By Paul Taylor QC
Consent - demeanour of complainant - Bad character – Propensity – Collusion - delay - fresh evidence.
R v Max Clifford (Decd)
 EWCA Crim 545
This judgement serves as a useful guide to the CACD’s approach to a large number of issues that arise regularly in sex offence appeals.
In 2014 C had been convicted of eight counts of indecent assault (some were specimen counts). He had died before his application for leave to appeal against his conviction was considered. The CACD granted permission to his daughter to advance his arguments.
The grounds related to:
 Misdirections or inadequate directions on
(a) The removal of consent/belief in consent
(b) The demeanour of the complainant and its relevance
 Bad character and written material handed to the jury for retirement.
 Failure to ensure the defence case was given equal and fair consideration during the summing up.
 Propensity. There was improper use of voracious ‘sexual appetite’ as evidence from which a jury could conclude a propensity to commit acts of indecent assault, and failure to give appropriate warning regarding morality / immorality.
 Improper withdrawal of issue of fact: collusion / independence of complainants.
 Inadequate direction as to the effect of delay on the defendant’s ability to counter the allegations
Generally: CACD rejected all of the grounds on the broad bases that:
- The Judge had properly directed the jury;
- The complaints regarding suggested failures could not be sustained because they related to matters that had not been raised or were not in issue at trial.
In regard to Consent: C’s defence was that not only were the complainants lying but that nothing remotely sexual occurred or could have done. It was argued that the Judge should still have directed the jury on the possibility that C might have believed a complainant was consenting. CACD rejected this argument: “A judge should only leave to a jury a possible conclusion, that is an alternative approach not advanced by either side, on a proper evidential basis” [Para 21] There was no such basis here.
Commentary: As to seeking to continue an appeal following the death of the appellant see section 44A Criminal Appeal Act 1968.
Murder – CCRC reference – Impact of Jogee judgement
R v Daley
 EWCA Crim 627
A further (unsuccessful) attempt to reap the benefits of the Supreme Court decision redefining liability for joint enterprise.
CCRC referred D’s conviction for murder to the CACD on the basis of the change of law set out in Jogee  UKSC 8 and the clarification in Johnson  EWCA Crim 1613.
The offences were alleged to have arisen from a dispute between rival groups. D and Thomas were very close friends. The prosecution argued that Thomas had a motive to harm the deceased by way of revenge for earlier incidents.
The deceased was in his car when another car driven by Thomas drew alongside. D was in the front seat passenger. A shot was fired through the open front passenger window of Thomas’ car. The bullet went straight into the side of the deceased’s head. He died the following day.
Following the shooting, D disposed of his mobile phones, his clothing/footwear. D telephoned and met up with Thomas, resigned from his job and obtained and partially completed a passport application.
The prosecution case was that the shooting was an execution. D and Thomas were acting together and whoever was the gunman, both men in the car were fully involved in the criminal enterprise to shoot and kill the deceased. D’s defence was that Thomas had offered him a lift and then stopped and shot the deceased. He had no knowledge of the gun or T’s intentions.
The CCRC carried out a detailed analysis of the factual matrix and the inferences that could be drawn from the jury’s verdict. However, the CACD concluded that D “joined a criminal enterprise which encompassed the use of the loaded gun with the requisite intent for murder should the occasion to do so arise.” “We are not satisfied that Daley has shown a strong case that the change in the law would in fact have made a difference to the jury’s verdict.”
Sexual offences – hearsay – discharging the jury – inadvertent admission of inadmissible evidence
R v C
 EWCA Crim 623
This is an important case on the admission of hearsay evidence of a deceased complainant and the approach that the CACD will take to the failure to discharge a jury at trial, following them hearing inadmissible material.
C was convicted of 13 counts of sexual activity with a child. The appeal raised two points:
- The application of the hearsay provisions in chapter 2 of Part 11 of the Criminal Justice Act 2003 (‘CJA 2003’)
- The circumstances in which a Jury note may give rise to a decision to discharge them from returning verdicts.
The charges arose out of allegations of sexual abuse by the appellant against his two step-daughters, G and C when they were young teenagers. These allegations came to light when both girls disclosed what had happened to their mother. They then provided a more detailed account to a specially trained police officer in ABE interviews. After providing her ABE account, G committed suicide. She left a suicide note: “…I can’t do this any more, the stress from the current situation is too much to handle and 24/7 I feel so guilty because of what happened … Make sure that bastard rotts (sic) in hell for what he has done to me and [C] …” The note was adduced at trial as an admission.
It was argued that the suicide note amounted to inadmissible hearsay:
- Although G was dead and her evidence was potentially admissible as hearsay under s.116(2)(a) CJA 2003, her death was caused by the very person in support of whose case it was sought to give the statement in evidence, and therefore was rendered inadmissible by the operation of s.116(5)(a).
- In any event, the ABE evidence did not meet the test for admissibility in s.114 of the CJA 2003 and should be excluded on the proper application of s.78 PACE 1984’.
CACD: Both arguments were rejected.
- “While, the hearsay provisions of chapter 2 have been described by this Court as ‘labyrinthine’, …and ‘needlessly complicated’, , we are clear in our view that s.116(5) did not apply. [20-28]
- In admitting the evidence, the Recorder had “considered both the risk of the unreliability of the evidence and the extent to which it could be tested and assessed…” “In such cases, this Court will only interfere with such an exercise of judgment if it concludes that a decision was reached which was outside the band of legitimate decisions available to the Judge, see for example, Finch  1 WLR 1645 at . ..It is plain that the Recorder was aware of the charged nature of the note and the likely effect on the Jury of its contents. It was for this reason that he gave a warning to keep ‘cool heads.’ Some judges might have admitted the ABE evidence but excluded the suicide note; but that is not a reason for interfering with the Recorder’s decision following a careful and measured ruling. [36 and 37]
Application to discharge the jury
A question from the jury came just before speeches. It asked for details of a text message which had been referred to by witness which stated “We've been here before … broke the family’. Question: Please can you confirm the wording of the text message and explain what was meant by ‘We've been here before and it almost broke the family’. On investigation, it this turned out to be an unrelated previous allegation of sexual assault. An application was made to discharge the jury.
- The Recorder offered him the opportunity of reopening the defence case so that the appellant could, if he wished, deal with the issue raised.
- The Recorder ruled that there was an overwhelming interest in continuing the trial and he refused to discharge the Jury. Potential prejudice would be dealt with by way of a firm jury direction; and in the particular circumstances of the case it was appropriate to rely on the good sense of the Jury, and to approach the case on the basis that they would follow any direction that they had been given and would be given.
The CACD reviewed the authorities in this area: :
“Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstance of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2) the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3) the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4) the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed…”
s.20 gbh – Botox injections – not medically qualified – whether fraud as to qualifications vitiated consent
R v Oxin Melin
 EWCA (Crim) 557
M was convicted on two counts of causing grievous bodily harm contrary to s.20 Offences against the Person Act 1861, on two different female complainants. The Crown’s case was that M, who is not a doctor or medically qualified, administered what purported to be Botox injections for cosmetic purposes to three women, each on two occasions. Both suffered really serious harm following the second injection. The Crown’s case was that he lied about his medical qualifications and training and that each woman only consented to the treatment because she believed him to be medically qualified.
The defence case was that, even if false statements as to medical qualification were made, each complainant agreed to treatment before any such statements or representations were made and, in any event, each individual complainant did not rely on anything that was said by M as a basis for embarking upon or continuing with the treatment.
An unsuccessful submission of no case to answer was made at trial. The grounds of appeal repeated the submissions:
- A deception as to qualification is insufficient to vitiate consent and does not, as a matter of law, amount to a deception as to identity. Since there was also no evidence of any deception as to the nature, purpose or quality of the act, consent could not have been vitiated.
- The evidence taken at its highest was not sufficient for a jury properly directed to convict in this case.
The CACD considered the circumstances and authorities on when consent can be vitiated by fraud. Appeal dismissed.
Retraction by complainant – approach of the CACD
R v SB
 EWCA Crim 565
Appeal against conviction based on fresh evidence. “In particular, the appellant has relied on a written statement from the complainant (made after conviction and sentence) retracting as false all her previous complaints of sexual abuse which had resulted in the conviction of the appellant at trial.”
The complainant, M, is the granddaughter of the appellant. She was described as “a fragile and troubled teenager, who was self-harming.” She saw a counsellor and made allegations against SB. The police were contacted. M repeated these allegations in more detail. There was a lengthy ABE interview. The CACD had the transcript and viewed the video recording.
Her ABE interview was played at trial, both in her presence and in court before the jury, as her evidence in chief. In supplemental oral evidence in chief she confirmed that what she had there said was true. She was then cross-examined. Whilst in some places her answers to questions were "I don't remember", her answers overall were to the clear effect that she maintained that what she had alleged had indeed occurred. She denied that she was not telling the truth and said that she was telling the truth.
Following the trial, one ground of appeal was lodged: M had given false evidence at trial. Reliance was placed on an unqualified retraction witness statement of M dated four weeks after sentence. The statement had been taken by a solicitor recommended by one of M's uncles, B. M was accompanied by another uncle, R. B and R are both sons of the appellant.
CACD heard evidence from M and others. “The latest evidence adduced on behalf of the appellant simply cannot, we have concluded, be accepted. The retraction is, we have concluded, demonstrably unreliable.” Appeal dismissed.
By Farrhat Arshad
Forced Compulsory Labour (“FCL”) contrary t o s. 71 of Coroners and Justice Act 2009; directions of law on meaning of FCL;
R v Rooney and others  EWCA Crim 681
The applicants, all members of the same family, had been convicted of a conspiracy to require a person to perform forced or compulsory labour. It was argued that the judge had erred in directing the jury that deception, abuse of power or exploitation of vulnerability could in themselves amount to a “menace of penalty”. Whilst the CACD agreed with the appellants’ counsel that there would be circumstances of exploitation of workers which did not amount to the offence, e.g. paying very low wages or flouting health and safety requirements, the judge's directions did however make clear that more than that must be proved.
CACD held that a direction to a jury on a charge contrary to section 71(1)(b) of the Coroners and Justice Act 2009, must impress upon the jury the need for them to consider all the circumstances of the case in deciding whether all the ingredients of the offences have been proved. This had been made explicit in s. 1 of the Modern Slavery Act 2015. The Court was satisfied that this had been made clear to the jury in the present case.
If you would like to speak to Paul Taylor QC or Farrhat Arshad about these cases, please email here for Paul or here for Farrhat.