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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Trotman & Anor, R v [2000] EWCA Crim 65 (8th December, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/65.html Cite as: [2000] EWCA Crim 65

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R. v. JEAN-PIERRE TROTMAN and ANTHONY KLITOU [2000] EWCA Crim 65 (8th December, 2000)

Case No: 9907573X3 and 9907639X3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 8^th December 2000

Lord Justice Kay:

1. Jean-Pierre Trotman is now aged 15 and Anthony Klitou is now aged 14. On 11 November 1999, they stood trial in the Crown Court at Wood Green before HHJ Lyons and a jury on an indictment containing 7 counts. Trotman was convicted of one count of common assault on a girl L (count 6 on the indictment) and one count of indecent assault on a girl N (count 7) and Klitou of the same offence of indecent assault against N (count 7). Trotman was acquitted of three counts of indecent assault on a girl K (counts 1, 2 and 3), one count of indecent assault (count 4) and a further count of common assault (count 5) on the girl L. Klitou was acquitted of one of the indecent assaults on K (count 1) and the indecent assault and both the common assaults on L (counts 4, 5 and 6). Klitou's acquittal on count 6 was by direction of the trial judge.

2. They both appeal against conviction by leave of the single judge and we would like at the outset to place on record our gratitude to both counsel who have addressed us in the case, Mr Keleher for both appellants and Mr McGuiness for the Crown for the admirably succinct and particularly helpful submissions that they made to the court.

3. The factual background to the alleged offences was that both the appellants and each of the alleged victims were children at the same school in the same class. It was the Crown case that horseplay between the boys and at least some of the girls stepped clearly over the mark of what was acceptable to the girls and became bullying of a physical and sexual kind that was beyond anything to which the girls might have agreed. The defence was that there was significant exaggeration by the witnesses called by the Crown of the events and that such conduct as had occurred was no more than friendly horseplay involving an ongoing game of "dares" in which the girls were every bit as much willing participants as the boys.

4. The allegation made in Count 7 was that on 30 March 1999, the two boys had sat next to N in class and during a lesson, whilst the room was dimly lit because a video was being shown, indecently assaulted her, each initially touching her on a breast over her top clothing. Then Klitou undid her bra and both put their hands under her top trying to touch her breasts. Trotman then tried to put his hand up her skirt. Klitou then undid the buckles on the kilt that she was wearing and both put their hands up her kilt, Trotman managing to put his hand half inside her knickers. She was able to stop him from going further and removed his hand. There was further touching of her breasts and then Trotman undid his trousers, took her hand and put it between his legs. The indecent conduct, which she had sought to resist, had continued even after the teacher was in the room and continued after the bell until Trotman's trousers fell down and she was able to get away.

5. N had complained to the teachers that day and the Headmistress had investigated her complaint. During the course of the investigation other complaints were made by girls, both of the matters alleged in the indictment and about other matters involving the appellants and other boys. One of those was count 6. The particulars to that offence alleged that both appellants had assaulted L by "firing a pellet into her face". As indicated, Trotman alone was convicted of this matter. Klitou was acquitted on the direction of the judge. This offence was alleged to have taken place about 15 days before the indecent assault on N. The allegation was that Trotman had brought an air pistol to school that fired plastic pellets. He had started waving it about in a History class and the other children started ducking under their desks. The teacher had asked what was going on. Trotman had discharged one pellet hitting a boy who had his coat over his head causing a bruise through the coat. At the end of the class they had left the room and the boys had cornered L in a little alleyway near the boy's toilets. They were telling her to lift up her top and Trotman had fired another pellet from the air pistol striking her in the face.

6. It is convenient to consider first a point taken on behalf of Trotman, namely that the court had no power to try the count of common assault against each appellant. To consider this it is necessary to recount the circumstances in which this count came to be on the indictment. The case reached the Crown Court by transfer under section 53 of the Criminal Justice Act 1991 ("the 1991 Act"). Sub-section (1) of that section as amended by the Criminal Justice and Public Order Act 1994 ("the 1994 Act") referring to the Criminal Justice Act 1988 ("the 1988 Act") provides:

"If a person has been charged with an offence to which section 32(2) of the 1988 Act applies (sexual offences and offences involving violence or cruelty) and the Director of Public Prosecutions is of the opinion -

(a) that the evidence of the offence would be sufficient for the person charged to be committed for trial;

(b) that a child who is alleged -

(i) to be a person against whom the offence was committed; or

(ii) to have witnessed the commission of the offence, will be called as a witness; and

(c) that, for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court,

a notice ("notice of transfer") certifying that opinion may be given by or on behalf of the Director to the magistrates' court in whose jurisdiction the offence has been charged."

7. Subsection 3 provides that upon transfer the functions of the magistrates' court shall cease (save for some that are not relevant to the issues in this case). Subsection 4 provides that no right of appeal lies against a decision to transfer. By Schedule 6 paragraph 1(2) the notice is required to specify the charges to which it relates. The transfer in this case specified the charges as those that were eventually contained in the indictment, i.e. both allegations of indecent assault and of common assault.

8. Section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933 ("the 1933 Act") provides:

"Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless either -

(a) the person charged has been committed for trial for the offence; or ...

(ab) the offence is specified in a notice of transfer under section 53 of the Criminal Justice Act 1991 (violent or sexual offences against children); or ...

Provided that -

(i) where the person charged has been committed for trial, the bill of indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed to the magistrates' court inquiring into that offence as examining justices, being counts which may lawfully be joined in the same indictment;

(iA) in a case to which paragraph ... (ab) above applies, the bill of indictment may include, either in substitution for or in addition to any count charging an offence specified in the notice of transfer, any counts founded on material that accompanied the copy of that notice which, in pursuance of regulations under the relevant provision, was given to the person charged, being counts which may lawfully be joined in the same indictment;

.........."

9. Section 2(3) provides:

"If a bill of indictment preferred otherwise than in accordance with the provisions of the last foregoing subsection has been signed by the proper officer of the court, the indictment shall be liable to be quashed:

Provided that -

(a) if the bill contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this subsection; and

(b) where a person who has been committed for trial is convicted on any indictment or any count of an indictment, that indictment or count shall not be quashed under this subsection in any proceedings on appeal, unless application was made at the trial that it should be so quashed."

10. The 1994 Act would have amended (b) to substitute for the words "where a person who has been committed for trial .." with "where proceedings against a person have been transferred for trial and that person ..". However that amendment has never been brought into force.

11. Mr Keleher on behalf of Trotman submits that there was no power to include in the indictment any count of common assault. He bases that argument on the provisions of section 39 of the Criminal Justice Act 1988 which provides that "common assault and battery shall be summary offences". He argues that there is no power to include a summary offence in an indictment save in limited circumstances provided for by statute. Common assault can be included in an indictment under section 40 of the 1988 Act but the circumstances are limited. Section 40 provides:

"1) A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge -

(a) is founded on the same facts or evidence as a count charging an indictable offence; or

(b) is part of a series of offences of the same or similar character as an indictable offence which is also charged,

but only if (in either case) the facts or evidence relating to the offence were disclosed to a magistrates' court inquiring into the offence as examining justices or are disclosed by material which, in pursuance of regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998 (procedure where person sent for trial under section 51), has been served on the person charged."

12. By subsection 3, common assault is an offence to which the section applies. However, Mr Keleher argues that this was not a case committed for trial nor one where there was a transfer under section 51. Therefore, section 40 cannot justify the inclusion of such a count in the indictment.

13. Mr McGuiness on behalf of the prosecution concedes, rightly in our judgment, that the requirements of section 40 were not met and the inclusion of counts of common assault cannot be justified under that section. However he argues that such inclusion is permitted by section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933. Mr Keleher argues to the contrary.

14. Before considering the merits of these arguments, it is necessary first to decide whether the court is prevented from hearing an appeal by the provisions of section 2(3)(b) of the 1933 Act since no application was made at trial to quash the counts of common assault. Thus the question arises as to whether Count 6, the only count of common assault upon which the jury convicted, can be quashed in this appeal. In Wrench [1996] 1 CAR 340, this court considered this issue and concluded that no appeal on this basis was possible in these circumstances. We would feel ourselves bound to follow that decision unless we were sure that it was wrong.

15. In this case, the prosecution has conceded that Wrench is wrongly decided but it is clearly necessary for us to reach our own conclusion. The prosecution's concession is based on the language of the sub-section, which applies only where a person has been "committed for trial". Schedule 1 of the Interpretation Act 1978 defines this expression as:

"In relation to England and Wales, committed in custody or on bail by a Magistrates Court pursuant to section 6 of the Magistrates Court Act 1980, or by any judge or other authority having power to do so with a view to trial before a Judge and a Jury"

16. Quite clearly the appellant was not committed for trial pursuant to section 6 of the Magistrates Act 1980. The only question is whether it can be said that he was "committed" for trial "by other authority". Counsel for the prosecution has pointed to a number of distinctions drawn in various statutes between committal and transfer for trial and thus accepts that they cannot be equated. His reasons are threefold. First that Section 2(2) of the 1933 Act draws a distinction between an offence where a person has been committed for trial (section 2(2)(a)) and an offence specified in a notice of transfer under section 53 of the 1991 Act (section 2(2)(ab)). The second, and perhaps the most significant, is by reference to the 1991 Act itself, which was the Act that contained the power to transfer used by the prosecution in this case. Schedule 6, which is given effect by section 53(5), sets out the procedure to be required on such a transfer. It is headed "Notices of Transfer Procedure In Lieu Of Committal". It is conceded that Parliament in creating this new provision for transfer was drawing a clear distinction between committal and this form of transfer. The third relates to the 1994 Act. This Act would if brought into effect remove the function of the magistrates' courts as examining justices and replace committals with transfers for trial. As we have already noted, one of the consequential amendments would be to replace the words in section 2(3) of the 1933 Act "where a person who has been committed for trial .." with "where proceedings against a person have been transferred for trial and that person ..". Thus it would seem that a clear distinction is being drawn or there is no need to amend the sub-section.

17. We accept these arguments as valid and we are satisfied that the joint position of both parties that Wrench was wrongly decided in this respect is correct. In fairness to the court in Wrench it does not seem that the arguments, which we accept, were put before the court. We are, therefore satisfied that the validity of the indictment can be challenged notwithstanding the failure to raise the matter at trial.

18. Accordingly, we turn next to the issue of whether a count of common assault can be included in an indictment following transfer under section 53 of the 1991 Act by reason of proviso (iA) to section 2(2) the 1933 Act. Mr McGuiness argues that the wording of that section permits the Crown following transfer under section 53 of the 1991 Act to include any count founded on material that accompanied the transfer notice. He contends that this is not restricted to offences that are triable on indictment and certainly does not restrict the inclusion of an offence such as common assault which can in certain circumstances be tried on indictment.

19. Mr Keleher submits that this argument is wrong and that the section only permits the trying of another indictable offence or offence triable either way. Common assault is not such an offence since it can only be tried on indictment in the very restricted circumstances provided by section 40 of the 1988 Act and not otherwise.

20. We think that it is important to start, as Mr Keleher did from section 39 of the 1988 Act. Parliament in that section specifically provided that the offence of common assault was to be tried summarily. In the next section, section 40, it laid down very limited circumstances in which there could be a departure from section 39. In our judgment those provisions are quite clear and mean that unless section 40 applies, common assault must be tried summarily. It is not, therefore, an offence that may be included in any indictment unless and until the requirements of section 40 have been met. Accordingly it does not satisfy the requirements of proviso (iA) to section 2(2) the 1933 Act as being a count that "may lawfully be joined in the same indictment" as counts upon which there has been a transfer under section 53 of the 1991 Act. The position would be exactly the same for a purely summary offence and it is to be observed that the Court in Wrench observed (at page 348G):

"We would observe that we doubt whether a purely summary offence can be lawfully joined in the same indictment as an indictable offence unless section 40 of the 1988 Act is applicable."

21. For these reasons, we are satisfied that the trial of the common assault count was invalid and that accordingly his conviction on a count that could not be tried in the same indictment cannot stand and must be quashed. It is accepted on both sides that this does not invalidate the rest of the trial and we must therefore consider the separate arguments advanced on behalf of each appellant in respect of the convictions for indecent assault.

22. Mr Keleher contends that the trial judge failed to sum up properly to the jury the evidence, that he misdirected the jury as to the effect and weight of the evidence of a witness whom he had ruled to be a hostile witness.

23. It is necessary to deal separately with each of these challenges and we start with the question of misdirection. Mr Keleher submits that there were numerous and significant contradictions between the evidence of the alleged victim of count 7 and the other witnesses present when the offence was allegedly committed. He complains that the trial judge failed to remind the jury of those contradictions. He further complains that the trial judge failed to refer to "any evidence which contradicted the prosecution case or supported the defence case". A further specific complaint is made about a reference by the Judge to "counsel's rules for evidence" to which we shall return when we have dealt with the more general criticisms.

24. We have read with care the summing up. We do not consider that it was other than a balanced and fair statement of both side's cases. The trial judge made it clear to the jury that he was not going to deal with all the evidence that had been given and gave them an appropriate warning that they must have regard to those matters that he did not mention but which they considered important.

25. As one would expect the summing up followed shortly after the two speeches made on behalf of the appellants in which all the points that the defence wanted to make had been made. The judge made clear that in so far as arguments had been advanced in these speeches the jury should have regard to them provided they accepted the arguments.

26. Mr Keleher has taken us through a number of individual matters, not because he suggests that any one on its own would lead to a successful appeal but because as he puts it they illustrate how the trial judge "ironed out" all the deficiencies in the prosecution case. We do not propose to go through this list of matters having regard to the use counsel had made of them. It suffices to say that we have considered them individually and collectively and we do not think that they justify the criticism made of the trial judge. We think the defence cases were properly outlined for the jury and that the overall impression, after consideration of these individual points, remains one of an even handed approach. We certainly do not find anything that causes us to believe that the resulting convictions were unsafe.

27. We turn to the next ground relating to the hostile witness. One boy, A, gave evidence that departed from his statement to the police. The Crown applied for and was given leave to treat him as hostile and put to him his inconsistent statement. On being shown his statement he adopted it as the truth.

28. The judge reminded the jury of what had occurred when A gave evidence and then said:

"What you have to decide in a situation like that is how much you rely on such a witness, whether you think he was trying to hide things from you or whether he had forgotten, or whether he was changing his account in any way "

29. Mr Keleher contends that the judge needed to add to this a specific direction that the evidence of this witness should be treated with great caution. That was not only because he was treated as hostile, but also because he had made two statements that contradicted one another and because he had to be treated as a potential accomplice since his initial statement was made when he too was under investigation.

30. We believe that in the context of this case, the judge's warning taken with all he had to say about this witness enabled the jury to deal adequately with the problems that had to be faced because of his differing accounts and conduct. These were essentially issues for the jury and the warning can only have served to reinforce criticisms made of his evidence in closing speeches on behalf of the appellant and to make clear the very obvious need for caution. We do not consider that this renders resulting convictions unsafe.

31. The last point to be considered is something said by the trial judge in respect of counsel's speeches. The passage complained of reads:

"You will now be used to what I call counsel's rules for evidence. They may be summed up be they prosecution and defence as this. Any witness who agrees with what I want to say is truthful and reliable. Any witness who does not agree with what I want to persuade you of is unreliable and untruthful."

32. It is said that this passage was unfair and did not reflect a proper approach to consideration of the submissions. We think that the comment was unhelpful. Counsel have a responsibility to advocate their case and to remind the jury of those parts of the evidence that support their case. However, there are two reasons why we do not think that this can have led to an unsafe verdict. First the remark was specifically directed to the prosecution as well as the defence. Secondly, the judge went on to say:

"That is the job of counsel to persuade you to a case. They will therefore pick up the evidence that they want to impress upon your minds, rub it on the gown and show it to you, as I have said, if you agree, fine. If you don't, go your own course."

33. In that passage the judge made clear to the jury the proper approach to counsel's submissions and taken as a whole this aspect of the summing up cannot realistically be said to have harmed the defence.

34. We have, therefore, concluded that the conviction of each appellant on count 7 was safe and we dismiss the appeals against those convictions. As earlier made clear, we allow Trotman's appeal against Count 6.

35. That disposes of the appeal. However, we wish to make comment on one further aspect of the case. In our view it was highly undesirable that this case involving witnesses and defendants of such an age ended up being tried in the Crown Court. We are precluded by section 53(4) of the 1994 Act from considering by way of appeal the correctness of the decision to transfer these proceedings to the Crown Court. Thus it seems all the more important that decisions to transfer a case involving children to the Crown Court should only be taken for very grave offences.

36. If this matter had proceeded by way of committal, pursuant to section 24 of the Magistrates' Courts Act 1980 ("the 1980 Act"), the magistrates would have been required to consider not only whether there was a prima facie case but also could not have committed the appellants for trial in the Crown Court unless the court considers that if they were found guilty of the offence it ought to be possible to sentence them in pursuance of section 53(3) of the Children and Young Persons Act 1933 (now section 91(3) of the Powers of Criminal Courts (Sentencing) Act 2000).

37. No bench could properly have thought that that pre-condition was met in this case and hence would have been bound to proceed summarily. Indeed even after conviction the Court concluded in each case that a supervision order was the appropriate penalty. We consider that there should be no transfer to the Crown Court for trial of a child unless the Director of Public Prosecutions (acting through those who are empowered to make such decisions) can conclude that a magistrates court would be likely to find the requirements of section 24 of the 1980 Act were met. To demonstrate that it has been considered, a statement to this effect should be included in the transfer notice.

38. If that had been done in this case all concerned, including importantly the prosecution witnesses, would have been spared the ordeal of a trial at the Crown Court.

39. In the circumstances, we propose to direct that a copy of this judgment be sent by the Registrar of the Court of Appeal Criminal Division to the Director of Public Prosecutions so that he may consider whether guidance needs to be given to those responsible for such decisions on his behalf to avoid a repetition of what occurred in this case.