I was instructed to defend Stephen Nicholson, aged 25, who was charged with the murder and multiple sexual offences against Lucy McHugh, a 13-year-old girl. The trial took place before Mrs. Justice May at Winchester Crown Court earlier this year. Nicholson lived as a lodger in the same house as Lucy and her family in Southampton. The case attracted publicity after his arrest in July 2018 because he declined to give the police the password to his Facebook account. Facebook faced significant criticism for its slow reaction to a request by the Hampshire police for access to his account. This was in fact a relative side issue in the trial because the Facebook evidence contained little that was not already known and the police had other circumstantial evidence to implicate the suspect. The Prosecution relied on CCTV footage tracking the defendant on cycle journeys to and from the park in Southampton where Lucy’s body was found in woodland. The police also had GPS evidence to connect the defendant to a secluded place by a river where his discarded clothes were found with the victim’s blood, DNA and fibers from her clothing.
The Prosecution also sought to prove motive to kill, namely that Nicholson had decided to silence Lucy because he feared that she was about to expose the fact that he had a sexual relationship with her. They sought to prove that Nicholson had a sexual relationship by relying on notes and love letters that Lucy had written in which she described their alleged sexual activities in detail. Nicholson was charged with specific counts of rape and multiple offences of sexual activity with a child on the basis of Lucy’s notes and letters. The Prosecution also sought to prove that the defendant had a propensity for sexual relations with under-age girls by calling a witness who claimed to have had sexual intercourse with him some years earlier when she was aged 14 at a parkland location that was close to the scene of the murder. The case therefore presented a formidable challenge for myself and my junior, Peter Asteris. The defendant denied that he had any sexual relationship with her and maintained that the notes and letters were the teenage fantasy of a girl who had a crush on him.
How then did we for the defence seek to exclude or undermine the evidence of the sexual relationship in those notes and letters which underpinned the sexual charges on the Indictment and provided a possible motive for the murder. Section 116(2)(a) of the Criminal Evidence Act 2003 enables the hearsay statements of the deceased to be admitted, but I relied on the case of R v Riat  EWCA Crim 1509 to submit that such evidence does not simply go through ‘on the nod’ where it is the sole or decisive evidence, as it was in relation to the sexual offences on the Indictment. A Judge has to perform a balancing exercise in which he or she considers the reliability of that evidence and the strength of the undermining material that could have been put in cross examination if the witness was available. In this case, there was material to show that Lucy had denied having any relationship with the defendant when speaking to her mother, her teachers and some friends, and that she had also told an entirely different story to other friends about being pregnant by Nicholson and having a termination, neither of which were true. In short, she had made contradictory and untrue statements about her contacts with the defendant to different people.
For the defence, I relied on that material to submit that Lucy’s credibility was so undermined that the evidence of her notes and letters should be excluded altogether, or alternatively, that all the undermining material that could have been put in cross examination should be placed before the Jury in a written summary, so that they could properly assess the credibility of Lucy’s notes and letters. Mrs. Justice May followed the process set down in the case of Riat. Whilst admitting the evidence of the notes and letters, which could not be challenged, she balanced that by permitting the defence to adduce almost all the undermining material so that the Jury had the whole picture. This enabled the defence to highlight the many inconsistencies in what Lucy had said to others about the defendant.
The next challenge was to exclude or limit the evidence of others who alleged underage sexual contact with the defendant. The Prosecution sought to admit this as bad character evidence showing a sexual interest in girls aged 13-14. Unsurprisingly, the defence application to exclude this evidence was less successful. The defendant was ultimately convicted of murder and three specific sexual offences, following a trial lasting five weeks, but he was acquitted of both the multiple incident counts of sexual activity with Lucy.