evidence of a defendant's bad character and properly before the jury as such evidence. A defendant is not necessarily to be deprived of a good character direction by unproven allegations inadmissible as evidence of his bad character. It is with this in mind, we think, that the effect of a bind over on a defendant's good character, or lack of good character, must be considered.
42. The significance of a bind over appears to have changed over time, at least as a matter of practice if not also as a matter of law. Here we are concerned with a bind over said to have been made in 1978. We are grateful to Mr Little for supplying a copy of the relevant passage in the 1976-79 edition of Archbold, current at the time (paragraph 677). This explained that the exercise of the power to bind over did not depend on a conviction. A person could be bound over if he had been acquitted, or if he had been convicted but his conviction had been quashed on appeal. Indeed, even a witness against whom no charges had been brought could be bound over. Archbold continued:

"Before a court can exercise the jurisdiction of preventive justice by binding over there has to be material before it – causing the court to fear that, unless steps are taken to prevent it, there might be a breach of the peace. The material, which does not have to be sworn evidence, has to be such that when considered carefully, it justifies the conclusion that in the absence of action there is a risk of a breach of the peace. … ."

43. The 2017 edition of Archbold (at paragraph 5-216) builds on that earlier commentary, citing the observation of the Divisional Court in R. v Swindon Crown Court, ex parte Pawittar Singh [1984] 1 W.L.R. 449 (at p.451G), that "[a bind over] is a serious step to take and should only be taken where facts are proved by evidence before the court which indicate the likelihood that the peace will not be kept". This seems to represent an evolution of the law in two respects: first, the requirement for evidence, as distinct from "material" which may take some different form; and secondly, the imposition of a higher test – namely a likelihood that the peace will not be kept, rather than merely a fear that it might not. It is implicit too that the criminal standard of proof does not apply.
44. Under the heading "Power to Bind Over to Keep the Peace", the 2017 edition of Blackstone, states (in paragraph E13.2):

"Powers of a magistrates' court to bind over a person to keep the peace arise either on complaint (under the [Magistrates' Courts Act] 1980, s.115) or of the court's own motion under common-law powers and pursuant to various statutes, most importantly the Justices of the Peace Act 1361. While an order under s.115 can be made only after a full hearing of the complaint, where the court binds over of its own motion it may do so at any time before the conclusion of criminal proceedings, on withdrawal of the case by the prosecution, on a decision by the prosecution to offer no evidence, on an adjournment, or upon acquittal of the defendant. These powers, which are exercisable 'not by reason of any offence having been committed, but as a measure of preventive justice' (Veater v Glennon [1981] 2 All ER 304), may be used in a wide variety of situations, including as a sentencing option against a convicted offender. … Before imposing a binding over order the court must be satisfied so that it is sure that a breach of the peace involving violence, or an imminent threat of violence, has occurred, or that there is a real risk of violence in the future. … ."

45. A description of the court's power to bind over is also to be found in the Law Commission's report of December 1993, to which the judge referred in her ruling. This explained (in paragraph 2.9) that a person might be bound over "if a justice considers that the person's conduct was such that there might be a breach of the peace in the future, or that his behaviour was contra bonos mores (contrary to a good way of life)" – as the judge said, conduct which would be regarded as wrong by the majority of contemporary fellow citizens. The standard of proof to be applied was uncertain, but the facts relied upon as justification for the bind over did not have to be proved by admissible evidence. The report also suggested (in paragraph 2.26) that the courts had come to insist on a higher standard of procedural fairness than had previously been so. This observation seems consistent with the view that a bind over could once be imposed in a relatively informal way, when the justices took the view that a person either had behaved badly – but not necessarily criminally – or was likely to do so in the future.
46. In the light of the law as it stands, we cannot say that a bind over, or the conduct leading to it, must necessarily deprive a defendant of his entitlement to an unqualified good character direction. Nor, however, is it possible to conclude that, irrespective of the circumstances in which he has been bound over, a defendant is entitled to expect the bind over to be ignored when such a direction is given. That will always depend on the circumstances. We accept that in certain circumstances it may be appropriate to treat a defendant who has in the past been bound over as a person of "effective good character", and therefore entitled to a full good character direction, as this court contemplated in paragraph 79 of its judgment in Hunter:

"Where a defendant has previous convictions or cautions recorded which are old, minor and have no relevance to the charge, the judge must make a judgment as to whether or not to treat the defendant as a person of effective good character. It does not follow from the fact that a defendant has previous convictions which are old or irrelevant to the offence charged that a judge is obliged to treat him as a person of good character. In fairness to all, the trial judge should be vigilant to ensure that only those defendants who merit an "effective good character" are afforded one. It is for the judge to make a judgment, by assessing all the circumstances of the offence(s) and the offender, to the extent known, and then deciding what fairness to all dictates. The judge should not leave it to the jury to decide whether or not the defendant is to be treated as of good character."

As the court went on to say (in paragraph 80), if the judge decides to treat a defendant as a person of "effective good character", there is no discretion as to the form of the direction. Both limbs of it must be given, "modified as necessary to reflect the other matters and thereby ensure the jury is not misled".

47. If a bind over automatically deprived a defendant of the right to an unqualified good character direction, regardless of the circumstances in which he had been bound over, it would be arguable at least that the presumption of innocence had been reversed. A defendant could lose his good character as a result of allegations which had never been proved against him and which were not admissible as evidence of his bad character. This could occur even if the offending or alleged offending that led to the bind over had been trivial, or even – because there is power to bind over a witness as well as a defendant – where there were no allegations against him at all. We find it hard to think that that is what the law requires. Equally, in our view, a defendant will not be entitled to have a bind over simply ignored when a judge is considering whether or not to treat him as a person of good character, no matter what the circumstances leading to the bind over may have been. Whether a defendant is entitled to be treated as a person of "effective good character" will depend on all the relevant circumstances, and these will include not merely the bind over itself but also the circumstances in which he came to be bound over.
48. In R. v Eckersley [2003] EWCA Crim 2361 the trial judge had failed to give a good character direction to the jury, having been told, wrongly, that the defendant had previously been convicted of assault, and without being aware that he had not been convicted of any offence on either of the two occasions when he had been bound over. This court rejected the submission that the facts were similar to a case where a defendant had previously been formally cautioned, which would have required him to accept that he had committed the offence. Giving the judgment of the court, Clarke L.J. said (at paragraph 19):

"In these circumstances we are of the opinion that the appellant should have been given the benefit of a good character direction. We recognise that there is scope for argument as to whether that should have been tailored by reference to the fact that he had been bound over to keep the peace twice. We can see that in those circumstances, depending upon the facts of a particular case, it may be necessary to modify the full good character direction, but the appellant was certainly entitled to the full propensity part of the direction. There was to that extent a misdirection, albeit through no fault of the judge."

The court was nevertheless able to conclude that that was "one of those very rare cases in which, notwithstanding the failure to give a good character direction, [the jury's] verdict was safe …" (paragraph 25 of the judgment). Mr Little fairly made the point, which we accept, that that observation must now be read in the light of this court's judgment in Hunter. Even so, we note the words "depending upon the facts of a particular case" in the passage we have quoted from paragraph 19 of the judgment in Eckersley. They remain important words.

49. In this case the judge was faced with a difficult question, perhaps not surprisingly given the lapse of time. She had to assess the relevance and significance of the bind over to the appellant's good character, without the benefit of any more information than could be gleaned from the Social Services records. In view of the uncertainty over the circumstances in which the appellant had been bound over, it was clearly open to her to conclude, as she did, that the fact of the bind over itself did not deprive him altogether of his entitlement to a good character direction. But, understandably, she was not prepared to give the jury a direction on the appellant's character which would in her view have been misleading.
50. We sought to test this part of the judge's ruling by inviting counsel on either side to formulate the directions she might have given to reflect it. This was illuminating. Leaving aside the question of whether the bind over had in fact been imposed and the impact of the bad character evidence relating to the appellant's assaults on his wife, the direction would have needed to incorporate at least the following matters: first, some explanation to the jury as to what a bind over is and what it meant as a matter of law when imposed in 1978, including that it did not involve proof or admission of any criminal conduct on the part of the appellant; secondly, an explanation that the bind over had occurred in proceedings arising out of an allegation of assault by the appellant on his daughter, A; thirdly, a direction that the appellant had denied the allegation and that the proceedings had not resulted in any conviction; fourthly, a direction that the fact of the bind over and the allegation of assault formed no part of the prosecution case against the appellant and did not make it more likely that he had committed any of the offences now alleged against him; and fifthly, either a positive direction that the jury should regard the appellant as a person of good character despite the bind over or, alternatively – and in our view less plausibly – that it was for them to decide whether they should do so. It seems to us that such a direction, convoluted as it would have had to be, would have been bound to confuse the jury. If they were directed to treat the appellant as a person of good character despite the bind over, they would have been entitled to wonder why they were being told about it at all. The effect could only have been prejudicial. On the other hand, if it were left to them to determine whether to treat the appellant as a person of good character despite the bind over, they would have had no basis upon which to do that in the absence of any evidence of the underlying facts of the alleged assault.
51. In those circumstances, and – crucially – subject to the need for an appropriate direction on the bad character evidence relating to the appellant's assaults on his wife, we think the right course for the judge to have taken would have been to follow the logic of her conclusion that the bind over should not of itself deprive him of a good character direction, and to conclude that she should direct the jury to treat him as a person of good character. This could have been done without the jury being misled. There was, we think, no need to mention or to explain the bind over or the underlying allegation which had given rise to it.
52. But even if that is right, we cannot accept that in the circumstances of this case the absence of a good character direction conceivably rendered the appellant's convictions unsafe. We come back now to the consequences of our conclusion on ground 1 of the appeal. Mr Little was, in our view, right to submit that in the light of the judge's ruling on the bad character evidence relating to the appellant's assaults against his wife – which we have upheld – he was not entitled to an unqualified good character direction in any event. Any mention of the appellant's good character could only have been heavily qualified. The evidence of his violence towards his wife was properly before the jury as evidence of his bad character. And it seems to us to have been so powerful as to be compelling. The jury would have had to be directed that if they were sure those assaults had occurred, the appellant was not and should not be treated as a person of good character. It is, we believe, wholly unrealistic to think that they would have regarded him as a person of good character if that direction had been given. Indeed, to have told the jury that they should regard the appellant as person of good character unless they were sure he had assaulted his wife might well have made his position worse. It follows, in our view, that this ground of appeal cannot succeed even if the judge's ruling on the effect of the bind over on the appellant's good character was flawed.
53. Ms Goodall also submitted that the judge should have given the jury a good character direction as to propensity in respect of the alleged sexual offences, even on the basis of their being sure that he had physically assaulted his wife. We disagree. As Mr Little submitted, such a direction would not have been appropriate in this case. Both the physical assaults and the sexual offending were said to have been committed in the family home. Like the physical assaults, the alleged offences of indecent assault were, in truth, part of the appellant's allegedly domineering behaviour and cruelty towards the complainants. On the facts here it would have been unreal to distinguish between these two kinds of offence. Giving the jury a good character direction as to propensity on the allegations of sexual offending, even if they were sure about the physical assaults on the appellant's wife, would have verged on absurdity (see the speech of Lord Steyn in R. v Aziz [1996] A.C. 41, at p.52).
54. As Hallett L.J. said in paragraph 91 of the judgment of the court in Hunter, "the extent to which a direction on the defendant's good character is likely to impact on a jury's deliberations is not the same in every case". In the circumstances of this case the absence of what would have had to be a very heavily qualified direction on the appellant's good character does not in our judgment affect the safety of his convictions at all. This conclusion is reinforced by the fact that the appellant was convicted on all the counts of cruelty to a child. In view of the evidence given by the complainants and the appellant's ex-wife, the jury must have been sure that she too had been a victim of his violence.
55. We therefore reject this ground of appeal.

Ground 3 – cross-admissibility

56. In her summing-up the judge gave the jury these directions on cross-admissibility, which she had discussed with counsel before speeches:

"As I have already said, you must consider the case against and for the defendant on each case separately. The evidence in respect of each count is different and your verdicts need not be the same. However, the evidence relating to one complainant is capable of supporting the prosecution's case in relation to the others. The prosecution says it cannot be a coincidence that four of the defendant's children all say the defendant ill-treated them and three say he indecently assaulted them when they were children. There are also similarities in what the defendant is said to have done. For example, that he lined them up in the dining room and beat them one by one by age. The prosecution says all this makes it more likely they are telling the truth. You can only view the evidence this way … provided you are satisfied the complainants are truly independent of each other, in the sense that one [complainant's] account of events has not been influenced, consciously or unconsciously by another. In the case of the alleged physical ill treatment, the complainants' evidence is that they were often all together when it was happening. If they are telling the truth, it is not surprising they make similar complaints. Their shared experiences do not mean that their complaints are not independent. However, if one witness has influenced another or they have been influenced by someone else, then that may cast doubt on the reliability or truthfulness of that [witness's] evidence. In that event, the prosecution's point would fall away. If you are sure one [complainant's] account of events has not been influenced, consciously or unconsciously by another, then you can take the evidence on one charge or charges into account when considering the other charges. Whether that [complainant's] evidence lends support or not to the other charges is a matter for your judgment. However, be objective. The fact the defendant ill-treated or indecently assaulted one complainant does not automatically mean other complainants were being truthful or accurate in their recollection of events. If you consider that one [complainant's] accounts of events may have been influenced, consciously or unconsciously by another, then obviously, you should treat their evidence with considerable caution. It does not automatically mean the defendant is not guilty of that charge. As I have said, if you are sure a [witness's] evidence as to the essence of the offence is truthful and accurate and the offence is proved, then you should convict the defendant, even if you think there is no independent evidence to support the [complainant's] account."

57. As we have said, ground 3 of the appeal was not before the single judge. The contention here is that the judge's directions were inadequate in two particular respects: first, that she failed to direct the jury on the possibility of collusion between the complainants, and secondly, that she undid the proper effect of her directions on cross-admissibility by telling the jury that even if they considered a particular complainant's account of events had been influenced by another's, and even if there was no independent evidence to support that complainant's account, they should nevertheless convict the appellant if they found that evidence reliable.
58. Ms Goodall submitted that the judge's directions on cross-admissibility fell short of directing the jury on the risk of deliberate collusion between the complainants. That, she said, ought to have been done. The directions concentrated on the concept of "conscious or unconscious influence". But the jury should also have been guided on the approach they ought to take if they concluded that the complainants had got together to make up false allegations against the appellant. The directions were not robust enough. They did not match the directions in the Crown Court Benchbook (at p.175), the Benchbook Companion (at p.75) and the Crown Court Compendium (at paragraph 12-7). The judge ought to have said to the jury that the prosecution had to make them sure that they could exclude the realistic possibility of contamination before they could rely on the complainants' evidence. It was, Ms Goodall submitted, a misdirection to tell the jury that they could convict the appellant even if they concluded that the relevant evidence of one of the complainants had been influenced by another complainant, and there was no independent evidence to support it. The appellant's defence depended, in large part, on the possibility, at least, of collusion between the complainants and their concoction of a false account of events to inculpate him. Their allegations had emerged after S had made a disclosure to the police when arrested for aggravated burglary at the appellant's home. Only then had S's siblings come forward, having spoken to him and to each other before being interviewed by the police. Ms Goodall also referred to a text message from I to the other complainants which referred to compensation.
59. We cannot accept those submissions. In our view the judge's directions on cross-admissibility were clear, realistic and complete.
60. The fact that the judge's directions did not exactly replicate any of those to be found in the Crown Court Benchbook, the Benchbook Companion, and the Crown Court Compendium published in May 2016, some three months after the appellant's trial, does not assist her argument. The judge clearly needed to provide the jury with directions that reflected the particular circumstances in which questions of cross-admissibility had to be considered in this case, not template directions without adaptation.
61. The judge's directions on cross-admissibility were, as we have said, shared in draft with counsel before they made their speeches to the jury. After Ms Goodall had urged the judge to direct the jury on the possibility of "contamination" and objected to her directing them that they could convict the appellant in the absence of independent evidence, the judge made some adjustments to the directions. In the perfected grounds of appeal the directions she gave to the jury were criticized. We do not think the criticism is justified. No doubt the judge could have added an explicit reference to "collusion" or "contamination". But she did not need to. She had already directed the jury that each count on the indictment should be considered separately, and she reminded them of that direction now. She warned them that they must be satisfied that the complaints were "truly independent of each other …", and alerted them several times to the possibility of one complainant's account having "consciously or unconsciously" influenced another's. She was right to say, however, that similarities in the complaints did not necessarily mean that the complaints lacked true independence. In our view, she achieved a sensible balance between these considerations. Before her summary of the complainants' evidence, she also directed the jury that in considering whether that evidence was reliable, they should take into account these questions: whether the complainants were "independent of each other", whether they had a motive for "lying or exaggerating events", or "to fabricate these allegations", whether a particular complainant was "the sort of person to invent [the allegations], fantasise or be influenced by others to make them up", and, specifically, "[what] opportunity he or she has had to collude with other witnesses".
62. Finally, we see nothing in the submission that the judge undermined her directions on cross-admissibility by telling the jury that they could convict the appellant if they were "sure" of the relevant evidence of one of the complainants, even without independent evidence to support it. Those directions were perfectly accurate.
63. We therefore refuse leave to appeal on ground 3.

The application for leave to appeal against sentence

64. We turn to the renewed application for leave to appeal against sentence.
65. In her careful sentencing remarks the judge recounted the appellant's offending against the complainants as children. He had "systematically" beaten them with a belt and a length of garden hose over many years. He had "regularly" locked them in the cellar, sometimes for days at a time, and had withheld food from them. He had "regularly" inspected the vaginas of E and Ev to make sure they were still virgins. He would sit E on his lap, moving her around on his erect penis. He would masturbate to ejaculation by rubbing his penis between S's legs. The judge described the effect on all of the children as "devastating". Each of them had run away from home as soon as they could in their early to mid-teens. They had got into trouble at school and had begun offending. Some of them had suffered from mental health problems, particularly E, and had also had problems with drugs and alcohol.
66. The judge referred to the decision of this court in R. v H [2011] EWCA Crim 2753, which indicated the correct approach towards sentencing historic offences of this kind. She said the relevant sentencing guidelines were of only "limited assistance" here. There was no suggestion in the authorities that a different starting-point should be taken where the defendant was old and infirm. In this case the delay in reporting had been as a result of the fear and distress caused by the abuse. The appellant had not shown any remorse or expressed any regret for the physical abuse, and had completely denied the indecent assaults. The complainants had been "forced to give evidence at length and vilified as liars, fantasists and money grabbers who were only after compensation". Bearing in mind his age at the time of the offences and the period over which the offending had continued, the judge said she could give "little weight" to the fact that the appellant had no other convictions, and to the letters that attested to his personal qualities.
67. She went on to explain how she proposed to sentence the appellant for each offence. She dealt first with the offences of child cruelty. She referred to the "prolonged and repeated physical abuse", to the "nature and frequency of the beatings", the number of children affected, their ages at the time, the number of years that the abuse had continued for each of them and the total period of abuse, and imprisonment in the cellar as factors which easily met the test of "serious cruelty over a period of time". For the totality of this offending, in view of all the aggravating factors, the current sentencing guidelines would indicate a sentence of eight years, which would equate to the maximum sentence of two years on each count, running consecutive to each other. The judge noted that in Attorney-General's Reference No. 104 of 2011 [2012] EWCA Crim 366, the same approach had been adopted. As for the indecent assaults, the she said that in her view these had plainly been carried out purely for the appellant's sexual gratification. The sentencing guidelines for sexual assault were relevant. Significant psychological harm had been caused. Applying the guidelines to the individual circumstances of the offences, the judge concluded that for the offences against Ev, the appropriate sentence on count 4 would be one of 18 months' imprisonment, and on count 8, two years. On count 3, the offence against E, the appropriate sentence was two years. The offence against S, count 11, was more serious. The least sentence which could reasonably be imposed for that offence was one of two years and six months.
68. The judge recognized that making all of these sentences concurrent would not properly reflect the overall gravity of the offending. But to make them all consecutive would produce a sentence that was neither just nor proportionate. A fair approach would be to reduce each of the offences for the child cruelty to 18 months, making those run consecutive to those of the indecent assaults, except that the sentences for counts 3 and 4 would run concurrently with each other. This, said the judge, would make a total sentence of 12 years. In fact, the arithmetic here is wrong; the total sentence arrived at in this way would have been 12½ years. The judge then proceeded to make a further reduction for the appellant's age and infirmity. He was suffering now from "mild to moderate stage dementia", which was likely to deteriorate, and also from high blood pressure, prostate cancer, chronic kidney disease, incontinence, cataracts and diabetes. The judge referred to the decision of this court in H, in particular paragraphs 15 and 16 of the judgment. She considered that an appropriate reduction in this case to reflect the difficulties the appellant would face in prison would be to a total sentence of eight years' imprisonment. She made appropriate adjustments to the individual sentences to achieve that.
69. The renewed application for leave to appeal against sentence is put forward on four grounds. First, it is contended that the judge took a wrong approach to the relevant sentencing guidelines, mistakenly placing the child cruelty offences in the top category of offending in the "Assaults on Children and Cruelty to a Child" guideline, and, in respect of count 3, mis-stating the applicable starting-point and range for a category 3A offence in the guideline for "Sexual Assault of a Child under 13". Secondly, where the judge found it appropriate in principle to impose maximum sentences of two years, her sentencing for those offences was manifestly excessive. Thirdly, the total sentence of eight years was not just or proportionate. And fourthly, that sentence should in any event be reduced "as an act of mercy".
70. We cannot accept those submissions.
71. We agree with the observations of the single judge in refusing leave to appeal against sentence. In the first place, it is not arguable that any of the individual sentences passed by the judge or the total sentence of eight years was either wrong in principle or manifestly excessive. She consciously and correctly applied the approach in H. Secondly, where she imposed consecutive sentences for offences relating to a particular complainant, and concurrent sentences for two or more offences committed against a complainant, the approach she took was right. Thirdly, she was entitled to conclude that the offences of child cruelty against each complainant fell within the category of serious cruelty. She did not misapply the relevant guideline. These offences were sufficiently serious to justify the sentences she passed for them. Fourthly, as for the offence of indecent assault in count 3, we reject the submission that she made a significant error in the light of the starting-points and sentencing ranges in the relevant sentencing guideline. In our view the sentence of two years was entirely appropriate. Fifthly, there was nothing inappropriate in principle in her passing maximum sentences where she did, and those sentences were in any event not manifestly excessive for the offending in this case (see H and R. v Clifford [2015] 1 Cr. App. R. (S) 32). Sixthly, the total sentence of eight years represented a substantial reduction of four years and six months for totality, and was, in our view, well within the appropriate range. And seventhly, the judge fully reflected the personal mitigation available to the appellant, including his age and health. The sentence was, in the circumstances, as merciful a sentence as she could properly have passed (see the judgement of this court in R. v Millberry and others [2003] 1 WLR 546, at paragraph 17). Even for a man as elderly and infirm as the appellant, we cannot regard the total sentence of eight years as arguably wrong in principle or arguably manifestly excessive.

Conclusion

72. For the reasons we have given, the appeal against conviction must be dismissed and the renewed application for leave to appeal against sentence refused.