Case No: 2001/0949/S2 
Neutral Citation No: [2002] EWCA Crim 2878 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL 
(CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:11th December 2002 

Before :
The Vice President of the Court of Appeal Criminal Division
(LORD JUSTICE ROSE)

MR JUSTICE GIBBS
and 
MR JUSTICE DAVIS
-	
 
 R
  v
K

	

Mr A F Jennings QC, Mr D Friedman & Miss T Tagon appeared for the appellant
Mr N C Campbell QC & Dr T Dempster appeared for the  Crown

Hearing dates : 26th November 2002 
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

The Vice President:

1.	On 29th May 1998 at Leeds Crown Court, following a trial before His Honour Judge Myerson QC, the appellant, who was then aged 12, was convicted by the jury of rape.  He was subsequently, when aged 13, sentenced to 3 years detention under s53(2) of the Children and Young Persons Act 1933.  A co-accused JB, also aged 13 at sentence, pleaded guilty to indecent assault and was sentenced to 12 months detention under s53(2).  
2.	The appellant applied for leave to appeal against conviction but this was refused by the single judge and not renewed.  He now appeals against conviction on a reference by the Criminal Cases Review Commission under s9 of the Criminal Appeal Act 1995, dated 15th February 2001.  
3.	It was alleged that the appellant raped 5 year old KJ who lived with her grandmother Mrs B, her husband and her children, one of whom was the co-accused, her uncle, JB.  It was common ground that, on Sunday 14th September 1997, KJ, JB and the appellant, who was his friend, went to the local cemetery to play and were there for about an hour.  KJ said both boys had sex with her and the appellant had hurt her.  Afterwards, Mrs B noticed blood on KJ’s knickers.  The following day, in drink, Mrs B made a complaint to the police referring to  “Jimmy” which was the first name of both JB and the appellant; but she added that Jimmy lived with her, which could only have been a reference to JB.  Medical examination of KJ was consistent with blunt penetrating trauma to the hymen and there were also signs of previous anal abuse.  KJ’s lack of distress, over familiarity with strangers and use of language and behaviour beyond her level of maturity indicated that she may have been subjected to previous sexual abuse.  JB was originally charged with rape but the prosecution accepted his plea of guilty to indecent assault and he agreed to give evidence for the prosecution against the appellant.  The appellant denied rape.His defence canvassed the possibility that KJ had fabricated her allegations, that it was JB, not the appellant, who had assaulted her and that she had witnessed and/or been told about other incidents of sexual misconduct which she had incorporated into her account against the appellant.    
4.	When KJ was interviewed on video on 16th September 1997 she said that JB and the appellant had had sex with her.  The appellant told her that if she did not do it twice he would throw all her stuff in the fire which the boys had lit.  When asked what having sex meant she said “they did rudies with me” “laying on top of me and getting their willie out” “then pushed it into me in my hole” pointing to her vagina.  The appellant hurt her.  JB did not.  She talked about other occasions when JB had done things with other children.  The appellant lay on top of her first and said “can I have your lighter, jumper and watch” and then JB took his jumper off and gave it to the appellant who threw it on the fire.  JB said “if you tell somebody we did this to you then the appellant won’t be your boyfriend anymore”.  She was telling them to get off her and saying she would tell her nana.  In cross-examination, she denied that, on the way home, she and JB had agreed that she would say both boys had done it.  She said that someone called Chris had also done it to her.  She said she knew what a condom was and where it went.  She had seen one.  She denied putting her fingers inside herself causing her own injuries.  
5.	JB described going to the cemetery with KJ and the appellant, with whom he had been friendly for years.  He lit a fire.  He took his top off because it was hot, left his money and cigarettes on top of his jumper and went off out of sight of the others for 5 minutes to collect wood.  When he returned KJ’s trousers were down to her knees.  The appellant asked him if he wanted to do it to KJ and he said “no”.  The appellant said he would burn JB’s clothes if he did not do it after him: so the appellant went first and he JB did it, moving up and down on her.  The appellant moved up and down twice, got off and told JB to do it so he did.  He did not think his penis went inside.  It was not erect although it was near to her vagina.  The appellant got on top of KJ again and moved up and down twice.  KJ screamed “Ouch” and moved her head and arms up.  Both boys told KJ not to tell anyone.  He and the appellant went home, followed by KJ.  The boys went to the appellant’s first.  When JB got home his mother set about him.  He had never seen KJ with her fingers inside herself.  He had never heard of Chris.  He had never been in any trouble about girls previously and had never done anything to Izabel or Mandy (KJ’s aunt and sister respectively ).  When he told the police that he and the appellant had told KJ to take off her clothes and put her fingers inside herself this was untrue.  He lied to the police because he was scared.  He said she had put her fingers up herself to account for the bleeding which his mum had told him about.
6.	Mrs B gave evidence that the children came home about an hour after going out to play.  JB came in without the appellant and went upstairs.  Then KJ came in and said that JB and the appellant had hurt her.  Mrs B asked why.  KJ said they had been playing mummys and daddys in the den and the appellant said he would show what daddys did to mummys.  In cross-examination she said that when KJ told her what had happened she hit JB and then went over to the appellant’s house.  She asked the appellant where his parents were.  He said they were not in.  She said “you know what you have done and it will be bad when they come home”.  Later, the appellant and his mother came to Mrs B’s.  She called KJ who said they had been to the cemetery and hurt her playing mummys and daddys.  The appellant looked surprised and said he did not do it.  His mother said that her son would not do anything like that.  They left.  When she bathed KJ she saw blood on her knickers and washed them.  Next day she spoke to her daughter, KJ’s mother.  She got very drunk and rang the police, encouraged by her daughter.  Although the police log referred to only one “Jamie”, Mrs B said she had mentioned them both.  When she had asked KJ what daddys did to mummys she had said “they hurt you down below”.  Her son lied sometimes, but he could not lie to her.  She thought both boys were equally to blame. 
7.	The evidence of two doctors who had examined KJ was read to the jury.  Dr Moya, a senior registrar, examined her on the evening of 15th September.  She was confident, co-operative and friendly.  There were circular bruises around her legs and two parallel linear marks about 2 or 3 centimetres long on her left thigh.  On her genitalia there was fresh bruising to the left labia minora and an irregular opening of the hymen at the six o’clock position and possibly one at the nine o’clock position.  The injuries were compatible with a recent penetrating injury.  Dr Thomas, a consultant paediatrician, saw KJ the next day.  There was bruising on her back and when asked what had happened she said “Jamie battered me”.  By reference to bruising on her arm she said that Jamie had grabbed her there.  Other bruises were due to falling over.  As to her genitalia, there were two areas of pinpoint bruising along the margin of the left side of the hymen, a sharp notch at six o’clock extending into a 2-millimetre scar surrounded by bruising.  Two flaps of hymen separated to reveal an inner vaginal ridge.  Anal examination revealed laxity with prominent veins and venous congestion which were supportive signs of anal abuse.  The bruising to the arm, back and left knee were consistent with fingertip bruising but the fresh bruising to the hymenal edge and tear in the process of healing to the hymen were consistent with blunt penetrating trauma.  The complainant’s behaviour, lack of distress, over familiarity,  use of language and behaviour beyond the level of her maturity were worrying and may suggest she had been sexually abused previously.
8.	On 16th September, JB and the appellant were arrested and interviewed.  The appellant said that, when he was up a tree trying to fix a board, he heard KJ saying she needed a wee and then heard JB telling her she had to pull her pants down.  When he came down from the tree, JB told him that she had been putting her finger up herself.  They all went home.  The appellant had done nothing to KJ.  The appellant was interviewed again after the police had seen the video interview of KJ and had interviewed JB under caution.  The appellant said JB was trying to persuade him to do it with KJ and had offered to give him his watch and lighter if he did, but he did not.  They lit a fire and he the appellant took the board up a tree for a roof.  Then he heard KJ saying she needed a wee and JB told her to take her pants down.  The appellant was not sure if he heard JB tell her to put her fingers up herself because he was snapping branches.  When he came down, he saw KJ pulling up her pants.  JB offered the appellant his watch and lighter if he did it with KJ and said he would do it straight after.  The appellant refused because she was only five and he was not like that to five year olds.    When asked when JB told her to take her pants down the appellant thought it was because she was doing a wee in a pot to put out the fire.  JB asked KJ if she would do it with him if he told her to do it and she said “yeah”.    The appellant went away and climbed the tree.  He saw nothing but heard “put your fingers up yourself”.  The appellant was a bit curious, but did not want to have a look because he did not like seeing girls naked.
9.	The appellant gave evidence before the jury.  Having described how they went to the cemetery and lit a fire, he said he went away on a few occasions, once for about 5 minutes.  When he returned, the other two were at the fire.  KJ had been told to wee in a pan to put the fire out.  JB said to KJ “if I asked you to do it with me would you?”. She said “yeah”.  The appellant said nothing.  JB said to the appellant “if I give you my watch and lighter to do it with our KJ you can throw them on the fire if I don’t do it after you”.  The appellant said he would not do it because she was too young.  He said he wanted to make a den and went to get some wood.  He put some on the fire and took a big bit into the tree to make a roof.  He heard KJ say she needed a wee and JB told her to take her pants down and to put her fingers up herself.  The appellant came down from the tree after about five minutes.  He put some wood on the fire.  He did not do anything to KJ.  He did not see JB do it.  The appellant and JB went to the appellant’s house and then JB went home.  KJ went to her house.  In the evening, Mrs B came round and said she was ringing the police on him and she walked off.  Later Mr B came and told him to stay away from their house.  He was never told what it was said he had done.  There was no meeting between himself, his mother and Mrs B.  He found out what it was about when his mother questioned him.  She said that Mrs B was saying he and JB had done something to KJ in the vagina and she was bleeding.  The appellant said he did not do it.  He told his mother that he was up a tree.
10.	Mr Anthony Jennings QC, who did not appear in the court below, advances 5 grounds of appeal.  First, evidence material to the appellant’s case in existence at the time of trial should have been disclosed to the defence.  Secondly, fresh evidence has come to light since the trial material to the appellant’s case.  Thirdly, the judge was wrong to direct the jury that the medical evidence was capable of supporting the complainant.  Fourthly, the judge’s warnings about the evidence of KJ and the accomplice JB were inadequate.  Fifthly, the judge’s direction as to the appellant’s good character was inadequate.
11.	Grounds 3,4 and 5 can be dealt with shortly.  We find no substance in these complaints about the summing-up.  In relation to the evidence heard by the jury, the judge’s reference to the medical evidence was accurate and appropriate.  Bearing in mind the evidence of blood on the complainant’s knickers, the judge was entitled to say that the medical evidence, if accepted, showed that something was put into KJ that day.  He warned the jury sufficiently that they should hesitate before acting on KJ’s account alone “bearing in mind her age let alone anything else”.  He reminded the jury that  KJ may have suffered anal abuse on other occasions and this may account for her attitude; and he reminded the jury to approach JB’s evidence with caution as he might wish to get himself off more lightly and had not been sentenced.  His direction about the appellant’s good character dealt, economically, with credibility and propensity and was not undermined by his reference to the youth of the appellant.
12.	No doubt the summing-up would have been different in relation to the medical evidence and the caution necessary before relying on the evidence of  KJ and JB, had the jury heard the evidence which has been placed before us.  But that evidence affords no basis for criticising the summing-up.  Whether, in itself, it affords grounds for regarding the verdict as unsafe,  we now consider.  
13.	As to grounds 1 and 2, and the material which is before this court which was not available at trial, which we admit under s23 of the Criminal Appeal Act 1968 as amended, Mr Jennings does not seek to blame the prosecution for non-disclosure, but focusses on the effect which such material might have had on the jury.     He submits that it would have been impossible, in the light of this material, for the judge to describe KJ as a typical five-year-old and the jury’s approach to her evidence and that of JB might well have been different.  There is a great deal of material held by Social Services, in relation to which PII was properly claimed, which has been disclosed for the purposes of this appeal.  It demonstrates that the family to which KJ and JB belong is seriously dysfunctional and marked by sexual abuse.  But we reject Mr Jennings’s submission that, had this material been available at trial, it would have been permissible to embark on a trawl through the family history from 1985 onwards.  The issue in this case was who was responsible for the penetrative injury to KJ which had occurred during the space of about an hour while the three children were at the cemetery.  Whatever the history of familial abuse, it is fanciful to suggest that the girl’s condition on the evening of 15th September might have been due to an adult or, indeed, the conduct of anyone other than these three children.  The jury knew, from Dr Thomas’s evidence, that KJ may have been sexually abused previously, but, save to the extent that this bore on her credibility, this had no bearing on events in the cemetery.
14.	It is, however, necessary to refer to some of the new material bearing directly on JB and KJ.  
15.	As to JB, it is apparent that, on some fifteen occasions between the beginning of November 1997 and the trial, he had discussed the incident with various carers.  Mr Jennings submits that this may have given rise to inadvertent coaching of JB.  Of more substance than this complaint, however, is the material in contemporary documents, now disclosed, which contain JB’s account of events.  On 17th September 1997 he “admitted raping his 5 year old niece”.  On 21st October 1997 he was recorded as saying, “JK did it once.  His penis went in and out of her once.  No noise at all.  K was alright.  I don’t think his penis was erect, mine wasn’t anyway.  JK got off I got on and did it once, went in and out of her with my penis”.  Was your penis erect then?  JB “no”.”  A subsequent statement by Karen Cowell, the author of these two documents, claims that JB did not admit rape and this was sloppiness of language.  But, whatever her subsequent interpretation of these documents, there is no doubt that, had their existence been known to the defence at trial, they could have assisted  cross-examination of JB.  Furthermore, a psychiatric assessment of JB on 13th May 1998 (shortly before the trial) noted “Jamie says he “always” lies.  He gets “caught every time”.  He has to avoid the consequences of his behaviour and can blame others.  He can also tell stories that are not based on truth”.  On 24th June 1998 a hand-written note by a member of a Youth Justice team dealing with JB says “a very troubling session when it seemed Jamie was saying things that contradicted the unplannedness he has consistently claimed….We are all concerned that we are not colluding with his lies”.  On 1st July 1998 another note from the Youth Justice team refers to an account by JB “which seemed to suggest a much more active role than Jamie has so far claimed, preferring to put all of the blame on the other boy.  Eventually Jamie lapsed into sulks and protestations of “I’m not bothered”.”  These two post-trial documents generate a degree of unease when this court has to consider whether the jury had a sufficiently full picture of JB’s potential unreliability.  There is, of course, no doubt, as Mr Campbell QC for the Crown, points out,  that the reliability of JB was substantially challenged at trial and the jury were warned to approach his evidence with caution.  But it seems to us that the new pre-trial material to which we have referred would not only have added considerable weight to cross-examination as to JB’s reliability, but also, because of the admission of rape; would have significantly bolstered the defence.  The post-trial material is very damaging to JB’s credibility.  
16.	We turn to KJ.  Unknown to the defence at trial, Dr Thomas, whose evidence was read to the jury, continued to care for KJ.  She examined her on 30th September 1997 and remained concerned in relation to her “overly mature behaviour”.  At a child protection conference on 10th November 1997 a report from her was read which said she may have been exposed to more chronic sexual abuse.  Her foster carer also referred to KJ having a boyfriend, talking about shagging and kissing and kissing dolls between their legs and the breasts of women pictured in newspapers.  Mr Jennings submits that, if this material had been available at trial, when the judge referred to KJ’s account that “they did rudies with me” he would not have made the comment “it may be that gives you some sort of idea of the extent of the knowledge that she did have”.  Furthermore, the defence did not have, at trial, the details contained in a police report dated 14th August 1997 which recorded two complaints by Mrs B’s daughter Izabel that she had been sexually assaulted in the cemetery on the 13th and 14th August 1997 by a sixteen year old called Chris who lived at Gipton.  JB was said to have been present.  A medical examination on 15th August found damage to her genitalia consistent with her account.  On 4th and 24th March 1998, that is before the trial, KJ claimed, to a social worker, that she was present when Chris had assaulted Izabel and gave an account of a more serious incident, which included Chris having sex with both Izabel and KJ and inserting a finger in Izabel.  In her evidence at trial, KJ claimed, for the first time in connection with these proceedings, to have had sex with a twelve-year-old called Chris on the day before the alleged rape.  She made no mention of Izabel having sex with Chris nor of JB being present.  After the trial, on 17th August 1998, she was continuing to say that an unknown teenager called Chris, who had digitally penetrated Izabel, had abused her too; also, that she had seen JB put his willy in a girl called Sophie.  Yet, on 17th April 1998, Mrs B had said that KJ was shopping in town when Izabel was abused by Chris.  A post-trial psychological report on KJ by Dr Lucey dated 24th November 1998 also contains material casting doubt on her veracity.  We bear in mind that Mr Campbell QC questions the extent to which it would have been possible at trial to investigate events on 14th August.  But the pre-trial material would have provided a formidable additional basis for cross-examining KJ and JB and the judge is unlikely to have invited the jury, as he did, to bring their “experience of the behaviour of small children and complaints of small children to bear” on their decision.  The post trial material reinforces doubts about KJ’s reliability and the possibility of fabrication by her.  
17.	In the light of these matters,  we take the view that, if there had been cross-examination based on the undisclosed pre-trial material to which we have referred, the judge would probably have given a stronger warning about the reliability of KJ and JB and a stronger direction as to the defence case that JB was the rapist.  In any event, with or without such directions, the jury’s verdict might have been different.  The post-trial material also engenders doubt in this court as to the safety of the conviction in a case which was highly unusual, in view of the ages of the three children and the abnormal sexual background of the two who gave evidence for the prosecution.  Accordingly this appeal is allowed and the conviction quashed.