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Robert Baden-Powell: Scouting for Boys, The Original (Illustrated) ebook by Robert Baden-Powell

 

 

[Scouts 1] KCR v Scout Association High Court 18th March 2016

by cathy fox blog on Child Abuse

This action by a survivor (anonymised as KCR) against the Scout Association. There will also be 8 court appeals published over the next few days.

This case involved abuse by David Hopkins (“Hopkins”) a Cub Scout Group Leader, whilst he was a member of the 3rd Hawkinge Scout Group. The abuse took place in the 1980s and was on an 8 year old. Hopkins was a serial child abuser.

The claimant, KCR despite having his whole life raked over in detail “has this said about him by the Judge “The claimant has come to believe that all the adverse effects that have occurred in his life are attributable to the abuse and whilst that belief may be sincerely held, having heard all the evidence including the expert psychiatric evidence, I have come to a different conclusion.”

Scout Association had admitted vicarious liability and so it was just the size of award to be determined, but there does not appear to be one. This is just my opinion, anyone with more knowledge of the law please comment.

Redaction

Some court 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 redaction” 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.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

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

This appeal is redacted largely for personal details  by cathy fox blog

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

Index of Court Appeals on this blog [2]

[2016] EWHC 587 (QB)

Case No: HQ14P02578

IN THE HIGH COURT OF JUSTICE

Date: Friday 18th March 2016

His Honour Judge McKenna

Between: KCR

v.

The Scout Association

(Transcript of the Handed Down Judgment of WordWave International Limited Trading as DTI165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

Mr D McClenaghan (Solicitor Advocate from Bolt Burdon Kemp) for the Claimant

Mr A Weitzman QC (instructed by BLM Solicitors) for the Defendant

Hearing dates: 25, 26 February and 1 March 2016

Judgment

As Approved by the Court

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

His Honour Judge McKenna

His Honour Judge McKenna:

Introduction

1. In this action the claimant whose identity has been anonymised in these proceedings and who is referred to as “KCR”, seeks damages for personal injury, loss and damage consequent upon sexual abuse perpetrated upon him by David Hopkins (“Hopkins”) a Cub Scout Group Leader, whilst he was a member of the 3rd Hawkinge Scout Group. The abuse took place in the 1980s.

2. Hopkins was a serial paedophile who abused a large number of children including the claimant and who in 2003 was charged and convicted of a large number of sexual offences against boys including the claimant. He was sentenced to ten years in prison following an allegation of male rape having been made against him to Kent Police by a former member of the same scout group as the one to which the claimant had belonged. During the course of their investigation Kent Police discovered photographs and diaries retained by Hopkins which detailed some of the abuse. The claimant made a statement to Kent Police in December 2002 in support of the prosecution of Hopkins.

3. The defendant, The Scout Association, is not itself alleged to have been negligent. Rather the claimant alleges, and the defendant has admitted, vicarious liability for Hopkins’ criminal acts and readily concedes that the abuse was serious. A limitation defence has not been raised. Judgment was entered on 10 April 2015 for damages to be assessed and it is that assessment with which this Court is concerned.

The Abuse

4. The claimant was born on [redacted] 1973 and is therefore now forty-two years old. He joined the 3rd Hawkinge Cub Scout Group shortly before his eighth birthday. The abuse began almost immediately with Hopkins having first groomed and then committed acts of sexual abuse which occurred regularly until the claimant left the Cub Scout Group at age eleven and continued thereafter albeit more infrequently until the claimant was aged fifteen years and ten months.

5. The first assaults occurred whilst the claimant was still seven years old with Hopkins rubbing the claimant’s leg over his clothing whilst both were in Hopkins’ car, with the claimant’s first clear memory of an overtly sexual assault occurring when Hopkins fondled the claimant’s genitals under his clothing on his eighth birthday.

6. Thereafter the abuse increased in severity and occurred on numerous occasions and the claimant asserts included the following acts of abuse:

(a) Grooming and manipulating the claimant;

(b) Requiring the claimant to view pornography;

(c) Fondling the claimant’s leg;

(d) Kissing the claimant;

(e) Fondling the claimant’s genitals under his clothing;

(f) Requiring the claimant to undress;

(g) Requiring the claimant to wear sexually inappropriate clothing;

(h) Requiring the claimant to assume sexually explicit poses;

(i) Photographing and video recording the claimant during the abuse;

(j) Masturbating the claimant;

(k) Performing oral sex upon the claimant;

(l) Digitally penetrating the claimant’s anus;

(m) Penetrating the claimant’s anus with his tongue;

(n) Engaging in frottage with the claimant (thrusting his penis between the claimant’s buttocks;

(o) Ejaculating on the claimant’s anus;

(p) Requiring the claimant to masturbate Hopkins;

(q) Requiring the claimant to perform oral sex upon Hopkins;

(r) Ejaculating in the claimant’s mouth;

(s) Abusing other children in the claimant’s presence;

(t) Requiring the claimant to engage in sexual activity with other children.

7. The defendant admits that serious sexual assaults took place which is not surprising given that Hopkins documented his abuse of the claimant and other boys but, on the basis of what Hopkins himself documented, takes issue with the frequency alleged by the claimant (who estimated that there were several hundred such occasions) and with the precise nature and extent of the abuse. In particular the defendant takes issue with whether acts of digital penetration and analingus took place in the light of the fact that there was no reference to such activities in the claimant’s statement to Kent Police given in December 2002 nor in the diaries kept by Hopkins. I will return to this issue later in the judgment when I consider the claimant’s evidence.

8. An unusual feature of this case is that after a period of time the claimant, together with another boy (identified by the initials “CM”), in effect blackmailed Hopkins after they realised that they could get something out of it. They obtained increasing rewards of money and material possessions in return for carrying on with submitting to the abuse. This was seen by the claimant as compensation. In his police statement, the claimant described this change in the dynamics of the relationship in these terms:

After the abuse … would take us downtown to buy toys, sweets, chocolate; if we said we wanted something we got it. That’s when we realised that we had a power over him. We’d got so used to what he was doing to us, we just shut ourselves off to get what we wanted. I would see … THREE to FOUR times a week for four/five years. …and Me were his favourites and we planned to bleed him dry, we were kids who wanted all those things we couldn’t afford, so we were going to get them, but we were not going to be abused any more. We were never going to be able to say no that didn’t happen, we couldn’t change anything, so we used it to our advantage. … knew that, he knew that the only way to keep us quiet was to get us those things. …would take a few of us on days out to … Zoo and … Park. I may have been 11 years old then when we went, Me, … and …. Nothing would have happened when we were out on the trip, but probably when we got back and before going home. The abuse got less and less as we headed to secondary school, and were too old for … I don’t know when it stopped, it didn’t feel right; didn’t add up and I realised this shouldn’t be happening. That is when I broke free….”

9. Even after the abuse ended, the claimant would contact Hopkins from time to time to obtain money. He was even able to tell Hopkins about problems he was experiencing in his domestic life. Hopkins provided him with two motorbikes, the deposit towards a flat and acted as a guarantor as well as giving money and other items to the claimant, all after the abuse had ceased.

The Claimant’s Life to Date

10. The claimant was born in [redacted]. His parents separated when he was four or five years old with his father having been abusive to his mother who therefore decided to leave the claimant’s father [redacted]

11. The claimant attended [redacted].

12. At the age of fifteen or thereabouts he started smoking cannabis socially. His drug taking escalated and he began using ecstasy, cocaine and LSD as well as cannabis. His mother made him leave home when he was sixteen because of his drug taking and the discovery by her of a motorbike which had been given to him by Hopkins.

13. The claimant had three short-lived jobs on leaving school. He left these jobs because he did not like them and did not attend regularly. Instead he started to sell drugs initially to friends and friends of friends. He then made his living by selling drugs in Folkestone, both cannabis and cocaine, until 2005 when he was thirty-two years old.

14. He was a heavy user of drugs until 2011 when he was thirty-eight, since then he has become less aggressive.

15. The claimant obtained a job as an ambulance cleaner in [redacted] 2008 but in [redacted] 2009 he was dismissed after wrongly being accused of breaking a security door. He successfully pursued an unfair dismissal claim.

16. He was then employed by an engineering company as a driver but was dismissed in 2011 following a conviction for assault on his then partner as a result of which he was sentenced to a term of eight months imprisonment, of which he served four months, being released in [redacted] 2012. Since then he has found it difficult to obtain work.

17. The claimant has in fact had a number of convictions which have included stealing from cars, stealing cheques, various road traffic offences as well as offences of violence and offences relating to drugs. On [redacted] 2006 the claimant was convicted of criminal damage. He was referred to the mental health services when being sentenced. The claimant was assessed and offered support. There is no evidence that he sought such support in the records. On [redacted]  2007 the claimant was convicted of a firearms offence. Again he was referred for treatment by his probation officer. Again he failed to attend.

18. The claimant has had a number of relationships each of which has ended because of his domestic violence both verbal and physical. He was with D for five years from the age of eighteen but this ended because of his violence. His next relationship was with Ms C. This started in 1998 with Hopkins acting as a guarantor of a flat in Folkestone, but that relationship ended in 2002 after they had two children and again there was domestic violence at the end of the relationship.

19. After the relationship with Ms C had come to an end the claimant visited his GP complaining that he was suicidal and depressed. He was referred for counselling and attended a single session but did not attend his second session or take up the offer of any further appointment. He was therefore discharged. He did not mention any sexual abuse.

20. Following his interview by the police in 2002 in connection with the investigation of Hopkins’ abuse of children the claimant was again seen by his GP and referred to community psychiatric services. He was seen by a Community Psychiatric Nurse on [redacted] 2003 who recorded that the claimant reported that he had been sexually assaulted by his Cub Scout Group leader from the age of eight to thirteen and had recently given a statement to the police following the arrest of the Cub Scout Group leader. He reported that up until two years before, he and another victim had been blackmailing Hopkins for material and financial gain and that he considered that the blackmail was payment for the effects of the abuse that he had always felt. He reported that he felt emotionless, only feeling anger and hatred and admitted that he had always been aggressive in relationships believing that that was directly related to witnessing his father’s physical abuse towards his mother and as a result of the sexual abuse from which he had suffered.

21. The claimant was referred to Dr Majid who recommended psychotherapy but after four appointments the claimant ceased attending and his case was closed. Dr Majid wrote to the claimant’s GP on [redacted] 2003 reporting in detail on his meeting with the claimant in which he recorded that the claimant denied regular intrusive flashbacks of his abuse but that he had told Dr Majid that when he spoke to people about his abuse, i.e. police interviews and psychiatry assessments, that for the next few days he would experience such flashbacks. In his opinion and recommendation section Dr Majid concluded that the claimant was then suffering from a moderate to severe depressive episode and was likely to suffer from an underlying personality disorder. No diagnosis of post traumatic stress disorder was made.

22. In 2004 the claimant had started a relationship with Ms E. In 2008 the claimant took an overdose of paracetamol after he had argued with Ms E. He was referred for counselling but did not attend and was discharged. In 2011 he was again referred for psychiatric treatment by his GP, from whom he had apparently been advised by his solicitor to seek a referral, after he had assaulted Ms E. He was assessed on [redacted] August 2011 he threatened to take his own life if given a custodial sentence of more than six months. He was offered a follow up appointment on [redacted]  August 2011, the day after his court appearance which he did not take up. Furthermore, he did not seek any treatment then or subsequently. The relationship with Ms E has also come to an end.

23. In May 2015 the claimant was bailed by police following the discovery that he had been downloading indecent images of children.

The Parties’ Respective Cases

24. The claimant’s case is that he suffered assault, battery, false imprisonment and the intentional infliction of harm at the hands of Hopkins for which he is entitled to damages. In addition he also seeks damages for psychological injury, in respect of which he relies on the expert evidence of Dr Nikki De Taranto, a Consultant Forensic Psychiatrist, who diagnosed the claimant as suffering from chronic post traumatic stress disorder entirely caused by the sexual abuse. She further diagnosed that the claimant was suffering from a personality disorder and that the abuse had made a contribution towards that disorder. He also seeks aggravated damages and, by way of special damages, the cost of psychological treatment recommended by Dr De Taranto and a Blamire award in respect of loss of earnings, past and future.

25. The defendant for its part accepts that the claimant is entitled to general damages in respect of the abuse he suffered at Hopkins’ hands but disputes the claims for loss of earnings, past and future, and therapy as well as the claim for aggravated damages. The defendant relies on expert evidence from Professor Maden, Emeritus Professor of Forensic Psychiatry at Imperial College London and a Consultant Forensic Psychiatrist since 1992 whose opinion is that the claimant suffers from a dissocial personality disorder and would have done so irrespective of the abuse and who does not believe that any psychological treatment is required. Furthermore the defendant submits that the claimant has always been capable of employment and it is his lifestyle choices, rather than any condition caused by the abuse, which have prevented him from working.

26. Moreover, even if the claimant were to establish, on the facts, that his subsequent lifestyle was caused by the abuse, the defendant submits that much of the loss is irrecoverable since, as a matter of public policy, a party cannot recover damages that arise from or are caused by his criminal conduct, an example of which is the maxim “ex turpi causa non oritur actio”. That criminal conduct it is said included his use of illegal drugs, his domestic violence towards his partners, his drug dealing and an arrest for downloading indecent images, all of which it is said had a significant effect on his employment prospects and indeed on his life to date.

The Law

27. It is common ground that the burden of proving that the abuse has had the various effects for which the claimant contends on his academic achievement, on his personality as well as on his ability to form and maintain relationships and on his employment potential lies on the claimant himself. This will necessarily involve a consideration of his past academic, employment and personal history as well as an assessment of the claimant’s reliability as a witness in order to establish whether there is a causal link between the abuse and the various effects contended for by the claimant.

28. In this case the abuse occurred in the 1980s and it has therefore been necessary to examine in detail the events of the claimant’s life to date over a significant period of time. There is little clear contemporaneous evidence and the Court has been largely reliant on the recollection of the claimant himself and the other lay witnesses which must inevitably have faded over time.

29. I have, during the course of the trial, been referred to a significant number of cases but of course each case has to be judged on its own individual facts not least because the exact nature of the abuse differs from case to case as does the effect of the abuse on individual people. The abuse has two components: the acts themselves and the consequences of the abuse in terms of psychiatric injury. Both are compensatable. Thus, any award should take into account the nature, severity and duration of the abuse itself and of its immediate effect and any long term psychiatric harm that might have been caused.

30. In a number of cases to which I have been referred, a claimant has been successful in securing an award of aggravated damages in addition to an award of general damages in respect of pain, suffering and loss of amenity. In these cases, however, the court was apparently not referred to the decision of the Court of Appeal in Richardson v Howie [2004] EWCA Civ 1127where the judgment of the court was delivered by Thomas LJ, as he then was, and included the following:

23. It is and must be accepted that at least in cases of assault and similar torts, it is appropriate to compensate for injury to feelings including the indignity, mental suffering, humiliation or distress that might be caused by such an attack, as well as anger or indignation arising from the circumstances of the attack. It is also now clearly accepted that aggravated damages are in essence compensatory in cases of assault. Therefore we consider that a court should not characterise the award of damages for injury to feelings, including any indignity, mental suffering, distress, humiliation or anger and indignation that might be caused by such an attack, as aggravated damages; a court should bring that element of compensatory damages for injured feelings into account as part of the general damages awarded. It is, we consider, no longer appropriate to characterise the award for the damages for injury to feelings as aggravated damages, except possibly in a wholly exceptional case.

24. Where there is an assault, the victim will be entitled to be compensated for any injury to his or her feelings, including the anger and indignation aroused. Those feelings may well also be affected by the malicious or spiteful nature of the attack or the motive of the assailant; if so, then the victim must be properly compensated for that, particularly where the injured feelings have been heightened by the motive or spiteful nature of the attack. In our view, damages which provide such compensation should be characterised and awarded therefore as ordinary general damages which they truly are. The misapprehension as to the nature of the damages to be awarded for injured feelings which plainly arose in the trial judge’s mind and which led him to award a sum that was wholly extravagant as aggravated damages would not have arisen, if the award had been made as one of ordinary compensatory general damages and not as an award of aggravated damages. The facts of this case clearly did not in any way approach the wholly exceptional case where an award of aggravated damages might still be appropriate.”

I approach the assessment of general damages with that guidance very much in mind.

31. In Gray v Thames Trains Limited [2009] 1 AC 1339 , a decision of the House of Lords, Lord Hoffmann articulated both a narrow and a wider basis for the policy that a party cannot recover damages arising from or caused by his own conduct. The wider basis of the rule is set out in paragraph 51 of his speech as follows:

I must therefore examine a wider version of the rule, which was applied by Flaux J. This has the support of the reasoning of the Court of Appeal in Clunis’s case [1998] QB 978 as well as other authorities. It differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead, the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct.”

Factual Evidence as to causation

32. I turn now to a consideration of the factual evidence. The claimant relies on his own evidence and that of his mother, whose statement was read and that of two former partners, Ms D and Ms E.

33. I have already recorded that the defendant effectively puts the claimant to proof of the frequency of the abuse alleged as well as to aspects of its nature and extent. The claimant’s evidence to the Court was that the abuse occurred on hundreds of occasions (perhaps five—or six—hundred occasions) which is to be contrasted with Hopkins’ diary entries amounting to some one hundred and ninety documented instances of a particular type of abuse. In his witness statement evidence and his oral evidence to the court the claimant also made reference to a number of occasions when Hopkins digitally penetrated his anus and to occasions when he put his tongue into the claimant’s anus both of which allegations did not feature in his statement to Kent Police made in December 2002.

34. It was the claimant’s evidence that prior to the abuse he enjoyed going to school, was a good all-rounder and was well liked by the other children with whom he got on well. However, as the abuse started and progressed, he described himself becoming isolated from his friends because the only friends he had at the school were ones who were also attending the Cub Scout Group and he did not want to be around them because of the abuse. He would get into arguments with them.

35. Once he left primary school, he described becoming really isolated. He was the youngest in his year when he started at secondary school and found it harder as he did not know many people. He did, however, do well academically and achieved GCSEs in maths, English, science, design and communication, and design and realisation, with grades of Bs, Cs and one D.

36. After leaving secondary school he enrolled on a [redacted]  course at [redacted] College but only attended for three months because he found it difficult to concentrate and stopped attending. He said he did not feel that he fitted in and did not want to mix with the other boys, and did not want to be in public places. He also struggled with the work because he did not realise how much theory was involved in carpentry.

37. He began to take drugs at 16 and would regularly take acid and cannabis. By the time he was 18 or 19 he had started to use cannabis on a regular basis, always on his own.

38. After being kicked out of his mother’s home he lived in a bedsit and described cannabis as helping him to cope with his life. By this time he had a criminal record as a result of cashing stolen cheques and therefore struggled to find work, although he did have a job as a salesman at an electrical warehouse; he did not attend regularly and was sacked after three months. After that he worked at a wholesaler supplying electrical goods to builders; again the job was not stimulating and again he did not attend work regularly and was sacked after a short period.

39. During this period his drug addiction became worse and as well as consuming drugs he began to sell drugs from his flat to make money, which generated sufficient funds to pay for his own habit. His next job was in [redacted]  when he was dismissed, wrongfully, he says, and indeed he pursued a successful unfair dismissal claim, which he said resulted from his being wrongly accused of breaking a security door. He was also employed by an engineering company as a driver supplying goods across the country. He enjoyed this job but lost it as a result of being convicted of assaulting his then partner Ms E, and being sent to prison. Following his release from prison, he has been in receipt of job seekers’ allowance, and has found it difficult to obtain work.

40. So far as relationships are concerned, it was his evidence that the abuse that he suffered has affected his relationship with his mother leading to his being thrown out of her house when he was 15, when she discovered a motorbike which had been given to him by Hopkins; she wanted to know where it came from and he would not tell her.

41. When he was about 18 or 19 his father returned on to the scene and he began to see him regularly. They would smoke cannabis together. He was a petty criminal and drug dealer and they worked together.

42. It was the claimant’s evidence that the abuse has also affected his relationships with various girlfriends, all of which have ended because of his aggressive behaviour and as a result of trust issues. The claimant has a total of [redacted] children, a[redacted]. He describes the children as the best thing that has happened to him and is very concerned for their welfare. He does not trust people and as a result he does not have many friends, having lost touch with the other boys in the Cub Scout Group that he had left. He says that he has found it difficult to interact with men particularly, and is happier spending time with his family.

43. As far as psychological affects are concerned, the claimant’s evidence was that, from an early age, he learned to shut the abuse out and as he grew older drugs helped him to achieve this. He says that he pretended to be a thug so that no one would hurt him and he used drugs to block out the abuse which was always on his mind. He said that he had suffered anger issues from a young age and was often called “psycho”. His anger has led to him being imprisoned on a few occasions.

44. He said that he felt scared throughout the early years of his life that news of the abuse would come out and he would be blamed for what had happened. He felt guilty and did not feel he could tell anyone about it because of the shame. He felt dirty and ashamed, was concerned that he would die of AIDS and described how he would suffer from flashbacks of the abuse all the time, although they had become less frequent more recently. When walking his dog in the woods he would be reminded of what had happened there when he was a child with Hopkins, and he could still smell and taste Hopkins’s penis.

45. He also said that, as a result of the abuse, he could not bear to have his photograph taken and that this had been an issue since his childhood, and even to this day he worries about the photographs which Hopkins took of him. That is what led him to download indecent images of children from the internet. He was looking he says for pictures of himself.

46. He says that he has tried to kill himself a few times, the most recent being in 2008 when he took an overdose of paracetamol. He has also self-harmed at various stages in his life, mainly in his teenage years and early twenties. He has also found sleep to be a big problem which again caused him to take drugs.

47. The claimant’s mother’s witness statement suggested that as time went on after the claimant had joined the Cub Scout Group his behaviour started to change. He became moody and quiet and he started to turn into a loner and would not join in much especially family gatherings. He became short tempered and easily angered. In paragraph 12 of her witness statement, she recalled a time when the claimant had been to a Scout camp and when he returned he just burst into tears. Hopkins had dropped him off and he looked a bit nervy and jittery. Her recollection was this was when the claimant was about eleven or twelve years old but at the time she put it down to the claimant missing her as he had never been away from her before.

48. She described the claimant becoming a handful after he left the Cub Scout group; he became rebellious smoking pot and stealing money from her. He made his sister’s life unpleasant and they were always fighting and arguing. One day he came home with a motorbike when he was about fifteen or sixteen years old and shortly afterwards she threw him out as he had become increasingly difficult to handle. He tried to break into the house and she recalled him having broken a pane of glass in the front door. He just wanted money all the time. After that they lost touch for a while until the claimant was about seventeen years old and he rented a flat in Folkestone and she moved from [redacted] and lived only a matter of a few hundred yards away from him.

49. She also suggested that the claimant’s relationships with others had been affected by his temper.

50. Ms C gave evidence to the effect that she met the claimant when she was about twenty years old as a result of buying cannabis from him. She described him as being reasonably sociable and fun to be with. At the beginning he wanted to be with her all the time. He was already living with someone else but within three or four months of meeting they moved in together. She described the claimant as being very emotional. Everything was always extreme; the claimant was really happy, really sad or really angry. They split up for a while after she discovered that he was having an affair but he wooed her back. [redacted] She recalled that the claimant did not like to have his photograph taken. He was fine and then the claimant would “self destruct”. She noted that [her child] started to copy some of the claimant’s behaviours which worried her. They split up and the claimant was violent towards her at that point but not prior to that point. He was however very controlling. She also confirmed that the claimant had a group of friends from school as well as people whom he met through his drug taking and dealing.

51. Ms E told the Court that she met the claimant in 2004. At that time he was selling cocaine and she had bought some from him for a friend. She too described him as very easygoing. He appeared to have a cheery personality. They had a few dates and then moved in together after a few months. She then saw a different side to the claimant. He was violent and destructive (to property rather than to her). They separated in 2006 for a period but then got back together. The relationship continued to be volatile and in December 2010 he threatened her with a knife and slashed her car tyres to prevent her from leaving. She called the police and he was arrested, charged and convicted in connection with that incident and sentenced to eight months in prison. When the claimant returned from prison things got better for a while. The claimant stopped taking cannabis at her insistence and she became pregnant [redacted]. She described the claimant having had two jobs in the time that she was with him but he did not like authority. She also recalled that the claimant had problems with her taking his photograph.

Discussion and Findings of Fact

Frequency and Exact Nature of the Abuse

52. It is necessary to say something about the quality of the claimant’s evidence. He clearly has a strong belief that all his past misfortunes can be attributed to the sexual abuse to which he was subjected by Hopkins. In his witness statement he says the following:-

Because of the abuse, I never had a chance to have a proper childhood or the chance to grow up normally. The only thing I had growing up was Hopkins and his abuse. I felt that I did not fit in anywhere, not with my family and I had no friends.

I did not even get the chance to dream about what I wanted out of life. I do not know what shape my life would have taken had it not been for the abuse. I feel like I have nothing and no future to look forward to. Hopkins has taken away my life and what he did to me at such an early age set the path for the rest of my life. My life has never been the same since the abuse.

I want to be able to draw a line under it all and get the medical help I need. I cannot live another 30 or 40 years like this. I have lost my childhood, teenage years and adult years all because of Hopkins. I know some of the decisions have been my own decisions but I should never have been put on this path. My moral compass was ruined from a very early age and thereafter I had limited choices.”

53. Whether or not the claimant is correct in this analysis, his evidence has to be viewed in the knowledge that he holds that view and his account of events has inevitably been coloured by that view. Moreover, it is plain from a consideration of the evidence in the round that his evidence is neither reliable nor cogent. Both psychiatrists agree that he is unreliable and this makes it harder to establish the effect of the abuse.

54. It is plain that he has been less than honest with the court. Counsel for the defendant drew attention to three particular examples, although there are others. The claimant gave evidence that he had not received money from Hopkins for a deposit and then later in his evidence asserted that he had, denying his previous contradictory statement. He then denied any acquisitive offending after he was seventeen years old although he had previously given evidence that he had stolen money. He also denied any contact with Hopkins after 1993/1994 which was plainly untrue and when confronted with Hopkins’ interview he accepted that he must have seen Hopkins several years later than he had previously admitted, in 2001. Unfortunately in the circumstances it is difficult to place any weight on the claimant’s evidence unless it is corroborated.

55. So far as the disputed areas of frequency and exact nature and extent of the abuse are concerned, the defendant urges me to conclude that Hopkins’ records are accurate and that there was no penetration, digital or otherwise, and no analingus, relying on the absence of any reference to such acts in the claimant’s statement to the police and as to what was said to the expert psychiatrists and on the basis that there is no reliable evidence about the abuse other than that described by Hopkins himself and for which he was prosecuted and convicted. Equally it is said that Hopkins’ record of the frequency of the abuse is accurate particularly as his diaries demonstrate a fall off in frequency which mirrors the claimant’s own evidence.

56. On these issues and notwithstanding the reservations which I have expressed as to the reliability and cogency of the claimant’s evidence I reject the submissions made on behalf of the defendant and am satisfied on the balance of probabilities as regards frequency, that the abuse occurred much more frequently than the one hundred and ninety documented occasions to be found in Hopkins’ diaries for a number of reasons. First Hopkins’ running total in his diaries relate to what he described as “bummings”. The claimant’s allegations of abuse are much wider than that particular act and whilst Hopkins clearly had a penchant for that form of abuse, his abuse was more varied and extensive. For example, the earlier examples of the claimant’s legs being touched prior to his eighth birthday and the fondling of his genitals on his eighth birthday would not have been recorded.

57. So far as the nature and extent of the abuse is concerned, I accept the claimant’s evidence that digital penetration and analingus did occur on a few occasions which finds some support in the police statement given by “DX” who was also abused by Hopkins and who referred to such activities in his witness statement. Given that on occasions Hopkins abused DX when the claimant was also present it can, as it seems to me, reasonably be inferred that Hopkins subjected the claimant to similar types of abuse. This does not seem to me to be an example of exaggeration on the claimant’s part.

58. The absence of any reference to these activities in the claimant’s witness statement does not, to my mind, undermine the claimant’s evidence and I accept the claimant’s explanation to the effect that when he was being questioned by the police, it all happened very rapidly and he did not have a chance to think about everything and the interview did not take longer than three or four hours. Moreover, at the time of the interview the police had in their possession photographs of Hopkins performing oral sex on the claimant and photographs of Hopkins “bumming” the claimant and diary entries relating to those activities and therefore it is perhaps not surprising that their line of questioning focused on those matters and therefore it is to those matters that the statement was addressed.

Education

59. The Claimant’s school reports do not in my judgment display any abnormal behaviour or reveal any significant or unusual problems in the claimant. Rather they describe a child of average ability who was better in practical than academic subjects (save perhaps for mathematics) and who had friends at school and did not appear to be isolated. Nor do the reports suggest that he was unhappy. This is a picture which is consistent with other evidence for example from Ms C and Ms E.

60. In my judgment there is no evidence in the reports to support an assertion that the claimant’s education was impaired as a result of the abuse and I reject the claimant’s submission to the contrary.

Drug Use

61. During his last year of school or immediately thereafter the claimant began to use illegal drugs, initially cannabis and then ecstasy and cocaine. This drug use was social and over time led to the claimant becoming a dealer. His evidence was that it was necessary for one of his group of friends to start buying and he took that opportunity. This history is one of choice. He was not in my judgment self medicating but choosing to use drugs recreationally and socially. His decision to become a dealer was opportunistic.

62. Both Ms C and Ms E met the claimant through his dealing in drugs and they were buying from him. They both describe him as having friends and being at least initially socially charming and able. They did not describe him as isolated.

63. It is also plain that the claimant made considerable amounts of money from his drug dealing which was his principal source of income. Significantly the contemporaneous report of Dr Majid records that the claimant ceased to work at a garage, a job in which he had been given a measure of responsibility, to return to drug dealing because it was more lucrative. Moreover, in his evidence the claimant accepted that he made more money as a drug dealer than by working.

64. The claimant, Ms C and Ms E all accepted that as a drug dealer he would have to interact with others who were both criminal and violent and the claimant was plainly capable of operating successfully in that environment.

65. The claimant’s drug use continued until 2011. By this date he had stopped using cocaine but was still smoking significant amounts of cannabis on a daily basis. He stopped because Ms E made it a condition of any continued relationship with him that he did so and significantly he did so without medical help and even more significantly, when he did stop, both his and Ms E’s evidence was that his behaviour and mood improved and his aggression reduced. Had the claimant required cannabis as self medication and to avoid symptoms caused by the sexual abuse as he has himself asserted, his problems would then have tended to increase as he ceased to take the ‘medication’, not decreased. In my judgment that tends to suggest that the cannabis use was the underlying problem which accords with the view of Professor Maden, to which I will refer later in the judgment.

66. To my mind, properly analysed, the evidence establishes that the claimant’s drug use and offending were matters of personal choice and unconnected to the abuse.

Relationships

67. The claimant has had three long term relationships each of which ended after he had been violent toward his partner. Ms C and Ms E both gave evidence that at the start of the relationship the claimant had been charming and fun but that over the course of the relationship he became controlling and that when they did not do as he required he became angry and aggressive. Ms E described how he slashed her tyres to stop her leaving. His violence had a specific purpose rather than being spontaneous or an uncontrolled outburst.

68. I accept the force in the defendant’s submission that the picture painted of the claimant by Ms C and Ms E contradicted the claimant’s own evidence that he was always alone and unable to spend time with people avoiding social situations and the like. They described a man who at times was the life and soul of the party who charmed them into entering a relationship with him and who appeared to have a group of friends with whom he spent time.

69. It is plain from the evidence of the claimant himself that he did not at any time feel the need to avoid Hopkins. On the contrary he contacted and met him on a number of occasions and was able to discuss problems in his domestic life with him.

70. In my judgment the claimant was plainly able to form relationships. He did so with both Ms C and Ms E and indeed, before that,

Employment

71. I have already set out the extent of the claimant’s employment history and the reasons advanced for his various employments coming to an end. To my mind the claimant chose to leave vocational training and his initial employments because he preferred to support himself through crime. He made the same choice when he left the garage, whilst the loss of the ambulance cleaning job was unconnected with the abuse. Equally the loss of his most recent job as a driver was unconnected with the abuse and resulted from his conviction and sentence to a term of imprisonment as a result of his violence towards Ms E.

72. It follows in my judgment that the claimant’s earning capacity has not been affected by the abuse. When he has wanted to, he has been capable of work. To the extent that the claimant has suffered a loss of earnings it arises as a result of his criminal lifestyle and convictions. To the extent that he is handicapped in the labour market that is a result of his criminal record.

Therapy

73. Notwithstanding the history to date, the claimant’s evidence was that he was now ready to undergo therapy and indeed was keen to embark on the course of therapy recommended by Dr De Taranto. He contrasted the sort of assistance that would have been provided in the past by the National Health Service with the sort of in-depth therapy now being recommended. I have to say that I found that explanation wholly unconvincing. The claimant’s history demonstrates that he has only sought therapy at times of crisis and when there were other motivations and with the exception of 2003 those crises have been domestic and unconnected to the abuse. Moreover, the claimant’s contact with medical practitioners has often been opportunistic as he has used his history of abuse to obtain a specific outcome often relating to his offending behaviour. He has never persisted with therapy although it has been offered on numerous occasions:

74. I am reinforced in those conclusions by the fact that the expert psychiatrists agree that there is a considerable risk that the claimant would not engage consistently with psychological therapy and, I conclude a probability that he would not so engage and I accept the opinion of Professor Maden that such therapy would not, in any event, be of benefit to the claimant in the particular circumstances of this case. For all these reasons therefore, as it seems to me, no award should be made in respect of therapy.

Psychiatric Evidence

75. There is a measure of agreement between the parties’ respective experts in that they agree that at times of stress, including the disclosure of the abuse, the claimant presented with symptoms of depression and anxiety, the first such presentation was when his partner left him in 2002, and that he has a personality disorder with both dissocial and emotionally unstable characteristics, though they disagree on the relative importance of those features.

76. Professor Maden believes that the appropriate diagnosis is dissocial personality disorder and that emotional instability has only been a problem at times of crisis and when his drug/alcohol abuse was out of control. Dr De Taranto believes that in addition the claimant has a diagnosis of chronic post traumatic stress disorder, citing symptoms described to her by the claimant including intrusive memories, increased distress at reminders of abuse and fear and avoidance of having his photograph taken.

77. So far as causation is concerned the experts agree that the claimant has a number of risk factors for emotional and mental health problems including a family history of criminality and an early history of exposure to dissocial behaviour and violence and that those features increased the risk of the Claimant developing a personality disorder. Professor Maden believes that the Claimant would have developed a fairly severe personality disorder even if he had not been abused and that it is possible, but not probable, that the abuse made his personality problems worse than they would otherwise have been. Dr De Taranto on the other hand, whilst accepting that these other factors made a significant contribution to the development of the personality disorder and that the claimant was likely to have had personality problems but for the above, believes that the more significant part of the causation, especially the angry and impulsive features, are to be found with the experience of abuse.

78. The experts also agreed that the claimant’s father’s attitude to substance misuse influenced the claimant becoming a drug user and drug dealer himself and it is likely on the balance of probabilities that the claimant would have misused and sold substances even if the abuse had not occurred. Dr De Taranto however is of the opinion that the abuse made a material contribution to the severity of the substance misuse problem (in the region of twenty-five per cent) whilst Professor Maden expressed the view that it was possible but not probable that the abuse made the substance misuse worse than it would otherwise have been. In support of that opinion he noted the social influence of his drug use and the fact that he made his living from selling drugs.

79. The experts agreed that the claimant’s difficulties with anger management caused significant problems with intimate relationships and Dr De Taranto believes that the experience of abuse made a contribution to that anger whilst Professor Maden believes that the claimant’s problems are essentially a milder version of those his father had and that they need no further explanation. He noted that the claimant used his drug dealing in an exploitive way to pick up women and therefore it was no surprise that subsequent relationships were sometimes problematic. Professor Maden believes that the claimant’s difficulties in relationships were not of the type typically to be found in adult survivors of childhood sexual abuse and arose mainly from his dissocial personality disorder, aggravated by excessive cannabis use.

80. The experts also disagreed as to the impact of the sexual abuse on the claimant’s employment’s prospects.

81. So far as treatment was concerned the experts also disagreed with Dr De Taranto expressing the view that the claimant, having now reached a more settled period in his life and having achieved abstinence from drugs, should be given the opportunity to benefit from psychological therapy. Professor Maden did not believe that any therapy was indicated as it was unlikely to help and it might indeed do more harm by directing the Claimant’s attention backwards at events in the past which he could no longer change, rather than concentrating on the present and the future. However, both experts agreed that there was a considerable risk that the claimant would not engage consistently with any psychological therapy.

82. Counsel for the defendant is critical of Dr De Taranto’s approach in this case asserting that her diagnosis of chronic post traumatic stress disorder and her attribution of part of the claimant’s personality disorder and misuse of drugs to the abuse is not based on an empirical approach to the evidence. She was, it was submitted, over reliant on the claimant’s account of his symptoms and had not appropriately questioned that account when it was contradicted by other independent evidence. This, it was submitted, created a bias in her methodological approach; a bias which it was suggested arose from her preference to act for claimants in historic sexual abuse litigation. Dr De Taranto, when questioned about this aspect, accepted that she preferred to act for claimants and did not accept instructions from defendants in such cases on the basis that she was “happier” acting for claimants but did not give any further explanation. She maintained however that her evidence remained impartial and unbiased, notwithstanding that preference.

83. To my mind, whilst her preference may be understandable it does leave her open to the allegation that her preference has clouded her objectivity. Moreover, there is some truth in the suggestion that she was too reliant on the claimant’s account. By way of example, counsel for the defendant pointed to two examples of this over reliance. The first was that the claimant told her that his last contact with Hopkins was when he was seventeen, which was plainly untrue, which was apparent from the interview with the community psychiatric nurse in 2003. Yet in her first report Dr De Taranto failed to comment on or consider this discrepancy although it is fair to say that in the joint statement she acknowledged both that the claimant was unreliable and
that the blackmail of Hopkins was highly unusual and remarkable for the fact that they (the claimant and “CM”) had acted together in a sustained and planned way for material gain over a number of years. This, it is submitted should have been apparent to Dr De Taranto when she provided her first report and, if she had been objective, she would have identified and considered this discrepancy. She should, it was submitted, have considered whether the claimant was deliberately misleading her to downplay the extent of any continuing relationship with Hopkins and whether this continued contact meant that reminders of abuse did not trouble him.

84. Secondly, reference was made to the statements made by the claimant to Dr De Taranto that he had suffered flashbacks of the abuse “over all the years since the abuse”, a statement which was plainly inconsistent with the history taken by Dr Majid as set out in his report, to which I have already referred, yet Dr De Taranto did not identify the discrepancy nor did she comment on it. The absence of flashbacks meant that Dr Majid did not diagnose post traumatic stress disorder. There is to my mind some force in both of these criticisms.

85. Post traumatic stress disorder is a psychiatric illness as opposed either to a personality disorder or emotional stress. It arises as a delayed and/or protracted response to a stressful event or situation of an exceptionally threatening or catastrophic nature which is likely to cause pervasive distress in almost anyone. Predisposing factors such as personality traits or a previous history of neurotic illness may lower the threshold for the development of the syndrome or aggravate its course but they are neither necessary nor sufficient to explain its occurrence. Typical symptoms include episodes of repeated reliving of the trauma in intrusive memories — so called flashbacks — or dreams, occurring against the persistent background of a sense of “numbness” and emotional blunting, detachment from other people, unresponsiveness to surroundings, anhedonia, and avoidance of activities and situations reminiscent of the trauma. Commonly there is a fear and avoidance of cues that remind the sufferer of the original trauma. Rarely, there may be dramatic, acute bursts of fear, panic or aggression, triggered by stimuli arousing a sudden recollection and/or re-enactment of the trauma or of the original reaction to it.

86. The only basis for a diagnosis of post traumatic stress disorder in the case of the claimant is his own reporting of symptoms. Whilst it is true to recall, as I have previously recorded, that the claimant told Dr De Taranto that he had suffered flashbacks of the abuse over all the years since the abuse, that is not the history given to Dr Majid. Frankly the claimant’s medical records do not support this evidence notwithstanding that there were numerous opportunities for the claimant to have raised it and to have sought treatment for such symptoms. Moreover, the contemporary evidence to my mind, tends to contradict a diagnosis of post traumatic stress disorder since, as I have found, the claimant was able to function at school, at work and socially, and did not seek any medical help until 2002 and then not as a result of the abuse. Even after the traumatic events of 2003 following the police investigation, the claimant continued to function without apparent problems meeting Ms E in 2004 and subsequent to 2003 the claimant has not sought psychiatric help and has only engaged with such services when it was to his benefit in connection with his offending. For much of the claimant’s life he has been a successful career criminal who has planned his acts rather than someone who offends because of impulse. Even in the domestic arena, his anger has served a particular purpose and his attitude to relationships is controlling, which to my mind is more consistent with a dissocial personality disorder. Significantly, the claimant’s behaviour improved when he stopped taking significant quantities of drugs. There have been no episodes of emotional instability since then, despite the ongoing civil litigation, and as it seems to me if these symptoms were caused by the drug use and have subsequently ceased then they cannot be attributed to an underlying personality disorder. The only explanation that would provide a causative link between the sexual abuse and the claimant’s drug use would be self-medication but the claimant’s history post cessation of drug taking does not support such an explanation. It is the claimant’s dissocial personality disorder, aggravated by the claimant’s heavy use of cannabis and other drugs which has led to the breakdown in his relationships and his loss of employment.

87. I am satisfied on the balance of probabilities, accepting as I do the thrust of the evidence of Professor Maden that the only psychiatric illness with which the claimant has suffered as a result of the abuse was the adjustment disorder, in the period when the police were investigating the abuse, that’s to say December 2002 until late 2003.

Assessment of damages — damages for pain, suffering and loss of amenity

88. As is usual in such cases I was referred to the relevant judicial college guidelines for the award of damages in cases of psychiatric damage. On behalf of the claimant it was submitted that the appropriate level of damages would be within the severe category of psychiatric damage generally. The relevant provisions are as follows:

“(A) Psychiatric damage generally

The factors to be taken into account in valuing claims of this nature are as follows:

(i) The injured person’s ability to cope with life and work;

(ii) The effect on the injured person’s relationships with family, friends and those with whom her or she comes into contact;

[#ScoutsAbuse 2] John Anthony Coghlan 2006 Jun 19 Court of Appeal

by cathy fox blog on Child Abuse

This is an appeal against sentencing by a scoutmaster, John Anthony Coghlan,  who committed abuse in the 1960s, against a child for a period when the child was aged 10 until 14. The child was at that time was an altar boy and a member of the choir at the church where the appellant was a priest. He was also a cub or a scout in a troop of which the appellant was a assistant leader and latterly he became a pupil at a school where the appellant was the chaplain.

It is not clear where the church or the scouts were but it does mention a scout camp in Staffordshire and a Black Park Woods.

The appeal succeeded on one count as it was improperly brought under the wrong law.

Redaction

Some court 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 redaction” 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.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

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

This appeal is redacted largely for personal details  by cathy fox blog

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

Index of Court Appeals on this blog [2]

[2006] EWCA Crim 1542

No: 200504244/D3

IN THE COURT OF APPEAL

Royal Courts of Justice, Strand, London, WC2

Monday, 19th June 2006

Lord Justice Hughes

Regina

v.

John Anthony Coghlan

Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

MR R SMITH QC appeared on behalf of the APPELLANT

MR M HICKS QC appeared on behalf of the CROWN

JUDGMENT(As Approved by the Court

1. LORD JUSTICE HUGHES: In July 2005 this appellant, who is a priest now aged 72, faced trial on an indictment alleging six counts of sexual offences against a single complainant. The offences were alleged by the complainant to have taken place between 1961 and 1966, that is to say approximately 40 years before the trial. The appellant was convicted by a majority on counts 1 to 5 which charged indecency with a child. The gist of those allegations was that he had persuaded the complainant to masturbate him either with a home massage machine or orally. He was acquitted upon count 6 which charged as indecent assault events which on the complainant’s account amounted to an isolated incident very close to attempt at buggery.

2. The principal submission of Mr Robert Smith QC on the appellant’s behalf is that the convictions are unsafe on grounds which relate to the combination of the extreme age of the complaints and the consequential absence of evidence which might otherwise have been available, together with various features of the complainant’s evidence which he suggests are simply too unsatisfactory for the convictions to be permitted to stand.

3. Before, however, we come to that there is an admitted legal flaw in count 5. Counts 1 to 5 were all laid under the Indecency with Children Act 1960. That Act made it an offence to commit an act of gross indecency with or towards a child under the age of 14. The upper age limit was subsequently raised to 16 by section 39 of the Criminal Justice and Court Services Act 2000 with effect from 11th June 2001, but the offence charged in count 5 had, of course, been committed many, many years before that. The offence charged in count 5 related to events at a time when the complainant was 15. Accordingly, at the time that the alleged events took place, even if they had occurred, they did not amount to the criminal offence charged. It is agreed, properly and realistically on behalf of the Crown, that the conviction on count 5 must be quashed. Conversely nobody suggests, again realistically, that that has any impact upon counts 1 to 4. This was not a case in which as a result of the existence of count 5 there was placed before the jury evidence which it would not otherwise have had.

4. By the time of the trial the complainant was 54. His complaint had surfaced for the first time in either 2002 or 2003, something like 35 to 40 years after the events which he said had taken place. They had taken place, he said, when he was of the age of ten to 14. At that time he was an altar boy and a member of the choir at the church where the appellant was a priest. He was also a cub or a scout in a troop of which the appellant was a assistant leader and latterly he became a pupil at a school where the appellant was the chaplain. At that time the appellant was in his late 20s or early 30s. He seems to have been appreciably younger than the other priests connected with the parish community concerned and he seems to have been a popular figure amongst the families and amongst the children.

5. The complainant alleged that the offences began when he was taken to the bedroom at the presbytery occupied by the appellant. He said that he had been induced to masturbate the appellant using a home massage vibrating massager. Similar behaviour he said was repeated and count 1 was a sample of such events.

6. He next said that there had been a scout camp in Staffordshire which he attended and at which the appellant was also present as a leader. According to the complainant he shared a tent with the appellant, just the two of them, whilst the other scouts were accommodated in larger dormitory tents. He gave evidence that he was required during that holiday to provide the appellant with oral relief. That was represented by count 2.

7. Counts 3 and 5 were sample counts of similar acts over the relevant period. Count 4, however, related to a specific incident which the complainant said had taken place in some woods called Black Park Woods when, according to him, the appellant had taken him there.

8. Specific occasions in the presbytery, at the scout camp and in those woods apart, the complainant alleged that the appellant would behave in this way whenever opportunity presented at various scout camps and also when he visited the complainant at home at times when his parents were not there, such times including, latterly at least, times when the complainant was truanting. Also, according to the complainant, the appellant took him out in his car.

9. The appellant submitted at his trial that the case should not be left to the jury. That submission was made at the close of the Crown case and it was made in the alternative. First, it was submitted that on ordinary Galbraith principles there was, taken at its highest, no evidence upon which a jury correctly directed could properly convict. In addition, however, it was submitted that the trial should be stayed on grounds of abuse of process arising from the very considerable delay and the consequence for the appellant that a number of people who might have been potentially key witnesses had since died.

10. The test upon those two submissions are, of course, not the same. On a Galbraith application the judge asks himself whether the evidence taken at its highest is sufficient for a jury correctly directed to convict. When considering an application to stay on grounds of abuse of process arising from delay, the question is not whether the evidence suffices to sustain a safe conviction, but whether or not, even if, on the face of it, it might, the passage of time has had the effect that the appellant cannot fairly be tried. If, rarely, that is the case, it will usually be because he cannot by reason of the passage of time properly defend himself against the evidence, strong or weak as that evidence may be, or as it may appear to the judge.

11. These days a submission of the second kind is sometimes made at the close of the Crown case rather than before the trial begins. Certainly that was the course which had been taken in R v Stephen Paul S [2006] EWCA Crim 756 and it there attracted no adverse criticism. We accept that it may be an advantage in some cases for the submission to be made at that stage. The judge can then see rather better than he could at the outset of the case whether, and, if so how far, the defendant has been hindered in challenging the evidence of the Crown, and make a better assessment of whether a fair trial is possible. We accept also that that decision may be informed by the nature of the evidence which the appellant has to face, although it does not at all follow either that strong evidence means that a fair trial is possible or that weak evidence means that it is not. In our system, provided that a fair trial can be undertaken, it is for the jury to decide whether evidence, weak or strong as it may appear to the trial judge, is accepted or not. The jury must be permitted to make that decision unless either it is evidence on which the jury correctly directed could not be properly convicted, or the trial simply cannot be fair to the appellant.

12. We respectfully endorse the principles which have been set out in many cases and were repeated by this court recently in R v Stephen Paul S at paragraph 21:

“(i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;

(ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;

(iii) No stay should be granted in the absence of serious prejudice to the defence such that no fair trial can be held;

(iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge;

(v) If, having considered all these factors, a judge’s assessment is that s fair trial will be possible, a stay should not be granted.”

13. In the present case we have a transcript of extensive discussion between counsel for the appellant and the judge in relation to the Galbraith submission from which it is apparent that he had directed himself correctly in relation to that. There is no reasoned judgment in relation to the second limb of the submission that was made on behalf of the appellant. It is not entirely clear whether that is owing to absence of transcript or owing to the fact that the judge gave his decision in very short terms. But it is realistically and rightly accepted on behalf of the appellant that the judge had been properly referred to the correct principles. He would not have been referred to R v Stephen Paul S which was decided later, but he certainly had been referred to the relevant and well-known authorities on the subject, in particular Attorney General’s Reference No 1 of 1990 95 Cr App R 296 , R v Smolinski [2004] EWCA Crim 1270 and R v EW [2004] EWCA Crim 2901 .

14. Mr Smith does not suggest that the judge should have withdrawn the case from the jury onGalbraith principles. This was a case in which the evidence of the Crown taken at its highest, if accepted by the jury, was evidence on which it could properly convict. His submission is founded upon the very lengthy passage of time between the events into which the jury was enquiring and the trial. In particular, he suggests, and it was suggested to the trial judge in plainly explicit terms, that the trial of the appellant could not be fair because there were no longer available witnesses as to key aspects of the case who might have given critical evidence. They fall into two principal categories. The first was a group of people, all now dead, who might have been in a position to give evidence as to the regime at the presbytery in the 1960s. There were five priests who at different times had been resident there; all, as far as we can see, senior to the appellant. There were, in addition, two housekeepers; one now disappeared, the other known to be dead.

15. The submission which is made is that those were people who would have been able to give the lie to the complainant’s assertion that he had been taken not once but on a number of occasions into the appellant’s room in the presbytery. The appellant’s case was that that was simply forbidden and in practice impossible.

16. The second category of witness, now deceased, related to the scout group. The principal organiser of the scout camp in Staffordshire was now dead and so were two other scout leaders who might have been able to assist in relation to the suggestion that was made by the complainant that he had shared a tent with the appellant. There were, in addition to that, a number of other people, such as school teachers, a treasurer of the youth club and the choir master, all of whom were also now known to be dead. Mr Smith does not suggest realistically that they were people who might have been in a position to give specific evidence, but he submits that they might well have been in a position to adduce evidence of the appellant’s high reputation and behaviour generally so as to assist in demonstrating on his case the unlikelihood that he had behaved in the way that was alleged.

17. We have been troubled by the absence of these witnesses. We are very conscious of the difficulties which are presented to an appellant who faces a complaint of this kind as long after the event as did this appellant. We ought to say, first, that in one respect we are entirely confident that Mr Smith’s submission goes too far. He invites us, albeit with becoming diffidence, to apply to this case the principles which the House of Lords requires of this court in a case of fresh evidence as explained in R v Pendleton [2001] UKHL 66 . That, we are quite satisfied, it is impossible for us to do. It is one thing to say that, when evidence which was not before the jury is known, this court in making a judgment as to the safety of the conviction should check its own first impression by asking what the impact upon the jury might have been of the evidence which it did not have. That, however, is to assess known evidence. It by no means follows that it is possible to take the same course in relation to a witness in respect of whom it simply is not known what he might have said.

18. Insofar as the witnesses who are not present might have been able to support the evidence of the appellant’s high reputation and to say that in their judgment, so far as they knew him, he was most unlikely to have behaved in the way that was contended, their absence was in this case much less of a disadvantage to the appellant than might have occurred in other cases. Such evidence was given, and given by those who might otherwise have been thought likely not to give it. They included the complainant’s brother and two principal independent witnesses, all called by the Crown.

19. Mr Smith accepted, as he had to, that the only evidence which could have provided real additional assistance to the appellant was evidence which justified the conclusion that the complainant’s account of being taken by the appellant into the priest’s room in the presbytery was simply not possible. The difficulty about that is that at a late stage in the trial two witnesses called by the appellant to give evidence, otherwise of assistance to him, gave evidence that they had, for entirely innocuous reasons, visited either one room or another of one or other of the priests in the presbytery.

20. So far as concerns the evidence of the scout master, such additional evidence was not available. Two witnesses called by the Crown who had been present at the camp in Staffordshire gave evidence of their recollection that the appellant had indeed shared the tent with the complainant as the complainant said he had. One of them gave evidence to the effect that he remembered a particular occasion when he had seen the complainant emerging from the tent followed by the appellant, the appellant in a state of either complete, or almost complete, undress. Neither of them suggested that they had thought anything untoward about it at the time. One of them said that he had thought simply that the complainant was fortunate and had some kind of privilege in sharing a tent with the appellant. On the other hand, there was evidence of the appellant himself that such a thing had never occurred and he called additional evidence to support him.

21. The judge referred throughout his summing-up to the fact that the witnesses to whom Mr Smith has referred us were known to be deceased and could not as a result be called at the trial. He gave them not one but a number of repeated warnings about the care that they should adopt in approaching the case given the absence of those witnesses. We accept, of course, that whilst that is the proper approach for a judge to adopt particularly in a case of this lapse of time, if there was such unfairness to the appellant that the trial could not properly take place, such warnings cannot always cure it. In the case, however, of the deceased scouting leader the judge went so far as to remind the jury of what was said about him, namely that he was the kind of scout leader who followed the rules and who simply would not have allowed what was alleged to have taken place to occur.

22. Before we arrive at a conclusion in relation to the submission of abuse of process, we think we should look in the same way that the trial judge was able to do, having regard to the time when the submission was made, at the state of evidence generally in order to see whether it was such as to demonstrate the trial judge’s conclusion, that the trial could properly proceed, was one which was plainly wrong.

23. The complainant himself was a witness about whose reliability and character critical submissions could properly be made. He had a history of drug misuse over a period of many years since his early teens. He gave evidence that at least one of the factors in his coming forward many years after the event was the publicity that had been given to complaints made against members of the priesthood and he conceded that he had lodged a claim which might result in compensation for him if what he said had happened had truthfully occurred.

24. Against that his own explanation for his revealing something which on his case he had been hiding for many years was that he had been overcome with anger bit by bit over the years, had reached the point at which he had planned to make a very serious violent attack on the appellant and indeed had got so far as going armed to his house, but fortunately had found that he was not there. His case was that having found himself engaged in such an act, he had concluded that he ought to reveal what had happened, initially to his doctor. The jury had to cope with, and to decide about, his evidence on that topic as on others.

25. There were a number of inconsistencies in what the complainant had said. He had undoubtedly told those counselling him in the early 1990s that his childhood had been unaffected by any trauma and had been basically happy. In addition, there were some inconsistencies in the detail of what he had said by way of account, particularly in relation to events which either had or had not happened at school. Lastly, there was evidence before the jury of a continental trip embarked upon by the appellant taking the complainant with him. The complainant had undoubtedly gone on it voluntarily. In relation to that trip the appellant was in a position to call the evidence of two independent people whom they had met on the trip and who were able to say that the complainant had appeared perfectly happy as the appellant’s companion and, moreover, that the tent shared by the two of them on that occasion, as was common ground, had been placed close to the tent of the witnesses and not some distance away as it might have been if something untoward had been going on within it. So the jury had to cope with those arguable weaknesses in the case of the complainant.

26. Conversely, however, the jury had evidence, which was a matter for them, which they might properly have regarded as support for the evidence of the complainant. The complainant’s evidence that he had been induced by the appellant to use an electric home massager on the appellant to masturbate him received this support. When many, many years later the appellant’s home was searched such a piece of apparatus was found to be in his possession. He conceded that for entirely understandable health reasons he needed it to ease muscle pain. The important point was that on his evidence there was no possible way in which the complainant could have known about it. True it was that by the time of the search the model found was a different model to the one which could have been there in the 1960s and true it was that the complainant misidentified the new model, but the appellant accepted that there would have been such a piece of apparatus in his room in the 1960s and he asserted that the complainant could not have known about it. The complainant did.

27. Whether there was an innocent explanation for that, or whether perhaps the complainant had visited the room in the same way as the two defence witnesses had for entirely innocuous reasons and had seen the device, or whether there was some other reason why he knew about it was a matter for the jury to assess in the light of such explanations as the appellant might offer. But, as we understand it, no explanation was offered.

28. Secondly, the same search, or perhaps a later one, revealed a number of negative photographs which included photographs of the complainant, in one case naked. Those appear to have been photographs taken at the time of a trip on the Norfolk Broads. The evidence about that was that the complainant’s older brother and a friend had arranged such a trip. The appellant went along as well and they were joined during the course of the trip by the complainant himself. There was then an incident of horseplay when the complainant was dumped in the river and at least one of the photographs appears to have been taken immediately after that after he had been undressed.

29. Thirdly, the complainant gave evidence of the uncircumcised state of the appellant. The appellant confirmed that that is his condition. It was suggested that it was possible, though he did not say more than that, that at some stage in the course of a class the topic might have arisen and his condition might by that means have become known to the complainant, and, indeed, for that matter, to other members of the class by some kind of an example or jest or moral. The jury, once again, had to decide for itself whether the fact that the complainant knew about that was one which could properly be explained away, or whether it could not.

30. There was, as we have already indicated, independent evidence of the sharing of the tent. As to the count which related to the woods, they were woods which were not particularly close to the complainant’s home, and, as we understand it, no reason was suggested why he should have known about them. They were, however, woods which were known to the appellant, being on a route which he agreed that he frequently took. Once again what the jury had to do was to decide whether the complainant had happened upon that location to suggest a false complaint or whether his knowledge of the area gave some support to his evidence.

31. Mr Smith also invites us to take into account the fact that the appellant was acquitted upon count 6, the count of indecent assault. He rightly acknowledges the rarity with which it will be possible for this court to read into the verdict of a jury a conclusion which demonstrates that a conviction on other counts on the same indictment are unsafe. The principles are well-known. They are set out in R v Bell (unreported) 15th May 1997 and R v Rafferty [2004] All ER 69 .

32. We agree with Mr Smith that it is not possible to demonstrate any logical inconsistency in relation to this acquittal. It is true that it follows that on that point the jury cannot have been satisfied, so that it was sure, that the complainant’s evidence was to be accepted. It was, however, a count of an isolated kind and the judge gave a particular direction about it. Of it the judge said this:

“It could be something of an isolation, you might say: ‘We don’t think things ever went that far.’ … But there is perhaps a limitation on whether this particular incident happened. Again, the date, the circumstance, seem to be unclear.”

33. We are quite satisfied that this is not one of those relatively unusual cases where an acquittal upon one count of an indictment demonstrates that the conviction on the other counts is unsafe. It is open to a jury to accept the evidence of a single complaint on some parts and not on others. There was in relation to this stand alone count no arguable support of any kind.

34. Accordingly, we return to the two questions which we were asked in this case. Was the judge plainly wrong to direct that the trial continue despite the enormous passage of time. That requires us to confront the question, could the trial be a fair trial despite the absence of the witnesses? In the circumstances, for the reasons which we have given, we are satisfied that it could and that the question of the suggested missing evidence could properly be assessed by the jury with the assistance of a summing-up which returned on a number of occasions to the difficulties which it presented.

35. We are invited, secondly, to consider, looking overall at the case, whether this is the kind of rare case within the principle of R v Selwyn B [2003] EWCA Crim 319 . For the reason that we have given, this case differs from that one. That was a case in which many years after the event the jury simply had no assistance whatever in deciding whether the word of one witness was to be accepted or the word of the other. This was not that case. There were other witnesses, albeit not the ones to whom Mr Smith has referred us, and there were a number of features which were capable, if the jury so decided, of being seen as giving support to the evidence of the complainant.

36. In this court it is easy to be tempted to come to a conclusion one way or another on paper as to what the right decision ought to have been in a trial which has taken place over a period of days with the witnesses seen by the jury. It is a temptation which has to be resisted. We have not seen the witnesses. We have not seen the complainant. We have not heard from the appellant. Moreover, we are not the right constitutional tribunal to make a decision about where the truth of the matter lay. That was for the jury. For the reasons which we have explained we are unable to say that these convictions are unsafe.

37. Accordingly, the conviction and sentence on count 5 will be quashed and to that extent this appeal succeeds, but to that extent only.

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

Index of Court Appeals on this blog [2]

  • 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.
  • One in Four [C]
  • 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
  • A Prescription for me blog Various emotional support links [M]
  • Fresh Start Foundation Scottish not for profit group, helping child sexual abuse victims & survivors  [N]

Links

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

Let justice be done though the heavens fall – Fiat justitia ruat cælum

 

[#ScoutsAbuse 3] Andrew Lee Clark 2000 Jun 13 Court of Appeal

by cathy fox blog on Child Abuse

Abuser Andrew Lee Clark, Scout leader had pleaded guilty to attempted buggery and indecent assaults. There were at least 2 victims, one was aged 11-13. The offences committed 1997-99, geographical area and scout group unclear but court was Chichester, West Sussex and Chessington is Greater London.

Appeal against sentence succeeded as the sentence was it was deemed too harsh as the full buggery offence was not completed.

Redaction

Some court 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 redaction” 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.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

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

This appeal is unredacted by cathy fox blog

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

Index of Court Appeals on this blog [2]

[2000] EWCA Crim J0613-17

No: 200000230/W3

IN THE COURT OF APPEAL CRIMINAL DIVISION

Tuesday 13th June 2000

Lord Justice Swinton Thomas

Regina v. Andrew Lee Clark

Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A 2HD Tel No: 0171 421 4040 Fax No: 0171 831 8838 (Official Shorthand Writers to the Court)

MR R PEZZANI appeared on behalf of the Appellant

JUDGMENT

(As approved by the Court)

Tuesday 13th June 2000

1. MR JUSTICE TOMLINSON: This appellant, a 36 year old man, pleaded guilty on 16th December 1999 in the Crown Court at Chichester to an indictment which contained four counts of indecent assault and three counts of attempted buggery. The offences spanned a period of 2 years, between October 1997 and October 1999. The victim of each of the indecent assaults and each attempted buggery was the same boy, who we will call simply D, who in October 1997 was just 11 and by the time of the last offence was just 13. We take this opportunity to underline that the anonymity of this boy is protected by section 1 of the Sexual Offences (Amendment) Act 1992, which makes it an offence to publish his name or address or any matter which might lead to his identification.

2. One further offence on another boy, A, committed in September 1997, when that boy was 12, was taken into consideration. The observations we have just made about the boy, D, apply equally to the boy, A.

3. His Honour Judge Thorpe imposed concurrent sentences of 3 years’ imprisonment on the indecent assault counts and 7 years’ imprisonment on the attempted buggery counts leading to a total term of 7 years. The learned judge made an order for extended supervision pursuant to section 4 of the Criminal Justice Act 1991.

4. The appellant now appeals against sentence with leave of the Single Judge.

5. It is submitted on his behalf that a sentence of 7 years’ imprisonment, for three offences of attempted buggery was manifestly excessive and therefore wrong in principle.

6. The facts may be very briefly summarised. The appellant was a friend of the victim’s parents. The boy D was the eldest child and the appellant was Godfather of the third child. His contact with the boy D began when D was about seven or eight. He would visit his home, take him to the park, take him shopping, take him to amusement or leisure parks such as Chessington, and also to his home and his parents, the appellant’s parents’ home. He also had contact with D through a cub scout group and later at a boy scout camp at which the appellant was present in his capacity as a scout leader.

7. The offence taken into consideration likewise occurred at scout camp.

8. The offences of indecent assault to which the appellant pleaded guilty included masturbation of the boy to ejaculation, fellatio of the boy and fondling both over and under the clothing.

9. The three counts of attempted buggery arise out of unsuccessful attempts by the appellant to insert his penis into the boy’s anus. It is accepted by the appellant that on these occasions he attempted to penetrate the boy. The most favourable way in which it can be put is that on each occasion the boy flinched or otherwise indicated that he was not enjoying the experience, in consequence of which the appellant, after about a minute, desisted from further attempts.

10. These offences came to light when in October 1999 D’s mother came home and found the appellant actually in the act of fondling the boy’s penis over his clothing. Later that day the boy told his mother what had been happening and three days later the police were informed. When interviewed the boy told the police the appellant had told him to keep secret what had been happening because he, the appellant, would probably, if it became known, be put into jail.

11. When arrested and interviewed the appellant made full and frank admissions. He said that the assaults took place in his own home, at his parents’ home, in his car, at a scout camp and on one occasion in the lavatories at Gatwick Airport, where he worked. As we have described, offences took place also at the boy’s own home, including the last described incident, which formed the basis of count 7. The appellant expressed deep remorse.

12. The effect upon the boy of this prolonged campaign of systematic abuse needs hardly to be laboured. There was before the sentencing court a psychiatric report upon the appellant. In it the consultant psychiatrist remarked that it is likely that the sexual abuse of D has affected him much more profoundly than is the appellant’s perception and that it may account for his reportedly being a challenging child. The damage done will no doubt be all the worse for having been inflicted by a trusted family friend and a person enjoying the authority and status of a scout leader. This Court can only imagine the difficulty which a boy treated in this way must now experience in forming normal stable emotional relationships with adults and persons in similar authority.

13. Similarly this Court, whilst it can and of course does sympathise with the parents whose son has been abused and whose future emotional development may have been blighted, can nonetheless only begin to comprehend the very great distress which must have been caused to them by this course of conduct, perpetrated by their trusted friend and Godfather to one of their own children.

14. The same consultant psychiatrist described this appellant as a homosexual paedophile who has an erotic attraction towards boys. He had, he said, displayed grooming behaviour towards D; that is he sought to foster an intimate relationship by providing D with emotional support, friendship, childhood excitement, such as trips to Chessington and Gatwick etcetera and presents. The incident which led to the offence taken into consideration which occurred in October 1997 had attracted allegations at the time. A suspension from the scouts and questioning by the police, although no charges were in the event brought. But this incident in October 1997 had not caused the appellant to desist. He went on to abuse D sexually over a long period. The probation officer in his pre-sentence report regarded him as a potential risk to children, notwithstanding he himself was adamant he would not re-offend.

15. The most weighty mitigation available to this appellant was of course his full and frank admission of guilt at the first opportunity and his remorse. He was of previous good character. He had apparently suffered serious sexual abuse as a child himself at the hands of his elder brother. At the time of the offences he was undergoing difficulties in his marriage apparently as a result of difficulties in conceiving although by the time of his arrest he had two children. He was evidently over-extended financially which no doubt gave rise to further stress.

16. Realistically, however, Mr Pezzani, for the appellant, while he emphasises the emotional stress as a potential mitigating feature, does not seek to suggest that these weigh very heavily in the scales. As we have indicated, the real mitigation in this case is the guilty plea and the expression of remorse.

17. Mr Pezzani’s starting point is the decision of this Court in R v Willis [1975] 1 WLR 292 , where Lawton LJ stated that in the absence of both aggravating and mitigating factors the correct bracket for the offence of buggery committed between an adult and a child under the age of 16 is 3 to 5 years.

18. Mr Pezzani accepts, however, that there were here present considerable aggravating factors. Those include, in our judgment, emotional and psychological injury to the victim, the use of gifts to corrupt the victim, the abuse of both trust and authority, the grooming nature of the appellant’s behaviour towards D as described by the psychiatrist, the length of time over which the offences were committed and of course the age of the victim. Whilst Lawton LJ spoke of emotional stress as being a mitigating factor, we cannot, for our part, regard the sort of stress to which this appellant was apparently subject as weighing very heavily in his favour.

19. Mr Pezzani also suggested that Lawton LJ’s guidelines related only to the actual offence of buggery not to the failed attempt to bugger. The fact that the actual full offence was not committed must therefore, he submitted, necessarily attract a lesser sentence than would otherwise have been imposed.

20. Of course in every case it must be a question of fact and degree. Very often an attempt will attract the same sentence as would the completed offence. However, the offence of buggery is perhaps one in respect of which it is particularly appropriate to take into account the distinction between an attempt to commit the full offence and the commission of the full offence itself. It may well often be the case that an attempt will result in a lesser trauma or injury than the completed act. We stress, however, that there can be no hard and fast rule, but nonetheless we do take into account and we do regard as relevant the fact that in the instant case it would appear that this appellant desisted once it became apparent to him that the boy was not enjoying the experience.

21. Finally, Mr Pezzani referred us to the case of R v Stepton [1998] 2 Cr App R(S) 319 , and suggested that because in that case the appellant, a man of good character, pleaded guilty to three counts of rape of a 9 years old boy and received in the event concurrent sentences of 7 years, so it followed that for the same number of attempts to bugger the sentence must be less. However that case of course lacked the element of gross breach of trust which is present in the instant case.

22. Looking at the matter in the round, however, we are satisfied that the overall sentence imposed by the learned judge was here too long. It seems to us that, in all the circumstances, whilst a very substantial sentence was inevitably called for, having regard to the particular features to which we have referred and, in particular, the fact that this appellant did not persist in his attempts to bugger the boy, once it became apparent that the boy wished him to desist, that in all the circumstances an appropriate sentence on the counts of attempted buggery would be one of five-and-a-half years rather than the 7 years imposed by the learned judge. To that extent therefore and to that extent only, this appeal succeeds. We quash the sentences of 7 years and substitute therefor concurrent sentence of 5 and a half years. We do, however, take the view that the learned judge was perfectly correct to impose an extended supervision order under the provisions of section 44 of the Criminal Justice Act 1991 and that aspect of his sentence will stand.

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

Index of Court Appeals on this blog [2]

  • 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.
  • One in Four [C]
  • 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
  • A Prescription for me blog Various emotional support links [M]
  • Fresh Start Foundation Scottish not for profit group, helping child sexual abuse victims & survivors  [N]

 

Links

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

Let justice be done though the heavens fall – Fiat justitia ruat cælum

 

[#ScoutsAbuse 4] John Oliver Bentley Court of Appeal 29 Jul 1999

by cathy fox blog on Child Abuse

The appeal against sentencing was made by John Oliver Bentley, who was a founder of British Men and Boys Love Association.  Although he was a member of BMBLA, this was an “isolated conviction” for indecent assault, although he had many indecent photographs.  The abuse was in the early 1990s and at his home Cheshunt, Hertfordshire. The appeal was dismissed.

Of interest is that the victim was taken to Bentley’s house by Douglas Braithwaite who ran a Scout group in NE London in the 1990’s, and was connected to a paedophile ring [who?], who had previously abused the same victim.

Braithwaite was connected to Brian Turner, 60, a convicted paedophile who was a member of child killer Sidney Cooke’s “dirty dozen” gang,  Dennis Ward, 66, Keith Spratt, 50, Robert Kearns, 50 and The Baden Powell Scouting Association, founded in 1978, which has about 2,000 members and 100 lodges nationwide. 1998 Sept 16 BBC “Huge” child abuse network uncovered [3]

Wikipedia Baden Powell Scouts Association  [4]

I have not researched further.

Redaction

Some court 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 redaction” 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.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

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

This appeal is unredacted by cathy fox blog

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

Index of Court Appeals on this blog [2]

[1999] EWCA Crim J0729-5

No: 99/2499/X5

IN THE COURT OF APPEAL CRIMINAL DIVISION

Thursday 29th July 1999

Lord Justice Clarke and

Regina v. John Oliver Bentley

Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A 2HG Tel No: 0171 421 4040 Fax No: 0171 831 8838 (Official Shorthand Writers to the Court)

MR SIMON WARD appeared on behalf of the APPELLANT

JUDGMENT

(As approved by the Court)

Thursday 29th July 1999

LORD JUSTICE CLARKE: The appellant is John Bentley, who is now 54 years of age. On 17th February 1999 at the Knightsbridge Crown Court he pleaded guilty on re-arraignment to indecent assault on a male. He was sentenced on 26th March 1999 by His Honour Judge Pontius to four-and-a-half years’ imprisonment. An order was made for extended supervision under section 44 of the Criminal Justice Act 1991 and the Sex Offenders Act 1997 applies indefinitely. A count of conspiracy to commit indecent assault on a male was ordered to remain on the file. He appeals to this Court against his sentence by leave of the single judge.

The facts were, briefly, as follows. A man called Braithwaite, who is now deceased, ran a scout group in north east London. The victim, who was born on 17th November 1980, joined that group in the early 1990’s, when he was nearly 11 years old. Over the next six years Braithwaite sexually abused the boy on a regular basis. This began with mutual masturbation and oral sex, and culminated in anal intercourse. By the time the boy was 12 he had been thoroughly corrupted.

Braithwaite also introduced the boy to members of a paedophile ring, who would also sexually abuse the boy. Although the appellant knew Braithwaite, it is not suggested that he was part of that paedophile ring.

When the boy was aged 12, as the judge found at a Newton hearing to which we shall return in a moment, Braithwaite took the boy to the appellant’s home in Cheshunt. While the appellant made tea in the kitchen, Braithwaite took out the boy’s penis and began to touch it. When the appellant returned he (the appellant) performed oral sex on the boy and then masturbated the boy. When the appellant stopped, they had some tea and the appellant then asked the boy to remove his clothing.

When the boy was naked, the appellant again performed oral sex on him and Braithwaite played with the boy’s testicles. The appellant produced a sexually explicit book which he had made, which depicted two young boys in the changing room of a swimming pool. Braithwaite masturbated the boy as the boy read the book and the boy wrote his name at the end of the book. They watched a video of boys and girls having sex, and then the boy was told to dress. Braithwaite took the boy home.

On 20th April 1995 police officers searched the appellant’s home and found indecent photographs of the victim. Braithwaite and another man had taken the pictures. On 9th February 1996 at the Cheshunt Magistrates’ Court he was convicted of an offence of indecent assault on a child and was sentenced to six months’ imprisonment. Those photographs were photographs of the victim.

On 9th March 1998 the appellant was arrested for the current offence. His home was searched, and a number of explicit photographs and pictures were seized together with a book which was similar to the book that the victim had read and noted with his name.

On 4th August 1998 the appellant pleaded guilty to possession of indecent photographs of a child, those being the photographs which had been seized on 9th March 1998 and was sentenced to six months’ imprisonment.

That sentence was varied on appeal to five months’ imprisonment on 21st August 1998 and he was released on that date, presumably on the basis that he had been on remand for some period. When interviewed about these offences, the appellant made no comment.

The appellant pleaded guilty, but there was an issue as to how old the victim was at the time of the offence. The Crown’s case was that he was 12, whereas the appellant said that he was 15. That issue had to be resolved at a Newton hearing, at which the victim gave evidence, although it is fair to say that cross-examination was confined to his age, so as to avoid causing him unnecessary distress. The judge held that the victim was 12 and that the offence occurred on 1st October 1993. The judge gave full reasons for his decision to impose a sentence of four-and-a-half years’ imprisonment as a longer than normal sentence under section 2(2)(b) of the Criminal Justice Act 1991.

He said this: “John Oliver Bentley, I give you full measure of credit for having pleaded guilty to this offence. I recognise that it must have taken a degree of courage to admit your responsibility, knowing with your record what the inevitable consequence would be. I sentence you for that offence alone.

I accept that this was one isolated offence, which would seem to put you at first sight in a different category from some of those men who have already been sentenced for systematic and repeated sexual abuse of [the victim] over a period of time. I saw that young man, as he now is, give evidence at some length, and it seems that he has grown up into a thoroughly decent, honest and level-headed young man, mercifully with no apparent adverse consequences to him of the way in which he was subjected to sexual abuse. I found him to be truthful, impressive and reliable in his evidence, evidence which showed that your indecent assault upon him took place when he was 12 years old and little more than a child.

When Douglas Braithwaite brought the boy to you in Cheshunt there is no doubt that he had already, over the preceding two years at least, been thoroughly corrupted sexually by constant and frequent abuse since the age of 10. By that time, therefore, he was, in effect, being passed round by Douglas Braithwaite amongst his friends, of which you were one, as nothing more than a sex toy, for the sole purpose of sexual gratification, with plainly never a thought being given by any of you to his welfare.

Your previous record shows that you have been sentenced in the past —both before and, importantly, after, this offence – for having indecent photographs and pictures of boys in your possession, as well as for gross indecency with a young boy some years ago.

Further, I have seen a lurid home-made pornographic illustrated novelette found in your possession containing not only graphic written descriptions but also drawings of sexual activity between underage boys compiled for the obvious purpose of sexual gratification.

It is a matter for considerable concern that as the contents of the final page make clear, that book, which significantly bears the words “For boys under 14” on the cover, was shown to a number of boys, who were then asked to record their comments, and did so, in answer to direct questions of a blatantly sexual nature.

In addition, I have today also seen the similar material, including photographs, which led to your earlier convictions.

In those circumstances, although this is your first conviction for an offence of indecent assault, nevertheless, I am in no doubt that immature boys are in clear and continuing danger of sexual assault at your hands. I am fortified in that view by the contents of a full and helpful pre-sentence report, hence although I cannot, any more than previous courts, deter you from further offending, I must pass a sentence which will not only serve adequately to punish you for this serious indecent assault on a 12-year-old boy but which will also offer a measure of protection to other children who are, like [the victim] at the time of this offence, extremely vulnerable to predatory men.

In short, I have a very clear duty to protect the public in general and prepubescent boys in particular from serious harm at your hands.

In the absence of other relevant convictions a commensurate sentence for this offence would, in my judgment, in all the circumstances, have been in the region of two to two-and-a-half years’ imprisonment.

Given your history, however, I am confident that my public duty requires me to exercise my powers under section 2(2)(b) of the Criminal Justice Act 1991 and to pass a longer than commensurate sentence if that public duty is properly to be fulfilled.” The judge expressly said that, in the event of an appeal, he would wish this Court to see the material which was before him, particularly the book and the bundle of material to which he referred. We have now seen that material. The origin of the material is threefold. There are some photographs of the victim which were in the appellant’s possession, although it is not suggested that he himself took the photographs.

We have seen some photographs taken by the police in the mid-1990s and we have seen the other material to which the judge referred, which was found at the appellant’s address in March 1998.

The judge referred to the appellant’s previous convictions. He also placed some reliance upon the pre-sentence report. There was before the judge a detailed pre-sentence report, which, like the judge, we have considered in detail. It is important to note, Page 7 as Mr Ward has pointed out in his written submissions, that there may be some doubt as to the reliability of all the information given to the writer of the report.

We accept that that is so, although it is right to say that all pre-sentence reports depend upon information given to their writer. It is not necessary for us to set out the whole of that report here. In our judgment, however, it affords significant support for the judge’s conclusion that this is a case in which it is necessary to protect the public from serious harm from the offender, within the meaning of section 2(2)(b) of the Criminal Justice Act 1991. We refer to just two paragraphs.

“15. I am advised by both Detective Murray and colleagues at Marylebone Magistrates Court that Mr Bentley is a founder member of the British Men and Boys Love Association which advocates sex between men and prepubescent children. Further that there remains serious on-going concerns regarding his behaviour and current contact with like-minded individuals.” Then there is a reference to a particular letter.

Under the “Risk to the Public of Re-offending” the writer says this: “The court will clearly have concerns at the nature and frequency of Mr Bentley’s offending in spite of the number of deterrent and therapeutic disposals in the past.

These undoubtedly will be exacerbated by the fact that this offence was committed whilst subject to probation supervision and the fact his behaviour is continuing whilst remanded in custody.” The writer then expresses doubt about the appellant’s motivation. The writer finally concludes that the appellant poses a high risk of offending and a high risk of harm to the public.

We have also seen a psychiatric report, which concludes as follows: “With regard to potential for future risk, the court should bear in mind the range of different activities in which Mr Bentley has indulged and the length of time during which he has had his interest. Mr Bentley has four previous convictions for sexual offences, over a period of years. In view of the longevity of the history and the range of his interests, it is my opinion that he must present a future risk to young boys.” The sole ground of appeal is that the judge was not justified in passing a longer than normal or commensurate sentence under section 2(2)(b) of the Criminal Justice Act 1991. It is submitted that he did not have before him sufficient material to enable him to conclude that it was necessary to pass such a sentence to protect the public from serious harm from him.

In this connection, Mr Ward’s submissions may be summarised as follows.

1. The offence itself cannot provide justification for imposing such a sentence since it was an isolated incident some five-and-a-half years old. Indeed, it is the appellant’s only conviction for any kind of assault.

Moreover, it had been committed at the behest of another man, who is now deceased.

2. The judge relied on the appellant’s criminal record, the pre-sentence report and the psychiatric report and a home-made book found at Mr Bentley’s address. As to his record predating the offence, it was one of threatening words or behaviour, two gross indecencies with a child and two indecent exposures, the last of which was in 1992. Since the offence, there was a conviction in February 1996 for possessing the indecent photographs to which we referred, and a further offence to which he pleaded guilty on 4th August 1998, to which we have also referred. It is submitted that the pre-sentence report and psychiatric reports were not really based upon conclusions other than the appellant’s record. It is not suggested, for example, that he suffered from a mental illness.

As to the material found at the appellant’s address, Mr Ward submits that it does no more than show a predilection for obscene material, which could not on its own justify the conclusion to which the judge reached.

Overall, it is submitted that the material was capable of establishing nothing more than that the appellant had a sexual interest in boys.

Page 10 We accept that the mere possession of indecent material would not be enough to justify the conclusion reached by the judge. But in this case the judge relied not just on that material; he relied upon a number of factors. He relied upon the appellant’s convictions in the past and the convictions since the date of this offence. Moreover, he relied, as he could properly rely, upon the offence itself, which was a serious indecent assault.

In our judgment, the submissions which Mr Ward has made —and he has said everything which could possibly be said on behalf of the appellant —inappropriately minimise the risk. In our judgment, making all proper allowance for the information upon which the reports were based, those statements of opinion, together with the facts of this offence, his convictions since the offence and the material found at his home fully justify the conclusion reached by the judge that a longer than normal sentence was required in order to protect the public or a particular part of the public, namely young boys, from serious harm. In our judgment the judge was right to apply section 2(2)(b) of the 1991 Act. The sentence was not manifestly excessive. The appeal must be dismissed.

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

Index of Court Appeals on this blog [2]

  • 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.
  • One in Four [C]
  • 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
  • A Prescription for me blog Various emotional support links [M]
  • Fresh Start Foundation Scottish not for profit group, helping child sexual abuse victims & survivors  [N]

 

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3] 1998 Sept 16 BBC “Huge” child abuse network uncoveredhttp://news.bbc.co.uk/2/hi/uk_news/173024.stm

[4] Wikipedia Baden Powell Scouts Association https://en.wikipedia.org/wiki/Baden-Powell_Scouts%27_Association

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

Let justice be done though the heavens fall – Fiat justitia ruat cælum

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