Case No: 201403742 B4
Neutral Citation Number: [2014] EWCA Crim 2079
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PORTSMOUTH
HIS HONOUR JUDGE PEARSON

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/10/2014
Before :

LORD JUSTICE PITCHFORD 
MR JUSTICE DINGEMANS
and
HIS HONOUR JUDGE ROOK QC
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Between :

	MAXWELL CROSBY HALAHAN	Appellant	
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	REGINA	Respondent	

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Robert Bryan (instructed by Wessex Chambers - Solicitors) for the Appellant
Kerrie Maylin (instructed by CPS) for the Respondent

Hearing date: 7 October 2014
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Judgment
Lord Justice Pitchford : 
The appeal
1.	This is an appeal against conviction and sentence brought with the leave of the single judge. The Sexual Offences (Amendment) Act 1992 applies to this appeal. We shall protect the complainant’s anonymity by referring to him as “A”.
2.	On 17 July 2014 following a trial before HHJ Pearson at Portsmouth Crown Court the appellant was convicted of three offences of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956 (counts 1, 3 and 5). On 24 July 2014 he was sentence to 21 months imprisonment on each count concurrent.
3.	In his grounds the appellant contends that the trial judge should have acceded to the defence application to stay the prosecution as an abuse of process of the court; alternatively, that the appellant was placed at such a disadvantage in the conduct of his defence as a result of delay and the consequent loss of evidence that the convictions are unsafe; in the further alternative, that the verdicts of the jury are unsafe because their approach to the evidence must have been inconsistent.
The indictment
4.	The indictment contained five counts in each of which the appellant was charged with an offence that between 25 June 1974 and 24 June 1977 he indecently assaulted A, a male person under the age of 16 namely between the age of 12 and 15 years.
5.	At the relevant time, in the summer 1975 to spring 1976, the complainant was resident at a children’s home in the Isle of Wight in the care of the local authority. The appellant was an Anglican priest. A claimed that he and three other boys, who were brothers and lived at the same care home, were inducted into the appellant’s local church choir. It was while he was under the appellant’s supervision and care as a member of the choir that the offences were allegedly committed.
6.	Count 1 was a specimen count. It represented incidents when A was the front seat passenger in the appellant’s car being driven to the church, while the three brothers were sitting in the rear seat. A gave evidence that the appellant used the opportunity indecently to touch his thigh and groin area outside his clothing. It was also his evidence that from time to time the appellant would reach back between the front seats and touch the rear passengers.
7.	Count 2 was also a specimen offence. A gave evidence that the choir boys would change into their choristers’ robes. The appellant would rub against them and touch them about the bottom and groin area. The appellant claimed that he was a victim of such offences.
8.	Count 3 alleged a specific offence that occurred in the ground floor boys’ toilets of the children’s care home. A was using the urinal when the appellant entered. The appellant was wearing his cassock. He told A to kneel in front of him and, when he did so, lifted the skirt of his cassock and placed it over A’s head, pushing A’s face into contact with his genitalia.
9.	Count 4 was a specific allegation that at a barbeque in the vicarage at Totland the appellant followed A into a summer house and assaulted A by placing his finger down his shorts and penetrating A’s anus.
10.	Count 5 alleged that the appellant, on a further visit to the children’s home, while A was in the downstairs urinal, rubbed and pushed against A’s bottom. A, emboldened by the fact that he now had a girlfriend, told the appellant to “fuck off”.
The evidence at trial
11.	A gave evidence that he told his then girlfriend and then later a female friend from the house about the abuse. He also complained at the time to members of staff at the children’s home whom he called Auntie Christine and Uncle Alan. A presumed that an investigation would follow. In fact he was moved to another home on the mainland and to an assessment centre in Bristol. When at Meon House in Hampshire he was approached by a member of staff who said that he had received a call from the police on the Isle of Wight requesting A to make a statement. A indicated that he was willing to do so; however, no-one came to visit him. A assumed that the matter had been dropped. 
12.	On reaching adulthood A complained to friends who gave evidence at trial. That evidence was adduced to rebut the allegation of recent invention. However, it was not until 2013 that, having seen a television programme about abuse within the church, and having learned from the internet that the appellant had been convicted of offences against another choir member not known to him, A decided to make a complaint to the police. He was visited by Police Constable Egerton who noted down A complaints before A was formally interviewed.
13.	The appellant is aged 84 years. In interview under caution he agreed that boys from the children’s home sometimes attended his church accompanied by staff but he denied that they sang in the choir. He accepted that from time to time he gave them lifts in his car but not to performances by the choir. He agreed that there was an occasion when a barbeque had been held, not at the vicarage but at the home of a local resident in Totland. He recalled that one of the boys who attended the barbeque, with the same name as A, had become upset. There had been no indecent assault. The appellant had merely put his arm around the boy to comfort him. The appellant asserted in interview that the choir never changed in that part of the church indicated by the appellant. The choir changed in the vestry. The place indicated by the appellant was Lady Chapel. He denied that anything sexual had occurred on the occasions alleged. 
14.	In evidence A referred to an occasion at the vicarage when he was present in the appellant’s company with another boy called AC. The appellant went upstairs with AC who later complained, “He had me”. AC was not traced.
15.	The appellant did not give evidence in his own defence. He called Sonia Scarrott, a regular churchgoer in the years 1974 to 1976. Part of her duties as a sacristan was to lay out vestments in the vestry the night before a service. The choir, she said, changed in the vestry, not in Lady Chapel. Coral Bratherton was the church organist during the 1970s. She knew all the choristers but did not recall A. Her recollection was that none of the residents of the children’s home was in the choir. 
16.	We earlier referred to A’s account that he was driven to the church in the company of three brothers. Those brothers had been traced by the police and their brief responses to the allegations made by the appellant were read to the jury by agreement. They recalled the appellant but each of them denied having been a member of the choir and each of them denied that anything improper had occurred either with them or, to their knowledge, with the complainant. This was in contradiction of A’s evidence that one of the brothers, E, had claimed to have seen an indecent assault upon A in the car and, on another occasion, asked A whether he had seen an assault by the appellant on him. A’s evidence was that he also complained to E of being assaulted indecently in the urinal at the children’s home. According to A, he and the three brothers all approached a girl called Sarah who told them to inform a member of staff. It was at this time that A complained to Auntie Christine and Uncle Alan. 
The application for stay
17.	Before trial the prosecution confirmed that there were no longer any records in the possession of the church, the parish, the police or the local authority that could be disclosed to the defence. The manager of the children’s home had died and none of the staff could be traced. A had retained several letters sent to him by his mother in 1976 from which his movements could be ascertained but none of them cast light on the allegations of abuse. A did not contend that he had made any disclosure to his family. The judge was informed that correspondence between doctors and clerics established that in the summer of 1976 the appellant was under investigation by the police in consequence of “homosexual allegations” made against him by “boys”. The appellant was admitted to a psychiatric ward in Southampton suffering what was said to be a hypomanic phase. In September 1976 a consultant psychiatrist in Newport, Isle of Wight, wrote to a Dr Ewell that the case against the appellant had been dropped because the police found “the witness” unreliable. The source of that information is unknown. In November 1976 the Archdeacon of the Isle of Wight wrote to the Bishop of Buckingham that the appellant had been receiving psychiatric treatment. The appellant had admitted to the Bishop that he had done some foolish things but denied “the more serious allegations made against him”. Following advice from the police the appellant left the island in 1976. In October 1978 he wrote to the Archbishop of Canterbury denying committing any offences against boys in the local authority home.
18.	Shortly before the trial commenced Mr Bryan, on behalf of the appellant, made an application to the trial judge for the stay of the prosecution on the ground of abuse of process. He relied on the fact that none of the contemporaneous records to which we have referred was available. On the complainant’s account his complaint had reached the ears of the police and he was going to be interviewed. In the end no interview took place and no prosecution occurred. Mr Bryan submitted that it was no longer possible to ascertain from the records (1) whether the complainant was a member of the choir, (2) what was the complaint made at the time to members of staff, (3) what information was passed to the police and (4) why it was that the police investigation did not proceed. 
19.	The judge’s attention was drawn quite properly to the relevant authorities and Mr Bryan submitted that the disadvantage to the appellant was incurable; that a fair trial was no longer possible after an interval of 40 years.
20.	In his ruling the judge found that the complainant could not be justifiably criticised for the delay between his original and his final complaint. Child protection procedures in the 1970s were very different from those in place in modern times. The complainant was a boy who assumed that the matter had been dropped.  It was impossible either to infer fault on the part of the prosecution. It was simply not known why the investigation came to an end without any contribution from the complainant. The judge acknowledged that after such a prolonged period of time the most cogent argument for the appellant was that missing documentation had the effect of placing the defence at a disadvantage when it came to challenging the complainant’s account. There were however compensatory features of a trial which could overcome prejudice to the defence. The first was that the judge could regulate the admissibility of evidence so that relevant factual issues could properly be confronted in the evidence. Secondly, the judge’s directions would assist the jury to understand how their approach to the evidence might be affected by any remaining disadvantage. He concluded that these compensatory features of the trial process would render the trial fair notwithstanding the prolonged delay between the commission of the alleged offences and the trial.
21.	In the course of the trial the hearsay evidence of the three brothers was admitted by agreement. The defendant had available two witnesses who could give evidence as to the composition and management of the choir. To this extent the trial process did alleviate the evidential disadvantage to the appellant created by delay.
22.	In his summing up to the jury the judge was as good as his word and no criticism is made of his direction upon the possible effects of delay, including missing documentation and deceased or untraceable witnesses. The jury were directed that if by reason of the passage of time information was missing to the possible disadvantage of the defendant they should bear that in mind when considering whether the prosecution had proved its case so that they were sure. Nonetheless, Mr Bryan submits that no direction from the judge could properly compensate for the disadvantage to which the appellant had been subjected and, accordingly, the trial was unfair. 
Safety of verdicts
23.	Mr Bryan argued that the jury’s verdicts of not guilty upon counts 2 and 4 demonstrate that the remaining verdicts of guilty upon counts 1, 3 and 5 are unsafe. The jury found the appellant not guilty of indecent assault allegedly committed when A was changing into his chorister’s robes in Lady Chapel (count 2). The brothers who, according to the appellant, accompanied him to choir practice denied that they had served in the choir. The defence witnesses on whom the appellant relied gave evidence to similar effect. There was no logical reason why the jury should have rejected A’s evidence that indecent assault took place in Lady Chapel but accepted his evidence that there was indecent touching by the appellant on the way to church in his car. It was troubling, Mr Bryan submitted, that the jury rejected the serious allegation of digital penetration of the anus during the course of the barbeque (count 4), an event at which others were present, but accepted the unsupported evidence of the complainant that he was indecently assaulted in the urinal at the children’s home on two occasions (counts 3 and 5), particularly in the light of the hearsay evidence of E admitted by the judge to the effect that E could not recall any boys’ urinal on the ground floor of the children’s home.
Discussion and conclusion
24.	In argument as to prejudice caused by delay, Mr Bryan concentrated his submissions upon his inability to test the recollection of A against the complaint that he claimed to have made to staff at the children’s home in 1976. Something must have been said by the staff to the police or there would not have been any enquiry to the staff at Meon House as to whether the appellant would be available for interview. The court has recently considered the issue of prejudice and unfairness caused by lost records in RD [2013] EWCA Crim 1592 (Treacy LJ, Higginbottom and Nicol JJ). At paragraph 15 in his judgment given on behalf of the court Treacy LJ said:
“15. 	In considering the question of prejudice… it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant’s case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant.”
25.	We respectfully agree with and adopt the court’s reasoning. There is, in the present case, no doubt that contemporaneous documents were missing, principally the children’s home records. However, we do not accept Mr Bryan’s argument that those documents would necessarily have cast light on the reliability of A’s present evidence. There was first, in our judgment, no likelihood that in 1976 the staff at the children’s home would have taken care to record the particulars of any complaint made by A of the conduct of the appellant towards him. That a complaint was made was likely to have been recorded but we have no way of knowing what, if any, detail might have been included. According to A, the fact of a complaint came to the attention of the police. That there was an investigation into the conduct of the appellant against “boys” in 1976 was demonstrated by church and other  correspondence but there is no evidence that it concerned any complaint made by A. It is speculative to assume that the police had a record of the particulars of the complaint made by A to the staff at the children’s home. It was equally possible that they merely had information that a complaint had been made. No explanation existed as to why the complaint was not followed up with an interview with A. We do not consider that it was demonstrated to the judge that irremediable prejudice was done to the appellant’s case. We do not consider that this was one of the exceptional cases in which a fair trial was no longer possible. Furthermore, in his directions to the jury, the judge did not seek to undermine Mr Bryan’s argument by pointing out the degree of speculation required. On the contrary, he left the jury to assess the strength of the argument and to apply it to the benefit of the appellant when judging whether the prosecution had proved its case. In our judgment this was the appropriate response of the judge to the lacuna in the evidence. 
26.	As to the safety of the verdicts, there was ample reason why the jury would have returned verdicts of not guilty upon counts 2 and 4 without also concluding that A’s evidence in general was unreliable. It is, in our view, significant that, having retired at 10.24 am on 16 July 2014 the jury returned at 3.56 pm with a question that read:
“To believe the assault happened do we need to believe the specific circumstances around the assault?”
27.	The judge directed the jury that before they could convict of count 1 they must be satisfied that there was some indecent touching of the complainant by the appellant in the appellant’s car. In the case of count 2, however, he directed the jury that they needed to be satisfied so that they were sure that indecent assaults were happening in the area of the church, and in the manner, that the complainant had described in his evidence. The area of the church which A had marked on a plan for the purpose of identification was that part of the church, Lady Chapel, in which defence witnesses had given evidence the choristers never changed into their robes. In the case of count 3 and count 5 the jury had to be sure that there was an indecent assault such as the complainant described in the downstairs urinal at the children’s home. As to count 4 the jury had to be satisfied that the appellant inserted his finger into the complainant’s anus at a barbeque held at the house “described” by the complainant in his evidence. 
28.	In our view it is entirely understandable that the jury may have been unprepared, in the light of these directions, to convict the appellant upon counts 2 and 4. As the judge had reminded the jury in summing up, and repeated in his response to the note, there was disagreement as to the place at which the indecent assaults charged in counts 2 and 4 could have occurred. As to count 4, the complainant insisted that the barbeque was held not at the home of Mrs Brown, as conceded by the appellant, but at a much bigger house that A thought was the vicarage. As Mr Bryan rightly pointed out there was a further reason why the jury could not be sure of the count 4 allegation. When he made his complaint to the police in 2013, A was visited by Police Constable Egerton who made notes of the complaint. It did not include an allegation that the appellant had indecently assaulted the complainant during the course of the barbeque. He told the officer that the appellant had taken him from the barbeque to the vicarage where he had touched him indecently; he did not then claim that the touching comprised insertion of the appellant’s finger into his anus. 
29.	A’s long term friend, SH, gave evidence that when they were aged about 19 or 20 (perhaps older, but certainly more than 10 years before the trial) A revealed that he had been abused by the appellant in the manner alleged in counts 1 and 3. LM, another friend, gave evidence that several years before trial A had told her that he had been abused by the appellant. The abuse comprised “something being put over his face, a finger in the bum, pushing a penis in his face”. It seems to us that this evidence would have had some significance for the jury. It demonstrated that in relevant respects the complainant had been consistent. The appellant accepted that he had from time to time taken the boys from the children’s home in his car. It was open to the jury to conclude that the complainant had been assaulted while sitting in the front passenger seat of the car even if the brothers did not recall it. As to counts 3 and 5 it was known that the three brothers had been traced. It was open to the defence to interview them with a view to ascertaining whether the complainant had correctly recalled the existence of a urinal on the ground floor of the children’s home. They chose not to do so but to rely simply upon the statement of one of them to the effect that he could not recall such a facility. The appellant himself elected not to give evidence. We are not persuaded that the verdicts of the jury did anything to demonstrate that the judge’s decision to permit the trial to proceed was erroneous or that the jury’s verdicts were illogical or in any other way unsafe. On the contrary, it seems to us that the jury adopted an appropriately cautious approach to the evidence. For these reasons the appeal against conviction is dismissed.
Appeal against sentence
30.	In August 1997 the appellant was fined by the magistrates for possessing indecent photographs of children. In December 1998 at Portsmouth Crown Court he was placed on probation for a period of 3 years following his pleas of guilty to indecent assault of a male under the age of 16 during the years 1987 to 1990.
31.	On 30 September 2011, at Portsmouth Crown Court, the appellant was sentenced to a period of 3 years imprisonment upon his conviction by the jury for offences of indecent assault on a male under 14 years at a time contemporaneous with the 1976 investigation to which we have already referred. The victim was a boy whom we shall call “C”, a chorister at the appellant’s church who was unknown to the appellant.
32.	The appellant was released from his sentence of imprisonment on 28 March 2013. He was interviewed about the current matters in August 2013. The judge was provided with information which suggested that following his release from prison the appellant’s health had declined. The Offender Management Report referred to a “noticeable deterioration in his health both physically and mentally”. The risk level had reduced as a result. The appellant’s general practitioner described the appellant as “frail both physically and mentally”. The complainant himself had in his victim impact statement described his fearfulness for the repercussions upon the appellant and expressed the wish that he should not go to prison. The judge had, of course, to treat the public interest as paramount.
33.	We have the advantage of a report from the appellant’s supervising officer at the Offender Management Unit in HMP Littlehey, James Piercewright, dated 14 August 2014 that was not available to the judge at the time of sentence. Mr Piercewright reports as follows:
“It is evident from my conversation with him that Mr Halahan is not in [a] sound state of mind. He was at times incoherent and it was difficult to establish any kind of fluidity in the conversation … his behaviour has been good although it has been noted by prison staff that he often seems confused. Mr Halahan has not and will not in all probability be attending any kind of offending behaviour programme on this sentence. Having spoken to him I am on the opinion that he no longer has the mental capacity to cope with such intensive courses.”
Mr Piercewright confirmed that the appellant appeared to express no remorse or regret for his offences and that he would always present a danger to young boys. Once released into the community he would require close supervision.
34.	There can be no complaint of a sentence of 21 months imprisonment following the appellant’s trial. However, Mr Bryan makes the bold submission that the appellant is of an age and physical and mental condition such that it is no longer in the public interest to detain him in custody. He had already, and recently, served a significant sentence of imprisonment for more serious offences. Had the appellant admitted the offences against the complainant A at the time when he was sentenced in September 2011 it is unlikely that his total sentence would have exceeded the 3 years imprisonment then imposed. We are invited to consider suspending the sentence of imprisonment to which the appellant is now subject or to reduce it significantly.
35.	We are satisfied that we should take an exceptional course. We accept that the appellant’s physical and mental health is steadily deteriorating and that he is somewhat confused in his present environment. The OASYS assessment of the appellant while he was serving his previous sentence is, it is clear, becoming less relevant as time progresses. The appellant has now been in custody for almost three months. We shall allow the appeal against sentence and substitute concurrent sentences of 9 months imprisonment.