Neutral Citation Number: [2022] EWCA Crim 926

Case No: 202100699 B1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT HARROW
HIS HONOUR JUDGE COLE
T20197436
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 7 July 2022

Before:

LORD JUSTICE STUART-SMITH

MR JUSTICE JEREMY BAKER
and
HIS HONOUR JUDGE ANDREW LEES
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Between:

REGINA Respondent

- and –

MANOJ BHATT Appellant

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REPORTING RESTRICTIONS APPLY:

SEXUAL OFFENCES (AMENDMENT) ACT 1992

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James Scobie QC for the Appellant

Gareth Munday for the Crown

Hearing date: 9 June 2022

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Remote hand down: This judgment was handed down remotely at 10.30am on 7 July 2022 by
circulation to the parties or their representatives by email and by release to the National
Archives.

Approved Judgment
Judgment Approved by the court for handing down. R v Bhatt

Stuart-Smith LJ:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences
that are the subject of this appeal. Under those provisions, where a sexual offence has
been committed against a person, no matter relating to that person shall during that
person’s lifetime be included in any publication if it is likely to lead members of the
public to identify that person as the victim of that offence. This prohibition applies
unless waived or lifted in accordance with s.3 of the Act.

Introduction

2. After a trial in the Crown Court at Harrow lasting 10 days the Appellant was
convicted on 12 February 2021 of 12 serious sexual offences including 3 counts of
attempted rape and one count of rape. The seriousness of the offending was marked
in due course by sentences that in total amounted to a special custodial sentence of 19
years comprising a custodial term of 18 years and an extended licence period of one
year.

3. At trial and before us the prosecution was represented by Mr Munday. At trial the
Appellant was represented by Mr Burton; before us he has been represented by Mr
Scobie QC.

4. He now appeals against his conviction with the leave of the Full Court (Stuart-Smith
LJ, Hilliard J and the Recorder of Manchester) on two grounds which we will set out
in detail below. In briefest outline the Appellant submits that the Judge unfairly
undermined the Defence by his imposition and enforcement of an arbitrary time limit
on cross-examination (Ground 1); and that passages in the written directions to the
jury and summing up under the headings “Avoiding myths and stereotypes” and
“Children and Young people” were unfairly unbalanced adversely to the Appellant’s
case (Ground 2).

5. Because of the nature of the submissions in support of the appeal, it is not necessary
to outline the allegations that underpinned the convictions in detail. It will, however,
be necessary to refer extensively to passages from the transcript of the trial and the
summing up because they are the basis of the appeal. We therefore set out much
more of the transcript than would be usual so that a complete picture of the relevant
material may be seen.

The Factual Background

6. About the underlying facts it is sufficient to say that the complainant, who we shall
call D, had an older sister who we shall call SB. The Appellant was for a long time in
a relationship with SB and had two children with her. Between 2001 and 2005 it was
the prosecution case that the Appellant groomed, abused, assaulted and ultimately
raped D who was then aged between 10 and 15 years. D said that she had reported
the abuse, at least in general terms but not in full detail, to a number of people
including her mother and her sister SB but that she had not been believed by her
family. She said that she had been reluctant to go to the authorities and that at least
one of the reasons for her reluctance was the Appellant’s relationship with her sister,
SB. Much of the abuse was said to have occurred in the Appellant’s shop between the
end of D’s school-day and when the shop would be closed by the Appellant some two

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hours later. The case finally came to the attention of the police in 2018. D had
recently made disclosure to social services in the context of an application for a
guardianship order in relation to her brother’s children. After the disclosure to the
social services there was a family meeting. It was the prosecution case that at that
meeting D’s partner had confronted the appellant who had admitted the abuse and
apologised to D.

The Trial

7. As the length of the trial indicates, a number of witnesses were called in addition to D
and the Appellant. In particular, SB was called by the Defence and did not support
D’s account. Specifically, she denied that D had made disclosure to her before 2018.
D’s version of events was supported by evidence that she had made disclosure to
others including work colleagues, a social worker, D’s counsellor and the ex-wife of
D’s brother. The Defence case was that the offences never happened and could not
have happened in the way alleged, for various reasons which are not material to this
appeal.

8. All of the additional evidence went to the central issue in the case: was the jury sure
that D was telling the truth? As the Judge put it in summing up, the fine detail of the
nature of the offences did not matter:

“It is very stark. If you are sure [D] is telling the truth, that is the
overarching issue. The defence say she is telling a pack of lies.”

9. Counsel for the Appellant started his cross-examination of D in the afternoon of Day
2, 2 February 2021, and continued for 48 minutes. Shortly before he started, D had
become upset on being shown by Prosecution Counsel a photograph of the room in
the shop where the abuse was said to have occurred. The Judge told D she was now
to be cross-examined and said that she should let him know if she needed a break. He
then continued by saying: “… but on the other hand, I know you are going to want to
finish as soon as you can. I will be governed by you, and feel free to sit down
whenever you want as well.”

10. A little later, the Judge made a further enquiry of D about her availability should her
evidence go into the next day, as follows:

“JUDGE: … Can I just ask you if we needed to break off your

evidence this afternoon, I just want to gauge from you how much
inconvenience that would cause, are you able to come back in the
morning if we need to break off this afternoon.

A: Yes.

JUDGE: You are. Obviously, I know you do not want to, but I am
trying to see what our options are.

A. Yes.

JUDGE: All right, thank you. Yes, Mr Burton. The witness has said, I
do not know if you have heard, while you were looking at the note that
she is able to come back in the morning.
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COUNSEL. I did hear that, thank you very much, yes, Your Honour.

JUDGE: I am not suggesting we break as of now.

COUNSEL: No, I understand, Your Honour. [To the witness] We had

hoped to conclude your evidence this afternoon but the fact that there
has been so many delays, no one’s fault, …”.

11. Towards the end of the afternoon’s session, Counsel for the Appellant started asking
D about her relationship with a man who she had married but who had stayed in India
and to whom D would send money. After a while, the Judge intervened as follows:

“JUDGE: Now, Mr Burton, I have been listening to a few questions

about this to see how it developed, I am struggling to see the relevance
of that marriage to this indictment that is before the jury.

COUNSEL: It led, did that marriage and the circumstances [of] that
relationship, did that lead to you seeking counselling?”.

The witness then answered the question and the cross-examination continued.

12. Shortly after that intervention, Counsel for the appellant was looking for some
documents and the following exchange occurred:

“JUDGE: While you are tracking them down, can I just get a feel for, I
am trying to see whether to keep you in the witness box a bit longer in
the hope of finishing your evidence, as opposed to adjourning for the
morning. How much longer do you think you have got roughly?

COUNSEL: I am going to ask for a short break anyway because there’s

a matter I wanted to deal with with my client in respect of the
photographs produced in evidence in court anyway before I can finish.

JUDGE: Right, I think –

COUNSEL: I was going to ask for a break, in any event.

JUDGE: I think in any view, D, giving evidence is quite an intense

process, and if you do not mind, I am going to break off now with the
jury and you, and ask you to return fresh tomorrow at 10am.

A: Yes.

JUDGE: Is that all right?

A: That’s fine.

JUDGE: I think we will do it that way rather than getting a break now
and having the witness come back.

COUNSEL: I will need more than just a few minutes.

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JUDGE: Okay.

COUNSEL: Hopefully, as usual, if I can see this is the benefit of a

short break will [inaudible].

JUDGE: All right, well, I do not imagine you will be very much longer
tomorrow morning, but I am going to break off now.”.

After discussing other administrative matters, the Judge returned to the question of
timing:

“JUDGE: … I am not going to put too much pressure about timing. It

is impossible to be very precise, but roughly how much more cross-
examination do you think you have?

COUNSEL: How long have I been so far?

JUDGE: You have been about an hour and a half.

COUNSEL: I do have at least half an hour.

JUDGE: All right, I will expect you to come to a conclusion within say
45-minutes tomorrow morning.

COUNSEL: That helps me.”.

We note in passing that the Judge’s estimation was incorrect and that Defence
Counsel had in fact only been cross-examining for 48 minutes by this point.

13. The following morning, on receiving a note from the Jury, the judge gave directions
on how it would be answered. There was then a brief exchange about timing with
Defence Counsel:

“JUDGE: …Right, but in the meantime we are going to continue with

your questioning, Mr Burton. You have said you will be 30, 40
minutes, something like that –

COUNSEL: I will certainly be at least that, that period of time. I am

going to try to keep it short –

JUDGE: Well, I would like it to finish within 40 minutes.”.

The cross examination then continued, largely without intervention. At one point the
Judge pointed out that Defence Counsel was repeating matters that had been covered
the day before. After clarifying her previous answer with D, the judge said that he
“would like [Defence Counsel] to move to fresh ground rather than to recycle.”
When Counsel demurred, the Judge repeated that he had asked the question the
previous day and said “Let us move on to new questioning.” We are not able to detect
anything exceptional about this exchange at all. Specifically, there is no hint of
animus or conflict between Judge and Counsel; it is an entirely routine occasion of a
Judge asking counsel to move on.

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14. After a while, D became distressed on it being suggested to her by counsel that she
had made it all up. The Judge intervened:

“JUDGE: Just pause for a moment. Can I just explain to you, D? It is

not what Mr Burton believes. It is not personal. He is putting the
instructions of his client, the defendant, and it will be for the jury to
decide. All right. Just take a moment. Would you like to –

A: Sorry.

JUDGE: No, do not apologise. Would you like to take a short break?

A: Yes please.

JUDGE: All right. We will take a short break. Thank you ladies and
gentlemen. Fifteen-minute break.”.

Immediately after the court had risen and, it appears, in the absence of the Jury, the
Judge spoke to Defence Counsel again:

“JUDGE: … This is exactly why I have sought to keep to a shorter

timeframe for cross-examination. So, I am now going to impose a time
limit to protect the defendant because it can be seen as diminishing
returns if a witness becomes increasingly distressed, and to protect the
witness. If and when the witness is able to resume because I was told
that behind the scenes yesterday there was considerable distress,
perhaps not portrayed in court, and if and when the witness is fit to
resume, Mr Burton, you will have 20 minutes. So, take your best
points, okay? You have got 15 minutes now to further whittle and I will
tell the jury when we resume, that I have imposed a time limit of 20
minutes.

COUNSEL: Yes, Your Honour.”.

When the Court resumed about 15 minutes later, the Judge returned to the question of
time limits and the following exchange took place:

“JUDGE: Right, so Mr Burton, I am going to impose a time limit.

Now, it maybe that 20 minutes is too short. What would you suggest?

COUNSEL: Your Honour, could I ask for 40 minutes, [which I think?]

[inaudible] 35 minutes. I think I’ve been on [my feet?] for about 15
minutes but I appreciate your [inaudible] said 45 minutes outside, but
because –

JUDGE: Right, I think that is at the very outside, but I am going to say
a time limit, and it will be imposed. I have not got a bell, but it will be
imposed. I am going to say 35 minutes.

COUNSEL: Thank you.

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JUDGE: I will tell the jury that I have imposed it, so if they think it is
wrong, they can blame me. All right, and I will tell the witness too …”.

15. When D came back into court the Judge told her what had happened:

“JUDGE: … Now, just so you know, just before we bring the jury
back, let us just wait for the defendant. Just so you know, I have
imposed a final cut-off period of 35 minutes from now.

A: Okay.

JUDGE: So, that is the maximum that you will be in the witness box.

A: Okay.

JUDGE. All right I am going to try and finish your evidence in this
final session.

A: Okay, thank you.

JUDGE: Okay, thank you very much …”.

Before the Jury returned, Defence Counsel asked for further clarification and the
following exchange took place:

“COUNSEL: … Just before the jury comes in, just so that we’re clear,
I mean, I am conversant with Your Honour’s concerns, could we just
shut the door for a moment? Conversant of Your Honour’s concerns as
to length. There are obviously key parts or some parts of the witness’
evidence that are challenged. Specifically matters raised, for example,
something was raised by the witness yesterday when she was shown a
photograph of the cellar, which I am not going to come back to this. I
know it’s understood that –

JUDGE: Well, look, we are wasting time now. You have got until 12
o’clock. If you will be saying to me ‘Well, I did not formally challenge
that because of the time limit’, I will hear the submissions on that later
on.

COUNSEL: Yes.

JUDGE: You have until 12 o’clock. Thank you very much. Jury
please.”.

And when the jury returned he told them of his decision:

“JUDGE: Right, thank you ladies and gentlemen. Just so you know, I
have imposed a time limit for all further questionings which must finish
by 12 of this witness. So, if you think that is too short, do not blame it
on Mr Burton, blame me. I have imposed that as a time limit on him.
So, 12 o’clock. Right, Mr Burton?”.

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16. Cross examination proceeded appropriately and concisely with Defence Counsel
putting relevant points to the witness. After some minutes, there was a short
exchange between counsel and the judge where Counsel asked if the judge had said
12 o’clock and the Judge replied “Yes I did. You have got six, seven minutes.”

17. Just as Defence Counsel was coming to the family meeting the following exchange
occurred, which is a passage that forms the centre-piece for the Appellant’s
submissions to us. Defence Counsel had established who was present at the meeting
when the Judge intervened as follows:

“JUDGE: Pause. Twelve o’clock, so this is your last question.

COUNSEL: Well, this is really, very important to get –

JUDGE: Yes, well, I gave you notice. Twelve o’clock, this is your last
question. Do you want to ask another question or not?

COUNSEL: With respect, Your Honour, I’d rather not –

JUDGE: Okay, thank you very much.

COUNSEL: I’d rather not be harangued in that way.

JUDGE: I’m not haranguing, I’m setting a time limit. Ask your last
question or sit down.”.

18. Defence Counsel then attempted to roll everything up into one question. Since it is
central to the Appellant’s case on appeal, we record what was said after the judge had
said “Ask your last question or sit down.”:

“COUNSEL: By the stage that meeting took place, it was made plain
by yourself that unless Mr Bhatt said sorry for what had happened –

A: I didn’t suggest him to say to sorry. My sister did.

COUNSEL: You would report – I hadn’t finished my question – you

would report the matter to Social Services, you would disclose to the
family the fact that the relationship between Mr Bhatt and your sister,
and that in the circumstances of being shouted at by both yourself and J,
Mr Bhatt was persuaded to kneel down to your feet and apologise for
any offence he may have caused, but at no stage made any admission to
what was being alleged by yourself and J. Do you understand the
question?

A: I understand the question but that’s not what happened. What

happened was the fact, they – my sister was constantly calling me at
work. They then phoned J, who is J, my partner, and they said that they
– we needed to meet up, we needed to find out what was going on and
what the solution to this would be. They, in fact, came to find a
solution and see if I could lie, if it – and say, actually it wasn’t about
Manoj, it was about some past boyfriend of my sister’s and J said ‘No,
she’s not going to lie, but did you do this’? and he asked the question. I

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don’t remember the exact words but he asked the question and he
accepted it and then my sister said, ‘Just apologise to her and my mum’,
and that’s when he folded his hands and he went like this and said
‘Sorry’ and then he put his hand on my head and said ‘I’m like a father
to you’. Father’s don’t do things like that.

COUNSEL: I can’t ask any further questions?

JUDGE: No, you cannot.

COUNSEL: I can’t [inaudible].

JUDGE: Thank you very much. Right, is there any re-examination, Mr

Munday?”.

19. A very brief re-examination then followed and D’s evidence finished at 12.04 pm.
Cross examination had lasted 1 hour and 28 minutes: 48 minutes the previous
afternoon and 40 minutes that morning.

20. Later that day there was a brief exchange when Defence Counsel took the point that
Prosecution Counsel was leading a witness. There was a lack of clarity about whether
the matters that were being led were in dispute. The judge resolved the objection by
saying:

“JUDGE: Right, if it might be in dispute, I will ask the witness myself.

Sit down, Mr Burton. Thank you. You are meeting D, when you met
her, you have told us that you got on well with her. Did you feel that
you had anything in common with her or not?

A: Not in the beginning

JUDGE: Not in the beginning?

A: Not in the beginning, no.”.

The judge continued to ask questions in similar non-leading vein for a short while and
then handed conduct back to Prosecution Counsel.

21. The family meeting was the subject of evidence from three other witnesses. D’s
partner gave evidence on behalf of the prosecution, including evidence of a clear
admission by the Appellant, his attempting to touch D’s feet as a gesture asking for
forgiveness or a blessing, D’s reaction and SB’s suggestion that they should say it was
a former boyfriend and not the Appellant who had abused her. He was cross-
examined by Defence Counsel who put the Appellant’s case in detail. Specifically,
Defence Counsel challenged the suggestion that the Appellant had admitted
committing the sexual abuse and suggested that his gesture in attempting to touch D’s
feet was in accordance with a custom whereby, if offence or upset has been caused,
the older person will make the gesture whether or not they are at fault. He also put
that there was a parallel conversation or discussions in Gujarati involving SB and D’s
mother. The witness said that he could remember no such discussions and that the
mother had said nothing. There were no material interventions from the Judge other
than to clarify briefly and courteously. No complaint is made of those interventions:

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nor could there be any. In a very brief re-examination, the witness said that he had
not made up his evidence in order to support D.

22. SB was called by the Defence. She contradicted the prosecution account of the family
meeting, maintaining that D’s partner had been verbally aggressive trying to force the
Appellant to admit the abuse by threatening that SB’s children would be taken by
Social Services but that the Appellant “told him very nicely that, “I haven’t done
anything like this so stop accusing me.”” SB’s evidence was that D said she did not
want to take matters any further and that their mother had then said that they should
end it immediately and that the Appellant should apologise, with the result that both
SB and the Appellant apologised as they had been told to do so by the elder of the
family. She said that the Appellant had touched D’s head and said “You are like my
daughter” but that, so far as she was concerned, he was not admitting what he had
been accused of doing.

23. It is apparent from the transcript that SB, who was giving evidence by video-link from
India, was affected by a covid curfew, which added an extra time-consideration. This
led the Judge to repeat the need to make progress so that she could be released in
good time to comply with the curfew. At one point Prosecution Counsel questioned
the relevance of a particular line of questioning, which led to the following exchange,
upon which Mr Scobie relies as showing a degree of conflict between Defence
Counsel and the Judge:

JUDGE: Pause. Pause. Now, Mr Burton, time is extremely

precious, but you must ask everything that you need to. You
have already established with the witness herself, D, her
problems with fertility and this sounds like an incredibly long
answer. Do we really need to go through this?

COUNSEL: I can’t control the length of the answers.

JUDGE: Right, well why do we not move on to, for example-

COUNSEL: I would like to know-

JUDGE: No, do not interrupt me. Why do we not, for example,

move on to the complaint through Social Services, because that
is quite a big topic, is it not?

COUNSEL: Well, I do think the answer that’s just being given-

if that could be dealt with that quickly, the answer that’s just
been given should be translated.

JUDGE: Well, let us see. I will be the arbiter of relevance, … .

24. During cross-examination by Prosecution Counsel, the Judge adverted to the need to
keep making progress and, a little later, said to Prosecution Counsel:

JUDGE: … As I did with Mr Burton, I am going to impose a

time limit. I give you fair warning. You have got about half an
hour: 3.30.

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And, a little later, he gave Prosecution Counsel “another 15 minute warning.” There
was then a short break. When the jury came back, Prosecution Counsel turned to the
family meeting and put the prosecution case, which the witness denied in terms
consistent with her evidence in chief. Her evidence was that the Appellant’s behaviour
had been clear and that D and her partner must have realised that he was not admitting
anything. Rather, he was merely trying to protect his children from being taken away.

25. As Prosecution Counsel appeared to be moving on from the meeting, the Judge
intervened as follows:

“JUDGE: Okay Mr Munday, have you finished with the meeting

because I have not heard you put the Crown’s case on it yet about
evidence we have heard, and you have to put it to the witness if you are
relying on it? Anything said by this witness in the meeting.”.

26. Prosecution Counsel then put to SB that she had said to D that D should say it was
someone else who had abused her, not the Appellant, which she denied. Defence
Counsel’s short re-examination did not touch on what happened at the meeting. After
the conclusion of SB’s evidence, the Judge took Prosecution Counsel to task for not
having put all aspects of the Crown’s case to the witness. The Appellant submits that
this exchange demonstrates, if demonstration were needed, both the importance of a
party putting their case and the Judge’s appreciation of that importance.

27. The Appellant gave evidence on his own behalf the following day. Defence Counsel
was given a 15-minute break in the middle of examination in chief to gather his
thoughts about how to conclude the evidence. During that break the Judge said:

“In my mind’s eye, and I was probably being unrealistic, we

would have finished this evidence this afternoon, but it sounds
like we are just going to finish examination-in-chief and have
cross-examination tomorrow.”.

Both counsel agreed that this was a realistic assessment.

28. When it came to the family meeting, Defence Counsel took the Appellant through his
evidence carefully and thoroughly. The Appellant’s evidence was similar to that of
SB. He said that D’s partner had shouted at him (in English) telling him to admit it
and that he had responded that he would not admit something he had not done. Then,
he said, D and her partner threatened him that Social Services would take his children
away. The transcript records him as saying that his (i.e. the Appellant’s) mother had
intervened, though this appears to be a slip and the reference should be to SB’s
mother. On his account she said “For any reason if you’ve been offended for
anything else and you’re accusing him, do not talk about taking the kids away and
putting them in Social Services, and for that they will apologise to you.” On his
account he then bowed down at D’s feet and said “Please don’t do this and spare my
children. Don’t take them. Don’t make Social Services take them away.”

29. At this point the Judge intervened briefly to ensure that he had got his note right
“because this is potentially important.” When the Appellant went on, he said that he
had put his hand on D’s head, blessing her and saying that “You are like my daughter.
If I said anything which has offended you, then forgive us.” His evidence in chief

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about the meeting concluded with him again denying that he had abused D. There
had been no impediment to Defence Counsel adducing the evidence he wanted to lead
before the jury. During the course of the rest of his evidence, there were a number of
interventions from the Judge but none of which complaint is made. In our judgment
the interventions were appropriate: most appear to have been generated by the
involvement of the interpreter, which led on occasions to a need to clarify.

30. At one point during the Appellant’s evidence in chief the Judge queried the relevance
of a line of questioning, which concerned the professional qualifications of a nephew
of the Appellant. After Defence Counsel indicated that he would leave the point, the
Judge explained to the Jury why he had intervened, which was to do with relevance of
the nephew’s qualifications. The examination-in-chief of the Appellant was then
concluded. However, the Judge returned to his intervention in the absence of the jury
the following morning, expressing the concern that he may have been “rather short”
with Defence Counsel. It was agreed that the matter should be left to rest for the time
being; and the Appellant was then cross-examined.

31. At about mid-morning, the Judge gave the Court a short break, primarily for the
benefit of the interpreter. In the absence of the Jury the judge returned to the question
of timing with Prosecution Counsel:

JUDGE: Well … I am mindful of the fact, and it is incredibly

important, we are already two days over the time estimate you
gave for this trial.

COUNSEL: Yes.

JUDGE: This jury are expecting to end on Friday, no one wants

corners to be cut, but we have to be concise and use our time
well. I am already asked for a break this afternoon with the jury
to go through legal directions, we cannot go at a snail’s pace, so
what I would like you to do is to start putting the Crown’s case.
I am not criticising, a lot of potentially valuable background
has been covered, but we need to move into another gear now.

COUNSEL: Yes, I’ll speed up.

32. A little later there was a further exchange with Prosecution Counsel on the need to
make progress:

JUDGE: Okay, pause for a moment, now we have been back

and forth on the question of cover many, many times, I think
the jury know the battle lines; just so you know, I think by 10
past one I expect you to have finished cross-examination.

33. When it came to the family meeting, Prosecution Counsel put to the Appellant that
most of the conversation took place in English, and that D’s partner had asked the
Appellant directly whether or not he had assaulted D. The Appellant’s evidence was
that he had said repeatedly that he had not abused D and that D’s partner had shouted
at him saying “You did, you did, you did” and “You better admit it.” He admitted to
having scolded D in the past and said that he had asked for forgiveness and had

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bowed down at her feet so that the Social Services would not take his children away.
He flatly denied that he was lying and said that it was D and her partner who were the
ones who were lying.

34. It is apparent that the Judge gave prosecution counsel a few more minutes than he had
indicated because the time came when the following exchange occurred:

JUDGE: Okay, pause, I gave you five minutes extra because of

the interlude with the interpreter, but that is the end –

COUNSEL: Yes, [inaudible] in due course in order to direct the

jury, the questions of counsel and the repetition of the
allegations is not evidence in the case.

JUDGE: Well, that applies to both counsel, that is true.

COUNSEL: It does, indeed.

35. At the start of the afternoon session, and before the Appellant was re-examined, the
Jury sent a note to the Judge to which he responded as follows:

JUDGE: What a polite note, ladies and gentlemen, I will read

it out to counsel, I was going to do this, but you pre-empt me,
‘Please may the judge assist the jury in understanding the
process remaining for the current case? We recognise the right
to a fair trial regardless of how long it may take, but a brief
overview would be helpful to us if that would be allowable’.
Right, I will return to this a little bit later, but the short answer
to your question is we anticipate finishing all the evidence in
the case today. I will then need to ask you to leave us, so you
are going to have a fairly early day today, I suspect, while I
discuss some legal directions with counsel and then tomorrow,
Thursday, the plan is for me to begin my summing-up to you,
the legal summing-up, for counsel to make their closing
speeches to you and for me to remind you of some of the
evidence that you have heard and that is expected to take all of
tomorrow. Our current plan is it is expected that you may go
out to begin your deliberations on Friday morning.

Now, I appreciate that you were probably expecting to finish on

Friday, which may well be the case, but it is important that you
do not feel any extra anxiety were your deliberations to
continue into Monday. So, if any of you have, as I say, it may
not be a problem, but if we are in that position, would you think
about that and would you pass me a note to let me know what,
if any, difficulty there would be were deliberations have to
continue on Monday, pass me note if there are any anxieties
about that and I will consider it.

36. The Appellant was then briefly re-examined by Defence Counsel. The re-
examination did not elicit any further evidence about the family meeting.

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37. We can now turn to the summing up, which was a split summing up with the legal
directions being given in writing and orally before counsel’s speeches and the Judge’s
summary of the evidence being given orally after them.

38. One particular aspect of the legal directions forms the basis of Ground 2. In what
were otherwise uncontroversial directions, the Judge included two sections, entitled in
the written version “Avoiding myths and stereotypes” and “Children and young
people”. We set them out in full as given orally by the Judge:

Now the next section I have headed ‘avoiding myths and

stereotypes’. Before I turn to the document, rape, historical
sexual allegation, sexual abuse, all of these allegations come
with a lot of baggage and talk in the media and opinions that
you may have held. So what I have put here is, it is for you and
you alone to assess whether or not you believe … the
complainant. …

However, it is important that you do not bring to that

assessment any pre-conceived views as to how a witness, in a
trial such as this, should react to the experience. Any person
who has been sexually assaulted will have undergone trauma. It
is impossible to predict how an individual will react in the days
following, in the months since, and in the years since, and in
speaking about it in public.

The experience of the courts is that victims of sexual abuse

react in different ways. Everyone is different. Some will
display obvious signs of distress, others will not. It does not
automatically follow that signs of distress by the witness
confirm the truth and accuracy of the evidence, any more than
lack of signs of distress indicate that they are being untruthful.
How a witness gave their evidence and what you made of them
is very much part of your job, as long as you remember not to
bring stereotypes, or preconceptions, as to how people are
supposed to react, into play

The next topic, children and young people. I am going to make

some further comments, based on the experience of the courts,
but they are not a direction of law and you are not obliged to
adopt or follow them. Whether you agree with them and
whether any of them apply to this case is entirely a matter for
you.

The defence say that if these things had really happened to her,
you would have expected her to have complained, or protested,
to someone sooner than she did. They say the fact that she did
not complain, at the time that they were happening, makes her
subsequent complaints less likely to be true.

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When you are considering her reliability, you are entitled to

consider why she did not make a complaint sooner, and you are
entitled to consider whether the delay undermines the reliability
of what she has told you. As with all decisions concerning
quality and reliability of evidence, those are matters for you,
not me, to decide, but I am going to make a few remarks about
delayed complaints, in cases involving people who were then
children or young persons.

When you are considering the reasons why a child, or young

person, has not made a complaint, you must remember first and
foremost that you are considering the behaviour of a child, or
young person. Experience shows that they do not behave in the
same way as adults. They do not have the same experience of
life and the same levels of maturity and this is reflected in the
way they react to events, and that includes the way they react to
sexual attention. When children and young people are sexually
assaulted, or abused, they may not be aware that what has
happened to them is wrong. They may be confused about what
has happened and they may even blame themselves for what
has happened.

If they do appreciate that what has happened is wrong, they

may be inhibited from speaking out for a variety of reasons.
They may have been told not to tell anyone. They may be
afraid that if they do tell someone, they will not be believed.
They may be scared of the consequences of speaking out. They
may be scared for themselves and they may be scared for other
people and the effect it will have on relationships which they
value and this difficulty may be compounded, where it would
involve speaking out against a family member.

As a result, they may have very confused and mixed feelings

about whether to speak out as they get older and as they mature
into adults. They may simply blank out what has happened to
them and get on with their lives, until the point comes when
they feel ready to speak out, or someone, or something prompts
them to speak out. It would be wrong to assume that every
person who has been the victim of sexual assault will report it
as soon as possible.

The experience of the courts is that victims of sexual offences

react to the trauma in different ways. Some in distress, or anger,
may complain to the first person they see. Others who react
with shame, or fear, or shock, or confusion, do not complain, or
go to authority for some time. It takes a while for self-
confidence to reassert itself. There is, in other words, no classic
or typical response. Do not stereotype. A late complaint does
not necessarily signify a false complaint, any more than an
immediate complaint necessarily demonstrates a true
complaint. It is a matter for you to determine whether, in the

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case of this complainant, the lateness of the complaint, such as

it is, assists you at all and, if so, what weight to attach to it. You
need to consider what she herself said about her experience and
her reaction to it.

Now she told you that she had tried to tell her sister and mother
about it, but they disbelieved her and she ended up thinking that
no one would believe her. The defence, on the other hand, say
she is lying about ever telling [SB], or her mother about it, until
2018 and this is a conflict in the evidence, which ultimately
depends on your assessment of the credibility of [D] and
whether you are sure about her account.

39. The Judge had, in accordance with best practice, provided a draft of his proposed
written directions to Counsel on Day 8, 10 February 2021, with a view to his
summing up starting the following day. It is apparent from the transcript that both
Counsel communicated with the Judge overnight by email making suggested
amendments. There was then a discussion between the Judge and Counsel on the
draft in the light of those suggestions from which it is clear that Mr Burton had
suggested that the section on Children and Young Persons should be omitted from the
written directions. Sensing that the Judge was against him, Defence Counsel
questioned whether its inclusion might lead the Jury to think that it reflected the
Judge’s view of what had been made of the lack of complaints. Prosecution Counsel
submitted that the Judge had prefaced the whole section by reminding the Jury that it
was a matter for them whether or not they accepted and that the direction was merely
telling them about the Court’s experience. Defence Counsel responded that, although
he agreed that the section on Children and Young Persons contained “highly relevant
considerations”, the Judge might also include that it may be the experience of the Jury
that children are capable of lying. In his ruling, the Judge referred to Defence
Counsel having “politely raised” the point, but he concluded that it was appropriate
for the Jury to have the passages in writing as it concerned their approach to the
evidence and that it was more helpful for them to have it “crystallised” before they
heard the speeches of counsel. He rejected the submission that the passages gave
“any portrayal of an opinion” by him.

40. Turning to the Judge’s summary of the evidence, he took the evidence of the
witnesses in turn rather than providing a single narrative approach and incorporating
relevant evidence into that narrative. Adopting this approach is not the subject of any
criticism by the Appellant. We have reviewed the summing up as a whole, giving
particular attention to the Judge’s treatment of the family meeting.

41. The Judge summed up D’s evidence fully. His summary included her evidence in
chief about the family meeting and a similarly thorough review of Defence Counsel’s
cross-examination save that review of the cross-examination did not include reference
to the family meeting. His review of the evidence of D’s partner covered both
examination in chief and the putting of the defence case fairly and even-handedly,
including the witness’ account of the family meeting. When he dealt with the
Appellant’s evidence about the meeting he captured the essential points that the
Appellant had made fairly and even-handedly; and he referred to the “stark contrast”
between the Appellant’s evidence and that of D’s partner. Similarly, when dealing
with SB’s evidence about the meeting, he provided a fair summary of the essential

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elements of her account. Viewed overall, his treatment of the witnesses’ accounts of
the meeting was fair and even-handed despite the omission of any mention of Defence
Counsel’s attempt to roll up his case and to put it as his compendious last question or
of D’s response to it. The Jury could have been in no doubt about the nature of the
evidence the witnesses had given, the stark contrast between the opposing versions of
events, the importance of the prosecution’s assertion that the Appellant had admitted
that he had abused D, and the strength of the Appellant’s denial, supported by SB, that
he had done so.

42. At the conclusion of his summing up, the Judge returned to the question of timing,
saying to the jury:

There is no pressure of time. To the juror who sent me a very

polite note, expressing some anxieties about his workplace, I
have already told you that your role, as keyworkers in this trial
in progress, could not be more important and there is a legal
duty for all employers to give way to jury service, until you
finish. I will not be deaf to problems, so if that gentleman, or if
anybody else has an anxiety, do not suffer in silence, pass me a
note and let me know, but otherwise you will deliberate today,
until 6 o’clock if necessary. If you have not finished, no
pressure of time, you will come back on Monday morning at 10
and work through the day. No pressure of time, time is
unlimited, and no one must feel hurried.

43. The Jury retired at 11.26 am. In their absence Defence Counsel voiced concern at the
Judge’s suggestion that the Jury might deliberate until 6pm if required to do so. The
Judge’s reaction was that everyone knew they would go into the following week if
necessary but that he would keep them late as indicated. In the event, the Jury
returned their verdicts at 12.41, 1 hour and 15 minutes after retiring.

The Appeal

44. Mr Scobie QC ran the two grounds of appeal that we have outlined above in tandem.
He submits that the grounds should be seen in the context of persistent time pressure
being placed upon Counsel; and in that context he contrasts the treatment of Defence
Counsel with that afforded to the Prosecution. It was agreed on all sides that either D
or the Appellant had come to Court with the deliberate intention of lying. The great
majority of what was alleged by the Crown took place (if it occurred at all) out of
sight of others. Mr Scobie submits that the family meeting therefore has added
importance because it is the one area where the evidence of D and the Appellant
respectively can be seen and tested in a context where direct evidence is also given by
others, namely D’s partner and SB.

45. Mr Scobie submits that the passages we have set out at [14]-[18] above show a
confrontational refusal to allow Defence Counsel to put an important part of his case,
which may have left the Jury with the impression either that the family meeting itself
was unimportant or that the Defence case in relation to it was unimportant and could
be disregarded or that Defence Counsel’s cross-examination was being criticised. The
effect of the passages, he submits, was to undermine Defence Counsel at a critical
stage of his cross-examination. He submits that, although there were evident

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pressures of time, doubtless exacerbated by the logistical difficulties imposed by the

pandemic, they did not justify so peremptory an approach: it would have been
possible and appropriate to let Defence Counsel finish his cross-examination, which
would have taken only a few minutes and could readily have been explained both to
the witness and to the Jury.

46. Mr Scobie submits that the combined effect of the written and oral directions on
“Avoiding myths and stereotypes” and “Children and young people” was to bolster
the evidence of D to the disadvantage of the Appellant. Taking that together with the
peremptory curtailment of Defence Counsel’s cross-examination he submits that the
trial was unfairly tilted against the Appellant such that his conviction is unsafe. As he
put it in reply, it is not possible to repair in a summing up what has not been properly
tested with the principal witness for the Crown, namely D. In a passage of advocacy
of consummate skill he attempted to plant in our minds the doubt that he says a Jury
may have felt about the case that the Defence was attempting to run. And he submits
that the Judge’s reference to sitting to 6pm on the Friday, if need be, may have
suggested to the Jury that this was a black and white case where the Jury could and
should return their verdicts in even time.

47. We note in passing that there is no ground of appeal to the effect that the 6pm
indication itself or in combination with other time restraints renders the convictions
unsafe. It is, as Mr Scobie made plain, relied upon as providing context for the two
grounds of appeal that are pursued.

48. Responding on behalf of the Crown, Mr Munday frankly (and rightly) concedes that
the termination of Defence Counsel’s cross-examination of D does not read happily.
But he submits that Mr Burton’s rolled-up final question effectively put the defence
case on the family meeting to D. In any event, he submits that any adverse inference
that the Jury might otherwise have drawn was forestalled by the Judge’s clear
direction to the Jury that the curtailment of time was his, the Judge’s, responsibility
and that, if they thought the time limit was short, they should blame him and not
Defence Counsel. He submits that the Jury could not have been under the impression
that the family meeting was unimportant or under any misapprehension about the
contrasting cases being advanced by the Crown and the Defence.

49. Turning to Ground 2, he points out (correctly) that the text for the directions closely
followed drafts in the Compendium which are routinely followed; and he submits that
there was suitable tailoring to meet the facts of the present case. The giving of the
direction was justified by the repeated putting to D of the Appellant’s case that she
had not complained to others; and he relies upon the fact that Defence Counsel
expressly accepted that the Children and Young Persons direction should be given –
his only reservation being that it should have been given orally and not in writing. He
repeats the submission that he made at trial that it is helpful for the Jury to have as
much as possible crystallised in writing so as to provide the legal framework for the
speeches of counsel. He rejects the suggestion that there was an antagonistic
atmosphere and submits that the Judge’s interventions, viewed overall, were even-
handed and appropriate.

50. Mr Munday informed us that Friday 12 February 2021 was scheduled to be the jurors’
last day of service; but he submits that the Judge made it clear that the importance of
their task meant that they could and would go over into the following Monday if

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necessary with no pressure to reach a conclusion on the Friday. He submits that the
pressures of time were at least in part a reflection of the additional difficulties
imposed by the pandemic. As an example of the practical effects of the pandemic he
points to the fact, which appears more than once on the transcript, that disinfection
and cleaning of the witness box had to be carried out between each witness and, as
was commonplace during the pandemic, the Jury were not able to retire to a
convenient enclosed space for “just for a few minutes” but had to be led to a place of
safety, ensuring that they did not come into contact with others. The need for SB to
comply with the curfew in India is another practical example of the logistical
difficulties typical of those facing trial judges throughout the land during the dark
days of the pandemic. He submits that the Judge’s references to time pressure were
appropriate and do not cause or contribute to any lack of safety in the Appellant’s
convictions. And, despite the time pressures, he points to accommodation provided
by the Judge to the Defence, including allowing Defence Counsel time to take
instructions during the trial, interposing SB before the Appellant gave his evidence,
and permitting the Appellant to start his evidence in the morning rather than at 2.40 in
the previous afternoon.

Resolution

51. As a preliminary observation, it is plain that the pandemic was imposing additional
demands on the conduct of this trial, as the Court ensured that the safety of Court
users was protected as far as reasonably possible. We accept without hesitation that
this would have made some routine steps, such as asking the Jury to retire for a few
minutes, more complicated and time consuming. Though there is no mention of this
in the transcript, our collective experience leaves us in no doubt that the difficulties of
maintaining social distancing and other measures for the safety of all concerned
would be increased if one jury panel over-ran so that there were additional people to
be protected when the following week began. While these complications affected the
speed and efficiency of the trial process, it was always essential to ensure that they did
not compromise the fairness of the trial process.

52. Second, it is plain that the Judge had hoped to complete the trial before the end of
Friday 12 February 2021 and that, from time to time, he felt it necessary to intervene
with both Prosecution and Defence Counsel to urge greater speed. The great majority
of these were conventional examples of a Judge perfectly properly encouraging
counsel to leave a point that had been sufficiently covered (or covered on a previous
occasion) or where a Judge seeks clarification either from a witness or from counsel:
see, for example, [23], [29] and [32] above. Having scoured the transcripts, it seems
to us that there are four occasions which bear further examination.

53. The first is the manner of the imposition and enforcement of the guillotine on Defence
Counsel’s cross-examination of D. We have set out the relevant exchanges at [14]-
[18] above. We accept (as did Mr Scobie) that the imposition of time-limits and their
enforcement are commonplace in Crown Court Trials, particularly those involving
allegations of sexual offending, and that the discretion of the trial judge in relation to
the setting and enforcement of time-limits is broad, the touchstone being that the
fairness of the trial must not be compromised: see R v Butt [2005] EWCA Crim 805 at
[16]. In the present case, the Judge was confronted by a witness who was finding
matters distressing. He took the view that prolonged cross-examination would lead to
diminishing returns and increased episodes of distress and that it was not in the

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interests of the Appellant for that to happen: see [14] above. In addition he took the
view that imposing a time limit was appropriate to protect D. Those were views that
he was fully entitled to take and we do not criticise his conclusion that cross-
examination should be curtailed. It appears that the Judge may have been under a
misapprehension about how long the cross-examination had lasted when he came to
formulate his view about how much longer Defence Counsel should have; and it also
seems to us that just under 90 minutes in total is quite tight given the amount of
material that Defence Counsel had to cover in order to put the main features of his
client’s case. However, it was undoubtedly within the range of durations that the
Judge was entitled to impose; and the time limit, though tight, cannot reasonably be
described as arbitrary. Rather it can and should be seen as the Judge’s assessment of
what further period of cross-examination best protected both the Appellant and D
when the time limit was first set. Nor would we criticise the manner in which the
time limit came to be set, which we have set out at [12]-[15] above. The gradual
movement towards imposing the time limit were characterised by proper and
courteous discussion with counsel leading to the Judge’s decision.

54. In some cases there may be compelling reason why a time-limit, once set, should be
enforced to the minute, either to protect a witness or because counsel is making poor
use of the time allowed to them. It is not clear that this was such a case. There is no
sign that D was distressed in the minutes approaching 12 noon, and her reply to
Defence Counsel’s rolled-up question, when it came, shows that she was still fully
able to maintain her evidence. Defence Counsel had been using his time competently
and had covered considerable ground in the time he had been given. In our
assessment, he needed only a very few minutes – five at the outside – to put his case
on the family meeting properly to the main prosecution witness. It would have been
relatively easy for the Judge, who was clearly fully in control of his Court, to explain
both to D and to the Jury why her cross-examination was to be prolonged for that
short while.

55. As the clock ran down, the guiding principle should as always have been fairness or,
more particularly, the risk of unfairness to either the prosecution or the defence. We
do not criticise the Judge for his instinctive wish to maintain the time limit that he had
recently set. Furthermore, it would have been possible for the Judge to impose the
guillotine at 12 noon while making plain to the Jury, as he had done before, that the
responsibility for curtailing the cross-examination lay with him and not with Defence
Counsel. Adopting this approach in circumstances where it could not be said that
Defence Counsel had squandered the time available to him would have provided
added comfort for the Appellant while maintaining the time limit of which all parties
had been made fully aware. However he did it, enforcing the guillotine in the present
case was going to mean that Defence Counsel would be stopped before putting his
case on the family meeting as he would wish and as normal competence would
dictate. It was therefore a significant step to take, though one that was within the
range of decisions that the Judge was entitled to take.

56. Where we part company with the Judge is in his handling of the enforcement of the
guillotine. As Mr Munday rightly accepted, it does not make for happy reading. It is,
in our view, a marker of the unsatisfactory manner in which the termination was
handled that experienced and competent Defence Counsel felt compelled to suggest in
front of the jury that he was being “harangued”. The Judge did not agree. We have

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not heard the voices and so cannot gauge the tone of voice that was being employed;
but it is sufficient to say that, on the basis of the transcript, we can understand why
Defence Counsel responded as he did. It may not be necessary to try to analyse
precisely what went wrong when, in our judgment, the overall effect was clear, but
some points may be identified, dealing first with the passage we have set out at [17]
above. First, to start by saying “Twelve o’clock, so this is your last question” can
only be described as peremptory since it would be obvious that Defence Counsel was
unprepared for the directive that he had only one question. Whether Defence Counsel
should have been prepared is of secondary importance since the Judge had to deal
with how things stood at 12 noon. Second, it was really no answer to say, when
Defence Counsel pointed out the importance of the family meeting, that he had been
given notice, that it was now 12 o’clock and that it was now time for a last question.
That response smacks of an unexplained and unnecessary adherence to form rather
than the result of a reappraisal of the balance of fairness to D and the Appellant.
Third, the question “Do you want to ask another question or not?” seems to us in
context to be confrontational rather than judicially firm, an impression that is
heightened by the Judge saying a moment later “Ask your last question or sit down.”

57. To this extent we accept Mr Scobie’s submission that the manner of the termination of
Defence Counsel’s cross-examination of D gives rise to two legitimate concerns: first,
that it could have affected the Jury’s view of Defence Counsel in relation to his failure
to complete his cross-examination of D in time; and, second, that it could have left a
member of the Jury with the perception that the family meeting was less important
than it actually was. To that extent, and viewed in isolation, we accept that the
manner of termination raises a question about the fairness of the trial process. We
emphasise immediately, however, that such a question requires this episode, which
lasted a matter of seconds, to be seen and assessed in the context of the trial as a
whole. That is an exercise to which we will return later in the judgment.

58. The episode was concluded by Defence Counsel’s attempt to roll up the case that he
would have wished to put into his one last question. In normal circumstances, had
counsel rolled up what amount to at least five questions into one, any Judge would
intervene to require the composite question to be broken down into its constituent
parts. That said, Defence Counsel’s rolled up question was a manful effort; and, more
importantly, it was clearly understood by D who gave a reply that showed she was
still well able to contend with the cross-examination to which she had been subject.
To that extent, the composite question and answer blunt the point of the submission
that Defence Counsel was not able to put his case. It does not demolish the point
altogether because putting the case by proper (single) questions is preferable to having
to rely upon a composite one. But it reduces any danger that might otherwise have
existed that the Jury would undervalue the importance of the family meeting or not
understand the Appellant’s case in relation to it.

59. Before leaving the episode for the time being, we consider that the exchange between
Defence Counsel and the Judge that we have set out at the end of [18] above
continues the unhappy manner in which the guillotine was enforced, though we repeat
the reservation that we have not heard the tone of voice in which it was conducted.

60. The second feature upon which Mr Scobie relies contrasts the manner of enforcing the
termination of Defence Counsel’s cross-examination of D with the manner of the
imposition and enforcement of the time limit for Prosecution Counsel’s cross-

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examination of SB and the Appellant: see [24], and [32] and [34] above respectively.
We see no distinction in relation to the initial imposition of the time limits, which
were courteous and appropriate as they had been with the initial imposition of the
time limit for Defence Counsel’s cross-examination of D. It does not appear from the
transcript that the Judge had to enforce the time limit he had set for Prosecution
Counsel’s cross-examination of SB. When it came to time to enforce the time limit
on the cross-examination of the Appellant, the Judge allowed Prosecution Counsel
five extra minutes “because of the interlude with the interpreter.” What if anything is
to be made of this fleeting episode? We would not criticise the decision to give
Prosecution Counsel five extra minutes, for the reason given by the Judge. What it
does suggest, however, is that the pressures of time were not so extreme as to exclude
the possibility of a few minutes’ flexibility. To that extent it supports the suggestion
that the Judge could have given Defence Counsel the additional few minutes he
needed to conclude his cross-examination of D, even in the absence of any interlude
with the interpreter or similar justification. Overall, however, the distinction between
the two approaches is, to our minds, of no real significance. We cannot conceive of
the possibility that a juror, or the Jury as a whole, would have been influenced in a
way that was adverse to the Appellant’s interests because the Judge reasonably gave
Prosecution Counsel a few extra minutes after an interlude with the interpreter.

61. The third feature upon which Mr Scobie relies is the exchange that we have set out at
[20] above. We are not satisfied that this adds anything material. On the contrary, it
seems to us to have been a reasonable resolution by the Judge of the point that had
arisen about whether a witness was being led improperly by Prosecution Counsel.
The lack of clarity led the Judge, reasonably in our view, to conclude that the quickest
way through was for him to take over questioning with unimpeachable open questions
for a brief period before handing back to Prosecution Counsel. It was a good example
of a judicial intervention that got things going again rather than getting bogged down
in a dispute between counsel in the presence of the Jury. In the course of so doing he
indicated that Defence Counsel’s objection was being dealt with by his questions and
that Defence Counsel should sit down. We are unable to detect any hint of animus or
inappropriate direction in what the Judge said.

62. Last comes the episode that we have outlined at [23] above. We have already referred
to an occasion during the cross-examination of D when the Judge intervened to direct
Defence Counsel to move on rather than recycling matters with which he had already
dealt: see [13] above. We are not able to discern anything untoward in the exchange
that we have set out at [23] above, with the possible exception of the Judge’s remarks
in the last line that we have set out. Much more important is that the Judge set out
clearly at the outset why he was intervening. Most importantly, and not forgetting the
last line of the citation, we are unable to detect any sign of animus or conflict in the
dealings between the Judge and Counsel on this occasion.

63. We have referred at [30] above to a similar intervention, again relating to relevance,
during the Appellant’s evidence in chief. This subsequently gave the Judge cause for
concern on the basis that he had been “rather short” with Defence Counsel. We have
scrutinised the transcript and find no basis for significant criticism. The Judge
explained to the Jury why he had intervened and his intervention appears to us to have
been justified. We can find no evidence of animus, confrontation or undermining of
Defence Counsel in the passage which gave the Judge his concerns. We are confident

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that the correct course was followed, namely to let it lie. Neither on its own nor in its
immediate or wider context do we find any reason to suggest that the intervention
could have acted unfairly or to the Appellant’s material disadvantage.

64. We have identified the passages upon which Mr Scobie has relied. In relation to the
termination of Defence Counsel’s cross-examination of D we have accepted that the
manner of termination, viewed on its own, gives cause for concern. We have also
identified the limited significance of the Judge not enforcing to the minute the time
limit he had imposed upon Prosecution Counsel in respect of his cross-examination of
the Appellant. However, despite the very great skill with which the appeal has been
advanced, we are not persuaded that any of the other passages upon which Mr Scobie
relies give any cause for concern. Specifically, they do not substantiate the presence
of any degree of unacceptable animus or conflict passing between the Judge and
Defence Counsel. To the contrary, extensive study of the transcripts shows that, with
the one exception we have identified, the Judge was unfailingly courteous, reasonable
and even-handed in his dealings with both Counsel.

65. The conclusion that the trial was conducted overwhelmingly courteously, reasonably
and even-handedly provides the wider context for the termination of the cross-
examination of D. As we have indicated, that happened during Day 3 of a 10 day
trial. Extensive review of the transcripts shows that the brief episode was out of line
with the general conduct of the trial to such an extent that, even if a manner of
termination had raised a question in the mind of a juror or jurors at the time as Mr
Scobie suggests, the conduct of the rest of the trial would have provided a significant
part of the answer to any such question. Thus, even accepting for the purposes of
argument that the manner of the termination had the potential to raise questions in the
mind of the Jury which could have given rise to a risk of an inference being drawn
that was unfair and adverse to the Appellant, that potential and risk were substantially
dissipated by the conduct of the rest of the trial.

66. We have reached the clear conclusion that the failings in relation to the termination
did not, in the end, give rise to any actual risk of unfairness or that the Appellant’s
conviction may be unsafe. We have reached that conclusion taking into account both
Ground 1 and Ground 2.

67. The first element of the appeal is to suggest that Defence Counsel was undermined by
the termination in such a way as may have made the Jury liable to discount his
contribution. As we have said, the wider context of the Judge’s dealings with both
counsel, which were reasonable, appropriate and lacked any sign of animus, supports
the conclusion that there is no risk that Defence Counsel was undermined in the eyes
of the Jury. We also take into account that the Judge had forewarned the Jury about
the time limit and taken responsibility upon himself if (as happened) his time estimate
proved to be too short: see [15] above. Though not a full or complete answer, it
weighs in the balance when considering whether there is a risk that Counsel was
undermined materially and unfairly.

68. The second element of the appeal is that the termination of the cross-examination may
have suggested to the Jury that the family meeting was not important. We reject this
submission, again by reference to the wider context provided by the trial as a whole.
As we have identified, the family meeting was covered in depth by three other
witnesses (D’s partner, SB and the Appellant himself) and summed up appropriately

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by the Judge. In our judgment, the Jury cannot conceivably have been in any doubt
that the meeting was important, as was the clash of evidence about it.

69. Nor can we accept that the termination of the cross-examination as it happened could
have led to any lasting confusion about the nature of the Appellant’s case. The Jury
cannot have been in any doubt about the respective cases of the Prosecution and the
Defence about the family meeting, as these were clearly laid out for them in the
evidence – including that of the Appellant - and the summing up. We have referred
already to the effect of Defence Counsel’s rolled up question and D’s answer to it,
which set out with reasonable clarity both the Appellant’s case and D’s response to it
even if a sequence of single questions and answers would have been preferable. We
have also noted that the Judge did not include the last question and answer in his
summing up of D’s evidence. We are not persuaded that this gives rise to any risk of
unfairness. To the contrary, it may reasonably be thought that the Appellant was
fortunate that they were not included since their inclusion is likely only to have
reminded the Jury that D firmly stood her ground. In any event, there is no suggestion
that Defence Counsel asked the Judge to cover it.

70. Although we have dealt with the Grounds sequentially and with Ground 1 first, we
have not lost sight of the fact that Mr Scobie ran Grounds 1 and 2 in tandem. We
have set out the passages to which the Appellant takes exception at [38]. Simply in
terms of word count, they amounted to a significant proportion of the legal section of
the summing up – contributing something over two pages to the 14 pages of written
directions. That, however, is largely attributable to the relative simplicity of the other
legal directions that the Judge was required to give as well as to the relative
complexity of what needed to be said on Avoiding Myths and Stereotypes and
Children and Young People.

71. Both of these sections of the legal summing up were in relatively standard form. At
trial there was no objection to both sections being given, the only issue raised being
whether the section on Children and Young People should be included in the written
directions or merely given orally. This is not a promising starting point for an appeal.
The Judge did not accept Defence Counsel’s invitation to add an express statement
that children are capable of lying; but that is implicit in each of the sections under
review and, in our judgment, did not need to be said to enable the Jury to understand
the obvious.

72. The substance of the appeal as pursued before us on Ground 2 is that the length,
complexity and combined effect of the two sections was to bolster D’s evidence to the
unfair disadvantage of the Appellant to such an extent as to render the Appellant’s
convictions unsafe either on their own or in conjunction with Ground 1. We are
unable to agree. In our judgment it is necessary to look at why such directions are
given. As their terms make clear, they are to address the risk of stereotypical thinking
that would be unfair to the complainant. Each section deals with a different problem.
The section on avoiding myths and stereotypes is a necessary protection against
stereotypical reactions to a witness’ demeanour when giving evidence alleging that
they have been sexually assaulted; and it encourages the Jury to make their own
assessment of witnesses rather than bringing stereotypes or preconceptions into play.
The section on Children and Young People is again a necessary protection, this time
against the canard that an alleged victim’s evidence of sexual abuse is unreliable
because they have not disclosed it sooner or more fully. This was precisely the case

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that the Appellant was running, most importantly by challenging D on her alleged
failure to make disclosure to her family.

73. We accept that the effect of each direction may be to bolster the evidence of a victim;
but it only bolsters their evidence to the extent necessary to prevent unfairness to the
victim caused by the stereotypical thinking against which it warns. We see nothing
unfair to the Appellant in the giving of both directions in this case. To the contrary,
the giving of both directions was even-handed and fair: the giving of the direction on
Avoiding Myths and Stereotypes had the potential to work in the Appellant’s favour,
given that D had repeatedly become distressed while giving her evidence. The
warning that “it does not automatically follow that signs of distress by the witness
confirm the truth and accuracy of the evidence” was appropriate protection for the
Appellant just as the section on Children and Young People provided appropriate
protection for D.

74. We reject the submission that the Jury may have taken the two directions as reflecting
the Judge’s personal view so that they may have been wrongly influenced against the
Defendant in reliance on the Judge’s supposed view. The Judge had given the
conventional and appropriate warnings earlier in the legal directions about the
respective functions of Judge and Jury and that, if the Jury thought the Judge was
appearing to express any views concerning the facts, they should not adopt those
views unless they agreed with them. In addition, at the beginning of each section now
under review, the Judge re-emphasised that it was for the Jury alone to assess whether
they believed D and that his comments on Children and Young People were not a
direction of law which they were obliged to adopt or follow and that whether they
agreed with them was entirely a matter for them. He returned to them later, re-
emphasising that the assessment of witnesses and evidence was a matter for them and
them alone.

75. We have also taken into account Mr Scobie’s submission that the Grounds of Appeal
should be seen in the context of a trial that was conducted under significant time
pressure. This is not advanced as a separate ground of appeal. There can be no doubt
that, as the trial progressed, the Judge became concerned about slippage and delays.
That said, and with one startling exception, the Judge was astute to emphasise to the
Jury that they were under no pressure of time and that their deliberations would go
into the following week if required: see [35] and [42] above. The startling exception
is the Judge’s suggestion at the conclusion of his summing up that the Jury would
deliberate that day, Friday, “until 6 o’clock if necessary”. The giving of such an
indication is beyond the combined experience of the present Court and, in our
judgment, would require very cogent justification if it is ever to be appropriate.

76. Returning to Mr Scobie’s submission, we are not persuaded that the time pressure to
which he refers alters the overall perception of a trial that was conducted fairly and, in
the event, at no risk of rendering the Appellant’s conviction unsafe.

77. For these reasons, the appeal is dismissed.

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