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TURNER, R v. [2000] EWCA Crim 27 (27th March, 2000)
Case No: 1999/01555/X3
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 27th March 2000
B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE HIDDEN
and
MR JUSTICE ASTILL
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REGINA
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and -
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MICHAEL
JOHN TURNER
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mrs H Grunwald Esq, QC(Mr D Haeems) appeared on behalf of the
appellant(instructed for the Appellant)
Mr J Bullen Esq (Mr Shaw) (instructed by for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE HENRY:
1. This is the judgment of the Court. On 29th January 1999 in the Crown Court
at Winchester before Mr Justice Butterfield and a jury, the appellant was
convicted on eleven counts of serious sexual offences against children, by a
majority verdict in every case, five of those verdicts being 10:2 and six being
11:1. He was sentenced to a total of 12 years' imprisonment. He now appeals
against those convictions by the leave of the Full Court.
2. The allegations were made by two complainants, both of whom were the nieces
or half-nieces of the appellant. The offences took place a very long time ago
indeed. Counts 1 and 2 were counts of rape against the complainant D. Count 1
was placed between 4th June 1975 and 3rd June 1978 (over 20 years before
trial). At that time the complainant would have been between 12 and 15, and
the appellant would have been seven years older. Count 2 (rape) was said to
have occurred between June and October 1980, 18 years before trial, when the
complainant D was 17 and the appellant 24. The remaining nine counts concerned
the complainant C, the counts being six counts of rape, one of buggery, one of
false imprisonment, and one of assault occasioning actual bodily harm. These
were said to have occurred in the period 1984 to 1986, when the complainant was
between 14 and 16, and the appellant was fourteen years' older.
3. His defence was a total denial of all charges, though he did admit to a
single act of consensual sex with D, on an occasion other than alleged in
Counts 1 and 2.
4. The appeal is put forward on four grounds:
1) That the proceedings should have been stayed as constituting an abuse of the
process of the court, because no fair trial could be had, and it would be
unfair to try him.
2) The jury should have been given the full corroboration warning in relation
to the evidence of both complainants.
3) The verdicts were against the weight of evidence.
4) There was reason to question the jury's verdicts because of the order in
which those verdicts were given, the difficulty in seeing rhyme or reason in
the number dissenting in the majority verdicts, and questions as to
comprehension raised by the contents of various notes from the jury.
5. So far as we are concerned, the first ground of appeal is the substantial
one and it is on that that we will concentrate. There are three separate
strands to the abuse of process grounds:
a) C had gone to the police in 1985 or 1986 and made a contemporaneous
complaint against the appellant at a time when all but the last two counts
against the appellant were alleged to have been committed. The only charge
brought as a result of that complaint was a single allegation of indecent
assault on a girl aged 15 years, committed in a car. No evidence was offered,
and the appellant was discharged on 12th August 1986. Nothing else is certain
about that complaint because the police routinely destroyed the file - the
witness statement, the police report, the record of interview and any
correspondence with the defence. The appellant's case is that the destruction
by the police of all witness statements and other documents irreparably
prejudiced the defence. We deal with this from paragraphs 6 to 22.
b) In 1997 those allegations re-surfaced, when the appellant's daughter
(complainant E, aged 12) complained of having been indecently assaulted by him.
Her mother also complained that he had threatened to kill her. Complainant C's
witness statement shows that the police involved in that incident called on her
to ask her to "redo her statement" - presumably the 1985-1986 statement. It is
not clear why Complainant D came forward then to make her first statement at
that time, 17 years after the event. Both E's allegations of indecent assault
on her and her mother's of threats to kill were withdrawn. Yet despite this
the appellant could not investigate C and D's delay in complaining because of
the nature of the withdrawn allegations, and their prejudicial effect. We deal
with this from paragraphs 23 to 32.
c) Lastly, there are what we might describe as the usual difficulties
confronting a defendant preparing a defence in relation to matters between 17
and 12 years old. Sex offenders often achieve their victims' silence by
threats, and this appellant had a reputation for violence. Where that is the
case the courts are understandably unsympathetic to difficulties caused by
delay. But the real difficulties here were the police destruction of the
1985-1986 documents, and the consequent loss of the best opportunity of testing
C's (and to a lesser extent) D's credibility.
Ground a): Destruction of the 1985-1986 court papers
6. No contemporaneous complaint was made by D in relation to Counts 1 and 2,
which allege rapes on her, probably in 1976 and 1980. In evidence she was to
say that she had told a girlfriend, Linda Tomlinson, about what had happened,
but no-one else. She did not tell her mother. She said in evidence that a
factor in not complaining was that she was frightened of her uncle, and that he
had a violent reputation. The first and only statement the defence have seen
of hers was dated 04.09.97, 21 years after the first alleged rape on her.
7. But the complainant C did go to the police in late 1985 or early-1986, that
is to say contemporaneously with the offences alleged by her in Counts 4 to 11.
It is now for practical purposes impossible to be sure what then happened.
Apparently, so we were told, this police force routinely destroys documentation
after three years. That has happened here, and there is no record of what
documents were destroyed. All that survives in the way of contemporaneous
documents are first, a magistrates' court record which records that the
defendant was Michael John Turner, that the nature of the offence was that
he:
"... indecently assaulted a girl of the age of fifteen years, contrary to
Section 14 of the Sexual Offences Act, 1956",
that the date of the offence was between 30.6.85 and 05.02.86, under "Plea" it
is recorded that the defendant was not present and under "Decision" it says
"No evidence offered - discharged. Prosecution and Defence costs certified
from Central Funds"
8. It seems that happened on 12th August 1986, by which time the rapes in
Counts 3, 7, 8, and 9, the lorry incident (see below, Counts 4, 5 and 6) and
indeed all matters now complained of by her would have happened except possibly
Counts 10 and 11. If she complained of all the matters, she was clearly not
believed, and if she did not complain, her credibility could be affected.
9. All that is known apart from that document is a police microfiche record
which, in relation to the charge of indecent assault states:
"Method used - picked up niece on pre-arranged meeting. Went for a drink. On
return home, stopped car, committed sexual acts, although intercourse did not
take place. Female aged 15 years. Date and time of offence July 1985.
Location of offence: Bishopstowe, Eastleigh".
10. It would seem that neither the appellant nor either of the complainants had
any reason to recall precisely what had happened in relation to the 1985/1986
charge until 1997, some eleven years later and itself some two years before
trial. But it was C's recollection that she had complained of rape, and she
had also told the police that D was complaining of rape too. The appellant's
recollection was that he was questioned as to rape in relation to both
complainants. It is clear that rape was never charged. Only the one act of
indecent assault was charged. A potentially crucial plank in the appellant's
defence would by any discrepancy between what she did allege 12 years or so
later. We return to this later.
11. It is also not clear precisely why the case came to an end. In her 1998
witness statement C states:
"I had to go to court in Eastleigh. I had to go into the witness box. I had
to put my hand on the Bible. I did this and read an oath. I could not go
through with it and I blurted out, `It is all a pack of lies'. A man in front
of the witness box said: `We have a letter to the same effect from your
mother'. I could not believe that she could do that to me. She had not even
bothered to go to the court with me. I knew that if I went ahead and gave
evidence Michael would get me. I don't even think he was in court. I did not
see him. As far as I know that was the end of the court case."
12. The judge's comment to the jury in his summing-up shows the difficulty in
accepting that account:
"Whether her recollection can be right about that, we simply do not know,
because by all accounts the defendant was not there. [That is confirmed by the
court record already quoted]. He arrived late. It is unlikely as a matter of
procedure, that a witness would have been called to give evidence in the
absence of a defendant. But there it is. Plainly she withdrew her allegation
and she was saying it was not true."
13. C's case was that by this time she had told the police everything, "...
except perhaps for the lorry incident ... I couldn't handle [that]". The judge
said this:
"The allegations of rape made by C, and the defendant accepts that they were
made, since he was interviewed about them, were not pursued. The defendant was
charged with a single offence of indecent assault upon C, though why the charge
was reduced from rape to indecent assault, and whether other offences were
disclosed by C in her statement, we do not know."
14. The destruction of all statements and other documents results in a very
unsatisfactory state of affairs. At the time of her statement in 1998 C was
alleging:
"Count 3: a rape in 1984 in the cramped confines of a two-seater sports
car.
Count 4: (false imprisonment)
Count 5: rape
Count 6: buggery"
all constituting "the lorry incident", a high profile incident which we turn to
next..
15. She said the lorry incident occurred before she had a pregnancy terminated
at 17-19 weeks on 21st November 1985, ie earlier than that date. The
allegation was that she was walking home alone at 9.00pm when the appellant,
driving his employer's lorry, picked her up and offered her a lift home, but
took her instead to the firm's depot in Bishop Waltham to a warehouse in which
the lorries were parked. There they were locked in, and she was raped and
buggered and tied up. He dropped her near her home the next morning. Her
mother and two police officers were there, as she had been reported missing.
She told her mother that she had been with the appellant, shut in his lorry,
but her mother did not believe her. By trial her mother was unable to give
evidence because of poor mental health, and it was too late to inspect the
police attendance records and question the police officers. But the defence
called the appellant's employer who gave evidence and produced documents to
show that: 1) the appellant was not employed by them until June 1986; and 2)
that his company had not moved to Bishop Waltham and that warehouse until
January 1986, so the offence could not have been committed when she said it had
been. It has not been suggested to us that he was lying or mistaken in that
evidence.
16. Counts 7, 8 and 9 were three counts of rape at the complainant's home,
representing what she put forward as ten incidents of routine rape, both before
and after the lorry incident. Her case was that one of the rapes caused her
pregnancy.
17. Count 10 was a rape at home while her mother was there. This caused her
particular anxiety because she alleged her mother had a sexual relationship
with the appellant.
18. Count 11, the last count, was that of a serious assault on her in a flat to
which she had moved after a row with her mother, an occasion after she had
withdrawn her allegations at the magistrates' court. A girl called Julia
Thomas came in and so brought the attack to an end. It was too late to trace
her. C's evidence was that she had told the police about all those matters,
except perhaps the lorry incident which she said she could not handle.
19. It is difficult to reconcile C's evidence of what she complained of to the
police in 1985-1986 with what we know. We know that the appellant was charged
with one offence of indecent assault, and that that was withdrawn on 12th
August 1986. This suggests either that she did not then complain to the police
of any of those other matters, or she did and they did not believe her. The
documents would have made this clear, and the police have destroyed those
documents. That does not seem to us to result in a neutral "we must do our
best with the remaining evidence" conclusion, but to raise the twin
possibilities both of serious prejudice to the defence, and positive benefit to
the prosecution. It was clearly important for the appellant to know what had
been said to the police, what he had said, and, more importantly, what others -
and in particular Complainant C, had said. For instance, it was his
recollection that he was not asked about the lorry incident, and if the witness
was complaining of rape, it would be remarkable to omit this incident. There
was an evidential hole at the heart of the case which was caused by police
action, and which could not be repaired by judicial case management. As Mr
Grunwald QC for the appellant submitted, it gave C a free hand to say what she
wished, confident that she could not be corrected by the 1985-1986 documents.
Those documents would have been central to the case, and a trial without them
could not be as fair as a trial with them.
20. We were assisted by the factually comparable case of R -v- Robert Nigel
D (CACD 98/6262/W2 - referred to in Archbold News for January 2000) the
Crown had written a letter stating:
"Police enquiries have not been completed and having regard to the
circumstances and insufficient evidence, I have decided that no further Police
action will be taken in this matter."
On the termination of proceedings, one would expect some letter to be sent. If
such a letter was sent in the instant case, it did not survive.
21. In that case, this Court said:
"There are decisions where, despite destruction of evidential material, no
abuse has occurred - see R -v- Beckford [1996] 1 Cr App R. There are
other cases where a decision has gone in the other direction - see R -v-
Gajree. Applying the principles and dicta we have identified, we are
satisfied that in regard to counts 7 and 8 abuse has occurred. The letter of
21st May 1986 indicates a clear and final decision that `no further police
action will be taken in the matter'. In the meantime, vital documents and
other evidence were destroyed by the police in the course of their normal
practice. This was not accidentally done, but clearly as a deliberate act
resulting from the letter itself and the decision contained in it. The most
important part of that evidence was the original complaint from KC and his
witness statement. Any discrepancies between the original and what was
prepared many years later for the purposes of trial would have been of material
interest to the defence. The statements of the police officers and the
civilian witnesses were also disposed of.
It is not necessary to consider in any detail the effects of the destruction
of the premises or the judo mat. Those matters speak for themselves.
Accordingly, we are satisfied that the police have misused their powers when
they went back on their word and instituted proceedings. We do not consider
the reason for doing so in the subsequent letter in June 1997 is an adequate
explanation or justification for reinstituting the proceedings. It is conceded
that none of these matters were the fault of the appellant. The prejudice is
obvious and substantial. The appellant was clearly at a disadvantage in the
preparation and conduct of his defence. This situation could not be remedied
by any direction in the summing-up. Therefore we would allow the appeal on
this ground of appeal as a result of which we would quash the convictions on
counts 7 and 8."
22. Here we do not have any material as would justify a finding that the police
went back on their word in instituting proceedings. But the prejudice here was
obvious and substantial, for the reasons given.
23. Nothing was then heard as to any complaint against the appellant for eleven
years. In 1997, the appellant was living with his partner, Lorraine P. With
them was their daughter, Complainant E. The appellant's case is that he and
his partner were experiencing difficulties in their relationship, and E, then
12, wanted him out of the house. She complained to the police that he had
indecently assaulted E. He was arrested and charged with this offence on 26th
March 1997. He was released on conditional bail, the conditions being not to
contact Lorraine P nor E. They never lived together again. E's wishes had
been achieved. It was alleged that he had returned in breach of condition on
30th March 1997 to shout "You are dead".
24. It is a common phenomenon in sexual crimes that when an offence is alleged
against a new victim, previous victims come forward. Here it seems that the
police contributed to that process. At some time after that in 1997, two
police officers came to see Complainant C, and asked her if she would "...
re-do [her] statement". In this family, she had heard of E's allegations, but
had not apparently come forward herself. As I understand it, whatever
statement was there referred to is now no longer in existence, and the 1985-86
statement (if different) would not have been in existence then. She agreed to
give a statement, but indicated she was frightened of the appellant. She did
not agree to make a statement until the appellant was arrested and in custody
(31st May 1998). Her statement was finally dated 23rd June 1998.
25. Meanwhile, we know that E withdrew her complaints against the appellant on
3rd September 1997 - but we know not why.
26. The appellant was aware that around this period there were meetings between
D and C and Lorraine P. The day after E withdrew her indecent assault
allegations (on 4th September 1997) D made her statement. In that statement
she dealt only with the first two counts alleging rape on her. In relation to
1985-86 she said:
"I spoke with C and she related to me what [the appellant] had done to her, and
there were so many similarities."
27. She did not say why or how she came to make that statement then, at least
17 years after the events of which she was complaining. But she did, for no
clear reason, confirm that Lorraine P was Michael's partner or wife, and E
their daughter.
28. Before E withdrew her allegations of indecent assault on her by the
appellant, he had been charged by Lorraine with threats to kill on two
occasions in 1997. Lorraine P apparently made a statement to the police on
29th May 1998 alleging further threats to her and E. On 31st May 1998 the
appellant was arrested "on suspicion of a number of rapes between 1974 and
1980". On 9th November Lorraine P wrote to the police withdrawing the
allegation of threats to kill, saying:
"I do not want to pursue this matter, as I now realise that I over-reacted due
to stress and depression I was suffering at that time, due to several personal
problems. I do not believe that Michael Turner intended to kill or harm me, my
daughter or anyone else."
29. The first question the jury would want to know is why D and C came forward
then, but not earlier. The defence were effectively prevented from asking that
question because the answer was that the appellant's own daughter had
complained of indecent assault, and he had threatened to kill his wife. The
fact that both had withdrawn those complaints would not prevent the devastating
prejudicial effect of such answers. We are told that at the leave application
Alliott J commented that it would be "suicidal" for the defence to open up this
topic. We agree.
30. That dilemma could not be avoided by urging the jury not to speculate. The
judge rightly gave that direction:
"You have no evidence from either complainant explaining the delay in making
the complaints or why they have now come forward. There is no evidence about
that. They could, either or both of them, have been asked for an explanation.
They were not asked to offer such an explanation. You must not speculate about
either matter. You do not know why they did not come forward during the
intervening years, and you do not know what if anything prompted them to come
forward now; and you could spend a long time in the jury room wondering. Do
not. There is no evidence and it would be quite wrong for you to start
guessing."
31. But speculation is difficult to avoid - see the summing up at 16C:
"The defendant's case on this issue is that [D] has made up these allegations
of rape in order to explain what was being spoken of in the local public house
where in effect the word on the street was that the defendant had had sex with
her. You will have to consider that as a possible explanation since it is
advanced for your consideration. But the occasion of sexual intercourse, on
anybody's view, was 1980 or 1981. The first time these allegations seem to
have surfaced was in 1985 or 1986, when [D] spoke to [C] about them, and [C]
may or may not have mentioned them to the police. By that time, as far as I
understand the evidence, [D] was married. Quite why she should choose now to
make these allegations against her half-uncle, knowing them to be lies, when
seventeen years have elapsed and the defendant is living in Liskeard, is not
entirely clear. But I have put, as it were, one observation to you, let me put
the obverse. If you cannot see any sensible motive for [D] to invent these
accounts, you are entitled, as a matter of common sense, to take that into
account in deciding whether or not you are sure that what she says is true. On
the other hand, in matters concerning sexual affairs sometimes hidden motives
exist which are not apparent. So have care before you draw any adverse
conclusion - adverse to the defendant - if it be the case that you are unable
to discern any sensible motive for [D] to make these things up."
32. So it can be seen that the dilemma is caused by the delay - delay which has
already deprived the trial of the most reliable indication of the truth or
falsity of what C (and very possibly D also) were saying in 1985 and 1986.
33. When refusing the application for a stay the judge drew comfort by
reflecting:
"I remind myself that many of these matters, if not all of them, can properly
be addressed in the trial process by control over the evidence and, in
particular, by directions of law to the jury in due course."
But in our judgment, the police action in destroying the 1985 and 1986 papers
could not be so dealt with.
34. In relation to Ground c), what might be called the normal incidents of
delay, the defence identified approximately six witnesses who could have spoken
to various incidents. The judge rightly summed up the absence of each, and the
effect it might have. If it were not for the destruction of the documents and
the dilemma of the subsequently withdrawn allegation, we would not have allowed
the appeal on Ground c) alone. But taken cumulatively with Grounds a) and b),
we, assisted by hindsight, do not think that a fair trial was either possible
or had here, because the 1985 and 1986 documents lie at the heart of the
questions of credibility on which this case turns. They are unavailable by
reason of the routine but deliberate act of the police, and their absence
leaves, in our judgment, an unacceptable question mark over the safety of these
convictions. That was something that no direction of law or control over the
evidence could rectify. Accordingly, we allow this appeal.
35. We do not know how widely this police force's practice of destroying
documents after three years is. This is (after the case of Robert Nigel
D referred to above) at least the second time when a sexual conviction has
been set aside because of the routine destruction of documents. Given the
propensity of sexual allegations to have a long gestation period, we would urge
police forces to consider keeping documents relating to sexual offences and how
they were dealt with for a considerably longer period.
© 2000 Crown Copyright
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