Tuesday, 24 May 2016

On the balance of probabilities, I would have convicted. For proof beyond reasonable doubt, I would have had to acquit.

Vice President of the Court of Appeal Criminal Division
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Stuart Robert John Kerner

Hearing dates: 8 & 9 March 2016

42. The applicant Stuart Kerner was tried on an indictment containing eight counts in the Crown Court at Inner London. On 5 December 2014 he was convicted of two counts of sexual activity with a child whilst in a position of trust (counts 5 and 7). On counts 1 to 4 (inclusive), 6 and 8 he was acquitted. Those counts were allegations of either sexual activity with a child or sexual activity with a child by a person in a position of trust. The difference between those charges arose from the fact that sexual activity with a child was charged where the complainant was aged 15; sexual activity with a child in a position of trust was charged where the complainant had attained 16 years.

43. His application for leave to appeal has been referred to this court by the single judge.

The factual background
44. Kerner is a teacher with over 20 years’ experience with, inter alia, responsibility for ethics. The complainant, C, was a pupil at his school. It was acknowledged that she had behavioural problems and that she had told significant lies about herself and was an attention seeker. For example, she falsely claimed over a period of time to have been involved in a road traffic accident and that a heart defect had been discovered. She had obtained free school meals after falsely complaining that her mother had not provided food or money. There was evidence that C had formed an attraction towards the applicant and had engineered events so as to be close to him.

45. The eight counts on the indictment represented sexual activity which C said had taken place over a period between March 2011 and November 2012. Count 5 represented an incident at the end of February 2012 which C asserted was the first occasion upon which full vaginal intercourse had taken place. She also said that anal sex took place on that day. Count 7 represented events on 3 October 2012, an occasion when C said she had visited Kerner’s home for the first time and sexual relations took place.

46. The defence advanced was that no sexual activity had ever taken place between the pair.

The counts on the indictment which reflected matters recorded in C’s diary represented a fantasy on her part.

The summing up
47. The judge directed the jury to return separate verdicts in relation to each count having considered the evidence in relation to each count separately. If the jury was not sure on any count that Kerner had intentionally touched C as alleged, they should acquit. She went on to say that a central issue was whether C was a truthful and reliable witness. In the light of evidence which had been given about C’s character and honesty, the judgegave the following direction:

“It is open to you to find the defendant guilty even if you conclude that there is no corroboration or supporting evidence of C’s allegations if you are sure she is telling the truth and is a reliable witness. If, on the other hand, you retain some reservations as to whether C is a truthful and reliable witness, and therefore are not prepared to rely solely on her evidence, you will then want to look to see if there is any corroboration or supporting evidence which, despite any reservations you might have about C and the quality of her evidence, nevertheless drives you to the conclusion that you can be sure that the defendant is guilty.”

The issues on counts 5 and 7
48. Counts 5 and 7 were different from the remaining counts which depended solely on the word of C.

49. The events relating to count 5 were alleged to have taken place at the school during the school day at a time when C should have been in class. Examination of the electronically maintained school attendance records showed that there had been a suspicious alteration of the records as to C’s attendance for the material time. At the same time the applicant had free periods. Kerner and C were the only two realistic candidates for having altered the records. C would have needed to acquire a password in order to do so; Kerner had the password.

50. In relation to count 7 records showed that C and Kerner were away from school at the material time. C was able to give a detailed description of the layout of Kerner’s house which she said she had attended, contrary to Kerner’s denial. Cell site analysis of the applicant’s phone, of which C would have been unaware at the time she gave her account, showed a picture of movements of that phone consistent with C’s account of having been picked up by Kerner near the school and then driven some distance to his home where sexual activity took place, before being returned to the school.

51. The judge put the competing arguments as to the significance of the supporting evidence fully and fairly before the jury. Mr Ellis’ attempt on behalf of Kerner to portray that evidence as having been “neutralised” was wholly misconceived.

Our conclusion on the alleged inconsistency of the verdicts
52. The primary ground of appeal advanced on behalf of Kerner is that there is a logical inconsistency between the verdicts on counts 5 and 7 and the remaining counts.

53. Our conclusion is that no such inconsistency exists; the verdicts can stand together.

There is nothing unreasonable in the jury’s conclusion. As the judge foresaw in her direction to the jury, counts 5 and 7 might be viewed in a different light from the remaining counts which depended wholly on the word of C. In the case of counts 5 and 7, there was the supporting evidence which we have identified.

54. We conclude that the jury’s verdicts represent close attention to the judge’s direction and that they were only prepared to find allegations against the applicant proved where there was supporting evidence. There is thus a clear distinction between counts 5 and 7 and the other counts which leads us to reject the main ground of appeal.

The other grounds of the application for leave to appeal
55. There are subsidiary grounds of appeal.

56. The first of these asserts that by reason of a failure by the school to retain full child protection records and a failure by the police to carry out a DNA sweep of Kerner’s car and home, the trial was rendered unfair. We reject that submission. The absence of some records was raised during the trial by the defence and the jury were reminded of the issue in summing up. In any event the jury were well aware of the issues surrounding C’s credibility. It is impossible to see how any additional records could have improved Kerner’s position further. Again the issue of a failure by the police to subject the applicant’s car and home to DNA analysis, sometime after the alleged events, was raised at the trial and commented on by the judge in summing up. Both of those were matters for the jury’s consideration in deciding whether it could be sure that guilt on any count was shown. No arguable unfairness arises. We note that there was no suggestion at the trial that it should be adjourned or halted by reason of the absence of this material.

57. A further ground submits that there must be a lurking doubt as to the safety of the convictions. In this context, matters going to the credibility of C were raised, and reliance was placed on comments made by the judge at the time of verdict and in passing sentence. We are not persuaded that there is any arguable ground. The evidence as to C’s credibility was fully before the jury, and the views of the trial judge are, with respect, irrelevant. The decision in the case was for the jury not for the judge.

58. We deprecate the use of the phrase “lurking doubt” as it represents an invitation to this court to substitute its view for that of the jury. The question for this court is whether by reason of the matters raised the convictions are unsafe. For the reasons given, we dismiss this application.

 "They said CB had a vast amount of information about Mr Kerner's private life, details that nobody could have known unless they were in a relationship with him.

"They used evidence from a computerised register system which they said Mr Kerner altered to make it look like CB was in a class when she wasn't, and also relied on cell site evidence."

"Each of those grounds was subject to cross examination and found to be unreliable.

"It was found that CB could have learned the personal information by overhearing it or being told by other students.

"She stalked my client and found out a vast amount about his movements and personal life.

"As for the computer system, it transpired that anyone could have made the alterations as long as they had his password. Mr Kerner also gave evidence that he sometimes left his computer unlocked.

"And the cell site evidence was nullified when it was shown that it could support either side.

"The judge was clearly of the view that evidence was not sufficient for conviction, and this was reflected in her comments and the sentence she passed."

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