CATHY FOX Paul John Wright 26th April 1989 Court of Appeal

Paul John Wright 26th April 1989 Court of Appeal

Paul John Wrights appeal was successful

Redaction

Some reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should
not “censor” details but on consultation with various people I have
taken the decision to redact. This is mainly to protect victims, their
friends and relatives from unnecessary detail and to stop the
gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims
details, there may also be “assault redacted” across most of the
spectrum of abuse. The assaults are left in the charges, but mainly
redacted when repeated with reference to the individual. I have also
redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but
should make no large difference to the vital information for researchers
that these documents contain. That vital information is mainly names of
the perpetrators, past addresses, institutions where assaults occurred,
the actual charges the perpetrators faced, and dates – on which
newspapers are pathetically inaccurate and this information enables the
links between people and places and abuse at various times to be
ascertained.

Some transcripts may have been subject to automatic reading software
and whilst effort has been made to correct these, the text should not be
regarded as definitive.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[1989] EWCA Crim J0426-1      No. 3889/E3/88

IN THE COURT OF APPEAL  CRIMINAL DIVISION Royal Courts of Justice

Wednesday, 26th April 1989

Before: Lord Justice Mustill, Mr. Justice Hodgson and Mr. Justice Potter

(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd.
Pemberton House, East Harding Street, London, EC4A 3AS. Telephone
Number: 01-583 7635. Shorthand Writers to the Court.)

MR. M. GALE, Q.C. and MR. C. TAYLOR appeared on behalf of the Appellant.

MR. J. TOWNEND, Q.C. and MR. R. CARR appeared on behalf of the Crown.

JUDGMENT
(As approved by Judge)

LORD JUSTICE MUSTILL : Paul John Wright
was tried in the crown court at Lewes during May and June 1988. He
faced an indictment containing 26 counts. He was convicted on 9 counts,
and received sentences totalling five years’ imprisonment.

He now appeals against these convictions by leave of the single Judge.

At the material time the appellant was Headmaster of Slindon College,
an establishment which he had built up from scratch with considerable
effort. The school accepted a substantial number of maladjusted
children. Several witnesses spoke highly of the appellant as a teacher and a man.

The prosecution case was that, whatever his merits, the appellant had
fallen prey to a terrible temptation; that for at least two years he
had been indulging in homosexual activities with the pupils; that he had
regularly been engaged in buggery,
in both the active and the passive role; that the pupils had buggered
each other in his presence and with his encouragement; and that he was
also guilty of repeated acts of gross indecency. The case was that these
acts had taken place in the appellant’s study at the school and at his
flat in Arundel. The prosecution also alleged that when the police began
to investigate the allegations against him, the appellant conspired
with persons named Hamilton-Byrne and Dawson to persuade the
complainants to change their stories and to give false evidence
favourable to the appellant.

The appellant’s answer to all this was that he had never engaged in
any sexual activity with the boys. The truth of it was that a clique of
boys had been engaged in buggery
and other homosexual activities, in pairs and in groups, and that
fearful of discovery and punishment they had concocted a story which
made the appellant the seducer and ringleader. As to the conspiracy, his
case was that it may have been that his supporters and friends were
active in trying to persuade the false witnesses to admit the truth, but
this was because they rightly believed the appellant to be in danger of
suffering an injustice, not because they wanted to cover up any
criminal offences; and besides, even if what they did was imprudent or
even criminal, it was not done at his instigation.

As we have said, the indictment contained 26 counts. A number of
these were ordered to lie on the file on the usual terms. We need not
trouble with them. Counts 4, 5 and 6, which alleged offences with a boy
named [A], were withdrawn, because A gave evidence favourable to the
appellant. Counts 9, 10, 14 and 15, which alleged various incidents of
group sexual activity, were withdrawn because the accounts of the boys
did not tally. Count 12 was an alternative charge, on which a verdict
was not taken. Counts 16 and 18 were withdrawn because the complainant,
[B], was abroad and did not appear at the trial.

This left the following live charges. On counts 1 to 3, counts 7, 8
and count 11, count 20, count 21 and count 22 the appellant was found
guilty of offences relating to complainants named respectively [C], [D],
[E], [F], [G] and [H]. Charges contained in counts 24 to 26 were
withdrawn by the election of the Crown to proceed on the conspiracy
charge in count 23. On the latter count, which alleged a conspiracy on
the lines which we have already mentioned, the appellant was acquitted.

Thus the general effect of the verdicts was that the appellant was
convicted in relation to the substantive counts of offences against
individuals, which were of course specimen charges, with the exception
of those concerning B, who did not give evidence, and A, whose evidence
favoured the appellant. The appellant was acquitted, together with his
co-accused Hamilton-Byrne and Dawson, on the only surviving conspiracy
charge.

The details of the allegations and evidence which underlay the
substantive charges on which the appellant was convicted are of no
materiality, because the appeal was concerned exclusively with questions
of law and procedure, and we say nothing about them except to
emphasise, as is obvious, that the issue was one of credibility between
on the one hand a number of boys who admitted homosexual behaviour and
alleged that the appellant was a participant, and on the other the
appellant, who denied any homosexual behaviour with the boys: and we
emphasise “with the boys” for reasons which will appear.

It is convenient for present purposes to take issues in a rather
different order from the more logical sequence in which they were
developed during the submissions advanced for the appellant.

1. The trial Judge erred in allowing the prosecution to bring before
the jury two potentially incriminatory articles, namely a booklet and a
video tape, the former as evidence in the prosecution case, the other in
cross examination of the appellant, and having admitted them did not
properly explain their significance to the jury.

2. The prosecution introduced without warning questions in
cross-examination relating to matters which it had been agreed in
advance should be excluded.

3. The trial Judge mistakenly admitted in evidence an account by the
complainant D of what was said to him by a man named [Z], not charged or
named as a co-conspirator, of what Z thought about the guilt of the
appellant and of the reason why Z was trying to get D to change his
story.

4. The trial Judge should have acceded to a request by counsel for
the appellant to order a separate trial of the conspiracy charges.

We shall deal with these submissions in turn.

1. The incriminatory articles:

Some explanation of the background is required here. The appellant
was first arrested on 13th April 1987. With his consent a search was
made of his study at the school and of his flat. Nothing was found at
the flat. As to the study, it is right to record that this was by all
accounts very different from the ordinary, and perhaps old-fashioned,
kind of headmaster’s study. Evidently it was more like a social centre
for the school, which the pupils often visited to watch television,
converse and on occasions work.

In this room there were discovered some hotel bills concerning visits
to Paris. The details are immaterial. Sufficient to say that there was
an explanation, which the jury could believe if it chose, of why the
appellant had been paying visits to Paris.
Much more important was the finding, on or in the appellant’s desk, of a
booklet named “The Incognito Guide to Paris”. In itself this
publication was innocuous enough. It contained no pornographic material,
and consisted mainly of a list of addresses and advertisements, of a
kind produced in many large cities with a view to letting the visitor
know what attractions exist in the locality, and where they are to be
found. Its significance in the present case was that any juror who saw
it could immediately recognise that it was aimed at males with
homosexual leanings, and in particular at those with an interest in
young men.

The appellant was released and re-arrested some eight months later.
By this time he had moved from the flat in Arundel, which he had
occupied at the time of his alleged offences and at the time of his
arrest, to a house elsewhere in the same town. This was now searched by
the police, who discovered a video tape. This was in quite a different
category from the “Incognito Guide”. It was grossly obscene, consisting
of displays of buggery between two or more adult males.

The explanation of these articles ultimately given by the defendant
was that they had nothing to do with him. He said that many people had
access to his desk, and that the Guide might have been placed or left
there by accident or design in any number of ways. As to the video tape,
he had never seen it except when a friend, who was helping to sort out
his possessions after he had been compelled to leave his former
accommodation, had pointed it out to him. It was not found until eight
months after he had left the school, and he had no idea where it had
come from.

The question which arises under the first group of issues is whether
the appellant should have been put into the position of having to give
any explanation of these two articles, since the effect of them must
inevitably have been to show the jury that the appellant was a man with
homosexual inclinations, and indeed in the light of the video tape that
he had a keen interest in buggery,
at least between adults. (We should mention that it was rightly agreed
on all hands that the appellant could have no prospect of a
dispassionate consideration by the jury if the disgusting video had been
shown to them, and that, when it was put to the appellant in
cross-examination, its contents were summarised in brief and clinical
terms).

To anyone but a lawyer it might seem obvious that in general this
kind of evidence ought to be admitted. Here was a man accused of
homosexual activities on the occasions for which he was indicted. He
denied having done any such thing, making out the boys to be liars. Why
should he be allowed to say this, and what is more, to assert that they
were themselves a clique of buggers and yet remain silent about his own
proclivities?

Here we find his advisers setting out to conduct the case on the
basis that it was immaterial to the questions which the jury had to
decide whether he was a homosexual or not, and that nothing mattered
except the narrow issue whether he had done the homosexual acts
complained of. The appellant’s position was therefore that he would say
nothing about whether he was heterosexual, homosexual, bisexual or
asexual. No questions could be asked of him to elicit this information,
nor could any evidence (such as the incriminating articles) be laid
before the jury which might enable them to form an opinion on a matter
which surely must have been foremost in their minds. Surely, so it might
strike the layman, this cannot be fair.

It is not uncommon to find in judgments a
suggestion that a particular proposition might appeal to a logician,
but not to the ordinary man; or vice versa. In the present instance it
might be said that to allow the appellant to run his case in this way
would appeal to neither. Naturally we had in mind the rule, now well
established for more than a century, that evidence of disposition may
not in general be led against an accused person, and we were of course
struck by the fact that, at least in the earlier stages of the trial,
counsel for the prosecution were willing to play their part in ensuring
that this neutral stance on the part of the appellant should not be
compromised. Nevertheless, since this aspect of the appeal was concerned
with the question whether the appellant’s immunity from enquiry into
his sexual orientation had been improperly breached, we thought it right
to invite submissions on the basis of the supposed immunity.

In response we have received a very full citation of the authorities
which has left us in no doubt that counsel both for the appellant and
for the Crown were quite right to take as the starting point of the
trial the general proposition that as regards his own evidence in chief,
the questions put in cross-examination, and evidence from other sources
on the same point, the jury should not be invited to consider whether
he was a homosexual or not. Whilst gratefully acknowledging the
assistance which we have received, we need not burden this judgment
either with any exploration of the reasoning which underlies this
well-established principle of English criminal procedure, or with the
numerous and difficult authorities on the so-called similar facts rule: a
rule which has nothing to do with the present case. It is sufficient
for present purposes to cite from those judgments which are most
directly in point. But first we must summarise the course of events in
the Crown Court.

What happened was this. The appellant and his advisers had a choice
of three strategies. First, he could accept (if it was indeed the case)
that he was a homosexual, or at least had homosexual tendencies, but
that he would never have thought of committing the crimes of which he
was accused, against the young and vulnerable people entrusted to his
care. At the other extreme he could have presented himself as a
heterosexual to whom the idea of committing the kind of act described by
the witnesses for the prosecution would have been repugnant in any
circumstances, let alone those of a relationship between headmaster and
pupils.

In the event, as we have said, the
appellant and his advisers chose to present a third, and entirely
neutral, picture of his sexuality. He was put forward neither as a
heterosexual, nor a homosexual, nor a bisexual, nor a person with no
sexual inclinations at all. Instead the case for the defendant was to be
that his sexuality, whatever it might really have been, was to be left
to the jury as a complete blank.

To run a case like this, in the context of a long and complex trial,
was liable to present many opportunities for misunderstanding and error.
Accordingly counsel very sensibly discussed the matter beforehand and
an agreement was reached as to the way in which the prosecution would
present its case. The general drift of this was that the prosecution
would not set out to portray the appellant to the jury as a man with
homosexual tendencies, who because of these tendencies was more likely
to have been guilty of the offences charged than if he were
heterosexual.

Consistently with this approach the witness statements of the police
officers were edited so as to exclude those parts of their interviews
where they had asked the appellant, and he had denied, whether he was a
homosexual. Also, the Crown agreed to exclude some evidence about hotel
bills which might, without explanation, have pointed towards overseas
trips for homosexual purposes. It also seems clear enough that the
agreement between counsel had two particular features. First, that the
prosecution reserved the right to invite the Judge to admit the
“informal guide” in evidence as part of its case. Second, that the
prosecution could not seek to put the video tape in evidence as part of
its case.

Unfortunately the precise effect of this agreement either was not
clarified in the first place, or became obscured in the course of the
trial. We appreciate very well that whereas in an appellate Court the
issues are usually few and clear-cut, by contrast during a trial, and
particularly during the earlier stages, there are numerous questions of
tactics and administration preoccupying those responsible for presenting
the case – and preoccupying the Judge also – which may lead to ends
being left untied. Nevertheless, the fact remains that there must have
been a misunderstanding about the degree of the Crown’s consent to
abstain from using the incriminating articles, which led to serious
difficulties later in the trial.

However that may be, the case for the prosecution in its initial
stages was conducted without reference to the appellant’s sexual
preferences or to the incriminating articles. The complainants completed
their evidence, which was the subject of vigorous cross-examination,
not only on the offences themselves but also on the complainants’ own
homosexual tendencies and practices, and on their characters and
behaviour in general.

On the ninth day of the trial the evidence of the police officers was
being taken. The prosecution then sought to lead evidence of what their
searches of the defendant’s study and house had revealed, and in
particular of their discovery of the booklet and the video tape. The
admission of this evidence was objected to, and there was argument upon
it. By this time leading counsel for the prosecution (Mr. Townend Q.C.)
was no longer able to participate in the case, and the conduct of the
trial was in the hands of his learned junior, Mr. Carr.

Two comments must be made about the decision to lead evidence about
the incriminating articles. First, as to the booklet: the possibility of
putting this in evidence was expressly reserved in the pre-trial
agreement, and the appellant can have no complaint about it.
Nevertheless – and we say this without any disrespect to Mr. Townend,
for whose frank and helpful submissions on this appeal this Court is
greatly indebted – it is not easy to see how an attempt to prove
possession of the booklet, which, as Mr. Carr said to the Judge, was put
forward as evidence that the appellant was a homosexual, could be
consistent with the general agreement that he would not be put forward
by the prosecution as being a homosexual. Secondly, the attempt to put
in the video tape as part of the prosecution case was contrary to the
agreement reached before the trial: so there must have been some
misunderstanding on the side of the prosecution.

In the event the trial Judge admitted evidence of the booklet and excluded the video tape. His ruling was expressed as follows:

“I have had to pick my way, as best I can, through the minefield of
the law relating to the admissibility of evidence in respect of articles
found in possession of a defendant bearing in mind, in particular, the
allegations which have been made in cross-examination of the boys to the
effect that here was a conspiracy to accuse the headmaster of buggery
because the boys themselves had been indulging in conduct of that kind
and so were anxious to protect themselves. I hold that the evidence of
the Incognito Guide of Paris, 1983, is a relevant matter of evidence and
is admissible in law. But I hold that the evidence of the video tape
found in the defendant’s possession months after his original arrest is
inadmissible. If it should be admissible, then I would exercise my
discretion in favour of the defence. I therefore have to decide whether
to allow the evidence relating to the Guide to be given, or to hold that
its probative value is outweighed by its prejudicial effect, and I
decide that the prejudicial effect is a matter which this defendant has
to ‘tolerate’ – to use the word used in the case of  Ager.  So far, therefore, as the Incognito Guide is concerned, I exercise my discretion in favour of the Crown.”

In accordance with this ruling a police officer gave evidence of finding the booklet. He said nothing about the video tape.

At a much later stage however, when the appellant himself was giving
evidence, the prosecution applied for and obtained leave to
cross-examine him on the video tape under section 1(f)(ii) of the
Criminal Evidence Act 1898, on the ground that by cross-examination of
the police officers and the complainants and by his own evidence, he had
presented himself as a person of good character, a kind and considerate
headmaster, and so on, whereas he had attacked the prosecution
witnesses as perverts who had banded together to put him into prison
through lies.

The appellant now contends that neither of the items should have been put in evidence. We shall take the booklet first.

One must begin by asking whether, in a case where the issue is
whether the act alleged by the complainant ever took place at all,
evidence is admissible that the defendant had done similar acts in the
past, or could be shown through the possession of incriminating articles
or otherwise, to have a learning towards such acts.

It is not hard to imagine legal systems in which such evidence would
not only be admissible, but would be regarded as having high probative
value. Nevertheless, this has never been the policy of the English
criminal law, not so much on the grounds of logic, but because it is
considered that to entrust it to a jury would be too great a risk. It is
unnecessary to cite any more authority for this proposition than the
off-quoted opinion of Lord Herschell in  Makin v. Attorney General for New South Wales  (1894) A.C. 57, 65.

This principle is subject to exceptions, as Lord Herschell himself
acknowledged. Thus if a person accused of indecnetly touching a child
admits the contact but asserts that it was accidental, evidence of
previous similar acts may be admitted, because it is relevant to the
issue of accident or design: see  Makin  (supra) and  Bond  (1906) 2 K.B. 389. So also if there is a defence that acts prima facie attributable to guilt in fact had an innocent explanation. See Gale
(1987) (unreported), where a defendant who had taken indecent
photographs of his young step-daughter claimed that he had done so for
artistic purposes at the instigation of his wife, and where it was held
to have been proper to admit evidence that he had written pornographic
fantasies to describe in a manner which bore a close resemblance to the
very type of incident which the girl had herself described the sexual
initiation of a young girl by her father.

Again such evidence may be permitted where it goes to disprove a
defence that an association with the complainant bears an innocent
explanation. Another exception exists where there is no doubt that an
offence was committed by someone, but where the defendant denies that he
was that person, and where the evidence is of acts done by the
defendant which bear a striking similarity to those done by the offender
on the occasion in question:  Thompson  (1918) A.C. 221 ;  Reading  (1965) 50 Cr. App. R. 98 and  Mustfa  (1976) 65 Cr. App. R. 26. (Whether  Twiss  (1918) 2 K.B. 853 can now be justified on this ground may one day have to be discussed. We need not decide this here).

Although these exceptions are well established, it is also quite
clear that they are not brought into play simply through a denial that
the acts in question ever happened at all. This is demonstrated by  Cole  (1941) 28 Cr. App. R. 43 ,  Horwood  (1969) 53 Cr. App. R. 619 , and perhaps most clearly by  Lewis  (1982) 76 Cr. App. R. 33
, where evidence of paedophilic tendencies was held admissible in
relation to counts where the touching was said to have been innocent or
accidental, but not in relation to an incident which could have had no
innocent explanation, but which the defendant denied had ever taken
place.

Here it cannot be said that the appellant had raised any defence of
the types which we have mentioned: he did not admit the incidents whilst
denying that they involved any criminality on his part. He asserted
that the boys had made them up. In argument at the trial counsel for the
prosecution asserted, and the Judge must be taken to have accepted,
that the book was “strong probative evidence that he was a homosexual”.
The authorities show that this is not a permissible ground for admitting
the evidence, any more than was the evidence of the questions about
homosexuality in the police interviews, and of the visits to Paris,
which were properly omitted pursuant to the agreement reached before the
trial began.

In our judgment the evidence concerning the booklet should not have
been admitted, and the booklet itself should not have been seen by the
jury.

We now turn to the video tape. We have already shown that the
admissibility of this article was put in question twice: first when the
prosecution sought to adduce evidence of it from the police officer, and
secondly when the appellant was giving evidence on his own behalf. On
the first occasion the learned Judge excluded the evidence. Given that
in the course of the same ruling the Judge had decided to admit the
booklet, which raised the same issue of principle, and in the light of
the arguments preceding the two rulings, it seems that the Judge must
have founded his decision to exclude the tape on the lapse of eight
months between the alleged offences and the discovery of the tape:
evidently on the ground that proof that the defendant was interested in
group buggery eight months after the event told the jury nothing about his guilt or innocence at the time of the event.

We have no doubt that the ruling was right, but on the simpler ground
that the tape was on the same footing as the booklet, and was
inadmissible in principle, quite apart from the fact that in the face of
the agreement not to lead evidence of the video tape, an attempt to
lead it should not have been made.

The real issue was whether the tape should have been let in at the
later stage. This question turns on section 1 of the Criminal Evidence
Act 1898, the material parts of which read as follows:

“Every person charged with an offence, and the wife or husband, as
the case may be, of the person so charged, shall be a competent witness
for the defence at every stage of the proceedings, whether the person so
charged is charged solely or jointly with any other person.

“Provided as follows: …… (e) A person charged and being a witness in
pursuance of this Act may be asked any question in cross-examination,
notwithstanding that it would tend to incriminate him as to the offence
charged. (f) A person charged and called as a witness in pursuance of
this Act shall not be asked, and if asked shall not be required to
answer, any question tending to show that he has committed or been
convicted of or been charged with any offence other than that wherewith
he is then charged, or is of bad character, unless –….. (ii) he has
personally or by his advocate asked questions of the witnesses for the
prosecution with a view to establish his own good character, or has
given evidence of his good character, or the nature or conduct of the
defence is such as to involve imputations on the character of the
prosecution or the witnesses for the prosecution…..”

It seems to us that the possible objections to the admission of the
evidence under paragraph (ii) of the proviso may be summarised as
follows: (1) The evidence was inadmissible, and hence could not have
been adduced, even if the requirements of sub-paragraph (f) (ii) were
satisfied. (2) The cross-examination about the tape did not tend to show
that the appellant was “of bad character”. (3) The attempt to deploy
the tape in cross-examination was contrary to the agreement reached
before the trial began. (4) The terms of the first ruling misled the
appellant’s advisers into believing that they were immune from any
future attacks of which the tape might form part. At the least should
have warned them of the risk that he might let the tape in at a later
stage. (5) There was insufficient evidence to connect the appellant with
the tape. (6) If the evidence was to be let in, it required, but did
not receive, a very careful direction to the jury about the uses to
which it was to be put. We take these points in turn.

The first two objections, which may conveniently be taken together,
have caused us some anxiety, because of the way in which the matter
developed in argument. The problem is as follows. One of the contentions
advanced on behalf of the appellant was that the question about the
tape did not go to his “bad character” within the meaning of proviso
(f), and were therefore not permissible under section 1.

In the course of argument on the appeal the Court inquired whether
this did not perhaps state the position the wrong way round. Perhaps one
could say that if the 1898 Act were to be read literally, the proviso
would be seen not as a permission to ask questions which could not
otherwise be asked, but as a prohibition against asking questions which
otherwise could properly be asked; and that the effect of sub-paragraph
(f) (ii) would therefore be to define the circumstances in which the
prohibition would be lifted, and questions otherwise permissible would
once again be permitted.

On this view it would be necessary to consider as the first stage of
the inquiry whether the questions could, apart from the statute,
properly have been asked. It might therefore be said to follow that if
(as we have held) the booklet and tape were inadmissible, as being
outside any exception in  Makin  , the
questions could not be put whatever “bad character” might mean.
Moreover, it would seem to follow that the meaning of “bad character”
could not arise in the present case, for the words would merely serve to
identify the kind of question which would be prohibited if the
requirements of sub-paragraph (ii) were not fulfilled: whereas it is not
disputed here that they were fulfilled, given the way in which counsel
for the appellant had cross-examined the complainants and adduced
evidence of the appellant’s sterling worth.

In the event neither counsel was inclined to support this way of
looking at the Act, and some of the cases read seemed to be against it.
The point was therefore not pursued, and the argument was confined to a
brief analysis of the ordinary meaning of “bad character”.

Since the conclusion of the argument we have taken the opportunity to
conault the speech of Viscount Sankey, Lord Chancellor, in  Maxwell  (1935) A.C. 309
, at page 316 to 320, and the discussions in Cross on Evidence, 9th
Edition, Chapter XI and Phipson on Evidence, 13th Edition, paragraphs
13-19 et. seq. These seem to show that in part the view tentatively
advanced may have been right; to this extent that proviso (f) does not
enlarge the scope of what is admissible. They also show however that the
tentative view expressed in debate, that if the tape was not admissible
under the exceptions to  Makin  , it could not come in under the statute at all, was probably mistaken: for  Maxwell 
and other cases show that questions about bad character may also be
admissible if (i) they serve to controvert a positive case of good
character which the defendant has himself raised, or (ii) the question
is sufficiently relevant to the credibility of the defendant.

If the gist of these opinions was indeed
correct, a difficult question would arise. The whole matter stems from a
statutory provision which has often been characterised as an
unsatisfactory compromise. Authorities on the intrinsic relevance of
questions asked of a defendant aside from the statute are hard to find,
since a defendant could not give evidence in any but a limited class of
case, until permitted by the 1898 Act, so that the issue has almost
always arisen within the framework of that Act. Moreover the distinction
between matters going directly to the primary issue and those going to
the credit of those who give evidence on the issue is hard to operate in
practice, and possibly unsound in theory. The whole matter is overlaid
by the general discretion of the Judge to exclude evidence: so that if
one asked by way of example whether the question put in the present case
would have been within the statute if the appellant had been accused of
burglary, not  buggery
(cf. phipson, op.cit., paragraphs 13-43), the answer would be that in
practice a Judge would never allow them to be put, whatever the position
in theory. Furthermore it would also be necessary to consider to what
extent the character of the defendant can be regarded as “divisible”.

If the present appeal had turned on this particular point, we would
have thought it right to invite full argument upon it, and we should
have wished to explore how it could matter, for present purposes, what
“bad character” might mean, given that the defendant had put his
character in issue, and had hence released the prohibition against
asking questions about bad character. As will appear however, we do not
regard this ground of appeal as decisive, and although we have spent
some time in explaining the difficulties, we think it preferable to
express no conclusion upon them, since they may prove to be of great
importance in another case.

We pass therefore to the next question, which concerns the pre-trial
agreement. Here again there must have been a misunderstanding. Mr.
Townend told us, and we accept, that he would never have agreed that the
tape would in no circumstances be used. This would, for example, have
meant that if the appellant had spontaneously departed from his tactic
of sexual neutrality, and announced in evidence that he was a
heterosexual for whom the very idea of buggery
was disgusting, the prosecution would have been unable to confront him
with the tape. No counsel would tie his hands in this way. What
undoubtedly was agreed was that so long as homosexuality was not an
issue in the case, the prosecution would not make it an issue by
utilising the tape.

The problem is to know what the agreement meant in relation to
section 1(f). From the very outset it was inevitable that the conduct of
the case for the appellant would let in the proviso, for he could do no
other than subject the complainants to every available attack. If he
went further and put himself forward as an upright man, reliance on the
proviso became even more likely. In such a case did the prosecution bind
themselves not to invite the Judge to put the tape in evidence? If it
was admissible on credit, would it be excluded because it went also to
homosexuality – as did several other questions which could have been
put? We believe that in the press of preparing for trial this problem
was not worked out. At all events, we do not feel justified in holding
that the use of the tape in cross-examination was an unfair breach of
the pre-trial understanding.

The next complaint is that the Judge’s first ruling, unaccompanied by
any warning as to its limitations, misled the appellant’s advisers into
believing that they could call their client without risk of his being
taxed with the video tape. The warning to which this argument relates is
not the warning customarily given when counsel embarks on a line which
may put his client’s character in issue: for any such warning would have
fallen due much earlier in the trial, when the complainants began to be
cross-examined about their own behaviour, and it is not of course
suggested by Mr. Gale that he did not know just what was involved in the
course which he pursued.

What is said, as we understand the argument, is that if the Judge had
made it clear that his ruling was only provisional, the appellant’s
advisers would have considered whether it would be wise for him to give
evidence, particularly since they had made a considerable impression in
cross-examination, as the withdrawal of the charges in relation to
Sherwin made clear. Whatever decision they might ultimately have taken,
it was unfair to let them take it in the dark.

This is not a point which can be discussed at length. We can only say
that, having studied the transcript of the argument and the first
ruling, we see nothing which unequivocally indicated either that the
time element made the tapes useless for any evidentiary purpose, or that
the Judge was doing any more than reject the application before him,
which was to allow the tape to be used as part of the prosecution case.
What its status would be at a later stage would depend on the
circumstances.

The fourth complaint is that the prosecution never laid the ground
for establishing that the tape was ever in the possession of the
appellant, in the non-technical sense, so as to be available as evidence
of vicious tendencies: and, what is more, that he should have been
called upon to explain why it wa amongst his belongings, before that
ground was laid.

Without a full transcript we cannot assess the weight of this
argument and, because of our opinion on other issues, it is unnecessary
to do so.

The fifth objection is that the learned Judge did not sufficiently
direct the jury in relation to the significance of the video tape and to
the facts of which they must be satisfied before relying on it as
evidence against the appellant. The same criticism is made with regard
to the booklet.

In our judgment, whatever doubts there may be about some of the
points previously discussed, the appellant is on firm ground here. The
two incriminating articles were dealt with briefly at an early stage of
what was to be a long summing up, when the learned Judge was discussing
the evidence of character on both sides. The jury would at this stage
need help on two questions: first, about whether there was any
sufficient connection between the articles and the appellant, beyond the
fact that one had been discovered in or on his desk, and the other in
his house.

Often there would be no problem, and no need for elaborate direction,
about the provenance of articles found in the apparent possession of a
defendant. Here, by contrast, there were serious issues about the nature
of the study and the desk on the one hand, and the long time lapse
coupled with removal of possessions from their original location on the
other, of which the jury needed to be reminded, and on which they would
need guidance. They received none.

Secondly, it was essential that they should be told that if the
articles were relevant at all, they went to credit, and not (via proof
of propensity) to a direct proof of guilt. All that the learned Judge
actually said was this:

“Has the defendant been very unfortunate in having these two articles
found amongst his belongings when both could show an interest in
homosexual activities with young males?”

We acknowledge unreservedly the difficulty of formulating an
intelligible direction to a jury on a matter which is so opaque even to
lawyers. Nevertheless on attempt must be made. In this case we are
obliged to say that no such attempt was made, and that what the Judge
did briefly have to say had the effect of pointing the jury in the wrong
direciton. So we hold that there was a material misdirection, quite
apart from the irregularity which occurred in the admission of the
booklet, and which may well also have occurred in relation to the video
tape.

2. Cross-examination on excluded matters:

The next ground of objection is stated on the following lines. It
will be recalled that an agreement was made concerning the excision of
certain exchanges in the police witness statements about hotel bills
relating to foreign visits of his own, and trips with other men, on the
ground that this went only to the issue whether the appellant was a
homosexual. Nevertheless, when the appellant was being cross-examined,
it was put to him without warning that such visits had been made.

Again there must have been a misunderstanding on the prosecution
side. It is true, as was pointed out for the Crown, that there was no
application on behalf of the appellant for the jury to be discharged,
and it is said that no great harm was done. We are by no means so sure
of this, since there was also evidence of a trip by the appellant and
two of the complainants to Monte Carlo. There was no evidence of any
impropriety on this trip (which had, as it happened, proved to be the
event which set the whole investigation and prosecutions in train), but
the jury must have been led to wonder whether it was not all of a piece
with the behaviour of the appellant as a whole. However this may be, the
adoption of this line in cross-examination was not in accord with the
agreement previously made, and should not have happened.

3. Evidence of D:

It is first important to make clear that the evidence complained of

If admissible, was admissible only in relation to the conspiracy
charged in count 23, and indeed the Crown only sought to adduce it on
that basis.

The co-defendants to the conspiracy charged were the appellant,
Hamilton-Byrne and Dawson, who were alleged between 1st May 1987 and 8th
January 1988 to have “conspired together and with a person or persons
unknown with intent to pervert the course of justice …. in that they
approached …. potential witnesses ….. with a view to persuading them to
change existing statements ….. or give false evidence”.

The evidence complained of was the evidence of a schoolboy witness,
D, to the effect that he had been asked by another boy, A (who had been
called as prosecution witness), whether he would discuss the case with
someone, as a result of which D, A and another boy, E (also a Crown
witness), met a man called Z, who was in fact the son of Mr. Z the
Trustee of the School. D said that Z was trying to get all three boys to
change their statements. He said that the appellant “did not deserve
it”, and also asked the boys to write a letter and send it to the
appellant apologising for the trouble they had caused him and saying
that it was all wrong.

All this was plainly hearsay evidence, quite inadmissible under
ordinary rules of evidence relating to substantive charges, and it was
objected to by the defence on the grounds that the conversations, and in
particular the remarks of Z, were no more admissible on the conspiracy
count, since they were not the acts or statements of any conspirator
named in the indictment, nor of “a person unknown”.

The defence also took the point that the Crown’s anxiety to introduce
the evidence was in reality an attempt to discredit the evidence of A
who, when called by the Crown, had stated in evidence that the
statements and allegations the boys referred to had indeed been
concocted. Further the Judge had refused the application of the Crown at
that stage to treat A as a hostile witness, and it was suggested that
the Crown were simply seeking to circumvent the Judge’s earlier
decision.

It is of course the rule, as both counsel accepted before the Judge
in the course of their submissions, that where conspiracy is charged,
the acts and statements of any of the conspirators in furtherance of the
common design may be given in evidence against the others. In such
cases the first thing to be proved is the conspiracy. Then evidence must
be given to connect the defendant with it and, finally, if it is
intended to give in evidence against the defendant the acts or
statements of another person, it must be shown that such person was a
member of the same conspiracy and that the act was done in the
furtherance of the common design.

It is also the position, as we would observe, that in any given case
(i) the presentation of the evidence and the jury’s later consideration
of it may not follow the logical pattern outlined above, and (ii) the
evidence going both to the question of the existence of the overall
conspiracy and the defendant’s participation in it may be substantially
the same. However at the end of the day each element falls to be
considered separately and the sufficiency of the evidence must be
assessed in relation to each: see  R. v. Walters  (1979) 69 Cr. App. R. 115.

In the instant case all the necessary elements, that is to say proof
of the conspiracy, the overt acts in pursuance of it, the identity of
the defendant as connected with it, and the inference of common design,
substantially, if not entirely, depended on the contents of the single
conversation between Z and the other schoolboys referred to above.

That being so, in relation to the question of admissibility defence
counsel raised a further point of objection, namely that, even assuming Z
was capable of being regarded as a co-conspirator (although not
referred to in the indictment), the only evidence of common purpose
between himself and the appellant was the conversation relied on, and
therefore, at best, this was an instance of the “conditional
admissibility” of evidence which would have to be excluded if no outside
or additional evidence of common purpose was adduced: see  R. v. Donat  (1986) Cr. App. R. 173 at pages 179 to 180.

The answers of the prosecution to the points taken by the defence were as follows.

First it was said that the fact that Z was not named as a
co-conspirator with the appellant was not fatal to the admission of
evidence as to what he had said, if on all the facts it was plain that
he was such a conspirator and that the conversation was an overt act
carried out in the course of such conspiracy. It was explained (not very
convincingly in the view of this Court) that, on the evidence available
to it, the Crown had felt unable sufficiently to identify Z for the”
purposes of making him a named conspirator, and that he was properly to
be regarded as a person covered by the reference in the conspiracy count
to “a person or persons unknown”, whose identity had subsequently
become obvious.

Whether or not that was so, the authorities are clear that, for the
purposes of the admissibility of the acts or statements of one
conspirator (A) against another conspirator (B) in the furtherance of a
common design, it makes no difference whether A has been indicted or
not: see Archbold (43rd Edition) paragraph 28-30. Accordingly the
defence objection on that particular ground failed.

Second, the prosecution denied that the purpose or effect of
admitting the evidence was to seek to destroy the effect of the evidence
which Sherwin had given when called for the prosecution.

Again this Court found that denial somewhat unconvincing. Again
however such purpose or effect would not in itself render the evidence
inadmissible and the Judge’s decision to admit the evidence cannot be
faulted on that score.

Third, the prosecution sought to avoid the effect of  R. v. Donat 
by referring to links established aliunde in the evidence between the
appellant and his named co-conspirator which might suggest or lead the
jury to infer that the appellant was party to the attempt to suborn
witnesses, from which in turn it was said the jury might infer that the
appellant had put Bridge up to making the approaches he was said by D to
have made.

However those references failed to meet the essential point that,
even if Z to be regarded as a co-conspirator, something more was needed
to establish a common purpose or link between Z and the appellant than
the very statement of Z alleged to have been made (and only admissible
if it was made) in the course of the conspiracy. In that respect the
Crown did not at the time of the defence objection indicate, and never
subsequently adduced, any evidence of a link between the appellant and
Z, who was in no other respect the subject of, or mentioned in, evidence
for the Crown at the trial.

This being so, it seems to this Court that the Judge was in error in
admitting the evidence and, having done so, was in furhter error when he
failed in summing up the case to the jury to instruct them to put out
of their minds the evidence which D gave.

Nonetheless the principal point taken by the prosecution on this
appeal is that, even if the Judge was in error, no harm was in fact done
because the defendants were acquitted on count 23 of the indictment,
which was the only count to which the evidence of D was addressed.
Accordingly it is said that this Court should be prepared to apply the
proviso in this respect.

Mr. Gale for the appellant argues to the contrary, and asserts that
upon the acquittal of the defendants on count 23, the damage done by the
admission of D’s evidence was by no means spent. Indeed, the effect of
the evidence led (which we have summarised above), was compounded by the
answers of the witness in cross-examination, when he said in terms that
Z was not saying that the Headmaster was not guilty but that the
Headmaster was guilty “but did not deserve what he would get”. Mr. Gale
says that all one can reasonably deduce from the acquittal on count 23
was that the jury did not find that the appellant’s complicity in Z’s
approaches had been proved.

Mr. Gale goes on to say that the evidence that the approaches were
made, and the terms in which they were said to have been made, would
have created in the mind of the jury not only the impression that the
appellant had been party to Z’s approaches, but that Z at least (and
probably others) believed that the appellant had been guilty of indecent
conduct and was worthy of assistance, not because of his innocence, but
because there were worse offenders about than him.

Mr. Gale also complains, rightly in our view, of the Judge’s failure
when summing up to instruct the jury to disregard the evidence of D in
relation to the substantive charges in the indictment.

If the error of the Judge in admitting D’s evidence had stood on its
own, we should have wished to consider carefully whether its effect was
so serious as to preclude the application of the proviso. It does not
however stand alone, and we do not consider that it should be viewed in
isolation from the other grounds of appeal.

4. Severance:

We shall deal with this last complaint as briefly as we can, given
the conclusions which we have reached on the remainder of the appeal. It
arises in this way. Before the trial began three submissions were made
by Mr. Gale in relation to the indictment: that counts 21 and 22, which
related to comparatively minor incidents concerning two complaints,
should be severed; that counts 23 to 26 should also be severed; and that
the Crown should be put to its election whether to proceed on count 23
(the overall conspiracy count), or on the associated substantive count.
The first submission failed. We are not concerned with this. The third
submission succeeded, and the Crown elected to proceed on count 23
alone. The second failed, and this is the subject of this ground of
appeal.

The submission that counts 23 to 26 should be severed was made to
Judge Clay in rather unusual circumstances, in that it had already been
argued on an application to sever, made before His Honour Judge Gower
Q.C. on a pre-trial review, after arraignment, and had been rejected. No
complaint has been made upon Judge Gower’s ruling, although as matters
turned out it was the remote origin of the problem with D and Z which we
have just discussed. But that is hindsight. We have read the
proceedings before Judge Gower and are quite satisfied that he made no
error of law and that his decision not to sever was well within the
scope of his discretion. The problem concerns the ruling of Judge Clay
when the point came to be raised again at the outset of the trial.

In summary our opinion is this. We think it immaterial whether or not
the trial can be supposed to have begun when the appellant was
arraigned before Judge Gower, since the power under section 5(3) of the
Indictments Act 1915 may be exercised “before trial”. We further
consider that if the question had arisen during a trial before a Judge
who had already ruled at the outset of the trial, he would not have been
formally bound to maintain his original ruling. He could have reversed
it, if he felt that the interests of justice so demanded, with whatever
consequences as to the future conduct of the trial the circumstances
might dictate. Equally he could have refused to entertain a renewed
submission on the question, unless satisfied that the circumstances
governing his original ruling had not materially altered. It would not
be his duty to listen, to the same arguments on the same facts over and
over again. The position would, as it seems to us, be the same if his
prior ruling had been given just before rather than at the trial.

The curiosity of the present case arises from the fact that it was a
different Judge who had been responsible for the first ruling. This is
not simply a reflection of the fact that there was a pre-trial review: a
valuable practice which results from judicial administrative action,
not from any statute or rule of court. Independently of any pre-trial
review, the 1915 Act permits the decision to be taken before trial, and
there is nothing to say that it must be taken by the Judge who
ultimately proves to be the trial Judge: although, as the present case
amply demonstrates, it is much preferable if matters can be so arranged
that the Judge who makes important decisions before trial does so in the
knowledge that it is he who will conduct the trial itself.

In our opinion, the decision on severance by the first Judge does not
bind the second; conversely, the latter is not obliged to hear the same
point argued again if nothing material has changed. If however it is
asserted that there has been a change, then he should permit the
happening of the change to be canvassed, and if satisfies that there
really is something new which might affect the justice of maintaining
the original order, he should look at the matter for himself.

Now what seems to have happened here is that Mr. Gale for the
appellant, arguing before Judge Clay, contended first that what had been
decided by Judge Gower had no real status at all, and that Judge Clay
ought to approach the question of severance entirely afresh; and that,
alternatively, there had been sufficient change of circumstances, in the
shape of the decision by one of the complainants not to appear, so that
three of the substantive counts would fall away, and the balance of the
trials as between the substantive counts and the allegations of
conspiracy had undergone a substantial change.

For the Crown Mr. Townend accepted, correctly as it seems to us, that
if there was a new situation the second Judge should, or at least
could, re-open the position; but he went on to contend that the
circumstances had not in fact changed sufficiently to make this
necessary.

It appears however that Judge Clay did not adopt either approach. He
simply regarded the matter as concluded by the ruling of Judge Gower.

In this we believe the learned Judge to have erred. The consequence
is not easy to decide. Here we have a decision by Judge Gower
unimpeachable on appeal. If Judge Clay had considered whether there had
been a sufficient change to justify re-opening the question, he might
properly have decided that there was not: and ever, if he had looked at
the matter afresh, he might properly have reached the same conclusions
as Judge Gower. We do not know, since he never entered upon either
question.

Should this Court now interfere? The idea that we should is
unattractive, given that if the matter had arisen for the first time
before Judge Clay, a decision not to sever would have been well within
the scope of a proper exercise of the discretion. But the learned Judge
never exercised the discretion at all in relation to the submissions
with which he was faced. We cannot exercise it for him. Not can we say
that the decision to sever was a foregone conclusion, so that the
absence of any formal consideration of the matter by Judge Clay has
caused no injustice: for although Judge Gower’s decision could not
properly have been attacked on appeal, it was a point on which different
Judges might well have taken different views. In these circumstances we
are driven to hold that the failure of Judge Clay to address at all the
question whether to review Judge Gower’s decision must be regarded as a
material irregularity.

As already indicated, it has been submitted that, since the
defendants were acquitted on the conspiracy count, no harm was done by
the refusal to sever. We do not accept this argument. As we have said
already, the verdict is inconsistent with a conclusion by the jury that
the individual attempts to suborn witnesses were made out but that the
agreement was not. If that was the view of the jury, they may yet have
drawn an inference, not logical, but perfectly understandable inference
adverse to the appellant, for the reasons already stated in relation to
the evidence of D.

Conclusion:

Whilst recognising that this was a difficult trial for the Judge and
counsel alike, we are bound to state that there were a number of
material irregularities, as well as more than one important
misunderstanding between counsel, which make it impossible for the
verdicts of guilty to stand. The appeal must be allowed and the
convictions quashed.

MR. TAYLOR: May I on behalf of the appellant apply firstly for his
costs. He is presently legally aided. I would ask your Lordships to
grant his costs both of these proceedings and in the court below. If
your Lordships were minded to take the view that in some way he brought
the matter on his own head, I am in a position to address you briefly
what that is not so.

LORD JUSTICE MUSTILL : Were you legally aided throughout, or only here?

MR. TAYLOR: My Lord, no, legally aided here, privately below. Mr.
Wright was placed in a difficult position which again perhaps underlies
some of this case, in that there were in his school a number of pupils
who effectively wanted to oust him —–

LORD JUSTICE MUSTILL
: We need not go into any of that. The appeal was allowed on the ground
of things having gone wrong at the trial. We have not said a word to
suggest he was improperly prosecuted. Nevertheless he has prevailed in
the end. Is there anybody here who reflects the public interest who
desires to address us to the contrary? No. Very well. You may have your
costs. Taxation here.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • Other useful sites are One in Four [C]
  • and Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area

Links

[1] Index of Newspaper and Journal articles on this blog http://ift.tt/1NVXDYN

[2] Index of Court Appeals EWCA on this blog http://ift.tt/1nlIMNs

[3] 2014 Nov 10 Mirror Paedophile teacher from top private school jailed for sexually abusing boys as young as 9 http://ift.tt/1zHaWpy

[4] Wikipedia The Family – New Age Group Anne Hamilton-Byrne http://ift.tt/1UhytW7

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