Case No: 2012/2025/C4
Neutral Citation Number: [2012] EWCA Crim 2358
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRISTOL CROWN COURT
Her Honour Judge Hagen
T20110968
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/11/2012
Before:

LORD JUSTICE MOSES
MR JUSTICE NICOL
and
MR JUSTICE LINDBLOM
- - - - - - - - - - - - - - - - - - - - -
Between:

	T	Appellant	
	- and -		
	The Crown	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Ms Melanie Simpson (instructed by Elite Ltd Solicitors) for the Appellant
Mr Stephen Mooney (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: 16th October, 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Moses: 
1.	This is an appeal which underlines the importance of compliance with the Criminal Procedure Rules and the adverse impact on a trial of a failure to comply.  The problems which have occurred in this case are entirely due to the appellant’s failure to give proper advance disclosure.
2.	The appellant was 15 when he was convicted, on 2 March 2012 at Bristol Crown Court, of raping a 13 year-old.  Both attended the same school.  For reasons that will become apparent, precise details of the offence are not material to the issues.
3.	On 11 November 2010 the appellant was walking the complainant towards her home when it was alleged that he had raped her in a park nearby.  He is 6’5”, she is much shorter.  She says that she lay down on his jacket on his orders and was then raped.
4.	The complainant told a friend what had happened immediately on returning home, and another friend the following day.  But she did not report the matter until 5 January 2011 when, in a very upset state, she told a support teacher.
5.	The following day, 12 November 2010, the appellant was alleged to have told the same person to whom the complainant had spoken that he had had sexual intercourse with the complainant.  But although the appellant made no comment at interview his defence was that he had not had sexual intercourse with her.  He said that he had only walked a short distance with her and had then left her, waiting for his girlfriend, with whom he went home.
6.	The defence statement, dated 5 August 2011, set out in detail the nature of his defence, namely, he had not had sexual intercourse with the complainant and had left her after walking a short way with her at her suggestion.  In particular, there was no suggestion of any motive for the complainant to lie.  Thereafter, well in advance of the trial, the defence had sought to adduce evidence as to a previous complaint by the complainant in relation to a different incident, pursuant to s.41 of the Youth Justice and Criminal Evidence Act 1999.  In that application there was no reference to matters which were subsequently raised at trial.
7.	After the complainant’s evidence had been given through the medium of a video interview, counsel for the defence sought the judge’s leave to introduce in cross-examination a photograph which the defendant alleged had been sent to him around about Valentine’s Day 2010.  This is a photograph the court has seen.  It was taken by the complainant and shows an image of herself in the mirror, dressed either in a bikini or underwear.  It was described by the defendant’s counsel as “quite graphic”.  It presents the appearance of being designed to allure anyone to whom it was sent.  The basis upon which the defence sought to introduce the photograph was in order to prove motive.
8.	The prosecution objected.  No e-mails enclosing that photograph were produced.  The defence said it was sent with three attachments, only one of which the defendant opened.
9.	After making the application in relation to the photograph, defence counsel sought to introduce a number of Facebook messages which, so the defence alleged, had passed between the complainant and the defendant.
10.	The first was 18 months before the alleged incident on 16 May 2009.  It recorded that the complainant had added the defendant as a friend on Facebook.  There then followed an e-mail, via the medium of  “wall post”, containing a comment from the complainant dated 7 February 2010 “sweet talking?”, a further comment on 17 July 2010 “no u lanks shit: (then a smiling face)”, a further message posted on the defendant’s “wall”: “inbox me wen u get diss!”, a message dated 23 July 2010 “wht did Anton say 2 u?” and, on 3 August 2010, “Fb chats fucked up mate! chat wen u r bk on line”.  None of those messages appear to have been met with any response.
11.	The judge then, on a voir dire, asked the complainant whether she had sent the photograph to the defendant.  She denied it.  The judge then ruled that neither the photograph nor the Facebook entries could be adduced in evidence, either by way of cross-examination or otherwise.  Neither the prosecution nor the judge had been given any advance notice and it appears that that lack of advance notice was the basis upon the judge ruled that the evidence should not be adduced.  The judge said:-
“You would have been perfectly entitled, Miss Simpson, had it been part of your defence case statement, and the prosecution had the opportunity of making enquiries to see if that was true or not but in the absence of doing that, in my view it is far too speculative.  It may be part of your instructions.  That does not mean to say it has to be put that I am going to rule against you so far as the photograph and the Facebook entries are concerned.”
12.	We have every sympathy for the judge and the prosecution.  The prosecution were sceptical, and rightly sceptical, as to the provenance of the photograph which could so easily have been obtained by means other than a direct e-mail posting to the defendant, in the absence of any evidence as to an e-mail which accompanied it.  There was no explanation given as to why it was adduced so late and as to why there was no reference in the defence statement to a hostile motive or to the factual basis upon which such a motive was to be alleged.
13.	This ambush by the defence led, as so often it tends to do, to error.  That is part of the danger which arises from an unjustifiable breach of the rules of advance disclosure.  It was incumbent upon the defence to give advance notice of the Facebook photograph and the Facebook entries so as to give the prosecution sufficient time to consider whether it wanted to obtain evidence as to the different means by which a photograph might have reached the defendant and the question whether it was credible that the Facebook entries, typical as they were of exchanges between teenagers, were so one-sided.
14.	But the question remains whether the judge’s approach was correct in law.  In our view, it was not.  Both counsel should have reminded the judge of the relevance of s.41 of the Youth Justice and Criminal Evidence Act 1999 to questioning as to the photograph.
15.	Any question in cross-examination about the photograph was, having regard to its nature, about “any sexual behaviour of the complainant” (s.41(1)(b)).  If, as he proposed, the defendant wished to give evidence that he had been sent the photograph then, without the leave of the judge, he would not be allowed to adduce that evidence (s.41(1)(a)).
16.	Since the defendant denied that he had had sexual intercourse with the complainant the issue was not an issue of consent (s.41(3)(a)).  The question for the judge was whether the photograph went to a relevant issue.  In our view, it did go to a relevant issue since it was an issue falling to be proved by the defence in the trial of the accused, namely, that the complainant was interested in him.  He was not interested in the complainant and the motive for her false allegation was her affront at his lack of interest.  Once that relevance had been established, the judge had no discretion to refuse to allow the matter to be put to the complainant and the defendant to give evidence about it (R v F [2005] Cr App R 13).  In particular, it was not open to the judge to refuse to allow the matters to be put because they had been raised so late in the day.  The fact that that had happened so late in the day went to the weight to be attached to the photograph.  It would have lent force to any suggestion made by the prosecution to the photograph.  It would have supported any suggestion made by the prosecution that the defendant had obtained the photograph by means other than it being sent by the complainant directly to him.
17.	Similarly, it was not open to the judge to refuse to allow the Facebook entries to be put merely on the basis that there had been no advance notice of the intention to adduce them in evidence.  But the judge was perfectly entitled to refuse to allow the defence to do so in the form in which they were produced.  They were all one way.  They made no sense without seeing the response of the defendant.  In the absence of any response or any context in which they could be viewed it would have been wholly misleading and unfair to put them to the witness.  The proper way of putting them to the witness was by establishing their context and the thread of which they formed part.  That could only be done by putting in any response the defendant made.  The e-mails from the complainant established nothing in the absence of any context.  
18.	We should mention that it appears that at one stage in cross-examination the complainant denied ever having asked to put the defendant on her Facebook “board”.  The defence did not seek, even at that stage, to invite the judge to re-open the question of the admissibility of the Facebook entries.  The complainant’s denial that she had thought to put this defendant on Facebook is just the sort of comment to which a young witness might be driven in the absence of advance notice, particularly when seeking to distance herself from one whom she alleged had raped her.
19.	Moreover, the judge’s understandable wish, particularly with a young witness, not to derail the trial, led her into further error.  It was entirely understandable that she might wish to establish whether the complainant admitted sending the photograph to the defendant.  But the fact that the complainant denied having done so did not resolve the issue.  After all, the judge had not heard from the defendant.  He wanted to say that he had been sent that photograph by the complainant.  That was a conflict which the jury would have to resolve.  If, as we believe, the photograph and questions about it related to a relevant issue in the case, then it was not open to the judge to refuse to allow it to be adduced merely because the complainant said that she had not sent it.  Once it was established that the photograph and questions about it related to a relevant issue, namely, motive for lying, then the judge should have allowed the defence to cross-examine about the photograph and adduce evidence about it.  That of course would have laid the defendant open to serious questioning about why no notice had been adduced of the photograph in advance and why it was not accompanied by any e-mail.  The late arrival of the photograph may well have rebounded to the defendant’s detriment.  But we emphasise that none of that provided a basis for refusing to allow it to be admitted.
20.	We must then consider the consequences of the error into which the prosecution and the judge fell, directly as a result of the late attempt to adduce the photograph.  The appellant should not obtain any advantage from the tawdry production of the photograph.  We remind ourselves of our power pursuant to s.23 of the Criminal Appeal Act 1968.  The court has power, if it thinks it necessary or expedient in the interests of justice, to order production of any document, exhibit or other thing connected with the proceeding, the production of which appears necessary for the determination of the case (s.23(1)(a)); we have a similar power for similar reasons to order attendance of any witness and [to] receive any evidence not adduced in proceedings.
21.	It is plain that the test to which we must have regard in s.23(2)(d) is satisfied.  There is a reasonable explanation for the failure to adduce evidence in relation to the obtaining of the photograph and the Facebook entries.  The explanation is that the judge refused to allow it.  But non sequitur that the evidence may afford any ground for allowing the appeal (s.23(2)(d)).
22.	Absent any evidence as to whether, and if so how, the appellant obtained the photograph when he obtained it, and why no advance notice of it was given in his defence statement or subsequently, and as to why no application was made earlier under s.41 of the 1999 Act, it is not possible for this court to say whether the judge’s failure to allow the photograph to be adduced affords a ground for allowing the appeal.
23.	Our jurisdiction is limited to seeing whether the verdict was safe.  Unless there is evidence that persuades us that a jury might have accepted the possibility that the complainant sent the photograph to the defendant, the photograph can have no impact on the safety of the verdict at all.  Further, absent any context for the e-mails on Facebook they have no significance whatever.
24.	Normally when a judge refuses to admit relevant evidence there will be no difficulty in deciding whether it affords any ground for allowing the appeal.  But in this case the very concerns which drove the judge to refuse to allow the evidence to be adduced cause us similar anxiety.  It is not possible for us to say that the verdict is unsafe unless the prosecution have had the opportunity to question the defendant as to the provenance of the photograph and adduce any evidence it wishes to adduce as to how easy it might be to have obtained the photograph from another source.  We particularly have in mind the explanation, eventually given by counsel for the appellant, that the reason for the late disclosure of the photograph and the Facebook entries was some defect in the hard drive of the computer used by the appellant.  We did not understand the explanation.  It requires further evidence and consideration.
25.	For those reasons, we shall adjourn the appeal for a further hearing, at which both appellant and prosecution will have the opportunity to adduce any relevant evidence they wish.  The appellant is now aware of our concerns and should, if he is able, be in a position to allay them by establishing the provenance of the photograph or explaining why it is not possible to do so.  The prosecution will have the opportunity of rebutting any evidence the appellant wishes to adduce in relation to those issues.  The court will also wish to be satisfied that there was a reasonable explanation for the late emergence of this evidence at trial.  
26.	The appellant should provide sworn statements of any evidence he wishes to adduce within 21 days of this Order.  The prosecution then has 21 days to respond, after which the case is to be re-listed.  We very much bear in mind the young ages of both complainant and appellant.  This makes it incumbent upon everybody to see that this case can come back before us as soon as possible.  For those reasons, the appeal is adjourned.