Turner, R. v

Where a witness remembers events but cannot articulate them because of embarrassment, a trial judge may use a written statement on matters not in dispute and invite the witness to adopt it. The procedure is fair where the witness gives oral evidence and remains available for cross-examination. It may protect the defendant more fully than admitting the entire statement under section 114 of the Criminal Justice Act 2003.

Evidence of similarities between allegations may be used only if the allegations are truly independent. A summing-up need not rehearse every chronological discrepancy where it fairly identifies the central issue and competing accounts. A judge should not speculate about legal advice given before a no comment interview, but such a comment will not necessarily render a conviction unsafe.

The appellant was convicted at Stafford Crown Court of sexual offences involving two girls. Sexual activity was not disputed. His defence was that both complainants had reached 16 when it occurred and could therefore consent in law.

One complainant was unable, through embarrassment, to articulate parts of her account in court. The trial judge allowed parts of her written statement concerning undisputed sexual activity to be read and adopted, while leaving disputed issues for oral evidence and cross-examination.

On appeal, the appellant challenged that procedure and three aspects of the summing-up: the direction on possible cross-contamination between the complainants, the treatment of discrepancies about dates, and the direction on adverse inferences from his no comment police interview.

1. Appeal dismissed. The convictions were safe.
2. The complainant’s difficulty was not a failure of memory. She remembered what had happened but could not verbalise it in open court. The trial judge could have admitted her statement under section 114 of the Criminal Justice Act 2003. Instead, he adopted a narrower procedure: the statement was used only on undisputed sexual activity, the witness was asked to adopt or reject its contents, and the disputed issues of age and penetration were left for oral evidence. She remained available for cross-examination. That was a sensible adaptation which enabled the best evidence to be given and caused no prejudice to the defence.
3. The direction on similarities between the two allegations was correct. The jury were told that any inference from similarity depended upon the allegations being independent, and that they must disregard the similarities if there were any possibility of discussion, cross-talk, or one complainant influencing the other. There was no evidence of such contamination and no suggestion of it had been put to either complainant.
4. The summing-up fairly identified the decisive factual issue: whether each complainant was under 16 when the sexual activity occurred. The judge had sufficiently summarised the competing accounts and was not required to analyse every discrepancy concerning dates, examinations, birthdays, messages, or photographs.
5. The judge’s speculation about the advice which a competent solicitor might give before a no comment interview should have been avoided. It risked undermining lawyer-client confidentiality and might have pressured the appellant to waive it. However, the corrected direction properly required the jury to consider whether he could reasonably have been expected to mention his defence. The appellant had accepted that the decision to remain silent was his own. The observation therefore did not impair the fairness of the trial.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2012] EWCA Crim 1786.
• Crown Court at Stafford: On 22 December 2011, the appellant was convicted of sexual offences involving two complainants and sentenced to concurrent terms of imprisonment.