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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> PF v R [2017] EWCA Crim 983 (20 July 2017) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2017/983.html Cite as: [2017] EWCA Crim 983 |
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ON APPEAL FROM THE CROWN COURT AT NORWICH
HIS HONOUR JUDGE BATE
T20160055
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE CHEEMA-GRUBB DBE
and
HIS HONOUR JUDGE ZEIDMAN QC
(sitting as a Judge of the Court of Appeal (Criminal Division))
____________________
PF |
Appellant |
|
- and - |
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REGINA |
Respondent |
____________________
Mr Andrew Oliver (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 30 June 2017
____________________
Crown Copyright ©
Lord Justice McCombe:
"In order to convict the Defendant of the individual count you are considering, the prosecution must make you sure that:
a) the genital touching took place in the way described on the Indictment and
b) he knew at the time that right thinking people would say touching his sister in this way (or her doing so to him) was indecent and
c) he knew at the time that this act was seriously wrong not merely naughty or mischievous."
"You asked the question 'At what age does someone become culpable?' The answer in English law is that somebody must be at least ten to be guilty of any criminal offence of whatever kind. In the particular context of these offences under that Act at the time which we're concerned, culpability and the proof thereof is reflected fully and in a very case specific way by the directions I've already given you. In other words, to prove culpability, or to put it another way, to prove the offence, you must be sure of all three ingredients in respect of each count that you're considering. In other words, proof the physical fact, the act happened at all, which is the main dispute, did that conduct take place of a sexual kind and if it did, did the defendant realise it to be indecent and seriously wrong in summary, so culpability as I say, don't worry about as it were, more general concepts. Those are matters for us lawyers. Your task, of course, is to focus on the facts that we've got in this case and apply my directions to them."
"I turn…to consider what must be proved to rebut the presumption and by what evidence…
A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief. […]
The second clearly established proposition is that evidence to prove the defendant's guilty knowledge must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act might be…
The cases show, logically enough, that the older the defendant is and the more obviously wrong the act, the easier it we to prove guilty knowledge. The surrounding circumstances are of course relevant and what the defendant said or did may go to prove his guilty mind…".
(See also L (A Minor) v DPP [1996] 2 Cr App R 501 (Divisional Court, Otton LJ and Newman J) at p. 504 B-C.)
"27 The direction was in our view deficient in one material respect. The presumption of incapacity could only be rebutted by the prosecution by clear positive evidence, not consisting merely of acts amounting to the offence itself, but that the defendant knew that his acts were seriously wrong as distinct from mere naughtiness or childish mischief."
The court referred again to the passage from Lord Lowry's speech in C which we have quoted above. The conviction on the relevant count was found to be unsafe and was quashed.
i) "It is said by the Crown that he sexually abused his younger sisters, [X and Y], by a mixture of coercion and bribery when the children were left to find for themselves outside of school hours because their father was working nights on the base and their mother was ill." [4D-E]
ii) On page 24, there are references to evidence of the children not having enough food and the Defendant using food and cigarettes to bribe his sisters for sexual intimacy.
iii) At pp. 25 E-G reference is made to Y's evidence that "Paul would give me a cigarette after sex. It wasn't as blatant as offering it beforehand, sometimes I didn't know I'd be rewarded. I didn't think it was a choice at the time, it was something I had to do so I thought I might as well have the fag. It was emotional and mental rather than primarily physical. He never threatened to beat me up. He threatened to do things to my sister or mum." [25E – G]
iv) At p. 26B-F the judge summarises X's evidence of the appellant's controlling behaviour towards the other children and the use of what amounted to bribery or reward as the quid pro quo of sexual favours: "She recalled that she did touch his penis and that she went on to do so a number of times in order to obtain access to cigarettes or food. Again, a common theme which is accepted is that the children always felt hungry".
v) The judge referred [at 28C] to X's evidence that "we felt we had to do it because he had food or goaded us in some way. We were fearful of him."
"It is common enough for children to engage in forms of sexual play and to endeavour to keep it secret, since even very young children may appreciate that it is naughty to engage in such play. The appellant's conduct went well beyond ordinary childish sexual experimentation, but this does not carry with it a conclusion that he understood his conduct was seriously wrong in a moral sense, as distinct from it being rude or naughty."
It seems to us that in a case where such sexual conduct of a nature of childish experimentation is admitted, it is particularly important to focus the jury's attention upon the evidence said to be properly capable of demonstrating that the particular defendant must have known that his conduct went well beyond the mere "rude or naughty" and to direct them that they must be satisfied by that evidence that the defendant knew that what he did was seriously wrong in the relevant sense. That did not happen here.