Neutral Citation Number: [2009] EWCA Crim 1638
Case No: 2008 05808 B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOLTON

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2009
Before :

LORD JUSTICE RICHARDS
MR JUSTICE JACK
and
HIS HONOUR JUDGE BAKER QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
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Between :

	Regina	Respondent	
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	John Mervyn Joseph Tregalles	Appellant	

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Mr Robert Linford (instructed by Hansell, Drew & Co) for the Appellant
Mr Maurice Greene (instructed by Crown Prosecution Service) for the Respondent

Hearing dates : 14 July 2009
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Judgment

Lord Justice Richards : 
1.	The appellant, John Tregalles, is 62 years old.  On 22 September 2008, after a trial at Bolton Crown Court before His Honour Judge William Morris and a jury, he was convicted of a total of 16 offences, comprising one count of buggery, three of rape, two of indecent assault by aiding and abetting, four of indecent assault on a male, two of indecency with a child, and four of assault occasioning actual bodily harm.   He was acquitted on a number of other counts.  The jury failed to reach verdicts on two counts of buggery, two of rape and six of aiding and abetting rape:  those counts were ordered to lie on the file.  
2.	The appellant was sentenced to a total of 20 years imprisonment.  The principal components were 18 year sentences of imprisonment for the offences of rape and buggery, and a 2 year consecutive sentence for one of the assaults occasioning actual bodily harm.  There were lower, concurrent sentences for the other offences.
3.	He now appeals against conviction with leave granted by the single judge, save that on one ground he seeks by way of renewed application to enlarge the basis upon which leave was granted.  He also appeals against sentence by leave of the single judge.
The facts
4.	There were two complainants, both of them the natural children of the appellant.  They were a boy, G, born on 13 April 1982, and a girl, T, born on 8 May 1983.  The appellant started a relationship with their mother, Susan Williams, in the early 1980s.  G and T were the eldest of five children of that union.  The family lived together in Rochdale.  By May 1989, however, the relationship between the appellant and Ms Williams had broken down and they separated.  The tenancy of the property in which they were living at the time, which had previously been in their joint names, was assigned to the appellant and he became sole carer for the children.
5.	The prosecution case was that during the late 1980s and early 1990s, when the complainants were between about 4 and 9 years of age, the appellant subjected them to systematic physical and sexual abuse.  G was beaten regularly with implements, including the buckle end of a belt and his mother’s stiletto shoes.  The appellant touched G’s penis on many occasions and made G masturbate him.  He also buggered G.  He made G and T simulate sexual intercourse and he masturbated to ejaculation while watching them.  He beat T with a belt and raped her on several occasions.  Another element of the abuse was that two women would come to the house and touch T’s private parts as the appellant watched.  He also sent T to the next door neighbour who would touch her sexually.
6.	The appellant had numerous convictions in the 1970s and 1980s for offences that included robbery, burglary and criminal damage.  Most importantly, however, he had a conviction in June 1974 for an indecent assault on a girl aged 8 years, for which he was placed on probation for 2 years; a conviction in April 1981 for an indecent assault on a girl aged 10 years, for which he was sentenced to 3 months’ imprisonment; and a conviction in early 1991 for an indecent assault on T herself, for which he was originally placed on probation for 2 years, but the probation order was subsequently revoked and he was sentenced to 6 months’ imprisonment.   
7.	In late January 1991, as a result of the allegation by T that led to the appellant’s conviction for indecent assault on her, the complainants were taken into care and ceased to live with the appellant.  The offences with which we are now concerned all date back to the period when they were still living with him.  The proceedings were brought as a result of information they provided to the police in 2004.
8.	At the trial the complainants and the appellant gave evidence.  The appellant denied the allegations of abuse and suggested that they were motivated by a desire for compensation.  T had received compensation from the Criminal Injuries Compensation Board following the 1991 conviction.  She received that money on reaching the age of 18 in 2001.  The defence suggestion was that she was seeking further compensation and that G had fabricated his allegations in order to obtain compensation as well.  The issue for the jury was whether the allegations made by G and T were true.
The appellant’s previous convictions for sexual offences
9.	Before coming to the grounds of appeal, we need to deal more fully with the circumstances of appellant’s previous convictions for sexual offences.
10.	As to the 1974 conviction, he accepted at the trial for the current matters that he had inappropriately and indecently touched a young girl at that time and that his plea of guilty was a proper plea.
11.	As to the 1981 conviction, the allegation against him was that he put his hand on the vagina of a young girl, the daughter of a friend, while staying in her home.  Although he pleaded guilty at the time, he told the jury at the trial for the current matters that the incident did not happen or, if it happened, he was not conscious of it and it was accidental.  The explanation he gave the jury was set out and commented upon as follows in the judge’s summing up:
“A police officer spoke to him and said, ‘The jury won’t believe you with your previous conviction’ (that is the 1974 conviction), ‘I was facing 28 days anyway in prison for unpaid fines, I thought I may as well get three months’ (that is for the fines and indecent assault) ‘rather than be remanded in custody’ (in other words, stay in custody awaiting a trial, which may have been three to six months), ‘It did bother me that I was pleading guilty to an indecent assault with a child, but what the police officer said made sense’ and so he pleaded guilty, even though, as he said, he had not committed this offence ….  He was already a sex offender, so another such offence did not make a lot of difference, he said.”
12.	We were told by Mr Linford, who appeared for the appellant at the trial as he did on the appeal before us, that the appellant went so far in evidence as to say that he was told by the police officer to plead guilty and that he would not have pleaded guilty if the officer had not said what he did.
13.	The 1991 conviction arose out of an allegation made at that time by T, who was then 7 years old.  The allegation came out in this way.  In January 1991, apparently as a result of things said to Social Services, T was interviewed by the police at her school.  In the course of that interview she made allegations of rape against a man who, according to her, had the nickname “Chopstick” and the real name “John Williams” and who was her mum’s boyfriend.  Her mother did in fact have a boyfriend at the time, with whom she was living, but the boyfriend’s name was not John Williams (and it should be emphasised that when asked whether anyone else had got a nickname she replied that her dad’s name was “Mervyn”).  When asked what Chopstick had done she indicated, by the use of male and female dolls, a man having intercourse with her - in her own words, putting his widgie inside her rudey.  She said this happened five times.  In response to further questions, she said that he had also touched her sister Naomi’s rudey, but this was with his finger:  she saw him do it to Naomi.  The transcript continued:
“Q.  Has anyone else done this or anything like this except for John?
A.  No.
Q.  Sure?
A.  I want it to stop though.

[There was then a comment that T was finding this very difficult and needed lots of reassurance.  She was sitting on the interviewer’s knee.  The interviewer reassured her that it was okay to tell and she was not in trouble.  T whispered that she didn’t want to tell the other social worker in the room.  The interviewer asked, “Would you whisper to me?”, and T effectively agreed to proceed on that basis.  The interview continued:]

A.  My dad done it and it hurt.
Q.  Done what?  The same thing?
A.  Yes.
Q.  So your dad touched your rudey?
A.  Yes.
Q.  What did he touch your rudey with?
A.  His widgie.
Q.  Did anything come out of his widgie?
A.  White stuff.”
The matter was not taken further with T in that interview and there is no evidence that any further interview took place with her.  
14.	An issue raised by the second ground of appeal is whether in that interview T was to be understood as making an allegation of rape against her father, the appellant.  We will come back to that.
15.	Two days after that interview the police interviewed the appellant.  In the course of his interview he admitted that there had been occasions when he had touched T on the vagina with his finger, and that he had kissed her once on her private parts.  He denied masturbating in front of her, or lying on top of her, or bringing his penis into contact with her vagina, or attempting to have intercourse with her.  Following the interview he made a taped statement admitting sexual abuse in the form of digital penetration of T.  He was then charged with indecent assault.  When he came before the court he entered a plea of guilty and the case was adjourned for reports.  The sentencing hearing took place on 22 May 1991.
16.	In his police interviews in respect of the current matters, and in his evidence at the trial, the appellant said that he had admitted the indecent assault in 1991 and had pleaded guilty because, before his formal police interview, he was advised by a social worker, or possibly two social workers, in the presence of two male police officers that if he pleaded guilty he would get treatment for sex offending and as a consequence he would get custody of his children once more.  He said he was induced by those promises to make the admissions he did at the time and that the admissions themselves were lies.  The flavour of it is given by the following passage from the judge’s summing up: 
“Then I asked some questions right at the end of his evidence about what he was saying and who had said this to him.  He said he had an interview with Social Services officers about three or four hours before the [police] interview ….  There were two male police officers who spoke to him earlier and a social worker called Steve Huzzard.  What happened; he said that [G] was in another room … and Steve Huzzard was saying to the police officer, ‘Has he said anything yet, let me know when he has, then he can accompany [G] to the home.  If you don’t admit it’ (that is the allegation of indecent assault on [T]) ‘then you can’t come to the home, you won’t see your daughters.’  ‘I made admissions there and then, I was out of my mind, I was losing my children.’  For a social worker to say such a thing to somebody in John Tregalles’s position and for a police officer or police officers to allow it to be said without objection would of course be quite improper, but of course John Tregalles said that is precisely what happened.”
17.	There is some evidence that the appellant started to resile from his admissions at an early date.  The minutes of a child care conference on 20 March 1991 (after the appellant had entered his plea of guilty but before he was sentenced) record the social worker, Steve Huzzard, as saying that the appellant “was trying to make out a case for him being not guilty and claiming he had only made this statement [admitting sexual abuse of T] under pressure which was the only way he could get the children back”. 
18.	However, the appellant adhered categorically to his admissions when he saw the psychologist, Dr Tighe, between 7 and 14 May for the preparation of a report prior to sentencing.  The agreed facts placed before the jury included the following:
“Amongst other things the Doctor records the defendant as saying the following:
(a)  He placed his hand on his seven year old daughter’s vagina for quite some time.  He wanted and expected her to show some sexual response but she appeared neutral.  However, he thought she may have enjoyed it.  He stated he saw his daughter as being quite sexually aware and he felt she knew what she wanted.
(b)  He did not think he did anything that was physically or mentally harmful to [T].  He believed other men may have abused her to a greater extent than he did.  He recognised that he should have taken some appropriate action over these fears and accepts that this was his responsibility.
(c)  He stated he was sexually excited by [T] and talked about her being very attractive.  He is especially excited by slender females who are young looking.
(d)  His masturbatory fantasies reflect a generalised sexual interest in females covering a wide age range (down to 5 years) but he did not report sexual interest in males or boys of any age.”
19.	The jury also heard evidence of what the appellant said to another psychologist, Dr Maybury, who saw him on a number of occasions from August 1991 and produced a report in July 1992.  In his summing up the judge quoted from Dr Maybury’s report as follows (omitting the judge’s own comments and references to the explanations given by the appellant in cross-examination):
“One of the things that has been apparent in those sessions has been his lack of consistency.  For example, when I first saw him in August of 1991, after he had been seen by Martin Tighe, he was anxious to admit … that he had tried very hard at persuading Mr Tighe that he was a chronic paedophile, his only interest was in young girls.  He went on to explain he had done this in an attempt to persuade Mr Tighe he did not represent  any risk to boys.  His motivation for this centred around him trying to maximise the possibility of being allowed to have his two sons back home to live with him.  However, at subsequent meetings he denied any sexual interest in pubertal or prepubertal females ….  There was significant variation in the actual details supplied with regard to these offences, for example he told Mr Tighe that he touched his daughter on the vagina once and that this physical contact lasted quite some time.  In one of his accounts to me, he stated that such happenings had occurred on a number of occasions ….  With regard to the motivation for the offences, he had suggested to Mr Tighe that he was definitely aroused by his daughter.  However, in his account to me, he claimed that he did not become sexually aroused by young girls and that it was as a result of him seeking just a cuddle.  Later he said that [T] had become not his daughter, but someone who wants to give me love …, indicating that his victims had come on to him and that he got vibrations from them ….  Having had five lengthy sessions with Mr Tregalles, I have found him to be inconsistent in the response and minimising of any responsibility.  He has admitted to consciously lying in order to meet his own needs and he reached a stage where he became adamant that, apart from not having his children to live with him, he had no other problems.”
20.	On completing his summary of these various matters, the judge said this to the jury:
“Members of the Jury, you will consider all of that and make of it what you think is correct, when you are considering the proposition advanced by John Tregalles and advanced on his behalf, that, as far as the 1991 conviction is concerned, although he pleaded guilty, he only did it because of what he was told and then, for his own purposes, effectively when it was not working, he then denied it and made it plain, he says, [what] was the truth, that he had not committed that offence.”
Ground 1:  the presence of a serving police officer on the jury
21.	The first ground of appeal arises out of the fact that a serving police officer was a member of the jury and indeed acted as forewoman.  In advance of the trial she had informed the jury summoning officer of her occupation but this had not been passed on to the judge and was not known to any of the participants in the trial.  The information did not become known until after the jury had reached their verdicts and had been discharged.  When it became known, the officer was questioned by the judge in the presence of counsel.  She explained that she was a woman police sergeant serving in the Bolton Division of the Greater Manchester Police Force.  She was, very properly, not asked anything about the jury’s deliberations.
22.	Mr Linford, on behalf of the appellant, submitted that the presence of a serving police officer on the jury gave rise, in the circumstances of this case, to a real possibility of bias and renders the convictions unsafe.  The single judge gave leave in respect of this ground in so far as it relates to counts 19, 20 and 21 on the indictment, which were the three counts alleging rape of T.  Mr Linford not only pressed the ground in relation to those counts, but also sought by way of renewed application for leave to rely on it in relation to the indictment as a whole.  
23.	The leading case on this issue is R v Abdroikov [2008] 1 Cr App R 21, where the House of Lords had to consider three appeals raising the argument that a member of the jury was disqualified on the ground of apparent bias by reason of his occupation; in two of the appeals the occupation was that of a serving police officer.  The law was subsequently reviewed by this court, presided over by the Lord Chief Justice, Lord Phillips of Worth Matravers, in R v Khan & Others [2008] 2 Cr App R 13, where again one of the cases under appeal involved an allegation of apparent bias on the part of a juror who was a serving police officer.  A further review of the authorities was carried out in R v Yemoh & Others [2009] EWCA Crim 930.
24.	It is clear from those cases that the relevant test of whether a jury is independent and impartial is an objective one, namely whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased.  
25.	In Khan, at paragraphs 9-11, the court drew a distinction between partiality towards the case of one of the parties and partiality towards a witness, stating that a conviction will not necessarily be quashed because a juror is shown to have had reason to favour a particular witness; this will happen only if it has rendered the trial unfair or given an appearance of unfairness.  To decide that, it is necessary to consider two questions:  (i) would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? and (ii) would the fair minded observer consider that this may have affected the outcome of the trial?
26.	At paragraphs 19 et seq, the court in Khan considered Abdroikof and said that they had not found it easy to deduce on the part of the majority of the committee clear principles that apply where a juror is a police officer.  One principle was clear, however, namely that the fact that a juror is a police officer will not, of itself, disqualify the juror on the ground of want of impartiality.  Of the three members of the committee who found apparent bias on the facts of the first case under appeal in Abdroikov, Lord Bingham did so on the basis that the police juror would appear partial to the police witness, whose evidence involved a “crucial dispute” with that of the appellant.  The apparent likelihood that he would prefer the evidence of a brother officer would be seen as a real source of unfairness.  In the second case under appeal, Lord Bingham concluded that because there was no significant contest between the evidence of the police and that of the appellant, the presence of a police officer on the jury did not render the conviction unsafe.  Having gone on to consider the other opinions in Abdroikov, the court in Khan reiterated its conclusion in these terms (at paragraph 29):
“Our conclusion is, as already expressed, that the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution.  If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so.  None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror’s partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.”
27.	On the particular facts, the presence of a police officer on the jury was not found to give rise to an appearance of bias or to render the convictions unsafe in any of the cases under consideration in Khan.  The same was true in Yemoh, though in that case the specific reasoning was that there was a conflict of evidence between police officer witnesses and there was no logical basis why a juror should prefer the evidence of one witness over the other merely because the juror was a policeman.
28.	As to the present case, Mr Linford submits that it is plain that the appellant was making serious allegations about the conduct of serving police officers in 1981 and 1991, whose integrity was being impugned.  The prosecution relied heavily on those convictions, and the judge correctly directed the jury that they would have to be sure that the appellant committed the 1981 and 1991 offences before they could take them into account as evidence of propensity to commit sexual offences against young children.  Therefore one of the tasks for the jury was to consider whether the police officers had behaved as the appellant said they behaved.  Yet the police officer on this jury was in the same force as those whose conduct in 1991 was in issue (they were all officers of the Greater Manchester Police Force, though we should note that the juror served in the Bolton Division whereas the 1991 offences were investigated by the Rochdale Division and the position in relation to the 1981 offence is not known).  Mr Linford expressed concern about an officer from the Bolton Division sitting at all in a case at Bolton Crown Court, but the real thrust of his submission was directed at her sitting on this particular case, involving as it did an allegation of police misconduct.  He submitted that the presence of the officer on this jury rendered all the convictions unsafe.   He sought to support that submission by reference to the fact that most of the convictions were by a majority verdict.  
29.	For the Crown, Mr Greene submitted that the case turned on what the jury made of the complainants themselves and on the issue of propensity.  As to the latter, the appellant admitted the offence in 1974.  In relation to the 1981 conviction the jury had to decide whether the appellant committed the offence; and as part of that assessment they had to consider whether, even if the officer said what the appellant attributed to him, it would have made the appellant plead guilty to something he did not do.  Mr Greene said in relation to the 1991 conviction that on the case now advanced by the appellant he had been induced to plead guilty to serious and disgraceful conduct which he had not committed, and he had then told many lies to different people – a matter very relevant to his credibility.  It was submitted that, in any event, in so far as the appellant’s evidence impugned the conduct of police officers in 1981 and 1991, this was not a crucial issue such as existed in Abdroikov and the presence of a serving police officer on the jury did not give rise to an appearance of bias or render the convictions unsafe.
30.	We accept that the appellant’s evidence involved allegations of improper conduct by the police both in 1981 and in 1991.  In relation to 1981 the actual criticism of the police was relatively limited:  the appellant said that a police officer had told him to plead guilty and that he would not otherwise have pleaded guilty, but he also said that what the officer told him made sense and he explained why in his view it made sense.  The criticism of the police in relation to 1991 was more serious, in that the advice said to have been given by the social worker(s) in the presence of two police officers and without objection from them, that if the appellant pleaded guilty he would get treatment and so recover custody of his children, was plainly misleading as well as quite improper.  In any event, for the jury to accept that the appellant was or might be telling the truth about these matters required them to accept that the police had behaved or may have behaved improperly on both occasions; and that was certainly relevant to the overall assessment of the appellant’s credibility.
31.	This is not, however, a case involving contested police evidence, let alone a crucial dispute of evidence between the appellant and police witnesses.  The police officers concerned in the events of 1981 and 1991 were not called as witnesses; their identities were not even known.  Thus the presence of a serving police officer on the jury cannot give rise to any question of partiality towards a witness (and there is not, and could not be, any suggestion of partiality towards the prosecution).  The question of apparent bias depends in this case, as it seems to us, simply on whether a serving officer might be influenced to reject the appellant’s evidence concerning events in 1981 and 1991 out of a sense of loyalty to the police and an unwillingness to accept the possibility of improper conduct on the part of another police officer, rather than making a fair assessment of the appellant’s credibility on the basis of the evidence in the case.
32.	In considering that question, it is important to put in perspective the appellant’s explanations of why he pleaded guilty in 1981 and 1991.  His evidence on those matters formed a relatively small part of the evidence as a whole.  At the forefront was the evidence of the two complainants, upon whose credibility the prosecution case hinged.  As regards propensity, the appellant did not dispute the 1974 offence.  In relation to 1981 we accept Mr Greene’s point that the jury had to consider whether, even if the officer said what the appellant attributed to him, either that remark or the other considerations to which the appellant referred could realistically have caused him to plead guilty to an offence he did not commit.  As to 1991, the jury were presented with a complex picture, of which the remarks said to have been made by the social worker(s) in the presence of the police officers formed only a part.  On the appellant’s own account to the jury, he had lied comprehensively in 1991 in his police interview, in his sessions with the psychologist Dr Tighe and in some of what he said later to the psychologist Dr Maybury.  There were also fundamental inconsistencies in his account at the time:  he admitted the offence in the police interview and pleaded guilty, but was then recorded in the minutes of the child care conference as giving an explanation much the same as that now given to the jury; then he repeated his admissions to Dr Tighe prior to the sentencing hearing; and thereafter he gave inconsistent accounts in his sessions with Dr Maybury.  All those matters were highly relevant to an assessment of his credibility; and the allegations of improper conduct on the part of the police played a relatively small part within them.
33.	Further, the police officer on the jury served, so far as is known, in a different division from the officers concerned in events of 1981 and 1991; she did not know who those officers were; and it was conceded by Mr Linford that in the light of her apparent age she could not herself have been a serving officer at the time.  Those factors all militate against her assessment of the appellant’s evidence concerning events of 1981 and 1991 being influenced by her position as a serving officer.
34.	Taking all those matters into account, we have reached the conclusion that the case of apparent bias is not made out.  We are satisfied that in the circumstances of this case a fair-minded and informed observer would not consider there to be a real possibility of bias arising out of the occupation of the juror.  It is unfortunate that the juror’s occupation was not communicated to the trial judge before the trial proceeded.  It is likely that, out of an abundance of caution, the judge would have asked her to stand down if the position had been known.  In the event, however, her presence on the jury did not affect the fairness of the appellant’s trial or render the convictions unsafe.  
35.	We therefore dismiss the appeal on the first ground and, for completeness, refuse the renewed application for leave in so far as it seeks to extend the scope of the leave previously granted on that ground.
Ground 2: abuse of process
36.	The second ground relates only to counts 19, 20 and 21, charging the appellant with the rape of T.  In short, it is submitted that T made clear allegations of rape against the appellant in 1991, or at any rate made allegations of rape which may have been directed against the appellant and could and should have been investigated accordingly; but the matter was proceeded with then by way of a charge of indecent assault against him; and in those circumstances it was an abuse of process to proceed against him in 2008 for the rape of T.
37.	The general rule relied on is that no man should be punished twice for an offence arising out of the same or substantially the same set of facts; there is a discretion to stay the second set of proceedings, and the discretion should be exercised in favour of the accused unless the prosecution establishes that there are special circumstances for not doing so: see Connelly v DPP [1964] AC 1254 and R v Beedie [1997] 2 Cr App R 167.
38.	In ruling against the appellant on this issue, the judge directed himself by reference to Beedie but concluded that T was not making an allegation of rape against the appellant in 1991, or at least that she was not understood as making such an allegation.  The prosecution’s understanding of the evidence was that an allegation of indecent assault was being made against him, not an allegation of rape.  That is why the prosecution chose indecent assault as the appropriate charge on the evidence available to them at the time.  The allegations of T that were before the court in the trial of the current matters were allegations not known to the prosecution in 1991.  The counts alleging rape were therefore founded on a different set of facts from those known to the prosecution in 1991.  It was the duty of the prosecution to investigate T’s recent allegations and to lay appropriate charges.  There was no abuse of process.
39.	Mr Linford submitted that the judge was clearly wrong in thinking that T was not making an allegation of rape against the appellant in 1991.  He said that the only reasonable interpretation of the passage at the end of her interview (paragraph 13 above) was that she was making an allegation of rape.  She was saying that her father had done the same thing as John Williams had done to her, namely rape.  She was not saying that her father had done to her what John Williams had done to her sister Naomi, namely touching or digital penetration.  For whatever reason, however, the prosecution elected to pursue the appellant only in respect of indecent assault.  Mr Linford submitted that the rape charges arise out of the same or substantially the same set of facts as the indecent assault charged in 1991, to which the appellant pleaded guilty, and that there are no special reasons militating in favour of a further prosecution.
40.	In granting leave to appeal, the single judge observed that there might also be an unreasonable delay argument in this case.  Mr Linford did not pursue that as a separate point but did submit that the delay made it impossible to explore in detail at the trial the circumstances in which the charge was brought and the appellant’s plea was entered in 1991, and that it grossly affected the ability of the judge to make a properly informed decision upon what was and was not behind that charge and plea.  He also said that for seventeen years the appellant laboured under the impression that the 1991 matter concerning T had been dealt with.
41.	The issue turns on whether T did make, or should reasonably have been understood as making, an allegation of rape against the appellant in 1991.  We have given careful consideration to the transcript of her interview, as well as to the transcript of the subsequent police interview of the appellant, which casts light on how her allegations were, as a matter of fact, understood by the police at the time.   We are not persuaded that the judge formed an erroneous impression of this material or that the police, contrary to the judge’s view, understood or ought reasonably to have understood T to be making an allegation of rape against the appellant in 1991.  What T was saying at that time, albeit in response to leading questions by the interviewing officer, was that the appellant had “touched” her rudey with his widgie and that white stuff had come out, rather than that he had put his widgie inside her:  that is to say, she was on the face of it describing an indecent assault rather than rape. The allegations made by T against the appellant in 2004 were materially different from what she had said against him in the 1991 interview.  The new information provided an altogether different basis on which to proceed and produced a realistic prospect of conviction for rape, whereas no such realistic prospect existed previously.  
42.	In our judgment, therefore, it cannot fairly be said that the charges of rape faced by the appellant in the current trial arose out of the same or substantially the same set of facts as the indecent assault charge in 1991, or that what happened in 1991 or the subsequent lapse of time made it unfair to proceed against the appellant in respect of the allegations made by T in 2004.  It was not an abuse of process to include the counts of rape of T in the present proceedings against A.
43.	The appeal against conviction must therefore be dismissed.  
Appeal against sentence
44.	We turn to consider the appeal against sentence.  Mr Linford submitted that the 18 year sentences for the 3 rapes of T and for the buggery of G were too high.  He referred to the Sentencing Guidelines Council guidelines in respect of a victim under 13 years of age, submitting that the appropriate category was that of “rape accompanied by … abuse of trust”, for which there is a starting point of 13 years and a range of 11 to 17 years.  Although the guidelines refer to a starting point of 15 years and a range of 13 to 19 years for “repeated rape of same victim over a course of time or rape involving multiple victims”, he argued that that applied to a campaign of rape rather than to a case of the present kind.  He also relied on the mitigating factor, specifically identified in the guidelines, of minimal penetration:  Dr Jacobs, who examined T a couple of days after her police interview in 1991, found no evidence that any object had penetrated the vagina beyond the hymen, but said that there was evidence of penetration beyond the vaginal lips and that, in view of the position of the hymen, the depth of penetration could have been no more than about 1 centimetre beyond the outer lips.
45.	The difficulty about that those submissions is that in this case one is looking at three rapes of a 7 year old girl, and also a separate offence of buggery of a boy who was only a year or so older; and that the penetrative offences do not stand alone but have to be considered together with the various other sexual and violent offences of which the appellant was convicted.  Moreover the guidelines relate to a first time offender, whereas the appellant had previous convictions for offences of indecent assault on young girls (even if one leaves out of account for this purpose the 1991 conviction of indecent assault on T herself).  We accept in the appellant’s favour that there had been a lengthy period since 1991 in which there was no evidence of further offending, and we take account of such other personal mitigation as he had.  But he contested the allegations and did not earn the credit that pleas of guilty would have brought him. 
46.	Looking at the matter overall, we do not consider that sentences of 18 years for the penetrative offences, or a total term of 20 years, were manifestly excessive for this very serious course of sexual abuse and physical violence perpetrated on two young children.
47.	The appeal against sentence is therefore also dismissed.