BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Guy, R v [2018] EWCA Crim 1393 (21 June 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1393.html Cite as: [2018] WLR 5876, [2018] 1 WLR 5876, [2018] WLR(D) 388, [2018] EWCA Crim 1393 |
[New search] [Printable RTF version] [Buy ICLR report: [2018] 1 WLR 5876] [View ICLR summary: [2018] WLR(D) 388] [Help]
ON APPEAL FROM THE CROWN COURT
NOTTINGHAM
His Honour Judge Fowler
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE GOOSE
and
HH JUDGE CUTTS QC
(sitting as a Judge of the Court of Appeal Criminal Division)
____________________
Regina and Andrew Ian Guy |
____________________
Ms Nicola Moore for the Crown
Hearing date: 7 June 2018
____________________
Crown Copyright ©
Lord Justice Simon:
Introduction
The evidence at trial
The appeal
Now in the course of cross-examination of the Defendant it was put to him and to some extent he accepted that he had lied to the police in the interview, lied specifically about the taking of drugs. It was also put to him that he had lied to you; these are matters that you are going to have to consider whether you are sure that he did it. He accepted, it seems to me, that that he lied about the drug-taking but where does that take you? Well, what it does not do, ladies and gentlemen, is prove that he is guilty of any of the offences on the indictment. A lie about the fact that he was taking drugs could be brought about by a whole manner of motivation, but you cannot be sure that it is because of anything to do with these offences. So, ladies and gentlemen, you cannot use that as a means of proving - or the Prosecution cannot use it as a means of providing or advancing their case in the sense that it shows he is guilty of these offences. Of course, it is part of what you know and have seen of the Defendant. One of the things that you are going to have to do, perhaps one of the principle things you are going to have to do, is decide what you make of the evidence of him and of [C]. What you know about the Defendant and what you see of him is something you take into account when judging his credibility and, in that regard, you can take account of any lies that he might have told. Not to say that he has lied something like that, or has lied about everything, obviously. You have got to address it in a balanced way, let us note.
The summing-up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid the prejudice that is at odds with it (see also Sullivan [2015] EWCA Crim 1565 at [52] and [53]).
For the purposes of this part (except section 71), penetration, touching or any other activity is sexual if the reasonable person would consider that –
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
The Prosecution have to prove that there was a deliberate touching by the defendant of [C] on her bottom … any touching of the bottom is sufficient if it is deliberate and not accidental.
… you have got to ask yourself would a reasonable person consider it sexual in the circumstances that we know apply in this case.
This is an area, ladies and gentlemen, where it is important that I share with you the experience of courts in such matters, and that experience shows that in sexual cases it is not always the case that a victim will make an immediate response or complain straight away if they are subjected to a sexual assault. Of course, there can be all manner of reasons, but a moment's thought indicates some that might apply generally. I am not telling you what happened in this case, but sexual offences are offences of control, and whilst that control is operative it can prevent the complaint. Part of the controlling behaviour and what is called grooming is to make a victim feel vulnerable and responsible themselves for bring matters about. It is often the case too that the person who is responsible for the event has chosen a victim who is vulnerable and in a weak position, and it is also the case that there is an embarrassment and a sensitivity in making such complaints.
That is the situation with adults subjected to sexual assault and rape; that the confusion and embarrassment, the feelings of helplessness and the making of complaints after many years often arise in instances where children are involved as victims. If you think about it, ladies and gentlemen, the features that might prevent a complaint being made can be borne stronger than a case where a child is involved. We all have the advantage of having been children and experiencing the relationship with adults. A child places trust in an adult, and even more so trust in an adult within a family to the extent of looking to them to establish what is right and what is wrong. How much courage does it take for a child to challenge an adult? How much courage to challenge a father or a stepfather? In any instance a complaint is going to cause disruption and affect the relationship within the family of the child, but also potentially affect the relationship of other family members even, a parent with the person who is alleged to be perpetrated. Those are the features that apply when you consider whether an immediate complaint is made but I stress, ladies and gentlemen, I am not telling you what happened in this case. I am just opening your eyes to the experience of the Court that shows that any assumption that if there is an attack or somebody is going to complain straight away is probably ill-founded, particularly when dealing with children.
Where grooming is alleged to have occurred, whether or not this gives rise to a separate count on the indictment, the concept of grooming and the potential difficulties of a witness' realisation and/or recollection of innocent attention becoming sexual should be explained.
The prosecution case is that before he sexually assaulted V he 'groomed' her. That is to say he won her trust by doing things which in normal circumstances would be innocent, such as playing games with her including play-fighting and tickling, before he went on to touch her sexually. In this situation, a child is unlikely to realise that she is at any risk at all and, when the nature of touching changes from something 'innocent' to something which is sexual, the child may not realise that there is anything wrong and may accept it without any feeling of discomfort or dislike and will not make any complaint about it or resist or protest when it happens again. In these circumstances a child is unlikely to be able to say when touching which had been 'innocent' changed to touching which was sexual. In making these observations I am not suggesting what you should find did, or did not, happen in this case: I am simply alerting you to a potential difficulty which a child in such a situation could face. Whether or not you find that this was a situation faced by V is entirely for you to decide.
Experience has shown that children may not speak out about something that has happened to them for a number of reasons. A child may -
- be confused about what has happened or about whether or not to speak out;
- blame him/herself for what has happened or be afraid that he/she will be blamed for it and punished;
- be afraid of the consequences of speaking about it, either for him/herself and/or for another member of the family (such as {specify});
- may feel that s/he may not be believed;
- may have been told to say nothing and threatened with the consequences of doing so;
- may be embarrassed because s/he did not appreciate at the time that what was happening was wrong, or because s/he enjoyed some of the aspects of the attention they were getting;
- simply blank what happened out and get on with their lives until the point comes when they feel ready or the need to speak out {e.g. for the sake of a younger child who s/he feels may be at risk};
- may feel conflicted: loving the abuser but hating the abuse.
I want to turn, ladies and gentlemen, to another area where it is important that you have your eyes open to the potential difficulties and dangers of assumptions. That really is summed up by saying that it is wrong to make an assumption that a child will have the same ability to recall and give evidence about matters that have happened to them earlier. Not only is [C] even now only 16 but she is talking about initially things that happened when she was eight, and a child's brain takes time to develop; indeed, we know now that it is only in the middle twenties that a brain is actually fully formed and functioning in its adult way. But again, we have experience of remembering things as children and we know from our own experience that the memories are different, less detailed than those memories in adult life, because no doubt in our – it is only later with experience that the brain learns to retain the information in that way. But you also know, don't you, that our childhood memories in fundamentals can be reliable; it might be that the sequencing, the timing and the details are not so clear but the fundamental as to whether something happened or not is something that can be remembered even if it is from long ago. So, ladies and gentlemen, you have to be aware than in this case you have a 16-year-old remembering what had happened to her from age eight through to 13-14, and you have to bear that in mind when you consider her evidence in both ways, ladies and gentlemen, to consider whether it enhances what she tells you now, if it is something you accept, or whether it undermines in any way what she says.
The delay in matters being disclosed is something that you have to bear in mind. If, in any way, you think it has disadvantaged the Defendant then take that into account, but there is really any episode where the Defendant says, 'I don't remember.' His evidence is quite clear, isn't it? It is, 'It didn't happen.'
The allegations are made by [C], and she spoke to you about them in her evidence. You saw the way that she gave her evidence; you saw what appeared I think to be reluctance, hesitance and distress in the way that she presented it. Of course, emotions like that can be put on, and you would have to be sure that they are genuine before you acted upon them, but that is one of the questions you have got to ask yourselves, isn't it? Was that a young girl making things up, reciting some things she had been told, or was that somebody who was genuinely embarrassed and distressed about what she was saying to the officer who was interviewing her? It is suggested that what she was saying, what she has reported is at the bidding of her mother – that they are made up stories. If it is relevant to look at what is being said, and ask yourself if you were going to make it up is that what you would make up? If you are going to have a child tell stories about what has happened, is that what you would get them to say? Would you make sure that there was some support for it? There are all sort of perhaps flaws in the story that could be filled if you have a blank canvas of being able to make it up from scratch. On the other hand, ladies and gentlemen, I have already pointed out that the Defendant does not have to say how or why a complaint has been made up if it is false.
You have been reminded/you will remember that at a number of points in his/her evidence V became distressed and emotional. It is entirely for you to decide whether or not V's evidence is true but you must not simply assume that because V showed distress and emotion it must be true. It is perfectly possible for a witness to become distressed and emotional when describing an incident such as this, whether or not their account is true. The presence or absence of a show of emotion or distress when giving evidence is not a reliable pointer to the truthfulness or untruthfulness of what a person is saying.
Conclusion