Case No:
201701203 C5
Neutral Citation Number:
[2017] EWCA Crim 1778
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HIS HONOUR JUDGE THOMAS QC
T20150784
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15/11/2017
Before:
LORD JUSTICE DAVIS
MR JUSTICE LAVENDER
and
SIR NICHOLAS BLAKE
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Between:
R
Respondent
- and -
DAVID ERNEST FLETCHER
Appellant
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Rodney Ferm
for the
Appellant
Ian Howard
for the
Crown
Hearing date: 19 October 2017
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Judgment
Lord Justice Davis:
Introduction
1.
This appeal against conviction is based on what is said to be an inconsistency between the verdicts of a jury. Appeals advanced on such a basis only relatively rarely succeed. But it is said that the present case is one in which the appellate court should interfere.
2.
The appellant had faced trial at the Bradford Crown Court on an eight count indictment. He was on Counts 1 to 7 charged with indecent assault on a male contrary to
s. 15(1)
of the
Sexual Offences Act 1956
. On Count 8 he was charged with sexual assault contrary to
s. 3
of the
Sexual Offences Act 2003
. The complainant, who may be styled G, was the same on each count. At the conclusion of the trial before HHJ Roger Thomas QC and a jury the appellant was on 24 February 2017 convicted on two counts (Counts 2 and 3 on the indictment). He was acquitted on the remaining counts.
3.
He was in due course sentenced to a term of three years imprisonment on each count concurrent (subsequently reduced by this court to a sentence of one year’s imprisonment on each count concurrent). He has been required in consequence to register under the provisions of the
Sexual Offences Act 2003
.
Background facts
4.
The complainant, G, was born on 3 August 1976. He has a younger sister. He had a somewhat troubled upbringing. Among other things, his mother, a single parent, had significant health and other problems and struggled to cope. From the age of five to the age of nine G attended primary school in Bradford. At the age of nine, in 1985, he moved to middle school in Bradford. He struggled at school. Throughout that time the appellant was deputy headmaster at the primary school in question, although he did not actually teach G. In that time the appellant and his wife came to know G’s family; and it also seems that G’s sister was friendly with the appellant’s daughter. It was not in dispute that G thereafter would sometimes visit and also on occasion stay over (in effect as a form of respite for the mother) at the home of the appellant and his wife.
5.
In 1985 the appellant and his wife had bought a house in Long Lane, Queensbury, Bradford. There was evidence that it needed renovation and was not fit for occupation until 1986. It had around 2 acres of land attached, which they came to use in effect as a smallholding. In the summer of 1988 they then moved to a different house, the Old Sweet Factory in Wheatley, which did not have any significant land attached to it. They lived at the Old Sweet Factory until April 2007, when it was sold and they moved elsewhere. The appellant had in the meantime become head teacher at another school in 1990 and subsequently was ordained in 2001.
6.
G (who had maintained social contact with the appellant and his wife until 2004) first made complaint to the police in 2014 that on a number of occasions he had been indecently assaulted by the appellant, both at the Long Lane address and at the Old Sweet Factory. He was to say that the offending first started when he was about nine years old, after he had gone to middle school, saying that it was “at the goats.” He said that it would continue at the Old Sweet Factory (where there were no goats) and indeed continued beyond the time he reached the age of sixteen. In the event, Counts 1 to 7 on the indictment spanned the period 3 August 1985 to 2 August 1992: Count 1 being for the period 3 August 1985 to 2 August 1986, Count 2 being for the period 3 August 1986 to 2 August 1987 and so on. Each such count of indecent assault was asserted at trial to be a “specimen” count; although no count was actually framed on the indictment as a multiple-incident count. Count 8 was charged as a specific count of sexual assault relating to an incident allegedly occurring much later, between December 2002 and May 2004 (originally put, before amendment, as occurring between March 2009 and March 2011).
7.
In each case on Counts 1 to 7 the offence was tersely particularised on the indictment by stating that, in the relevant period for each count, the appellant “indecently assaulted” G, giving his age in such period in each case.
8.
In summary, the prosecution case was that the appellant regularly indecently assaulted G by touching him over his clothing, both in the area of his genitals and chest (the appellant sometimes also putting his hand on his chest under his clothing). It was also said that the appellant would grind or push against G from behind and would also kiss him (G described it as “snogging” and referred to the prickles from the appellant’s facial hair). G said that it started at Long Lane, “at the goats”, where he would regularly visit. It continued, he said, after the move to the Old Sweet Factory.
9.
As to Count 8, G said that this incident occurred when he and his wife to be (whom he had met in 2001) had gone to dinner with the appellant and his wife at the Old Sweet Factory. This was shortly before they married (in June 2004). While there the appellant whilst in the kitchen had pushed himself against G and tried to kiss him. There was evidence from G’s wife that G had appeared flustered at the end of that evening and a week or so later he told her what he said had happened. Thereafter, at all events, relations between the families were broken off. Subsequently, according to G’s wife, G had told his wife of the abuse he said he had suffered as a boy from the appellant. The police were, however, not informed until 2014, G having also told a Church Archdeacon in that year.
10.
When arrested and interviewed the appellant answered questions in full. He denied all the allegations. He suggested that they were fabricated because G was angry that the appellant – who had in the meantime been ordained – had not been in a position to officiate at G’s wedding in 2004: which, he suggested, was why social contact had then ceased.
The proceedings at trial
11.
The essential issue at trial was whether the various allegations were true.
12.
It was common ground that this was ultimately a word against word case. There was no independent corroboration for G’s account of events relating to Counts 1 to 7. As for Count 8, G’s allegations potentially had some support from his wife’s account of his demeanour that evening and his subsequent complaint to her. On the other hand, G had said that the appellant’s wife had or would have seen what occurred in the kitchen: and she gave evidence at trial wholly denying seeing anything untoward, either then or on any other occasion.
13.
We gather that G’s evidence in chief was given by way of his ABE interview. This court was provided with a transcript. The court was not, however, shown a transcript of the cross-examination of G.
14.
The actual transcript of the ABE interview provides a version of events which, as transcribed, does not, with respect, always give an altogether clear or coherent recital of events. However, G was to say that the appellant would take him to the house in Long Lane, albeit he never took his sister (there was, however, evidence from G’s mother, called by the prosecution as a witness, that the sister would sometimes go: as was also the evidence of the appellant and his wife and daughter). G among other things said “he used to have me helping with goats and stuff, I must have been about nine, so I’d just left primary school….” G also said that there was a period of time, when he was aged between twelve and thirteen, when he had gone to Cornwall for a few months and attended a local school in Cornwall before returning. He said that the offending reoccurred at the Old Sweet Factory after he returned from Cornwall. G gave further evidence about what he said had occurred. So far as Long Lane was concerned, he among other things said: “he’d start messing about, he were messing about at first….. doing bedding on straw, goats and stuff, like, starting…. and then it’d end up…. not touching genitals, touching, but touching everywhere else and kissing me like a girl….” He went on to say that “the goats were the first thing… It’s just what happened when we were bedding out…. Looking back, you think, you know, you think it’s just messing about but it weren’t, it were touching….” He went on to indicate where he had been touched. He went on to say “…but that were away from everyone as well, cos we were mucking out, weren’t we?” Concerning later incidents, he said he would see the appellant around once a week (that was in issue at trial). When asked how many times these things happened, he said: “As soon as he could get away, as soon as no one were there.”
15. It was not in dispute that G had remained in contact with the appellant and his family until 2004 but not thereafter. His mother was to say in evidence that, as a child, G had seemed happy to go and visit the appellant and never said to her that anything wrong had happened.
16. One feature of G's ABE interview is that much of it included allegations by G of (altogether more serious) sexual abuse of him as a child by another, very prominent, individual in the local community. Indeed it was suggested at trial that this may have tainted G's perception about the appellant's own conduct. It was also suggested that his complaints may have been prompted by a bitter and deluded relative (since deceased).
17.
The appellant gave evidence at trial in line with his interview. He totally denied all the allegations. His wife also gave evidence, as did other witnesses. A considerably amount of character evidence was also adduced, attesting to the appellant's attributes and good service. The appellant had no previous convictions of any kind.
The summing-up
18. No criticism of any sort is made as to the fairness or balance of the summing-up.
19.
The judge – who of course gave the required direction as to burden and standard of proof - pointed out that there was "a dramatically opposed clash of evidence. It happened in these ways, [G]; no such thing happened, the defendant”. Dealing with the indictment, the judge also pointed out that the first seven counts covered the period when G was aged between nine and sixteen (then giving appropriate direction relating to the lapse of time). The judge noted that these had been described at trial as "specimen" counts. As to that the judge said:
“If you are going to convict the defendant on any one count you would have to be sure that the conduct that he [G] generally describes, those various acts, not all of them but an act during that particular year, whichever count you are looking at, that it did happen on at least one occasion about which you are all agreed during that year of his childhood...”
The judge went on to give a full separate treatment direction. Amongst other things he said this (saying that he would come on to Count 8 separately):
“Counts 1 to 7 they are separate counts but this is not a situation where you can say to yourselves: well we are sure he has done it and therefore guilty across seven counts. Each count has to be looked at separately and individually... there [are] eight verdicts to return here, individual separate verdicts in relation to each count.”
21. The judge had noted in the course of the summing up the effectively unchallenged evidence of the defence that the goats only arrived at Long Lane in around October 1986: which was after the period specified in Count 1. As to Count 4, it was also noted by the judge that in the period between August 1988 and August 1999 G's own evidence was that he had for much of that time been in Cornwall. Having made these observations as to timings the judge then said:
“So I go back to what I was saying, each count does need that separate and individual consideration in terms of did anything happen at all in that year, of course the defence case is nothing happened in any year, but did anything happen in a particular year, are you sure of it, and look at the particular year as well as the particular conduct, that is the task ahead of you.”
22.
The judge summarized the facts and the issues arising on all the evidence relating to the counts. The judge set out the respective cases of the prosecution and defence. In the result the jury convicted on counts 2 and 3 and acquitted on the remaining counts, as we have said.
The legal principles
23. There was no dispute before us about the applicable legal principles. They are authoritatively set out in the recent decision of a constitution of this court in the case of
Fanning, Kerner, Osianikovas
and
de Jesus
[2016] EWCA Crim 550
, [2016] 2 Cr. App. R. 19. That decision itself confirmed the previous Court of Appeal decision in
Durante
[1972] 3 All ER 962
.
24. In
Durante
, Edmund Davies LJ, giving the judgment of the court, cited with approval the remarks of Devlin J in the unreported decision of
Stone
(1954). Devlin J there had said:
“When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.”
Edmund Davies LJ then formulated the position as this:
“...the burden is on the appellant to show that the verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court.”
On the facts of that particular case, (where, as it happens, the trial judge had directed the jury that the two counts in question did not necessarily stand or fall together), it was held that the appellant had discharged the burden resting on him.
25. Those principles were affirmed in
Fanning
. It was there also pointed out, by reference to statements in earlier authority, that the jury is "not a precision instrument" and that "if a flawless process of reasoning were required a jury would be a strange body from which to require it." It was also stressed that the court must be careful not to usurp the role of the jury.
26. A further principle in this context - and relevant to the present case - was affirmed in
Fanning
. That is to the effect that, where a complainant’s credibility is in issue and that complainant's evidence is uncorroborated, guilty verdicts are not to be regarded as unsafe just because the jury also has returned not guilty verdicts in relation to other counts based on that complainant's allegations: see, for example,
Cilgram
[1994] Crim LR 587. It thus is generally permissible for a jury to be sure of the credibility or reliability of a complainant on one count on an indictment but not on another count. A jury therefore is not to be treated as having rejected a witness's evidence altogether just because it is not convinced of the defendant's guilt on a particular count: see
Fanning
at paragraph 27. Accordingly there is no necessary irrationality in, for example, convicting on one count and acquitting on another even where both counts relate to the same sexual encounter: the case of
Osianikovas
itself being such a case. As the court, however, also went on to say (in dealing with the case of
de Jesus
): "…although there should be no differentiation as a matter of law between a single event and a series of events, the potential for different verdicts is greater than if the court is trying a number of counts arising from a single episode": see paragraph 100.
28. Yet further, even where a strict logical inconsistency can be identified it by no means follows that the verdicts are so inconsistent as to require the court to interfere: as the case of
Segal
[1976] Crim LR 324 and the Australian case of
McKenzie
v
R
[1976] 190 CLR 348, both cited with approval in
Fanning,
demonstrate.
29.
Finally, the court in
Fanning
emphasised (at paragraphs 29 and 30) that it will not usually be open to a defendant to complain of inconsistent verdicts where a jury has, without objection, been given a conventional separate treatment direction in the summing up. After all, it is difficult to complain of a jury acting illogically or irrationally when it returns verdicts in a way that it has been instructed it was legally entitled to do.
Disposal
30. We turn to our conclusion in the present case.
31. On one, simple, view there is no illogicality or inconsistency here at all. The jury was, in principle, not required either to accept or to reject G's evidence in all respects. Further, it had been given a full separate treatment direction. On that basis alone it can be said that the verdicts cannot be held to be so inconsistent that no reasonable jury could have reached the conclusion that the verdicts could stand together.
32.
However, we do not think that it would do justice to Mr Ferm’s careful and persuasively put arguments to dispose of this appeal on so summary a basis. Indeed we apprehend that it was those arguments, as presented in writing and subsequently orally and in writing supplemented before us, that persuaded the single judge to grant leave to appeal in this case.
33. Mr Ferm, understandably enough, put emphasis on the acquittal on Count 8. That was the most recent incident in point of time, occurring (as alleged) when G was an adult and when his memory would have been fresher. Further, the allegation had some degree of support from his wife’s evidence. Yet the jury acquitted. Mr Ferm thus queried how the jury nevertheless could be sure of guilt on two, very much earlier, incidents when G was a child and when his evidence was wholly uncorroborated. We see the point. But Count 8 related to a quite separate and self-contained incident and the evidence both of prosecution and of defence witnesses was different. It cannot be assumed that the assessment of G's evidence relating to that particular count was required to be taken by the jury as the key to the assessment of his credibility and reliability on all the other counts. Thus the acquittal on Count 8 cannot of itself vitiate the conviction on other counts relating to much earlier incidents: as Mr Ferm rightly accepted.
34. It also cannot be said that there is any logical or other inconsistency between the acquittal on Count 1 and the convictions on Counts 2 and 3 - those three counts covering events at Long Lane - if only because there was the clear distinction arising from the date when the goats actually arrived late in 1986. Likewise, with regard to the Old Sweet Factory, Count 4 potentially had a clear differentiation: since that count spanned the period when, on G's own evidence, he was for several months in Cornwall.
35. Mr Ferm accepted all this - indeed it explains, he said, the judge’s separate treatment direction in the summing up. But he said that there was more. In particular, his point was that the jury also acquitted on Counts 5, 6 and 7 whilst at the same time convicting on Counts 2 and 3. He submitted that no rational basis for this differentiation can be discerned. He submitted that the evidence of G had drawn no difference in type with regard to the conduct alleged as between Long Lane and the Old Sweet Factory. It was not said, for example, that there had been any progression or variation in the type of sexual abuse alleged as between the two venues. He submitted that there was no additional evidence specific to what happened at Long Lane; and, on the contrary, those matters related back furthest in time and when G was at his youngest. True it was that G had "anchored" those particular allegations relating to Long Lane by saying that they had occurred "at the goats" - but that, he submitted, was of no true materiality given that it was always common ground that G had on a number of occasions been to Long Lane "at the goats".
36. For his part, Mr Howard for the Crown drew attention to the way in which the indictment had been framed and the way in which the judge had in consequence summed up to the jury. He stressed that each of Counts 1 to 7 of the indictment was specific as to the year in which what was alleged happened and as to the age of G at the time. Thus the emphasis of G on what happened occurring “at the goats”, after he had gone to middle school, was material to the jury's consideration not only of
what
happened but
when
it happened: as the summing up had specifically required the jury to consider. Thus there was a differentiation in at least this respect between these counts and the counts relating to the Old Sweet Factory. (Those are points of a general kind, we note, also considered material by the court in disposing of the case of
Fanning
, on its facts: see paragraphs 38 to 40 of the judgment.) In any event, Mr Howard said, there were other differences as to the evidence relating to the individual counts. For example, G had said that the abuse at Long Lane occurred whilst the goats were being bedded out; but there were was no such level of detail with regard to what is said to have later occurred at the Old Sweet Factory whilst G was still under the age of sixteen.
37.
We have carefully considered the points made. On one view, the jury's decision to acquit on count 5, 6 and 7 but to convict on counts 2 and 3 - counts 1 and 4 are much more easily explained - may seem surprising: the more so, perhaps, when set in the context of the acquittal on count 8 also. But the authorities are clear that what may seem to an appellate court (which of necessity has not heard or seen the witnesses at trial) to be surprising is not of itself enough to entitle it to set aside verdicts of a jury on the ground of inconsistency. Indeed in a case such as the present it could involve the court attempting to engage in a degree of post - trial rationalisation which accords to a jury's reasoning the requirements of a precision instrument: which again this court should not do.
38. We are in any event not able to say, from the materials which we have seen, that the evidence which G gave as to what occurred was in effect undifferentiated between what happened at Long Lane and what happened at the Old Sweet Factory. It is possible, at all events, to extract a greater degree of specificity from the transcript of the ABE interview as to the alleged events at Long Lane (for example, that the indecent assaults occurred while mucking out) as compared to the very generalised evidence about what occurred thereafter at the Old Sweet Factory (apart from count 8). It may be – we have no way of knowing ourselves – that this may have been reinforced in the minds of the jury as a result of the oral evidence. The jury may well have concluded that with regard to Long Lane it was persuaded on Counts 2 and 3, by the evidential details provided, for each year as charged (Count 1 having the obvious difference as set out above) but may have been left in doubt by reason of the lack of detail on Counts 4, 5, 6 and 7. We cannot, at all events, say that the jury’s verdicts are wholly inexplicable. The verdicts are not so inconsistent as to demand interference by the court.
39. Moreover, the judge had in terms given a very full separate treatment direction to the jury, without objection. It is also perhaps a point of comment that – whilst the potential differences for Counts 1, 4 and 8 were clear and spelled out in the summing-up – the trial judge, who had heard all the evidence, had not thought it appropriate to give the jury a “steer” as to there being any difficulty in reaching different verdicts between Counts 2 and 3 on the one hand and Counts 5, 6 and 7 on the other hand.
Conclusion
40.
It is essential in cases of this kind that the appellate court should adhere to the principles of
Durante
, as explained and confirmed in
Fanning
. Although the powerful arguments of Mr Ferm have given us some cause for hesitation, our ultimate conclusion is that, on the facts of this particular case, there is no inconsistency here such that the verdicts cannot stand and such that this court is required to interfere. The appellant has not discharged the burden on him in this regard. The convictions are to be regarded as safe. That being so, we must dismiss this appeal against conviction.