Neutral Citation Number: [2011] EWCA Crim 74
Case No: 2009/6755/B1
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
His Honour Judge Pert QC
T20097035
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/02/2011
Before:

LORD JUSTICE MOSES
MR JUSTICE HICKINBOTTOM
and
HIS HONOUR JUDGE ELGAN EDWARDS
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Between:

	Melvin Hereworth	Appellant	
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	The Crown	Respondent	

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Ms Pamela Radcliffe (instructed by Shires) for the Appellant
Ms Felicity Gerry (instructed by the Crown Prosecution Service) for the Respondent

Hearing date: 3rd December, 2010
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Judgment

Lord Justice Moses : 
1.	On 12 November 2009 the appellant was convicted on three counts of indecent assault and four counts of rape against M, whose mother had formed a relationship with this appellant.  M was about 12-13 at the time.  The appellant was also convicted of two further counts of indecent assault against her sister, E.  The offences were alleged to have taken place in the years 1983-1984.  The first report was made to the police on 24 October 2006.  This appeal raises a number of issues which follow from the allegations of historical sexual abuse.  Although the appellant seeks to raise a number of grounds, the ground on which he was granted permission is that the judge ought to have ordered the trial to be stayed on the grounds of abuse of process.  
2.	M made her first complaint on 24 October 2006 and had made her first statement in July 2007.  E, the other complainant, first complained on 28 August 2007.  The complaints related not only to sexual abuse but physical violence.  The defence, whilst complaining both at trial and on the appeal as to the extent to which the prosecution were permitted to adduce evidence of the defendant’s violence, accepted that the prosecution could legitimately adduce some evidence of physical punishment being administered to the children of the family.  The original statement from M alleged that the abuse, both physical and sexual, had lasted over three years, culminating in an important date, 12 November 1984, when she alleged she was raped by the defendant seven or eight times (the subject matter of counts 6 and 7) at the family home.  Records demonstrated that that could not have been true.  Extracts from social services reports and other records showed that the defendant had moved in to live with M’s mother P and her children between September and November 1983.  During that period M complained of regular physical abuse and sexual abuse.  He penetrated her with his fingers and subsequently, in a shed where he repaired his motorbike, with his fingers and the tip of his penis.  He threatened to “take her virginity”.  
3.	She also alleged that he forced her to undergo oral penetration until ejaculation.
4.	The last weekend and following Monday when the defendant lived with the family were of crucial significance.  On Sunday 11 November 1984 M’s mother P had been beaten by the defendant and had left the home to go to her mother, M’s grandmother.  The violence was reported to the police.  M said that on the following day, Monday 12 November 1984, she was alone in the house with the defendant and that he raped her on seven or eight occasions, allowing her to get dressed only when it was time for the other children to come home.  Her aunt came and collected her from the house, taking her to her grandmother, where the other children were on that Monday afternoon.  She spoke to the police and to a social worker about the physical abuse but made no mention of any sexual abuse, seeking to explain that because her real father was present with her siblings she was ashamed to do so.
5.	The essence of the appellant’s ground of appeal is that the only existing records are from social services and they are only fragmentary.  But they are sufficient to demonstrate support for the defendant’s contention that he was not left alone at any time after M’s mother had been taken by G back to her home in Blaby, on Sunday 11 November, 1984.  Documents suggest that M was not left behind but that all the children, M and her five siblings, left the family home on the same day, and there was no time when she remained alone with the defendant.  He suggested that loss, through the passage of time, of other documents rendered a fair trial impossible.
6.	The records which do exist from social services note a social worker’s report to a case conference on 16 November 1984, four to five days after the events which the note describes.  The note reads:-
“It is recorded that G (P’s mother and M’s grandmother) attended the family home on Sunday 11 November after having been called by J (one of the siblings).  She took P and the children back to her home in Blaby.”
The next note, dated 22 November 1984, is a communication from WPC Moore to the Chief Superintendent.  It refers to Monday 12 November 1984, ten days previously, and reads:-
“WPC Dickens obtained statements from P following her allegations of a domestic dispute and assault and from M at in Blaby.  M alleged an assault on herself by Mr Hereworth.  M had a bruise on the leg where she had alleged he had kicked her.”
The next note is of the same date, 22 November 1984, and records that the defendant was arrested on the evening of Monday 12 November 1984 following the allegations of violence.  It records M and her twins were removed by their natural father and taken to Bristol.  It also recalls that “they” were not present when the police visited the family at the grandparents’ address on the morning of Tuesday 13 November.  On the basis of these notes, the defence suggested to the trial judge and reiterates before this Court that the partial records go a long way to confirm that the defendant was not left alone with M either on Sunday after her mother had gone with M’s grandmother to the grandmother’s home and that M had not returned to the family home the following Monday.  Absent the delay, other witnesses or school records would have shown that M was at school with her siblings on that Monday.  
7.	Further, there may have been notes in a police officer’s notebook as to movement of the children on Sunday or Monday, particularly since the police attended the grandmother’s address on Monday.  Further, a police officer’s notebook might have contained material information about the demeanour of M who, it must be stressed, made no reference at the time to any sexual allegation but confined her complaints, as her siblings did, to the allegations of violence.  Moreover, there may have existed some note as to M’s siblings’ account of their movements during the 48 hours between 11 and 12 November 1984.
8.	M’s own evidence suggested that her siblings were still living with the defendant on 12 November 1984 and that she was left at home whilst they were at school on the Monday.  But she said she was not sure if the rapes were the day of the defendant’s arrest on 12 November.
9.	Her statement was inconsistent.  Her first account was that her siblings had gone to stay with her grandmother and then to stay with her aunt R after “initially” being left in the house with the defendant.  Her second account was that she was raped when she was alone with the defendant, having been “kept off school”.
10.	The principles contained within the jurisprudence relevant to staying a case on the grounds of missing evidence or documents will not provide a clear answer in every case.  All will depend upon the facts.  The trial judge must judge whether the loss of evidence which might have been given either in documents or by witnesses creates such serious prejudice to the defendant that no fair trial is possible.  In making such a judgment the judge must bear in mind that it will only be in rare cases that a stay should be imposed in the absence of any fault on the part of the complainant, that problems caused by substantial delay may be alleviated by the judge’s directions to the jury and by the way he puts the defendant’s case to the jury (with clarity and fairness), and that delay may be due to the understandable reluctance of an alleged victim to recount an allegation.  So long as a fair trial is possible it is in the public interest that cases should be tried.  These principles emerge in Attorney General’s Reference No. 1 of 1990 [1992] QB 630 and in R v Maybury [2003] EWCA Crim 782, R v Sheikh [2006] EWCA Crim 2625, and were summarised by the Court in R v Mackreth [2009] EWCA Crim 1849.  
11.	We note that in Sheikh this Court took the view that missing contemporaneous documents were likely to have been decisive as to the opportunity for the housemaster, whilst on duty, to commit offences against one of the pupils.  In Mackreth the Court concluded that, in the context of a considerable body of surviving documentation, it was mere speculation as to whether the missing documents would have contained any information, still less any information likely to have assisted the defence (see, e.g., paragraphs 49-51).
12.	In the instant appeal, the defence had the benefit of the partially existing social services records.  A record of 16 November recorded that “the” children were taken to the grandmother’s house.  A record of 22 November 1984 recorded that M made her complaint of assault at her grandmother’s house and that she was taken by her natural father to Bristol sometime on 12 November 1984.  It is true, as the judge recorded in his ruling, that no school records survived.  But the defence had the benefit of the social services records and of the evidence of the defendant himself.
13.	No one can know what the school records might have shown.  But in their absence the defence could rely upon the defendant’s own evidence supported as it was, to an extent, by the social services records.  In those circumstances it seems to us that the judge was right in concluding that the absence of any other record of the whereabouts of M would not cause such serious prejudice to the defendant as to render any trial unfair.  There will be many cases where the absence of evidence, from a missing witness or the loss of a document, triggers speculation as to whether that evidence or document might have helped the prosecution or defence.  In our judgment, this case is no different.  The surviving documents helped the defence and it was for the jury, in that context, then to judge whether they cast doubt upon the account of the complainant, M.
14.	The appellant supports his contention by complaining that the judge failed properly to direct the jury as to the significance of the outstanding records and those that were missing.  But the judge did refer to the absence of school records and the absence of other records apart from the social services’ notes, which were before the jury.  In those circumstances we do not agree that the significance of absent records and of those which partially survive was not placed fairly before the jury.
15.	In our view, the judge was right to conclude that a fair trial for the defendant was possible.  Indeed, we take the view that any suggestion that the absence of documents or witnesses due to the passage of time was a disadvantage to the defendant is mere speculation.  For those reasons, we dismiss the only ground upon which the appellant obtained permission to appeal.
16.	In those circumstances, unless we give leave to argue the other grounds advanced, we can deal with those grounds shortly.  The appellant complains of the failure of the judge sufficiently to identify inconsistencies in the evidence of both complainants.  In relation to M there were a number of inconsistencies.  She said in her statement that she had been assaulted by being beaten with a belt on numerous occasions.  The judge did deal with that point in his summing-up.  The complaint is made that he did not sufficiently deal with inconsistency as to the distance between herself and the defendant when he fired a shotgun pellet at her.  The judge referred to the discrepancy as to that small detail.  
17.	The judge did refer to an issue raised by the appellant as to whether there was room within the motorcycle shed for the offences of which M complained to take place.
18.	Further complaints are made about interruptions to the cross-examination but they were not pressed by counsel and, in so far as this Court is able to recapture the process of trial, it does not seem to us that they demonstrate any unfairness on the part of the judge.
19.	It is true that the judge did comment that the defendant’s suggested motive for M to make up the allegations of sexual assault were “pretty fanciful”.  In the context of the summing-up as a whole we do not think that comment was unfair.  The judge only raised it in order to make the point that even if the suggestion was rejected, the jury should not conclude on that basis that the defendant was guilty.  In relation to the allegations concerning the summing-up and the judge’s conduct of the trial, we refuse permission to appeal.
20.	The final ground with which we should deal relates to an application for permission to adduce fresh evidence.  This turns on a letter from Dr Boora, a registrar in the Department of Psychiatry at Leicester General Hospital dated 10 September 2007.  It relates to the complainant M, who at that time was 36 and was suffering from depression.  The relevant part reads:-
“Most of her symptoms revolve around family issues and also difficulties at work…her brother returned recently and apparently he is the ‘missing link’ in the family.  She has got nine siblings in total  and allegedly six of her siblings were sexually abused in childhood.  These were the ones who stayed with her grandparents and she went to live with an aunt and uncle.  She feels guilty that she was (the word is added and handwritten) spared and the rest of her siblings were affected.”
21.	The consequences of her referral appear to have been treatment by, amongst others, Dr Pingili, Consultant Psychiatrist, who recorded on 31 December 2008 that the complainant, M, said she had been physically and sexually abused by her stepfather over about four years.
22.	In our view, accepting its accuracy, Dr Boora’s record does not cast any doubt on the complainant’s account.  The record is ambiguous but it does seem to us to be referring to an allegation that her six siblings were sexually abused whilst staying with her grandparents and that the complainant M was spared because she had gone to live with an aunt and uncle and not with her grandparents.  In those circumstances, it does not seem to us to affect her account, qualified as it must be by the records which showed the limited period when the defendant lived with her.
23.	In any event, those records were disclosed shortly before counsel’s speeches and counsel sensibly chose not to seek M’s recall to explain her conversation with Dr Boora.  We do not think that this material affects the safety of the convictions.
24.	For those reasons, the appeal and the application for permission on other grounds are dismissed.
25.	We turn, then, to the appeal against sentence.  It is argued that a sentence of 15 years’ imprisonment was too long.  The sexual abuse occurred only over a period of approximately eight months.  There was doubt as to how frequently it occurred and as to when some penetrative activity started.  The fact that until the final day of rape penetrative activity was only slight or “nominal” are identified as mitigating factors (m4).  
26.	It must be recalled that this appellant was in a position of trust.  The period of abuse was substantial and continued on a number of occasions with a background of violence and fear.  It led to the break-up of the family with the unfortunate consequence that this complainant’s mother took the side of this appellant and it led to an estrangement with her own daughter.  The sentence was severe but we do not think that, having lost the benefit of a plea of guilty, it can be said to be manifestly excessive.  We dismiss the appeal against sentence.