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Cite as: [2014] EWCA Crim 836

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Neutral Citation Number: [2014] EWCA Crim 836
Case No: 200702991 C2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT READING (His Honour Judge Risius)

Royal Courts of Justice
Strand, London, WC2A 2LL
02/05/2014

B e f o r e :

LORD JUSTICE PITCHFORD
MR JUSTICE SWEENEY
and
RECORDER OF MIDDLEBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC

____________________

Between:
ANDREW THOMPSON
Appellant
- and -

REGINA
Respondent

____________________

Ms S Forshaw QC and Mr D Reid (instructed by Edward Hayes - Solicitors) for the Appellant
Mr JA Price QC (instructed by CPS Special Crimes Division Appeals Unit) for the Respondent
Hearing date: 15 April 2014

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Pitchford :

    Introduction

  1. On 30 October 2013 the full court gave leave to the appellant to appeal against his conviction at Reading Crown Court on 11 May 2007 for sexual offences committed against male children (see [2013] EWCA Crim 2264).
  2. The appellant faced an indictment containing 14 counts, alleging sexual assaults upon nine boys under the age of 16 years, committed during the years 2004, 2005 and 2006. He appeared for trial before His Honour Judge Risius at Reading Crown Court. On 11 May 2007 the appellant was convicted upon four counts charging him with offences contrary to section 7 of the Sexual Offences Act 2003, namely:
  3. Count 3: Sexual assault of SF

    Count 4: Sexual assault of SF

    Count 11: Sexual assault of ZB

    Count 12: Sexual assault of ZB, as an alternative verdict to sexual assault by penetration contrary to section 6 of the Sexual Offences Act 2003.

    The appellant was found not guilty upon the remaining 10 counts relating to seven other boys. Each of the complainants is entitled to his anonymity under the Sexual Offences (Amendment) Act 1992 and we shall refer to them and some of their relatives by using initials.

  4. Counsel instructed at the time of trial, Ms Chan, drafted grounds of appeal against conviction and sentence. The application for leave to appeal against conviction was refused by the single judge on 14 August 2007. Only the appeal against sentence proceeded at that time. On 27 May 2010 this court, differently constituted, quashed the sentence imposed by the judge of imprisonment for public protection and substituted a determinate sentence of 3 years imprisonment. It confirmed the making of a Sexual Offences Prevention Order but amended its terms.
  5. The possibility that the appellant was suffering from Asperger's syndrome was first raised by a prison counsellor in August 2008 during preparation for a parole board hearing. The formal diagnosis was made by a clinical psychologist, Mr Nicholas Keene, on 17 September 2008.
  6. On 8 November 2011, following his release from prison, the appellant was arrested on suspicion of committing offences against other boys during the late 1990s and 2000. He was subsequently charged in a 17 count indictment. On 14 September 2012, following his trial before the Honorary Recorder of Aylesbury, His Honour Judge Sheridan, the jury returned verdicts of not guilty upon all counts. During the course of the trial Judge Sheridan had permitted the defence to adduce evidence from two experts, Mr Nicholas Keene and Mrs Pamela Yates. They expressed the opinion that the appellant suffered from Asperger's syndrome. One of the features of the appellant's condition was that he might behave in a socially inappropriate but innocent manner towards children, without having the comprehension that his actions could be misconstrued. This was relevant, the judge found, to the question whether actions by the appellant, admitted or proved, were or were not motivated by a desire for sexual gratification. At the Aylesbury trial, while calling no expert evidence of its own, the prosecution challenged the diagnosis, the existence or extent of relevant symptoms, and the relevance of those features of the syndrome that the jury found existed to the issues the jury had to determine.
  7. The grounds of appeal

  8. On 14 December 2012 Ms Forshaw QC, who represented the appellant at his Aylesbury trial, prepared substituted grounds of appeal against the conviction at Reading Crown Court and sought leave for an extension of time within which to renew the application for leave. The full court subsequently granted leave. The appellant now relies upon the fresh evidence of Mr Keene and Mrs Yates, admitted under section 23 of the Criminal Appeal Act 1968, as a ground upon which to challenge the safety of his convictions in 2007. It is the appellant's case that had the jury been aware in 2007 of the diagnosis subsequently made, and of the evidence later given by the experts to the jury in 2012, they may have formed a different view both of the appellant himself and of his actions. Mr Price QC represented the prosecution in the 2007 trial but not in the 2012 trial. We have been much assisted by his presence at this appeal. Having considered the fresh evidence, the respondent has not sought to challenge it, and the evidence has been admitted in the form of reports from the experts and transcripts of their evidence in the Aylesbury trial. The respondent's case is that, notwithstanding the fresh evidence, the verdicts of the Reading jury were safe.
  9. The appellant's previous convictions

  10. The appellant's bad character was admitted in evidence in both trials. The appellant was born on 29 April 1964 and is now aged 49 years. On 2 April 1982, when he was aged 19, he appeared before Wakefield Magistrates Court and was placed on probation for three years for an offence of gross indecency with a child, contrary to section 1 of the Indecency with Children Act 1960. The appellant went to a churchyard where he encouraged a boy aged 6 or 7 years to masturbate him. On 4 July 1985 at Woodbridge Magistrates Court, when he was aged 21 years, the appellant was placed on probation for two years for an offence of indecent assault of a male. The appellant was running a mobile shop. He lifted up a 9 year old boy to enable him to view goods on a shelf and, as he did so, he laid his hand across the boy's genitals outside his trousers. Following the appellant's arrest in 2006 there was found on his computer evidence of an internet search carried out by the appellant on 25 December 2003, when he looked for material relating to under-age rent boys in Sri Lanka. In evidence, both in 2007 and 2012, the appellant claimed that he was planning a holiday to Sri Lanka alone, was aware of the adverse publicity given to a television personality after a similar trip, and, for that reason, wished to avoid any destination associated with the sex trade in Sri Lanka.
  11. The trial at Reading Crown Court

    Background

  12. During the period August 2004 to June 2006 the appellant lived in the Reading area and worked as a transport manager. He lived alone. He suffered from a medical condition known as Klinefelter's Syndrome, a consequence of which was to render the appellant sterile. Although he could not have children of his own his ability to perform the sexual act was unaffected. He had occasional relationships with women but said in evidence that he had a low sex drive. He was particularly saddened by his inability to father children and, as a "paternal" and charitable gesture, befriended boys and girls and their parents. During the period of the indictment the appellant would take children on trips to adventure parks or other attractions. He sponsored a local football team and took boys to football matches. He took a group of boys to swimming baths and coached them. He consulted and was trusted by the children's parents, some of whom allowed their children to stay overnight at the appellant's home.
  13. The nature of the prosecution case

  14. The parents of one of the boys, JT aged 9, expressed concern about the appellant's behaviour to social services on 19 May 2006 (see further paragraph 13 below). The investigation led to complaints by nine boys in all. There was a common theme that the appellant would, following sessions at the swimming baths, in the communal area of the changing rooms, dry the boys with a towel. Having returned from trips and/or while the boys were staying overnight at his home, the appellant would give the boys baths or showers. The prosecution asserted that while drying the boys at the swimming baths and, at home, during the course of soaping the boys' bodies and drying them afterwards he would by that means touch them sexually. In view of the circumstances, Judge Risius directed the jury upon the necessity for proof that the touching was sexual. The judge suggested that, with the exception of count 4 and count 12 (paragraph 11 below), none of the counts involved touching that was inherently sexual. The judge explained, at page 12H of the transcript of his summing up:
  15. "After all, washing and drying children's boys all over is something which is done routinely every day, for example, by parents and nurses, and nobody would suggest that there was a sexual element in those circumstances. Likewise, playing games with children in a swimming pool."
  16. The judge then directed the jury how touching that was not inherently sexual may, nevertheless, be sexual depending upon the jury's conclusions as to the circumstances in which the touching occurred and the appellant's purpose. He posed questions for the jury as follows, at page 14F:
  17. "First, ask yourselves this question: Disregarding what may have happened before and after the particular touching, and ignoring also Mr Thompson's purpose in touching the children on that occasion, could that touching because of its nature possibly be sexual? If the answer is, "No", that is the end of that particular count, and you must find Mr Thompson not guilty on it. If, however, the answer is, "Yes", you must then go on to ask yourselves, secondly, whether, taking into account the surrounding circumstances, and Mr Thompson's purpose in touching the child, the touching was in fact sexual. If you are sure the answer is, "Yes", then you must find him guilty on that count. If you are not sure it was sexual, then your verdict must be one of not guilty."

    The indictment

  18. Count 1 was a specimen count that between 1 February and 25 May 2006 the appellant sexually touched JT. JT described the appellant making fun of his wish to use a cubicle after swimming, calling him "Shy, Shy" and "Dickhead". The appellant would dry JT and in doing so would touch the boy's private parts through the towel. The appellant admitted drying JT but said there was no sexual gratification involved. He would dry the boys who were wasting time. Count 2 was a specimen count in which the appellant was charged, between 1 April and 30 May 2006, with sexually touching a 12 year old boy, LS. LS complained that during games in the pool the appellant kicked him in the genital area and would then allow his foot to linger against his bottom and beneath his genitals. The appellant accepted that during horseplay there might be some contact but there was no kicking and no sexual intention. Count 3 charged the appellant with a specimen offence that, between 20 August 2004 and 25 May 2006, he sexually touched SF, a boy aged 11 or 12. SF complained that when he stayed overnight with the appellant, the appellant would rub shower gel all over his body. The appellant agreed that he would gel SF's body when he was taking a bath. He lingered only when washing SF's feet. The appellant said that he, himself, took showers three or four times a day and his concern was only to ensure that the boys were clean. Count 4 was a specimen allegation that during the same period the appellant sexually touched SF by smacking the boy's penis with his hand. The defence to count 4 was denial that any such incident had occurred. Count 5 alleged sexual touching of MO'B between 1 February and 31 December 2005, when MO'B was aged 10 or 11, by repeatedly and unnecessarily washing his body, including his genitals, while MO'B was standing in the bath at the appellant's home. The appellant admitted one occasion of applying gel to MO'B's body. He denied there was anything sexual about the touching. Count 6 also concerned MO'B, who said that when he came out of the pool the appellant would dry him all over. The appellant denied that he would do this. Count 7 charged the appellant with sexually touching BF, brother of SF, during the period 1 January to 25 May 2006, when BF was aged 6 or 7 years. BF said that the appellant would dry him all over. The appellant admitted the activity but denied that it was sexual. Count 8 concerned occasions during the same period when the appellant, at his home, washed BF all over his body, including his genitals. The appellant admitted the activity but said that it was not sexual. The complainant in count 9 was CC. On a single occasion between 1 January 2005 and 26 May 2006, when CC was aged between 4 and 6 years, the appellant, at his home washed CC's body, including his genitals and bottom. The appellant said he was getting the boy ready for bed; there was no sexual motivation. In count 10 the appellant was charged that, at his home, between 1 January 2005 and 1 June 2006, he sexually touched LC, CC's brother, aged between 10 and 12 years, by drying his body including his genitals. The appellant accepted that he had dried the boy but denied a sexual intention. In count 11 the appellant was charged that on a single occasion, between 1 January and 2 June 2006, when ZB was aged 11, he touched the complainant's private parts, holding his hand there for ages, while drying ZB after a shower at the appellant's home. The appellant denied that his hand lingered and maintained that his drying of the boy was quite proper. Count 12 also concerned ZB. It was alleged that during the same period, contrary to section 6 of the Sexual Offences Act 2003, the appellant penetrated ZB's anus with his fingers. The judge directed the jury as to an available alternative verdict of sexual assault, if the jury were sure that there was touching of the anus with the finger but not sure that the finger had been inserted into the anus. The appellant denied the act. In count 13 the appellant was charged that, between 1 January 2005 and 1 June 2006, he sexually touched RL by drying him all over with a towel despite RL's protest that he could do it himself. Count 14 also involved RL, who complained that at the appellant's home, he was soaked from his head to his tummy button, and from his knees to his toes. The prosecution alleged that the touching was sexual. The appellant said it was not.
  19. Bad character

  20. The appellant's previous convictions and his exploration of the Sri Lankan website (paragraph 7 above) were admitted in evidence. The judge explained (transcript page 26A) that the evidence had been received, not for the purpose of demonstrating that the appellant was likely to commit offences against boys, but as relevant to the question whether the acts of the appellant towards the boys had a sexual motivation. The judge pointed out to the jury (transcript page 26G) that in the case of almost all the counts the appellant admitted the touching on which the prosecution relied. The obvious exceptions were Counts 4 and 12.
  21. Complaints

  22. JT's mother gave evidence that on one occasion her son had told her that the appellant would rub his chin on his back and shoulders, and he would do the same to the other boys. Later, JT's cousin, LS, joined the swimming group. One day in the garden LS said that the appellant rubbed his leg near LS's private parts. JT added that the appellant had called him "Shy, Shy". As a result, both mothers stopped their boys going swimming and a report was made to social services. It was this information that led to the police investigation. As a result, all nine boys were interviewed. MO'B's mother and the mother of SF and BF were sisters. SF had complained to his mother on one occasion of the appellant washing and drying his private parts. SF's mother spoke to the appellant who said that they had been in a hurry. He agreed not to do it again. SF made no further complaint. CC and LC lived with their mother in Wokingham. Her sons started to go swimming when her neighbours, the mothers' of SF, BF and MO'B introduced her to the appellant. Neither of her sons had made any complaint before he was interviewed by the police. ZB's brother played for a football team sponsored by the appellant and ZB was a spectator. ZB was invited to go swimming and on trips with the appellant. ZB made no complaint to his mother before the appellant was arrested. RL made no complaint to his mother before he was interviewed by the police. The mothers all said in evidence that their sons were able to wash and dry themselves. They would not have been happy to learn that the appellant was bathing them.
  23. Defence evidence

  24. The appellant said in evidence that he had on one occasion dried JT's body. That was because he was the last to get changed. He agreed that he had used his leg to throw LS in the swimming pool. That was just horseplay. He agreed that he had washed SF in the bath. That had taken a minute or so. There was no sexual intention. He had never smacked SF's penis. He recalled however that on one occasion when he was drying SF, SF had an erection. He agreed that he had told the police the same thing had happened on a second occasion, but in evidence he claimed that had been a mistake induced by the police. He had at the time of interview been tired and under stress. He insisted that such an incident had only occurred on one occasion. The appellant said that he had applied shower gel to MO'B's body on one occasion, but not to his genitals. He had towel-dried BF but only to get him dressed. The same thing had happened at the appellant's home. He had washed and dried CC ready for bed. On one occasion he had dried LC. He had washed ZB all over but had never inserted his fingers into ZB's anus. That was not true. The appellant denied that he had ever dried RL's body all over. The appellant said that his feelings towards the children were entirely paternal.
  25. During the course of the defence case, four male witnesses, who had also been taken swimming and had stayed at the appellant's home when they were younger, gave evidence that nothing untoward had occurred. They all said that they had, when necessary, washed and dried themselves. Other witnesses spoke of the appellant's paternal regard for children and his reputation for a generous nature and charitable works.
  26. The expert evidence

  27. Mr Nicholas Keene is a consultant clinical psychologist based at the Oxford Clinic, Littlemore Hospital in Oxford. Mr Keene carried out an assessment of the appellant during the period 12-17 September 2008. In his report of 17 September 2008 Mr Keene described Asperger's Syndrome, as "a life long development disorder akin to autism in people without other cognitive impairments". The diagnostic manual, DSM IV, required two separate "domains of impairment to be present across the life span":
  28. "(1) a qualitative impairment of social interaction, and
    (2) restricted, repetitive or stereotyped patterns of behaviour, interests and activities."

    Mr Keene concluded, having applied the Cambridge Lifespan Asperger's Syndrome Service ("CLASS"), which employed more stringent diagnostic criteria than DSM - IV, that the appellant met these criteria. He identified the features of the appellant's condition that caused him most difficulty as:

    (i) a failure to develop peer relationships;
    (ii) lack of social and emotional reciprocity;
    (iii) inability to understand social situations and the thoughts and feelings of others;
    (iii) preoccupation with "parts of objects or systems";
    (iv) impairment of ability to make or sustain conversation;
    (v) rule-bound behaviour of his own making.
  29. At paragraph 9.3 of his "Conclusion and Opinion", Mr Keene identified a central trait of people with Asperger's, present in the appellant, as particular difficulty in deciphering what others are thinking. Mr Keene called this "poor theory of mind". Thus, while the appellant is an intelligent and literate man, he is socially nave. In the context of the trial at Reading Crown Court, it would not have occurred to the appellant that suspicions would be raised in other people's minds about the appellant's continued association with children or his conduct of bathing and drying them.
  30. Mrs Pamela Yates has a combined degree in social work and psychology from Witwatersrand University in Johannesburg. In 1984 she worked for the South East London and Maudsley NHS Trust. She had a particular interest in learning difficulties and related challenging behaviour in children. Between 1986 and 2000 Mrs Yates worked for the Institute of Psychiatry at King's College, London as a researcher and co-ordinator for a programme developed by Professor Sir Michael Rutter and Professor Patricia Howlin to diagnose and assist children with autism. She has subsequently undertaken projects with the Department of Health and the National Autistic Society. In 2000 she became a member of the advisory panel to North Hill House specialist school (now owned by the Priory Group) and became an independent consultant in autism and Asperger's syndrome. As we understand it, Mrs Yates has no medical qualification but has acquired expertise and reputation in the field in which she specialises.
  31. Mrs Yates assessed the appellant on 23 May 2012. She used Module 4 of the Autism Diagnostic Observation Schedule ("ADOS"). Mrs Yates agreed with Mr Keene that "the most useful way of describing" the appellant's "profile of difficulties" was Asperger's syndrome. His most significant impairment appeared to be in the reading of emotions expressed by others. The appellant had had lifelong difficulties in developing social relationships, especially with his peer group. His ability to organise and plan "helped to order his life sufficiently to survive, seemingly without the need for further support". At the same time he would appear "rigid, very ordered and mechanical in social relationships and anxious to maintain the order he has imposed on his life". His lack of emotional understanding would make him seem, at times, callous or selfish because he would be unaware of the impact of his behaviour on others.
  32. It was a feature of the appellant's personality that he did not readily make eye contact. Mr Keene described the appellant as "prompt, well presented and attentive", but there was limited eye contact at the beginning of his interview. The appellant was a fluent and reasonably relaxed informant. Mrs Yates described the appellant's "rather pragmatic style of answering, lack of facial expression and monotone intonation". There was during her interview a lack of eye contact.
  33. The trial at Aylesbury Crown Court

    Intermediary

  34. At the appellant's trial before Aylesbury Crown Court, Judge Sheridan approved the use of an intermediary. We have, however, read a transcript of cross-examination of the appellant by Mr Price at Reading Crown Court, which was not available to the expert witnesses. We have detected no sign that the appellant laboured under any defect of thought or verbal reasoning. There are, however, indications either that the appellant was being evasive in some of his answers or that, having regard to the expert opinion subsequently obtained, he was inappropriately focused on inconsequential detail and, therefore, giving a misleading impression of evasiveness.
  35. The prosecution case

  36. The indictment tried at Aylesbury concerned complaints of serious sexual offences committed against the children of one family whose father was known to the appellant through his work. It was alleged that the offences took place during the later 1990s and the year 2000 and, therefore, preceded the allegations made at the 2007 trial. The appellant was charged with offences of gross indecency and sexual assault comprising mutual masturbation, including oral masturbation, upon a child, DM, aged between 11 and 15 years. In count 9 the appellant was charged with the anal rape of DM, then aged 16 years. The appellant was charged with offences comprising masturbation of WM, then aged 10 16 years. On one occasion when WM was aged 17 years it was alleged that the appellant held the boy's hand over his own penis. In count 13 the appellant was charged with attempted rape of WM. Finally, the appellant was charged with offences of sexual assault of SM, then aged 13 years, and of causing SM to sit on the appellant's penis while both of them were in the bath, SM then being aged 13 years.
  37. The bad character evidence

  38. The prosecution adduced in evidence all of the appellant's previous convictions, including his convictions at Reading Crown Court in 2007. Mr Price QC pointed in argument to a subtle change in the appellant's evidence between the 2007 trial and the 2012 trial. In the course of cross-examination before Reading Crown Court the appellant accepted that in 1981 he had led a boy aged 6 or 7 years to a churchyard where he encouraged the boy to masturbate him. In the 2012 trial, by which time he was aware of the late diagnosis of Asperger's, the appellant claimed that he was masturbating in some disused toilets in the churchyard when a young boy happened to come past. He said that the boy told him that he was "doing it wrong". The boy told him, "That's not the way I do it with my cousin". The appellant was explaining to the jury that he did not understand embarrassment and asked the boy if he would show him how to do it properly. The boy placed his hand on the appellant's penis and masturbated him. The appellant claimed that he did not know at the time that what he was doing was wrong. This evidence was in contradiction of the evidence given by the appellant in 2007 and the opinion of Mr Keene that, although the appellant would have had a delayed emotional development and would not have been able to comprehend the emotions of a 6 or 7 year old boy, he would still have known that it was wrong to ask a child of 6 or 7 to masturbate him.
  39. As to the conviction in 1985, during his trial in 2012 the appellant said he was not guilty. He pleaded guilty merely because his stepfather told him to do so. As to his searching of the internet, the appellant provided to the jury the same explanation that he had given in 2007. It was pointed out by this court during the course of argument that the appellant's expressed anxiety to avoid social disapproval for staying at a hotel near sex spots in Sri Lanka seemed to contradict the expert evidence to the effect that he would not understand social disapproval. Ms Forshaw QC submitted that the appellant's conduct should be seen as an example of his rule-bound behaviour. The appellant told both juries that a television celebrity, Matthew Kelly, had at about that time attracted media disapproval for his association with Sri Lankan resorts by reason of the availability of under-age rent boys. The appellant resolved that he should not expose himself to the same disapproval, whatever the level of his understanding of the reasons for that disapproval. In assessing the truth of this explanation the jury would have been assisted by knowledge of the appellant's condition.
  40. The defendant denied that he was guilty of the offences of which he had been convicted at Reading Crown Court in 2007. To the extent that they were relevant, section 74(3) of the Police and Criminal Evidence Act 1984 placed upon the appellant the burden of proving, on a balance of probability, that he had not committed the offences. The defence case was that the appellant's previous convictions were of no assistance to the prosecution since he had not committed the offences. Ms Forshaw QC contended in argument that if, contrary to the defence case, the Aylesbury jury had concluded that the appellant was guilty of counts 3, 4, 11 and 12 in the 2007 indictment, they would have attached considerable weight to those convictions when assessing the strength of the prosecution case in 2012. Judge Sheridan directed the Aylesbury jury that they should consider the expert evidence that the appellant suffered from Asperger's syndrome and reach their own conclusion. He advised the jury that in the absence of contrary evidence they should proceed on the basis that the appellant did suffer from Asperger's syndrome, a life-long condition. If so, they should judge its effect upon their consideration of the appellant's conduct both as alleged in the indictment and in 1981, 1985, 2003 and 2006. Ms Forshaw submits that it is more probable than not that the Aylesbury jury concluded, in the appellant's favour, that his touching of the children during the period 2004 - 2006 was non-sexual.
  41. The defence case

  42. The appellant had been a friend of the complainants' family. He had helped to carry out building modifications to their home. The appellant admitted an innocent association with the children. The defence case presented to the Aylesbury jury was that two of the complainants were suspected of viewing child pornography on a computer in their home and that, when interviewed by the police, first one and then the other attempted to blame this appellant for introducing them to the material. The police had examined the appellant's computer and no such material was found. The accusations became more serious. The appellant's case was that they were entirely false. It was submitted that, despite their denial, the children were aware of the appellant's arrest in 2006 and at least of the generality of the rumours circulating and the allegations made against him. They had used the appellant as a soft target at which to deflect blame. Some lies told by the complainants were exposed in evidence. Judge Sheridan gave to the jury a firm direction that if they considered there was evidence of conspiracy between the complainants to deflect blame from themselves to the appellant by telling lies about him, they should conclude that it would be unsafe to convict the appellant of any offence. As we have observed, the charges faced by the appellant at Aylesbury concerned, in the case of two of the complainants, explicit acts of masturbation, rape and attempted rape, and, in the case of the third, sexual assault in the context of bathing. As to the third complainant also, the defence case was that no such event occurred. There had been no occasion during the complainant's 13th year when he took a bath the appellant's home.
  43. The case for the respondent

  44. In this appeal the respondent did not challenge the diagnosis of Asperger's syndrome; nor did Mr Price QC challenge the features of the syndrome which the experts attributed to the appellant. He submitted that the nature of the issue between the prosecution and the defence upon the counts in respect of which the appellant was convicted in 2007 demonstrated the reason why the jury had distinguished between those counts and the majority. The issue in count 3 was purely one of fact, namely whether the appellant had "for ages" soaped and dried SF's private parts. The appellant volunteered in interview that SF had an erection while he was being dried. That was not something of which the boy had complained. There was an undeniable circumstantial link between the allegation made by the boy and the appellant's admission in interview. The fact that the appellant admitted that there had been a similar, second, occasion must have drawn to the jury's attention the obvious connection between the appellant's activity and the boy's erection, and the improbability of coincidence. The appellant's denial in evidence of any second occasion betrayed his awareness of the significance of his admission. As to count 4, there was a straightforward issue whether the appellant had smacked the boy's penis. If he had, sexual motivation was a straightforward conclusion for the jury to reach. As to count 12 the complainant ZB, when first interviewed, had mentioned only the drying activity. When interviewed on a second occasion he claimed that the appellant's finger had been inserted into his anus and moved. Mr Price QC acknowledged that the jury may not have been prepared to construe the word "inside" as signifying that the boy was complaining of insertion of the appellant's finger into his anus rather than movement between the boy's buttocks. They were, however, satisfied that there had been an action of sufficient significance to demonstrate a sexual assault involving the touching of the anus. The jury's conclusion in this respect would have assisted them upon their interpretation of the appellant's purpose in drying ZB (count 11).
  45. Mr Price QC argued that nothing in the diagnosis made by Mr Keene and Mrs Yates in 2008 and 2012 could have had any material bearing on the Reading jury's analysis of the evidence relevant to the counts on which he had been convicted in the 2007 trial. The issue for the jury was whether the incidents, as described by the complainants, had taken place. If they took place as the boys described none of the "difficulties" under which the appellant laboured in his ordinary life could place an innocent construction upon his actions.
  46. Discussion

  47. We do not accept Ms Forshaw QC's argument that the jury's verdicts at Aylesbury in 2012 can alone resolve the issue as to whether the verdicts returned by the jury at Reading in 2007 were unsafe. Upon Judge Sheridan's directions to the jury there is a real prospect that the jury was not satisfied that the complainants were honest witnesses of events. If they were not, they may have acquitted upon all 17 counts because they were unsure that the complainants had not conspired to make false allegations against the appellant. If that was the jury's conclusion, they may never have had occasion to examine the effect of the expert evidence upon the question how the appellant's actions should be interpreted.
  48. The appellant explained to the jury in 2007 that he regarded his actions as paternal, motivated solely by a need to ensure that the boys were properly cleaned and dried. We commence our analysis with an acknowledgement that the 2007 jury was not prepared to conclude that the act of washing or drying any one of the children would necessarily imply a sexual motive. The jury could not conclude so that they were sure that in the case of seven of the complainants the touching was sexually motivated. In his cross-examination of the appellant, and during his final speech to the jury, Mr Price QC, for understandable reasons, suggested that the appellant must have been aware that he was taking an extreme risk by behaving in the manner he admitted. For that reason there must have been a sexual motive for the appellant's behaviour. The expert evidence was centrally relevant to this issue because, in the opinion of Mr Keene and Mrs Yates, the appellant would not have been aware of the social risk. However, this was a prosecution argument that Mr Price concedes and asserts the jury rejected in any event, without the need for assistance from the experts. We see the force of Mr Price's submission but it is not a complete answer to the fresh evidence. The issue that confronts this court is whether, had they been aware that the appellant was suffering from Asperger's syndrome, the jury may have reached a different conclusion upon both issues of fact and issues of interpretation of the appellant's conduct relevant to counts 3, 4, 11 and 12 specifically.
  49. There are three respects in which, we are satisfied, the jury may have been assisted by the evidence of Mr Keene and Ms Yates. First, in the case of SF, the complainant protested that it was unnecessary for the appellant to wash and dry him so thoroughly. A person like the appellant who was rule-bound and somewhat obsessive about personal hygiene might not be sensitive to any expression of the boy's resistance. Furthermore, he might not, at the time, have attached any significance to the fact that the boy had an erection. As to the allegation that the appellant smacked the boy's penis, while there was undoubtedly an issue of fact to be resolved, even if the smacking occurred it did not automatically follow that it took place as an expression of sexual excitement rather than boyish stupidity or inappropriate discipline. These, in our view, are issues to which the expert evidence could, depending upon the jury's view, have been significant. We agree with the direction given by Judge Sheridan to the Aylesbury jury that the diagnosis of Asperger's syndrome was relevant to the questions: (1) what the appellant did and (2) with what intention he did it.
  50. Secondly, as to count 12, the fact that the appellant's finger rubbed against ZB's anus, which is the conclusion the jury must have reached, was not outside the range of activity of which the appellant was accused in respect of other complainants. It is not possible to determine what it was, if anything, in ZB's or the appellant's evidence, that may have convinced the jury that the touching in ZB's case was sexually motivated. For this reason, we cannot exclude the possibility that, had the jury been aware of the admitted features of the appellant's Asperger's, they would have reached a different conclusion, either as to the nature of the act or as to its purpose. Further, there was, in our view, no marked distinction between the allegation made in count 11 and those made in respect of other boys subjected to the same treatment. We accept that the jury's conclusion upon count 12, however reached, probably educated their view of sexual motivation relevant to count 11.
  51. Thirdly, we have noted the tendency of the appellant, during his evidence before the Reading jury, to pick arguments with the prosecutor over comparatively trivial detail, while failing, unless re-directed, to confront the underlying and critical question (paragraph 21 above). In our opinion, the expert evidence would have been of value to the jury in determining whether, on the one hand, the appellant was evading the question or, on the other, that he was, as a result of his unusual traits, reluctant to be deflected from his pre-occupation with matters of detail. We have noted also (at paragraph 24) the questionable explanation given by the appellant for his internet search. Both in assessing the content of his evidence and the manner in which it was delivered, it seems to us that the expert evidence would have been informative. We have given full consideration to Mr Price's argument that during the Aylesbury trial the appellant demonstrated himself to be a calculating witness, quite capable of trimming his evidence to suit the case then being presented to the jury. However, even if Mr Price is right, and we are not sure that he is, we cannot conclude that his criticisms of the appellant's evidence establish that he was undoubtedly lying to the Reading jury about the lack of sexual motivation for his actions towards the complainants SF and ZB.
  52. Conclusion

  53. Notwithstanding that we are un-persuaded that the acquittal of the appellant in 2012 alone renders his convictions in 2007 unsafe, we have concluded that the expert evidence upon which the appellant relied in 2012 was both relevant and of some probative importance to the issues considered by the jury in Reading in 2007. The jury in the 2007 trial was very much concerned with the issue of interpretation of the appellant's alleged conduct, partly admitted and partly denied. It was to that issue that the expert evidence was primarily, although not exclusively, relevant. We cannot conclude that the decisions made by the jury in 2007 would undoubtedly have survived their consideration of the new evidence admitted in the appeal under section 23 of the Criminal Appeal Act 1968. For this reason we take the view that the verdicts were unsafe and must be quashed. Mr Price QC informed the court that the respondent had given consideration to the question whether, in the event of a successful appeal, it was in the public interest for a re-trial to take place, and we were informed that no application for re-trial would be made to the court.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/836.html