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Cite as: [2009] EWCA Crim 1849

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Neutral Citation Number: [2009] EWCA Crim 1849
Case No: 200700601 B4

T991873 / T20000937

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and -

Kenneth Tom MacKreth


M Barlow (instructed by Jordans Solicitors) for the Appellant
A Menary QC & Miss J Reaney (instructed by Merseyside CPS) for the Respondent
Hearing dates : 15th June 2009



Crown Copyright ©

    Lord Justice Rix :

  1. Kenneth MacKreth HREF='#note1'>[1] was 86 years old when he was convicted on 5 July 2000 at the Crown Court at Liverpool before HH Judge Maddison (as he then was) and a jury on twenty-three counts of indecent assault and ten counts of rape. These charges arose out of his conduct as long ago as 1973/1977 as the superintendent or deputy of Derwent House, a Liverpool City Authority resident care home (and observation and assessment centre) for young persons. At the time the ages of the complainants concerned varied between 12 to 16 years old.
  2. Some time after his release from prison following his 5 year sentence, Mr MacKreth submitted an application for leave to appeal against conviction on 15 June 2006. He died a week later, on 22 June 2006, then aged 92. His application asked for an extension of time of 2,359 days, for it was lodged some 6 years and 8 months out of time. His daughter, Mrs Susan Bateman, was appointed the administratrix of his estate. His original application went astray and a fresh set of papers had to be lodged with the court. On 2 May 2007, the single judge refused the application on its merits, but he also refused to extend time for it. His daughter then sought to renew his application to the full court. On 14 June 2007 she was approved by Latham LJ as his personal representative and authorised to proceed with the application. On 3 July 2008 this court, presided over by Hooper LJ, referred the application to the full court and invited his daughter to waive privilege, which she did. The matter now comes before us.
  3. The essential facts

  4. Mr MacKreth at the time he stood trial was a man of good character, and it might be said of positive good character. He had joined the Cheshire Constabulary and was an active member of the Police Federation (he was its secretary in Cheshire). He was secretary of the Police Benevolent Association and involved in other police charities, as well as in his church. He became a detective constable in 1949. In 1954/57 he took a course in criminology at Manchester University. He married his first wife in 1939, by whom he had two children. His wife died in 1952 and he married again. He had two more children.
  5. In 1962 he retired from the police service with a long service and good conduct medal and a certificate of service. He became a housemaster in a boys' remand home. In 1966 he became a housemaster at Red Bank Approved School. In 1969 Red Bank became a mixed institution (for girls as well as boys) and because he was regarded as relating well to the girls he applied at its headmaster's suggestion for a post at Derwent House.
  6. Mr MacKreth went to Derwent House in January 1970, initially as third-in-charge. He was promoted to second-in-charge, and then in 1974 to superintendent. He became the joint honorary secretary of the Association of Home Schools and served on many committees, including the Home Office committees in relation to assessment centres. His second wife lived at Derwent House with him, and was also employed there until his promotion to superintendent in 1974.
  7. In April 1976, however, he was suspended from his duties whilst enquiries were conducted by the police into allegations of offences made against him by six of the nineteen inmates then under his care at Derwent House. The police operation embraced all care establishments within the Merseyside area. He was arrested and charged with indecent assault. There were originally six complainants, but at the committal proceedings the charges relating to three of them were dismissed. In 1977 he stood trial at Liverpool Crown Court in relation to the remaining three complainants. He was acquitted and reinstated to his post. All the documents relating to those complaints and the trial have been lost or destroyed. All that is known is that a Mrs M., who worked at Derwent House, gave evidence for the Crown; and that an inmate, S.M., together with a number of other inmates, gave evidence in his defence. A few uninformative press cuttings about that trial survive. So does a letter of support sent to the editor of the Liverpool Echo by 19 girls, including S.M.. The letter is undated and it is not entirely clear when it was sent. The letter says "AND WE WANT HIM BACK!" and "We hope our appeal helps the people of Liverpool to see how a man has been brought to court and is credited fir [sic] a crime he has not committed, and will be same respected Mr McCreth as before." The letter is typed, as are the names of the "signatories".
  8. In 1978 there were further allegations made against him, and further investigations, but the Director of Public Prosecutions decided against any prosecution. No documents relating to the 1978 episode survive either.
  9. Mr MacKreth retired from Derwent House on 30 June 1978.
  10. In 1996 there were new investigations, as part of an extensive police Operation Care, into allegations of historical abuse against children in various institutions in Merseyside. Mr MacKreth's name was mentioned, almost incidentally, by a complainant who ultimately gave evidence at Mr MacKreth's second trial. That led to a specific investigation into Derwent House, involving the tracing of staff and residents and the "dip sampling" of a number of those traced, a procedure whereby the police made written contact with former staff and residents, inviting them to contribute any relevant information to the enquiry. As a result a number of complaints against him surfaced, from both former residents and former members of staff. In addition, the police were contacted by solicitors in proposed civil proceedings on behalf of two sisters, Ms S.O. and Ms O., who each made statements of complaint as a result of that approach. Mr MacKreth was initially arrested on 8 July 1999 and subsequently re-arrested on 9 February 2000. His trial began on 16 June and ended on 5 July 2000.
  11. There were in all 16 complainants, and the Crown proceeded to trial against Mr MacKreth on the evidence of 11 of that 16. One of the 11 was S.M., who it will be recalled had given evidence for Mr MacKreth at his first trial (and was also a "signatory" to the letter of support). In the event, the Crown did not proceed with her evidence, nor was she required by the defence to be tendered for cross-examination. The allegation in her case had been of a single count of indecent assault in the period from 5 February to 28 April 1976. The judge directed an acquittal in her case.
  12. Mr MacKreth was convicted on 33 out of the remaining 35 counts. The judge also directed an acquittal on two counts of indecent assault in respect of Ms C.: but there were three further counts of indecent assault in respect of Ms C. on which Mr MacKreth was convicted.
  13. The allegations of the ten complainants were variously of indecent assault or rape. Some of the counts were of specific incidents, and some were specimen counts. All ten complainants complained of indecent assault. The ten rapes were of five separate complainants, viz Ms S.O., Ms K., Ms T., Ms Y, and Ms G.. The complainants alleged abuse over a period from November 1972 to August 1977. The assaults allegedly occurred in his office, in the detention room (also called the "secure room" or the "lock-up" or the "padded cell"), in the sick bay, in a small office next to the bathroom, in an outside toilet in the garden, in the television room, on the stairs, or in the basement laundry. The rapes allegedly occurred in the detention room, in the sick bay, in the office, and in the basement laundry.
  14. The complainants at the time of trial were by and large middle aged. Whereas many of them had had a chequered past, four of them were of good character, namely Ms T., Ms Y, Ms C. and Ms G.. Three of these complained of both indecent assaults and rape, whereas Ms C. complained of only indecent assault. 5 of the other 6 had convictions, variously, for offences such as deception, theft, prostitution, burglary, or assault occasioning actual bodily harm. In the case of one complainant, it is not known whether she had previous convictions or not. In general, however, the complainants could be described as at the time of their residence at Derwent House as coming from unsettled backgrounds, as being either in trouble or troubled, and as generally "street-wise". They were inmates of Derwent House because they were either beyond the control of their parents or were the subject of child protection orders, or were awaiting trial for criminal offences. The average length of stay was some six to eight weeks.
  15. Ms T. also implicated another member of the staff, a Mrs M., in her complaints. She said that she had assisted Mr MacKreth to rape her and had abused her herself. A number of complainants said that they had complained to or sought protection from other members of the staff but were ignored by them. As it happens, Mrs M. had been a Crown witness at the 1977 trial. She was not a witness at the 2000 trial because, like some other members of staff, she had been accused of sexual abuse by a number of inmates. Ms T. gave the police an additional statement in which she said that she had been mistaken in naming Mrs M. and had intended to name another member of staff called Mrs MD. However, when she came to give evidence at trial, she reverted to Mrs M. as the woman she named. There was evidence from a number of complainants that Mrs MD had had a one-sided, unrequited, love for Mr MacKreth.
  16. The Crown called Eileen Swift, a former house mother at Derwent House, to give evidence. She said that on one occasion she had seen Mr MacKreth caressing the naked breast of an inmate on the stairs leading to the basement; and that on another occasion Mr MacKreth had asked a 13 year old girl into his office and told her, Mrs Swift, to wait outside. He closed the door, she had waited a considerable time and then entered the office to see Mr MacKreth with his hand up the girl's skirt. He said: "I told you to wait outside".
  17. Mr MacKreth gave evidence at his trial. He denied all the allegations. He said that, apart from the porter, he was the only man at Derwent House. He always left the door of his office open if he was interviewing a girl in it, and in any event no girl went there unless she was accompanied by another girl or girls. He regarded the girls as part of his family and treated them as such; but they were all promiscuous, manipulative and prone to lie. He was therefore vulnerable to false accusations, which he suggested were motivated by a desire for compensation. He did not get on with Mrs M. and she would not hesitate to "blow the whistle" on him. He accepted that Mrs MD was supportive, but not that she was besotted with him. He accepted that not all the records of the home were as well organised as they might have been, but they presented an accurate record of what happened to each inmate. He accepted that the records would not have recorded girls visiting his office and that it would be possible to visit the detention centre without signing the log. He described himself as having a very good memory.
  18. Mr MacKreth called a number of character witnesses, including his son, and also a staff member, Mrs Emma Dunn, who had worked at Derwent House from 1971 to 1974.
  19. The ruling on abuse of process

  20. At the outset of the trial there was an extensive submission, lasting over a day, on behalf of Mr MacKreth that the proceedings should be stayed for abuse of process. The judge was referred to 27 authorities and some 65 pages of written submissions. He reserved his judgment over-night and on 20 June 2008 delivered a 32 page ruling, rejecting the submission. No criticism of the detail of that ruling whatsoever has been made by Mr Barlow, who has appeared on behalf of Mr MacKreth on this application, but was not his counsel at trial. However, Mr Barlow submits that the judge nevertheless came to the wrong result because, he says, the jurisprudence has fundamentally changed since 2000. We will revert to the jurisprudence below.
  21. The judge addressed each of numerous submissions that had been made to him by Mr Ian Goldrein QC on behalf of Mr MacKreth. As the judge said –
  22. "at their heart lies an argument that no fair trial could be held in this case because of delay, and/or because relevant documents are now missing, and/or because the proposed trial could not be conducted without the jury's learning of the 1977 trial and the 1978 investigation…, and/or because the proposed trial is founded on the same or substantially the same facts as those which founded the 1977 trial."

    That last argument is not resurrected, but the previous three remain the kernel of Mr Barlow's first ground of appeal.

  23. The judge variously reasoned as follows:
  24. "To begin with I find it difficult to overlook the fact that it has never in fact been suggested by or on behalf of the defendant that any of the current complainants was a prosecution witness in 1977. For instance, this was never advanced by Mr MacKreth in the course of his lengthy police interviews during which the prosecution assert, with some substance in my view, that Mr MacKreth appeared to retain a good memory for the events of the relevant period…
    The two prosecutions involving different complainants seem to me necessarily to involve different offences and it seems to me that in those circumstances it cannot be said that the current charges are based on the same or substantially the same facts as founded the 1977 prosecution…"

  25. The judge then referred to the question of delay, and the difficulty of investigating fault in circumstances where the documents from 1976 and 1978 had been lost, and continued –
  26. "That is not to say that there is no material available to the defence to aid such cross-examination. It is clear, for example, that the witness S.M. was a defence witness at the 1977 trial and that the witness Ms K. read about the 1977 trial in a newspaper. These matters can certainly be raised with them in relation to the question as to why they should [not] have complained far earlier than they did…in any event the Attorney-General's Reference (No 1 of 1990) makes it clear that even if the delay can be said to be unjustifiable, and even if there has been fault on the part of the complainant or the prosecution, it is still only in an exceptional case that a stay should be imposed."

  27. The judge then turned to the argument that Mr MacKreth would be prejudiced, on the "no smoke without fire" basis, by being obliged to reveal the background of the 1977 first trial and the 1978 investigation. The judge acknowledged that S.M. could not be cross-examined on the basis that she had been a defence witness in 1977, or Ms K. on the basis that she had read about the 1977 trial at the time, without reference to the earlier trial: however, he was not sure that the jury would have to hear about the 1978 investigation, or at least not as something which necessarily involved Mr MacKreth. In any event –
  28. "the prejudice, if any, arising out of the evidence of the 1977 trial, and if it comes into play the 1978 investigation, would be small. After all, the trial did result in an acquittal and the 1978 investigation did result in a decision not to prosecute. Moreover I would certainly direct the jury in strong terms not to hold any such matters against the defendant…I do not consider that the proposed trial would become unfair were the jury to learn of the 1977 trial or the 1978 investigation or both."

  29. The judge later addressed another alleged cause of prejudice, namely the absence of a full set of social services files in relation to each of the complainants, and generally the complaint of missing documentation. He accepted the possibility that fuller documentation, for example the missing detention room log of Derwent House itself, may have provided ammunition for cross-examination, but the argument was essentially speculative. The Derwent House records were not always properly maintained. In any event –
  30. "there does in fact remain a good deal of documentation, even though the set is not complete. In relation to Derwent House I was provided during the course of the oral argument with practically a full lever arch file of documents recently recovered from the Department of Health in London. There are also the documents listed by the witness Andrew Copp…The documents that do remain and have been disclosed it seems to me do undoubtedly give the defence material for cross-examination."

    and the judge went on to list the various social services' files available. He also said that "ultimately this case will turn principally on oral evidence", and that (as he had already remarked) "Mr MacKreth retains a pretty good recollection and it has not been suggested that because of the delay the defence have been unable to adduce oral evidence that they would but for the delay been able to adduce." Moreover the burden of proof was on the prosecution, and the issues were straightforward. As for the disputed characters of the complainants, that was for the jury to consider.

  31. Finally, the judge considered "the cumulative effect of all of the arguments", as well as all the authorities with which he had been pressed. Each case, however, turned on its own facts. His conclusion was that a stay should not be granted.
  32. The judge's summing up

  33. No criticism has been made by Mr Barlow of the judge's summing up. On the contrary, Mr Barlow has accepted, as he did of the judge's ruling in the light of the jurisprudence at that time, that it could not be faulted.
  34. Thus, the judge gave to the jury a strong direction that they could derive support from the similar allegations from the various complainants only if they were sure that they were making their allegations independently of one another. If the witnesses had "got their heads together", their evidence would be worthless. The jury were assisted as to the timing of the complainants' stays at Derwent House, so that to the extent that there was any overlapping at that time, the jury knew of it. Moreover, the jury were reminded that Ms S.O. and Ms O. were sisters and that, although they had each been at Derwent House several years apart from one another, they had since been in contact at various stages. The judge also directed the jury that not all the complainants' stories were sufficiently alike one another's so as to give them mutual support: only sub-groups within the total were in that position.
  35. The judge next gave the jury a comprehensive direction about "the question of missing documents". In order to put Mr Barlow's generic submission about the absence of documents in context, it is convenient and necessary to set out what the judge said about this topic, in a passage which draws so many of the threads of it together:
  36. "One feature of the delay is that the documents which were once in existence, and which might have assisted the defence in preparing and presenting the case, have now been lost or destroyed. This is not a case in which you have rightly been told that no documents at all are left. Mr Copp, and Mr MacKreth himself, gave evidence about documents still available.
    There are documents recording the admission of girls to Derwent House from 1960 to 1977. There are some medical, disciplinary and clothing records relating to Derwent House. A file of documents relating to the same establishment was recovered from the Department of Health.
    …There are social services records in relation to the witnesses Links, Ms S.O. and Ms K.. There are incomplete social services records for the witnesses ME, W, Ms T. and Ms O.. There are social services records not for Ms Y but for her twin sister G, but there are no social services records at all for the witnesses Ms C. and Ms G..
    There are medical records for all ten of the complainants. These are medical records kept by the Health Service rather than by Derwent House…But…it is right that you should have regard to the documents that are no longer available…
    In relation to Derwent House, documents no longer available include the detailed log relating to the punishment or detention room, which would have recorded who was in there and when, and what visits or inspections were made in relation to them. Also missing is the daily log, which would have contained a record of all visits to and significant events in Derwent House.[2]
    We have heard that incident sheets are no longer available, which would have recorded any incident within Derwent House. There was also a control book recording sanctions imposed on the girls, which is no longer available, and neither are there now available any of the individual case files on the girls which would have recorded in full matters relating to such things as discipline, clothing, belongings, activities, recreation and insurance. Neither is the medical register of Derwent House itself any longer available.
    Mr Copp was prepared to accept that records in relation to the punishment and detention room were kept as they should be. Indeed, you will recall that in the course of his address to you Mr Goldrein read to you a passage from a contemporaneous document which indicated that those records were properly kept. In general terms, said Mr Copp, record-keeping in the 1970s was far inferior to record-keeping today.
    Mr MacKreth, when cross-examined, accepted that not all of the records were as well organised as they might have been, but he said that they did represent an accurate record of what happened to each girl in Derwent House and, members of the jury, that is something that you should have well in mind. Mr MacKreth also accepted, when cross-examined, that obviously the documents would not have recorded girls visiting his room, his office. He also accepted that it would be possible to go to the padded cell and not sign the log.
    What you should have well in mind is that the documents which are no longer available may have enabled the defence to challenge the character, reliability and credibility of the complainants in ways not open now to the defence.
    Indeed, they may have enabled the defendant to support various aspects of his case. For example, the documents may have established when girls were or were not in the detention room, the sickbay, or both, for how long they were there, who visited or inspected them there and when, which of the girls had been sexually promiscuous or had had venereal diseases or both, what decisions were taken about the girls at conferences, what decisions were taken about weekend leave.
    The documents which are no longer available may have helped to establish that girls who said they complained did not, or that they complained in terms inconsistent with their present evidence. They may have helped to establish that girls who did not complain could easily have done so. They may have helped the defendant to establish on what days or times he was on duty, where in Derwent House he was or was not at particular times and particular days.
    Members of the jury, the documents may have helped the defendant to refresh his memory about conditions and procedures at Derwent House generally, and in relation to the complainants in particular. They may have helped him with other aspects of the case. Members of the jury, you must have well in mind, when considering whether or not the prosecution have proved their case, the various points I have now made to you about the delay in general terms and about the absence of documents specifically."

    The two grounds of appeal

  37. On behalf of Mr MacKreth two grounds of appeal are now advanced. The first is based on delay and the absence of documents. It is submitted that the combination of these factors ought to have led the judge, or rather ought to lead this court now, to accede to a submission that the prosecution ought to have been stayed as an abuse of process. It is not said that the judge erred according to the jurisprudence of the time of trial in 2000, but it is submitted that since then the jurisprudence has undergone a fundamental change, such that it should now be recognised that Mr MacKreth could not have had a fair trial, but suffered from irremediable prejudice such as to render his convictions unsafe. In particular, Mr Barlow identifies the loss of all records of the 1976 investigation, the 1977 trial, and the 1978 further investigation which ended in the decision of the DPP not to prosecute, as well as the loss of Derwent House's records of the detention room and the sick bay, as being critical.
  38. The second ground of appeal relates to the question of compensation for the complainants. It is submitted that the motivation for the complainants of obtaining compensation, either from the Criminal Injuries Compensation Authority ("CICA") or in the form of damages in a civil action against the Liverpool local authority which managed Derwent House, was hidden from the jury: by a mixture of lies by the witnesses, or the coaching of those witnesses by the police, or lack of proper disclosure by the Crown. It is submitted that these matters again render the convictions unsafe.
  39. The first ground of appeal: the jurisprudence

  40. In his ruling the judge said that he had considered all the 27 cases which had been cited to him, and he referred expressly to a number of them. Amongst them was one which he said was "agreed to be the leading authority", namely Attorney-General's Reference (No 1 of 1990) [1992] QB 630, 95 CAR 296. The judge expressed the principles he derived from that case and the cases as a whole in the following terms:
  41. "Firstly, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of the process of the Court and should therefore be stayed.
    Secondly, stays of proceedings in such circumstances should be the exception rather than the rule, and where the application for a stay is based on delay – as in this case it substantially though not entirely is – a stay should be an exception rather than the rule even if the stay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. No stay should be imposed unless the defendant shows, on the balance of probabilities, that because of the delay he will suffer serious prejudice to the extent that no fair trial can be held.
    The proposition of law that I have just summarised as proposition number two is taken almost verbatim from what is agreed to be the leading authority, namely the Attorney-General's Reference (No 1 of1990)
    The third proposition of law that seems to me to arise from the authorities is that the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about the delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence…
    The fourth relevant proposition of law, as it seems to me, is that the judge may also take into account the extent to which a prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment will be stayed…
    Fifthly, where delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints about sexual abuse…
    The sixth proposition of law which I think can be distilled from the authorities is that as long as long as a fair trial can be held, it is in the public interest that cases such as this should be tried. The seventh proposition of law is that a judge may stay the whole indictment or individual counts of an indictment, though in this case, I have specifically enquired of both sides, both sides do in fact urge an all or nothing approach…"

  42. That these are still the dominant principles of the common law in relation to an application for a stay on the ground of delay is at any rate suggested by the recitation of such principles at Archbold, 2009, at para 4-66, citing Attorney-General's Reference (No 1 of 1990 ), subject only to this: R v. S (2006) 170 JP 234 (a case not cited by Mr Barlow), while restating the principles of Attorney-General's Reference (No 1 of 1990), doubted whether today it would be expressed in terms of a burden on the defendant to show on the balance of probabilities that no fair trial could be held. It is rather a matter of assessment dependent on judgment than a conclusion of fact based on evidence (Archbold at para 4-51). That, however, is merely saying that a burden of persuasion, rather than a burden of proof, rests on the defendant.
  43. Nevertheless, Mr Barlow has submitted that there has been a fundamental change. In his Advice and skeleton argument he relied principally on (i) two cases of 2000, one of which had been decided by the time of the judge's ruling (but was not cited to the judge) and the other of which had been decided after the ruling, namely R v. Turner (27 March 2000) and R v. O'Dell (10 November 2000); and (ii) two cases of 2003, which he submits reflect a sea-change in the approach to such cases of alleged historic abuse, namely R v. B (Brian S) [2003] EWCA Crim 319, [2003] 2 Cr App R 13 and R v. Maybery [2003] EWCA Crim 782. In his oral submissions he identified (iii) R v. Sheikh [2006] EWCA Crim 2625 and R v. Joynson [2008] EWCA Crim 3049 as the cases which, of all the post-ruling authorities, best express the modern developed principles upon which he relies.
  44. We take those six cases in chronological order, while observing that only B is a reported case. Turner concerned a trial in 1999 of abuse which was alleged to have gone back to 1975/78 in the case of one complainant, D, and to 1984/86 in the case of the other complainant, C. C's complaints had originally surfaced more or less contemporaneously, in 1985/86, but they resulted only in a single count of indecent assault: no evidence was offered, however, and B was discharged. All files arising out of the complaints had been routinely destroyed. Those complaints resurfaced in 1997 and D then came forward to complain as well. Both complainants were the defendant's nieces. C's complaints included rape and her recollection was that she had told the police back in 1985/6 that D was complaining of rape too. So the two complainants were linked. There was an obvious question-mark as to why C's and D's complaints came forward in 1997. The reason was because the appellant's own daughter had then made allegations of indecent assault before withdrawing them. That may have been somehow connected with the appellant's threat to kill his wife. This was therefore an area which the defendant could not possibly explore at trial. Henry LJ said:
  45. "19. It is difficult to reconcile C's evidence of what she complained of to the police in 1985-86 with what we know. We know that the appellant was charged with one offence of indecent assault, and that was withdrawn on 12th August 1986. This suggests either that she did not then complain to the police of any of those other matters, or she did and they did not believe her. The documents would have made this clear, and the police have destroyed those documents. This does not seem to result in a neutral "we must do our best with the remaining evidence" conclusion, but to raise the twin possibilities both of serious prejudice to the defence, and positive benefit to the prosecution…

    34…the 1985 and 1986 documents lie at the heart of the questions of credibility on which this case turns…and their absence leaves, in our judgment, an unacceptable question mark over the safety of these convictions. That was something that no direction of law or control over the evidence could rectify."

  46. O'Dell concerned allegations of sexual abuse, deriving from 1972/1977, against a defendant who had then been a young residential care assistant in a children's home. There were six complainants at the 1999 trial, five men and one woman who as children had been resident in the home. Three of these complainants had complained to their parents and to staff at the home back in 1976: the defendant had been arrested and interviewed, and the DPP had decided not to prosecute. In particular, complainant A at trial had been a complainant in 1976; indeed the 1999 trial stemmed from his renewed complaint. The jury only convicted in respect of three complainants, of whom two (not complainant A) had made complaints in 1976. The summing-up was commended by this court as a model of fairness. However, not only had all papers from the 1976 investigation been lost, but the local authority's files were also unavailable and the defendant had difficulty in tracing witnesses. This court, in the judgment of Laws LJ, concluded that the defendant had been caused such prejudice as to make a fair trial impossible and to render the convictions unsafe. The judgment referred to Attorney General's Reference No 1 of 1990, but also Turner. It underlined, both at its beginning and its end, that the court's decision was "wholly dependent on the special facts…All these features we emphasise again make this case a special one".
  47. B was concerned with a single complainant, a step-daughter, and allegations about abuse from 30 years and more before trial, when she was 7 to11 years old. She had made allegations to psychiatrists in the 1980s. There was no independent evidence to support the complainant. A short ruling was given by the trial judge refusing an application to stay for abuse of process. Lord Woolf LCJ referred to Attorney General's Reference No 1 of 1990 as the "most important authority" (at para 13). He referred to the Criminal Justice and Public Order Act 1994 which had repealed the former need for corroboration in sexual cases, but emphasised that the courts were not to seek to go behind the decision of Parliament. In the end, however, the court considered that the defendant "was put in an impossible position to defend himself", for he was wholly unable to conduct any proper cross-examination, and had no material which he could put to the complainant. It was simply "one of those residual cases where in the interests of justice we must set aside the conviction" (para 29). Lord Woolf expressed the general concerns of the law in these terms:
  48. "27. However, there remains in this Court a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand. This is so even where the trial process itself cannot be faulted. It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious we are not only involved in deciding where justice lies for the appellant. We must do justice to the prosecution, whose task is to see that the guilty are brought to justice. We must also do justice to the victim…But we also have to do justice to the appellant."

  49. In Maybery the defendant had been convicted of indecent assaults on young boys in an approved school. The trial took place in 2002 in respect of allegations which concerned events between 1967 and 1973, over 30 years before. There were four complainants. The appeal did not concern abuse of process, but grounds which related to criticisms of the summing up. Those grounds bore fruit and the appeal was allowed. A further ground relating to the trial judge's decision not to accede to a stay for abuse of process had been refused by the single judge and renewed to the full court. However, this court, in the judgment of Latham LJ, briefly stated that the single judge had been correct to refuse leave to appeal: despite submissions that records relating to the school and witnesses were unavailable, this court was not prepared to go behind the trial judge's exercise of his discretion and his view that with appropriate warnings the defendant could have a fair trial (at paras 4/5). Mr Barlow does not rely on this case for that conclusion, but rather for the general remarks which Latham LJ addressed about the problems of allegations of historic abuse. Latham LJ said this (at para 3):
  50. "There is no doubt that much concern has been expressed about the ability of the courts to deal fairly with allegations which are of such antiquity. The Home Office Affairs Committee has produced a report in which it identifies a number of features which cause concern and those are features which have caused concern to the courts over the years and have been the subject matter of directions to the jury to seek to obviate the particular difficulties which old offences such as these create. The particular problems which were identified by the Home Affairs Committee, quite apart from the problems caused by delay itself, relate to the fact that in many cases the evidence is produced by trawling for witnesses which carries with it the risk of instilling into those who are providing the information, in effect, the indication that certain answers may be expected by those who are making the enquiries. The fact is it is not easy to be able to make a proper inquiry into the way in which the evidence has ultimately emerged in a way which enables a court to evaluate the quality of the evidence satisfactorily. There are also problems which emerge as a result of the fact that in many such cases a number of such allegations are tried together with the the inevitable consequence that there is the prejudice to the defendant of what may appear to be the coincidence of a number of similar allegations. Those particular problems the courts, as we have already indicated, are familiar with and have developed techniques to deal with. The three sets of control mechanisms are: first, by controlling the number of allegations which can properly be included in an indictment – in other words by exercising the power to sever; the second sanction, if there is nevertheless such unfairness that a fair trial cannot take place the court can of course stay the proceedings as an abuse of process; the third is by ensuring that the jury is directed adequately as to the way in which a defendant may be prejudiced generally, and how he may be prejudiced in relation to particular allegations, ensuring that the defendant's case in respect of individual allegations is adequately presented to the jury. This requires a judge to be scrupulous about putting the defendant's case in his summing up."

  51. Sheikh involved a trial in 2005 about abuse which was alleged to have occurred in 1980, when the defendant was a housemaster at a children's community home. There were two complainants, and the counts alleged a specific incident which separately involved each of the complainants when they were boys. Because of their similarities, however, the judge tied convictions on one to convictions on the other. It was common ground therefore on appeal that if the convictions concerning the incident involving complainant MG were unsafe, then all the convictions were unsafe. There had been a first trial in 2002, but, as a result of the later discovery as to the limited period in which the appellant had worked at the school, the convictions on the first trial were quashed. There was an application to the judge at the second trial to stay the prosecution as an abuse of process on the ground that crucial documentation from the school was missing, in particular the staff rota and personnel records which would disclose whether the appellant had been on duty at the time of the specific incident of which MG complained. The context was that MG and the appellant overlapped at the school for only the single month of August 1980, the incident could only have occurred on 29 or 30 August 1980, there were particular circumstances regarding the termination of the appellant's employment which gave rise to the real possibility that he was on leave on those critical days, and it could be demonstrated from other surviving documents that the missing documents would have been likely to bear directly on the question of the appellant's presence or absence (see at para 46). In those very specific circumstances this court, in the judgment of Hooper LJ, considered that the judge could not properly have concluded that the trial was fair (at para 47). There was no discussion of authority, save for a reference to S.
  52. Finally, Joynson concerned 5 complainants and a defendant who had been house master at a special needs boarding school from 1969/1972, some 35/38 years before the 2007 trial. There was a ruling on an application to stay for abuse of process. The trial judge referred to what Lord Judge CJ described as "the general principles in this area which are well known" (at para 29). Particular features of the case were that the headmaster at the school, Eagles, had himself been convicted of abusing boys at a trial in 1999 and that was relevant to the defence that any abuse at the school was not his responsibility; it was an agreed fact that the mother of one of the complainants, PF, had told the police that her son had complained as a boy about Eagles, whereas PF himself said that was not so; there were no extant records from the school except for a register which had turned up in Eagles' home when the police had investigated his activities; there was evidence from one of the complainants about the defendant's comments about another boy, DC, who it could be established from the surviving register had not come to the school until after the defendant said he had left, but in the absence of the school's other records the defendant could not establish other than by his evidence when he had left; and there were other respects in which the absence of records prejudiced the defendant's ability to meet one or other of the complainants' evidence. Toulson LJ said –
  53. "30. This was a very difficult case. It was tried by an experienced judge who considered it with care. The question for this court – and the only question for this court – is whether the convictions are safe. In our judgment there are particular features of this case which, taken together, caused real prejudice to the appellant. We have identified the principal features. The first is the delay. The courts have sadly become familiar with sex abuse cases going back many years, but, as the judge recognised, the period of delay in this case was by any standards exceptional…
    31. Having identified in summary the nature of the significant prejudice in this case, we must consider whether the case was so strong and/or whether there were sufficient safeguards that the convictions may nevertheless be regarded as safe, despite such prejudice…For example, if contemporaneous documents had shown that as a schoolboy PF complained about Eagles, not the appellant, and that his evidence about the appellant's references to DC were an instance of his memory playing him false, the case would inevitably have appeared less strong than otherwise…
    33. In relation to PF, the defence…had available to it the contradiction between PF and his mother. It also had the evidence of the appellant himself that he had left the school before DC arrived. In relation to those issues the jury was left with the word of one witness against another. They lacked contemporaneous evidence which would have settled those points…
    35. The court is always slow to allow an appeal against a conviction where the case has been handled with care by an experienced judge and the jury has reached its conclusions of fact after hearing all the witnesses. Nevertheless, we must stand back from the case and ask ourselves whether we regard the convictions as safe…[W]e are troubled by the very great delay and its particular consequences in the context of specific allegations in this case. We have reached the conclusion that we cannot regard these convictions as safe."

  54. We would make the following observations about these six cases. (1) There is no sign that the relevant principles, those of Attorney General's Reference No 1 of 1990, have changed. On the contrary, in the most recent of those cases, Joynson, Lord Judge referred to the trial judge as having applied the "general principles in this area which are well known". And in Maybery Latham LJ said that the techniques (or "control mechanisms") which the law had developed to deal with the problems of historic allegations were familiar "over the years". (2) Principles have not changed, but the courts have for some considerable time, going back at least to 2000 as Turner and O'Dell demonstrate, been astute to pay real and not mere lip service to a concern to do justice in such cases. (3) These six cases have on the whole been sparing of citation of authority: they all emphasise how much they each turn on their own special facts. (4) The special feature in Turner was that one of the two complainants had been a complainant in the earlier prosecution (and, because of the linkage between the two complainants, the question mark over her evidence contaminated the evidence of the second complainant). Thus the complaints could not be examined without access to the papers of the earlier investigations and prosecution. (5) The same point, of complainants at trial having been complainants in the earlier proceedings whose papers had been lost, arose in O'Dell. (6) B turned on a "residual discretion", and a single complainant whose evidence in all the circumstances of that case was clearly regarded as not safely surmounting the dangers of huge delay and the prejudice of the all but total absence of any documentary material. (7) In Maybery the attempt to challenge the abuse ruling failed to get off the ground. (8) In Sheikh the critical factor was that the Crown's case could be boiled down to a narrow issue on which there was evidence (albeit only from the defendant) that he could not have been involved because he was on leave and where evidence from the (missing) contemporaneous documentation would have been decisive. (9) In Joynson the position was somewhat more complicated, but in essence the same: there were real conflicts of evidence on which the missing contemporaneous evidence would have been decisive. (10) In our judgment, these specific examples indicate the possible significance of missing documentation: but they do not justify Mr Barlow's broader submissions to the effect that mere speculation about what missing documentation might show necessitates the staying of such trials or the conclusion on appeal that convictions must be recognised as unsafe. (11) Mr Barlow's submission was that the high-water mark of the new jurisprudence was to be found in Sheikh and Joynson, but on investigation it appeared, and Mr Barlow accepted, that those cases turned on their particular facts and that there was no discussion of new principle or new jurisprudence in them.
  55. It is therefore necessary to bring Mr Barlow's submissions home to the particular facts of this case, and it is to these that we turn.
  56. The first ground of appeal: delay and prejudice

  57. An essential question is whether delay and/or loss of documents created such prejudice for Mr MacKreth as to make his trial unfair. Mr Barlow submitted that the missing documents from 1976 to 1978 made the trial unfair, but he was unable to put any flesh on that submission other than to suggest the danger of contamination of the later complainants by their having learned of the earlier proceedings or investigations. It had been submitted to the trial judge that the 1977 trial and the 2000 trial concerned the same allegations: but that submission was rejected by the judge and has not been resurrected. All complainants at the 2000 trial, when asked by the police, had denied any involvement in any earlier investigation. Mr MacKreth never suggested that any complainant had been involved in the earlier proceedings.
  58. There were at most three slight links with the earlier matters. One of the complainants who came forward in Operation Care and had been scheduled to give evidence at trial was S.M., who had given evidence for the defence in 1977 and was one of the "signatories" of the letter of support sent to the press at that time. However, the prosecution chose not to call her (leading to a directed acquittal on the single count relevant to her), specifically so as to allow the defence a free choice as to whether or not to raise with the jury the significance of his earlier trial and acquittal. The defence could have required S.M. to be tendered for cross-examination but chose not to do so. The second link was that Ms K. had told the police that she had been aware of the publicity surrounding the 1977 trial (and to having been minded to confront Mr MacKreth at that time, before changing her mind). A third link was that Ms S.O. had been resident at Derwent House for a brief period when the 1976 allegations came to light and Mr MacKreth was suspended (April 1976). All the other allegations in the 2000 trial originated from a period (November 1972 to September 1975) which preceded that time. The register of the school had survived, so that the period of residency of each girl could be established.
  59. Those representing Mr MacKreth had to decide, with him, whether to explore the earlier trial and investigations of 1976 to 1978. The submission to the judge at the time of his ruling was that it was impossible for the defence to expose those events, on the basis of "no smoke without fire". Therefore, it was argued then and again on this application that it was impossible to explore with the complainants or to challenge them as to their involvement in or contamination by those events. That, however, was a matter for the defence. Neither the prosecution nor the judge placed any impediment in way of the defence's choice, as it happened, to leave those events unmentioned. On the other hand, if the defence had wanted to, it could have explored in a voire dire before the judge, and in the absence of the jury, any aspect of those events which might have concerned any of the complainants. The defence could have done so in order either to discover that there was in truth such ammunition for the defence in those past events as to make it worth while to expose this material to the jury, or to demonstrate to the judge that there was real prejudice in the lack of the 1976/1978 documents. It was, however, plainly the defence's calculation that there was no mileage in such a process. It was open to the defence to calculate that the earlier events did Mr MacKreth no undue harm and thus to expose them, but, if the view was that its exposure represented unacceptable dangers, then the fact that it remained completely hidden from the jury can hardly be accounted for as prejudice. Nothing which this application has revealed suggests to us that the judge was mistaken in the view, expressed in his ruling, that the trial would not become unfair were the jury to learn of the 1977 trial or the 1978 investigation.
  60. That is consistent with all that developed at the trial itself. The complainants' witness statements and oral evidence and cross-examination revealed that only three girls had previously attempted to complain about Mr MacKreth's behaviour, each of them to members of the home's staff at the time, and at no time subsequently until Operation Care brought their complaints to light. Nothing in any of the documentation suggested otherwise. Each of the complainants gave evidence as to whether she knew any other complainant. The evidence demonstrated that each, save arguably for the sisters Ms S.O. and Ms O., had complained independently. As for the three complainants who said that they had complained while at Derwent House, each gave her own account of not having been believed or advised to stay quiet. Moreover, there was documentary material available to enable each complainant to be cross-examined both as to their behaviour as teenagers and as to their subsequent dealings with the law.
  61. It is important to emphasise the extent to which documentation had survived. The judge referred to this in his ruling (see at para 23 above). We are satisfied that at least the following documentation was available: (i) the register of residents at Derwent House, to which we have already referred, from which it was possible to state with accuracy when each of the complainants had resided there; (ii) the GP records of each of the complainants, including the period when each was resident at Derwent House; (iii) contemporaneous social records of nearly all the complainants; (iv) further records from Derwent House or the local authority which included records of visits, and of staff (but which did not include the detention room record book, see below); (v) records from the Department of Health in London (which suggested that the record system of Derwent House had always been chaotic); and (vi) relevant material coming from Operation Care relating for instance to the responses from all staff members and former residents contacted via the "dip sampling" procedure used (but which has been criticised as having been incomplete with relation to compensation issues, see under the second ground of appeal below).
  62. Detective Superintendent Robbins who was in charge of Operation Care gave evidence as to the conduct of the enquiry, and of how each complainant was contacted. This, together with the disclosure of relevant unused material as to that Operation, including statements containing allegations against others and the responses of those others in interview, was the most relevant evidence as to the possibility of collusion or contamination; and the judge gave a most careful direction in this respect.
  63. Complaint is made that the detention room record book was not available. Mr Barlow submitted that this might have thrown up material with which to cross-examine those complainants who gave evidence of having been abused when in that room. If, for instance, the book had shown that a particular complainant had not been there for as long as she said she had been, or at all, her credibility could have been challenged. However, none of the witnesses could give specific dates, and the records would not necessarily have been reliable. In this connection Mr Barlow's submission became at its highest that the mere absence of documents which, speculatively, might have thrown up material for cross-examination, rendered a trial unfair, at any rate in the context of historic allegations of abuse. In our judgment, however, this submission goes much further than the jurisprudence: which, as in cases such as Sheikh and Joynson, highlights the importance of missing documentation being specifically linked to real issues.
  64. Mr MacKreth lived on the premises, he could come and go as he pleased, and it would have been most unlikely that any improper visits to the detention room would have been recorded.
  65. Mr Barlow's speculative submissions can be illustrated by the following example. Following Mr MacKreth's death a Derwent House log book, known as the Day Book, turned up among his papers and was delivered to Mr Barlow as late as March 2009. This log appears to have recorded comings and goings and incidents at the home. It covered the period from 1953 to 8 March 1973. It was not formally produced before us as further evidence, but simply relied on. The precise details of its discovery and production are not known, nor is it known what other records of Derwent House Mr MacKreth might have retained as mementoes. Mr Barlow referred to certain entries of absconding girls being placed in detention. He submitted that it was important to note that it made no mention of detention in the case of Ms O., who had been resident at Derwent House, she said, for 21 days. It was known that she had arrived on 8 November 1972. The Day Book, however, showed that she had been there only until 17 November, some 10 days. Her evidence was that while she was in residence she had been put in the detention room for three days and nights, and while there had been repeatedly abused by Mr MacKreth. Mr Barlow pointed out that the Day Book made no mention of her detention. However, its merely sporadic mention of detention in the case of a few other girls appears to have been linked each time to their return from absconding. There appears to have been no attempt to replicate the separate detention room log. More importantly, however, it seems clear that Mr MacKreth had consulted this Day Book for the purposes of his trial, but without as it would seem, disclosing it to his legal team. Certainly the prosecution knew nothing about it. We know that Mr MacKreth consulted this Day Book because we have his copy of a schedule used at his 2000 trial, listing all the counts and their essential details. Against the name of Ms O. and the four counts relevant to her, Mr MacKreth has written in his own hand "See Log Book 8/11/72 to 17/11/72 – 10 days". However, Ms O. was not cross-examined to that effect. It is disorienting to Mr Barlow's submissions about missing Derwent House records to find that at his trial Mr MacKreth was consulting such records which he had retained in his own possession, but without disclosing them to his own legal team.
  66. Mr Barlow submitted that the absence of full records from Derwent House prejudiced Mr MacKreth's ability to deal with the evidence of the three complainants who said that they had turned for protection and support to members of the staff, but without success. However, in such circumstances it is most unlikely that any record would have been made of such complaints, so that the absence of record would not be material. In this connection it is in our judgment more significant that neither at trial nor on appeal was it submitted for Mr MacKreth that he had been prejudiced either by delay or any lack of records because of any inability to trace, interview and if appropriate call as witnesses members of the staff or former residents in support of Mr MacKreth's denials, including his denials of the general atmosphere at Derwent House of which the complainants spoke. As it is Mr MacKreth did call a certain number of defence witnesses, including his son, who had lived in the family quarters at Derwent House, and Mrs Emma Dunn, who had worked there between 1971 and 1974 and spoke well of Mr MacKreth as being like a father to the girls.
  67. In sum, we have no reason to doubt the wisdom of the judge's lengthy and detailed ruling, which, as we have already said, like his summing up, has received no criticism at all from Mr Barlow. The judge was necessarily much closer than this court can be to the documents and detailed issues of the case at trial. He had to exercise his judgment as to whether Mr MacKreth suffered such prejudice by reason of the delay or missing documents or otherwise as would render it unfair to try him. Subject to the second ground of appeal to which we turn next, we have found nothing in Mr Barlow's submissions to make us think that he erred in that judgment, or that Mr MacKreth's convictions were unsafe.
  68. The second ground of appeal: compensation and non-disclosure

  69. The second ground of appeal relates to the danger that the complainants were motivated by the lure of compensation to such an extent that they gave perjured evidence, and to the complaint that non-disclosure by the prosecution withheld from the jury a proper appreciation of that danger. In this connection the prosecution has now in the context of this appeal provided further disclosure to those conducting this application on behalf of Mr MacKreth. It is said, however, that such disclosure is still incomplete. It is known, however, that the majority of complainants at least subsequent to trial have made compensation claims, either to CICA, or in the courts, and some have made both.
  70. In R v. Sutton [2005] EWCA Crim 190 the ninth ground of appeal (see paras 62/69) concerned a similar complaint of non-disclosure. That appeal also arose out of convictions obtained as a result of Operation Care, albeit it concerned a different Liverpool home. It emerged in that appeal that Detective Superintendent Robbins had written on 25 November 1999 to the solicitors of a complainant in that case:
  71. "In any event I always advise caution regarding the commencement of compensation claims as defence lawyers have suggested victims' evidence may be tainted by monetary gain."

  72. The submission in that appeal and the answer of this court are contained in the following passage:
  73. "66. 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 a 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.

    67. 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 present 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…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.

    68. 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…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 [others] might make such a claim in the future made their evidence unreliable…

    69. 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 for compensation makes the evidence of a witness suspect and set aside a conviction for any such reason."

  74. That is perhaps an unpromising background against which Mr Barlow makes his submissions under this second ground in the present case. Nevertheless, he relies here on the following.
  75. First, since Mr MacKreth's conviction, 8 of the 10 complainants have made claims against Liverpool City Council; and 2 of the complainants have made claims to CICA. Secondly, Mr Barlow submits that disclosure has now revealed that four complainants, Ms S.O., Ms O., Ms K. and Ms C., had made claims before trial, and that that was unknown at the time of trial. Thirdly, he submits that Ms S.O. and her sister Ms O. had lied to the jury about not having made claims. Fourthly, he submits that DS Robbins lied to the jury, or at any rate was less than frank, when he said "I don't know" to the question "Do you know the reason why they went to Jackson Canter?", who were their solicitors and through whom they had made claims for compensation.
  76. As for Mr Barlow's submissions, the position appears to be as follows. It will be recalled that the trial took place in June/July 2000. As for Ms S.O.: on 7 January 2000, CICA wrote to DS Robbins at Operation Care to say that it had received an application from Ms S.O. in relation to Derwent House and Mr MacKreth. That had been disclosed (disclosure schedule D8162), but appears to have been overlooked at trial. The following material had not been disclosed. Jackson Canter also wrote to Operation Care on 9 November 1999 on behalf of Ms S.O. "to confirm that our client has now commenced a civil action" against Liverpool City Council in respect of Derwent House. DS Robbins replied to that letter on 23 November 1999. There is no similar letter from Jackson Canter in respect of Ms O., but a letter from them to Operation Care dated 17 August 2000 (after trial) confirmed that she had made an application to CICA on 20 September 1999. There is nothing to suggest that that was known by Operation Care prior to trial (but it may have been). Jackson Canter's letter about Ms O.'s claim says that CICA had "simply said that they would postpone dealing with the application until after the trial". As for Ms K., her solicitors, Morecroft Urquhart, wrote on 20 July 1999 to Operation Care to say that they had been instructed in connection with civil proceedings. A similar letter was written to Operation Care on 29 October 1999 on behalf of Ms C., by her solicitors, Maidments. Her earlier application to CICA had been disclosed.
  77. It would seem that CICA applications had been disclosed, but damages claims in the courts had not been. The explanation that has been offered is that correspondence about civil claims had been lost sight of in a separate file.
  78. What was the evidence given about these matters at trial? Ms S.O. accepted that she had gone to Jackson Canter as her solicitors, but said that she was positive that she had not filled up any forms or applied for criminal injuries compensation. She had, and her application had in fact been disclosed. We now know that she had also commenced an action for damages. She had learning difficulties, and it is not certain that she would have known exactly what her solicitors were doing. At any rate, the matter was not pursued in cross-examination. It is possible that she was lying. In any event, the jury would have been able to consider her evidence in this connection together with that of her sister, for Ms O. said that like her sister she had gone to Jackson Canter and that she "wanted to apply to the criminal injuries compensation board" but had heard "nothing". It would not have been difficult for the jury to have come to the conclusion that both sisters had gone to the same lawyers in order to claim compensation in some form or other.
  79. Ms K. was not asked about compensation (the letter from her solicitors had not been disclosed). Ms C. was not asked about compensation, but her application to CICA had been disclosed and when DS Robbins was asked whether any of the complainants had applied to CICA, he said "I am aware of one" and when asked if that was Ms C., he said "Yes".
  80. Thus Sandra O'Brien may have lied, and DS Robbins' answer "I don't know" was not candid, and he ought to have known what was in the documentation which had been sent to Operation Care. However, the defence did not make a big point about compensation and the majority of the complainants were not asked about it. The jury knew that the sisters had approached solicitors, and their reason for doing so must have been obvious, particularly in the light of Ms O.'s frankness. It must also have been obvious to the jury that compensation in one form or another would be available to the complainants if Mr MacKreth was convicted. In our judgment, these faults in evidence or disclosure do not make the convictions unsafe.
  81. The safety of the convictions

  82. On the contrary, we have taken stock and considered this application and the two grounds of appeal as a whole, and in our judgment the convictions are safe. Mr MacKreth had a fair trial. The application to stay the proceedings and the summing up were both dealt with by the judge with great care, as has been emphasised by the fact that Mr Barlow had no word of criticism for either ruling or summing up. If his ruling and directions were without fault at the time, they remain so at this day. There has been no revolution in the relevant jurisprudence, and the principles which applied in 2000 remain the essential principles today. The combination of the evidence against Mr Mackreth was formidable and convincing. Despite the length of time that had passed and certain gaps, there was an unusual amount of documentation still surviving. Reference to missing documentation was only for the purpose of raising speculative possibilities and was not tied to any specific issues. There was no evidence of contamination or collusion, save of course that the sisters in all probability must have spoken to each other about their experiences and evidence. The complainants, when young and resident in Derwent House, may have had their problems and have been described as street wise, but by the time of trial they were middle-aged and four of them were of good character. Mr MacKreth could have made use of his 1977 acquittals and the DPP's decision in his favour in 1978, but he chose not to do so. There was significant support from Mrs Swift's evidence.
  83. The application for an extension of time

  84. We heard extensive argument over the course of a day. The matters were developed before us as though leave for an appeal had been granted. We have dealt with the application on its merits, as has been set out above. The fact remains, however, that this was not an appeal but an application, made more than 6½ years out of time. It was suggested that there had been no advice given after conviction, but following the waiver of privilege it has been established that Mr MacKreth was advised on an appeal in January 2001. That advice must have been negative. A timetable to explain the delay has been put before us in a witness statement made by Mr Mark Newby, a solicitor advocate and member of Mr Mackreth's solicitors and a director of the Historical Abuse Appeal Panel, a specialist panel of lawyers committed to assisting appellants who have been convicted of historical abuse. It appears that Mr MacKreth was referred to Jordans in March 2003, presumably on his release on parole. The matter was already very seriously out of time then. Papers were received from Mr MacKreth's former solicitors by June 2003, and extended funding had been obtained by June 2004. Whereas sporadic work was performed over the next few years leading to the lodging of Mr MacKreth's application in June 2006, the timetable put forward does not begin to excuse the huge extension of time that the delay in appealing requires.
  85. In the circumstances, although as we have just said, we have considered Mr Barlow's submissions on their merits, we are not persuaded there are any grounds to extend time.
  86. Conclusion

  87. In sum, while we have considered the application for leave to appeal on its merits, the application for an extension of time is refused. This judgment contains the reasons which led us to these conclusions at the time of the hearing.

Note 1   The name has various spellings within our papers. We have adopted this spelling, which we hope is correct.    [Back]

Note 2   As will appear below, unknown to the judge, the Crown and it would seem the defence representatives too, Mr MacKreth had retained the daily log of Derwent House in his own possession and had consulted it during his trial.    [Back]

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