MCGLYNN v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
The applicant, Mr John Joseph McGlynn, is an Irish national, who was born in 1952. He is detained at HMP Woodhill, Milton Keynes. He is represented before the Court by Ms B. Goff, a lawyer practising in Bray, County Wicklow, Ireland. 1. The facts of the case, as submitted by the applicant, may be summarised as follows. 2. On the night of 14/15 October 1987, an eighty-eight year old woman, VC, was raped both vaginally and anally in the course of a burglary at her home. Soon afterwards, VC gave a statement to the police in which she stated two black men had broken into her house and she had been raped by a large black man with an ordinary English accent. She stated that she had the impression that the men were older than teenagers but could not be sure. In the course of the police investigation, semen was found on her nightdress, on a bed sheet and on swabs taken from her body. The samples were placed in storage. No-one was charged at the time of the offences and VC died in 1995. 3. The applicant is white, slightly built and has an Irish accent. He was thirty-five years of age at the time of the offences. In 2009 his DNA was found to match that found on the nightdress and bed sheet. He was arrested, charged with rape, false imprisonment, buggery and burglary, and went to trial before a judge and jury at the Aylesbury Crown Court from 1–9 June 2010. The applicant’s defence was that he had been having an affair with VC and that they had consensual sex on a number of occasions, the last being the day before the rape took place, which explained the DNA on the bed sheet and nightdress. He denied, however, that he had been responsible for the burglary and rape. 4. At the start of the trial the prosecution applied for VC’s police statement to be read to the jury under section 116 of the Criminal Justice Act 2003. The trial judge allowed the application. He considered that it was proper to have regard to the likelihood of it being possible for the defence to controvert the statement of the witness by the defendant himself giving evidence and/or calling evidence of other witnesses. He noted that, while the evidence of VC was important, and without it there would be no prosecution, it was not the sole or decisive evidence in the prosecution case. The trial judge further considered the defence complaint that they could not explore the grounds for VC’s belief that she had been raped by a black man and could not be examined as to the affair the applicant said they had been having. The trial judge took the view that these were important matters but could be addressed by an appropriate direction to the jury in his summing up. 5. After VC’s statement had been read to them, the police officer who took the statement gave live evidence to the effect that VC was well-spoken, “old school”, stoic, and prim and proper. VC had told the police officer that she had not married until she was sixty years of age, that she had been a virgin when she had married and that she and her husband had sexual intercourse infrequently. The jury also heard evidence from VC’s friends to whom she had confided that she had been raped by a black man. The friends also gave evidence that VC had been a lively, intelligent and active woman, who was involved in her local church. She had developed a tendency to be forgetful after she turned ninety. A neighbour, AB, aged seventy-four at the time of trial, also gave evidence that she and VC had met the applicant at a café. She (AB) had exchanged numbers with him. She had seen him a few times afterwards, once in the company of a black man. (The applicant denied this last part of her evidence.) They had slept together once. (The applicant maintained it was on at least six occasions.) To her knowledge, the applicant and VC had never met each other after their meeting at the café. The jury also heard expert evidence that the chances of the DNA on the bed sheet and nightdress belonging to someone other than the applicant were less than one in one billion. There was also forensic evidence that the applicant’s fingerprints had been found in seven places in VC’s home, including the window which had been forced open to obtain entry. 6. The prosecution also applied for leave to introduce the applicant’s four previous convictions for domestic burglaries, which had been committed between 1979 and 1984, on the ground that they were relevant to an important matter in issue between the defendant and the prosecution, namely whether the applicant had a propensity to burgle. The defence opposed that application, arguing that there was not a sufficient degree of similarity between the past burglaries (which had not involved targeting the elderly or any sexual offences) and the present case, where the principal charge was one of rape. The trial judge nonetheless allowed the introduction of the previous convictions, agreeing with the prosecution that the test was only whether the applicant had a propensity to burgle and whether this was an important matter in issue between the defendant and the prosecution. He was satisfied that this was the case and was further satisfied that the admission of the convictions was not so prejudicial as to outweigh its probative value. 7. The applicant gave evidence in his own defence. He said that, after meeting VC at the café, he had performed odd jobs for her, including repairing her window, which explained the fingerprints. In any event, given his previous experience of burglary, he would have known to use gloves, had he been the burglar. On two occasions VC had complained of joint or muscle pains and he had rubbed some oil on the painful areas. On a further occasion he had been helping VC move items into her bedroom. He had made a pass at her and they had proceeded to make love on the bed. In total, they had sex on about eight or nine occasions and at least twice in the bedroom. After the last occasion, on 13 October 1987, he finished his relationships with VC and AB and moved away from the area. He did so because he worked in the building industry and was obliged to move wherever there was work. 8. In respect of VC’s statement, the trial judge directed the jury in these terms: “...you should examine it with particular care, bearing well in mind that it does have certain limitations which I draw your attention to now. You have not had the opportunity of seeing or hearing [VC] in the witness box or of assessing her as a witness. When you do see and hear a witness you may get a much clearer idea of whether their evidence is honest and accurate. Her statement was not made or verified on oath and her evidence has not been tested in cross-examination, and you have not had the opportunity of seeing how her evidence would have survived some form of challenge. Her statement only forms part of the evidence and it must be considered in the light of all of the other evidence in the case. You must reach your verdict having considered all of the evidence. You should also have regard to the following discrepancies between her statement and her complaint and the prosecution evidence and the discrepancy [that] she was adamant that she was raped by a black man.” The trial judge went to outline for the jury the ways in which they could test the reliability of VC’s statement, including the circumstances in which it was made, her comments to her neighbours after the rape, her lifestyle (including her tendency, later in life, to become forgetful), whether the statement was supported by or consistent with the other evidence in the case, and whether VC had any reason to be untruthful. He also instructed them that, to find the applicant guilty, they had to be sure that VC had been wrong in thinking that a black man had been responsible. They also had to discount the possibility that VC was having a secret affair with the applicant. Finally, the trial judge reiterated that the jury had to consider the amount of difficulty involved in challenging the statement in the absence of cross-examination. 9. In respect of the applicant’s previous convictions, the jury were directed as follows: “The prosecution argue that those convictions are relevant because it establishes that the defendant has a propensity to burgle people’s houses, as happened to [VC] on the night that she was also tied up, handcuffed, raped and buggered. If you agree, then the prosecution suggest that it makes it more likely that this defendant committed the offence alleged, namely, burglary. The defendant admits those convictions. You must decide whether it establishes a propensity in him to burgle [VC]’s home, in other words a propensity to commit burglary and therefore help you as to whether he is the burglar. The defence case, as you know, is that it was not this defendant, he was not the burglar and was not at the home of [VC] on the night she was attacked, and in consequence could not and is not therefore guilty of any of these offences. ... So you must ask yourselves, does it establish the propensity that the prosecution contend for then if it does then it is a matter for you to judge how far that assists you in resolving the question of whether it was this defendant who acted as the burglar on this occasion, and whether, whilst burgling the property, it was him who tied up and sexually assaulted [VC]. Evidence of previous behaviour is only part of the evidence in the case. Its importance should not be exaggerated and it does not follow that just because the defendant behaved in a certain way in the past that he did so again on this occasion. Bad behaviour in the past cannot alone prove guilt; that is obvious.” 10. The trial judge concluded his summing up by reminding the jury, as he had done at the starting of his summing up, of the respective cases of the defence and prosecution. He first summarised the defence case and then that of the prosecution. 11. On 9 June 2010, the applicant was convicted by the jury of rape, false imprisonment, buggery and burglary. The total sentence was one of fifteen years’ imprisonment. 12. The applicant appealed against his conviction, inter alia on the ground that the trial judge erred in admitting VC’s statement and the evidence of his previous convictions. He also argued that the trial judge’s summing up had been unfair to him. On 16 March 2011 the appeal was dismissed by the Court of Appeal. 13. In respect of VC’s statement, the court concluded: “[W]e in fact agree with the [trial] judge that the complainant’s [VC’s] evidence was not the sole or decisive evidence, albeit it is true that the prosecution might not have been pursued without it. The significance of the complainant’s statement was that it established that these offences had taken place. [Counsel for the applicant] conceded that had the statement not made any identification of the persons who had committed this offence, and had it merely established that the relevant offences had been committed, then he could not sensibly have opposed it being adduced before the jury. What makes the difference, he submits, is that there was this identification and he was not able to cross-examine in relation to it. It is, we have to say, a somewhat bizarre submission, given that the identification itself is, of course, the most powerful evidence in favour of [the applicant]. It is true that the Crown was seeking to introduce the complainant’s evidence and then seeking to persuade the jury that they could be sure that she was wrong about part of it, namely the colour of the attacker and that he had an English accent. As the court noted in R v. Cairns, Zaidi & Chaudhary [2003] 1 Cr.App.R. (S) 38, there is no rule of law prohibiting the Crown from calling a particular witness in order to rely on a part only of the evidence. [Counsel] does not dispute that principle, but say that a different principle applied where the Crown is relying only on hearsay evidence. He referred us specifically to paragraph 108 of the judgment of Lord Phillips in the Horncastle case, where Lord Phillips said this, after referring to the provisions of the 2003 Act: “I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason.” [Counsel for the applicant] submits that the key here is that the Crown is not relying on the reliability of the statement. That is not entirely accurate. It is reliable, say the Crown, with respect to the fact that those offences were committed in precisely the way that the complainant alleges. What the Crown say is not reliable is the identification evidence which she provides. But the statement does not have to be reliable in every respect before it can be properly admitted. In this case, in our judgment it would have been contrary to the interests of justice to deprive the court of this statement. Indeed, it would have the effect that this defendant would effectively be immune from conviction because a witness has died, which is precisely what the 2003 Act was designed to prevent. In this case there was a strong prima facie case against the defendant on various serious charges and it would have been wrong, it seems to us, to have deprived the jury of an opportunity to consider his guilt because of the unfortunate death of the victim. Accordingly, we consider that it was entirely in accordance with the principles in Horncastle that this statement should be admitted. Insofar as it assisted the [applicant] to establish his innocence, it was in his favour.” 14. In respect of the applicant’s previous convictions, the court found that they were plainly relevant to a propensity to burgle, one of the charges on the indictment. The court did not accept that, because a more serious charge was also on the indictment, it became unfair to admit the evidence. 15. For the trial judge’s summing up, the court accepted that it might have been better if the judge, in his summary of the respective cases, had put the defence case last, but that was of no real moment. Moreover, although he had failed to refer to the fact that VC had identified her attacker as a black man with an English accent, that was plainly at the forefront of the jury’s mind; it had been a fundamental pillar of the applicant’s defence. The point had been made earlier in the summing up; it was an unfortunate oversight on the part of the trial judge that it was not referred to specifically when the summary of the respective cases had been given, but nothing more. 16. The relevant provisions of the Criminal Justice Act 2003 and the judgment of the Supreme Court in R. v. Horncastle and others [2009] UKSC 14 are set out in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 43-45 and 57-62, ECHR 2011. 17. Bad character evidence is regulated by Part 11, Chapter 1 of the Criminal Justice Act 2003. Section 98 defines evidence of a person’s bad character as: “evidence of, or of a disposition towards, misconduct on his part, other than evidence which — (a) has to do with the alleged facts of the offence with which the defendant is charged, or . (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.” Section 101 allows for the admission of evidence of a defendant’s bad character. It provides: “(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— . (a) all parties to the proceedings agree to the evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or. (g) the defendant has made an attack on another person’s character. (2) Sections 102 to 106 contain provision supplementing subsection (1). (3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.” Section 103, where relevant, provides: “‘Matter in issue between the defendant and the prosecution’ (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include — (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect. (2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of— (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. (3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case. (4) For the purposes of subsection (2) — (a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms; (b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. (5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type. (6) Only prosecution evidence is admissible under section 101(1)(d).” Section 112(1) defines “important matter” as a matter of substantial importance in the context of the case as a whole.