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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pringle v R. [2019] EWCA Crim 1722 (17 October 2019) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2019/1722.html Cite as: [2021] MHLR 296, [2020] Crim LR 347, [2019] EWCA Crim 1722 |
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Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/10/ ![]() |
CRIMINAL
DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE
HIS HONOUR JUDGE BATISTE
Case No. T20180102
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ANDREW BAKER
and
SIR RODERICK EVANS
____________________
JAMES DAVID PRINGLE |
Appellant |
|
- and - |
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REGINA |
Respondent |
____________________
Mr M. Hodson (instructed by the Crown Prosecution Service) for the Respondent
Hearing date : 8 October 2019
____________________
Crown Copyright ©
Lord Justice Hamblen :
Introduction
Reporting Restrictions
The Outline Facts
(i) The appellant went to meet the two victims after they had truanted from school.
(ii) The appellant invited them to his flat.
(iii) The appellant was armed with a scraper or chisel in case C's father saw him.
(iv) He was wearing three pairs of trousers and two jackets that he could use as a disguise when he met the victims.
(v) The appellant and Towart led the two victims to an isolated woodland area.
(vi) The appellant and Towart had been served with CAWNs relating to the victims three days prior to the offending; the CAWNs included a prohibition against being in their company.
The Evidence at Trial
The Judge's Rulings
The Grounds of Appeal
1. The evidence at trial was not capable of leading to the safe conclusion that the appellant had "taken" either child, "so as to keep [her] out of the lawful control of any person entitled to lawful control of the child" under s.2 of the Act.
2. The Judge erred in permitting the Crown to adduce evidence relating to the service and breach of the CAWN and the provision of the actual CAWN to the jury. Such evidence was not probative of the real issues in the proceedings (taking, detaining; removing or keeping).
3. The fairness of the trial was undermined as the appellant was denied the assistance of an intermediary at trial:
(i) No ground rules hearing took place.
(ii) Special measures recommended by the intermediary were not adopted.
(iii) No evidence was admitted that would help the jury to understand the nature of the appellant's communication and learning difficulties.
(iv) No time limits were imposed on cross-examination.
(v) Cross-examination involved repetitious use of complicated, compound questions.
Ground 1
"(1) Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of 16—
(a) so as to remove him from the lawful control of any person having lawful control of the child; or
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child"
"For the purposes of this Part of this Act—
a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken…"
"Section 3(a) does not expressly provide that the person concerned must solely cause the child to accompany him. As the judge observed, an event or state of affairs may have many causes. If an event or state of affairs A is caused by B, C and D, it can, in our judgment, fairly be said that each of B, C and D causes A. Section 3(a) does not provide that the person shall be regarded as taking a child if he is the sole cause of the child accompanying him. It simply provides that he shall be so regarded if he causes the child to do so. As in the above example, there may, as it appears to us, be other causes. In particular, one of those other causes may be and is often likely to be the child's own decision or state of mind."
"In R v A [2000] 1 Cr App R 418 the court held that a defendant's acts do not need to be the sole cause of the child being taken or detained. It is sufficient if the defendant's acts are an effective cause. It would not be a defence that a child's decision or preference might be another cause of the taking or detaining."
(i) The appellant and Towart had been served with CAWNs relating to the C and S only 3 days before the offence, which included a prohibition against being in their company.
(ii) The appellant nevertheless went to meet C and S after they had truanted from school.
(iii) He invited them to his flat.
(iv) He armed himself with a chisel in case C's father saw.
(v) He was wearing 3 pairs of trousers and two jackets that he could use as a disguise in case the police saw him.
(vi) He and Towart said that they should go to the woodland area by back alleys so that they should not be found.
(vii) He and Towart walked in front, decided where they were going and led the group to an isolated woodland area.
(viii) He changed his appearance when in the woodland area.
"Firstly, are you sure that the defendant you are considering intentionally or recklessly took the child you are considering? If, "Yes", then go to question 2; if, "No", then the verdict on that count against that defendant is not guilty. Question 2: are you sure that the child is under the age of 16? If, "Yes", then go to question 3; if, "No", then your verdict is not guilty. Again, there's no issue with regard to age in this case. The children were 13. Nobody disputes that.
Question 3: are you sure that the effect or objective consequence of the taking was to keep the child out of the lawful control of any person entitled to have lawful control of the child? If, "Yes," then the verdict is guilty; if, "No", then the verdict is not guilty, and, again, ladies and gentlemen, what I'm trying to do here is to give you some further information about the charge. It may sound quite technical but it's what needs to be considered.
So, with regard to question 1, of course you have to consider whether the child was taken. Did they take the child? So what does "taking" or "took" mean? Taking a child in these circumstances includes if a person causes or induces a child to accompany him or any other person or causes the child to be taken.
It is a matter for you whether on the facts of this case the defendant you are considering has taken the child that you are considering. A child can be removed from lawful custody without necessarily being taken to another place. It may be sufficient if the child is (inaudible) into some unauthorised activity induced by the defendant. It is not necessary for the defendant's conduct to be the sole cause of the taking as long as it was more than merely peripheral. Do you understand what I mean, ladies and gentlemen? It is not a defence that another cause of the taking may be the child's own decision or state of mind. The consent of the child to be taken does not provide any defence. All right?
I also, as part of question 1, included the words, "intentionally or recklessly", and I just want to give a little more of a definition of what that means, ladies and gentlemen. To satisfy the requirements of question 1, the prosecution must prove the defendant you're considering intended to take the child or was reckless that the child would be taken. Now, "intention", intending is obvious. I don't need to explain any more. What does "reckless" mean in the circumstances? For these purposes, "reckless" means that by his actions he was aware that there was a risk that the child would be taken and took that risk when it was unreasonable to do so in the circumstances that were known to him. Again, I recognise that (inaudible) but I'm afraid I have to follow the definition, as I said before.
And then I've dealt with the effects or objective consequences of taking which is part of the third question that you're being asked. You'll see that those words are used in the third question. I'm just trying to define those for you. It is not a defence that the defendant did not intend to interfere with the lawful control of the mother (inaudible) in (inaudible) case or whether it was the parents-- the person with lawful control. The question is whether objectively, looking at it objectively, the effect of the defendant's behaviour was to take the child out of the lawful control of any person who at the time had lawful control of the child."
"Thirdly, you must be sure that the defendant took [the girl] — that is, that he caused [the girl] to accompany him. Now members of the jury, a number of different acts can each, together, cause a particular result. That is common sense. You do not have to be satisfied that the defendant's action was the sole, or even the main, cause of [the girl] accompanying him to London — just that his actions were a cause of her doing so; something more than merely peripheral or inconsequential."
"In our judgment the judge was right to hold that the question for the jury was whether the acts of the appellant were a cause of the girl accompanying him. He was also right to hold that the alleged cause must be something more than, as he put it, "peripheral or inconsequential". Another way of putting it would be to say that the act or acts of the appellant must be an effective cause of the child accompanying him."
"What, then, is the state of the law as to the mens rea requirement? For my part, I would conclude that the mens rea of the offence of abduction under section 2 is an intentional or reckless taking or detention of a child under the age of sixteen, the effect or objective consequence of which is to remove or to keep that child within the meaning of section 2(1)(a) or (b). With great respect to the court in Owens, it does not seem to me that the applicant's argument upon the construction of section 2 could or should have survived the judgment of the Court of AppealCriminal
Division in Mousir and Leather. It does not appear to me to have been necessary to require an intention to remove the child from the lawful custody of another, or to keep the child against the entitlement of the grandmother, to arrive at the same result had a prosecution proceeded. The offence is not committed if the defendant has lawful authority or a reasonable excuse for taking or detaining the child."
"are you sure that the effect or objective consequence of the taking was to keep the child out of the lawful control of any person entitled to have lawful control of the child".
Ground 2 - The Role Played by the CAWNs at Trial
"14. I begin by observing that breach of a child abduction warning notice of itself does not constitute an offence. The relevance of service of such a document is in showing that the defence of lawful authority or reasonable excuse is not available. It serves to show that a person served with such a notice would be aware that non-compliance would render him liable to arrest and possible prosecution for an offence contrary to s.2 of the 1984 Act. This was common ground between the parties."
(i) The jury were invited by the prosecution to regard those documents as important.
(ii) Live evidence was called about the services of the CAWNs, even though it was agreed evidence.
(iii) The officer who served the CAWNs gave opinion evidence that the appellant had understood the warning, an opinion that he was unqualified to express and where it had been expressly agreed that no such evidence would be led.
(iv) The admission of the CAWNs was used to lay the foundation for the cross-examination of the appellant to the effect that he did not run away from or otherwise evade the girls and should have done so. That approach was likely to stimulate in the jury an erroneous perception that the appellant was under a positive duty to take evasive action that his failure to do so was probative of guilt. Any such perception would likely be reinforced when the learned trial Judge returned to the same theme at the conclusion of the appellant's evidence.
(i) A written admission as to the service of the CAWNs would not have been sufficient to prove the state of mind and understanding of the appellant as to the prohibitions in contacting the victims at the time of the offence. The detail of the CAWN was relevant.
(ii) The CAWN went to prove the deliberate acts by the appellant, meeting (even by accident as claimed by the appellant and not removing himself) and remaining with the complainants.
(iii) The way in which the CAWNs were served on the appellant went directly to the appellant's ability to comprehend/communicate. The evidence of Sergeant Mulligan explained to the jury the steps taken to make sure, as far as was possible, that the appellant understood the nature and extent of the notice.
"So what is the relevance of these notices? I make it clear that simply breaching the terms of the notices does not prove the offences with which the defendants are charged. The relevance of the notices is that they show the defendants had been made aware that the parents of C and S do not consent to the girls being with the defendants. It may also have some relevance to the state of mind of the defendants, given that they have been warned by the police not to be in contact with these two girls, but, as I say, I make it clear that simply a breach of the terms of those notices does not prove this offence. Do you understand?"
Ground 3 - The approach to the appellant's communication difficulties
"Mr Pringle presents with significant communication difficulties:
- His ability to attend to and process verbally-presented information is significantly limited, reducing the amount of verbal information he is able to comprehend at the first attempt;
- His ability to respond appropriately to complex and leading question types is highly unreliable;
- His understanding of word meanings and non-literal language is significantly limited;
- He presents with dysfunctional reading skills;
- His difficulties in these regards are complicated by the fact that he cannot be relied upon to consistently request clarification, express uncertainty, admit lack of knowledge or to effectively challenge either inaccuracies or assertions with which he disagrees;
- They may be complicated further by an apparent tendency to agree by default;
- His expressive communication profile is characterised by rapidity of speech and a tendency to offer rushed answers in reply to questions, denying himself the time required to formulate a properly considered response;
- He presents with poor turn-taking, active listening and topic management skills, tending to speak tangentially and at unnecessary length;
- Self-reported difficulties with managing paranoid ideation and anxiety are likely to exacerbate his attention and receptive difficulties and inhibit his expression, potentially posing a significant barrier to effective communication throughout his trial, and especially when giving evidence."
"20. Whether a person is an expert is a matter for the Court based upon a proper analysis of the evidence. It is certainly not an issue which can be pre-judged by an individual's employer. Whether an individual is an expert within CPR 33 is fact and context specific. It depends upon the individual's professional skill and experience in the context of the particular issue that the evidence is said to be relevant to in the proceedings and it also takes into account whether the opinion evidence in question is outside of the jury's assumed knowledge and experience.
21. In the present case, the issue is the ability of the jury to understand and evaluate answers given by Mrs Beards who is a person with the disabilities that I have already referred to. The issue for the jury occurs both in the context of her police interviews when no intermediary was present and her answers in Court both when questioned in chief and in cross-examination. The expertise required is as to the complications and risks attached to particular types of questions and, further, the risk of the Defendant answering questions in an inaccurate and misleading manner because of the type of question posed in the context of her particular level of disability."
"41. The intermediary has, the Court is informed, been prohibited from giving evidence by her employer. This proposition has not been challenged. It would have been possible to have summonsed her. However, given the state and stage of the trial and the delays that would have been caused I have concluded that the admission of the summary, as hearsay, should be admitted in written form. I consider this to be fair. Mr Evans QC for the Prosecution has cooperated with Mr Sidhu QC for the Defendant as to the content of the summary of the Report and it contains material which ensures that the summary is balanced in the sense that it contains Ms Burton's views both for and against the Defendant. I can actually detect no unfairness to the Prosecution in it being admitted in this way, not the least because (as I observe elsewhere) it is not as if the Prosecution have their own report ready and waiting which challenges Ms Burton's conclusions or can even now pinpoint specific issues in the Report with which they disagree. And it will in any event be open to the Prosecution to comment upon the report in closing submissions if it is considered appropriate. I will give an appropriate warning to the Jury about the limitations of the report and a hearsay warning which will alert them to the fact that the summary is not an agreed document which has been sworn and that the author has not attended court to give evidence on oath."
(i) During the evidence of Sergeant Mulligan about service of the CAWN and the appellant's interview under caution, which took place without an appropriate adult, when the officer gave evidence that in his view the appellant had "understood' the meaning of the notice and that furthermore, in his opinion, there was no need at all for an appropriate adult in interview. The defence were prevented from countering this with evidence about the difficulties that the appellant experiences but which the police officer may not have been qualified to identify.
(ii) When the appellant gave evidence none of the measures proposed by the intermediary in his report were adopted. No formal ground rules hearing was held and no time limits were imposed on cross-examination. Defence counsel was inappropriately invited to intervene, in front of the jury, if he thought a break was necessary.
(iii) Much of the cross-examination was taken up by prosecution counsel, with the appellant contributing a more limited amount to the dialogue than may be expected.
(iv) Compound or rolled up questions were used on occasion, with confusing results.
(v) A particular consequence of the last two points is that there is a substantial risk that some of the appellant's answers may have been perceived as damaging that were in truth only manifestations of the very difficulties, or some of them, identified by the intermediary.
"JUDGE BATISTE: I'm aware of what he says. The intermediary report does not necessarily have to be slavishly followed by a judge, and that is something that the courts are now becoming clearer and clearer about.
MR COMB: I understand, but my anxiety is that none of the recommendations in the report have been adopted in Mr Pringle's case.
JUDGE BATISTE: Well, as I said to you, I am going to try and ensure that fairness and equality takes place in his evidence with his co-accused by trying to ensure that it is made clear that he understands the question, the questioning is going to be simple, as it was with his co-accused."
"The prosecution argue that the appropriate way to deal with this matter is to give the usual warning with regard to an intermediary set out in the Crown Court Compendium but to add to that that Mr Pringle had some similar issues that a ground rules hearing (inaudible) as to his evidence, which indeed it has, and the methodology and that an intermediary may, and I don't go any further than that, but may have been instructed for him but for the fact that an intermediary was not prepared to act on that particular basis, and it's suggested that that would ensure that there is parity in understanding as to the approach that's being adopted with regard to both defendants."
"In addition, you know that James Pringle was helped---- no, it was Mr Towart who was - forgive me - Mr Towart ---- perhaps you should just change that please---- not James Pringle. Mr Towart. Mr Towart was helped by an intermediary when he gave his evidence. This was so as to ensure that he understood what was being said and to ensure that he was understood in court.
The fact that the defendant was assisted by an intermediary does not affect how you assess any of the evidence in the case and it is no reflection on his---- on this defendant or indeed his co-accused, Mr Towart, Mr Pringle, with whom an intermediary had been instructed but was unwilling to work on his own (inaudible)."
Conclusion