No. 1998/07511/Y5
BAILII Citation Number: [2000] EWCA Crim 100
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London WC2

Tuesday  14  March  2000

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Bingham of Cornhill)

MR  JUSTICE  ALLIOTT

and

MR  JUSTICE  NEWMAN

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R E G I N A

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D A

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Computer Aided Transcription by
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MR J TURNER QC and MR J HALL appeared on behalf of THE APPELLANT
MR R NEILL appeared on behalf of THE CROWN
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Judgment
1.	THE LORD CHIEF JUSTICE:  On 16 June 1993, in the Crown Court at Maidstone, the appellant was convicted after a retrial (the first jury having failed to agree) of one count of indecent assault and one count of rape. He was sentenced to concurrent terms of 18 months’ and seven years’ imprisonment for those two offences respectively. The indecent assault was said to have been committed between 27 June 1989 and 26 June 1990 and was put before the jury as a sample count. The rape was said to have been committed on 27 May 1991 during a trip to Scotland.The facts upon which the case rested were in brief these. The appellant was a long‑distance lorry driver. In about 1985/6 he began to live with a woman “KB”, who had two children by her former husband. One of those was a girl “Z”, born on 27 June 1981. She was the complainant in this case and she had a twin brother. The appellant and KB had a child of their own and in February 1989 they married. The marriage was short‑lived and in June 1990 they separated and the appellant began divorce proceedings. He began to live with another woman who had children of her own. The appellant however kept up contact with his own child and he also saw Z from time to time. Thus it was that in May 1991 he took Z with him in his lorry on a trip to Scotland and that is when the rape was said to have been committed.The allegation upon which the first count of the indictment was founded related to a number of indecent assaults said to have been committed against Z when the appellant had been living with KB and the family. 
2.	At the trial Z gave evidence and described in detail both the indecent assaults said to have been committed which, as described by her, were of an extremely unpleasant kind. She also described in some detail the trip to Scotland. When she was cross‑examined a number of matters were put to her. She was, for example, challenged about discrepancies between statements made in her video interview with the police officer and her evidence at the trial. It was suggested, with some support from the video itself, that she had been prompted to make a complaint of rape by leading questions from the woman police constable who interviewed her. It was also suggested that her replies to the woman police constable had been prompted by her mother.
3.	There was evidence from doctors who had examined Z and testified to signs which suggested that the child had been sexually interfered with although the doctors were unable to identify the perpetrator of any such interference. Evidence was given by Z’s mother and also by the woman police constable.
4.	The appellant gave evidence adamantly denying the charges against him and he also called a doctor. The jury however convicted. The appellant was granted leave to appeal. On 1 August 1994 the full court dismissed his appeal against conviction.
5.	The appellant was unwilling to let matters rest and, following the dismissal of his appeal, made application to the Home Office for reconsideration of his case. In due course that application was transferred to the Criminal Cases Review Commission and the Commission has pursued the matter. He now appeals against conviction on a reference by the Commission to this court under section 9(1) of the Criminal Appeal Act 1995. By section 9(2) any matter so referred is to be treated for all purposes as an appeal by the defendant under section 1 of the 1968 Act against conviction.
6.	Several grounds were suggested to the Commission as invalidating this conviction and in the course of a long and carefully written summary the Commission have reviewed those grounds. The first ground, into which it is unnecessary to go in detail, the Commission considered to have no merit: see paragraph 27 of the statement of reasons by the Commission. The second and third grounds the Commission did consider had a bearing on the safety of these convictions: see paragraphs 42 and 43 of their statement. Then, however, the Commission turned to a further ground, which is in substance the fourth in the grounds of appeal before us. As put in the grounds of appeal that is that the convictions are rendered unsafe by reason of the non‑disclosure to the defence of material information and/or by the details of the information contained within material that has only been made available to the appellant since the dismissal of his original appeal.
7.	The Commission in the course of its investigation of this case obtained access to a considerable body of material listed in paragraph 26 of the statement. Having considered that material the Commission expressed the conclusion in paragraph 44 that the non‑ disclosure of that material was prejudicial to the appellant. The conclusion is then substantiated under a series of different headings. The first such heading relates to the complainant’s knowledge of sexual matters and a previous allegation of assault. In paragraph 45 reference is made to an NSPCC report in which it is recorded that a boy aged 15 was suspected of sexually assaulting younger children in the area where Z lived. Following a conversation with Z’s mother the NSPCC officer noted that the mother knew that the younger children in the area played at looking at and touching each others genitals; that the mother felt that this was normal behaviour; she knew of older children involved in this. There was a co‑ordinating meeting held in September 1985 at which reference was made to evidence of Z indulging in sexually related activities and speaking of what her mother’s boyfriend had then done to her. In conversation it became clear that the child had an extensive knowledge of sexual matters.
8.	The second head, outlined by the Commission in a degree of detail which it is unnecessary to rehearse, relates to other allegations of assault made by the child Z. It emerges that she had made allegations of sexual misconduct against both her science teacher at school and also her woodwork teacher, both of these allegations being found to be groundless.
9.	The third head explored by the Commission relates to evidence of potential bias in relation to Mrs KB, Z’s mother. There was evidence that at a child protection case conference the woman police constable who was responsible for supervising this case reported that KB had said the previous week that the appellant ought not be driving (which was his livelihood) and that if she could not get him one way then she would get him another.
10.	The Commission found it to be clear from the files which they inspected that the police were aware of all the foregoing matters before the appellant’s trial took place. In paragraph 52 they said:
11.	“The Commission is satisfied that none of this information was disclosed to the defence. Although it does appear that the [appellant] knew something of the allegation against [the mother’s boyfriend], it seems that the [appellant] could not be expected to have any detailed knowledge of any of the allegations as he was not part of Mrs [A’s] family at any of the material times. In the context of section 23 Criminal Appeal Act 1968 as amended by section 4 Criminal Appeal Act 1995 the Commission considers that there is a reasonable explanation for the failure to adduce this evidence at trial.”  
12.	In paragraph 54 the Commission considered the significance of the material which was withheld from the defence and they observed:  
13.	“The significance of the information relating to the complainant’s knowledge of sexual matters is as follows: the complainant was ten years old when she made the complaints. The jury might have expected someone so young not to have knowledge of the sexual activities such as she described in her recorded interviews. The inference that the jury might have drawn was that the complainant was only able to describe the acts because she had experienced them herself. This new information might have rebutted that inference in the minds of the jury as it provides an alternative source for her knowledge.”  
14.	In paragraphs 56 and 57 the Commission said:  
“56. As to the making of complaints against other persons, the non‑disclosure of these matters deprived defence counsel of the opportunity to develop, in cross‑examination of the complainant, the suggestion that she makes unfounded allegations, of which the complaint against the [appellant] was one. 
57. The evidence of potential bias in relation Mrs [A] was relevant to her credibility as a witness, particularly in view of the way in which defence counsel cross‑examined her, suggesting that she had coached the complainant to give the account that she did.”  
15.	The Commission expressed their conclusions in paragraphs 58 and 59 in these terms:  
“The Commission appreciates that, in relation to such of this material as relates to the complainant’s knowledge and experience of sexual matters, there may have been issues for the trial judge to consider under section 2 Sexual Offences (Amendment) Act 1976 or his common law duty to ensure a fair trial. In the circumstances of this case, he may have permitted evidence to be adduced, or the complainant cross‑examined, on these matters. It is however the fact that, by reason of non‑disclosure, the defence were deprived of the opportunity to canvass these matters which leads the Commission to reach the conclusion it does. 
59. The Commission considers that the cumulative effect of non‑disclosure of this information was prejudicial to the [appellant] because it deprived him of the opportunity fully to place before the jury matters which were relevant to their assessment of the complainant’s credibility. As such, the non‑disclosure prevented him from mounting a proper defence to the accusations. One cannot be sure that had this information been before the jury, their verdict would have been the same.”  
16.	Then, applying the statutory test to which they are subject, the Commission acknowledged that a reference should only be made if in their judgment there is a real possibility that the conviction would not be upheld were the reference to be made. The Commission considered that in the present case such a real possibility existed.It is in our judgment plain both from reading the statement of reasons of the Commission and the material provided to us on behalf of the appellant that there is a formidable case presented to question the safety of these convictions as a result of the matters which should have been, but were not, disclosed. At first blush these undisclosed matters certainly do undermine the safety of the convictions. If the hearing were fully contested before us it would be necessary to consider whether the matters which were not disclosed do provide grounds for quashing these convictions. Our task is, however, made somewhat less burdensome since the prosecution concede that the non‑disclosure issue raised by the appellant in ground 4 of his grounds of appeal does render the convictions unsafe. Reasons are given for that conclusion in these terms:  
“1. The information concerned went to issues that were central to the case. [Z’s] account to the police, upon which the prosecution based their case, was that she had not been abused by anyone other than the defendant, had not been sexually precocious with her brother or anyone else and, apart from having seen ‘dirty films’, had no knowledge of the details of sexual activity other than as a result of what the defendant had done to her. The non‑disclosed information (set out in paras 45 to 51 of the CCRC Statement of Reasons) significantly undermines that account and, if known to the jury, would have tended to support some of the explanations given by the defendant in his police interview .... 
2. The information therefore undermines important aspects of the prosecution case as well as undermining both the reliability and motivation of [Z] and her and her mother [KA]. These were the only prosecution witnesses whose evidence directly indicated that it was the [appellant] who was responsible for any sexual abuse that [Z] had apparently suffered. 
3. Although this information was in the hands of the police, it was not passed on to the CPS or prosecuting counsel. Had it been, it should and would have been disclosed. The prosecution have to agree with the CCRC analysis of paras 52 to 59 of the Statement of Reasons. At the very least, the jury may well have come to a different conclusion.”  
17.	The concession made by the Crown does not relieve the court of its duty to satisfy itself that the convictions are unsafe. As in so many other cases of this kind the case against the appellant rested very largely on the evidence of the alleged child victim. In the absence of any confession ‑‑ and here the appellant adamantly denied the offences from the outset ‑‑ there is often no supporting or corroborative evidence. That does not of course mean that a conviction cannot be safely founded on the word of a child victim, but it does mean that the jury will wish to scrutinise the evidence of the child victim with great care before relying on it. The jury is likely to be hesitant to convict if the child is shown to be untruthful or unreliable. The jury may, as here, conclude that it is safe to rely on the child’s evidence. If however, as now appears, there are substantial grounds to question the honesty and reliability of the child and, here, the motivation of the mother ‑‑ grounds unknown to the Crown Prosecution Service, prosecution counsel and the defence at the trial, and hence unknown to the jury ‑‑ then the safety of a conviction may be thrown into real doubt. In our judgment such is the case here. The court is in no position to declare that the appellant is innocent or that the child and her mother fabricated the case against him. That is not the function of this court. Our function is to consider whether in the light of all the material before us this conviction is safe. If we think it unsafe our statutory duty is to allow the appeal. The appellant submits that the convictions are unsafe. He receives weighty support from the Criminal Cases Review Commission. The Crown accept that submission as being soundly based. We agree with it. We accordingly allow this appeal and quash both these convictions. 
18.	MR TURNER:  My Lord, the only remaining matter is that I do invite your Lordships to give a direction for the return of the legal aid contributions paid by the appellant. 
19.	THE LORD CHIEF JUSTICE:  For this hearing, is that?  
20.	MR TURNER:  In relation to these proceedings, as I understand it. 
21.	THE LORD CHIEF JUSTICE:  This appeal?  
22.	MR TURNER:  Yes. 
23.	THE LORD CHIEF JUSTICE:  Yes, we will make that order. 
24.	MR TURNER:  I am most grateful.