No: 201204834/B4 
Neutral Citation Number: [2012] EWCA Crim 3077
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Tuesday, 20th November 2012
 
B e f o r e: 
LORD JUSTICE LAWS 
MR JUSTICE GRIFFITH WILLIAMS 
 
MR JUSTICE MALES 
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R E G I N A 

v 

NEIL SHARP
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Miss J Clemitson appeared on behalf of the Appellant
Mrs R Scott‑Bell appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE LAWS:  In this case the alleged victim's anonymity is to be preserved by force of the Sexual Offences (Amendment) Act 1992.  Her name and address are not to be published nor anything that might lead to her identification.
2.	On 19th July 2012 before His Honour Judge Cartlidge at a retrial at the Durham Crown Court, this appellant was convicted by the jury of four counts of indecent assault: counts 1 and 2 by a majority of 10 to 2; counts 3 and 4 by a majority of 11 to 1.  On 10th September 2012 he was sentenced to concurrent terms of 18 months' imprisonment on counts 1 and 2, and on counts 3 and 4 concurrent terms of 6 months but consecutive to the 18 months so that the total sentence was 2 years.  Appropriate orders were made relating to the notification requirements of the Sexual Offences Act 2003 and as to the list kept pursuant to regulations made under the Safeguarding Vulnerable Groups Act 2006.  The appellant now appeals against conviction and sentence by leave of the learned single judge.
3.	The complainant, to whom we shall refer as S, was the alleged victim on all four counts.  She was at the relevant time (late 1989) a 15‑year‑old girl.  Through a friend of hers called LW she got work at a dog kennels run by the appellant.  He lived at the premises with his wife.  S usually worked on Sundays and LW on Saturdays.
4.	Counts 1 and 2 alleged instances of the same kind of assault.  S arrived for work at about 8.30 in the morning.  On her account, the appellant answered the door to her naked.  He would take her into the sitting room, hold her hand against his penis and cause her to masturbate him.  She was to say that this happened almost every time she went to work at the kennels.  
5.	Counts 3 and 4 alleged assaults in somewhat different circumstances.  They occurred when they were working out of the kennels.  He would put his hand inside her top and touch her breasts.  
6.	The appellant's evidence was that it was his wife who answered the door and not him.  He was clear about this because he suffered from a medical condition (postural hypotension) which made him unsteady on his feet when he first got up, so it was a while before he would go downstairs.  His wife confirmed this.  His case was that the assaults charged in counts 1 and 2 never happened and nor did those charged in counts 3 and 4.
7.	The Crown called a number of witnesses who gave evidence of complaints made by S about the appellant's conduct.  One of the witnesses was LW.  She was the first person to whom on the evidence S complained.  She said that S had told her that the appellant had touched her breasts.  At the conclusion of her evidence LW was asked further questions by the judge.  He asked her how the appellant appeared to her when she knocked on the door.  She replied that he was naked.  No further questions were then asked of the witness who was released at the end of the court day.  
8.	The next day the jury sent in a note seeking confirmation of LW's answer, which was given by the judge.  Counsel for the appellant applied to discharge the jury on the grounds that LW's answer to the judge was unfairly prejudicial.  The judge declined.  His refusal to do so gives rise to the first ground of appeal.  In giving his ruling the judge said this:  
"Miss Clemitson, on behalf of the defence, says the case should be stopped, it is unfair to go on, there should be a retrial.  I cannot see that.  It seems to me if there is to be a challenge to what [Miss W] had to say, that can be achieved by [Miss W] coming back and giving.  It is very unfortunate that this has happened.  It seems to me that asking [Miss W] what the state of the defendant was when he answered the door was a really rather obvious question and certainly one, I think, that would interest the Jury.  It does because of their question.  So [Miss W] will have to come back and give evidence."
In fact, she did not return to give evidence; counsel took the view that that would do more harm than good.  It is now said for the appellant that the evidence in answer to the judge's question was clearly prejudicial; it was arguably bad character evidence, which could not have been adduced by the Crown without notice of leave; issues of collusion had not been explored and if LW and, for that matter, S had been recalled so they might be explored, there was a risk that yet more prejudicial material would be exposed.
9.	It is important to notice that LW had in fact given the police an account of abuse upon her similar to S's accusations on counts 1 and 2, but she would not support a prosecution of the appellant for assaulting her.  It seems she was prepared to do no more than attend court to give evidence of S's complaint to her.  So her own account of abuse formed no part of the prosecution's case; and the defence was prepared and conducted on the footing that the jury would hear only of S's allegations.
10.	It seems to us that the defence was put in a serious difficulty by the judge's question and LW's answer.  LW had been cross‑examined on the basis that her evidence of S's complaint was a fabrication.  If she were now recalled and taxed with a suggestion of collusion, that would seem to contradict the earlier basis of the cross‑examination and, moreover, the account she had given of assault upon herself would surely have been opened up.  The appellant did not have the protection of notice and the opportunity to make submissions before the evidence was given, as would have happened had the Crown sought to adduce it.  She was faced, so to speak without the option, with a new dimension in the case to which the jury clearly attached importance.
11.	Had his counsel had notice she might very reasonably have submitted that LW's own account of abuse should not in fairness be deployed at the appellant's trial of abusing S given that she, LW, was not prepared to support it by a prosecution, and it remained a matter of doubt and dispute.
12.	The appellant's difficulties were we think compounded by the course taken by the judge in the summing‑up.  He made no reference to LW's answer to him and thus gave the jury no direction as to how they should deal with it	.  The prosecution relied on her answer in closing their case, as we understand, as evidence of propensity.  Certainly Mrs Scott‑Bell this morning very fairly accepts that she referred to it when addressing the jury.
13.	Moreover it is a feature of the case that in interview the appellant accepted or appeared to accept that he may have answered the door naked; in evidence he said he had been confused in the interview.
14.	We think the jury should have been directed that LW's answer came unexpectedly at the end of her evidence.  There would have been difficulties for the defence in seeking to deal with it if she was recalled, and that even if they were satisfied the appellant had a habit or propensity to open the door naked, that did not prove guilt.  
15.	We would not accept, however that an elaborate Lucas direction should have been given against a possibility that the jury considered the appellant was lying in denying that he had opened the door naked.  Had a direction of the kind which we have indicated been given and the jury then convicted, it may be that the conviction ought properly to have been treated as safe.  In the circumstances however, taking grounds 1 and 2 together, we have concluded that the jury's verdict is unsafe and on those grounds the appeal against conviction falls to be allowed.
16.	There are two other points which we address briefly.  We have not heard oral submissions from Miss Clemitson. 	 It is said that the jury were not adequately directed on the issue of delay.  The events in question took place, as we have indicated, in 1989.  The judge's direction about delay is at page 5 of the summing‑up transcript, lines 3 to 15.  It is perhaps unnecessary to set it out.  The direction is so far as it goes is perfectly proper.  He had already directed the jury as to the burden and standard of proof.  They must have been aware that any objective difficulty over delay ought to favour the appellant.  There is nothing in this.
17.	The last point concerns the appellant's police interview.  In it he had failed to mention the medical condition which later said prevented him getting up and answering the door in the mornings.  That was as we have said supported by his wife who was a State registered nurse, and the appellant was vigorously cross‑examined about it.
18.	The judge in summing‑up did not give the jury any directions as to how they should deal with this aspect of the police interview.  It is said that they should have been directed pursuant to section 34 of the Criminal Justice and Public Order Act 1994 that the failure to mention the matter in interview did not prove guilt.  We think the judge should have taken that course. The jury were aware, however, that the interview had involved some confusion because they knew the appellant thought he was answering questions about a different kennel maid.  We do not consider that this point alone would carry the appeal.
19.	However, for the reasons we have given the appeal against conviction is allowed.  In those circumstance the appeal against sentence does not fall to be considered.
20.	MISS SCOTT-BELL:  My Lord, I have instructions to invite the court to consider ordering a retrial.
21.	 LORD JUSTICE LAWS:  Trial number three.
22.	MISS SCOTT-BELL:  Those are my instructions.
23.	MR JUSTICE GRIFFITH WILLIAMS:  What happened in the first trial? 
24.	MISS SCOTT-BELL:  In the first trial there were two complainants and there was an application in respect of the co‑accused.  There was also a further defendant and there was an application that the indictment should be stayed as an abuse of process because of the loss of records which would have assisted that co‑accused's case.  That was allowed and that application only occurred, as I recall it, after all the evidence had been heard immediately prior to speeches and because of the loss of a whole complainant and a whole defendant, in effect, the jury had to be discharged.
25.	MR JUSTICE GRIFFITH WILLIAMS:  It did not go to a jury.
26.	MISS SCOTT-BELL:  It did not go to a jury.
27.	 LORD JUSTICE LAWS:  Was he on bail up until his conviction of the second trial? 
28.	MISS SCOTT-BELL:  He has been on bail until September 2011.  
29.	 LORD JUSTICE LAWS:  He has been in prison since ‑ when was he sentenced? September, was it not. So it is a bit under 3 months.  He is 75, with health problems and that obviously is not determinative but a factor.  Let us see what Miss Clemitson says.
30.	MISS CLEMITSON:  My submissions are those your Lordship has just identified.  This is an elderly defendant who spent a lengthy time awaiting trial in the first place; he was on bail from May 2010 until the first trial earlier this year.
31.	 LORD JUSTICE LAWS:  From May 2010? 
32.	MISS CLEMITSON:  Yes. With the attendant anxiety of a man of that age, with health problems.  Since his conviction he awaited sentence anxiously and sent to prison, as he knew he was likely to be, and has spent about 9 weeks now in custody, with the almost inevitable deterioration in his health because he was subject to various regimes with medication and monitoring and adjustment, those having taken place because the facilities simply are not there.
33.	 LORD JUSTICE LAWS:  It is elementary; we have to balance those sort of problems against the general public interest in having allegations of this sort tried.  You might say he has been tried twice.
34.	MISS CLEMITSON:  He has.  
35.	 LORD JUSTICE LAWS:  Without a result. 
36.	MISS CLEMITSON:  There was certainly a suggestion by the second time that witnesses had spoken about their evidence since the first trial.  One cannot imagine that has not taken place since.
37.	 LORD JUSTICE LAWS:  Well, yes.  All right, thank you.  Is there anything else?  
(Short Adjournment) 
38.	 LORD JUSTICE LAWS:  In this case the Crown apply for a retrial.  The trial with which we have been dealing in the course of the appeal against conviction was of course itself a retrial.  So a further trial would be the third.
39.	The appellant is an elderly man now, with health problems.  It goes without saying that is by no means determinative.  We also think it important to recognise and emphasise the fact that the first two trials have, so to speak, ended with no final result are no sense whatsoever the fault of the complainant, who has not had her allegations tried out to a final conclusion.  That is a significant factor and we hope she may be told that we have had it very much in mind.
40.	However, we consider on balance that because of the considerable antiquity now of these charges, the fact that a further trial would, as we have said, be a third trial, and to an extent at least a condition of the appellant, the balance falls properly to be struck against the grant of a retrial and we decline so to order for those reasons.