Massey, R v [2001] EWCA Crim 2850 (20th December, 2001)

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England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2001] EWCA Crim 2850

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Massey, R v [2001] EWCA Crim 2850 (20th December, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2850
		Case No:1999/07768/W2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOLVERHAMPTON
CROWN COURT (POOLE J.)

Royal Courts of Justice
Strand,
London, WC2A 2LL

20 December 2001

B e f o r e :

LORD JUSTICE MANCE
MR. JUSTICE PENRY-DAVEY
and
MR. JUSTICE LEVESON
____________________

R
Respondent

- and -

RUPERT JOHN MASSEY
Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Paul W. Reid (instructed by the CPS for the Respondent)
William Wood QC (instructed by Messrs McQueen Yeomans for the Appellant)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Mance:

Introduction

On 7^th December 1999 the appellant was convicted in the Crown Court at Wolverhampton before The Honourable Mr Justice Poole on sixteen counts of indecent assault. Counts 1, 2 and 4 related to indecent assaults on Andrew Meek while under the age of 13 between 17^th November 1971 and 16^th November 1972; counts 6 to 15 to indecent assaults on David Meek (Andrew Meek’s four and a half year younger brother) at various ages between 10 and 14 between 7^th April 1973 and 6^th April 1978; and counts 16, 17 and 19 to Graham Levett while aged 13 or 14 between 16^th December 1981 and 15^th December 1983. The appellant was acquitted by verdict of the jury in respect of counts 3 and 5, both counts of buggery with Andrew Meek between 17^th November 1971 and 16^th November 1972, and was further acquitted by direction of the judge in respect of counts 18 and 20, two further counts of buggery with Graham Levett between 16^th December 1982 and 15^th December 1983. The appellant was sentenced in respect of the offences of which he was convicted to a total of six years imprisonment.

He now appeals with leave of the Full Court on two grounds, which fall under the heads of abuse of process and similar fact evidence. There is, in counsel for the appellant’s submission, a material overlap of the considerations relevant to each head. Under the head of abuse of process, the appellant submits that the judge should have acceded to an application to stay the proceedings, made first at the commencement of the trial and secondly at the close of the Crown case. Under the head of similar fact evidence, the applicant submits that the judge was wrong to direct the jury in his summing up to give a similar fact direction. He should have directed the jury to treat the case relating to and the evidence given by each complainant entirely separately from the case relating to and evidence given by any other complainant. In any event the direction he gave was, in the appellant’s submission, inadequate.

The evidence

The appellant was born in November 1945. At all material times he had the upstairs flat at 4 Eaton Road, Bournemouth, where in the early 1970s he used to spend weekends and holidays. The local beach (about a mile and a half away) was Branksome Beach, which the appellant used and where he kept canoes. The appellant met all three complainants in turn on that beach. Andrew Meek said in his evidence that he met the appellant when he was about 13 (and so in or about 1971 or, as the Crown submitted, probably 1972). After asking the appellant whether he could have a go on one of his canoes, he got to know the appellant, and a week later went with him to 4 Eaton Road. David (who was some five years younger than Andrew) said that he heard from his brother Andrew in the summer of 1982 that Andrew had met the appellant on the beach, and later himself went along with Andrew and met the appellant there. Andrew and David Meek lived with their parents at 58 Cornelia Crescent, near the beach in Branksome. The appellant began coming to the Meeks house, got on very well with Mr and Mrs Meek, came to Sunday lunch, and would often hire old cars and take the two brothers and other friends on excursions.

Graham Levett moved to 25a The Avenue, Branksome with his parents in about 1976 and met the appellant on the beach in the spring of 1982. Graham was fishing and the appellant was canoeing. Graham spoke to the appellant, saw him thereafter frequently and visited his flat. Later in the summer the appellant visited the Levetts’ home for tea with the then occupier of the downstairs flat at 4 Eaton Road, a Mrs Parkinson. He got on well with Graham’s parents. Mrs Levett was (the appellant said at trial) a very fine pianist, while the appellant describes himself as of licentiate status. In 1984 Mr and Mrs Levett separated, and in or about 1985 Mrs Levett moved into the downstairs flat, with the appellant buying out Mrs Parkinson and selling to Mrs Levett. Mrs Levett then started working for the appellant.

The Crown case was that the appellant abused each of the three complainants in turn, in successive periods. Andrew Meek said that, about six weeks after he first visited 4 Eaton Road, the appellant began to touch him sexually, usually in the front bedroom and on the first occasion during the day-time. Basically, the appellant played with his penis. On the first occasion it involved masturbation, and subsequently it involved the appellant putting his penis between Andrew’s buttocks and ejaculating. In chief Andrew Meek also said that on one later occasion there had been oral sex, but in cross-examination he withdrew this. He also alleged that the appellant had penetrated him anally on a number of occasions in both 1971 and 1972, in a manner which “certainly hurt” and was extremely painful. These allegations give rise to counts 3 and 5, to which counts 2 and 4 were (as the judge directed the jury) alternatives, to cater for the possibility that the jury was satisfied that the incident had taken place, but not satisfied about penetration. Evidently, in view of the verdicts reached, this was the jury’s frame of mind. All the incidents occurred during visits to 4 Eaton Road. He could not remember whether he had ever stayed overnight there. He knew that they were totally wrong, but was not strong enough to get out of the situation, and was also afraid that his contemporaries would find out and that his parents would not understand. He tried “to put it away”. There came a time when he was actively making excuses not to be in the appellant’s company, and he decided to bring it to a halt when he was 15.

David Meek said that there came a time when he stayed overnight with the appellant. There was only one bed, and the appellant was naked. In bed the appellant placed his erect penis against David Meek’s back, on later occasions he masturbated behind David Meek, and still later he began to part David Meek’s buttocks and to ejaculate against his rectum. This always happened at night, generally at weekends and often after taking David skating. The appellant seemed to enjoy doing this by the light of a candle or sometimes a bicycle light. Some times, he sucked David Meek’s penis, and on one occasion persuaded David Meek to suck his. After David’s puberty, he would also masturbate David to ejaculation. David said that in 1984 the appellant interrupted a row which David was having with his mother, and David told him to “f” off and then disclosed the appellant’s abuse to his parents, describing the appellant as “a little boy’s bum molester”.

Graham Levett said that after a nude swim on the beach, which he thought was the appellant’s idea, he ended up back at 4 Eaton Road, went into the bedroom with him and, as the judge outlined the position in summing up:

“somehow ended up in bed with him. I think he started taking his clothes off and I was very fond of him at that time. … I took off all my clothes. I saw his penis on that occasion. It was erect. I got on top of him and we started sexual activity. I was facing him, we played with each others’ penises and I kissed him a couple of times.”

When Graham asked if this was okay, the appellant re-assured him by saying “It’s only sex, isn’t it?”. Thereafter Graham stayed the night with increasing frequency, for some two years. The appellant put his penis between Graham’s buttocks, without penetration, and Graham would do the same to him. After removing his penis from between Graham’s buttocks he would masturbate on his own stomach. The appellant sucked Graham’s penis on one occasion. This sexual activity was very frequent, always at night, and during it the appellant used to light a candle, as what he called a discreet effect. Graham also said that the appellant stayed at his home in The Avenue when he was between 13 and 15, and spent the night in Graham’s bedroom where sexual activity took place. Sexual activity diminished in late 1983 and ended completely in early 1984, as Graham became interested in girls.

Graham said that at Christmas 1985 he began feeling paranoid about what had happened and spoke to the appellant who told him not to worry, it did not mean that he was gay. They went downstairs, had a drink with Mrs Levett and while doing so he disclosed to her what had been said upstairs. According to him, she did not seem to mind at all, saying that what had been done had not been done to hurt him, and that the appellant had only been showing affection. Graham said he spoke out again in front of his mother and the appellant, during a Cornish sailing holiday in 1985. Mrs Levett denied that there had been any such disclosures. Finally, in 1995 Graham said that he had again mentioned what had occurred as the three of them sat around the kitchen table in or about July 1995. Both the appellant and Mrs Levett agreed that Graham on that occasion alleged abuse by the appellant; Mrs Levett said that her response had been that Graham must go to the police, and, after he refused to do so, she refused to take what he had alleged seriously. Graham then moved out of 4 Eaton Place and went to stay with his father.

Graham told his father that he had been abused by the appellant, and Mr Levett informed the police by telephone call on 29^th August 1995. Mr Levett and Graham saw DC Stoakes on 8^th September 1995, when Graham said that he was presently unsure as to whether he wished to make a statement and have the police pursue the matter. The police made a brief note of the allegations which Graham then outlined. This referred primarily to abuse when the appellant stayed at The Avenue, but also to abuse “on a couple of occasions” at 4 Eaton Road. In a further interview on 18^th September 1995 Graham said that he had decided not to make a statement of complaint against the appellant, because, although the appellant had sexually abused him, he had also been very kind and he did not want him to end up going to prison. Only on 29^th January 1996 did Graham revisit the police station and tell the police that he now wanted to pursue his allegations against the appellant. On 2^nd February 1996 the police informed Graham that there was likely to be a very long delay in taking a statement owing to other commitments. At trial, these were explained as commitments relating to current or recent allegations of abuse, an explanation which the judge called “quite inadequate”. The police only started to take Graham’s statement on 26^th September 1996, a process which continued over the course of further meetings on 18^th[or 8^th] and 19^th December 1996, and 2^nd, 3^rd, 9^th, 10^th, 13^th and 16^th January 1997.

During the summer of 1995 Graham Levett also informed one Christopher Hall that he had been abused by the appellant. At some point in the first months of 1996 the police received an anonymous telephone call saying that, in addition to Graham Levett, David Meek had also been molested. It is suggested that the maker of this call was probably Hall, who knew David Meek.

On 22^nd April 1996 David Meek telephoned the police, saying that he was “a sort of friend of Graham Levett” and had himself been sexually abused by the appellant. The police noted that he also stated that he knew of another “male victim”. In conversation with DC Stoakes on 26^th April 1996 David Meek said that Graham had been in touch with him, and had asked him whether he knew of anyone else who had been abused by the appellant, to which he had replied that he himself had been. Graham’s complaint to the police had prompted David to make his. DC Stoakes told David Meek also that there would be a long delay before his statement could be taken, and it was not until 25^th January 1997 that the police contacted David Meek again. His statement was taken over three or four days and was completed on 4^th February 1997.

According to notes taken by DC Stoakes on 25^th January 1997, David Meek then mentioned that he “believed” that the appellant had also abused four other people, including his brother Andrew Meek. The appellant was on 20th March 1997 arrested on suspicion of indecent assault on Graham Levett and David Meek, and was interviewed on 21^st March. Following a police approach to Andrew Meek, he too made a statement dated 4^th June 1997, asserting abuse by the appellant; he said that he had done his best to forget this, and that he was only making the statement because he had learned in the last few months of abuse in relation to his brother David and of his brother David’s complaint.

The appellant contended both at the start of the trial and at the conclusion of the Crown case that the proceedings brought against him constituted an abuse of process, and should be stayed. The Judge rejected this contention. It is submitted before us that he was wrong to so. At the heart of the appellant’s contention on this issue is the delay which occurred in police investigations and what is described as “very serious and indisputable contamination of the evidence of two complainants and the risk of collusion between all three complainants”. So far as counsel for the appellant, Mr William Wood QC, asserts that the police should have taken a statement “within days of the first complaint in August 1995” and that there was police delay for “one year and three months” from late August 1995, he puts the matter too high. Since Graham was not prepared to make a statement until the end of January 1996, it seems to us that criticism could only legitimately be directed at the delay (a) between then and 26^th September 1996, and (b) thereafter until December November 1996, some 8 or 10 months. Whilst understanding that some priority could be given to investigation of current and recent abuse, we agree with the judge that it remains unacceptable that investigation of any complaint should be so long delayed.

Mr Wood submits that it was not only incumbent on the police to progress matters much more quickly, but that they should have been alive to the risk that there might be other complainants, with whom a complainant such as Graham Levett might be or make contact; that, as from 22^nd April 1996, they knew positively that one other such complainant (David Meek) existed; and that their own note of what he then said indicated the possibility of a third complainant. The police should have impressed on all existing complainants, by written warnings, the need to avoid any contact with other complainants. Mr Wood refers us to the following submission which appears in Archbold (2002) paragraph 13-26:

“In order to assist the judge and jury to make decisions about collusion or contamination, it is submitted that those responsible for the collection of evidence should, as a matter of routine, keep detailed records of the circumstances in which the various allegations came to the attention of the authorities. It should be standard procedure in taking a proof of evidence from an alleged victim, whether in a written statement or in a video recording, to include therein the victim’s account of what prompted him or her to report the matter and how he or she did so. There should be continuity of evidence through to the police. Each person involved should also deal with the question of whether he or she spoke to anybody else about the allegations. …”

We record, first, that this passage does not appear in Archbold for 1997, or therefore, presumably, in any previous Archbold. Secondly, however, it concerns the taking of statements. Here, the combination of statements taken and police notes provides considerable information (even if not exhaustive in every respect) about what led to each complainant coming forward or being seen. The focus on the appellant’s complaint is in contrast that statements were only taken from Graham Levett and David Meek after considerable delay, that proper warnings were not give not given by the police about the need to avoid contact with other complainants, and that “contamination” and “the risk of collusion’ existed both during this period of delay and above all as statements were being taken.

During the course of the Crown’s case, as the summing up recounts, Graham Levett said that the police had told him that it was best for them to go ahead with the proceedings, rather than for him to speak to any witness, and that, if anyone else was involved, he should give them the name. Despite this, he said, he had got David Meek’s number from Christopher Hall and had then telephoned David Meek. In other words, he had disregarded what the police had said. There had then been discussion between David Meek and him, in which he had not gone through what had happened in intimate detail, but had said that he was going ahead with the matter. They had met up on three or four occasions, as far as he remembered, and talked about the allegations. He also said that, after seeing David Meek “a couple of times”, when he next rang David Meek put the telephone down. He further said that two of the meetings were after he began making his statement, in other words after 26^th September 1996, so that it was, presumably, after them that David Meek put the telephone down. He said that, as far as he could remember, he told David Meek what he was telling the police, but that he did not actually remember. In the course of one meeting he may have mentioned the candle used to illuminate the proceedings, but he did not remember that, or whether David Meek told him what he had said to the police.

David Meek said, on the other hand, that he recalled only one meeting. For his part, he said that he had not told Graham Levett anything about what had happened to him; that he was purely the passive recipient of information given him by Graham Levett; and that he had not used any such information in his own account (although the appellant was able to cross-examine him in this regard by reference to differences between his original account, as summarised by the police in April 1996, and his statement and evidence). Those differences were before the jury for it to assess when reaching any overall conclusion on the stark conflict between the Crown’s and the appellant’s cases.

Sergeant Merrick said that, if the police learned of another victim, they would note it and advise a witness not to discuss it with another witness, but that they had to be realistic about contact, while hoping that potential witnesses would not freely discuss the case. It would be unrealistic for the Meek brothers to have no contact, although he would tell them not to discuss the case together. DC Stoakes said that he told David Meek not to discuss the case with anyone else, and if he knew of any other name to give it to him. He was disappointed to hear that Graham Levett had been in touch with David Meek.

The judge summed up this aspect of the facts, in the light of this evidence, in a way which has not been criticised:

“That the police advised them [Graham Levett and David Meek] not to speak to other witnesses and that they disregarded that advice is undoubtedly so, you may think.”

Principles governing stay on grounds of abuse of process

In considering the principles governing an application such as the present, we can take as a starting point the decision of this court in AG’s Reference (No. 1 of 1990) [1992] 1 QB 630. In that case, the court said that “As it is not possible to anticipate in advance all the infinitely variable circumstances which may arise in the future” it felt itself forced, albeit reluctantly, to agree to a limited extent with a concession by the Crown that proceedings might be stayed on grounds of delay even though not occasioned by any fault of the prosecution. But it continued (p.643F):

“However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris of Borth-y-Gest in Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1304, that

“generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it”

Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J. in Jago v. District Court of New South Wales (1989) 168 C.L.R. 23. In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.”

At common law, therefore, a stay should only be imposed in exceptional circumstances, and even more rarely in the absence of fault on the part of the complainant or prosecution, and no stay should be imposed unless a defendant has established, on the balance of probabilities, that he would suffer serious prejudice to the extent that no fair trial could be held.

Recently, in A–G’s Reference (No. 2 of 2001) under s. 36 of the Criminal Justice Act 1972 (2^nd July 2001), this court considered the impact, on the principles governing stay on the grounds of abuse of process, of the incorporation in English law of the European Convention on Human Rights. It was argued for the defendants in that case that the Convention required a different approach to that adopted in AG’s Reference (No. 1 of 1990) and that, in the event of any breach of the requirement under article 6(1) of a trial within a reasonable time, the court should stay further proceedings. The court rejected the argument as failing appropriately to distinguish between the breach and the remedy. It said:

“If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant’s rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes. It has always been the practice for the courts in this jurisdiction to take into account delays of the sort to which we have referred when sentencing a defendant. It does so, recognising that it is inevitably a disadvantage to a defendant to have a charge hanging over his or her head longer than is reasonably required. The criminal process inevitably subjects an individual to distress. Albeit that they are acquitted at the end of the process, they still have been subjected to unnecessary distress. The difference which the Human Rights Act 1998 makes is that the remedies available to a court can be greater than they were hitherto. In particular, it is now in appropriate circumstances open to the courts to make awards for compensation. This court accepts that where a person is acquitted at a subsequent trial, it could be appropriate for there to be compensation if there has been delay which contravenes the reasonable time requirement in Article 6(1) of the Convention. It depends on all the circumstances whether compensation is appropriate.”

In the same case, the court considered the moment from which the guarantee of the right to a fair trial within a reasonable time enshrined in article 6 applied. It acknowledged that the words “criminal charge” in article 6 bear an autonomous, Convention meaning. It said that the moment when, in English criminal proceedings, a charge could be said to exist for the purposes of article 6 would “in the great majority of situations” be provided by “the date that a defendant is charged (in the sense we use that term in our domestic jurisprudence)”. But it added, with reference to Dewer v. Belgium (1980) EHRR 439, that there could be situations where a broader approach was required, in particular “where the accused has been substantially affected by the actions of the state so as a matter of substance to be in no different position from a person who has been charged”. However, the court considered that, in the ordinary way, “an interrogation or an interview of a suspect by itself amount to a charging of that suspect for the purpose of the reasonable time requirement in Article 6(1)”.

We note comment by Professor Andrew Ashworth in an article “Delay: charge, reasonable time and remedies” (Archbold News Issue 9, November 30, 2001). Professor Ashworth refers to recent authorities in the European Court (particularly Howarth v. UK (2000) 31 EHRR 861 and Heaney and McGuiness v. Ireland (2001) Crim LR 481) to suggest that the last sentence quoted in the previous paragraph may require revisiting. But, if that is so, the present judgment is neither a necessary nor an appropriate occasion.

Mr Wood asserted before us, without citation of authority, that because the Convention guarantees the right to a fair trial, it is, in circumstances falling within the Convention, for the Crown to prove that a fair trial is possible and that there should be no stay. We know of no authority for that proposition, and, although there was no specific reference in A–G’s Reference (No. 2 of 2001) under s. 36 of the Criminal Justice Act 1972 to the burden of proof, so radical a distinction between the Convention and common law principles governing a fair trial and a stay for abuse of process would run contrary to the tenor of that authority. We consider that a defendant who asserts that he or she did not or cannot receive a fair trial must make good that assertion – and likewise, therefore, so far as a defendant relies on serious prejudice to support such an assertion, although there may perhaps be situations in which some evidential burden shifts to the Crown.

Application of principles

We are on any view concerned in this case primarily with the common law principles governing abuse of process, although we add that it would in our view make no difference to the result if we were to apply the Convention. The Convention can have had no direct application, since the appellant’s conviction occurred before the relevant provisions of the Human Rights Act 1998 came into force: R. v. Kansai (H.L; 29^th November 2001). Quite apart from that, article 6(1) cannot, on any view of the law, have applied prior to 20^th March 1997, when the appellant was first notified by the police of their involvement and arrested. Prior to that date Graham Levett had in correspondence with his mother and the appellant been making what the appellant described in interview on 21^st March 1997 as “a general allegation of abuse”. In the same interview the appellant said that he had heard from others (we interpose, very possibly referring to Mrs Levett) that Graham Levett had been to see the police in August 1995, was aware that the police must be making enquiries and had been expecting the police to arrest him or interview him since that time. However the police did not notify the appellant or take any formal steps affecting him until 20^th March 1997. Mere private anticipation of or anxiety about future police action cannot, on any view of the law, bring article 6(1) into play.

The appellant’s initial application on 22^nd November 1999 was based heavily on submissions relating to the complainant’s delay in complaining about abuse, and to prejudice alleged to have been suffered by loss of the opportunity to investigate and approach potential witnesses (some long dead by 1999) who might have existed in the late 1970s or early 1980s. Such delay is however a common feature in such cases, and the judge rightly saw nothing in the suggestion that it justified a stay. This aspect of the appellant’s submissions was not repeated before us. The other aspect relied on by the appellant concerned the police conduct of the investigation from August 1995 onwards. The judge observed, as we have said, that the delay in taking statements was “quite inadequate”. But he did not consider that the appellant had shown either that there was any improper or negligent act or omission of the police permitting contact between Graham Levett and David Meek to take place in 1996; or that anything that occurred that contaminated their evidence. On the contrary, he was positively satisfied that, if the onus lay upon the Crown to establish that a fair trial was possible, the Crown had discharged that onus. On the limited documentary material which was put before him at that stage, in conjunction with assertions about the risks or likelihood of widespread collusion or contamination, we see no basis on which the judge could have come to any other conclusion.

After the Crown case, at the end of November 1999, the appellant submitted that, by then at least, it had been shown that there had been serious contamination of Crown evidence as a result of police delay. Reliance was placed on the evidence about meetings between Graham Levett and David Meek and on Graham Levett’s evidence that he had also been talking to Christopher Hall, who had himself spoken to David Meek. The differences between Graham Levett’s initial account on 8^th September 1995 and his statement over a year later were relied upon in this context. We do not have a transcript of the judge’s ruling at this stage, although we are told that it was probably short, maintaining similar conclusions to those at which he had arrived on 22^nd November 1999. We do not consider that there is any basis for concluding that the judge was wrong to hold that the trial could and should continue, fairly, to a conclusion. Unsatisfactory though the police’s delay was, the police had, on Graham Levett’s own evidence, advised him not to talk to others involved. He deliberately ignored this warning, including during the period when he was preparing his statement. It was not the police delay, but Graham Levett’s ignoring of the police warning, that led to discussion between potential witnesses. Even if the two witnesses’ statements had been taken over the same period, such ignoring of police advice could not have been prevented. David Meek was also advised not to talk to others. Even assuming that the police failed to give appropriate or sufficient warnings, it was not shown that the evidence given by Crown witnesses was thereby contaminated, in the sense of being affected or changed, whether deliberately or inadvertently, by the contacts which took place between Graham Levett and David Meek.

In relation to Andrew Meek, it was not established that he was (although he may have been) the “other person” to whom David Meek is recorded as having referred on 22^nd April 1996; as to the fact that the police did not (apparently) ascertain to whom it was that David Meek may have been referring, so far as we are aware, there was no evidence about whether or not the police asked for that name and what David Meek said. There was no voire dire to elicit any facts which did not appear in open court. That being so, it is unsubstantiated assertion both that the person in question was Andrew Meek and that the police failed in any duty. Further, even assuming these points against the Crown, Andrew Meek said in evidence that he did not speak about abuse to his brother or anyone until mid-1997, after the police approached him; his statement records that he had not as at 6^th June 1997 even told David Meek that he had himself been abused; and that it was “only in the last few months that I have learned that [the appellant] also sexually abused my younger brother David Meek”. In evidence Andrew Mark also explained that he had learned this from David Meek, that he was then contacted by the police, and that he did not want any conversation on the subject or to make any complaint. David Meek said that he had not discussed any details of his relationship with the appellant, before giving his name to the police, since it was “obviously not my favourite subject of conversation”. That evidence tends to negative rather than establish any risk of contamination of Andrew Meek’s statement by discussion with David Meek. A statement said by Graham Levett to have been made by Christopher Hall, perhaps in late 1995, that Graham Levett “would be letting down the Meeks” (in the plural) if he did not proceed with his allegations against the appellant was no basis for concluding that Andrew Meek was lying in this regard. No basis therefore existed for a conclusion by the judge that there was any failure in relation to Andrew Meek at all. But, even if that is wrong, there was no basis for the judge to conclude that any serious prejudice had resulted.

In short, even if otherwise relevant criticisms may be levelled at the police, whether for delay or otherwise, there is no basis for concluding that the appellant suffered in his defence any prejudice let alone the serious prejudice that would be necessary to justify any stay. Further, the judge had heard the evidence. He was best placed to judge whether the conclusions at which he had arrived earlier in the trial were still justified. Whether there had been any and what prejudice in the form of contamination of evidence was in the circumstances for the jury to determine. The judge was right to order the trial to continue.

Similar fact evidence

We turn to the issue regarding similar fact evidence. The judge dealt with this subject in his summing up in the following terms:

“I want to say something, members of the jury, about what is sometimes called similar fact evidence. In this case the Prosecution say that there are similarities between each of the sets of complaints made by Andrew Meek, David Meek and Graham Levett. In each case they say, for example, the defendant befriended them on the beach. Whoever made the first contact, members of the jury, they say that there was an initial befriending on the beach. They say that in each case he gained their confidence, and that of their parents. In each case he secured their presence in his bedroom in the upper flat at number 4, alone with him, and that in each case he then abused them there. In two of the cases there is mention of a candle.

The Prosecution, therefore, say that by reason of these similarities the evidence of each complainant is supported by that of the others, and that you may consider the evidence of the others in deciding whether or not each of the complaints is true.

In that context, members of the jury, ask yourselves a number of questions. First of all ask yourselves: “Are we sure that the three, or any two of them, did not put their heads together to make false accusations against the defendant?”. I do stress that word “false” in that context. If you are not sure of that, then the evidence of the others is of no value as support in any one of the complaints and you must ignore it. If you are sure that there was no collaboration so as to make false accusations, you are entitled to consider the evidence of each in deciding whether the others were speaking the truth.

You must then ask yourselves this question, members of the jury: “Is it reasonably possible that the three persons independently making similar accusations, those that you have heard, could all be either lying or mistaken?”. If you think that incredible, then you may well be satisfied, considering each, that he was speaking the truth.

But in answering that question you should consider two important aspects of the evidence. First of all, the degree of similarity between the accusations. The greater the degree of similarity the more likely it is that independent witnesses are speaking the truth. You may think it would be a remarkable coincidence if they hit upon the same lies or made the same mistakes as to matters of detail.

On the other hand, the less the degree of similarity, the less weight should be given to this evidence.

And, secondly, consider whether any of them may have been consciously or unconsciously influenced in their evidence through hearing, directly or indirectly, of complaints made by others, for example, Graham Levett and David Meek who had meetings.

If you think it’s possible that they, or any of them, may have been influenced in making the accusation at all, or in the detail of their evidence, you must take that into account in deciding what weight, if any, you give to their evidence.

The Defence submit that the evidence of David Meek and of Graham Levett is contaminated by the contacts and discussions they had with each other and/or with Christopher Hall, and so far as Christopher Hall is concerned, they would bring Andrew Meek into that category as well. Contact, that is to say, at times following Graham Levett’s statement of complaint to the police, or certainly following the first of them.

It’s for you to decide whether there was contamination such as to affect their reliability. It was put to Graham Levett, for example, that there might have been mention of the candle during such a meeting. He did not know whether there had been, but supposed that it was possible. Consider that and the submissions that Mr Wood makes about it.

That the police had advised them not to speak to other witnesses and that they disregarded that advice is undoubtedly so, you may think. Furthermore David Meek spoke of only one meeting, Graham Levett of more than one.

But the question for you at the end of the day, members of the jury, is whether that affects their reliability or the truth of their evidence about what was done to them.

Mr Wood asks you too to consider the possible role of Christopher Hall, who spoke with both David Meek and Graham Levett about these matters. Well, do consider it, and ask whether it does anything to affect your view of the reliability or truth of the evidence of any of the complainants.

It’s a fact of life, isn’t it, members of the jury, that people do talk to each other. It’s not terribly surprising, you may think, if Christopher Hall, a man who had known Rupert Massey for over 10 years, and who knew both of the Levetts and the Meeks, should have been involved in discussions about all of this. The question for you to resolve is whether any of these discussions, with or without Mr Hall, have led to falsehood or contamination as opposed to a common, a shared determination to tell the truth and to bring the defendant to book.

Remember at all times, considering each complainant and each complaint separately, that if you are less than sure of its truth, you must acquit. If sure, and only if sure, convict.”

The appellant’s submissions before us involved a number of strands, some linked to the facts relied upon in the context of the argument on abuse of process which we have already addressed. Mr Wood submitted that (i) there was no sufficient similarity to justify any direction; (ii) that the presence of what is described as “undoubted contamination”, particularly caused by police delay or fault should have caused the judge to decline to give any similar fact direction, and to direct the jury to look at each complainant’s case and evidence entirely separately; and (iii) that the risk of collusion required a differently expressed direction, to give the jury guidance as to how they should decide whether there had been collusion.

In Mr Wood’s submission, the general effect of the judge’s direction was to indicate to the jury that mere propensity to commit the offences charged would suffice. Mr Wood also took particular objection to the judge’s invitation to the jury, if satisfied that there was no collaboration, to consider: “is it reasonably possible that the three persons independently making similar accusations, those that you have heard, could all either be lying or mistaken?”. We observe straightaway, however, that it is in our view important to note both the judge’s premise that there was no collaboration (or that the complaints arose “independently”) as well as his words “similar accusations”. In relation to the latter, Mr Wood’s submission is that the evidence before the jury could not justify a conclusion of any relevant similarity. He referred us in this connection to the authority in this court in R. v. Mosquera (15^th December 1998).

Principles applicable

The conditions for the admission of similar fact evidence were established authoritatively in DPP v. P [1991] 2 AC 47. After considering R. v. Boardman [1975] AC 421, Lord Mackay LC, with whose speech all other members of the House agreed, deduced at p.460F that:

“the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that the accused person has committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.”

He went to say that:

“restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle. Hume on Crimes, 3^rd ed. (1844), vol. II, p. 384 said long ago:

“the aptitude and coherence of the several circumstances often fully confirm the truth of the story, as if all the witnesses were deponing to the same facts”.

At p.462E, he returned to this aspect as follows:

“This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.”

In the present case, we are concerned with a situation within the last sentence of this citation. The issue is whether a crime was committed, which turns centrally on whether the complainants were truthful witnesses.

At p.461A-B, Lord Mackay clearly disapproved of the view that it was necessary to find

“…. some feature of similarity beyond what has been described as the paederast’s or the incestuous father’s stock in trade before one victim’s evidence can be properly admitted upon the trial of another ….”

He said that “In so far as [decisions starting with R. v. Inder (1977) 67 CAR 143] required, as an essential feature, a similarity beyond the stock in trade, I consider that they fall to be overruled”. The message conveyed in this passage is, in our view, underlined by Lord Mackay’s approval at pp.461G-462D of the decision of the New Zealand Court of Appeal in R. v. Huijser [1988] 1 NZLR 577. There, in a case of alleged indecent assault on a woman employee, where the defence was accidental contact, the court admitted evidence of other women employees on the basis that:

“The evidence, if accepted, shows a practice established over a considerable number of years by the accused of subjecting women employees to minor sexual assaults and harassment during the course of their working relationships with him. It indicates a constant or continued attitude by him.”

The alleged assaults were by touching breasts or buttocks, and were mostly, though not exclusively upstairs in the private part of the shop, and, with one exception, were preceded by sexual conversation or innuendo. The New Zealand Court referred with approval to its prior decision in R. v. Hsi En Feng [1985] 1 NZLR 222, where an acupuncturist, consulted at different times over some 3Ѕ months by five different women aged between 18 and 37 faced allegations in relation to each that on or about their third visit, while alone with them in a cubicle he had commenced fingering their private parts, especially the clitoris, usually pulling their pants down; in some cases there had been further misconduct, such as exposing himself, putting himself between the complainant’s legs and in one case producing some sort of electrical instrument.

We also draw attention to dicta in R. v. Christou [1997] AC 117. The actual issue was whether admissibility, under DPP v. P, of the evidence of one complainant in the case of another was a pre-condition to the joint trial of counts relating to both complainants. The House of Lords held that it was not. We note, however, that Lord Taylor at p.129B said this:

“By contrast, when, as here, the allegation is of a continuous course of conduct within one household involving two or more children over the same period and in similar circumstances, joint trial of all the counts may well be appropriate. Indeed, in such cases the principles laid down in [DPP v. P] will often render the evidence of one child admissible to support the evidence of another”.

Lord Griffith at p.120 put the matter still higher:

“I wish, however, to add a rider. Although the point was not argued, I am firmly of the opinion that the judge was wrong to rule that the evidence of the two complainants was not capable of corroborating one another. This was a case of a man successively sexually abusing his two young girl cousins whilst living as a member of their family in the same house. In such circumstances [DPP v. P] is clear authority that should have led the judge to rule that the jury were entitled to regard the complainant’s evidence as mutually corroborative. Had she done so the point argued in this appeal would, of course, never have arisen.”

Mr Wood invited us to adopt as a correct statement of the English legal position an analysis by Lamer CJ in the Canadian Supreme Court in R. v. FJU (1995) 3 SCR 764, 791-2. The Court there was concerned with the unusual position of a 13-year old complainant and an accused who had both made identical statements attesting to sexual intercourse between them, including the disclosure that the last occasion had been the previous night. At trial both recanted, but under Canadian law the Court held that their prior inconsistent statements constituted positive evidence, upon the Crown could still rely. Considering whether each prior statement could be relied upon in support of the other, Lamer CJ identified the possibilities of collusion and of contamination whether by the other or by a common interrogator. Putting those aside, he identified as the only other two possibilities that the similarity was coincidental and that it arose because each maker was telling the truth. He started by saying that, to eliminate the possibility of coincidence, “the similar factual assertion must be so striking that it is highly unlikely that two people would have independently fabricated it”. In re-expressing the test, he spoke of the necessary degree of similarity arising either from the unique nature of particular factual assertions in both statements, or “it may be” from “a cumulative combination of similar points render[ing] the overall similarity between the two statements sufficiently distinctive to reject coincidence as a likely explanation”.

Neither DPP v. P nor any other modern English authority was cited in R. v. FJU, and Lamer CJ’s words, while they contain an interesting exposй of some of the factors in play in this area, do not seem to us to represent an accurate guide to the scope of similar fact evidence in English law. We note that in the same case L’Heureux-Dubй J. gave a separate judgment, expressly disagreeing with Lamer CJ’s view that striking similarity was necessary. At p.798, he preferred the view that “significant similarities” sufficed, citing a passage from Osborne JA in the court below, which read:

“Where the appellant’s admissions to a significant degree mirror the allegations made by the complainant, …. it seems to me to follow that the fact that the appellant’s confession was as similar as it was to the complainant’s allegations of sexual misconduct, is evidence which increases the likelihood that the appellant’s confession was true. Put another way, the fact that the complainant said what she did in her statement adds value to the appellant’s confession to the police.”

We turn to R. v. Mosquera. The appellant (with his live-in girl-friend) and two other families (the A and B families) had lived in separate self-contained flats in North London until 28^th March 1993, when the appellant and his girl-friend had moved to a flat south of the river. The appellant was alleged to have committed various and escalating sexual offences against AA, her sister TA and JB. The assaults alleged against AA and TA were described as “minor” and occurred at the North London premises. (In the case of AA, there was in fact an acquittal. In the case of TA, the appellant was convicted of exposing himself and kissing her and her breasts and putting his tongue in her mouth.) The offences alleged against JB were of fellatio and rape, originally all charged as occurring on a visit by her to the appellant’s new flat south of the river, although it emerged late in the trial that any fellatio must have occurred shortly before the appellant moved away from North London. The judge rejected an argument that the charges relating to JB ought to be severed. He explained that this ruling had been based on the view that the evidence given in the cases of the A sisters would be admissible in the case of JB and vice versa.

The features relied upon as making this so were as follows:

“(a) The contact between the appellant and the two families arose as a result of their all living in the same house for a period of time.

(b) The appellant befriended the parents of the complainants in order to gain their trust and thereby access to the girls [that of course had yet to be demonstrated: there was nothing in the statements of the witnesses which so asserted]. The appellant had also encouraged the trust of the A sisters by giving each a bicycle and had, on occasions, allowed all the girls to ride in his van.

(c) There was some overlap in time between the assaults alleged on the A sisters and the alleged offences against JB.

(d) The allegations in relation to the counts of indecent assault that the appellant had lifted up the girls’ skirts before touching their vaginal areas.

(e) The allegations represented a continuing course of conduct which escalated from minor assaults upon the A sisters to rape of JB.”

The defence argument was that

“none of these matters was in the circumstances a probative common feature as between the allegation of minor assaults on the A sisters and the allegations of rape and fellatio on JB because

(a) Contact between the appellant and the two families was inevitable at [the North London premises]. The house was an informal one, in which the As lived on the ground floor and let the upper floor as studio flats. In her witness statement Mrs A described the house as “like one big household with the tenants coming down stairs and asking to borrow things and my two girls, AA and TA, going to the flat upstairs”. She said this would happen in the case of the appellant and his girlfriend. “I could see nothing wrong with them as they were just an ordinary friendly young couple as far as I can remember.”

(b) While the families became friendly, it was in the above context. Further, the appellant was generally described as very nice, friendly and amenable both with adults and children.

(c) The fact of an overlap in time was not in itself a common feature.

(d) The lifting of a girl’s skirt to touch her vaginal area is less a “hallmark” than a necessary preliminary to such activity.

(e) While, if true, the allegations were of a continuing course of conduct, the “escalating” nature of the alleged assaults as between the A sisters and JB, far from being a common feature, was the very point largely relied on by the defence as the difference of type and degree which rendered severance appropriate.”

This court came to the conclusion that the convictions on all counts were unsafe. But it is important to analyse its reasons for this conclusion. At the heart of the court’s conclusion was a criticism of the judge’s summing up, on the ground that, having referred to certain features in the case, by way of example, “he left the jury at large and without further instruction to decide whether the evidence of one girl (if truthful) constituted a connection and lent support in relation to the allegations of another”. The court went on to acknowledge the point, which we have identified earlier in this judgment, namely that:

“… when the issue is mistake, accident, or that a particular witness is lying, a lesser degree of similarity between two allegations is likely to suffice to make them cross-admissible than where the issue is, for example, the identity of the defendant as the perpetrator of various offences.”

But it observed that:

“While the decision in DPP v. P has eliminated the necessity to identify a “striking” similarity, it is still necessary to invoke some identifiable common feature or features constituting a significant connection and going beyond mere propensity or coincidence.”

In the court’s view:

“… this was not a case where there was any significant similarity “between the offences alleged against the A sisters on the one hand and JB on the other, save that they were sexual offences (which in our view is not enough per se). Accordingly, it was a case where some other relationship between the events described and the abuse charged in respect of the A sisters had to be such that it strongly supported the charge of rape and fellatio in respect of JB. That position does not appear obvious to us in this case.”

The last sentence is relevant, because the court went on not to rule out absolutely any similar fact direction on the facts before it, but to say that (i) “in doubtful cases” the judge has two options, either to “lean in favour of the defendant by telling the jury to treat the charges separately” or to be “particularly careful to identify the similarity or other relationship relied upon by the prosecution, giving some guidance in respect of it in the light of the defence advanced, coupled with the warning (which was appropriate in the circumstances of this case) against relying upon mere propensity itself”; that (ii) the case before it was “a doubtful case at best”; and that (iii) “In these circumstances, it seems to us that a good deal more was needed on the question of cross-admissibility than the passages in the summing up which we have quoted, particularly as nothing in the evidence of the A sisters went directly to the commission of the offences of a different order alleged in respect of JB, and [?which] had taken place on separate occasions and in different places”. The court then made points along the lines of points (a), (b), (d) and (e) in the defence arguments set out above, and again criticised the judge’s open-ended use of the words “for example”. Having considered the matter thus far principally from the viewpoint of the charges brought in respect of JB, it said simply that the same reasoning applied to the charges involving the A sisters, that the summing up was thus materially deficient in respect of all counts and that all convictions were unsafe.

Application of principles in this case

Mr Wood seeks by comparison of the facts in that case and this to elicit a conclusion favourable to his client in this case. The fact that the appellant met all three complainants on the beach is, he submits, insignificant, since the appellant and they naturally spent leisure time there. Equally, the fact that he became friendly with their parents is insignificant, and on the contrary supports innocent association, particularly since the appellant continued to be friendly with both the Meeks, and with at least Mrs Levett, for considerable periods after the alleged abuse ceased. The bedroom was the natural place for sexual activity to have allegedly occurred. The candle mentioned by Graham Levett and David Meek was the only potentially significant feature common to any of the cases, and then only to two and it was a feature which came to light in suspect circumstances because of the contacts between Graham and David and the risks of collusion or contamination.

Each case must turn on its own facts. We do not find either helpful or persuasive Mr Wood’s attempt to extrapolate from R. v. Mosquera a conclusion that on the facts of this case the judge should as a matter of law have concluded that the evidence of each complainant was inadmissible in the case of every other complainant. Even on the (different) facts in that case, we do not read the court as having said that. The court’s decision was, as we read it, based upon deficiencies in the judge’s summing up regarding similar fact evidence, not on a view that no such direction could properly have been given at all.

Be that as it may be, if one is looking for guidance on the proper application of the law to the facts in this case, we have no doubt where it is to be found. The basic features of this case bring it directly within the class of case to which Lord Mackay referred at p.461A-B in DPP v. P as “stock in trade”, which Cooke P considered in the two New Zealand authorities to which Lord Mackay referred and which Lords Taylor and Griffiths had in mind in R. v. Christou. This is quite apart from the potentially powerful additional feature of the candle in two of the complaints. The law refuses, not surprisingly, to countenance a proposition that the mere fact that more than one complainant alleges offences falling within the same area of the criminal law (e.g. sexual offences, as Potter LJ said in R. v. Mosquera) lends relevant probative weight to their complaints viewed individually. Some further “relationship in time and circumstances”, to quote Lord Mackay’s words in DPP v. P, is necessary, although in a case where the issue is one of truthfulness, this may be a lesser relationship than where it is one concerning the identity of the offender. But this relationship may in the present context arise from communality of relatively common-place circumstances attending the commission of the alleged offences. A sex offender is very likely to make use of such circumstances to commit repeated offending. That either a single complainant or a number of complainants might also make use of such circumstances in the course of devising or supporting false complaints is not, as we see it, a fundamental objection to admissibility, although it must always be relevant for a jury to bear in mind. The underlying rationale of DPP v. P is, we think, that there comes a point when the coincidence of similar factual allegations by different complainants, acting with appropriate independence, offers legitimate support in law for a conclusion that each complaint is genuine, rather than false. Where that point lies depends ultimately, as Lord Mackay said, upon what is “just”, and is a matter of degree.

Here, we have no doubt that the necessary communality and relationship was present. The appellant frequented a beach where he met younger boys. Although considerably older, he developed their friendship and kept their company, both there and at his flat. Further, he developed close friendships with their parents, gaining their trust to the point where he was regarded as a family friend and they allowed their sons to go out with him, and to visit (and in the cases of at least David Meek and Graham Levett to stay overnight at) his flat. That trust was particularly marked in relation to the two mothers, Mrs Meek, and Mrs Levett, the latter of whom eventually moved into the downstairs flat at 4 Eaton Road and worked for the appellant until his arrest. The fact that the offences took place at different times is, on the Crown’s case, not a problem, but is on the contrary illustrative of a pattern of similar offending against successive youths, whereby the appellant gratified his desires from time to time. That such a pattern of successive offending may constitute a relevant relationship between different complaints seems to us clear in principle and is confirmed by, for example, Lord Griffiths’ dictum in R v. Christou. History repeats itself, in such cases tragically. The complaints made by each complainant were of a similar nature, involving masturbation, fellatio and, significantly, the placing of the appellant’s penis between the complainant’s buttocks before ejaculation.

In our view, quite apart from the feature of the candle, this was a case where, on the facts, the judge was entitled and right to direct the jury that they could, if they thought it otherwise appropriate, treat the evidence of each complainant as admissible in the case of each other complainant. The candle reinforces this conclusion in the cases of David Meek and Graham Levett. Mr Wood relied upon the fact that Andrew Meek, relating to the complainant whose alleged abuse occurred first in time, gave evidence that the appellant’s sexual activity between his buttocks also extended to partial and painful penetration in respect of him. This was conduct from which, if it occurred, the appellant must have desisted on the later two complainants’ account. Quite apart from the broad issue whether there was any abuse at all, it was in issue whether there was any such penetration and the jury cannot have been satisfied about that. Even before the jury indicated that they did not accept that it existed, this extra aspect of the appellant’s alleged activities certainly did not prevent the three complaints, viewed overall, from having a sufficient relationship to justify cross-admissibility.

Contamination

This brings us to the appellant’s submission that there was “undoubted contamination” which should have caused the judge to decline to give any similar fact direction, and to direct the jury to look at each complainant’s case and evidence entirely separately. Mr Wood referred to leading authority in this area of R v. H [1995] 2 AC 596, and to the discussion in Archbold (2002) para. 13-26. In R v. H the House of Lords addressed the situation arising where the Crown proposes to rely on similar fact evidence and the defence demonstrates a risk of contamination by collusion or other factors. The House held that independence was not a condition precedent to the admission of similar fact evidence; that a judge in deciding whether the admission of the similar fact evidence would have probative value outweighing its potentially prejudicial effect should in general assume that the evidence was true; and that it could only be in an exceptional case that it would be right for the judge to hold a voire dire on that aspect. The House went on to hold that, where the possibility of collusion (including in that phrase unconscious influence of one witness by another) arose, the reliability of the evidence fell generally to be left to the jury with an appropriate direction to consider this aspect. It is only where the evidence adduced during the trial was such that no reasonable jury could accept it as being free from such contamination that the judge should direct the jury not to rely on it.

Mr Wood submits that the present is a case of “undoubted contamination”, and that the judge should therefore have refused to give any similar fact direction, and should have direct the jury to view each complainant’s evidence and position entirely separately. He went so far at one point as to suggest that, whenever witnesses had spoken together, and even if there was no fault or delay by the police, it was right for the judge to direct the jury to ignore any similarity of their evidence. These submissions confuse contact with contamination; they ignore entirely the message conveyed by R. v. H that it is, save in an exceptional case, for the jury to consider the issue of contamination . Contamination, whether consisting of deliberate collusion or unconscious influence, involves the evidence of a witness being actually and materially distorted, as a result of contact with another, in such a way that it does not reflect what that witness genuinely recalls to have actually occurred. In the light of the facts which we have summarised above under the head of abuse of process, there was no basis on which the judge could have concluded that no reasonable jury could accept the evidence of the three complainants as being free from such contamination.

The judge’s directions

We come finally to the criticism levied at the summing up on the subject of similar fact evidence. The judge in this respect followed closely part C of the Judicial Studies Board specimen direction 20.3 which concerns situations, like the present, where there is direct testimony that the defendant committed the offence and the question is whether one witness (W) who says that he did is telling the truth and other witnesses (X and Y) testify to similar offences on other occasions. Mr Wood submits however that the judge failed to give guidance as to how the jury was to decide whether there had been collusion or collaboration to make false accusations, and failed, in particular, to draw together the facts to be considered when deciding that issue. We do not accept that criticism. Having identified the issue regarding contamination, the summing up went on to remind the jury appropriately of the general nature of the factual contacts which had been established by the evidence and of the defence submissions that the evidence given may have been affected by such contacts. These had been fully canvassed in evidence, and in counsels’ final speeches, and the judge was under no obligation to say more.

Mr Wood took issue with the judge’s direction that, if the jury was sure that there was no “collaboration so as to make false accusations”, it was entitled to consider the evidence of each witness in deciding whether the other was telling the truth. But the judge was not directing the jury that it must do so. On the contrary, he drew attention to the question which “then” followed (“is it reasonably possible that the three persons independently making similar accusations, those that you have heard, could all either be lying or mistaken?”), and continued by directing the jury to consider two important aspects of the evidence: the degree of similarity and the issue of conscious or unconscious influence. On these he gave the jury further explicit directions.

In our view the judge summed up appropriately and the criticisms made on the appellant’s behalf are not valid.

Conclusion

The result is that this appeal fails under the heads of both abuse of process and similar fact evidence, and we dismiss it accordingly.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Massey, R v [2001] EWCA Crim 2850 (20th December, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/2850.html Cite as: [2001] EWCA Crim 2850

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2001

	R	Respondent
	- and -
	RUPERT JOHN MASSEY	Appellant