Neutral Citation Number: [2006] EWCA Crim 1079
Case No: 2005/2239/B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORWICH 
His Honour Judge Barham

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/05/2006
Before :

THE PRESIDENT OF THE QUEENS BENCH DIVISION
MR JUSTICE MACKAY
and
MR JUSTICE GROSS
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Between :

	R 		
	v		
	CARD		

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Mr M McNiff (instructed by the Registrar of Criminal Appeals) for the Appellant
Mr W. Carter (instructed by the CPS) for the Crown

Hearing dates : 6th April 2006
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Judgment
President of the Queen’s Bench Division: 
1.	This is an appeal by Clifford Card against his conviction at Norwich Crown Court, before His Honour Judge Barham and a jury, on count 2 of a two count indictment alleging sexual assault, on a child aged under 13 years.  He was acquitted of count 1, an alleged sexual assault on a different child, by direction of the judge at the close of the prosecution case.  Count 1 related to a child named Monica, aged 5 years and count 2, to Andrew, her older brother, aged 10 years.  Although separate incidents were alleged, both were said to have taken place on the same date, 16th August 2004, at the same place, their home, when a number of adults, including their mother, was present.
2.	The appellant was a man with previous convictions for very serious sexual offences involving both boys and girls.  In March 1993 he pleaded guilty to seven offences of sexual crime between 1975 and 1982.  There were three victims, two boys and one girl, whose ages ranged form 9 to 12 years.  The offences included rape, buggery and indecent assault.  In May 2000 the appellant pleaded guilty to indecent assault of a girl of 9 years, and taking an indecent photograph of the same child in the previous January.   None of the details of these offences require recital.
3.	The convictions were admitted under section 101(d) of the Criminal Justice Act 2003, as relevant to the defendant’s propensity to commit offences of the kind with which he was charged.  In making his ruling Judge Barham rejected an argument based in R v  Hanson (2005) 3 CAR 21, then recently decided, that it would be unjust to admit the convictions because the prosecution case against the appellant was a very weak one.  He rejected a further argument based on evidence of contamination between or among prosecution witnesses. Although Mr McNiff for the appellant, criticises the exercise of the judge’s discretion to admit evidence of the appellant’s convictions, it would be convenient at this stage to examine the remaining evidence called at trial. From the point of view of the prosecution this turned out to be more problematic than anticipated.
4.	Monica and Andrew lived with their mother, and her then partner, and their two other siblings.  At the time when the sexual assaults on them were said to have taken place, their mother and other adult family friends were present at their home.  
5.	Monica gave evidence in chief via pre-recorded video that she was touched by the appellant in the area of her vagina, both outside and inside her clothing.  When she was cross-examined, she accepted that she often made up some things, and that she had indeed made up some things about the appellant.  On the night of the alleged assault itself, she also said that the defendant had removed her from her bed and taken her downstairs and kissed her all over her body in the presence of other people, including her mother, her mother’s partner, and a family friend Kelvin Barker.  No one else witnessed any such incident.  She also said that the appellant had kissed her on the bottom of her leg while she was alone in the kitchen dancing, but, inconsistently with her complaint, that he had not touched her at any time when she was with Kelvin Barker.  
6.	Monica maintained her allegation of sexual assault by the appellant.  However she added that after the appellant had left the house, she, together with her mother, Andrew and Kelvin Barker sat down and  talked about what they were all going to say to the police.  During this conversation, according to Monica, her mother told them that she too had been touched by the appellant.  In her evidence Monica also said that she did not know why she said that the man had touched her everywhere, save that it was what her mother had told her to say, and although the word “touched” was used throughout her video recorded interview, it was not a word she herself usually understood or used. Again, it was what her mother told her to say.
7.	Andrew also gave evidence in chief by pre-recorded video.  Essentially he alleged that he was sitting on his bed when the appellant came into his room and touched him over his shorts on his penis.  In cross-examination he agreed that he had made things up about the appellant. He claimed he could see ghosts and that he was a medium.  He denied that the appellant had ever put his arm around him and cuddled him while they were in the bedroom, and asserted that there was no one in the room at any time except for him, the appellant, and his guardian angel.  He confirmed that his mother had told him what to say, and that he had become confused about the time of events because he had forgotten what she had told him to say.  When he told his mother that the appellant had touched him on his private parts, she replied “excellent”, and she was very kind to him. He said that his mother stated that she would do anything to get the appellant’s home. He denied that the appellant had said to him, “Don’t tell anyone.  This is our little secret.  I could get into a lot of trouble”. Andrew confirmed that, after the appellant left the house, there had been a discussion during which his mother had told him how she had been sexually abused, including the way in which she had been touched, and that Monica and Kelvin Barker had been present during the discussion.  He believed that he was saying what his mother had told him to say. 
8.	His mother was called.  She gave evidence that the appellant had arrived at her home at 9 o’clock in the evening on the day of the alleged assaults.  He had been drinking, and went out to buy some more drink, taking Andrew with him.  On their return to the house, it emerged that Andrew had hurt his knee, and he went to his bedroom, crying.  She said that she noticed the appellant with Andrew in Andrew’s bedroom, with his arm around Andrew’s back and his hand on his knee.  She asked Andrew if he was all right, and the appellant said that he would look after him.
9.	In cross-examination she gave evidence that the appellant had showed her child pornography, but that she had not thought this important, and indeed had forgotten about it,  so she did not see the need to tell anyone about it, or indeed to stop the appellant from visiting her or her family. Nevertheless she asserted that as a direct consequence of the material the appellant had shown her, she had decided that the appellant should never be left alone with any of her children. However she was unable to explain why, having made that decision, she then allowed the appellant to visit the home, take Andrew out, and indeed be left alone with any of her children, or with Andrew in his bedroom at the time when Andrew needed comforting.  Even when she saw the appellant with his arm around Andrew’s back, she did not feel any need to go into the bedroom to discover what was going on.  She denied that she told her son what to say, or that she had had any discussion with either child about what had happened to them, or indeed what had supposedly happened to her when she was younger.
10.	Kelvin Barker spoke of going upstairs and overhearing the appellant saying to Andrew, “Don’t tell anyone.  This is our little secret.  I could get into a lot of trouble.”  With that he went downstairs, and told Andrew’s mother. The appellant was asked to leave, and the police were called.
11.	During his cross-examination he said that he could not see and had not seen into Andrew’s bedroom, and only heard what was said.  He had seen the appellant clumsily touching Monica’s leg when he, Kelvin Barker, was carrying her.  There had been some earlier harmless play with food, and the appellant had said that he could lick the cream off her.  However, he had not put his hand up Monica’s skirt, or touched her private parts.  Monica had not complained to her mother that the appellant had touched her private parts, but simply that he had touched her leg.  He had confirmed that account of events to Monica’s mother at the time.  He also said that Monica’s mother was the first person to allege that the appellant had touched Monica anywhere other than on the leg.  
12.	When interviewed the appellant denied the allegations against him.  He said that he had met the family some two months prior to the alleged incident, visiting their home to fix a computer.  The children’s mother had visited his home with a view to possibly renting it.  He went to the children’s home on 16 August to fix the laptop, and after working on it, he went to the supermarket to buy some drink.  Andrew went with him.  They returned to the house, when all present had a drink, although nobody was drunk.  He said that he could not recall the time when he was alone with the children, and he only went into two rooms that evening, the kitchen and the master bedroom.
13.	At the close of the prosecution case, it was submitted that there was no case to answer on the basis of the well known “second limb” identified in R v Galbraith, and further, that the judge should direct the jury to acquit the appellant on the basis that the evidence was “contaminated” for the purposes of section 107 of the 2003 Act.  The first submission was familiar enough, but when the judge was considering the second submission he was dealing with new legislation, without assistance from decisions of this court.  
14.	On the basis of the Galbraith submission, the judge concluded that the count involving Monica should be withdrawn from the jury, but that the case relating to Andrew should be allowed to proceed.  The ruling relating to Monica proceeded on the basis that there was only one occasion of sexual assault, and only one occasion when that assault could have taken place. This was when Kelvin Barker was holding Monica and the incident described by him occurred.  The judge noted that at the beginning of the prosecution case, the allegation was that the appellant had touched Monica on the vagina both outside and inside her clothing, but by the close, it was contending that either Monica was correct, or Kelvin Barker was correct, but they could not both be correct.  Accordingly the jury should convict if satisfied about either version.   However, the judge concluded, rightly in our judgment, that there were so many unsatisfactory features of the evidence relating to this account that it should be withdrawn from the jury.  
15.	That left count 2, of course, a separate count requiring separate attention.  The judge’s ruling in relation to the submission that there was no case to answer proceeded on the basis that, ignoring the appellant’s previous convictions, there were two pieces of possible, independent, supporting evidence.  These were Kelvin Barker’s account of having heard the appellant speak to Andrew about the “little secret”, and Andrew’s mother’s account of what she had seen the appellant doing in Andrew’s bedroom. This in the end, as the judge accepted, might indeed be a perfectly innocent action for which there was an innocent explanation.  So what in fact was left was the defendant’s denial in interview of having been in Andrew’s bedroom at all, which if the mother was telling the truth, was a lie.  The judge concluded that there was a case to answer.  The jury could safely convict.  
16.	He then turned to the argument based on section 107.  The judge expressly reminded himself of the terms of section 107(1) and (5), and it is now convenient to set them out. Headed, “Stopping the case where evidence is contaminated”, section 107(1) provides:
“If on a defendant’s trial before a judge and jury for an offence  
a)	evidence of his bad character has been admitted under any of paragraphs (c)-(g) of section 101 (1), and
b)	the court is satisfied that any time after the close of the case for the prosecution that
i)	the evidence is contaminated, and
ii)	the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a re-trial, discharge the jury.”  
Section 107(5) provides:
“For the purposes of the section a person’s evidence is contaminated where
c)	as a result of an agreement or understanding between the person and one or more others, or 
d)	as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings,
the evidence is false or misleading in any respect, or is different from what it would otherwise been. ”

17.	The judge simply said that he was “not satisfied” of what he described as the “test” provided in section 107(1), adding,
“…. that a jury properly directed could safely convict, despite the submissions in relation to s 107 of the Criminal Justice Act 2003”.
In his short ruling the judge did not discuss whether the evidence was uncontaminated, nor state expressly whether he was reaching his conclusion on the basis that such evidence of contamination lacked the appropriate levels of significance for the purposes of section 107.  Following the judge’s ruling the appellant did not call or give evidence. 
18.	Both conclusions reached by the judge in relation to count 2 are criticised by Mr McNiff.  His first complaint is conventional and familiar.  In our judgment, although the trial judge is not required to shut his mind to obvious deficiencies in the evidence called by the prosecution, in the final analysis, when reaching his decision he should bear firmly in mind that the decisions about the facts, in particular which witnesses are to be accepted and which rejected, are for the jury.  He must not usurp their function.  We can find no basis to justify interference with this aspect of the judge’s decision.
19.	We must now come to section 107 issues.  In enacting section 107, Parliament, at least in part, adopted the proposal of the Law Commission (Evidence of bad character in criminal proceedings, Law Com. No 273, October 2001, Cm 5257) that the position of the defendant whose “bad character” had been put in evidence, should be safeguarded by the requirement that the judge should stop the trial if the evidence in support of the prosecution may have been contaminated. For the purposes of section 107 contamination may result from deliberate collusion, or the exercise of improper pressure, but it may equally arise innocently, or through inadvertence.  Moreover, contamination issues extend to evidence of bad character in the broad sense, as well as to unequivocal evidence of bad character arising from unchallenged, and usually unchallengeable, evidence of previous convictions.
20.	The direct concern is not the admissibility of bad character evidence (as to which, see  R v H (1995) 2 AC 596), but rather the consequences of its admission.  Strikingly, the unusual feature of section 107 is that after the admission of evidence, a duty is imposed on the judge to make what is in truth a finding of fact.  Plainly if the case goes to the jury issues such as contamination and collusion will be left to them in the familiar way, with appropriate directions and warnings.  But the decision at the end of the prosecution case, or indeed at any later stage in the trial, whether the evidence of a witness is false, or misleading, or different from what it would have been if it had not been contaminated, requires that the judge should form his own assessment, or judgment, of matters traditionally regarded as questions of fact for the exclusive decision of the jury.
21.	We have reminded ourselves that in enacting this Part of the 2003 Act,
“ Parliament’s purpose…is to assist in the evidenced based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice.”  (per Rose LJ in R v Hanson )
The effect of section 107 is to reduce the risk of a conviction based on over-reliance on evidence of previous misconduct and acknowledges the potential danger that, where the evidence is contaminated, the evidence of bad character  may have a disproportionate impact on the evaluation of the case by the jury. In other words the dangers inherent in contamination may be obscured by the evidence of the defendant’s bad character.  
22.	The duty under s 107 does not arise unless the judge is satisfied that there has been important contamination of the evidence.  If he is so satisfied, what then follows is not a matter of discretion.  The consequences are prescribed by statute.  Whether or not there would on the conventional approach be a case to answer, the trial should be stopped.  The jury must either acquit the defendant in accordance with a judicial direction, or if the judge considers that the case ought to proceed to a re-trial, the jury will be discharged from returning a verdict and a retrial  ordered. The order for re-trial in these circumstances would not normally be susceptible to a subsequent application based on an asserted abuse of process.  Unless something fresh emerges, that would amount, in effect, to an appeal from the decision of the judge who, with all the relevant considerations in mind, had ordered a retrial.      
23.	In future, we suggest that when, in answer to a submission by the Crown at the start of the trial that the defendant’s previous bad character should be admitted before the jury, counsel for the defendant (as here) makes a responsible submission that there is material in the prosecution case itself to suggest that there was or may have been witness contamination, it would normally be sensible for the judge to postpone a decision until the suggested contaminated evidence has been examined at trial.  If the decision  to admit bad character evidence were postponed until the evidence of the complainants, and any other witnesses, were concluded, the judge, when deciding whether to admit the evidence of bad character, would have well in mind the precise details of the evidence actually given, with such weaknesses and problems as may have emerged.  He would not then be acting on his judgment about anticipated evidence, but making a decision based on the evidence itself.
24.	We must return to the present appeal. We immediately acknowledge the force of Mr Carter’s submission that the judge’s decision about the facts should normally be supported.  Unless the judge has misdirected himself, or his decision is plainly wrong, we should not interfere with it.  We have borne this well established principle in mind.  
25.	Mr McNiff submitted that the judge failed to appreciate the cogency of the evidence of contamination.  It was not simply, as the judge’s ruling appears to suggest, that Mr McNiff was arguing that contamination was established by the evidence from both children of the discussion which took place after the defendant had left their home, and before the police arrived.   No one would be likely to conclude from the creation of a safe protective zone for children in their own homes that contamination should be inferred. Mr McNiff’s submission went much further.  He pointed out that the judge’s analysis of the evidence itself was very brief, and suggested that it would be difficult to avoid the conclusion that in reality his decision was influenced by his earlier conclusion that there was a case for the defence to answer. The question whether there was contamination was simply not sufficiently examined.  
26.	We must analyse these submissions in their factual context.  The first complaint was made by Monica.  She said that the appellant had touched her leg.  That complaint was consistent with what Kelvin Barker reported, that the appellant had touched Monica’s leg.  So he had seen the whole of the incident itself, and his account was entirely consistent with Monica’s immediate complaint.  By the time the matter was being reported to the police, the incident described by Monica herself had developed into sexual assault in which the appellant had touched her vaginal area both over and within her knickers.  The judge paid close attention to and was troubled by this evidence when deciding that the count involving Monica should be withdrawn from the jury. Perhaps, having the reached the conclusion that the relevant count should be withdrawn from the jury and an acquittal directed, he failed sufficiently to appreciate the significance of this complaint in the context of the contamination issue.
27.	Kelvin Barker’s evidence confirmed that the first person to mention that Monica was touched in her vaginal area was her mother, something the mother flatly denied.  Both complainants confirmed in their evidence that they had sat with their mother at home and that she told them what to say.  Monica said that her mother had told her to say that the man had touched her everywhere, and Andrew said that he believed that he was saying what his mum had told him to say.   Again, the mother denied this.  However the use by Monica of a word she did not understand, “touched”, and Andrew’s claim that he had been given information about sexual abuse that his mother claimed to have suffered, powerfully suggested that somewhere in the process, these children acquired more “information” than they possessed before the family discussion, while they were in the company of their mother before the arrival of the police.  The problem was not answered, as the judge appeared to suggested, because, notwithstanding his own evidence about what his mother had told him to say, Andrew nevertheless maintained that the allegation of sexual assault was true.   His assertion that it was true did not prove its truth, and more important, did not preclude contamination.
28.	In our judgment there was plain and unequivocal evidence that Monica’s evidence was different from what it would otherwise have been as a result of the conversations with her mother. The inference that Andrew’s evidence was different from what it would otherwise have been if he had not been present during the same conversation as his sister, in our judgment, was virtually inescapable. The excluding provisions in section 107 were established.  The jury should have been discharged.  In the light of this conclusion, and our earlier observations, we need not further address the question whether the decision to admit the evidence was flawed.
29.	In the result, we have concluded that this conviction is unsafe and must be quashed.  
30.	The appeal will be allowed.  The Crown does not seek re-trial and one would not be appropriate.