M v AG

This was a careful, well-balanced direction which ensured that the jury's approach to the consequences of delay was fair to both defendants. As the English Court of Appeal noted in R v F(S) [2012] QB 703 , "for as long as juries are vested with responsibility for deciding the verdict, we must have confidence that they will make allowances for the difficulties faced by a defendant who can only say 'I didn't do it', as well as delay". In the Appellant's case the jury were alerted to the relevance of the delay and its consequences. There is no basis for us to interfere with the verdicts which it was open to the jury to return.

In the course of his oral submissions, Advocate Steenson also submitted that the Appellant had suffered prejudice as a result of developments in the law that had taken place since 1988. He relied in particular on two matters. First, the abolition of the need for certain categories of witnesses (including complainants in cases of sexual abuse) to be corroborated, or 'backed up', by other separate evidence (see the Criminal Justice (Miscellaneous Provisions) (No 3) (Jersey) Law 2011 ). Second, amendments to the law governing the admissibility of bad character evidence effected by Article 82E of the PPCE, as inserted by the Criminal Procedure (Jersey) Law 2018 . The answer to this submission is simple. In Makanjuola [1995] 3 All ER 730, the English Court of Appeal held that an enactment abrogating the mandatory requirement that the trial judge should direct the jury about the danger of convicting on uncorroborated evidence in certain classes of case, applied to any proceedings after it came into force notwithstanding that they related to acts alleged to have been done before. In R v Bradley [2005] 1 Cr App R 24, it was held that the provisions of the Criminal Justice Act 2003 which made evidence of bad character admissible on a wider basis than before, also applied to any proceedings after the relevant provisions came into force. As the Court of Appeal explained in Warren v AG [2009] JCA 175 , the underlying rationale for these decisions is that a defendant has no right to have a particular procedure followed other than that which applies by virtue of the law in force at the time when he is before the court. While the question to what proceedings and to what stages of such proceedings a new statutory rule applies is always a question of construction of the enactment in question, we have no doubt that the relevant procedural provisions were intended to operate in relation to all proceedings after they came into force (and no argument was advanced before us to the contrary). As Sumption JA expressed the point in Warren , supra (at paragraph 11):

It follows that we see no merit in Advocate Steenson's arguments based on alleged prejudice arising from changes made to the procedural rules in relation to corroboration and evidence of bad character. The Appellant was entitled to a fair trial on the basis of the rules as they existed in November 2019, and his trial was conducted fairly in accordance with those rules.

Advocate Steenson also contended that as a result of the delayed complaint, the Appellant had been deprived of the opportunity to obtain statements which may well have been exculpatory. He suggested that such evidence might have assisted in ascertaining the circumstances surrounding the offences. He submitted that procuring evidence of the surrounding circumstances of the offences from persons who were present at the venue during the relevant weekend but from whom the police chose not to take statements would have represented "a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case": see RD, supra .

In our view, the Appellant's arguments are based on mere speculation. The prosecution case was that the offence had taken place in a classroom with only the Complainant, P and the Appellant present. There was some support of the Complainant's account in the form of her recent complaint and her distress during the course of the weekend. The defendants were able to address the jury on the absence of any additional supporting evidence and had the benefit of a favourable direction on the point. The Appellant has not identified any "decisive or strongly supporting evidence on a specific issue in the case" that became unavailable to him as a result of delay. And accordingly, we reject Advocate Steenson's arguments to the contrary.

As noted above, neither defendant gave evidence at the trial. Advocate Steenson now submits that the Appellant was not properly advised as to the consequences of electing not to give evidence before the jury. The written contentions (repeated before us during the course of oral submissions) put the point in the following way:

The Appellant's account of events is disputed by Advocate Sette. In his affidavit, he provides details of the discussions held with the Appellant in the period between April 2019, when Advocate Sette was first instructed, and the close of the prosecution case on 27 November 2019. His evidence is encapsulated in the following rebuttal of the Appellant's case:

We have no hesitation in accepting Advocate Sette's evidence. We also note that Advocate Sette has provided powerful reasons to support the advice he gave, and these reasons readily explain the decision made by the Appellant. Had the Appellant chosen to give evidence, he would have been exposed to cross-examination. This would have included cross-examination on the account of events he had given in interview. This account differed from the account given by his co-accused, and on its own terms was capable of being used by the prosecution in cross-examination to his detriment. The details of his denial of the offence and his claim to have no memory of the incident would inevitably have been the subject of rigorous scrutiny. As it was, the Appellant was able to rely on his untested denials of sexual abuse. We see nothing unreasonable in Advocate Sette's advice and it properly identified the competing considerations. We accept his evidence that the Appellant's decision not to give evidence was fully informed. We see no procedural or substantive unfairness arising from the Appellant's decision not to give evidence and we reject his complaint on the facts.

It follows from what we have set out above that we do not accept the criticisms levelled at counsel who represented the Appellant at trial. In our view, Advocate Sette conducted the Appellant's case with all the care and skill that such a serious case deserved.

It also follows that we reject the criticisms directed at the Commissioner's legal directions to the jury. They were not 'unwieldy and too complex' for the jury properly to digest, and, in our view, the contrary is the case. They were models of clarity and the product of careful thought. Furthermore, the jury had the advantage of the Commissioner's directions in writing, so they could be revisited during their discussions. There is no basis for suggesting that the guilty verdicts were the product of confusion.

At the hearing of the appeal, Advocate Steenson developed an argument in relation to the failings of the disclosure process which he submitted rendered the trial proceedings unfair. In his original written contentions, Advocate Steenson criticised the absence of evidence concerning the Complainant's treatment for post-traumatic stress disorder. The complaint at that time was expressed in these terms:

This criticism was misplaced. As Advocate Sette and Crown Advocate Hollywood explained, the prosecution did obtain the Complainant's medical records and, at an early stage of the proceedings, the prosecution indicated an intention to adduce evidence of the Complainant's behaviour in the years following the sexual abuse. This was opposed by Advocate Sette. The argument in relation to the admissibility of this evidence was considered at a Case Management Hearing which took place on 20 August 2019. In the event, the prosecution decided not to pursue the application, and the formal medical records formed no part of the evidential case. This is explained by Advocate Sette, whose evidence on the point is as follows:

In her written and oral submissions, Crown Advocate Hollywood made clear that the Complainant's medical records were obtained and reviewed by the prosecution. She also made clear that any materials which passed the test for disclosure were disclosed to the defence in accordance with the Attorney General's Guidance 6/2019 on Disclosure of Unused Material. This is confirmed by Advocate Sette, who explained in his affidavit that the medical records were unlikely to have been of benefit to the Appellant. In his view, they supported the Complainant's assertion of emotional distress, endured over a prolonged period of time, and contained details of the extensive treatment she had received to deal with the trauma. It was for this reason that trial counsel decided not to rely on the medical records and sought instead to advance a case based on undermining the Complainant's evidence by disputing the reliability of her memory. Advocate Sette explains that this "was more likely to leave the jury uncertain, as the Complainant's account did not sound plausible and was, in my view, contrary to common sense understanding of how memory works; memory does not improve with time."

In our view, Advocate Sette's approach is readily understandable. Certainly, it is not open to criticism. It is apparent from the transcripts of the trial proceedings that he cross-examined the Complainant with tact and sensitivity. By avoiding the detail of the Complainant's treatment after the event, Advocate Sette was able to comment more freely in his closing submissions on the weight to be attached to her evidence concerning the event itself. We see no unfairness to the Appellant in this approach and there is nothing in the complaint advanced in Advocate Steenson's written contentions.

That said, at the hearing of the appeal, Advocate Steenson broadened his criticism concerning disclosure and submitted that the trial was unfair because of Advocate Sette's failure to call for and examine items in the unused material, which, according to Advocate Steenson, were potentially helpful to the Appellant's case. He gave examples of statements taken from individuals who had been present at the venue at the material time but who had no recollection of the particular weekend. Most of these individuals had provided statements for the first time during the investigation in 2015/2016.

The starting point of our consideration of this more expansive complaint is the evidence of Advocate Sette who produced as an exhibit to his affidavit the schedule of unused material which was served on the Appellant's legal representatives on a rolling basis in the period leading up to the trial. The final version of the schedule is dated 18 November 2019. Advocate Sette made no application for disclosure of any of the scheduled items. This was consistent with his presentation of the defence case, namely, that the complaints were untrue, and that the Complainant's evidence was implausible and that she had been inconsistent in her accounts.

In her submissions on behalf of the Respondent, Crown Advocate Hollywood informed us that she had reviewed the unused material and that there was nothing within it that satisfied the test for disclosure in Article 82 of the Criminal Procedure (Jersey) Law 2018 . In other words, there was nothing which might reasonably have been considered capable of undermining the prosecution case, or of assisting the case for the defendant. Crown Advocate Hollywood also informed us that she had kept the question of disclosure under review in accordance with her duty under Article 82(5) of the 2018 law.

For the purpose of the appeal we can state our conclusions on this point quite shortly. First, we accept the evidence of Advocate Sette. Second, although some counsel might have called for disclosure of the actual documents, on the basis that they might contain something of value to the defence, we do not think that his decision not to seek disclosure of any of the unused material was unreasonable given the issues in the case and his understandable concern about the possible damage to the Appellant's defence if more detail emerged into the trial process. Third, we see no unfairness to the Appellant as a result of Advocate Sette's tactical decision not to take any steps in relation to the unused material. As we have noted, Advocate Sette was skilful in his conduct of the trial and his tactical decision-making is readily understandable. Accordingly, we reject Advocate Steenson's criticisms of his conduct. We also reject the argument that there must have been material within the unused material that fell to be disclosed as wholly speculative.

In relation to disclosure more generally, we accept Crown Advocate Hollywood's assurances. We are confident that she complied with her professional duties and having read the transcripts of the trial and all the associated documentary materials, it is apparent that she conducted the prosecution with commendable fairness. By way of postscript, however, we would wish to emphasise the vital part disclosure plays in the trial process and the importance of strict compliance with the Attorney General's Guidance, 6/2019. The process of disclosure should not proceed on the basis of assumptions (for example, that a witness who has no recollection of events is on that basis alone a witness who can be of no material assistance) and prosecutors and defence counsel must be astute to ensure that the process of disclosure is the subject of rigorous scrutiny.

For the reasons set out above, we reject the arguments advanced on the Appellant's behalf by Advocate Steenson. The Complainant gave evidence over the course of two days. Her evidence was accepted by the jury as truthful and reliable. The criticisms of Advocate Sette are misconceived. He exercised his professional judgment not to advance an argument seeking a permanent stay of the proceedings on the grounds of abuse of process. This was a reasonable decision in all the circumstances. In our view any such argument would have been unsuccessful. But in any event, the decision of trial counsel was not wrong, and the Appellant has suffered no injustice. Moreover, viewed retrospectively the trial was in all respects fair. Similarly, the decision of trial counsel not to make an application for severance was entirely reasonable. The Appellant has suffered no prejudice as a result. We agree with Advocate Sette that such an application was destined to fail, but as with the abuse application this is not the real point. Advocate Sette's decision cannot be characterised as erroneous; nor did it lead to an unfair trial. The Commissioner's directions properly addressed the issue of delay and properly distinguished between the defendants' cases. The admission of P's previous convictions was the subject of proper direction. The Appellant's decision not to give evidence was fully informed and there was no unfairness caused by the process of disclosure.

In our view, the Appellant's real complaint is that he disagrees with the jury's verdict. The appeal against conviction is dismissed.