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||Neutral Citation Number:  EWCA Crim 1308
||Case No: 201205112 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Manchester Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TREACY
MR JUSTICE MACDUFF
MR JUSTICE DINGEMANS
Mr L J McNulty (instructed by Registrar of Appeals) for IA
C Wade (instructed by Registrar of Appeals ) for TA
S Robinson (instructed by Registrar of Appeals) for FA
P Cadwallader (instructed by Crown Prosecution Service) for the Respondent
Hearing dates : 11-12th July 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Treacy:
- These three applicants seek leave to appeal against conviction, their cases having been referred to the Full Court by the Registrar. The applicants were convicted in the Crown Court at Manchester on 7th August 2012 after a trial which had lasted about six months.
- IA and TA are husband and wife, respectively. They were convicted of Counts 1 and 2, trafficking a person into the United Kingdom for exploitation contrary to Section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
- Each of the three applicants was also convicted of counts of furnishing or permitting the furnishing of false information to obtain benefit contrary to Section 111(A) of the Social Security Administration Act 1992. IA was convicted on Counts 19, 23 and 24; TA was convicted on Counts 21, 25, 26 and 27; and FA who is the daughter of IA and TA and was convicted on Counts 20, 22 and 25. It will be noted that TA and FA were convicted on a joint count, namely Count 25.
- In relation to IA, the jury could not agree verdicts on three counts of false imprisonment and thirteen counts of rape. In relation to TA, the jury could not agree on the same three counts of false imprisonment. The jury found her not guilty on Counts 17 and 18, sexual assault and unlawful wounding respectively.
- The first two applicants live together in their matrimonial home at 11 Cromwell Road, Eccles. The third applicant lived in nearby Milton Road. There was another daughter of the family, TA2.
- The prosecution case was that the complainant, RB, was first brought to the United Kingdom from Pakistan in June 2000 by TA2 when she was about ten to twelve years of age, although her passport did not give her correct date of birth. She was profoundly deaf and without speech. On arrival she had entry clearance to work as a domestic worker in a private household on condition that she did not seek recourse to public funds.
- The Crown's case was that from her arrival she was compelled to work as a domestic servant at the home of IA and TA until June 2009 when she was discovered by the authorities. Between 2000 and 2005 annual applications were made for RB's leave to stay to be extended on the basis she was employed as a domestic worker by TA2. The Crown's case was that she was in fact being used as an unpaid domestic servant by the first two applicants.
- Counts 1 and 2 arise from the fact that the Ashars took RB back to Pakistan on two occasions to visit family, once in 2006, and again in 2009. On each occasion RB returned to the UK accompanied by TA, with IA following later. The two return journeys in March 2006 and January 2009 were the subject of the trafficking counts against the first two applicants, alleging that they arranged or facilitated the arrival of RB into the United Kingdom, with the intention of exploiting her. The Crown's case was that RB was forced to work, and that her life was controlled through violence.
- On 11th July 2005 an application was made, ostensibly by RB, for indefinite leave to remain in the UK. The application was supported by TA2 and TA. Indefinite leave was granted on 25th July 2005. This had the effect of lifting the restriction on claiming benefits. The Crown's case was that almost immediately after leave was obtained, fraudulent claims for income support, housing and council tax benefits were made on RB's behalf by the three applicants, either furnishing false information or permitting such information to be furnished. Claims were made on the basis that RB was unemployed and doing no paid or unpaid work; a false date of birth was submitted, and false documents such as sham tenancy agreements were furnished, as well as documents purporting to show a move to 13 Cromwell Road by RB. The Crown's case was that, in reality, her circumstances had never changed; she was always an unpaid domestic servant at 11 Cromwell Road.
- The Crown's case was based upon the evidence of the complainant, and their assertion that she was a truthful and honest witness upon which the jury could rely.
- IA's case on Counts 1 and 2 was that he had done nothing to arrange or facilitate RB's arrival in the UK. As to the benefit allegations, the accounts were clearly set up for RB's benefit. RB's allegations were denied. She had been coached and rehearsed by the police and her intermediary, Mr Flynn. RB herself was a manipulative liar, using her disability as a shield to avoid answering questions.
- TA's case was that RB was treated as a member of the family and was happy. When she returned to the UK in 2006 and 2009, RB had been insistent on returning. The benefit monies were obtained for RB, and had not been obtained dishonestly.
- FA's case was that she had not acted dishonestly in filling in the benefit application forms. The prosecution had proceeded on suspicion and guilt by association.
- The issues for the jury on the counts we are concerned with were as follows on Counts 1 and 2:
Did the applicants actively participate in arranging or facilitating RB's arrival into the UK? And, if so, did the applicant intend that RB would be exploited by being forced to work?
- As to the benefit counts, the issue was whether the applicants knowingly furnished or permitted to be furnished, false information with a dishonest intent to obtain benefits.
- Prior to the trial itself, there was a lengthy series of pre-trial and preparatory hearings covering more than forty days. In the course of these the judge made rulings (inter alia), as to (a) the competence of RB as a witness, (b) the admissibility of evidence of violence by TA and others towards RB pursuant to Section 98(a) of the Criminal Justice Act 2003, (c) special measures for RB, (d) the appointment of Mr Flynn to act as an intermediary for RB at the trial, despite objections as to the way he had performed his role prior to trial and asserted breaches of guidance by him.
- RB gave evidence in chief via fourteen video recorded ABE interviews, which were played to the jury over many days. Cross examination took place via a live link to a separate room. It took many weeks to complete in part due to the necessarily laborious process of eliciting evidence. During both the ABE interviews and in cross-examination questions were put to RB either by a police officer in the ABE interviews or by counsel at trial. A question would be put orally to a British Sign Language (BSL) Interpreter, who then signed the question in BSL to Mr Flynn, who was acting as the registered intermediary, both at the police station and at the trial. Mr Flynn himself was also profoundly deaf and without speech. Mr Flynn would then put the question to RB in an idiosyncratic sign language they had developed during a number of pre-ABE rapport meetings. Visual aids or pictures were also used. RB's replies to Mr Flynn were then signed to the BSL interpreter, who then voiced RB's answer to the police officer or counsel. An application by the defence for cross-examination of RB to be video recorded was refused by the judge.
- Each of the applicants gave evidence and about sixteen other witnesses gave evidence for the defence, countering RB's evidence as to the way in which she had been treated.
- The jury retired to consider its verdicts on 23rd July 2012. On 1st August 2012 after deliberating for over 25 hours, a juror wrote a note to the judge. It reported that another juror had used racist language about IA, referring to him inter alia as a "black bastard", and said that the jury should "throw the book at him". The note writer had objected and was about to write to the judge when other jurors persuaded him not to, saying that if he did they would have spent six months for nothing. The juror thought about the matter for about a day and felt that he should report the matter to the judge, and so wrote the note.
- There was discussion between judge and counsel, and Sander v UK  31 EHRR 44 was considered. The judge decided to carry out an investigation by calling jurors into court individually. Juror S, the subject of the note, admitted the accuracy of the note. She said she had made the remark in heated argument and apologised. She went on to add that other things had been said. She was asked if any other juror had made racist comments. Her initial reply was "in that room, no". The judge investigated further, and she confirmed that she was the only person to have made such remarks, either inside or outside the jury room.
- The other jurors were then brought into court one by one. They confirmed the accuracy of the note. They all said that no racial comment had been made by any other member of the jury in or outside the jury room. The judge did not specifically ask them about attempting to persuade the note writer not to report the matter to the judge. Defence counsel applied for discharge of the jury on the basis of contamination by the racist juror, who by then had been discharged. They expressed concern about that juror's reply "in that room, no". Although the implication had been withdrawn by her, there remained an issue as to her truthfulness. Any guilty verdict could not be regarded as safe, as it could be inferred that the discharged juror was intending to return a guilty verdict, and that the others, apart from the note writer, were prepared to return a verdict with her, without apparent concern for her racist views.
- The judge refused the application, stating he was satisfied that every juror had answered his questions truthfully, and that no other juror had made any racist comment. He recognised that other jurors had failed to observe a direction given to draw problems to his attention, but said that there was no evidence whatsoever that any of them was racially biased, or that they would not decide the case solely in accordance with the evidence. There was no basis upon which a fair-minded observer would in the circumstances conclude that this jury was biased. The judge then asked each juror in turn whether they were able to decide the case on the evidence in accordance with their oath, and whether their decision would be in any way affected by considerations of race, colour of skin or religion. Each juror individually confirmed that they could properly try the case. Accordingly, the judge ordered that the trial should continue.
- There is one further relevant matter which sets the scene for these various grounds of appeal. The jury, having disagreed on the allegations of rape concerning IA, a retrial was fixed for 5th December 2012. On that day Mr Flynn, the intermediary, raised concerns about his continuing to act. He said he was very concerned about the situation with the defence expert, Mr Nicholson, who had been present through the original trial, monitoring his work closely. He said he had previously worked with Mr Nicholson some years before and there had been a dispute between them over different methods of working. Mr Flynn's name was removed from a list of people working with Mr Nicholson's company.
- Mr Flynn expressed concern about this conflict undermining the work he was doing. It was a professional matter, not a personal matter. He felt that some of the questions asked in the original trial had been intended to undermine him, and were directed at him, rather than at RB.
- Following submissions, the judge put the intermediary oath to Mr Flynn and asked if he could properly and dispassionately fulfil his function as an intermediary for RB. After some confusion about his answer, Mr Flynn confirmed that he could not fulfil his function as intermediary and comply with the oath if Mr Nicholson was involved in the trial. The judge ruled that Mr Flynn could not take any further part in the trial because Mr Flynn had candidly said he could not now honestly and faithfully comply with his oath. The retrial had to be postponed.
Grounds of Appeal
- There are many grounds of appeal. Some of them (Grounds A, C, D and E) are common to one or more applicants, and we will deal with those first. Thereafter there are grounds relied on by individual applicants which we will take in turn.
(A) - The role of Mr Flynn, the intermediary
- All three counsel raised matters relating to the role of Mr Flynn as intermediary. We give leave.
- The arguments fell into two parts, the first of which related to Mr Flynn's role and performance during the trial. The second area related to the development at the start of the rape retrial when Mr Flynn indicated he could no longer continue as an intermediary. As to what occurred at trial, it was argued that it was important for an intermediary to be impartial, and that there was a real possibility in this case that Mr Flynn was not able to perform his functions at the trial impartially and objectively.
- There had been challenge to Mr Flynn's conduct in the pre-ABE process at the voir dire. Mr Flynn had given evidence and had been challenged as to his behaviour. The judge did not find that anything had occurred which would lead him to exclude the ABE interviews from evidence, and he did not accept a defence submission that because Mr Flynn had been challenged at the voir dire, and those issues were likely to be raised during the trial, it would be inappropriate for Mr Flynn to act as an intermediary during the trial. The judge felt that those matters could be properly handled as part of the trial process, and expressly approved the use of Mr Flynn as the trial intermediary after seeking written confirmation from Mr Flynn that he was prepared to act as intermediary, bearing in mind that it was possible that allegations might be made relating to his integrity. Mr Flynn confirmed that he was prepared to act on that understanding.
- The appellants submit that as matters transpired during the trial, challenges were made to the way in which Mr Flynn had, prior to trial, interacted with RB, and criticisms were made of the way in which he performed as an intermediary. There were complaints that on occasions Mr Flynn had oversimplified questions designed to test the witness by putting them in terms that she was lying. There were complaints that on occasion Mr Flynn had declined or objected to proceeding in a particular way, for example by using a timeline through which the defence wished to conduct some cross-examination. It was said that there were many occasions when Mr Flynn would say that the witness did not understand when she had previously appeared to answer questions on a topic with understanding.
- Overall it was submitted that this had a disruptive effect on the flow of cross-examination, that on occasion judicial intervention was required; that certain topics were not fully pursued in cross-examination, and that the cumulative effect would have been to arouse sympathy for RB and hostility towards the defence.
- Moreover, Mr Flynn gave evidence before the jury in the course of which his professional integrity was challenged. In those circumstances it was clearly unsatisfactory that he, as to some extent was a witness of fact, was assisting another witness of fact in describing events pertinent to the charges. What occurred at trial, it was said, justified the concerns expressed by the defence pre-trial, and their criticisms were further justified by the absence of a video recording of the intermediary work at trial with RB, a matter considered as a separate ground later in this judgment.
- As to this issue we note that during the course of the trial Mr Flynn's professional integrity was indeed called into question, and the judge interrupted proceedings so as to ensure that Mr Flynn understood that that was the case. He was anxious to see at that stage whether Mr Flynn felt he was in a position to continue. Mr Flynn's reaction was to say that he could, but the matter was adjourned so he could take advice, after which he indicated that he felt able to continue to act as an independent intermediary in the circumstances.
- He was aware throughout that his work was being monitored by experts instructed by the defence. There was Dr O'Rourke, who herself was able to understand and communicate sufficiently with RB, and who had seen her privately to assess her, and had been able to communicate on her own with her. In addition Dr O'Rourke was fluent in British Sign Language. Mr Nicholson, another expert, had specifically asked for a monitor to observe the interchanges between Mr Flynn and RB on the video interviews when played as her evidence in chief. During the course of the trial he raised issues of translation, both in relation to Mr Flynn, and also in relation to the BSL interpreter. From time to time during the trial issues were raised as to the accuracy of what Mr Flynn was conveying to the court and those appear to have been resolved. No evidence was called on behalf of any Defendant from an expert challenging what Mr Flynn represented RB as having said. When issues arose during the Crown's case, whether in relation to translation or other difficulties, they were dealt with by the judge in the normal way.
- As Section 29(2) of the 1999 Act makes clear, the function of the intermediary is to communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them. The intermediary must explain such questions or answers so far as is necessary to enable them to be understood by the witness or person in question.
- In the light of that we do not consider that a criticism that Mr Flynn had become no more than a relay interpreter carries any weight. He was acting as an intermediary as a result of the judge's decision after very detailed pre-trial argument. In performing his functions he was entitled to interject in order to ensure that RB could understand what she was being asked. We do not consider that his interjections have been shown to be intended to be disruptive, nor were they widespread. In the course of argument we were taken to certain examples, but we are unpersuaded that they had disruptive effect which resulted in an unfair handicap to the defence. If anything, the extremely lengthy cross-examinations of RB were permitted to go on far too long.
- Having examined the matter carefully, we do not think that this first limb of the argument is sustained. When the judge came to sum the matter up to the jury, he put fully and fairly to the jury defence criticisms made of Mr Flynn and of the process. He enabled the jury to consider detailed criticisms based on available guidance as to the use of and conduct expected of an intermediary. He put fully before the jury criticisms relating to Mr Flynn's independence and accuracy in his role. Moreover, the jury themselves had seen Mr Flynn cross-examined on that basis. After careful consideration of all the materials, we do not consider there is anything in this aspect of this ground.
- The other aspect of this ground arises from what occurred at the retrial when Mr Flynn said he could no longer follow his intermediary oath. At one point in the discussion at that time Mr Flynn said:
"I felt a lot of the questions like previous last time (sic) were more directed at me than at [RB], and I think that that was a way of undermining me and it did affect the way I work."
- Mr McNulty drew attention to that last phrase and submitted that it meant that this court could have no confidence that Mr Flynn had done his job as an intermediary properly in the trial with which we are concerned. He says that since his integrity in the previous trial was under challenge, that remark demonstrates that he must have been influenced by that challenge, and there was a risk that in those circumstances he might have made what RB had to say tally with what he was saying. That must, of course, relate to the pre-ABE contacts. Moreover, it was argued that since his professional difficulties with Mr Nicholson predated the first trial, there was a danger that Mr Flynn had not acted impartially during that trial.
- We do not regard the remark relied on as having the significance contended for. Both before and during the trial, the judge had considered and checked with Mr Flynn (who himself took advice) about his ability to act as an intermediary in the circumstances. At no stage during that trial did Mr Flynn indicate any difficulty in acting in accordance with his oath. The remark relied on does not demonstrate that Mr Flynn had not been true to his oath in the first trial. To our mind it demonstrates no more than Mr Flynn found the situation awkward or difficult. The fact that Mr Flynn came forward at the start of the retrial and indicated his misgivings and his feeling that at that stage he could no longer remain true to his oath is, in our judgment, a token of his integrity. At the point when he had come to that view, he made it known to the court. That does not mean that prior to that point he had been untrue to his oath, indeed it rather suggests to the contrary.
- We again note that there was no evidence adduced at the first trial from the defence to suggest that Mr Flynn had not in fact acted in accordance with his oath and was not reporting faithfully what RB said. We are unpersuaded that the episode at the start of the retrial provides any basis for challenging the integrity of the work done previously by Mr Flynn.
- Accordingly, neither strand of the arguments raised under this ground leads us to think that there was any impropriety or unfairness in the proceedings. We reject this ground.
(B) – The judge's refusal to exclude RB's evidence at the close of the prosecution case
- At the end of the prosecution case Mr McNulty, on behalf of IA, indicated that he wanted to make a submission to exclude all of the video recorded ABE interviews of RB. This issue had already been very extensively canvassed as part of the preparatory hearings.
- A voir dire lasting forty two days had taken place. In the course of that the judge had heard evidence from many witnesses involved in the investigation of the case and the process of conducting the ABE interviews. There was extensive investigation of the role of Mr Flynn, the intermediary, and of the procedures adopted in lengthy contacts between Mr Flynn, RB and the investigating officers during the pre-ABE phase of the case in which Mr Flynn sought to build up a rapport with RB and establish a working means of communication with her.
- The matter was examined in minute detail, notes, journal entries, and emails relating to the pre-ABE meetings having been provided to the defence. There had been extensive reference to the Intermediary Procedure Guidance Manual published by the Office for Criminal Justice Reform (October 2005). There was also reference to Achieving Best Evidence: Guidance (2007 Revision).
- The defence objected to the admissibility of the ABEs because of the way they said Mr Flynn had conducted himself, resulting in asserted breaches of the guidance. They relied on Section 27(2) of the 1999 Act which provides that a special measures direction may not provide for a video recording to be admitted if the court is of the opinion, having regard to all the circumstances, that it is not in the interests of justice for the recording to be admitted.
- The judge analysed a series of points about the way Mr Flynn had been involved in the process as well as taking account of the opinions of a defence expert, Dr O'Rourke, whose view was that Mr Flynn had improved the reliability of the ABE interviews, and whose evidence, in the judge's view, substantially undermined the defence arguments relating to Mr Flynn. The judge considered the asserted departures from the guidance and concluded:
"The main thrust of these points is consistency and suggestibility which I have dealt with above. The whole process of pre-interview visits to RB is entirely transparent because the police kept detailed notes. In my judgment those meetings did not in any way amount to, or even come close to amounting to, witness training or coaching. What is left are jury points nothing more."
- The judge held that there was no basis for excluding the ABE interviews, either by reference to Section 27(2) or under Section 78 of PACE 1984.
- After that exhaustive investigation pre-trial, which was then followed at trial by an examination before the jury of similar issues, Mr McNulty sought to raise the point of admissibility again at the close of the Crown case. The judge was unwilling to entertain the submission. He said that nothing new had arisen during the trial so that it was not appropriate to revisit this aspect of the case.
- Before us Mr McNulty submitted that there had been a development during the course of the trial which warranted a re-opening of the matter. The judge's reference in his original ruling to the process being "entirely transparent because the police kept detailed notes" had now been undermined. The officers present at the pre-ABE meetings had given evidence that they did not know what RB had said to Mr Flynn at those meetings. They had merely noted what he had relayed to them through the BSL interpreter at the time. There were clearly exchanges between Mr Flynn and RB which resulted in discussion between them so that he could conclude in his own mind what she was saying before he purported to pass on her comment.
- Thus, submitted Mr McNulty, the absence of a full record of interchanges was an important new factor justifying the application, which if heard in full by the judge at this stage, would have resulted in the evidence being excluded on the basis that it rendered the proceedings unfair in the absence of a full recording (for example by video) of what had taken place.
- We do not consider that there is any substance in this complaint, which was also supported by counsel for TA. The guidance given is exactly that. It is clear that the guidance has to be tailored to the individual witness and the circumstances of the case. The guidance undoubtedly places emphasis on the need for a full written record of intermediary involvement. It seems to us that the matters now relied by Mr McNulty must have been obvious to all concerned during the course of the very lengthy voir dire. The modes of communication involving RB, Mr Flynn and the BSL interpreters were all known then. Very extensive notes and other materials recording what was taking place were compiled. The judge was clearly impressed with the transparency of the exercise.
- We do not consider that the matters now relied on by Mr McNulty represent any significant change in the situation. In the circumstances the judge was entitled to decline to reopen the issue. Had he chosen to do so, the result would have been the same. There was nothing which could arguably have led the judge to rule out the evidence. In the course of his ruling, the judge incorporated by reference his earlier ruling in which he had carefully set out Section 27(2) and Regina v Camberwell Green Youth Court [ex parte D] UKHL 4. He then referred to R v K  2 Cr App R 10 where Lord Justice Hooper at paragraph 23 endorsed the test:
"Could a reasonable jury properly directed be sure that the witness has given a credible and accurate account on the videotape, notwithstanding any breaches?"
- Mr McNulty also complained that at the close of the Crown case the judge would not permit him further to cross-examine Mr Flynn about his qualifications and the accuracy of answers given in the ABE. By that stage Mr Flynn had already been extensively cross-examined in the voir dire. He had also been cross-examined before the jury in the trial, and his competence and impartiality called into question then. The judge was fully entitled in exercising his case management powers to decline to give Mr McNulty a further bite of the cherry.
- We do not consider that there is any arguable point and refuse leave on this ground.
(C) – RB's competence
- We give leave in relation to this ground.
- Section 53 of the Youth Justice and Criminal Evidence Act 1999 provides:
"(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence….
(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to – (a) understand questions put to him as a witness, and (b) give answers to them which can be understood."
- Section 54(2) provides that the party calling the witness must satisfy the court of competence on a balance of probabilities. Section 54(3) provides that in determining competence, the court shall treat the witness of having the benefit of any special measures.
- The judge had been asked to rule on competence at a pre-trial hearing as long ago as 24th May 2011. In doing so he had before him the statutory provisions; he had read all the ABEs; he had sampled the DVDs of those ABEs; he had heard evidence from Dr O'Rourke, a defence witness who had examined RB. Dr O'Rourke's evidence provided significant support for the judge's own views. She concluded that RB was not particularly suggestible, that she had the capacity to give an account, albeit she had difficulty with abstract concepts and issues outside her experience.
- Dr O'Rourke's first report stated:
"In terms of her participation in proceedings, I do not find that she lacks capacity generally, although the court would be aware that, when under examination and cross examination, her responses to questioning maybe unclear. This is in contrast to her ability to give a free narrative account of her alleged experiences."
- The second report from Dr O'Rourke included this:
"The issue of [RB's] competence lies, not in an impaired intellectual ability, but in a lack of experience of the world and lack of exposure to effective communication, i.e. British Sign Language. In spite of this, in many areas, she is skilled and perseveres well to make herself understood."
- In the light of those observations, we do not think that the judge's initial decision is capable of realistic challenge.
- The submissions made to us are based on the further submissions made at the conclusion of the Crown's evidence. It is submitted that during the course of the trial difficulties arose which cast doubt upon the competence of RB. This was said to be particularly so in cross-examination. It often took a great deal of time and perseverance to obtain an answer, and the defence found it difficult properly to cross-examine in relation to inconsistencies.
- Regrettably an attempt to obtain a transcript of the cross examination has been unsuccessful. However, we have the benefit of detailed notes from prosecution and defence. We have examined those notes. We have to say that whilst there were undoubtedly difficulties in cross examination, very often the forensic techniques used to challenge the account being given by RB or to seek to demonstrate inconsistency are in reality examples of questioning where the questioners failed sufficiently to adapt their questions in order to take account of RB's difficulties in communication.
- The Crown accepts that the witness was not clear on every point raised and could not give an answer on certain topics. However, it submits that it is necessary to look at the totality of the position. One example cited on behalf of the Appellants is an asserted failure to be able to respond to questions about benefits. We have examined that, given the focus placed on it. It seems to us that RB was sufficiently clear in explaining that she did not understand the benefits system. However, she was clear about what she had done or not done in this case. She recognised her signature on benefit forms, but said she had signed many forms at TA's instigation. She could not read what was on those forms. She had been taken to the bank where forms were signed, and money taken out, which was then kept by TA.
- As stated the defence invited the judge to review the competence position at the end of the prosecution evidence. The judge considered the complaints made and rightly observed that the matter was a question of judgment. The judge acknowledged that the process of giving evidence was very slow and cumbersome, and that on occasions Mr Flynn, the intermediary, had struggled to interpret questions in a way which RB could understand. He accepted that RB was unable to answer a number of questions, particularly in relation to asserted inconsistency. However, his conclusion was that the witness had given clear understandable answers on the main areas of the case and, reviewing the statutory test, he remained of the view that RB was a competent witness.
- An ancillary point raised was that the lengthy cross examination might have appeared oppressive, thus generating sympathy for RB. That of course is not a competence issue. In any event the judge said he would give a suitable direction to the jury in that regard, and in due course, he did so.
- The initial position of the judge was that RB was a competent witness. He was well placed to revisit that conclusion after his experience of the conduct of the trial. He acknowledged that there had been difficulties and areas where the witness could not answer questions.
- In R v Barker  EWCA Crim 4 this court noted at paragraph 38 that the witness need not understand every single question or give a readily understood answer to every question. Dealing with the matter broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent. What is involved is not the exercise of a discretion, but the making of a judgment.
- In this case the judge rightly recognised that competence was, as he put it, "witness, trial and issue specific". We attach considerable weight to the view of the judge who was in a far better position than we are to have the feel of competence, having seen how the trial developed. In reviewing the matter, he approached it in the correct way, took account of the acknowledged shortcomings in the witness' performance, and made a judgment.
- Having considered the materials drawn to our attention by counsel, we are not in any way persuaded that that judgment was incorrect. Accordingly, this ground must fail.
- Before we leave this ground, we will draw attention to paragraph 42 of R v Barker. There is a need, both for advocates' techniques and court processes to be adapted to enable the witness to give his or her best evidence. That will involve a degree of persistence and patience by all concerned. A witness found competent is entitled to have the best efforts made to adduce his or her evidence before the court, notwithstanding the difficulties that may exist.
- The judge, in our view, rightly recognised in hindsight that he had permitted cross examination to go on too long. The essential nature of the defence case was that RB was being treated well and as a member of the family. Cross-examination to challenge RB's account of maltreatment and to seek to establish the defence case could have been much simpler and did not need to turn over every stone. Much cross-examination was of a sort which was an oblique comment on the evidence, such as the attempts to demonstrate inconsistency, and could probably have been entirely disposed of or dealt with in much more summary form.
(D) – The racist juror
- We give leave to argue this ground.
- In the light of the matters summarised above, Mr McNulty, supported by the other defence counsel, submitted that the judge should have discharged the whole jury. He relied on Sander v UK as supporting that course on the basis that the judge's actions provided no sufficient guarantees to exclude legitimate doubts about the impartiality of the jury. He accepted that the presumption of jury impartiality had not been subjectively rebutted, but relied on paragraph 27 of Sander where the European Court said:
"The court must also examine whether the court was impartial from an objective point of view, i.e. whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court."
- He relied on two particular matters, firstly, the racist juror's initial implication that other jurors had made racist comments outside the jury room, and secondly, the fact that nine members of the jury had been willing to ignore the racist remarks and continue with their deliberations, and would have done so but for the intervention of the notewriter.
- It is clear that the response of a judge in a situation like this must be fact specific in the methods adopted in seeking to ensure that the jury is objectively impartial. The advantage this judge had, denied to the judge in Sander, was that there was no dispute about the primary facts. Each juror acknowledged that the note written to the judge was accurate. When the racist juror made the comment upon which the defence rely, the judge immediately examined her about it, with the result that she produced nothing to justify the remark, and indeed retracted it. Notwithstanding that, the judge examined each of the other ten jurors separately as to whether they were aware of any racist comments made outside the jury room, and received the same negative answer.
- This aspect of the enquiry was careful and thorough. The effect of the racist juror's evidence was that there was nothing to indicate that any other juror had made a racist comment at any time, and this was confirmed by the separate examinations of the other jurors. Accordingly, there was nothing to rebut the presumption of impartiality recognised in paragraph 25 of Sander in relation to this aspect of the matter.
- The defence submissions proceeded on the basis of scepticism, relying heavily on the juror's initial remark, and treating the subsequent examination of it by the judge with her and other jurors as being of no value. We do not think this was the correct approach. The judge examined the position with care, as he was required to do because of the initial remark, but in the end was entitled to conclude that his examination had laid concerns arising from it to rest. What the judge did was to avoid speculation, and instead he made an appropriate investigation.
- An important factor in his conclusion on this issue must have been the confirmation from the notewriter, who on the evidence would have been especially alert to any signs of racism by other jury members, that he had seen no evidence of this.
- As to the second limb of the argument, namely the nine jurors' reluctance to draw the racist juror's comment to the judge's attention, this was a factor in the judge's mind in his assessment of the situation. The judge heard submissions from counsel on this topic before ruling. He considered whether a fair-minded and informed observer would conclude that there was a real possibility or danger that the jury were or would be biased. He concluded that each juror examined had spoken truthfully, particularly in relation to making or hearing any racist comment during the course of the trial. He was satisfied that the notewriter was a man of moral courage and fortitude who would not feel pressurised by other jurors. He recognised that a legitimate concern arose from the reluctance of some of the other jurors to bring the racism matter to the attention of the court, but concluded that there was no evidence whatsoever to indicate that the remaining jurors would not decide the case impartially and solely in accordance with the evidence presented to them. He made a specific finding that no juror was racially biased, and that each juror could decide the case on the evidence.
- Having come to that conclusion, he brought the jurors back into court, reminded them of their oath and the need to decide the case solely on the evidence. He then invited each juror to confirm that his/her decision would not in any way be affected by considerations of race, colour or religion. Each juror did so.
- We consider that the judge handled this potentially difficult situation in a careful and appropriate fashion. He carried out a full investigation, aided by the fact that there was no issue about what had occurred. We are satisfied that in the circumstances he took sufficient steps to be able properly to conclude that the remaining jurors could return verdicts in accordance with their oaths, unclouded by prejudice. In our judgment the necessary guarantees of impartiality referred to at paragraph 27 of Sander were in place. Accordingly, this ground does not afford a basis for challenging the convictions, and we dismiss it.
(E) – Video recording cross-examination
- Ms Wade for TA, supported by Mr McNulty for IA, contended that the judge should have acceded to their request that a video recording should have taken place of the cross-examination of RB. Her evidence in chief, of course, was visually available through the ABE DVD. Their argument was that because Mr Flynn, the intermediary, and RB were conversing via an idiosyncratic means, there needed to be a video record of that to enable, inter alia, the defence experts to check whether Mr Flynn was properly communicating what RB had to say. Not to have acceded to the request was unfair because there did arise in the course of the trial disputes concerning Mr Flynn's communication work. In those circumstances there was a need for a record which could be checked. The audio tape would be insufficient.
- The provisions of Section 28 of the Youth Justice and Criminal Evidence Act 1999 are not yet in force. However, we accept that a court has power to adapt its procedures so as to ensure that a Defendant has a fair trial. The experienced judge said he had never come across such a request before, but he did enquire into what facilities were available notwithstanding the fact that the defence request arose at the start of the trial and after many weeks of pre-trial and/or preparatory hearings in the preceding year.
- The judge found that the course requested was not a practical possibility in the circumstances. That seems to us to be a relevant factor, albeit not decisive if otherwise the trial would be unfair. We are wholly unpersuaded that the judge's refusal to take this step rendered the trial in any way unfair. Mr Flynn himself had intervened during the trial to correct transcript errors in relation to the ABE DVDs, and had liaised with defence experts to agree accurate amendments.
- The defence had the benefit of Dr O'Rourke and Mr Nicholson as experts monitoring the communications between Mr Flynn and RB throughout. There were indeed occasions where they raised matters of incorrect communication by Mr Flynn. We have seen examples of such issues being raised, and of the judge intervening and dealing with them.
- There is no doubt that the defence were critical of Mr Flynn and that there were episodes in the trial where the issue of whether he was performing his job accurately and correctly were raised. We consider that those episodes demonstrate that the trial process was working. At the close of the case the defence were critical of Mr Flynn's performance, and in summing-up, the judge on more than one occasion put those criticisms to the jury in clear terms.
- After due consideration we are unpersuaded that there is anything in this point. The decision which the judge made was entirely reasonable in the circumstances and well within his case management powers. We are not persuaded that the subsequent conduct of the trial shows that his decision was wrong or that the trial was arguably rendered unfair by the absence of the requested video record. We refuse leave on this ground and dismiss it.
(F) – IA's submission of no case on Counts 1 & 2
- On behalf of IA it is submitted that the judge should have acceded to a submission of no case to answer in relation to Counts 1 and 2. The argument which the judge rejected was that there were no acts of IA which amounted to the arranging or facilitation of RB's arrival in the UK in 2006 and 2009.
- We accept that the necessary arrangement or facilitation would have to have occurred at a point prior to arrival in the UK or, if not, at a point very close in time afterwards.
- Mr McNulty submitted that there was no evidence of any physical act done by IA which facilitated or arranged for RB's travel to the UK. There was evidence that TA had purchased travel tickets and that she had accompanied RB on the flights concerned. As against IA, Mr McNulty said that whilst there may have been evidence of knowledge on IA's part, and that on the second occasion he had travelled to the airport at the same time as his wife and RB, he had not accompanied them on the journey.
- In rejecting the submission, the judge did not demur from the proposition that IA had not made any arrangements personally. He held that it was not necessary for the prosecution to prove that. He said that it was sufficient for the Crown to prove that IA was party to the arrangements or the facilitation. The judge identified a number of pieces of evidence given by RB showing that IA and TA were jointly in control of decisions relating to RB's travel, including journeys to the UK. Moreover, the evidence of what had happened to RB by way of exploitation before and after the relevant journeys at the home of IA and TA was material from which an inference of joint involvement in the arrangements could be inferred. IA had been in Pakistan immediately prior to RB's journey on each occasion. He was the head of the family, and at all material times involved in events relating to her treatment.
- We consider that there was ample material for a jury to infer from the evidence adduced by the Crown that IA was party to the acts of arrangement or facilitation, which it was acknowledged existed in the case of TA, his wife. We refuse leave and dismiss this ground.
(G) – IA's complaint about summing-up on Counts 1 & 2
- Associated with the preceding ground is an argument that the judge did not properly sum up Counts 1 and 2. Mr McNulty submitted that the judge should have specifically directed the jury that the arrangement or facilitation involved had a nexus with the arrival of RB in the United Kingdom, and that without such a direction, there was a danger that the jury would conclude that the provision of food and a home after arrival in the United Kingdom were sufficient to constitute the actus reus of the offence.
- We reject this submission. The case was never put on that basis. In the summing-up the judge specifically put IA's case on the basis that TA and RB returned to the UK, while he remained in Pakistan for a while. He had not been concerned with RB's travel arrangements, and had not helped her to travel to the UK, nor had he asked anyone to help her to travel. The judge then pointed out that in TA's case, she had paid for RB's flights and accompanied her, so that the elements of arranging and facilitating were satisfied in her case.
- He then put IA's case to the jury on the basis of whether or not he was a party to what his wife was doing. The jury could have been left in no doubt that they had to focus on the travel arrangements and whether IA was party to them. As the judge put it:
"Are we sure that the Defendant was involved in arranging or facilitating the arrival of RB into the United Kingdom…, and that is sure that the Defendant was an active participant in bringing RB back to the UK."
- The matter could not have been more clearly put. We reject this submission. We refuse leave and dismiss this ground.
(H) – IA's submission of no case on benefit offences
- The case against IA on the benefit counts centred on tenancy agreements (Counts 19 and 23) and a change of address form (Count 24) which showed on their face that IA had signed such agreements as landlord of 11 Cromwell Road where RB was, for the purposes of the benefit claims, said to have been a tenant. The change of address form purported to show a change of address back to 11 Cromwell Road from 13 Cromwell Road, an address at which she had never lived. Further, her evidence showed that she was never a tenant at 11 Cromwell Road, albeit she lived there, and knew nothing of the agreements other than she recognised her signature thereon. She had written her signature on many documents at the instigation of TA. She paid no rent and the effect of her evidence was that the tenancy agreements were each a sham to obtain benefits.
- The relevant documents had gone before the jury during the course of the trial without any objection. There was nothing in IA's defence statement to suggest that he had not signed the documents. On their face the documents appeared to bear IA's signature and contain details entirely consistent with the grant of a tenancy by him. It was admitted that IA was indeed the landlord of a number of properties, including 13 Cromwell Road.
- Mr McNulty made no suggestion of any sort during the course of the prosecution case to the effect that IA had not signed the documents which had been placed in evidence without objection. The reason for this became apparent when IA gave evidence. He accepted that the signature on the documents were indeed his, or if not his, had been put there by his wife with his authority as sometimes happened.
- In those circumstances the point taken before the judge must have come as a considerable surprise, if not an ambush. The point is entirely technical and devoid of any substantive merit. The judge rejected the submissions, pointing out the absence of any indication to the contrary in the defence statement, and stating that a reasonable jury, properly directed, could properly infer that IA signed all of the documents in question.
- Mr McNulty initially submitted to us that the documents were real evidence and not hearsay, but he then submitted that insofar as they purported to be signed by IA, they were hearsay since the Crown wanted to prove that it was true that they had been signed by IA. The Crown accepted before us that in this respect the documents were hearsay. The matter was not fully argued before us, and there was no analysis of the statute or any case law.
- We have some doubts as to the correctness of the Crown's concession (see for example Pattison v DPP  EWHC 2938 (Admin)), but will proceed on the basis that the concession was properly made. It seems to us that the documents were properly admissible under Section 117(1) of the Criminal Justice Act 2003 as business documents. IA did have a business of letting properties and making tenancy agreements. Whilst, of course, the Crown case was that the document was a sham, we consider that the position is no different from any other fraudulent claim in a document made in a dishonest course of business.
- Additionally, it seems to us that these documents were admissible under Section 114(1)(c), on the basis of agreement. The document had been served in advance of the trial as part of the prosecution case, the defence were aware of its existence, and prior to the admission of the documents before the jury, no objection whatsoever was taken to their admissibility.
- In the light of Emlyn Williams t/a Williams of Porthmadog v Vehicle and Operator Services Agency  EWHC 849 (Admin) the judge was entitled to regard the evidence, if hearsay, as admitted by agreement. Moreover, the Crown had submitted a hearsay notice pursuant to Rule 34.2 of the Criminal Procedure Rules. Such a notice is not necessary for a Section 117(1) business document. It is, however, apt to cover an application to admit hearsay pursuant to Section 114(1)(d). No counter-notice was served objecting to the introduction of the hearsay evidence. Rule 34.4(2) provides that in the absence of such counter-notice, the court will treat the evidence as if it were admissible by agreement. Had there been a contested application under Section 114(1)(d), we are confident that in the circumstances the judge would have admitted the evidence.
- In our judgment, the judge rightly held that there had been a failure of compliance with Section 6A(1)(b) of the Criminal Procedure and Investigations Act 1996. In this respect IA had not indicated a significant matter of fact on which he took issue with the prosecution. The consequence of this is that by virtue of Section 11(2)(f)(ii) and Section 11(5)(b) the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence.
- Mr McNulty in response seeks to rely on Section 11(10) which provides that a person shall not be convicted of an offence solely on an inference drawn under subsection (5). We do not consider that this point assists him. The jury had evidence from RB that she did not live at 13 Cromwell Road. She said she did not know what any document she signed was about and that she had signed all documents on instructions.
- We are satisfied there is nothing in this point and we refuse leave.
(I) – Admissibility of violence by TA and others
- Objection was taken on behalf of TA at the start of the trial to the admissibility of evidence of violence by TA and other named family members towards RB. The judge held that the evidence was admissible at common law by reason of the definition of bad character at Section 98 of the Criminal Justice Act 2003, which provides:
"References in this Chapter to evidence of person's "bad character" are to evidence of, or a disposition towards, misconduct on his part, other than evidence which –
(a) as to do with the alleged facts of the offence with which the Defendant is charged…"
- Ms Wade submitted that the evidence of violence was not sufficiently linked to Count 1 and 2 to bring it within Section 98(a). She did not argue that the evidence was irrelevant to the case, but submitted that since it was not covered by Section 98(a), it could only have been admissible under Section 101(1)(c) or (d), in relation to which the Crown would have had additional hurdles to surmount.
- Counts 1 and 2 require an intention to exploit the victim in the United Kingdom. Section 4(4) of the 2004 Act provides:
"For the purposes of this section a person is exploited if (and only if) –
(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour)…"
- The case was put on this basis rather than other bases within Section 4(4) of the Act. We have considered R v K  2 Cr App R 34, where this court examined core elements of Article 4 of the Human Rights Convention, namely "slavery", "servitude" and "forced or compulsory labour".
- It is clear to us that forced labour can include violence. However, Ms Wade's submission was that in this case there was insufficient nexus between violence inflicted on RB and the facts of the offences. In the light of R v Mullings  2 Cr App R 2, which includes a helpful review of authorities in this area, Ms Wade retreated from her written submissions, based on R v Fox  EWCA Crim 653, that the exception in Section 98(a) was only wide enough to embrace the actus reus of the offence. In our judgment, she was right to do so; the observations in Mullings are properly to be preferred to the obiter comments of the court in Fox.
- Notwithstanding that concession, Ms Wade's submission to us remained that the violence was insufficiently connected to the alleged forced labour to satisfy the exception in Section 98(a). Moreover, she argued that some of the violence had been committed prior to the acts complained of in Counts 1 and 2, which took place in 2006 and 2009 respectively.
- We accept that to come within the exception, the evidence must relate directly to the offence charged, be reasonably contemporaneous with it and be associated closely with it. It is not a requirement that the misconduct involved is essential to proof of guilt; direct relevance will be sufficient.
- The Crown's case was that IA and TA and others had used violence and threats of violence to force RB to work for them over an extended period of time, including the period specified in the indictment. The evidence also covered a timeframe prior to the indictment, but it was part of a continuum of violence related to the exploitation of RB prior to the two offences indicted. The violence was central to the case that RB had been exploited. Violence prior to the two alleged counts was directly germane to the element of an intention to exploit after arrival in the United Kingdom.
- The evidence of violence by others was of violence inflicted by TA2, AT and WT. In the cases of TA2 and AT, the violence was part of the picture relating to work which RB had to carry out for the A family, and was inflicted in that context. In the case of WT, the evidence of a link between his violence and the forced labour is less clear. However, the evidence was of a single incident when food was thrown and, if not properly admitted, could have had no material bearing on the outcome of the case.
- We are satisfied that the judge's ruling was correct. We refuse leave and this ground is dismissed.
(J) – FA and severance
- Mr Robinson asserts that FA's case should have been severed from the rest of the case at a point in the trial, during the cross-examination of RB by counsel for IA, when RB said that she had told FA that IA had been having sex with her, and secondly, asserted that FA had physically assaulted her. It was acknowledged at the time by the Crown that both these areas of evidence were irrelevant and inadmissible as against FA. Indeed, prior to the trial the Crown had agreed to edit the ABE interviews to exclude matters in these areas insofar as they affected FA.
- Mr Robinson, therefore, applied to the judge for severance and discharge of the jury in FA's case. The judge declined to do so, saying he could deal with the matter in summing-up. Mr Robinson's complaint is that in essence the matter could not be properly dealt with in that way.
- The offending evidence was given on 13th March 2012. We note that the jury did not retire until 25th July 2012, some two and a half months later. The inadmissible comments were made in general terms amid a vast amount of detailed evidence given by RB over a period of several weeks of court time, and indeed, over a number of months in real time due to various adjournments.
- Nonetheless Mr Robinson argued that this was an attentive jury, and that the inadmissible matters referred to both sex and violence, which were significant features of the case involving IA and TA, but not FA. He argued that the prejudice caused was irredeemable. For understandable reasons Mr Robinson did not cross-examine FA on these points, nor did he adduce evidence from FA in relation to them.
- We are not persuaded that there is any arguable point here. The judge gave a clear direction in the summing-up; firstly, as to treating the applicants separately, and secondly, in the case of FA, by telling the jury in the clearest terms that they should only consider the evidence in relation to the benefit counts in looking at the case against her. The jury were provided with in written form, repeated in summing-up, an extremely clear route to verdict document setting out the specific matters which the jury had to consider in FA's case. The document focused correctly on the issue of dishonesty in her case. The question was whether she had dishonestly signed forms which were to be used in making benefit claims for RB.
- It was, moreover, clear to the jury that FA was in a very different position from IA or TA. The case against her was confined to the benefit claims and not in any way based on allegations of violence which lay behind the principal matters IA and TA faced. The episode complained of was relatively brief and, as the judge said, represented passing comment.
- We are satisfied that the judge was correct to refuse severance, and that he dealt with the matter appropriately thereafter. In our judgment, there is no tenable argument and refuse leave on this point.
(K) – FA's submission of no case
- The submission to the judge acknowledged that the statements made in the documents signed by FA for the purposes of benefit claims were false in material particulars, for example, as to whether or not RB was working, and as to where she lived. FA acknowledged signing them. She did not merely sign as a witness, but signed in confirmation of the fact that she had as far as possible confirmed with RB that the answers written on the form were correct.
- The submission made was that there was no evidence that by so signing FA had been acting dishonestly as the statute requires. Mr Robinson unsuccessfully argued that the mere fact of signature was insufficient to raise a prima facie case.
- This was a document which required a degree of verification of the claim made by another person. FA provided that verification, and certified to say that she had checked the relevant information. Had she done so, RB would not have confirmed what it said about her work and place of residence.
- In those circumstances we consider that the judge was right to reject the submission. The signing of the document by FA was sufficient to enable a jury to draw an inference from the circumstances that FA could not honestly have signed that document. That is sufficient to dispose of this submission. Other points raised on FA's behalf, were in reality jury points. We have not been materially assisted by reference to Flintshire County Council v Reynolds  EWHC 195 (Admin). That case was decided on the basis of evidence given by the defendant in that case. There was no suggestion that, having signed the relevant document, Mrs Reynolds did not have a case to answer.
- We refuse leave and dismiss this ground.
- For the reasons given in this judgment, all of the various grounds of appeal fail. The appeals against conviction are dismissed.
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