Neutral Citation Number: [2009] EWCA Crim 2688
Case Nos:  200803377B2 200905205B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 9 December 2009
 
B e f o r e:

LORD JUSTICE HUGHES
(Vice President of the CACD) 

MRS JUSTICE RAFFERTY 
 
MR JUSTICE HEDLEY 
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R E G I N A 

v 

(1) WILLIAM FREDERICK LOFTUS 
(2) CAROLE ANNE COMBEN
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Computer Aided Transcript of the Stenograph Notes of  
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Miss P Radcliffe appeared on behalf of the 1st Appellant
Mr I Ross appeared on behalf of the 2nd Appellant 
Mr C Gabb appeared on behalf of the Crown 
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J U D G M E N T

1.	LORD JUSTICE HUGHES:  The principal appellant, Loftus, was convicted on three counts of historic sexual abuse of his two stepdaughters.  The offences were said to have been committed in or about the late 1970s.  At that time, the girls were approximately 8 and 6.  No complaint was made to the police until 2006.  The Crown's allegations against Loftus were (1) repeated indecent touching of both girls under the guise of what was called the "spider" game; (2) a specific incident when he made both girls in each other's presence suck his penis; (3) a specific incident of rape of the elder girl when he got onto or into her bed in the room she shared with her younger sister; and (4) other similar rapes of the same girl in similar circumstances.
2.	Tried with Loftus was his partner of the time and the mother of the girls, Mrs Comben.  She was charged with (1) beating one of the girls in a specific incident involving a disagreement about ice cream; and (2) and (3) wilful neglect of each girl on the basis that she was present at the incident when Loftus was alleged to have obliged both the children to suck his penis, and, said the Crown, mother had done nothing to protect them, indeed had laughed at what she was seeing.  The jury convicted Loftus only of two specific incidents.  It convicted him of the specific oral sex incident and of the single count charging rape, when he had got into or onto the elder girl's bed.  It acquitted him, it follows, of repeated indecency towards both children in the form of the "spider" game, and also of successive and repeated rapes of the elder girl.  It was the fact that it was common ground and admitted by Loftus, the defendant, that there had been an incident when he had got onto, as he said, the girl's bed when she was in it, and had been driven from it by a combination of the child and the mother.  His case about it was that he must have been drunk, and in any event nothing of any sexual nature had happened.  
3.	What that means is that the jury was not sure about any of these allegations, except one where the incident in outline was admitted and the issue was what had happened in the course of it, and another where what was alleged was not a generalised assertion, but a highly particularised account given by both girls, and attended by considerable detail of the kind which the jury was entitled to treat as compelling.  
4.	Consistently with those verdicts in the case of Loftus, the jury convicted the girl's mother of the two offences of wilful neglect connected with the oral sex incident.  They also convicted her of the ice cream assault count, which was unrelated to any suggestion of sexual misbehaviour.  
5.	The background was an undoubtedly dysfunctional family in which there was, in neutral terms, violence and instability between the adults, frequent involvement of social services and other professionals, common absences when Loftus was in prison for various offences, and eventual separation in or about 1983.
6.	Miss Radcliffe, who did not appear in the court below, advances a number of partly separate and partly related contentions that the convictions recorded against Loftus are unsafe.  The principal of them relates to further research into the period in 1978 when the defendant was living with the family and when, as it transpired, the two incidents of which he was convicted seemed to have been committed.  
7.	It is known that the family moved house to Wimborne on 26 June 1978.  The elder girl's evidence was that offences of rape occurred there, and there was evidence, which the jury was entitled to accept, that the oral sex incident occurred there also.  It was known at the trial that Loftus had been sentenced to imprisonment on 16 October 1978 and had not been released until some time later, perhaps in 1981 or thereabouts.  It is now known that the offence which led to his sentence in October had been committed on or about 19 July.  What is more important is that it is now clear that, at least for most of the time thereafter, he was remanded in custody and could not have been at home.  He was certainly in custody by 26 July and may have been some days before that.  It follows that Miss Radcliffe's submission is that the available window of time for the offences of which he has been convicted and some of the others alleged is reduced from a little under four months from the middle of June to the middle of October, to something like three or four weeks from the end of June to the end of July.
8.	It is also clearly true that the complainants, now of course grown adults, were vague, to say the least, about dates, in some instances about the place, and about their ages at the material time.  That is perhaps wholly unsurprising given the passage of time, whether their evidence was truthful or invented.  However, it is plain that the trial was conducted on the basis that the relevant allegations related to the period before he was sent to prison in the latter half of 1978.  
9.	If the defendant had been convicted of a series of rapes, all of which had to be fitted into that period, the fact that it was reduced to something within a month might well have had significant impact, but the same is not true of the two particular offences where the jury was sure he was guilty.  Those clearly could have happened in this period.  Accordingly, the submission at point of departure, that by itself the newly researched information as to the date of imprisonment renders the convictions unsafe, cannot be supported.  
10.	However, Miss Radcliffe attaches to the new information about the time window a wide‑ranging band of complaints about the conduct of the trial, together with submissions that it would have been conducted differently if the more limited window of time had been known.  First, she submits that there would have been much greater focus on the accuracy of the complainants' recollection for the limited period in question.  There were, she contends, many inconsistencies and failures of memory relating to this crucial period.  Such an increased focus would, she says, have informed the decision of the jury on the vital question of whether in the course of the admitted incident when the defendant got into or onto the elder girl's bed, he had also raped her.  
11.	It is plainly true that there were a good many inconsistencies and failures of memory on the part of these complainants.  Those were not different, however, because the relevant period was three or four weeks rather than three or four months.  The incident involving the child's bed was, as we have endeavoured to point out, one which was admitted to have happened.  The precise or even the approximate date at which it happened was not a matter of significance; what was of significance was what had occurred.  The inconsistencies and failures of memory, and there were a number, indeed many, were equally potent whether they were specifically related to a period of three or four weeks or three or four months.
12.	Next, Miss Radcliffe submits that had the limited time window been known, there would, or at least should, have been far greater cross‑examination upon the precise details of the elder complainant's recollection of the rape incident: in particular, she says, in relation to what she asserts are variations in successive narrations of this incident in the course of interviews with the police which had been video recorded.  
13.	First, we are unable to see that that has anything to do with the reduction in the time frame.  The issue in relation to what had happened in the bed incident was precisely the same whatever the time frame was.  The precise level of detail of cross‑examination must inevitably be very much one for counsel conducting it.  The summing‑up demonstrates more than amply that the defendant's case was advanced with some vigour, and that every relevant point was made.  There is no suggestion of incompetent representation, nor could there be, and the attempt to attach this submission to the time window fails.
14.	A subset of that submission relates to availability of medical records.  At one point in police interviews the elder complainant had said of the bed incident that she had bled, and her narrative included an observation to the effect that she had always had trouble with her periods.  Says Miss Radcliffe, the medical records which were not then available but now are demonstrate that she had never been attended by her general practitioner for, or reported to her general practitioner, any menstrual difficulty.  That however cannot conceivably affect the safety of the conviction.  First, the absence, particularly in a dysfunctional family like this, of any visit to the doctor is no indication whatever of an absence of some period problem.  Rather more significantly, this girl was at the time of the incident 8, or thereabouts.  Any reference by her to menstrual trouble in the course of her narrative can hardly have been related to that incident, but must have been a general observation of the kind that those recalling disjunctively events from long ago frequently exhibit.
15.	Next, Miss Radcliffe contends that if the more limited time window had been known, a different course would inevitably have been taken by counsel appearing for Loftus in relation to the production in evidence of material derived from contemporary social services records.  It is plain that the defence had available to it a file of approximately 250 pages of such records.  It is also clear that some, but obviously not all, of those records were deployed and put into evidence in one form or another.  Some were clearly put in terms to the complainants by way of cross‑examination.  Others appear to have been placed by one means or another before the jury verbatim.  We approach the case on the basis that Miss Radcliffe appears to be right that there was neither a schedule of admissions nor an agreed print‑out of extracts.  But when one looks at the contents of the documents, that is scarcely surprising.  Miss Radcliffe's specific submission is that had there been the kind of focus on the limited period which she contends there would inevitably have been, an entry relating to 3 July 1978 would have been certain to be adduced.  The relevant entry contains the observation of social workers that "despite the marital conflict and the unresolved tensions within the family, Mr Loftus has quite fond feelings for the children, and even Carol admits he is very find of him and they respond positively to this". 
16.	So it does.  The difficulty from the point of view of any advocate seeking to adduce it is that it is preceded by the observation that Carol always gives in to Loftus's demands as she is frightened of further beatings, and it is succeeded by the observation that, in the assessment of a named social worker, Mr Loftus is a violent psychopath, who does not want help but is attention seeking.  
17.	It is not for us to attempt to re‑decide which extracts should or should not have been put before the jury to the extent that they could be.  We confine ourselves to saying that we can very well understand that any responsible counsel considering that extract could have been extremely cautious and might well have taken the course of instead placing before the jury alternative entries revealing an apparently fond relationship between the defendant and the children, and that was done.  
18.	Miss Radcliffe associates with that submission the contention that the judge had wrongly ruled that opinion evidence of social workers was not admissible whereas their observations were.  There is in fact no trace of any such ruling, and such reference to the difference between those two as appears in the transcript plainly suggests that it was simply a query raised by the judge when a particular extract was being referred to.  Miss Radcliffe's considered written skeleton argument refers to this issue in the context of a complaint made by the elder complainant some 20 years later, in 1996, to the effect that her own daughter had been the object of sexual abuse by her younger brother.  It seems likely that the judge did indicate that there ought not to be put before the jury mere opinion from social workers as to whether that accusation was true or not.  But the point was never argued, and the reason why it was never argued is probably because it is quite apparent from the summing‑up that everybody proceeded on the basis that the allegation made by the complainant had been dismissed out of hand.  The potential effect upon her credibility was obvious; it was plainly exploited to the full by counsel, and it is rehearsed in detail in the summing‑up.  
19.	Miss Radcliffe further suggests that had the jury known the precise family circumstances prevailing in the relevant period in 1978, the jury would have been likely to consider it highly unlikely that the consequences of the aberrant behaviour alleged against Loftus would have passed unnoticed by social services, probation, school, educational welfare officers and grandmother.  Sadly, virtually no case of historic sexual abuse would pass that test.  Sadly, time and again abusive behaviour is not detected, and given the problems that this family had, it would not be in the least surprising.  
20.	Miss Radcliffe further suggests that it flies in the face of commonsense that a man would commit such grave offences whilst on bail, when his wife was considering divorce and he was trying to achieve a reconciliation.  We need only say that, even if it had not been the case that he seems to have been drunk, that is simply unsustainable.
21.	The jury knew everything that the defence wanted them to know about the social services' involvement, except where, we surmise, the risk of Crown retaliation with damaging material was too great.
22.	A quite separate ground of appeal relates to bad character evidence and its treatment.  The co‑defendant mother wished to give evidence that the defendant had obliged her to have sexual intercourse when she did not want to and to engage in anal intercourse and other sexual practices which she did not like.  She had said as much in interview to the police.  Some time early on in the trial, but after it had begun, the judge was asked to rule whether mother was entitled to have this part of her police interview put in evidence.  He was told that she was going to say the same thing again in evidence herself, and indeed counsel was proposing to cross‑examine Mr Loftus if the opportunity arose on the same basis.  This, it appears, was part of her case because, first, the girls complained that they had from time to time entered the room where mother and Loftus were having sexual intercourse and both of them had simply carried on regardless.  This was evidence admitted without objection as part of the pattern of uncaring parenting by both defendants, and in particular evidence of neglect by mother of the children's interests, which of course formed the basis of the specific counts of wilful neglect.  What mother wanted to say was that, if that had occurred, she was, or at the very least may have been, being compelled against her wishes to do what she was doing.  
23.	Similarly admitted without objection was evidence of violence between the parents.  Again, this was, as it seems to us, relevant evidence, although of course it was bad character evidence, and so the agreement that it had to go in was realistic.  
24.	As to the relevant passage in the interview and subsequent evidence to the same effect, it was submitted to the judge that this evidence of mother would not be bad character evidence because it was "to do with the alleged facts of the offence with which the defendants were charged" for the purposes of section 98(a) of the Criminal Justice Act 2003.  The judge accepted that submission, but explicitly ruled that, even if that were not correct, the evidence would plainly be admissible as bad character evidence at the suit of the co‑defendant pursuant to section 101(1)(e).  
25.	We take the view that this was clearly bad character evidence.  It was not excluded by section 98(a).  The submission that it was excluded was wrong and the judge's acceptance of it was wrong.  It may have been admissible at the trial of the offences charged, but that is not the test.  If that were the test, there would not be any need for any of the restrictive rules as to the admission of bad character evidence contained in sections 101 to 112 of the Act and all bad character evidence would be admissible provided that it had any relevance at all, which is not the law.  However, in the end this makes no difference whatever to the course of the trial because the judge's alternative ruling was clearly correct.  The co‑accused was entitled to make it part of her case that anything she did she did under expulsion.  The evidence was undoubtedly admissible under section 101(1)(e), which is not governed by any residual discretionary power to exclude under either section 101(3) or 103(3).  That position in law is consistent with the historic rule that a defendant must be allowed to advance relevant evidence in his or her defence, even if it is damaging to a co‑accused.  
26.	We do not agree that had the judge addressed section 101(1)(e) in greater detail, he would have been bound to come to a different conclusion.  Nor is this a case, although there are some such as M [2007] Crim LR 637, where a difference of basis of admission should give rise to a difference of treatment in the course of the trial. 
27.	The subsidiary submission in relation to this is that the judge's direction of approach to the evidence was insufficient.  The judge was careful on a number of occasions to warn the jury about attaching too much significance to bad character evidence, of which there had been in this case more than a little.  For example, there had been the evidence that Loftus was frequently in prison.  The judge dealt specifically with that.  In relation to this particular aspect of the evidence, the judge in due course told the jury this: 
"Do not be prejudiced against the first defendant in respect of allegations made by the second defendant concerning non‑consensual sexual behaviour.  Bear in mind, as I am sure you will, that the allegations which he faces in this trial concern sexual abuse of young children.  There is, you may think, a significant difference between non‑consensual sexual behaviour between adults and sexual abuse of young children." 
28.	Miss Radcliffe's complaint about that, as we understand it, is that, whilst he warned the jury not to treat the evidence as damaging to the first defendant, he did not explain what relevance it had.  But that, we are afraid, is simply wrong.  The judge preceded this treatment of the relevant piece of evidence with this direction:  
"You heard a good deal of evidence about the violent behaviour as between the two defendants when they married.  As I have already said, the defendants are not of course charged in these proceedings with any violence as between each other, or in regard to their behaviour towards each other.  Do not be prejudiced against either defendant in regard to those matters.  The relevance of that evidence is the extent to which it may cast light on the behaviour and attitude of each defendant towards the girls." 
Then he summarised in brief terms the rival contentions about that.  That was precisely and accurately to identify the relevance of the evidence in question.  
29.	When the judge ruled the evidence admissible, a late application for severance was made.  The judge rejected it.  He held that the courts were well used to dealing with conflicting defences, and he took into account that a joint trial had been ordered some considerable time before this trial had begun and had not been resisted, although the contents of mother's interview were well‑known.  In this approach it seems to us he was not wrong.  Indeed, it seems to us he was right.  It was too late to contemplate severance on this point after the trial began.  Most of all in relation to this ground, the jury's acquittals on a substantial number of counts, and all those where there was not either compelling detail or admission that the incident had occurred, plainly demonstrates to us that they had not been unduly influenced by any of the multifarious evidence of the defendant's bad character.  
30.	Next, there is an application to the court to receive further evidence.  We are asked to receive the evidence of Dr Pillai, which was not available at trial.  She is a consultant gynaecologist and forensic medical examiner.  She has no personal knowledge of this case, but she has looked at the papers.  We have looked de bene esse at her report.  She would say that full penile penetration of an 8 year‑old would be very likely to result in pain, tissue trauma and bleeding.  Blood staining of any underwear would be expected, and a parent washing clothes would be likely to notice it.  She adds that it would be highly improbable that distress would be unnoticed by such as parents, teachers and the like.  There is nothing remotely controversial in that.  However, the doctor makes it clear that when she is speaking about full penetration, she is speaking of full penetration of the vagina beyond the hymen, as distinct from penetration of a lesser kind, in particular of the labia.  There is no basis in this case for saying that the elder girl was unequivocally asserting that, and it would be an unusual 8 year‑old who knew the difference.  In fact, this girl did say what happened was painful.  She did say that she cried, and she did say, although not always entirely consistently, she had some bleeding.  All of that was ventilated in the summing‑up.  The absence of any report of injury to any doctor was proved at the trial.  In a dysfunctional problem family of this kind, it would sadly not be particularly incredible, or indeed unlikely, that such an event might pass entirely unnoticed.  However, that was not the case here.  The incident in question, whatever it consisted of, did attract the attention of mother, who gave evidence.  There is accordingly simply no basis for receiving any new additional evidence.  It is, so far as it goes, of course capable of belief, but it adds nothing at all to the case.  If received, it would not afford grounds for allowing the appeal.  Accordingly, we must decline to receive it.
31.	Finally, Miss Radcliffe invites us to stand back from the detail and to say that the convictions which the jury returned occasion such unease that they must be regarded as unsafe.  It is certainly true that the very long passage of time between these events, if they occurred, in or about 1978, and the reports in 2006, gave rise to a serious question about their truthfulness or accuracy.  That question was compounded by the many opportunities that these girls, women as they became, had to complain: for example, when social workers were speaking to them about problems within their family; for example, when mother and stepfather separated and they were clearly taking mother's side; and on a number of occasions much later in life, including when one of them at least attended a counsellor.
32.	There was a real question or issue whether these complaints were on the one hand true, or on the other, ones with which the women had perhaps become convinced over the years, but which had simply not occurred.  The exploration of the answer to that question was, however, the function of the trial.  It cannot be reproduced here.  It is very clear that it was fully explored.  One only has to read the summing‑up for that to be apparent.  The opportunities to complain were serially exposed and all rehearsed to the jury in the summing‑up.  On top of that, Mr Loftus through his lawyers put before the jury the expert evidence of Dr Janet Voakes, who gave evidence about the dangers associated with the possibility of false but "recovered" memory.  
33.	The jury which had to investigate this saw these complainants in the context of all those worries about their evidence.  They also saw the defendant.  They believed the complainants to the limited extent which we have indicated.  They disbelieved the defendant, at any rate about the two incidents in respect of which they convicted.  Other than that, they were unpersuaded by the allegations.  There was, as we have indicated, a clear basis for the distinction.  
34.	In the context of this case, the invitation to a court of review to express unease about the convictions can only be an invitation to substitute our own view as to the veracity of these complainants when we have not heard or seen them, or even examined the whole of the evidence, and the jury did hear and see them and examine the whole of the evidence.  It would simply be entirely wrong for this court to take any such course, and in this case there is no basis for it.  
35.	On behalf of the second defendant mother, Mr Ross very properly says no more but no less than that if the convictions of Loftus are unsafe because of concerns about the accuracy or credibility of the complainants, that would mean that mother's convictions are similarly unsafe.  Since, however, the convictions of Loftus are not, there is no basis for entertaining any appeal by mother.  We think that Mr Ross legitimately had to be here and is entitled to leave because Loftus had been given leave, but the appeals of both against conviction must, for the reasons we have endeavoured to give, be dismissed.  
 (Submissions on sentence follow)
36.	LORD JUSTICE HUGHES:  The sentence passed by the judge was a sentence of two years for the gross indecency count (that is what we have called the oral sex incident) and 12 years concurrent for the rape.  The first argument which we must confront is that that sentence is more severe than a sentence for a recent offence met by the identical term would be because a different early release regime applies.  In general terms, the occasions when courts can properly have regard to early regimes in determining sentence are very restricted.  Such regimes are these days only too numerous.  But, in any event, the premise is, we think, not made out.  
37.	We agree that if he had been sentenced soon after the event, in, for example, 1980 or thereabouts, the relevant regime would have been that operating under the Criminal Justice Act 1967.  We agree that under that regime there was no entitlement to release on licence.  The position was that in those far off days a remission of a third for good behaviour was conventional, and there was a discretionary power to release on licence after one third of the sentence.  Such release depended upon a Parole Board recommendation, but the decision was that of the Home Secretary.  
38.	We are prepared to agree that it may be that for a serious offence of child sexual abuse such release might not have been forthcoming.  We certainly accept that if the Secretary of State were now to be applying the 1967 regime, it is at least likely that he would not exercise any discretion in favour of early release.  
39.	However, the next change in the early release regime occurred when the Criminal Justice Act 1991 was enacted and brought into force with effect from 1 October 1992.  Schedule 12 of that Act provided transitional arrangements for existing prisoners, that is to say those already sentenced, but no transitional arrangements for persons who had committed offences before October 1992 but had yet to be convicted or sentenced.  
40.	It follows that, so far as we can see, and Miss Radcliffe's researches do not contradict this, the 1991 Act provisions apply.  They are preserved by the next change in the early release regimes, which was accomplished by the Criminal Justice Act 2003.  That last Act applies its early release regime only to offences committed after 4 April 2005.  
41.	The next change after that was accomplished by the Criminal Justice and Immigration Act 2008, which modified the provisions of sections 33 and following of the Criminal Justice Act 1991.  The net result of all of that, as we understand it, is that the rules relating to this defendant, whose offence was one in Schedule 15 to the Criminal Justice Act 2003, remain as they were enacted in 1991, which means that he is entitled to release at two thirds.  His licence, however, will only run to three quarters.  He could be released as a matter of discretion at half.  That is the effect of section 33(1B) of the 1991 Act, as inserted by the 2008 Act.  There is some difference between that position and the position under the Criminal Justice Act 2003, under which he would be entitled to release at half, but would be on licence for the full term rather than for three quarters.  But there is some balance obviously between those two provisions.  There is not the kind of striking difference which is being contended for.  We do not consider that such difference as there is calls for any reflection in sentence.  
42.	The question then remains whether 12 years is manifestly excessive.  This defendant had a previous conviction for rape.  It was not a rape of a child; it was a rape of an adult and the issue had been consent, but he had got a previous conviction for rape in 1969.  Moreover, the rape of which he had now been convicted, even if it involved less than physically damaging penetration beyond the hymen, as to which there is no clear evidence, was not an isolated act.  The gross indecency was about as serious an example of its kind as one could hope (or fear) to find.  The maximum sentence for the offences of gross indecency was at that time two years.  But there was nothing to prevent sentences being consecutive one to another, and certainly nothing to prevent them being consecutive to the sentence for rape.  The judge has no doubt sentenced for the offences as a group and was quite right to do so, but his sentence of 12 years has to be viewed in that context.  In addition, it has to be said that Loftus has a subsequent conviction for a sexual offence as well, one for indecent assault on, it would appear, an adult woman in 1994 for which he was sent to prison for nine months.  12 years is within the guidelines issued by the Sentencing Guidelines Council for a rape of a victim under 13, and this was, it cannot be avoided, a bad case.  
43.	The only reason to reduce it could really be that the offence was committed 30 years ago.  That is really scant mitigation, as this court has frequently said.  The offence certainly has not altered: has the man to such an extent as to require a reflection in sentence?  Sadly the answer to that is no.  Throughout 1980 he continued to offend.  There were offences of blackmail, assault occasioning actual bodily harm, an indecent assault and summary offences involving drunkenness.  It is true that his criminal behaviour has slackened significantly since then and that his last prison sentence was in 1990, though there has since then been offences of obstructing police, assault occasioning actual bodily harm and excess alcohol.  The last offence was in 2002.  He is now 61, and we do not question the suggestion that he suffers to an extent from asthma and that his heart is not good.  
44.	These were, however, extremely serious offences.  They were exploitative.  They smack of simply using the children without any regard whatever to their feelings, and as the judge was able to observe, this appears to be one of those case in which their effects continued over the decades.  We are unable to say that the judge's sentence was wrong in principle, and for that reason the appeal against sentence must be dismissed.