In my first blog I talked about the Jury system, and whether it was still desirable in this day and age to have a jury of legally untrained people decide something as important as the guilt or innocence of an accused person.
I wasn’t planning on going back to the issue so soon – I intended my next blog to be about the exciting world of wills and deceased estates (in particular about the “family provision” or, as it used to be known, Testator’s Family Maintenance, law. But we had a recent significant “win” in the Court of Appeal that has prompted me to return to the subject of Juries. This was an appeal we handled for a client who had been found guilty by a Jury of a number of charges of sexual abuse of children. Having been found guilty by the Jury the trial Judge had to impose significant sentences of imprisonment on our client – altogether he was sentenced to a total of 7 years and 9 months, with a minimum non-parle period of 5 years and 6 months.
It is extremely difficult to successfully appeal against the verdict of a Jury on the ground that the Jury’s verdict of guilty was unsafe and unsatisfactory. Appellate Courts are very reluctant to interfere with the Juries’ role as the decider of the facts, i.e. whether or not a person committed the acts of which they are accused. Very occasionally though it is so obvious that something has gone so badly wrong that the Court has no choice but to step in and say, in effect, that the Jury did not do its’ job correctly. This is however essentially what the Court ofAppeal did in our client’s case. In this particular case the Court of Appeal said:
“This ground falls into a different category. BL was not merely an unsatisfactory witness, but one whose evidence could fairly be described as wildly improbable.
55 The first point to note is that BL’s account of charges 9, 10 and 11 had to be false. There is no way that the applicant could have committed the offences described upon BL during the morning of 29 March 2010, and probably the afternoon as well.
56 Secondly, there was nothing, by way of medical evidence to support BL’s allegations. He was aged only seven at the time. He claimed that the applicant had repeatedly inserted both his penis and a vibrator into his anus. It would be reasonable to expect that there would be some medical evidence to support that allegation. There was none.
57 Thirdly, whilst BL claimed to have seen a particular ‘Dr Rachita’ from St Albans Medical Centre, and to have complained to him that he had been anally penetrated, there was no such male doctor at that or any other clinic in the vicinity. There was a female medical practitioner, a Dr Rachita, and she had treated both JL and her mother. However, she had never treated BL.
58 Fourthly, enquiries revealed that although BL had been treated at the St Albans Medical Centre, he had never attended any doctor at that practice complaining of any sexual assault. He had, instead, been treated for thrush.
59 Fifthly, BL’s allegation that prior to the offences that gave rise to charges 12 and 13, he had been given a ‘sleeping drink’ by the applicant which smelled like ‘flowers’, and caused him to fall asleep, was extremely doubtful. BL claimed that he had seen such medication, and was aware of its smell, because his mother had it in her possession at home. However, BL’s mother swore that she had no sleeping medication of any kind at home, and certainly none that might have smelled like ‘flowers’.
60 Sixthly, BL gave inconsistent accounts of what the applicant had allegedly done to him in relation to charges 12 and 13. His mother said that he had told her that the applicant had attempted to put his penis, and a vibrator, into BL’s anus, but not that he had actually done so. BL’s account to the police was, of course, different in that respect.
61 Seventhly, BL lied in his evidence about the ‘Snatch the Match’ computer game. When confronted with his sister, JL’s admission that he had in fact played the game at home, BL lost control, got up, and walked out of the room in which his evidence was being recorded.
62 Eighthly, BL described sexual behaviour on the part of the applicant towards his sisters which neither of them agreed had occurred. For example, he alleged that he saw his sisters place their hands on the applicant’s penis, and also saw the applicant insert his fingers into their respective anuses. Neither girl alleged anything of the kind.
63 Ninthly, BL alleged that on the morning of 29 March 2010 (the date upon which the offences giving rise to charges 9, 10 and 11 were said to have occurred), he saw the applicant go into his bedroom and take vibrators out of a safe. As has already been noted, given the evidence of the applicant’s employer, that simply could not have occurred on that morning. Further, BL acknowledged, under cross-examination, that he had been made aware, in early 2009, that the applicant’s home had been broken into, and the safe in question stolen.
64 Tenthly, BL had ample opportunity to discuss his evidence with his sisters before going to the police. That left open the possibility of collusion, or subconscious contamination.
65 Eleventhly, BL gave evidence that he returned home from the applicant’s house after 1:00am on the occasion upon which charges 9, 10 and 11 were alleged to have occurred. He added that he played computer games when he got home that night. His account directly conflicted with his mother’s evidence to the effect that the children were not permitted to be out after dark, and that BL’s bedtime was 9:00pm.
66 Lastly, I note the trial judge’s report to this Court. His Honour, who is, of course, vastly experienced in the criminal law, observed that whereas he could see no merit in the inconsistency point regarding BL (largely for the reasons discussed earlier in relation to ground 5), he had serious concerns regarding BL’s credibility.
67 His Honour said, in para 7 of his report:
[BL] was a winsome and intelligent child who presented extremely well. Despite that presentation, I was concerned about him being a truthful witness. Those concerns led me to deliver an unreliable witness warning. My reasons for concern are encapsulated in that warning, which doubtless, the Court will be taken to. Those concerns which I had about [BL’s] evidence during the course of the trial continue to this day.
68 This is one of those rare cases where the jury, in my opinion, arrived at a verdict which was not reasonably open to them, on the evidence. In arriving at that conclusion, I have made allowance for the advantage that the jury had in seeing and hearing BL testify.
69 In my opinion, notwithstanding the deference normally, and properly, accorded to a jury verdict, there was a reasonable doubt, upon the whole of the evidence, as to the applicant’s guilt on charges 12 and 13.
70 I would grant leave to appeal on this ground. I would further allow the appeal, set aside the convictions on charges 12 and 13, and instead enter judgment and verdicts of acquittal on those charges.”
In other words the Jury should never have accepted the evidence of BL, a child who was not just an “unsatisfactory witness”, but who had been caught out multiple times during cross examination by our barrister Mr. Anthony Trood to be giving either false or, at best, “wildly improbable” evidence. The fact that the Jury nonetheless found our client guilty “beyond reasonable doubt” on the strength of such poor evidence meant that its’ findings of guilt were “unsafe and unsatisfactory”, to the extent that the Court of Appeal not only quashed the convictions but also ordered that our client be fully acquitted of those charges.
A case like this highlights the concerns I expressed in my first blog about Juries. It is a real worry when a Jury can find an accused person guilty of extremely serious criminal offences that can carry heavy gaol sentences, on the strength of not just flimsy evidence, but evidence which was obviously false, and was clearly proven to be so by the Defence.
Why the Jury apparently ignored all of these flaws in the evidence of the child witness BL, and presumably felt comfortable in making a decision that would result in a man being sent to gaol for a large part of his life on the strength of such “wildly improbable” evidence, no one will ever know. It is disturbing to think that 12 people could collectively think it was okay to do so based on such weak evidence. Again, it is another example of why I think that the efficacy of the Jury system should be re-assessed.