Boys lose appeal over rape bid
Published 28/07/2010 | 02:52
Two schoolboys found guilty of the attempted rape of a girl of eight have lost Court of Appeal challenges against their convictions.
Three judges in London dismissed appeals brought by the pair, now 11.
They were both 10 last October when a girl complained to her mother that she was assaulted in Hayes, west London.
The boys were each found guilty of two charges of attempted rape by a 10-2 majority at the Old Bailey on May 24, but both were cleared of two alternative offences of rape.
They denied assaulting the girl and their lawyers claimed they were just being naughty or playing a game. Their barristers argued that the trial judge should have withdrawn the case from the jury at the close of the prosecution case on the ground of "no case to answer". But the Court of Appeal judges ruled that the trial judge was entitled to take the course he did by leaving the case with the jury.
The boys, who are on bail pending the preparation of pre-sentence reports, were not present for the ruling. They are due to be sentenced on August 16. Lord Justice Hughes, Mrs Justice Rafferty and Mr Justice Maddison had been urged by barristers representing the boys to rule that the trial judge "erred in rejecting the submission of no case to answer". The main ground of appeal was that the case should have been withdrawn from the jury following half-time submissions made by both defendants.
Rejecting the appeal, Lord Justice Hughes said: "We should say that, like the judge, we have found this a painful case to consider and a difficult one in which to apply the rules of law which we are obliged to apply. We are, however, satisfied that the judge was right and entitled to come to the conclusion that he did." Following the convictions there were calls for a change in the way youngsters are handled by the legal system, with a children's charity claiming the way the case had been dealt with was "absolutely wrong".
After announcing the result of the appeal, Lord Justice Hughes said the court could not leave the case "without recording our dismay that it became necessary for two 10-year-olds and an eight-year-old, all with impeccable upbringings, to be the key participants in a trial before the crown court". He added: "We are particularly concerned about the effect of a publicly staged trial in this arena on the ability of a little girl to move on with her life with the minimum adverse impact."
The appeal judges expressed their admiration for the way the trial judge and lawyers had dealt with the case in the formal crown court setting and had addressed the needs of three children under the age of 11. The appeal centred around submissions by the defence that the girl's account had changed significantly at the trial, with argument relating to what she had said or agreed to during cross-examination.
Lord Justice Hughes said there was "undoubtedly a danger of a child like this wishing simply to please" or assenting to what was put to bring the questioning to an end. He said: "The question for us is, was the judge entitled to leave to the jury the question of whether she truly had altered her account?" The court agreed with the trial judge that the question of whether she had truly changed her account or was "simply taking the line of least resistance" was one for the jury. He rightly ruled that "the assessment of the whole of the evidence of this child was for the jury".