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Neutral Citation Number: [2011] EWCA Crim 3021 IN THE COURT OF APPEAL CRIMINAL DIVISION No. 2011/06515/D2 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 20 December 2011 B e f o r e: LORD JUSTICE MOSES MR JUSTICE KEITH and HIS HONOUR JUDGE SCOTT-GALL (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - R E G I N A - v - J - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Mr R Sahota appeared on behalf of the Applicant Mr C Baur appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T Tuesday 20 December 2011 LORD JUSTICE MOSES: I shall ask Mr Justice Keith to give the judgment of the court. MR JUSTICE KEITH: 1. On 27 October 2011 at Wood Green Crown Court, the applicant was convicted of cruelty to a child, contrary to section 1(1) of the Children and Young Persons Act 1933. He had pleaded not guilty. He was sentenced by Judge Browne QC to four years' imprisonment. His applications for leave to appeal against conviction and sentence have been referred by the Registrar to the Full Court. 2. At the relevant time the applicant was living with his partner, A, as well as A's mother and A's three children by previous relationships. One of those children was a boy, B, who had been born in April 2007. It was he to whom the applicant's conviction related. In June 2010, B was taken to hospital. It was then just a couple of months after his third birthday. He had a bruise and swelling on his forehead. He said that he had fallen off his bed. While receiving treatment as an in-patient, he developed two black eyes. The doctors said that that was part of the healing process. B was to tell his mother that the doctors had caused the black eyes. That does not necessarily mean that B was lying about that. A child of 3 may well have thought that because the black eyes developed following treatment, they had been caused by the doctors. Following B's return home, the family were interviewed by the police and social workers, but no action was taken. The prosecution did not rely on this incident as evidence against the applicant. 3. Over the next few weeks, A began to notice a change in the applicant's behaviour. She discovered that he had started to take drugs, first marijuana and then heroin. She claimed that the atmosphere in the home became tense, and that the applicant's attitude towards the children changed. He stopped caring for them and would shout at them, particularly at B. He also became violent towards A herself. The applicant agreed that he had started to take drugs in the summer of 2010, but he said that he had stopped using them in October. He denied having been violent towards A. The prosecution was allowed to adduce this evidence on the basis that it explained why the applicant might have begun to assault B. One of the grounds of appeal originally challenged the judge's decision to permit the prosecution to elicit this evidence, but that ground of appeal was subsequently abandoned. 4. A and her mother were to claim that from October 2010 B told them on a number of occasions that the applicant had hit him. They acknowledged that they had never seen the applicant do that themselves, except for one occasion in December 2010, when A saw the applicant become angry with B, grab him by the arm, grip the arm tightly and pull B towards him. Apart from that incident, which was more an example of ill-treatment rather than cruelty, the only first-hand witness to any of the allegations that the applicant had hit B was B himself. The prosecution was not prepared to call a boy aged four and a half or thereabouts at the time of trial to give evidence. Accordingly, the prosecution applied for leave for A and her mother to give evidence of what B had told them about what the applicant had done to him. The judge permitted that to be done. The only remaining ground of appeal against the applicant's conviction is that the judge was wrong to do so. 5. There were three incidents about which B told A or her mother. First, in December 2010, A discovered a large bruise on B's bottom. B told her that the applicant had spanked him with a slipper because he had lied. Later, B retracted that, and said that he had fallen over a toy. Secondly, in January or February 2011, B told A's mother that the applicant had hit him and had then put his hand over B's mouth, telling him not to shout. B retracted that complaint as well shortly afterwards. Thirdly, on 18 February 2011, A saw bruising on B's bottom and legs. She had not noticed it that morning when she had dressed him. B told her that the applicant had spanked him with a belt because he had lied. She confronted the applicant about that. He denied the allegation and called B into the room. He told B to tell him the truth about what had happened. B burst into tears and said that the applicant had not done anything to him. The following day, B was examined by a paediatric registrar. She spoke to B about what had happened. B was sitting on A's lap at the time. According to the paediatric registrar's subsequent note of that conversation, B told her that the applicant had hit him with a rod or a stick, and that he had been hit by the applicant across his bottom and his legs with a belt. When asked about some bruising on his penis, B told the paediatric registrar that the applicant had pulled it. 6. B was subsequently interviewed by the police. The interview was recorded. The prosecution did not ask for that to be played to the jury. No point is taken on that. Indeed, it does not look as if the jury even knew about it. On the other hand, if the judge's ruling is anything to go by, it was being said that there were inconsistencies between what B had told the police and what A and her mother said B had told them. 7. Important evidence about B's injuries came from the paediatric registrar. She thought that they must have been caused non-accidentally. She noted more than 50 injuries on B. She came to the conclusion that they were “too extensive” and “so multiple in nature” that they could only have occurred as a result of physical abuse. She described the bruising as some of the worst bruising to a child that she had come across. Blood tests conducted on B confirmed that he did not suffer from a medical condition which made him prone to bruise easily. Although that was not evidence which implicated the applicant, it should be noted that the paediatric registrar's diagnosis of non-accidental injury was not challenged. Her unchallenged evidence did not sit well with the applicant's claim that B's injuries were the result of general horseplay. 8. There are two other features of the evidence to which we should refer. First, when the applicant was arrested on 18 February 2011 following a call by A to the police, he was alleged to have told the police officer who arrested him that he had not hit B that day, but that he had hit B twice four days previously with a slipper because B had been “bad”. When he was interviewed, he added that what he had done was what one did in his country, and that he had only chastised B by smacking him very gently on his bottom with a slipper over his clothes. He had done it to teach B a lesson, not to cause him pain. He claimed that A and A's mother had done the same thing to the children to discipline them. Secondly, when the flat was searched, the police found a studded belt which belonged to the applicant. However, that did not advance the prosecution's case significantly because the expert evidence about how likely it was that this belt had caused B's injuries was conflicting. 9. The applicant's case was that, apart from what he told the police about disciplining B with a slipper, he had not hit B at all. A had called the police because they had quarrelled, and she had been angry that he had thrown her out of their flat. Although he had never seen A or her mother SMITH BERNAL WORDWAVE hit B (except when they had disciplined B with a slipper as he had done), B's injuries -– if they were non-accidental -- had to have been caused by one or both of them. There was said to be some support for that from what were said to be fresh injuries which A had seen on B by 27 February 2011. Those could not have been caused by the applicant because it was accepted that he had not had access to B since his arrest on 18 February. B was to claim that one or other of the social workers had caused those injuries. A's evidence was that she did not believe B, and acknowledged that she had earlier told social workers that she was worried that B had not told the truth even about what had happened on 18 February. Indeed, she said that she had told social workers that B had admitted to her that he had lied about what had happened on 18 February because he had been afraid to tell the truth, which was that he had been jumping on his bed. A said that B's new injuries had occurred when he had fallen off his pedal motorbike. 10. The paediatric registrar who had examined B on 19 February examined B again on 28 February. She noted 21 new injuries, although those to B's legs could have been caused accidentally. That left eleven new non-accidental injuries on her evidence. The paediatric registrar discounted the explanation for those injuries given by A. They were, she believed, further examples of non-accidental injuries. On the other hand, a consultant paediatrician with 30 years' experience (compared to the 9 years’ experience which the paediatric registrar had) who never examined B but who examined photographs of B and read the paediatric registrar's notes on 1 March, thought there were few, if any, new injuries compared with those identified by the paediatric registrar on 19 February, and that none of what were claimed to have been new injuries were in his opinion diagnostic of abuse. The jury must have accepted his evidence over that of the paediatric registrar on the issue of whether or not the additional injuries were new. 11. Against that background we turn to the one ground of appeal. It is accepted that what B told A and her mother about what the applicant had done to him was hearsay. The prosecution argued that it was in the interests of justice for the evidence to be given. In other words, they relied on the statutory exception to the rule against hearsay in section 114(1)(d) of the Criminal Justice Act 2003. The judge went along with that argument. The argument that the judge was wrong to do so has two strands to it: first, the evidence against the applicant was based solely or to a decisive degree on what B had told A and her mother; secondly, what B had told them was too unreliable and inconsistent for it to have been considered by the jury. 12. The rule that hearsay evidence will not be admitted if the case against the defendant is based solely or to a decisive degree on that evidence comes from the decision of the European Court of Human Rights in Al-Khawaja and Tahery v The United Kingdom (2009) 49 EHRR 1. Both the Court of Appeal and the Supreme Court in R v Horncastle ([2009] 2 Cr App R 15 and [2010] 1 Cr App R 17) declined to follow that rule. The European Court reconsidered that rule in the light of that criticism, and only last Thursday the Grand Chamber handed down its decision. In short, it held that a conviction based solely or to a decisive degree on the statement of an absent witness would not automatically result in a breach of Article 6 of the Convention, but there would be a breach in any particular case unless there were counter-balancing factors, including strong procedural safeguards, to compensate for the difficulties caused to the defence and the danger of relying on hearsay evidence. 13. In the present case, the judge found that what B had told A and her mother was not the sole evidence against the applicant, nor even that the case against the applicant was based to a SMITH BERNAL WORDWAVE decisive degree on it. We agree with the judge. We think that it would have been open to the jury to convict the applicant even without the evidence of what B told A or her mother about what the applicant had done to him. Once the many injuries which had been seen by the paediatric registrar on 19 February were regarded as having been caused non-accidentally, the only possible candidates for causing those injuries were A, her mother and the applicant. Both A and her mother gave evidence that it had not been them. If the jury believed them, it had to have been the applicant who was responsible. Mr Roger Sahota for the applicant made the point that their evidence was unreliable for a number of reasons which he summarised in his skeleton argument, but that did not meet the point that if their evidence was believed, it could hardly be said that the case against the applicant was based solely, or even to a decisive degree, on what B had told A and her mother. 14. We turn to consider whether what B told A and her mother was too unreliable and inconsistent with other things which B had said for it to have been considered by the jury. We have already said that we do not regard what B told A in June 2010 about his black eyes having been caused by the doctors as necessarily indicating that B was unreliable. However, the three incidents in December 2010 and January and February 2011, about which B told A or her mother, were all retracted by A at some time or another. Indeed, the prosecution acknowledged that B's accounts of these incidents were inconsistent and unreliable. The judge said as much in his ruling, and added that the fact that B's accounts were inconsistent and unreliable was a significant factor which had to be borne in mind. 15. On the other hand, B's reliability or unreliability was just one of the many factors to which the judge was required by section 114(2) of the 2003 Act to have regard. In his ruling the judge went through them all. He regarded what B had originally told A and her mother (assuming it to be true) to be highly probative of whether his injuries had been caused by the applicant. He concluded that there was other evidence which, if true, pointed towards the applicant as having been responsible for those injuries, namely the evidence of A and her mother. He thought that what B had told A and her mother was important evidence in the context of the case as a whole, since B was the victim of the very offence with which the applicant was charged. When it came to the circumstances in which B was alleged to have told A and her mother what the applicant had done to him, the judge acknowledged that the jury would have to consider whether B had been coached by them as to what he should say to the paediatric registrar or to the police. But equally the jury would have had to consider whether B had been told by the applicant at the time to retract what A and her mother said he had previously told them. When it came to whether B had really said to A or her mother what they claimed he had told them, the judge acknowledged that that was a matter for the jury to assess in the light of the subsequent breakdown of the relationship between A and the applicant, and all the factors which went to their reliability as witnesses. But he observed that what B was supposed to have told them was repeated by B to the paediatric registrar. The judge understood why the prosecution thought it inappropriate to call someone as young as B to give evidence, and he acknowledged that that would make it more difficult than it otherwise might have been for the defence to challenge the truth of what B had said. But he concluded that that difficulty was outweighed by the other considerations which in his view militated in favour of admitting what B had told A and her mother. 16. In the light of that, we return to the judge's acknowledgement that B's accounts of the SMITH BERNAL WORDWAVE incidents were inconsistent and unreliable. In considering whether that should of itself result in a ruling that what B told A and her mother should not be admitted, the judge placed not inconsiderable weight on the Court of Appeal's judgment in R v J(S) [2009] EWCA Crim 1869. In that case a girl aged two and a half had suffered vaginal injuries consistent only with rape or penetration by an object or by a number of fingers. The only possible candidates were her stepfather or an unidentified intruder. The girl had said that her stepfather was nasty, and that he had hurt her by “smacking [her] foo-foo". But at other times she had also said that she loved her stepfather, that he had not hurt her, and that she had “smacked” her vagina herself. She had previously been seen trying to insert toy coins into her vagina. Despite the inconsistencies in what she had said had happened to her and in what she thought about her stepfather, and despite the obvious unreliability of what she had said, the Court of Appeal held that the trial judge had not erred in ruling the evidence admissible. 17. We recognise that that case was different from this because in the present case B is said to have complained about the allegations against the applicant to the two people who, apart from the applicant, were the only candidates for having caused the injuries. But the case nevertheless illustrates, in quite a graphic way, that inconsistencies in, and the consequential unreliability of, hearsay evidence is not itself a reason for ruling the evidence inadmissible. In our view, the unreliability of what B told A and her mother was a factor to which the judge had to give considerable weight. But it was not decisive, and we do not think that he erred in law in admitting it. It did not, in our judgment, render the applicant's conviction unsafe. So although we consider that the one remaining ground of appeal has been sufficiently arguable to justify granting the applicant leave to appeal, his appeal against conviction must be dismissed. 18. We turn to the application for leave to appeal against sentence. This was a bad case of child cruelty. As we have said, the paediatric registrar described the bruising as some of the worst bruising to a child that she had come across. Even if some of it was attributable to the rough and tumble of everyday life for an exuberant four year old boy, the extensive nature of the bruising was such that it was likely to have been caused on many occasions other than those of which B complained and A's mother saw. The judge described it as one of the worst cases of violence to a child that he had ever tried. In our judgment, the judge was right to regard the case as amounting to a series of assaults of the kind which brought it within the category of cases identified by the Definitive Guideline on Cruelty to a Child issued by the Sentencing Guidelines Council, for which the starting point was three years' custody with a sentencing range of two to five years' custody. What aggravated it was that the applicant was in a position of trust, and he had made what the judge described as “several successful attempts” to persuade B that he had not been responsible for B's injuries when in truth he had been. 19. In his sentencing remarks, the judge made the point that the applicant had not shown a hint of regret, let alone any remorse, for what he had done, and he had tried to put the blame on A and her mother from start to finish. The judge acknowledged that the applicant had no record for violence, that he was a hard-working man who had assumed responsibility for A and her children, and that they lived in cramped accommodation. Nevertheless, we can understand why the judge reached the conclusion that this case came at the top end of the bracket. 20. Mr Sahota has referred us to R v Lubwama [2007] EWCA Crim 538, which was one of a series of cases heard together which related to the problems which arise when the sentencing SMITH BERNAL WORDWAVE judge is mistaken about the court’s powers relating to dangerous offenders in the Criminal Justice Act 2003. In Lubwama, the offender had pleaded guilty to an offence of cruelty to a child, and had been given an extended sentence of seven years consisting of a custodial term of two years and an extended licence period of five years. The Court of Appeal quashed the extended sentence, and substituted for it a determinate sentence of two years' imprisonment. However, that case is very different to this. It involved a single incident of beating -- admittedly a very bad and prolonged assault -- and there had been a plea of guilty. In any event, sentencing in this difficult area of the law now has to have regard to the guidance from the Sentencing Guidelines Council which was issued in February 2008. Four years’ imprisonment was a tough sentence for the applicant, but we cannot say that it was too long. Accordingly, his application for leave to appeal against sentence must be refused. SMITH BERNAL WORDWAVE