Lord Justice Longmore:
On 2nd and 3rd July 2001, Richard Keith Sutton was convicted of 32 out of a total of 47 counts of sexual abuse and sentenced to 14 years imprisonment. On 30th January 2004, this Court referred Mr Sutton's application for leave to appeal to the Full Court and ordered that, if leave to appeal were granted, the appeal should be heard immediately. On 16th and 17th December we heard full argument on all matters. We decide that Mr Sutton should have leave to appeal and will now refer to him as "the appellant".
- Between July 1976 and November 1981, the appellant was a care worker at Hand House at the St Thomas More home in Southport, which was run by an organisation called the Nugent Care Society. It is alleged that while he was there he abused PH, born in 1964, between September 1980 and October 1981 and PD, born in 1965, between December 1980 and June 1981. In the case of PH, the appellant was convicted on 3 counts of indecent assault and one specific count of buggery but acquitted of various specimen buggery counts over a period and a specific count of buggery alleged to have occurred after PH had been pushed or fallen downstairs; a verdict of Not Guilty on 2 other counts had been entered at the close of the prosecution case. The appellant was sentenced to a total of 4 years on the counts of which he was convicted.
- The appellant was convicted of 10 counts of indecent assault on PD for which he was sentenced to 12 months concurrent on each count and concurrent with the sentence on other offences in relation to other offenders.
- The appellant moved to become Deputy Head of Parkside Children's Home in the Wirral between November 1981 and November 1987. He was there employed by Wirral Borough Council. Here he met the female complainant, PV, who was born on 9th December 1965, and was at Parkside between November 1978 and January 1984. Thereafter she moved out and lived at various addresses at Halfway House in Borough Road and Devonshire Road. The appellant was convicted of 5 offences of indecent assault on PV, 4 of them at Parkside and one at Halfway House for which he was sentenced to 18 months concurrent. He was also convicted on two counts of rape, one on PV's first day at Halfway House and the other at Devonshire Road. For the first of these rapes he was sentenced to 6 years imprisonment and for the second 5 years concurrent. The four year sentence for buggery of PH was consecutive to those sentences.
- Between November 1987 and March 1990, the appellant was head of a school known as St Vincent's. No allegations of abuse were made in respect of this period. Thereafter he was head of Othona Children's Home in Southport, again run by the Nugent Care Society, and he was convicted of 1 count of buggery and 7 counts of indecent assault on JA, born 21st August 1978 for which he received a sentence of 4 years consecutive to the other offences making a total of 14 years imprisonment.
- The appellant's defence was that none of the alleged offences had occurred. The three main general grounds of appeal are that:-
(1) there were insufficient warnings given to the jury of the particular care which they should take and the caution they should exercise in relation to allegations which depended on the unsupported evidence of the complainants;
(2) there was insufficient warning given to the jury about the care they should take by reason of the antiquity of the alleged events and the delay in bringing them to court;
(3) the police, in the course of conducting "Operation Care" in relation to allegations of abuse in Merseyside homes, including the allegations against the appellant, may have encouraged the complainants to come forward and make allegations of abuse but to play down their intention of claiming compensation (whether through the courts or by application to the Criminal Injuries Compensation Authority) by saying at the trial that they were unaware of their rights and had no intention of making any claims.
- There are further grounds of appeal specific to each complaint:-
(1) in relation to PH, that the conviction on the specific count of buggery was inconsistent with the appellant's acquittal of subsequent specimen counts of buggery and the further specific count;
(2) in relation to PD, that he had said (both before and after the trial) to a third party that he intended to make false charges of indecent assault;
(3) in relation to PD and PV, that their applications for compensation post-trial, after PD had said in evidence that he did not know he had any claim to compensation and PV had said she would make no claim, make their evidence unreliable;
(4) that JA had retracted his evidence since the trial and that, if his diary had been disclosed to the jury at trial, they would have appreciated that he would invent serious allegations and that he was a liar.
It is unfortunately necessary to say something of the evidence in the case in order to understand the individual grounds of appeal. The various complaints all emerged as part of the large scale police inquiry in the North West of England in relation to children's homes, known as "Operation Care", which resulted in a number of trials and subsequent appeals of which this case is one.
- PH (Counts 1-15)
PH was 16 when he went to St Thomas More's in September 1980 where he stayed for 13 months, leaving in October 1981. He said he had been there for 2-3 years but, as the judge told the jury, that was manifestly and completely inaccurate. He said it was a very unpleasant place to be in and that the appellant was known as Big Bird. He described him as an 'evil bastard' whom he saw regularly and who abused him. The first occasion was when he was in bed in his dormitory and the appellant came in and was nice, asking if he wanted anything. The appellant asked him to touch his private parts which PH eventually did. He said that that happened on numerous occasions. The appellant would then do the same thing to him. That was the subject matter of count 1, a specimen count. After that first time it got more serious. The appellant would get an erection and the complainant was forced to masturbate him on numerous occasions either in the dormitory or in the toilets. That was count 2, again a specimen count. Sometimes two others, bullies, were present in the toilets when he was being abused and they also took part. On more than one occasion he was forced to suck the appellant's penis. That was count 3, again a specimen count. The complainant said he was threatened with a beating if he did not do what was asked.
- On one occasion in the dormitory the appellant got him to fondle him and said "I'm going to bum you". He then buggered PH (count 4). That happened on several other occasions either in the dormitory or in the toilets (counts 5-8, specimen counts). He was buggered again on several occasions by the appellant and 'Big Sid' a resident who got on well with the appellant. A third man was present on most occasions. He would be buggered up against the wall by more than one person but would not know which one it was. Lots of laughing went on and although he screamed nobody ever came (counts 9-12, specimen counts).
- At one point he had a broken leg, which was in plaster. He was in bed with another boy, cuddling together for comfort because they were both scared and the appellant dragged him out of bed and then pushed him down the stairs where be was buggered on the floor at the bottom of the stairs (count 14).
- On his admission to St Thomas More at aged 16 PH was over 6 feet tall and weighed 11½ stone. The judge commented that he was "no shrinking violet". PH accepted the reality which was that he had been at St Thomas More for just over a year and he further accepted that during that time he had absconded for a total of 143 days.
- PH's first contact with Operation Care in relation to the appellant was a note from DC Neil who later asked him about his time in care and whether he had any complaints. He thought he mentioned St Thomas More's first but the appellant's name was not mentioned until later. He was not prompted with the appellant's name nor did the police say anything about him specifically.
- PH agreed that in April 1995 he made a statement complaining of buggery in St Aiden's, another care home, by a man called Dick. He also said he had been sexually abused by his father. He agreed that he was making applications for criminal injuries compensation and taking civil proceedings against the local authority and the Nugent Care Society. He said he suffered rectal bleeding following the abuse by the appellant, Big Sid and Joe Bugner or Buckner (count 13) and was taken to hospital. He said he may have become confused between St Aiden's and St Thomas More's.
- He agreed that he had appeared before the courts on 11 occasions and had seen many probation officers but had not disclosed the fact of his abuse in the care system. Re-examined he said he could not say whether or not he complained to his social worker, Mr Ruddock, about what was happening but did tell him he was unhappy. He had made a complaint about Dick because he understood he was still abusing young people and wanted to get him back for what he did and the same reasons applied to the appellant.
- The appellant was convicted of counts 1-4 (by a majority 11:1). He was acquitted by the jury or by direction of the other 10 counts against him.
- PD (Counts 16-25)
PD was 15 when he went to St Thomas More's and was there from December 1980 until June 1981. At the time of the trial in 2001 he was serving an 8 year prison sentence imposed in October 1998 for burglaries of dwelling houses, often in circumstances where the residents were present. At St Thomas More's he thought he shared a dormitory with 4-5 other boys and remembered the appellant by the name of 'Big Bird' saying he was big and over 6 foot tall. The appellant would play fight with the boys and started lifting the complainant between the legs from behind or from the front saying "I'm only playing". One day the complainant was alone in the music room and the appellant came in, shutting the door. He grabbed PD's hand, pulling it towards his groin. The appellant mentioned early weekend leave and opened his button putting the complainant's hand on his underpants on his penis and making him masturbate him. He kept saying that he would get weekend leave. The appellant ejaculated. This was count 16.
- After that, masturbation occurred sometimes 2-3 times a week (counts 17-20, specimen counts). Sometimes there were some weeks when nothing happened. The appellant tried to make him suck his penis in the staff room but PD did not want to do that. The appellant made the complainant masturbate him and fondled him. When he ejaculated he pushed PD's head down and told him to kiss his penis which he did (count 21). That happened on a further 3-4 occasions (counts 22-25). PD would be sitting on a chair with the appellant standing in front of him with his penis out. He would push PD's head down to his penis and make him kiss it. PD started running away to get away from him. He had just become sexually active himself and was confused but knew he should not be doing what he was with the appellant; it was the promise of weekend leave that made him carry on.
- Cross examined PD denied that he was telling lies and said he was unaware of the possibility of financial gain. He did not hold any vendetta against the appellant and had no desire for publicity. He agreed that he had led a life of crime but said he did not blame it on the appellant or on the care system. He was put in the St Thomas More home by the Juvenile Court and was not going to school at the time. He agreed that at the time he was described as untruthful. Asked to explain the reasons for his late complaint, he said they were embarrassment, that he thought he would not be believed, that his mother had felt guilty at putting him in care and he wanted to spare her the angst of discovering that he had been sexually abused while in that situation. Both his parents had recently died and it was for that reason he thought he should move on and disclose what had happened. He made his witness statement on 19th January 2000 whilst at Long Lartin Prison having received a proforma letter from the police. He agreed that at one point he told a social worker that he was enjoying life at St Thomas More's. He also agreed that he absconded on a number of different occasions and was later sent to a detention centre where a report by the governor said he did not like St Thomas More's because he was bullied. He had no recollection of PH at St Thomas More's. He had not made a criminal injuries claim nor a civil claim against the local authority. Whilst being escorted back to St Thomas More's after he had absconded, he had thought of telling the local policeman about the abuse but did not because he knew that the officer fancied his sister and he did not want anything to get back to his family.
- The appellant was convicted on all counts concerning PD.
- PV (Counts 26-35)
PV was 12 when she went to Parkside in November 1978. The appellant became deputy head there in November 1981. She got on well with him at first and at the age of 16 she moved into the 'warden's house' a building divided into flats to enable residents to learn living independently. The appellant came to her flat on many occasions, initially for a cup of tea and to see how she was getting on. He came one Christmas and she could smell alcohol on him. He sat next to her putting his arm round her and then he took her hand and put it on top of his hard penis over his trousers. He started rubbing her hand on himself saying it was nice and he liked her. He asked if he could "come", which he did. He still had his trousers on. This was count 26. She was frightened and did not want to do it, telling him to get off but he did not. That happened a few times.
- On another occasion in the appellant's office they had a big fight and she kicked his shins trying to get him off but he sat her on the chair next to him and she again masturbated him (count 27). That happened on a few occasions, usually in the warden's house (count 28, specimen count). The incidents were not always over clothing and sometimes he would take his penis out, putting it in her hand and she would masturbate him into the sink (count 30, specimen count).
- In January 1984 when she was 18 the appellant helped her to move into a halfway house at Borough Road. He grabbed her and started kissing her before forcing her to the floor where he pulled her jeans off and had sexual intercourse with her. She told him she did not want it but she could not move her hands as they were under his chest. He was very big and when he penetrated her she felt a sharp pain. She had not had sex before. He told her he loved her and then left. Afterwards she threw her clothes in the bin (count 31 – rape). After that he came again to Borough Road and the same thing happened, sexual intercourse and masturbation (count 32 – indecent assault – specimen count).
- In May 1984 she moved to a flat in Devonshire Road and the appellant would call after his shift. Sometimes he called two or more times a day and sexual intercourse and masturbation occurred. She did not consent to any of it and he knew that but took no notice even though she kicked, punched and screamed at him (Counts 32 and 33). On one occasion when he came to the flat she made coffee and although she told him she did not want to do it they had sexual intercourse on the floor (Count 34-rape). She later discovered she was pregnant and the appellant told her to have an abortion and there was no need for discussion as to who was the father. (It was agreed that on 7th January 1986 she had had a termination in the tenth week of pregnancy.) The appellant took her to the hospital and brought her home again. After that no further intercourse occurred but masturbation carried on (count 35, specimen count). He then took a job in Formby and she did not see him again.
- She agreed that in her youth she was angry, rebellious and aggressive and most difficult at Parkside. She regarded herself as being quite tough, saying that people could not push her around. She had access to a social worker, Nora Griffiths and was seeing her when the appellant was abusing her but did not confide in her. She accepted that by going to Parkside to be with the appellant she may have given the impression of being attached to him but said she did that so that she would not be on her own with him if he came over to the warden's house. On the occasion of the fight she was telling him to leave her alone. Anyone hearing the noise would be used to it because she was known for screaming and kicking. She agreed that on the occasion of the first rape, the appellant would know that the resident warden, Maggie, lived next door but it was her recollection that Maggie said she would leave them to settle in. She did not say anything at the time and people dealing with her had no idea of the distress she was suffering. The appellant never sought to disguise the fact that he was calling on her regularly and if she had visitors he would just say he was calling to see how she was getting on.
- In February 1984 she was convicted of assaulting a police officer but she did not disclose what was going on. She agreed that the appellant did not hide his involvement in taking her to and collecting her from the clinic after her termination. She denied that her pregnancy had anything to do with a boyfriend, Ray Rich, with whom she had had sexual intercourse on one occasion.
- In 1997 she told a counsellor, Vicky Bithell, about the abuse. That was the first time she had spoken of it and she made a statement to the police implicating other individuals in the care system. One of those Simkins, pleaded guilty to indecent assault and the police told her she could claim compensation. She did not name the appellant until after Simkins' trial in January 2001. She had not made any criminal injuries claim.
- KR, PV's female partner, said that she had known PV since she was 12 years old. She visited her 3-4 times a week at Devonshire Road. Sometimes the appellant was present when she arrived or would turn up, staying for hours, not speaking but following PV around. She thought his behaviour bizarre and weird and a lot of other people noticed what was going on. PV never told her that she was being sexually abused and the first she heard of it was after the Simkins trial.
- The appellant was unanimously convicted of courts 26-28 and 30-35. He was acquitted on count 29 by direction of the judge.
- JA (Counts 36-47)
JA went to Othona in January 1993 when he was 14. He said that the appellant seemed a nice chap, outgoing, big and friendly. They went for trips out and on one occasion they went to a caravan at Squirrel Park in the Formby area. Once in the caravan they had a drink and the appellant put his arms round him and started kissing him on the mouth and unbuttoning his shirt, kissing his chest and feeling his body. He pulled his jeans down and performed oral sex on him (the complainant) but he did not ejaculate. This was count 37, the first of 8 counts of indecent assault). They got on the bed. He was on his stomach and the appellant raised him to his knees and then inserted his penis inside him (count 36, the first and only count of buggery). He did not like it and told the appellant it hurt but he said "It'll be OK, you'll get used to it after a while". On numerous other occasions sexual activity took place, the next being 2 days later in the office when the appellant unbuttoned his (the complainant's) trousers and performed oral sex on him (count 38). The appellant was a nice man, not rough with him. He looked after JA, taking him for drives and giving him a couple of pounds every now and then to buy lager. JA just did what he did to please the appellant and to keep him looking after him. He thought the benefits might stop if he did not go along with it.
- JA said that oral sex took place in the office about four times with JA lying on the desk and the appellant performing oral sex on him. Then the appellant would take his penis out and get JA to masturbate him (counts 40-41, specimen counts). There was an occasion when they went for a drive on the Southport coastal road and the appellant pulled JA's trousers down and performed oral sex on him. The appellant wanted JA to put his (JA's) finger in his (the appellant's) anus and whilst he did that the appellant did the same to JA (counts 45-46).
- On another occasion one of the side flats was being decorated and he was alone with the appellant who unbuttoned JA's shirt and kissed his chest. JA undressed to his shorts and lay on the floor whereupon the appellant masturbated him and he did the same to the appellant. They got into the '69 position' and tried to have anal intercourse but it did not work and so they performed oral sex on each other (counts 42-43).
- Cross examined JA agreed that he was serving life imprisonment for murder. That had involved JA and another befriending a homosexual man, going back to his flat, holding a knife to his throat, tying him up and bundling him into a trunk, leaving him to suffocate. He said that he specialised in that type of offence. When sentenced in 1997 the trial judge recommended that he serve a minimum of 16 years' imprisonment. In March 1996, JA agreed he was convicted of 10 offences of robbery. He agreed that over the years he had been interviewed many times by social workers and probation officers but had not disclosed the offences involving the appellant. He first told a probation officer of the offences about 2 years ago although initially did not name the appellant. He was aware of the Criminal Injuries Compensation Authority but had not made any application for compensation because of his record. It was the probation officer who contacted the police about the allegations. He thought he had been crossed by the probation officer and initially refused to see the police when they came to interview him. Prison records were produced and showed that in December 1998 JA disclosed that he was sexually abused by the appellant when aged 15.
- The appellant was unanimously convicted of counts 36-38, 40-43 and 45-46. He was acquitted by direction of the judge of 3 counts.
- Detective Constable Neil then gave evidence and said he interviewed the appellant between April 1999 and March 2001 and he vigorously maintained his innocence in respect of all allegations. In the course of the investigation the police sent out 155 letters to former residents of St Thomas More's. Of that number 125 did not reply. Only two of the complainants in this case (PH and PD) came forward as a result of receiving letters.
- The appellant gave evidence. He described the routine at the Home and said that he remembered PH as a persistent absconder. He confirmed that he was known at the Home as 'Big Bird' or 'Buzby´ and remembered somebody called 'Sid' whose name may have been Russell Williams. He was not a resident but may have visited friends at the home. He thought he might have taken PH to the Lakes once for a day out. Lights went out at 10 pm and there may have been pillow fights but he did not take part in them nor did he regard such activity as grooming youngsters. If PH had screamed in pain others would have heard him. He could offer no reason why PH should make the allegations against him and did not think he would have put up with such treatment because he was a mouthy, loud, big boy who could lose his temper. He did not remember him injuring his foot or being in plaster. He took residents, individually and as groups, to his home for a visit and this included PH. He never molested PH. He had no specific recollection of PD but said he did not molest him. As for the music room described by PD he said it was more like a corridor and did not have chairs as described by PD and no private facilities to commit such offences. He was not aware of any vendetta or dislike that PD may have acquired against him.
- He remembered PV as having moments of being extremely troublesome and volatile who was objectionable to everybody, kicking, spitting, fighting and using foul language. Two weeks after he arrived at the Home she had a fight with one of the other residents. If anything of a violent or disruptive nature had occurred when she lived downstairs in the Warden's flat, it would have been heard upstairs. When he helped her move into Borough Road nothing happened and he left her on the basis that he would not abandon her but pop in from time to time if she wanted. He tried to go once a week for half an hour and other people at Parkside knew he was calling on her. She would ring on occasion asking him to go. He remembered friends being there when he visited, but he denied he was there for hours as KR had said. As for her pregnancy, he did not ask who the father was but simply advised her to go to her GP. He gave her advice about drinking and paying her way and occasionally took her small quantities of food.
- He remembered JA at Othona and spoke to him about his behaviour. He denied he had had a caravan, or access to one, at Squirrel Park in Formby. He had no recollection of a flat being decorated in Othona where JA had said some of the offences had taken place. Whilst at Othona he did not know that JA had a history of sexual abuse from previous residences. He was not surprised that PH had not confided about the abuse he had suffered from Mr Dick or that PV had not disclosed to him her abuse at the hands of Mr Simkins. Although his caring for PV after she left Parkside was not part of his contract he did it out of a sense of duty and conscientiousness if young people asked him. Cross examined about a child care review held at Parkside on 20th May 1981 when it was recorded that PV had become very attached to him and that such contact should be reduced, he said that in the geographical sense he did not go out of his way to go and see her. Initially he called once a week but that was reduced to occasions when she telephoned asking to see him and he would stay 10-20 minutes or less if she had friends there. There was, in fact, some evidence from the Parkside log of PV phoning on 5th December 1985 and a message for him to phone her on 10th January 1986. By that time he thought the 'crush' crises was over and things had moved to a greater maturity between himself and PV. He did not remember seeing KR there at PV's place and said he visited other people over a period of years after they had left. He might have pecked PV on the cheek as a form of affection when saying goodbye. He did not arrange any specific care after her termination.
- On the day of her move (the first allegation of rape) he did not see any residents but thought he saw Maggie the house mother. He was sad and sick at PV's allegations because he had spent a lot of time trying to help her and could think of no reason why she should make them. He had made no records of taking children on trips out of the establishment. He did not remember 'Sid' as a bully in the home. None of his visits to see PV or others were recorded but there was no sinister reason for that.
- The appellant called witnesses on his behalf:
Diane Williams was interposed during the evidence given by the appellant. She worked in the care system and in 1994 was deputy team leader. The appellant was her superior. She remembered the name 'JA' but could not put a face to him. The appellant responded well to the boys and had a good relationship with them. She never heard any complaint about him.
Pauline Riley, George Lynch, Margaret Austell, Jack Nuttall, Helen Johnson, Michelle Kanavan, Ann Matteo all worked with the appellant and gave positive evidence of his work at the Home as did Michelle Burnside who was resident at St Vincent's for 4 years and Darren Levy a resident at Parkside for 4 years.
Mrs Jane Sutton (the appellant's wife) gave evidence attesting to their normal sex life and the fact that her husband had not made any unorthodox sexual demands or indicated any homosexual inclinations.
- Application to adduce new evidence
Mr Anthony Jennings QC for the appellant applied to adduce no less than 26 items of new evidence. We received all this evidence de bene esse and indicated we would rule on his application in the course of our judgment. It is convenient to do so before considering the grounds of appeal upon which reliance is placed.
- In relation to PH, application was made to adduce (1) his school report of 7th April 1981 and (2) his statement of 1st November 1999 made for the purposes of civil proceedings. Both these documents were available and were disclosed at the time of trial. They are, moreover, peripheral to the issues raised by the grounds of appeal and we have therefore decided not to allow reference to be made to these documents. Next, application is made to adduce (3) a letter of 25th November 1999 written by Detective Superintendent Robbins to PH's solicitors which was not disclosed at trial. This letter is central to ground 9 of the Grounds of Appeal and we have decided that the appellant should have leave to adduce that letter. The Crown contended that if such leave was given, they would wish to adduce a statement from Detective Sergeant Thomas of 24th November 2004 more fully set out hereafter and Mr Jennings said that he would not object to our reading that statement. Next the appellant sought to adduce (4) evidence of PH's application of 2nd September 1999 to the Criminal Injuries Compensation Authority ("CICA"), received by them on 10th September 1999 and (5) the outcome of such application, dated 11th December 2001, in the sum of £3,750. The application was made before the appellant's trial but the award was made after that trial. We have decided that both the application and the outcome should be adduced in evidence.
- In relation to PD, application was made to adduce:-
(6) his criminal antecedents;
(7) various social enquiry reports and parole board decisions in relation to his offending;
(8) a statement from Ms Barbara Taylor of 8th January 2001 relating to PD's frequent absconding;
(9) PD's application to CICA for compensation of 13th November 2001 (made after the appellant's trial);
(10) PD's authority for the initiation of civil proceedings dated 19th January 2000;
(11) A statement to police from a social worker John Donnelly of 8th November 2000 that he had visited a certain Lee Dugdale two days previously in prison in relation to a trial in which Dugdale was an intended complainant. Dugdale had told him (among other things) that while he was being moved from HMP Long Lartin to HMP Garth on 6th or 7th September an unidentified male fellow prisoner had informed Dugdale that he was making abuse allegations to claim compensation;
(12) A statement of DC Peter Thomas of 13th November 2000 in which he said he was following up the statement made to John Donnelly and went to see Lee Dugdale on 9th November 2000. Dugdale identified the prisoner with whom he was travelling from HMP Long Lartin as PD and repeated that PD had said he was going to make false complaints to get financial compensation. When asked if he would make a written statement, Dugdale said he wanted nothing more to do with the police and walked out of the room. This statement was part of the unused material and was available to the defence at trial, although John Donnelly's statement (No 11 above) was not, since the Crown did not appreciate its possible relevance in its anonymised form;
(13) A statement of Lee Dugdale of 10th September 2001 made after the trial without saying to which person the statement was made. It repeated the allegation in relation to PD and did not say whether Dugdale was prepared to give evidence. The application to include this statement included a further application to admit a statement of 12th August 2003 from Jane Hutcheson assistant solicitor in Bindman & Partners (the appellant's now solicitors) in which she said she had visited Dugdale in HMP Blakenhurst on 5th August 2003 and that he had read and confirmed the statement of "10th October 2002" (sic). She added that Dugdale was not willing to attend and give evidence in the appellant's appeal because, as he put it, fellow inmates objected to what they viewed as his "giving evidence for nonces". Despite this Mr Jennings for the appellant originally hoped pursuant to a witness order of this court to call Dugdale in person in support of his statement. Unfortunately he was badly stabbed (causing a chronic abscess of the right lung) shortly before this appeal was due to be heard and could not attend court. Mr Jennings therefore applied to adduce his evidence in statement form, pursuant to sections 23-26 of the Criminal Justice Act 1988 on the basis that he was unfit to attend. The Crown submitted that, if this statement were to be received in evidence they would wish to adduce evidence from Detective Sergeant Thomas in accordance with his statement of 14th December 2004 to the effect (1) that, although Dugdale had claimed to be a victim of alleged abusers and had apparently been prepared to be a witness at the trial of other alleged abusers, he did not give evidence at any of the trials; and (2) that on 18th December 2000 the Crown Prosecution Service advised that Dugdale should not be used in any future trials. D/S Thomas was, with our permission, called to give his evidence subject to our ultimate ruling; he confirmed this evidence but said he was unable to say why the CPS had given the advice which they did. The Crown further relied on the fact that by 23rd August 204, Dugdale had been convicted of or pleaded guilty to 70 offences.
(14 & 15) A letter from a firm of solicitors to Barnardo's of 4th May 2004 together with a copy of Barnardo's log of 5th April 2001 in which it is suggested that PD's social worker was unhappy that Barnardo's were counselling PD before trial. These were not available at the trial;
(16) A report of Helen Roberts, Forensic Clinical Psychologist, about PD dated 12th June 2003 (and thus unavailable at trial) in which she stated, inter alia, that PD's principal problem was drug abuse but also said that he had said he had told the matron at St Thomas's of his abuse. The significance of this is that at trial he had said he had never told anyone of the alleged abuse;
(17) A pre-sentence report compiled for Leeds Crown Court on 20th June 2003 showing that PD explained his criminal behaviour as being due, at any rate in part, to abuse while in care. This was not available at trial.
- We have decided to receive items (6), (7), (9), (10) and (14)-(17) on the basis that they were not available at the trial (save for (10) which, however, needs to be seen now in the context of (9)). Item (8) was available and disclosed at trial; it could have been presented in evidence but was not. The jury, however, knew perfectly well that PD was a persistent absconder; whether the number of times he absconded was 24 as put to him or rather more as item (8) might suggest was of little consequence.
- Items (11)-(13) are, however, the critical items in relation to the counts in relation to PD. We have decided that it would not be right to admit these items. (11) goes nowhere since PD is not identified; (12) was available at trial and disclosed to the defence. If the defence had wanted to call Dugdale at trial they could have done so. In the light of Dugdale's reluctance to attend he would have to have been the subject of a witness summons and could well have been a highly dangerous witness to call. It is not in the least surprising that he was not called. It is no doubt unfortunate that he could not be called before us due to his medical condition but it would not, in our judgment, be right to admit, pursuant to the 1988 Act, a potentially controversial hearsay statement which cannot be challenged by cross-examination, when the evidence to which it relates was available but not called at the trial.
- In relation to PV application was made to adduce:-
(18) Records of telephone messages left for the appellant at Parkside showing that PV had telephoned and wanted to speak to him. An agreed schedule of these calls was compiled for the purpose of this appeal showing that calls had been made on 10th April, 13th April and 19th July 1984, 21st June, 2nd July and 13th November 1985 and 10th July and 27th August 1986, being 8 calls over a period of 2 years and 4 months;
(19) PV's application to CICA made on 20th July 2001, 17 days after the conclusion of the trial;
(20) PV's award from CICA in the sum of £16,500.
We have decided we should receive these items, as further evidence on this appeal.
- In relation to JA application was made to adduce:-
(21) A report dated 15th December 1998 made by Probation Officer Pete Nowell on JA after he had received a life sentence for murder on 31st July 1997. This referred to abuse JA had purportedly received at the hands of the appellant;
(22) A statement of 16th December 2004 from the journalist David Rose saying that together with Claire Curtis-Thomas, MP for Crosby, he visited JA at HMP Wakefield on 20th September 2001 (10 weeks after the appellant's conviction) and that JA had made it clear that he had been lying when he gave evidence at the appellant's trial. Mr Rose gave oral evidence to us in accordance with this statement and said that he had made notes of his meeting (which he produced) and had sent those notes to Mr Chris Saltrese who was "then" acting for the appellant. He had seen a copy of JA's subsequent signed statement of 24th September 2001 retracting his evidence which he believed Mr Saltrese prepared for JA to sign;
(23) A statement of 24th November 2004 from Mr Chris Saltrese who said that, with Ms Curtis-Thomas MP, he visited JA on 24th September 2001 taking with him a typed statement prepared from information obtained by Mr Rose. He read through the statement with JA who made two small amendments and then signed it. He gave oral evidence to us confirming his statement but, rather remarkably, said (1) that he thought JA's statement had been prepared by Mr Rose and (2) that he had never asked JA if he was prepared to come to court to give evidence in accordance with his statement;
(24) The statement of JA dated and signed by him of 24th September 2001 in which he said that the appellant had never abused him and that everything he (JA) had said in court (and to the police) was a fabrication from beginning to end. He claimed that the reason for these lies was that the police had told him in prison that, if he did not say the appellant had abused him, he would be accused of targeting gay men in the course of his crimes and, therefore, be classed as a sex offender required to participate in a sex offender treatment programme;
(25) A copy of JA's diary compiled while in prison awaiting trial for murder describing how he had killed his victim in terms which amounted to an admission of murder;
(26) The decision of the Criminal Case Review Commission on 17th May 1999 refusing to refer JA's conviction for murder to the Court of Appeal.
- We do not see the relevance of items (21), (25) and (26); both items (21) and (25) were, in any event, available at the appellant's trial for use, if anyone had thought them relevant. Items (22)-(24) were not available at trial and, if JA's retraction is inherently credible, should, we think, now be received in evidence. The problem with them is that JA, despite being available, has said that he is not willing to come to this court in support of his September 2001 statement. We do not, however, think that it would be right, in all the circumstances, to refuse to receive items (22)-(24) (and the accompanying oral evidence of Mr Rose and Mr Saltrese); we will accordingly admit this evidence as evidence that JA made the statements which he is recorded as having made. In due course we shall consider the effect of having admitted this evidence.
- We accordingly turn to the grounds of appeal.
- Grounds of Appeal
Some grounds of appeal raise particular points in relation to particular complainants; others are general grounds. We will take the general grounds first (grounds (7)-(11)). One point must, however, first be emphasised. In the appellant's perfected advice it appeared that there might be some criticism of the defence team at trial. This criticism was never a ground of appeal and, by the end of the hearing, Mr Jennings for the appellant had accepted that any criticism he had of the defence team was not sufficient to constitute a ground of appeal.
- Inadequate warning about relying on unsupported evidence of the complainants (Ground 7)
Now that juries no longer have to be directed about corroboration as a matter of law, the question whether any warning about relying on unsupported evidence of complainants in sex cases should be given and, if so, what the terms of such warning should be is very much a matter for the trial judge, see R v Makanjuola  2 Crim App Rep 469.
- In the present case the judge made four separate points about the approach which the jury should adopt to the complainant's evidence. He first reminded the jury (6A-F) that the male complainants all had previous convictions, two of them having "very serious" convictions of offences of violence and dishonesty. The female complainant, though of good character in a formal sense was rebellious, aggressive and angry about having been brought up in care. For these reasons the jury should approach the witnesses' evidence "with particular caution". Secondly the judge pointed out (6F-7B) that none of the complainants' evidence in relation to any particular count was supported by any other evidence; he added:-
"So you must approach each complainants' evidence with care for the reasons I have indicated and have regard to the criticisms which are made of each of those witnesses."
Thirdly he reminded the jury (7B-C) that they had to be sure that the witnesses were individually honest and accurate before they could convict. Fourthly (7D-8C) he said that, even though the defence did not suggest that there was any collusion between the complainants, the jury should consider the question of collusion and that, if they thought there might have been collusion, the evidence of relevant witnesses would be worthless.
- Mr Jennings for the appellant submitted that the case called for a much stronger warning about the dangers of relying on unsupported evidence. We do not agree; it was for the judge to gauge the strength of the warning he was to give the jury in the context of the case as a whole. The warning he gave was significant; this court would be wrong to criticise judges who gave warnings which might be somewhat different in terms from the warnings that individual judges of this court might have given. The warning that the judge gave was comprehensive and entirely adequate for its purpose. It is to be noted that the jury had no difficulty in acquitting the appellant of a number of counts.
- Mr Jennings then submitted that if the judge had known the facts that we have now admitted as further evidence particularly the facts (1) that PD and PV had made compensation claims after saying in PD's case that he did not know he could and in PV's case that she would not do so and (2) that JA had retracted his evidence, he would have given a stronger warning. This seems to us to be the wrong approach. If subsequently admitted evidence causes us to doubt the safety of the convictions that is sufficient for the appellant's purpose; if it does not do that, it would not be right to use the "new" evidence as a ground for saying that an enhanced or strengthened warning should have been given and that, in its absence, the convictions are unsafe.
- Inadequate warning about the consequence of delay in making complaints (Ground 8)
Mr Jennings made a sustained attack on the inadequacy of the delay warning given in this case. In the light of that attack we should set out in full the part of the summing-up which deals with delay (4A-5H):-
"One factor in this case which you must consider in conjunction with the standard of proof is the question of delay. This case has been concerned with events which allegedly took place a long time ago. The oldest counts, the PH counts, 20 years ago in round figures, the most recent counts, JA, up to eight years ago. You must have in mind that the defendant may have been prejudiced by the delay and such possibility must be in your minds when you decide whether the prosecution have made you sure in respect of each or any of these counts.
A number of factors arise which you must consider. Firstly, ask yourselves this; why did these matters not come to light sooner so they could have been tried within a year or two years of the allegations arising? Does the fact that these allegations arise at this point of time reflect on the reliability of the complainants? Or does the fact that these charges have arisen at this time suggest recent invention of the complaints, recent fabrication, as it is sometimes called? That is the first thing.
Secondly, make allowance for the fact that memory obviously fades, memories on all sides fade over a period of 20 years and as a result evidence of about certain aspects of the case may be vague and may be unspecific. Thirdly, from the defence point of view the older a charge is the more difficult it may be for the defendant to answer it.
You have become aware during the course of this evidence that both sides have had access to large numbers of documents and files from Social Service departments, from Nugent Care, from hospitals, from doctors and so on, psychiatrists and psychologists and even the Prison Service. Those records have been used extensively during the course of the evidence to try to cast light on the events of many years ago but in the nature of things those records are on occasions incomplete and inconclusive. Where there has been ambiguity, where there has been doubt in relation to those records it has been impossible to resolve such doubt because generally speaking the witnesses responsible for creating those records are untraceable. So bear that in mind.
You may well take the view that in a case of this sort delay is entirely understandable, that in the nature of things people who have been the victims of this sort of abuse, if indeed it happened, store it away for years and it comes out later for some particular reason, the complaint is prompted by something. But even if you believe that the delay is understandable if you think the defendant has been put at a real disadvantage by the fact that these charges come to light in 2001, for trial at least, then you must take that into account when considering whether the prosecution has proved its case in relation to each of these charges."
- There are two main criticisms. The first is that, contrary to the JSB standard direction, the judge made no effort to single out particular instances where the absence of records or witnesses might have prejudiced the appellant. The second is that such good effect as the direction might have had was nullified by that part of the direction which said that the jury might take the view that the delay which had occurred was understandable.
- In relation to the first complaint, the most relevant prejudices which the judge ought to have highlighted were said to be:-
(1) the absence of the register of St Thomas More's home, which might have enabled the appellant to say where he was on particular days;
(2) the absence of hospital records which could have confirmed whether PH had been admitted for an anal injury;
(3) the death of the headmaster of St Thomas More's thus preventing any inquiry whether PH had complained to him;
(4) the death of the matron there who could not confirm whether (as the subsequent psychological report of Helen Roberts of June 2003 had indicated) PD had made a complaint to her.
- As far as written records are concerned, there were as the judge said "large numbers of documents and files" from (among others) hospitals, doctors, Nugent Care and Social Services departments. In this context, the absence of the St Thomas More register was peripheral at best particularly for the help it might give as to the appellant's (rather than the complainants') movements. One incident after which PH was taken to hospital was that alleged in count 14 in relation to which PH said he had been pushed downstairs by the appellant and then buggered at the bottom of the stairs. That was a count of which the appellant was (for whatever reason) acquitted, so it is difficult to see how any gap in hospital records could have prejudiced the appellant as matters have turned out. The absence of relevant hospital records cannot make unassociated counts unsafe. Insofar as PH claimed there were other hospital visits, such visits were not associated with any particular count. Moreover, once judge and jury have a "large number" of contemporary documents, it is difficult for a judge to highlight the absence of a particular record without indicating how a defendant might be affected. In such cases a general warning is adequate.
- Absence of evidence from the headmaster and the matron is equivocal at best. If they had said no complaint had been made, it is difficult to see how the appellant's case could be bettered; if they had said complaints were made that might or might not have affected the complainants' credibility at trial. The jury could have taken the view that, even if the complainants had forgotten that they had made such complaints, the complaints did in fact support the complainants' evidence. One can understand the judge's reluctance to highlight the absence of evidence from the matron or headmaster on this topic.
- Complaint was also made that the direction on delay was tied to the direction on the burden of proof. We think that the judge was justified in dealing with delay in this manner. To the extent that delay results in the absence of evidence (which is the appellant's complaint), that absence of evidence means that a jury will sometimes feel that it cannot be sure that the complainant's evidence is reliable. It is, in this way, an aspect of the need for the jury to be satisfied that the prosecution has made out its case. This is confirmed by R. v Smith (unreported, 20th December 1999, No 99/01664), one of the cases relied on by Mr Jennings in support of his proposition that the judge should direct the jury as to particular reasons why a defendant may have suffered delay in a particular way. In that case Evans LJ said (page 17):-
"The judge's primary concern should be to ensure that the jury pays 'conscientious' regard to the burden and standard of proof . . . The reason is, in our view, that the jury should be reminded that the fact of delay means that the evidence should be scrutinised with particular care, before they can conclude that they are sure that the defendant is guilty of the specific offence or offences charged against him."
and later (page 22):-
"Care must be taken to ensure that the burden of proof is not effectively reversed."
Subject to the second main complaint, we consider that the direction on delay was sufficiently tailored to the facts of the case and was an adequate direction.
- That leaves the complaint that the judge nullified the effect of the direction by inviting the jury to think that the delay was understandable. This is an unfair categorisation of the judge's final paragraph. The jury can hardly have failed to ask themselves why the delay had occurred since the absence of prior complaints figured largely at the trial and it is well known that complaints of abuse do sometimes surface long after the incidents constituting that abuse have occurred. It is not impossible that some members of the jury might think that delay (for whatever reason) is understandable. Any judge would wish to set that understanding in its proper context and that is what Judge Lewis did by saying that, even if the jury believed that the delay was understandable, they should take into account (viz. in the defendant's favour) any real disadvantages into which the defendant had been put by the fact that the charges came to light in 2001,
"when considering whether the prosecution has proved its case in relation to each of those charges".
Read as a whole, this direction does not nullify the delay direction; it expands and amplifies it. Again, one must remember that the appellant was acquitted on a number of counts.
- Non-Disclosure (Ground 9)
In the course of what may be called the Williams-Rigby/Lawson appeal to this court in early 2003,  EWCA Crim 693, a case where the appellants had been members of staff at the SG Residential Community Home near Liverpool between 1976 and 1984, certain documents were disclosed by the Crown which Mr Jennings says should have been available to the defence at the appellant's trial in 2001. The documents do not seem to have played any part in the decision of the court on those appeals; most of the documents deal with the position of Detective Superintendent Robbins who was the senior detective in charge of "Operation Care" investigating cases of alleged child abuse in Merseyside and, after retirement, worked for a firm of solicitors Abney Garsden MacDonald ("AGM") assisting them to co-ordinate claims for civil compensation by victims of alleged abuse, whether brought against local authorities in charge of schools or homes where abuse allegedly took place or made in the form of applications to CICA.
- These documents are said to show that D/S Robbins was aware that complainants in the Operation Care cases had made statements in support of compensation claims and that solicitors exchanged their clients' statements with other solicitors whose clients were also making claims. It is further said that when Mr David Rose, the journalist to whom we referred in item (23) above, put to D/S Robbins that he asked solicitors to advise their clients to postpone making claims for compensation until the conclusion of criminal proceedings, he had agreed that he had done that in order to make the complainants' evidence look more credible in the criminal court and justified his conduct by saying that he was just trying to get a conviction. In the event no application to call Mr Rose to give evidence in respect of this statement was made but we were asked to admit and have now decided to admit in evidence the letter of 25th November 1999 from D/S Robbins to PH's solicitors about his case. In that letter D/S Robbins said that he could not release PH's statement since the police were still investigating his alleged abuse. He said (correctly as it turned out) that the conclusion of the investigation and any prosecution would be months away and added:-
"In any event I always advice caution regarding the commencement of compensation claims as defence lawyers have suggested victims' evidence may be tainted by monetary gain."
In fact PH did make a compensation claim before trial and was cross-examined about it. Disclosure has now been made of other similar letters written to solicitors for complainants and one of 25th February 1999 to a particular complainant (not in the present case) advising him not to begin civil proceedings until he had given evidence in the criminal trial.
- Also disclosed is the fact that in 1997 Mr Garsden of AGM had written to D/S Robbins saying that an exchange of correspondence could "damage the prosecution case" a remark which D/S Robbins said, in a letter to Mr Garsden of 25th November 1997, "will be seized upon". A police policy document and power point slide of 24th August 1998, perhaps intended to be shown to solicitors for complainants, stated:-
"It must be remembered that it has been a consistent defence tactic to allege that victims are motivated to make allegations by potential financial reward. Any investigation should negate this from the outset by ensuring that no discussion takes place on this subject between the investigator and the victim."
Disclosure has also been given by the Crown of a solicitors' attendance note of 3rd December 1998 in which a Mr Peter Cromer of Liverpool Social Services said that he felt it was advantageous in criminal proceedings if witnesses could answer "No" to a question whether they had made a compensation claim. It appears, moreover, that there was a suggestion made by a complainant in the Williams-Rigby trial (but about 3 years after that trial had taken place) that all the complainants in that case were brought into a room and told by a police officer (not suggested to be D/S Robbins) that if the issue of compensation was raised they should say that they had not made a claim.
- In response to the suggestion that the Crown should have disclosed all this material before the appellant's trail and that the defence could have, therefore, been more forcefully placed before the jury than it was, the Crown also disclosed a synopsis of the material held on what was called the "HOLMES indexing system", a computer system created to cope with the numerous claims being investigated by "Operation Care". This showed that PH was the only complainant in the present case to whom or to whose solicitors a letter was sent of any similar nature to those in fact sent by D/S Robbins to Messrs Pictons on 25th November 1999. We have already indicated that the Crown also submitted that we should receive a statement from the Deputy to the Senior Investigating Officer of Operation Care, Detective Sergeant Graham Thomas of 24th November 2004 explaining how he had interrogated the HOLMES Indexing system and also Operation Care civil litigation databases and had elicited that out of 776 letters held on such systems only 9 other letters worded similarly to the letter of 25th November 1999 could be traced; none of the 9 letters referred to any person who was a complainant against the appellant. Mr Jennings did not object to our reading this statement of D/Sgt Thomas, provided that we paid the requisite regard to the new documents which he complained had not been disclosed.
- Mr Jennings then submitted that the combined effect of this material was that the police, complainants' solicitors and employees of social services were advising complainants not to apply for compensation before trial and to deny being interested in compensation since they had not yet made any claim. The material ought to have been disclosed and the defence could then have investigated with complainants and police officers "whether there had been police irregularity in respect of compensation". The result would have been that the appellant's defence would have been more forcefully deployed before the jury.
- We cannot accept these submissions. Of course, police priming of witnesses would be irregular in the highest degree but there is no evidence of that having happened in the present case. The highest that Mr Jennings can legitimately put his argument on the material relevant to this appeal is to say that D/S Robbins perhaps suggested to some complainants' solicitors that any claim for compensation should await the outcome of criminal proceedings. PH (the only complainant in this case to whom the suggestion was made) in fact did make a claim before the criminal proceedings concluded; PD and PV, to whose solicitors no such letters were written, did not but made their claims soon afterwards. JA, the murderer, has never made a claim – not surprisingly. We do not see how the appellant's case could have been materially improved by disclosure of the material now sought to be relied upon.
- We would, however, add that even if the police had generally discouraged complainants' solicitors from instituting civil proceedings before the conclusion of criminal proceedings, we would not consider it irregular for the police to have made the suggestion which they did. A criminal trial is, of course, not an ideal venue to investigate police irregularity at the best of times. The issue for this jury, as they must have been very well aware, was whether the fact that PH had made a claim for compensation and the fact that PD, PV and JA might make such a claim in the future made their evidence unreliable. In relation to those counts on which the appellant was convicted, the jury decided that the evidence of the complainants was reliable and their verdicts followed accordingly.
- It must be remembered that even if the complainants were motivated to give evidence of abuse by the hope or expectation of compensation that does not, of itself, make their evidence untrue or unreliable. It is, of course, a perfectly acceptable tactic on the part of the defence to suggest that a complainant may be motivated by the prospect of compensation and that such motive may make that complainant's evidence unreliable. We cannot see that it is an unacceptable tactic for complainants to defer (or for their solicitors to advise them to defer) making a final decision on whether to claim compensation until after the conclusion of the trial. Whether their evidence is therefore unreliable is just one of the many difficult decisions a jury has to make in a case such as the present. That is what we have juries for. It would not be right for this court to decide that the hope of compensation makes the evidence of a witness suspect and set aside a conviction for any such reason.
- Eliciting "Expert Evidence" from Appellant (Ground 10)
The objection here is that counsel for the Crown at trial (not Mr Riordan QC) asked inappropriate questions of the appellant with a view to establishing the reason for delay on the part of the complainants in making their complaints. In particular the appellant was asked about "the three guilts" which it was suggested might be felt by complainants and deter them from complaining. This would be a matter for evidence from an expert in child abuse, if it were to be placed before a jury at all and the Crown had never proposed to adduce such evidence as part of its case. In these circumstances Mr Riordan accepted before us that such questions should not have been put to the appellant.
- We cannot accept, however, that the convictions are unsafe for this reason. A colleague of the appellant, called on his behalf, gave some evidence of the guilt experienced by the victims of sexual abuse and she had had training in the field of child protection. Although Mr Jennings submitted that she was not technically an expert qualified to give opinion evidence to the jury, it is difficult to imagine any objection to her cross-examination being sustained. In fact no objection was made to the questioning of this colleague (nor indeed to the questioning of the appellant himself). The judge did not refer to this questioning in his summing-up and we do not consider that the appellant was placed in an unfair position in the context of the trial as a whole.
- Cross-examination of Appellant which implied a sexual liaison with one of the witnesses called on his behalf (Ground 11)
The relevant witness was interposed during the appellant's own evidence because she was going on holiday. After the evidence was given, the Crown suggested to the appellant that she had given such evidence because she had had a sexual relationship with the appellant. No such suggestion had been put to the witness while she was giving evidence. Mr Riordan accepts that the cross-examination of the appellant was inappropriate. The appellant strenuously denied the suggestion however; no reference to the suggestion was made in the remainder of the trial. We cannot accept that the convictions are unsafe for this reason.
- We turn, therefore, to the grounds affecting the individual complainants.
- PH: inconsistency between verdicts of conviction on count 4 and verdicts of acquittal on counts 5-8 (Ground 1) and counts 9-15 (Perfected Advice, para. 12)
Count 4 was a specific count of buggery, occurring on PH's bed in a dormitory at St Thomas More's; counts 5-8 were specimen counts of buggery which were alleged to have occurred on many other occasions in the dormitory or in the toilets. On these counts the appellant was acquitted; there were other specimen counts of buggery relating to occasions when one or more other (older) boys were said to be present, laughing, joking and threatening PH; on these counts, the appellant was also acquitted either by the jury at the end of the trial or (in the case of counts 13 and 15) on the direction of the judge.
- It is well accepted that, if inconsistency is alleged, it is for an appellant to show that the verdicts are such that no reasonable jury could arrive at the conclusion reached, see R v Durante 56 Cr. App R 708. This is always difficult and in this case it is impossible. The jury were sure that PH's evidence as to the first act of buggery was reliable; they may well have thought that his evidence of later specimen acts of buggery was exaggerated or too indefinite to be sufficiently reliable for a conviction. In our judgment there is not even a logical inconsistency between the conviction on count 4 and the acquittals on counts 5-15, let alone anything to show that no reasonable jury could have arrived at the decision of this jury. Mr Jennings pointed to various inconsistencies in PH's evidence but that of itself cannot come anywhere near to demonstrating that the verdicts were inconsistent.
- PD: The "fresh evidence of Dugdale" shows that PD had a motive to lie (Ground 2)
Now that we have decided that we ought not to receive the hearsay "evidence" which Dugdale could, in any event, only give by way of written statement, this ground falls away.
- PD: his subsequent application for compensation shows that PD had a further motive to lie (Ground 3)
In evidence PD said that he did not know that he could claim compensation until the appellant's counsel had mentioned it in cross-examination and that he had not done so. We have admitted evidence that he did make such a claim on 13th November 2001. His claim was in fact refused because of his record. PD's solicitors have also confirmed that he intends to sue the Nugent Care Society in respect of his abuse.
- We have already observed that the hope or expectation of compensation does not, of itself, make the evidence of a complainant unreliable. There is no reason why, even if a complainant intends to make a claim, he or she should do so before criminal proceedings are concluded. If a complainant is asked whether he intends to make a claim and says that he did not know that he could claim compensation, it is for the jury to assess whether such answer is or may be truthful and whether, if they think that that evidence is or may be untruthful, that affects the reliability of the evidence of the acts of abuse. Counsel then appearing for the Crown said in his speech that the latter 3 complainants said they had no intention of making any application for compensation and that that was not why they were giving evidence. Counsel then appearing for the defence reminded the jury that there was a potential for a change of heart after the trial as far as compensation was concerned. The jury heard the evidence and the submissions; the fact is that they convicted after such evidence had been given and such submissions were made. That does not mean that the convictions are, in any way, unsafe.
- The other evidence we have received in relation to PD is all peripheral. Although it does appear that PD did not use his account of sexual abuse to curry favour with the authorities before the trial, his parole report of 17th February 2001 does refer to it. Given the obligation of those administering the parole system to understand the background of an offender and his offending in order to assess risk to the public, it is not surprising that the parole report includes that information. This cannot, however, show that his evidence at trial was false or unreliable. It is, no doubt, unfortunate that the matron whom he said in 2003 he had told of his abuse, has died; but that can hardly affect the reliability of his evidence; if the jury had heard defence counsel putting that to PD, they would either have concluded that his telling the matron supported his evidence or that he was inventing the incident when he told Mrs Roberts about it.
- PV: subsequent application for compensation shows a motive to lie (Ground 4)
The only difference between this ground and the previous ground is that PV did not claim to be ignorant of her possibility of compensation but merely stated that she did not intend to claim it. She in fact sent a claim to CICA 17 days after trial on a form which she must have previously received and, in due course, she obtained an award in the sum of £16,500. There is thus no difference of substance between her position and that of PD and this ground of appeal is dismissed for the same reason.
- We decided to admit the evidence of the number of telephone messages left for the appellant by PV at Parkside since it has emerged since the trial that there were more of these than had been originally thought. This fact does not, however, cause us to think that the convictions in relation to PV are unsafe. PV had denied making any calls (Summing-up 36B). It was known that there were in fact some calls and that fact was put to her and referred to by defence counsel in his speech (888F) and the judge in his summing-up (57D and 59E). The fact that it now transpires there were more calls than previously thought is of no consequence. PV was also cross-examined about her straitened financial circumstances, her failure to mention her abuse at earlier stages in 1997 and March 1998 when she made allegations in respect of other individuals and her previous history. All these matters were before the jury; yet they decided she was a witness of truth. The convictions in relation to her are not unsafe.
- JA: his retraction and diary evidence (Grounds 5 and 6)
The convictions in relation to JA are rather different, although we do not consider the diary evidence to be of any consequence. We have already expressed our reservations about admitting the evidence of Mr Rose and Mr Saltrese about JA's retraction of his evidence at trial. We have nevertheless decided that we ought to admit the evidence of that retraction as contained in his signed statement. In most cases this court would expect a victim, who sought to retract evidence which he had given at trial, to come to court and explain why he gave evidence which he now says was untrue. As a prisoner serving a life sentence, an order could be made for his production but the court would have no effective sanction over him, if he were produced and continued to decline to give evidence. This matter was raised before the court on 30th January 2004 when Mr Jennings told the court, without dissent from Ms Loftus, that an approach to JA on behalf of the Crown had been made and that JA had refused to co-operate. Thus the current position is that he has refused to confirm or deny that he retracts his evidence. This parallels the position before trial when, having made an initial statement to the police, he sought to retract it. In the event, however, he did give his evidence to the court. The court is therefore left in a state of complete uncertainty on the vital question whether his evidence at trial was reliable. All that can be said is that JA has had every opportunity to come to court and support the evidence he gave at trial but he has declined to do so. In the peculiar (and, we believe, unprecedented) circumstances of this case, we have decided that we cannot be sure that the appellants' convictions on the counts relating to JA are safe. It follows that those convictions which together carried a sentence of 4 years imprisonment will be quashed.
Since it has never been suggested that any of the complainants have colluded together and since it was never suggested either that the jury could use a conviction on any count in relation to any one complainant as support for convicting the appellant on any count relating to any other complainant, it does not seem to us that the unsafety of the conviction in relation to the counts concerning JA can have any effect on the safety of the convictions in relation to the other complainants. Mr Jenning's argument to contrary effect must be rejected.
- It follows that the appellant's sentence will be reduced from 14 years to 10 years imprisonment. To that extent his appeal is allowed.