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Cite as: [2003] EWCA Crim 693

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Neutral Citation Number: [2003] EWCA Crim 693
Case No: 2001/2447/X4 and 2000/3744/X1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL
14th March 2003

B e f o r e :

LORD JUSTICE KENNEDY
MR JUSTICE CRANE
and
MR JUSTICE McCOMBE

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Between:
R

- v -

Basil Anthony Williams-Rigby
and
Michael James Lawson

____________________

Patrick Cosgrove QC and Mark Barlow appeared for Basil Williams-Rigby
Iain Goldrein QC and Stephen Knapp appeared for Michael Lawson
David S. Aubrey QC and Henry Riding appeared for the Crown
Hearing date: 17th February 2003

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HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
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Crown Copyright ©

    Lord Justice Kennedy:

    Introduction.

  1. Each of the appellants was in the past a member of the staff at a Residential Community Home near Liverpool, which cared for boys under 17 with disturbed backgrounds, and in July 1996 social services and the police began to investigate allegations that members of staff at that home had sexually abused boys in their care. That investigation was given the code name "Operation Care". The investigation involved circulating former residents, and inviting them to contact the police if they had complaints. The separate prosecutions of the two appellants were part of the results of that operation. Williams-Rigby was tried first, and to some extent the course of the later trial of Lawson was affected by the conviction of Williams-Rigby. There was also one complainant who was common to both trials. We therefore heard the appeals consecutively on 17th and 18th February 2003, but the decision in the case of Williams-Rigby is not dependant in any way on the decision in the case of Lawson, so we deal first with Williams-Rigby's appeal.
  2. Overview

  3. Williams-Rigby was born on 9th June 1945, so he was nearly 30 years of age when, in March 1975, he became a housemaster at the home, where he remained until November 1984. He was married, his wife was also a member of the staff, and for much of the time they lived with their children in a flat on the premises. During the course of Operation Care eight of those who had been boys at the Home during the period when Williams-Rigby had been employed there alleged that they had been sexually abused by him. There were allegations of buggery, attempted buggery, masturbation, oral sex, other forms of gross indecency and indecent assault, one allegation of taking indecent photographs and two allegations of cruelty to a child. As a result Williams-Rigby was arrested in December 1997 and interviewed. He denied any impropriety, but in August 1999 at Liverpool Crown Court, after a trial lasting fifteen days, he was convicted on 22 out of 47 counts in the indictment, and was sentenced to a total of 12 years imprisonment. What is significant is that the jury found Williams-Rigby guilty on all but one of the counts relating to four complainants (ML, BS, MO and WM) and acquitted, in some cases on the direction of the trial judge, on all of the counts relating to the other four complainants. There was an appeal against sentence, and on 14th January 2000 this court reduced the sentence to ten years imprisonment and quashed the convictions on two counts, where proceedings had been commenced after the expiration of the period allowed by statute for the commencement of such proceedings.
  4. There was no independent evidence to support the four complainants whose evidence was accepted, despite the fact that they had all acquired criminal convictions after the period to which their evidence related, but in the case of each of the other four complainants the defence was able to point to some evidence, other than the evidence of Williams-Rigby, which cast doubt on what the complainants said. Mr Cosgrove QC, for Williams-Rigby, illustrated that to us as follows:
  5. (1) TG, the complainant in respect of counts 24 and 25, said in evidence that he had complained to Mrs Saltrese. She said there had been no complaints to her.
    (2) JM, the complainant in counts 26 to 33, spoke of a visit with Williams-Rigby, Mr Tulley and two other members of staff, to a haunted house in Wales, when the abuse was said to have occurred. Mr Tulley had no recollection of any such visit. JM also said that he had complained to a social worker in Lambeth and been examined by a doctor in Toxteth, who said that anal penetration had taken place, but neither the social worker nor the doctor was called as a witness for the Crown.
    (3) ER, the complainant in counts 33 to 43, spoke of abuse in Williams-Rigby's flat on Bonfire Night 1984, but it was common ground that Williams-Rigby had vacated his flat in December 1983. Furthermore 1984 was the only year when ER was at the home on Bonfire Night.
    (4) SJ, the complainant in counts 44 to 47, said that he had complained to Mrs Tulley, but she said that there had been no complaint to her.
  6. In addition to Williams-Rigby, Mrs Saltrese and Mr and Mrs Tulley, the jury heard from Williams-Rigby's wife, Ms Greenwood (who had been matron of the Home), Mr Studdart (a housemaster and later warden), Mr Carroll (another member of staff) and a number of character witnesses. But at the time of the trial the defence had no evidence other than that of Williams-Rigby with which to challenge the evidence of the four complainants whose testimony was accepted. Mr Cosgrove submits that, as a result of what had emerged since the trial, that position has now changed. Two witnesses have been located, John Kellaher and Robert Harrison, and their testimony, which we were invited to hear and did hear de bene esse is evidence which, it is submitted, this court should receive. That evidence, it is said, calls into question the evidence of the complainants whose testimony was accepted to such an extent that the remaining convictions should now be regarded as unsafe.
  7. The accepted complaints

  8. In order to appreciate the significance of the fresh evidence it is necessary to say something about the evidence of the four complainants whose testimony was accepted.
  9. "(1) ML was at the home from July 1976 to August 1978 when he was aged 12 to 14. He complained of being indecently assaulted and buggered in Williams-Rigby's flat, on occasions when he was wearing pyjamas.
    (2) BS was at the home from May 1979 to October 1980, when he was aged 14 to 15. He is the complainant who also features in the case of Lawson. He complained that when he was in bed in the dormitory, which he shared with three other boys, MO, Whittam and Harrison, Williams-Rigby visited him at night and indecently assaulted him. On three occasions he had to give Williams-Rigby oral sex and on another occasion Williams-Rigby indecently assaulted him elsewhere. Williams-Rigby also used to visit the dormitory at night and remove MO and Whittam.
    (3) MO was at the home from July 1979 to April 1981 when he was aged 15. He already knew BS and said that he was regularly invited to Williams-Rigby's flat to watch colour television and whilst there he smoked and drank whisky. Williams-Rigby used to take him out of the dormitory three or four times a week and usually when he got to the flat Williams-Rigby's wife was in bed. He would then be indecently assaulted and they would engage in mutual masturbation. He was also required to give Williams-Rigby oral sex.
    (4) WM was at the home from February 1982 to September 1984 when he was aged 10. He claimed to have been indecently assaulted and subjected to attempted buggery in the back of Williams-Rigby's car. He also visited Williams-Rigby's flat, where he said that he was indecently assaulted and required to give Williams-Rigby oral sex."

    In that brief summary of the accepted complaints we have not referred to the points made on behalf of the defence at trial, such as the possibility of collusion between BS and MO, and the possibility that their real object was to obtain compensation. In July 1997, when contacted by the police, BS had declined to respond, and at Christmas 1997 MO wrote a friendly letter to Williams-Rigby. In 1998 he telephoned Williams-Rigby at home on the occasion of his silver wedding. He telephoned again in January 1999 and accepted in evidence that he may then have said that the allegations being made against Williams-Rigby were ridiculous and that he was prepared to act as a character witness. His explanation in evidence for that was that he had been confused at the time.

  10. There were, it seems, six dormitories (or bedrooms containing up to 8 beds) in the unit where Williams-Rigby was housemaster, and where he had his flat. The boys, he accepted at trial, did visit his flat, but by about 9 to 9.30 p.m. unless they were out on some expedition they were back in their dormitories, and after that time it was the case for the defence that they were not taken out (unless perhaps they were ill or upset). The regular day staff, including Williams-Rigby, went off duty soon after the boys went to their dormitories, but each unit had a night-watchman who had an office near to the dormitories. He kept a log to record his periodic inspections, and any movement of boys, as for example if one returned late. The log entries did show that on occasions Williams-Rigby returned a boy, or was responsible for carrying out an inspection.
  11. Categorisation of Offences.

  12. Clearly the dormitories played a large part in the allegations made by BS and MO, but did not feature in the allegations made by ML and WM. Allegations made by those two boys were however linked in that both complained of buggery in Williams-Rigby's flat. The judge invited the jury to put those two allegations into one category, and to link the allegations of indecent assault in Williams-Rigby's flat made by ML, MO and WM in another category. They could then consider whether, if there was no collaboration, the similarity of the allegations might be of some assistance in coming to a conclusion as to whether or not the complaints made by one complainant could be accepted. Mr Cosgrove makes no complaint in relation to the Judge's direction, but he does point out that the presence of that direction must lead to the conclusion that the jury may have relied on what was said by, for example, MO when deciding whether or not to accept the evidence of ML and WM.
  13. The fresh evidence.

  14. We heard first from John Kellaher. He was admitted to St George's in June 1979 and was happy there. He told us that he saw no sign of physical or sexual abuse, and was treated "perfect" by Williams-Rigby. He was never aware of anyone entering the dormitory which he shared with BS and MO after the lights had been put out, and he would have known had anyone done so, especially if it had happened three or four times per week. He regarded as impossible the suggestion that anyone might come into the dormitory and sexually abuse a boy who slept there without any other boy in the dormitory being aware of what was happening. He only visited Williams-Rigby's flat once, for tea a couple of days before he left. In cross-examination Kellaher did make the extravagant claim that those in the dormitory did not sleep until 3 or 4 a.m., but in general his evidence appeared to us to be credible. It was not contended on behalf of the Crown that either Kellaher or Robert Harrison could and should have been produced by the defence as witnesses at the trial.
  15. We turn now to Harrison. Since 1995 he has been serving a life sentence for murder, but in June 1979 he too went to St George's, and was in the dormitory with BS and MO. He was treated very well, and experienced no sexual or physical abuse. At that time he was very small, and Williams-Rigby was someone whom he regarded as fair. He too rejected the idea that anyone could have visited the dormitory late and taken a boy or boys out, or forced himself on a boy, without the other boys knowing. Williams-Rigby never visited the dormitory, except perhaps to check, after lights out, and his own visits to Williams-Rigby's flat had been during the day, never after 8 p.m.. Harrison, like Kellaher, we regarded as an apparently credible witness.
  16. For the Crown.

  17. Mr Aubrey QC submitted that the defence analysis of the reasons for the jury's verdicts may be incorrect. Some witnesses did not come up to proof, and Williams-Rigby himself accepted in evidence that he did have boys in his flat after lights out, and that he did visit the dormitory at night.
  18. Mr Aubrey submitted that in the light of the concessions made by Williams-Rigby and the circumstances as a whole we should regard the fresh evidence as not capable of belief. When interviewed Williams-Rigby had given the impression that he did not go into the unit at night, and that boys only "breezed in and out" of his flat. In evidence when cross-examined in relation to such of the records of the night-watchman as were available he accepted that boys had often been in his flat in the late evening in pyjamas to watch television. He said that "it was twenty odd years ago and it was very, very difficult to remember" but the case for the Crown was that when interviewed he had lied. To some extent at least that was accepted by Williams-Rigby. He said that when interviewed he was very concerned about the allegations, and that some answers he had given were false, and amounted to lies, but they were not direct lies because when interviewed he could not remember. He accepted that after being interviewed he changed his account, and that when interviewed he had probably been trying to cover up although there was nothing to cover up. He was totally in a state of shock.
  19. As to mutually supporting evidence, Mr Aubrey submitted that the judge's direction was right, but there is no reason to conclude that in consequence the jury lumped all of the allegations together. Indeed it is noteworthy that whereas there was a conviction on count 3 there was an acquittal on count 20, those two counts of buggery having been put by the judge into the same category, and there were counts, such as count 8, which stood alone on their facts.
  20. In reply Mr Cosgrove pointed out that although Williams-Rigby in evidence admitted going into the unit at night he never admitted going into the dormitory, and for the purposes of evaluating the fresh evidence that distinction is important.
  21. Conclusion: Williams-Rigby.

  22. Having carefully considered all of the matters to which Mr Aubrey drew our attention, and having considered the records of interview as well as the transcripts of evidence, we nevertheless remain of the opinion that the fresh evidence which we heard is capable of belief. Plainly it would have been admissible at the trial, and it is accepted that there is a reasonable explanation to the failure to adduce it then, so the only remaining matter to be considered pursuant to section 23(2) of the Criminal Appeal Act 1968 is whether that fresh evidence affords any ground for allowing the appeal. In our judgment it does because if accepted it directly undermines the evidence of two of the complainants, BS and MO, and the evidence of MO may well have assisted the jury to reach a conclusion in relation to ML and WM. We therefore conclude that all of the convictions recorded against Williams-Rigby are now unsafe. As Lord Bingham pointed out in R v Pendleton [2002] 1 Cr App R 441 at 454 the question we have to decide is whether the conviction is safe, and not whether the accused is guilty, and in a difficult case it is often wise for this court to test its provisional view by asking whether the fresh evidence if given at trial might reasonably have affected the decision of the trial jury to convict. We are satisfied that it might. We therefore allow the appeal. At the end of the hearing Mr Aubrey made it clear that if we were to allow the appeal the Crown would not seek an order for a re-trial.
  23. Lawson: Overview.

  24. Michael James Lawson is now 62 years of age. He was a police officer for 15 years retiring in 1974 as a sergeant. He then worked as a residential social worker at the home, and he was there more or less continuously until he was suspended and arrested on 2nd June 1997. He was not resident at the site, and lived elsewhere with his wife and family. When tried at Liverpool Crown Court in May and June 2000 he faced an indictment which contained 29 counts. There were allegations of indecent assault, buggery, taking an indecent photograph, and common assault made by eight complainants in relation to the period between November 1978 and December 1988. All three counts relating to one complainant resulted in acquittals, but for the rest the pattern was more complicated. Lawson was convicted on 17 counts of indecent assault relating to 7 complainants. He was acquitted on the remaining counts, and was sentenced to a total of seven years imprisonment. As in the case of Williams-Rigby, the Crown case depended upon the evidence of the complainants, all of whom by the time they gave evidence had criminal records.
  25. The accepted complaints.

  26. JC went to the home in April 1979 at the age of 11 and was there for three years. He claimed that he was regularly hypnotised by Lawson in the office and then sexually abused. He was also taken to Lawson's house where there was masturbation and oral sex.
  27. MW claimed that he was indecently assaulted by Lawson in a changing room on Sports Day 1978.
  28. AAR, like MW, was a contemporary of JC. He complained of indecent assault and masturbation one evening when he had a shower. He also complained of being visited by Lawson and indecently assaulted in the dormitory.
  29. BS complained of being hypnotised and then subjected to oral sex when staying at a farmhouse at Ampleforth on a school trip. He said that later Lawson tried to kiss him, and on another occasion on the same trip indecently assaulted him again.
  30. DO complained of being indecently assaulted on a walk with Lawson in the woods, and of being made to take part in masturbation and oral sex in the dormitory.
  31. SC claimed that he was photographed naked in the woods, that he was kissed and indecently assaulted in the dormitory, and that at a Christmas Party when he was with a girl Lawson sent the others away and indecently assaulted him, engaging him in oral sex.
  32. Finally Michael O'Neill, now Charlene Blundell, claimed that one night Lawson took her and other boys on a walk. He scared the others with a ghost story so that they ran away, and then subjected O'Neill to oral sex in the bushes.
  33. Defence case.

  34. Both when interviewed and in evidence at trial Lawson denied all of the allegations made against him, and he called 46 witnesses in his defence. He did have experience of hypnosis and was obviously well thought of by many people including former pupils.
  35. Grounds of Appeal.

  36. Before us Mr Goldrein QC for Lawson made submissions in relation to five grounds of appeal and invited us to hear a witness, Wade Walsh, whose evidence was of particular relevance in relation to the testimony of Charlene Blundell. She was then recalled by the Crown. Mr Goldrein, like Mr Cosgrove, was allowed to reserve for argument on a later occasion if need be a further ground of appeal relating to what some complainants said when asked whether they had made claims for compensation. That was because material from the Criminal Injuries Compensation Authority only became available at a very late stage just prior to the hearing before us.
  37. The Character direction.

  38. Mr Goldrein put at the forefront of his submissions ground 5, the way in which the trial judge dealt with Lawson's good character and his character witnesses, who were particularly important in relation to allegations made as to events many years ago, because in relation to such allegations it is almost impossible to get independent evidence casting doubt upon what a complainant says (a point made by this court in Carl Andrew Smith 20th December 1999). Mr Goldrein concedes that the judge did give what he described as a conventional or standard good character direction, but he submitted that the direction was emasculated by references to the Crown's case that offences such as those alleged were normally committed in private, and in circumstances where no one would complain. That case was deployed in cross-examination of character witnesses, with the result that the jury may well have been left with the impression that the good character of Lawson was of little assistance to him in circumstances where no one knows what happened behind closed doors.
  39. Mr Goldrein submits that in fact in this case the good character direction should have been buttressed by a specific warning as to the need for caution before convicting on the unsupported testimony of a complainant with a criminal history in relation to events said to have taken place many years ago. That possibility was envisaged by Lord Taylor CJ in Makanjuola [1995] 2 Cr App R 469 and at paragraph 19 of the judgment in Carl Andrew Smith. Superintendent Robbins when giving evidence had spoken of "corroboration by quantity" and as to that the trial judge warned the jury that they must not lump the complainants together. "You must decide on each count whether you are satisfied that you are sure that it is made out before you can find the defendant guilty". Mr Goldrein submitted that in the circumstances what was said by the trial judge was not enough. There was no video or audio tape of the first contact between a complainant and a police officer in response to the letters sent out to those conducting Operation Care, and the risk of contamination was something which, Mr Goldrein submits, needed to be addressed as part of the character direction.
  40. For the Crown Mr Aubrey submitted that the Judge's direction as to good character was impeccable. It was not emasculated by reference to what, for example, one witness said. Having read the direction ourselves we accept that what Mr Aubrey has submitted is right. The jury can have been in no doubt as to the relevance and importance of Lawson's good character.
  41. The Scene 22 Point.

  42. We turn now to Mr Goldrein's first ground of appeal, which has caused us rather more concern. When Detective Superintendent Robbins, the officer in charge of Operation Care was being cross-examined by Mr Fordham QC for Lawson about the response to letters addressed to former pupils at the school he agreed that there had been 8 or 9 who had complained about Lawson, out of about 8,600 with whom Lawson would have been in contact during the indictment period. There were some 16 or so other witnesses upon whom the prosecution would seek to rely. Mr Fordham then asked how many replies gave the home a clean bill of health, and at that point Mr Aubrey sought a ruling from the judge in the absence of the jury.
  43. Mr Aubrey's understandable anxiety was that the jury should not be left with the impression that Lawson was the only person about whom complaints had been made, and who was under investigation. Mr Fordham and the judge accepted the need for clarification, and when the jury returned Mr Fordham put to Detective Superintendent Robbins, that "there were many other who were made the subject of complaints". The witness agreed. What is surprising is that when Mr Aubrey re-examined he sought to go into greater detail about complaints made in relation to other members of staff. Mr Fordham objected and the jury retired again. The judge was then invited to consider the Scene 22 document, a list of 20 members of staff who, in May 2000, had been arrested or were facing charges. It was agreed that the substance of the document could be put to the witness, and when the jury returned the officer was asked to read out the names and did so, as the names of the persons who had been arrested or were under investigation, or in respect of whom the investigation was complete.
  44. When he came to sum up the judge said
  45. "You heard about a large number of members of staff, did you not, investigated at this school over the years? As a result of complaints of abuse physical, sexual abuse made against them. Indeed you were told that a total of 91 members of staff at the school had been or were under investigation, and 20 members of staff were actually named to you in the course of evidence who had been arrested. You will remember three of the wives actually gave evidence for the defence Mrs Esmatt, Mrs Saltrese and Mrs Tulley all wives of husbands who had been arrested or facing trial in respect of accusations made by former residents of the school.
    That fact is only relevant to show you that these complainants have not combined in some sort of witch hunt against this defendant alone others have also been accused. And of course it is relevant in the arguments that Mr Fordham put forward about the large number of pupils who have passed through over the years and the small number of complaints, because you know that there are other complaints and other subjects of complaint."

    The judge then went on to instruct the jury to consider the position of Lawson separately but, as Mr Goldrein points out, the use of the Scene 22 document in re-examination led to a number of problems which need never have arisen. First of all, although the document does not say that everyone named had been arrested, and the officer in the witness box did not say so either, that was later asserted by Mr Aubrey and accepted by the judge. Secondly, because names were given the jury knew that the husbands of the three defence witnesses, Mrs Esmatt, Mrs Saltrese and Mrs Tulley, had been arrested or were under investigation and the judge reminded the jury of that fact. That must have had an adverse effect on the testimony of those three witnesses even before they began to give evidence, although the force of that point is lessened by recognition of the fact that they could be and were properly cross-examined to suggest that in giving evidence they were seeking to protect their husbands.

  46. But Mr Goldrein identifies a third problem arising out of the use of the Scene 22 document, namely that, as is now clear, hardly any one on the list was convicted, and yet the jury must have been left with the impression that if so many had been arrested provable abuse must be widespread.
  47. Ground 2: The Williams-Rigby point.

  48. Part of the defence of Lawson was that the way in which the Home was run, with night supervision officers on duty in each unit after the boys went to bed, would have made it very difficult for Lawson, who did not even live on the premises, to commit offences in the dormitories at night. When that aspect of that defence began to emerge Mr Aubrey in the absence of the jury, indicated that if it were to be pursued the Crown would seek to lead evidence of the convictions of Williams-Rigby under section 74 of the Police and Criminal Evidence Act 1984, especially those convictions relating to BS and MO. Mr Aubrey said in terms that if night supervision officers were to be called by the defence the Crown would submit that the convictions of Williams-Rigby in relation to BS would be relevant. Mr Fordham said that he had available at least one such officer, and invited the judge to rule, and the judge said that his present thinking was that Mr Aubrey's argument was a good one. In the light of that indication Mr Fordham undertook to reconsider his witness list, and no such witness was called by the defence. Mr Goldrein accepts that the judge did not make what would normally be described as a ruling, but he said as much as it was possible for him to say that that stage of the trial, and the reality is that convictions which we have now found to be unsafe inhibited the conduct of the defence in Lawson's trial. To precisely what extent the conduct of the defence was inhibited we not know, because Mr Fordham has died and Mr Goldrein was unable to assist us as to what it was anticipated that one or more night duty officers would have said. As Mr Aubrey points out, the jury acquitted on count 6, which was an allegation of sexual abuse in the dormitory made by JC, but convicted on four other counts where dormitory allegations were made by other complainants, despite the fact that a large number of witnesses were called for the defence, including pupils who gave evidence similar to that which we heard from Kellaher and Harrison in relation to the appeal of Williams-Rigby. The jury also heard evidence from members of staff as to the system of supervision at night, and from Mrs Mynett, a housemother, who did not believe that anything improper could have gone on without herself and others in like positions becoming aware of it. Other members of staff gave evidence to the same effect, but in some cases they were vulnerable to cross-examination because their husbands had been arrested (see the Scene 22 point above). Mr Goldrein did not seek to rely on the fresh evidence called in Williams-Rigby's case.
  49. Ground 3: Charlene Blundell.

  50. The complainant in count 29 was Michael O'Neill, now Charlene Blundell, who, as noted above, said that on a night walk with Lawson she was subjected to oral sex. Since the trial the defence has been in touch with Wade Walsh, who had been at Clarence House with O'Neill, and met her when he was due to give evidence at the trial of David Jones. David Jones was one of the members of staff named in Scene 22, and according to Wade Walsh the trial of David Jones collapsed. Certainly he was acquitted, and Wade Walsh, whose evidence we heard de bene esse told us that Charlene Blundell was not pleased. Following a conviction she had hoped to obtain compensation money to pay for sex change procedures, and she was "brassed off". After the trial Lawson came across, and, according to Wade Walsh, Charlene Blundell panicked. Later she told Wade Walsh that Lawson was in prison because of her evidence, and that she had fabricated all of it in order to obtain money for a sex change. In cross-examination Wade Walsh agreed that he had been at Altcourse Prison with Lawson, but he said that they were not particular friends. So far as he was concerned Lawson had been a decent member of staff, unlike others who had physically assaulted him.
  51. Charlene Blundell was then recalled by the Crown. She denied saying to Wade Walsh what he said that she had said. She had many convictions for dishonesty and arson, and paid for sex change procedures by prostitution. She had given evidence in the trial of David Jones as well as in the trial of Lawson, but had not given false evidence, and had not claimed compensation until recently, although she was involved in a class action 18 months ago. In fact she claimed compensation from the CICA in March 2001 and was told in July 2001 that no award would be made. Wade Walsh had bullied her, she said, because she had struck up a relationship with another inmate.
  52. Obviously what Wade Walsh said in evidence to us was not evidence which was available to the defence when Lawson was tried. We found his evidence capable of belief, and if that evidence were to be accepted by a jury the conviction on count 29 could not stand. Mr Aubrey does not contend otherwise, but he points out that Walsh's allegations have been investigated by police officers not involved in Operation Care and no action has been taken.
  53. Mr Goldrein submits that the evidence suggesting that Charlene Blundell gave false evidence for money affects not only count 29. It contaminates the prosecution case as a whole because the possibility that complainants were motivated by the hope of compensation was being canvassed at the trial. There was at that time little evidence to support that hypothesis, but if evidence such as that given by Wade Walsh had been available that would have provided a clear demonstration of how any complainant's evidence might have been tainted. This is, of course, a line of argument that Mr Goldrein would wish if necessary to pursue further in support of his proposed additional grounds of appeal, with the benefit of information helpfully furnished by the CICA in response to an order of this court.
  54. Ground 4: Similar Facts.

  55. The judge directed the jury that where different complainants complained of sexual abuse on "spookie walks" that could, as a matter of law be regarded as a category of complaint, and, if there was no corroboration, then the different complaints could be capable of providing mutual support for each other because of their essential similarity. Three complainants, including O'Neill, made such complaints, and the judge invited the jury to ask themselves whether it was really possible that three persons
  56. "Independently making essentially similar accusations against the same member of the school staff, could be either telling lies or be mistaken in their recollection of the events? And if you think that is incredible then you may well allow yourself to derive support one for the other in respect of those accusations, and it may help you to decide whether or not they are telling you the truth. "

    Although Mr Goldrein did submit that the evidence was not sufficiently similar to warrant the judge's direction (see DPP v P [1991] AC 447) that was, so far as Mr Aubrey can recall, not the attitude of the defence at the trial, and in our judgment the judge's direction was rightly given. In fact the jury acquitted on four counts relating to "spookie walks" other than count 29, the complaint relating to Michael O'Neill, so in reality nothing can now turn on whether or not the direction was rightly given. But the complaint made by one complainant SC in relation to a "spookie walk" was that other boys were sent away, he was then told to undress, and was photographed naked. That was count 21, and the jury acquitted on that count. As Mr Goldrein points out, it is difficult to see how a complainant could be mistaken about such an incident, and if SC was lying why, Mr Goldrein asks, did the jury feel able to accept the uncorroborated evidence of SC on counts 22, 25 and 26? Forensically the point is attractive, but it has been repeatedly said in this court that we will not regard verdicts as inconsistent simply because the jury has apparently chosen to believe a witness in relation to some matters and not in relation to others. It is perhaps worth noting in passing that ground 4 was the only ground of appeal on which the full court did not give leave to appeal. It was simply referred to this court.

    Conclusion: Lawson.

  57. We have found this appeal more difficult to evaluate than the appeal of Williams-Rigby, but in the end we have come to the conclusion that, even at this stage, and without hearing further submissions in support of the proposed additional ground of appeal, the appeal should be allowed. As we have indicated we were not impressed by the attack on the good character direction given by the trial judge, or by the attempt to question the verdicts on counts 22, 25 and 26 by reference to the verdict on count 21, but plainly, as it seems to us, in the light of the evidence which we heard the verdict on count 29 can no longer be regarded as safe, and that conclusion is of some limited assistance to Lawson in relation to the remaining counts on which convictions were recorded. But in our judgment the really significant matters are those covered by the first two grounds of appeal, which, taken together with count 29 have a cumulative effect on the case as a whole. The naming of those listed in the Scene 22 document was, to say the least, unfortunate, and in the light of what has happened to all of them it is impossible for us to be satisfied that the naming did not distort Lawson's trial. The same line of reasoning applies to ground 2. We have serious reservations about the admissibility of (and fairness of admitting) the convictions of Williams-Rigby. The fact that Williams-Rigby, who lived on the premises and had on occasions good reason to enter a dormitory, had been proved to have succeeded in gaining access to a dormitory at night did not necessarily assist in establishing that Lawson, who lived elsewhere and (save perhaps when on duty) had no such reason for entering a dormitory, had succeeded in doing so. However the threat to use the Williams-Rigby convictions on the counts involving BS clearly had some effect on the conduct of Lawson's defence, and it was an inhibition which we now know to have been inappropriate because those convictions we have found to be unsafe. What the effect would have been if that inhibition had not been raised we cannot judge with any precision. But plainly if the dormitory allegations had been rejected that would have raised questions in relation to the reliability and integrity of those who made such allegations (namely AAR, DO and SC) and that could have had a knock-on effect on the prosecution case as a whole.
  58. In this case as in the case of Williams-Rigby Mr Aubrey made it clear that if the appeal were to be allowed the Crown would not seek an order for a re-trial.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2003/693.html