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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bill, R. v [2010] EWCA Crim 612 (19 January 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/612.html Cite as: [2010] EWCA Crim 612

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19th January 2010

1. LORD JUSTICE LAWS: There are three matters before the court relating to this appellant. We will deal with them in the order in which the appellant was tried in relation to them. There is first his appeal against his conviction with leave of the single judge of an offence of attempting to abduct a child. We shall refer to this case as 406, from the Criminal Appeal Office reference number. Secondly, there is a renewed application for leave to appeal against the sentence of 18 months' imprisonment for an offence of indecent assault. We shall refer to this application as case 906. Lastly there is a renewed application for leave to appeal against his conviction of 16 offences of making indecent photographs of a child and two of possessing indecent images of children. We shall refer to this application as case 189.
2. The appellant was convicted of the attempt offence in case 406 by the jury at the Mold Crown Court before His Honour Judge Philip Hughes after a re-trial on 9th August 2008. He was convicted of the indecent assault offence in case 906, again at the Mold Crown Court, on 29th October 2008. He was convicted of the offences relating to indecent images in case 189 at the Mold Crown Court before Mr Recorder Jenkins on 6th February 2009.
3. On 11th March 2009 he appeared for sentence in relation to all three matters before Judge Hughes at the Caernarfon Crown Court. On 406 he was sentenced to four years' imprisonment; on 906, 18 months' consecutive; on 189 he was sentenced in all to six months' imprisonment, again consecutive, less 523 days spent in custody on remand. He was required to comply with the provisions relating to notification as a sex offender for ten years and a Sexual Offences Prevention Order was made until further order pursuant to sections 104 and 106 of the Sexual Offences Act 2003.
4. We turn first to the facts of 406. The relevant events happened on 22nd June 2007 when the complainant, a girl nearly six years old, to whom we shall refer as "G", was returning home from a nearby park. She walked along the right-hand side of a road or street called Watt's Dyke Avenue. The Crown's case was that the appellant had been cruising around an area called the Strand Estate looking for an opportunity to pick up a child. He saw G, drove across to the wrong side of the road, and parked in front of her. He got out of his car, leaving a door open. He engaged G in conversation. Her evidence was that he asked her if she had seen a cat, or it may have been a black cat. However, any intention he had to abduct the child got no further because a man called Wayne Foster, who was to tell the jury that he regarded himself as G's uncle, came round the corner. He saw G walking in the middle of the road and told her to get back on the pavement. He saw a man, plainly the appellant, standing by the car. G went home. The appellant drove off but remained in the vicinity, making slow circuits of the estate.
5. He was arrested on 28th June 2007 on suspicion of attempted kidnap. At trial he accepted he had been driving slowly round the Strand Estate but said he was trying to free up his brakes. The brakes were at some stage examined and nothing wrong was found.
6. The issue for the jury was whether the appellant intended to abduct G, and if he did whether his actions were more than merely preparatory to committing the offence.
7. With the judge's permission granted under section 101(1)(d) of the Criminal Justice Act 2003, the Crown adduced what was said to be bad character evidence relating to the appellant. This was evidence of earlier occasions when the appellant had gone to the Ty Mawr Caravan Park, where there was a children's playground. The appellant had been seen there, standing or walking around, always near to the playground apparently looking at the children. It seems that at least on one occasion he had left a door of his car open. He was involved in a firm called Playquest which had installed the playground. Witnesses were troubled by his conduct and the time came when the police were notified. Sergeant Jones attended Ty Mawr on 27th August 2005 and warned the appellant about his behaviour.
8. The appellant gave evidence in his defence. His case was that he had had no intention to abduct any child. He had no recollection of seeing G and did not speak to her. He had spent time at Ty Mawr looking at the playground because he had installed it and took a professional pride in it.
9. All the appellant's grounds of appeal against conviction relate in one way or another to the Ty Mawr evidence. Put various ways, it was said that the evidence should not have been admitted and that having admitted it the judge gave directions to the jury concerning it which were faulty. Broadly, the single judge gave leave in relation to the latter complaint, grounds 6 and 7, but not the former, grounds 1 to 5. The appellant by counsel Mr Potter seeks to renew his application in relates to grounds 1 to 5.
10. We turn to the facts of case 906. This offence is said to have happened in 1998. The complainant, "H", was seven years old at the time. Her family were Jehovah's Witnesses and so was the appellant. He would invite the family into his home, sometimes taking the children there. H had a sister and a cousin, with no adult family members present. That was the situation on the occasion in question in the summer of 1998. H complained of feeling unwell. The appellant -- though of course for this case he is an applicant -- told her to go and lie down in a bedroom. He joined her there, closing the door and the curtains. He lay on the bed beside her. He put his leg over hers and stroked her hair. She felt a kind of knocking against her back. She looked round and saw that the appellant's hand was in the region of his groin. She felt uneasy and left the room. She told her sister. Her parents went to the church elders, who took the matter up with the appellant. He denied any improper conduct and there the matter ended for the time being. However, over time H's mother became concerned at the way the appellant handled H, and at length in July 2007 H gave a statement. She was then aged 16.
11. We shall give the appellant's personal details after describing case 189 to which we now come.
12. The indictment in this case contained 18 counts. The appellant was convicted on counts 1 to 10 and 12 to 17, each of which alleged an offence of making an indecent photograph of a child; and on counts 11 and 18, which alleged offences of possessing indecent images of children.
13. Before briefly describing the facts, we should explain what are called the COPINE categories of indecent images which serve to grade the seriousness of such images of children for the purpose of criminal proceedings. Category 1 denotes images depicting erotic posing but with no sexual activity; category 2, non-penetrative sexual activity between children or solo masturbation by a child; category 3, non-penetrative sexual activity between adults and children; category 4, penetrative sexual activity involving children or adults and children.
14. The appellant's convictions on the various counts reflect the following facts. His home was searched on 28th June 2007. Four computers and one laptop were seized. On examination one computer tower and the laptop were found to contain indecent images of children. The laptop contained 683 such images: 622 of category 1, 12 of category 2, 19 of category 3 and 30 of category 4. The laptop had been manufactured in October 2006, which the appellant asserts is relevant to what the Crown had to prove, since it meant that the hard drive had been in existence for eight months before it was seized by the police. The computer tower contained 47 relevant images: 42 of category 1, two of category 3 and three of category 4. It was manufactured in April 2003.
15. The laptop had two user accounts under the names "Bob" and "Robert". Bob referred to the appellant, Robert to his adult son of that name. There were no passwords. The account in the name of Bob appeared to have been used more heavily, and in evidence the appellant accepted he was the main user of the laptop. It was shown that someone using the Bob account had conducted internet searches directed to finding indecent images of children. The laptop was usually kept in the appellant's bedroom. There were also two user accounts for the computer tower, again Bob, the appellant, and the second was "Danny". That looks like a reference to the appellant's other son, Daniel. However, in evidence Daniel was to say he had not used either computer himself except to sort out problems his father had with them.
16. A submission of no case was made on the footing that the Crown had not shown and could not show that the appellant had made the images or knowingly possessed any of them. The learned recorder rejected that submission. The sole ground of appeal is that he was wrong to do so.
17. Now we turn back to case 406 and consider the merits of the appeal and application. The Crown sought to adduce the Ty Mawr evidence, as we have said, pursuant to section 101(1)(d) of the 2003 Act. Character evidence may be admitted under that provision if "it is relevant to an important matter in issue between the defendant and the prosecution". But it may not be admitted if "on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it": see section 101(3). Such an application was made by the appellant in this case.
18. Dealing with the Crown's application and the appellant's cross-application at the outset of the trial, the judge reminded himself of the leading case of Hanson [2005] EWCA Crim 824 and concluded as follows:

"It seems to me, having considered all the circumstances, that the gateway, section 101(d) does apply in this case. It seems to me that the evidence of what happened in Ty Mawr is relevant, it appears to be credible and I'm quite satisfied that it would not have such an adverse effect on the fairness of the proceedings for it to be allowed before the jury. Consequently the prosecution's application for the evidence to be adduced, that is to say from the witnesses Edward Malloy and Craig Deen, is allowed."

19. In seeking to renew the grounds on which the single judge refused leave, the appellant seeks to challenge this ruling. It is made plain in Hanson (paragraph 18) that "Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant". It is also right (see Archbold paragraph 13-67) that if conduct which has not resulted in a criminal conviction is relied on by the Crown as bad character for the purposes of the relevant provisions of the 2003 Act, then particular care is required. A principal reason is the risk of distracting the jury by presenting them with a collateral issue or issues to consider.
20. In this case the appellant's principal points in support of his argument that the judge should have excluded the Ty Mawr evidence are: first, the direct evidence adduced to support the alleged attempted abduction amounted, says counsel, to a weak case. In argument this morning he used the expression "finely balanced". Second, the Ty Mawr evidence, far from involving any criminal conviction, was capable of an entirely innocent explanation and was at the most ambiguous. Accordingly, even if it could be said to be possibly relevant to the appellant's intentions in relation to the child G, it should have been excluded under section 101(3).
21. We do not agree. The appellant's acts in driving around the estate for a considerable period, pulling over to the wrong side of the road so as effectively to be in front of G, leaving a car door open, confronting G who was a complete stranger, and asking a question plainly designed to put her at ease, constituted in our view a substantial case. Moreover, those who gave evidence of the appellant's activities at Ty Mawr apparently knew the appellant well, had no animus against him, yet were troubled enough to call the police. Varying interpretations of the evidence were very properly canvassed before the jury in evidence and speeches. A reasonable jury, in our view, was perfectly entitled to conclude that the appellant was loitering near the playground because he entertained a sexual interest in young children. That would constitute reprehensible behaviour which is part of the definition of misconduct given in section 112 of the Criminal Justice Act 2003, and a reasonable jury could certainly have concluded that a person so conducting himself would be more likely than another to attempt to abduct a child on another occasion.
22. We should say that even if there were doubt whether the Ty Mawr evidence was admissible as showing propensity under the statute, we consider it might well have been admitted at common law as similar fact evidence, as it used to be called: see DPP v P [1991] 2 AC 447.
23. There is no basis, in our judgment, for taking the exceptional course of overturning the judge's exercise of discretion, notwithstanding the fact (much emphasised by Mr Potter) that his reasoning when he gave his ruling is at most exiguous. The reality is that the judge was right to let this evidence in. The single judge was right to refuse leave on the grounds which challenge that conclusion and we will do the same.
24. We turn to the appeal on the terms of the summing-up. The principal thrust of the grounds for which the single judge did give leave is that the trial judge's directions to the jury concerning the Ty Mawr evidence undermined or even extinguished the benefit of the good character direction which he gave and to which the appellant was entitled. This is what the judge said:

"It's important that you should understand why you've heard about what happened at Ty Mawr and how you may use the evidence. Obviously you must not convict him of the charge on the indictment just because of what you've heard he was doing at the Ty Mawr park. The reason you've heard evidence about what the defendant did at Ty Mawr two years before the date on the indictment is because knowing about it may help you to resolve an issue that has arisen between the defendant and the prosecution, namely of whether the defendant has a propensity to commit the kind of offence with which he is now charged, namely attempting to abduct a child.

The prosecution say that the evidence given about his activities at Ty Mawr park demonstrates that he has an unhealthy interest in children and that therefore it makes it more likely that what he was doing in Holywell on the 22nd June last year was attempting to abduct a child. You must of course remember and keep in the forefront of your minds at all times that Mr Bill was never convicted of any offence arising out of what happened at Ty Mawr. In fact, he was never prosecuted for any offence.

Furthermore, Mr Bill advanced an explanation for what he was doing there and always maintained that he was acting innocently and that his behaviour was misinterpreted. However, providing you exercise caution and bear in mind those points you may use the evidence of what the defendant did in Ty Mawr, if you think it helpful to do so, when considering the issue of whether he has a propensity to commit the offence with which he is now charged.

In addition, you may also take the Ty Mawr evidence into account in two other ways if you think it right to do so. Firstly you may take it into account when deciding whether or not the defendant's evidence to you was truthful. A person, if he has a previous bad character, may be less likely to tell the truth but it doesn't follow that he is incapable of doing so. You must decide to what extent if at all the evidence of what happened in Ty Mawr helps you when judging his evidence and secondly, you may also take it into account, that's to say the Ty Mawr evidence, when deciding whether or not the defendant committed the offence with which he is now charged.

The prosecution point to similarities..."

Then after dealing with the similarities relied on by the Crown, loitering near children's playgrounds, leaving the car door open, and reminding the jury that they could not in any event convict solely on the strength of the Ty Mawr evidence, the judge delivered a conventional good character direction (see 9D to 10A of the transcript).

25. We would accept that in some respects the judge's directions, taken altogether, might be thought to be confusing. Thus the direction at 8F (about which we will have more to say) that the Ty Mawr evidence as evidence of bad character might make it less likely that the appellant was telling the truth sits uneasily with the good character direction at 9F that the fact that he has no previous convictions supports his credibility. Likewise, the direction at 8H that Ty Mawr might help the jury decide whether the appellant committed the offence now charged sits uneasily with the direction at 9F-G that the absence of previous convictions may mean that the appellant was less likely than otherwise to have committed this crime now. In addition, the judge's statement that the Ty Mawr evidence went to show a propensity to commit the kind of offence now charged is, on counsel's submission at least, of dubious accuracy; the real effect of the Ty Mawr evidence would be to demonstrate an unhealthy interest in children if the jury were to accept the Crown's submissions about that evidence.
26. Now, the fact that the appellant had no previous convictions could not of course itself require or justify the exclusion of the Ty Mawr evidence, and we have held that the judge was right to admit it. Assuming that the appellant was entitled to a conventional good character direction, the judge's task was to configure such a direction with the need to guide the jury as to the use they might make of the Ty Mawr evidence. In this task great care was needed. It was not sufficient simply to include in the summing-up specimen directions from the Judicial Studies Board without an analysis in the judge's mind reflected in his text of how the various matters with which he had to deal should fit together. So the background here is, with respect to the trial judge, unpromising.
27. What, in our judgment, tips the balance in favour of this appellant is the direction at 8F to the effect that the Ty Mawr evidence might make it less likely that the appellant was telling the truth. This credibility direction should not have been included. It was not an apt or proper direction in the circumstances of the case. Although it was followed very shortly after by the conventional good character direction, and counsel for the Crown submits that that direction as it were cured any vice that the credibility direction at 8F might have perpetrated, we are unable to exclude the reasonable possibility that the jury could have relied on that credibility direction. That reasonable possibility of itself makes the conviction unsafe, and the appeal must for that reason be allowed.
28. We should say we are not persuaded by any other aspect of the appeal. The judge's task was a difficult one, and although we have criticised the way in which this part of the summing-up was assembled there is in the end a single vice which has led us to allow the appeal, and that is the inclusion of the credibility direction.
29. We may turn next to the sentence application. We have already set out the facts of the indecent assault in case 906. As will be recalled, the sentence passed at the Caernarfon Crown Court on 11th March 2009 was one of 18 months' imprisonment.
30. The appellant was born on 15th March 1954 so is now nearly 56. As we have indicated, before these matters he had no previous convictions. He maintained his innocence of the offence to the author of the pre-sentence report.
31. The appellant had clearly groomed the child, H, and the offence was a serious breach of trust given the surrounding circumstances, but the child was not harmed physically, there was no exposure of genitalia, far less any genital touching. There was no encouragement to kiss or touch the appellant and no threats or cajolement. In these circumstances we have concluded that 18 months' imprisonment was too high. Nine months was the right sentence and such a sentence will be substituted for that of 18 months passed by the learned judge below. To that extent the application will be allowed. Leave to appeal is therefore granted, we treat the hearing as the hearing of the appeal and it succeeds to the extent indicated.
32. The appellant also seeks to appeal against one of the terms of the Sexual Offences Prevention Order, namely clause E, which prohibited the appellant from "until further order staying in any household, for even one night, where there is a child aged under 16 years present". At the sentencing hearing the appellant had proposed an amendment which would have allowed him to stay in the house where the children were family members. He had in mind his own grandchildren if supervised by a parent. That was rejected and the prohibition was justified by the Crown by reference to a statement of a friend of the family, Mr McIntyre. This statement suggested, on a hearsay basis, that the appellant was grooming a granddaughter for abuse. The appellant says there should have been a hearing at which the criminal standard of proof should have been applied to ascertain the correctness of this suggestion and that his rights under Article 8 of the European Convention on Human Rights have been violated.
33. In our judgment, the court was entitled to have regard to hearsay written evidence in this particular context. Any interference with the appellant's rights under Article 8 was in the circumstances a proportionate means of furthering the legitimate aim of preventing crime. It is to be noted, as the single judge noted, that it is always open to the appellant to apply for an amendment of the order. We reject this ground of appeal.
34. That leaves the application in case 189. In this case, dealing with the appellant's submission of no case to answer at the end of the Crown's evidence, the learned recorder dealt first with counts 1 to 10 and 12 to 17, the charges of making indecent photographs. He observes first (transcript 2E-G) that a person "makes" an image for the purpose of the relevant provision by opening an attachment and so revealing the image or downloading an image. The recorder observed that a forensic internet history report on both computers showed there had been access to child centred sites. That traffic was extensive and effected through the account name Bob, that is the appellant's account, in the case of the laptop which was kept in the appellant's bedroom.
35. The single judge specifically agreed with the trial judge's reasoning at 3C-F of the transcript as follows:

"It is the case here that the precise mechanism for the making of each image can't be defined with utter certainty as in some of the reported cases but the overwhelming probability on the evidence is that this was done by downloading from the internet. Whichever method was used, whether it was downloading, email attachment, the insertion of a CD Rom or by connecting one computer to another, the jury are entitled to infer, in my view quite properly, that the hand that operated the computer at the relevant time was that of the defendant if they thought that the evidence justified that conclusion and therefore that it was the defendant who made the image and was responsible for making the image on the hard drive. I therefore take the view that a jury properly directed may properly infer from that, if they wish, that the user on such occasion was this defendant, that he had an interest in child centred material and however the photographs were made, whether from the internet, from the insertion of a CD Rom, from email attachment or from a network, it would be open to the jury to find that the defendant was responsible for the making of each of the photographs with which he is charged in the counts that I have set out. Accordingly, the submission in relation to counts 1 to 10 and 12 to 17 inclusive fails."

We also agree with this reasoning.

36. On the counts of possession, 11 and 18, the recorder noted (at 4C) that possession of the images in question may be transient, "for a second or so while the image is on the screen and it does not matter that it cannot later be retrieved without specialist knowledge or specialist hardware". He referred to Atkins [2000] 2 Cr App R (S) 248 per Simon Brown LJ, as he then was, at 261. The recorder continued as follows, in a passage which again was specifically agreed to by the learned single judge:

"Now the way the prosecution put their case here is that the transient appearance of the image on the screen is sufficient for the purpose of possession. They do not allege the possession to be at the date of seizure, the 28th June 2007. They say that the transient possession when the image is on the screen on whatever date the defendant made it suffices. The dates expressed in the indictment are between the date of manufacture and seizure. In Atkins the DPP sought to go further as is apparent from the passage that I've just read and to prove possession whilst the images were stored in caches of which the defendant had no knowledge. That argument failed because knowledge of the caches was required but that is not this case. The prosecution cannot and do not say that the images were retrievable by the defendant or were allocated to directories or to folders and later deleted. There is no evidence to that effect. The prosecution just say they are there on the main drive and they were therefore once in the defendant's possession. I think that that submission is right. I think it is open to the jury to conclude that if they consider the evidence justifies it that those images were in the possession of the defendant at the time that they were on his screen. I therefore reject the submission made in relation to counts 11 and 18."

37. Again, we also agree. Mr Potter, presenting the application before us this morning, submitted that the Crown's case in truth depended on a series of speculations. We do not agree. Of course there was, as in nearly every case there is, a logical possibility that some explanation other than the appellant's guilt might be found for the presence of the images on the two computers, but the criminal standard of proof does not require the exclusion of every logical possibility; it requires that a reasonable jury be sure of the evidence of the defendant's guilt on the matter charged. A reasonable jury was entitled so to be sure in this case having regard to the way the matter was put by the learned trial judge in the rulings which we have cited. There is nothing in this application, which will be dismissed.
(Submissions on re-trial followed)
38. LORD JUSTICE LAWS: This case has some unusual features and we have considered rather anxiously whether to accede to the Crown's application for an order for a re-trial. We have concluded that the balance of justice favours that course being taken and we so order.
39. We have allowed the appeal and quashed the conviction, the relevant conviction obviously.
40. We specify the current offences which are quashed and offences the appellant is to be tried on: that is only the charge of attempted abduction in case reference number 406.
41. We direct that a fresh indictment be preferred. We direct that the appellant be re-arraigned on the fresh indictment within two months (section 8(1) of the Criminal Appeal Act as amended).
42. We are empowered to make certain supplementary orders. Direct that the appellant be held in custody or released on bail? Well now, he will have by now have served the sentences on the other matters if one takes out the four years for the abduction.
43. MR POTTER: Yes.
44. LORD JUSTICE LAWS: So without more he would be entitled to be released now?
45. MR POTTER: Yes.
46. LORD JUSTICE LAWS: What do you say about custody or bail?
47. MR POTTER: My Lord, the circumstances are these. He was originally arrested on suspicion of child abduction in June 2007, within days of the commission of that offence. He was held in custody for a few weeks but then released on bail, I believe in July of 2007. He was then on bail until October 2007, at which time he was re-arrested on a suspicion of interfering with a computer, which resulted in an acquittal at the direction of Mr Recorder Jenkins.
48. LORD JUSTICE LAWS: It sounds to me, and I have not consulted my Lords, that there may be some questions of fact or questions of the likely consequences of a grant of bail which we are probably in no position to go into today. I do not know what instructions Mr Hennell has, or for example whether there is information about where he would live and matters of that kind. I am inclined, subject of course to my Lords and to any submissions that you have to make, to direct that he remain in custody but that any application for bail may be made, as expeditiously as you like, to the relevant Crown Court. You would go along fully prepared and they would be able to deal with it in the ordinary way. Is that sensible? I think we are agreed on that course of action.
49. MR POTTER: I do not seek to dissuade your Lordships from that provisional view. There clearly is insufficient information before your Lordships today.
50. LORD JUSTICE LAWS: We will not grant bail but he may apply to -- which Crown Court would it be?
51. MR POTTER: Mold Crown Court.
52. LORD JUSTICE LAWS: We also have power to make representation orders for the re-trial. Presumably for solicitor and counsel?
53. MR POTTER: Yes, please.
54. LORD JUSTICE LAWS: Solicitor and one counsel for the re-trial.
55. The court is asked to direct that the venue for re-trial should be directed by the presiding judge for the circuit where the original trial took place. They have changed the circuit, they have taken Chester away from Mold.
56. MR POTTER: Chester is now part of the Northern circuit and Mold and the remaining courts in Wales are part of their own circuit. There will be representations before the presiding judge for a change of venue given the publicity in Wales of Mr Bill's convictions.
57. LORD JUSTICE LAWS: That is all the more reason for us to make this direction that the venue should be determined by the presiding judge on the Wales circuit.
58. I think those are all the matters that arise.
59. Thank you very much. We are obliged to counsel for their assistance.