Brizzalari v R [2004] EWCA Crim 310

Case No 2002/04756/B3[2004] EWCA Crim 310
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE HEPPEL QC
SITTING AT
Venue Royal Courts of JusticeDate Thursday 19 th February 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE KENNEDYMR JUSTICE PENRY-DAVEYMR JUSTICE HEDLEY
Between
Michael BrizzalariAppellantThe CrownRespondent
(Transcript of the Handed Down Judgment ofSm Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Patrick Cosgrove QC & M. Barlow for AppellantWilliam Harbage QC & Ms C. Sjolin for Crown
Judgment
[1]This is the judgment of the court to which all members have contributed.[2]After a trial lasting some six weeks in June and July 2002, Michael Brizzalari was, on an Indictment containing 25 counts involving 11 separate complainants, convicted unanimously on twelve counts of indecent assault, by a majority of 11-1 on three counts of indecent assault and two of rape and by a majority of 10-2 on two counts of indecent assault, one of buggery and one of rape. He was further acquitted on one count of rape and two of indecent assault and the Jury was discharged from giving a verdict on the remaining count of indecent assault. On the 24th July 2002 he was sentenced by the trial judge, His Honour Judge Heppel QC, to a total of 15 years’ imprisonment.[3]Mr Brizzalari sought to appeal against both his conviction and his sentence. On his behalf Mr Patrick Cosgrove QC advanced 12 grounds of appeal against conviction. The single judge granted leave to appeal on ground 10 and also gave him leave to appeal against sentence. Mr Cosgrove renewed his application to this court but did not seek to pursue grounds 5, 6, 11 and 12. During the hearing this court further gave him leave to appeal on grounds 1, 2, 3, 8, 9 and one new additional ground and heard counsel for the respondent on all those grounds as well as on ground 10.[4]The events which gave rise to those charges were centred on an institution known as Scawby Grove, an Observation and Assessment Centre managed by (the now defunct) Humberside County Council. It was a place that received young people through the criminal and family justice system and from social services.[5]Their stay might be long or short (and, for many, repeated) dependent both on individual need and the availability of other resources. Although registered for 24 young people, it would frequently accommodate rather more. The one thing that every resident would have in common would be that he or she was a troubled and thereby vulnerable youngster.[6]Scawby Grove was a large and imposing building containing accommodation for both boys and girls. This was separated but there were access doors in between. The staff in each section might have been either gender and, of course, provided a round-the-clock service.[7]Mr Brizzalari was employed at Scawby Grove as a residential care worker from 1983 to 1992. The complaints subsequently made against him cover effectively the whole period of his employment. His superiors clearly had a high regard for him as he was twice promoted and full confidence was reposed in him.[8]To the outside world the appellant would have appeared as an excellent care worker. Not only was he a man of good character, he was both a foster and adoptive parent. Indeed the evidence shows that the favourable impression was initially shared by many of the young people who lived there. He seemed friendly, kind, and attentive, qualities, it sadly transpired, not shared by other senior members of staff.[9]In August 1991 a complaint was made by a resident against the appellant of indecent sexual behaviour. An informal enquiry was instituted in the course of which three of the ultimate complainants in this case were interviewed. The appellant was for a time moved elsewhere but was required in due course to return to his post. The police were also involved but, although the appellant was interviewed, no action was taken against him.[10]The following year the police were again involved following complaints from two young women (one of whom was a complainant at the trial) and once again, having interviewed the appellant, they decided to take no action. On this occasion, however, the appellant was transferred from Scawby Grove. Following a somewhat inconclusive disciplinary hearing, it was decided that he should no longer work with children and he saw out his remaining time in other departments until ill-health necessitated his retirement in 1996.[11]In 1997 the police re-opened enquiries on a much wider front into the running of local authority residential establishments in the Humberside area. That involved Scawby Grove and the appellant. In due course other senior workers were charged (and subsequently convicted and imprisoned) in relation to the regime run at the Grove. It appears that that regime was characterised by oppression and fear, an atmosphere in which complaint, even where possible, was futile. The trial, conviction and imprisonment of the Principal, a man called Littlewood, had occurred only a month or so before the opening of the appellant’s trial. The trial judge was the same for both. That trial had been the subject of extensive local reporting.[12]In the course of that enquiry, known as ‘Operation Juno’, many former residents were seen. We were told that if anyone being interviewed named another former resident then that person would then be seen by the police but they were the only people who would be so seen. Many statements were taken and, in the event, ten former residents and one former junior member of staff became complainants and witnesses at the appellant’s trial. At least two others had made complaints but did not pursue them.[13]The trial raised all the problems so common in cases such as this. Witnesses were describing events that happened between 10 and 20 years previously. They were describing events that had happened (if they had) in the absence of any other witness. Many of the complainants had grossly unstable backgrounds and many, since leaving care, had led chaotic and sometimes criminal lifestyles. Not all documents had survived. Some complainants had made earlier statements implicating the appellant and some had made statements but not implicated him; some had made complaints of a sexual nature against others of which some were true, some were false but most were untested. These cases pose serious difficulties for all involved and not least for the trial judge. This case proved to be no exception.[14]The general nature of the case against the appellant was that he had taken advantage of his position of authority and the trust reposed in him to gratify himself sexually at the expense of vulnerable female residents. Moreover there were two allegations of indecent assault made against him by a junior member of staff. With the possible exception of count 25 in which misunderstanding may have featured, the appellant’s case was a forthright denial of any sexual wrongdoing advanced first to the police and then consistently maintained thereafter. Although it appears he was reluctant actually to articulate it, his case had to be, as the trial judge observed, that all the complainants were deliberately falsifying allegations against him whether in pursuit of compensation or in revenge for a life in care or for whatever other reason, he could not say.[15]It became inevitable then that His Honour Judge Heppel QC would be called upon not only to make rulings but to give a careful and detailed summing-up. Prudently he sought the assistance of counsel on each occasion; nor did he lack for help as a number of skeleton arguments bear testimony. In the event he had to deal with substantive issues of abuse of process, the validity of the committal, severance, similar facts, adverse inferences and delay as well as a number of matters of a case management nature. It will be necessary to return to these matters in more detail in due course. All frequently arise in these cases.[16]Inevitably much turns on the summing-up, some of which will have to be examined in some detail as the individual grounds of appeal are considered. However, it may be helpful if some general observations are made at this stage so that it can be seen in its proper context when matters of detail are being scrutinised.[17]The structure of the summing-up was essentially to start with some general observations and then deal with all matters of law. When it came to the facts, the learned judge went through the case complainant by complainant and count by count reminding the jury of the examination and cross-examination; then in respect of each the judge reminded the jury of what the appellant had to say (including cross-examination) before concluding with a review of the defence case (including witnesses) as a whole. It follows that matters mentioned in his directions were either expressly or illustratively repeated as he went through the case relating to each complainant. For a fair reading of his summing-up, it is essential to remember this.[18]Having sought counsel’s views at some length, the judge reduced his directions in law into writing and provided the jury with copies of it as he went orally through his summing-up, incorporating into it the written directions which of course the jury continued to have available to them during their long retirement which spanned many days. The summing-up was preceded by the speeches of counsel which themselves occupied two and a half working days, something the judge was entitled to take into account as he shaped his own summing-up.[19]It is occasionally worth reflecting on the purpose of a summing-up. Of course it must contain an accurate statement of the law that the jury is to apply. Inevitably if a conviction is challenged that aspect of a summing-up may well be subjected to close scrutiny. The experience of trial judges is that more and more material often has to be included now. It must also be both fair and balanced so far as fact and law are concerned for it is essentially the summing .up that discloses the lines of reasoning open to juries in arriving at their verdicts so ensuring that the rights of Defendants under Article 6 of the ECHR are protected. All that said, however, the principal purpose of a summing-up remains the judge’s attempt to help juries understand the law, the issues they have to decide and how they might go about that task in the particular case in hand. Every review of a summing-up, if it is to be fair to all, must have that purpose fully in mind. It is not only different cases that require different summings-up, so also may different juries. This judge had sat with this jury for over a month before he came to sum-up to them.[20]In short, in considering the grounds cogently advanced by Mr Cosgrove, the court must keep the overall position, the overall impression left on the jury well in mind whilst it analyses the detail of what was and was not said. It must do that so that it can form a fair impression of the effect of what was said or was not said on this jury trying this case.[21]Having then set out the essential nature of the case and the problems that it inevitably engendered, it may now be helpful to turn to the individual grounds advanced by Mr Cosgrove. We start with a brief consideration of those grounds upon which we refused leave to appeal. It will be necessary in the course of this review to refer to some of the detailed evidence. Beyond that, however, there seems no purpose in a detailed recitation of the sexual abuse on which these conclusions are founded. The general (if brief) picture painted thus far is sufficient background to set the context for considering specific grounds.[22]Refusal to discharge the Jury: The case was opened and the first witness gave her evidence in chief on a Friday. In the course of the opening the name ‘Littlewood’ was mentioned as the Principal of The Grove. On the following Monday the judge had a note from the Jury enquiring as to whether this Littlewood was someone who had featured in the local press. It was and what particularly concerned the Defence were certain sentencing remarks made by Judge Heppel QC which whilst not naming the appellant were strongly critical of the regime at The Grove. At that stage the Prosecution supported the Defence application. The judge refused it and his reasoning appears between page 5C and 6G of his ruling. This kind of ruling is one that is particularly within the discretion of the trial judge. We see nothing in his reasoning which would lead us to impugn the exercise of that discretion. Indeed his concern that such an issue could recur with a new jury and his belief that an immediate and firm direction could deal with the matter seems to us to be soundly based. It is accepted that the direction that he did indeed subsequently give was as good as it could have been.[23]Refusal to allow the recall of Superintendent Morris: We regard this matter as so peripheral to the true issues in this case that we intend to say little about it. An unsigned contract that may or may not have been implemented and in which the police may or may not actually have taken a management role was nowhere near enough to require the judge to permit this line of investigation into the ‘integrity’ of the police investigation to be pursued. He refused to do so and that, we are satisfied, he was entitled to do.[24]All other grounds have now been allowed to be argued. We propose to consider those in turn. It will, however, be convenient to group together issues of abuse of process and delay and also severance and mutually supporting evidence. So we turn first to the question of the Committal for Trial by the Magistrates’ Court. Ground 1.[25]Ground 1 concerns the validity of those committal proceedings. The Criminal Procedure and Investigations Act 1996 introduced a new regime in relation to committals for trial under which no witnesses are called to give oral evidence or be cross-examined. That was achieved by replacing some of the provisions of the Magistrates Courts Act 1980 but the 1996 Act also introduced a new regime in relation to disclosure by the prosecution. The provisions in relation to disclosure are in Part I of the Act, and the provisions in relation to committal proceedings are in section 47, which is in Part V, and in Schedule I. But the relevant commencement order (SI 1997/683) provided that the new committal regime was to have effect “in relation to any alleged offence in relation to which Part I of [the] Act applies”. We therefore have to return to section 1, which so far as material provides - “(3) This Part applies in relation to alleged offences into which no criminal investigation has begun before the appointed day. (4) For the purposes of this section a criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained -(a) whether a person should be charged with an offence, or(b) whether a person charged with an offence is guilty of it.” The appointed day was 1st April 1997.[26]Mr Cosgrove QC submitted to the trial judge and has submitted to us that -(1) All of the offences in the indictment were committed before 1st April 1997:(2) In relation to several of the complainants there were police investigations in relation to complaints made by them against the appellant in 1991-1992:(3) So, although the 1991-2 investigations were closed at that time, and Operation Juno, the police investigation which led to the present proceedings, was commenced after 1st April 1997, it cannot be said in relation to all of the complainants that there was no criminal investigation begun before the appointed day:(4) Accordingly the committal proceedings in relation to charges concerning those complainants who had complained in 1991-2 should have been under the old regime. There should have been a hybrid committal, and in default thereof the position should have been regularised by an application to a High Court Judge for a Bill of Indictment.[27]This submission was not made in the Magistrates’ Court, and the judge rejected it for two reasons: first by reference to the wording of the statute, and secondly by considering the effect of a defective committal.[28]The relevant statutory wording has been considered on two occasions in the Divisional Court. In R v Norfolk Stipendiary Magistrates ex parte Keable (29th January 1998 and [1998] CLR 510) the court concluded that despite the obvious possibility of surveillance, for the purposes of Part I of the Act there can be no criminal investigation into a crime not yet committed. So, if the offence or offences charged were committed after 1st April 1997, then the new regime applied.[29]In R v Uxbridge Magistrates’ Court ex parte Patel [1999] 164 JP 209 a differently constituted Divisional Court, having considered Keable, reached a different conclusion and ruled that a criminal investigation can indeed begin into an offence before it is committed. At 218 E Simon Brown LJ said - “In particular this may be so in a surveillance case or where a series of offences is committed, some before and some after the appointed day. Whether, of course, in any given case that is the correct view will be a question of fact for the examining magistrates. They must … ask themselves the simple question: when did the criminal investigation of this offence begin?”[30]Both members of the court recognised that in certain cases that approach would result in hybrid committals, but they endorsed what had been said by James Richardson in Criminal Law Week when commenting on Keable. Mr Richardson drew attention to the structure of the Act, Part II of which is concerned with “Criminal Investigations” into suspected or alleged offences, as to which the Secretary of State had to prepare a Code of Practice. That Code would apply to any investigation begun after the appointed day. Mr Richardson’s commentary went on to point out that it is obvious - “That Parliament intended that Parts I and II should operate in tandem, and that the disclosure duties imposed by Part I on the prosecutor should operate only in relation to those cases to which Part II applies (see, for example, the many references to Part II of the Act in sections 3 to 9). …. For good measure it may be said that the rationale underlying the commencement provisions is clear and supports the conclusion which has been suggested as the correct one. If an investigation .. is commenced at a time when one set of rules apply, it is obviously sensible that the old rules should continue to apply to that particular investigation and any prosecution resulting from it regardless of the fact that a new set of rules comes into force during the life of the investigation … Finally it should be noted that …. there may be many cases where it is far from clear whether an offence committed after the appointed day was within the scope of an investigation begun before that day. The answer in any given case will depend on all the facts of the particular case.”[31]We agree with that approach, and with that analysis. The prosecution with which we are concerned, in relation to all of the complainants, resulted from Operation Juno. Operation Juno was an operation to which Part II of the 1996 Act applied. Accordingly, for the purposes of section 1(3), no relevant criminal investigation began before the appointed day. As the judge said “there may be cases where an investigation, commenced before the 1st April 1997, is put on hold and then resurrected, such that although in two parts, the criminal investigation may properly be regarded as one whole but that is not this case.”[32]So, for reasons which are essentially the same as those given by the trial judge we reject Mr Cosgrove’s primary submission in relation to Ground 1. It is of no significance that in the present proceedings the statements taken from SH in 1992 were used. Until Operation Juno commenced the earlier investigation was not on hold. It was, on the evidence, completely closed.[33]That conclusion makes it unnecessary for us to deal with Mr Cosgrove’s further submission, which relates to the judge’s conclusions as to the result if there was a defective committal, but, like the trial judge, we consider it only right to express our view in relation to the submissions which have been made. Mr Cosgrove submitted that the defect was fundamental. It went to the jurisdiction of the magistrates’ court to commit for trial. There are four authorities which assist in relation to this aspect of the case, and we examine them in chronological order. We begin with R v Hall [1981] 74 Cr App R 67, where the certificate sent to the Crown Court indicated that the committal had been under legislation not yet applicable to the particular defendant. The procedure envisaged under each statute was the same, and, as this court pointed out, the committal was the judicial act of the magistrates, which must have taken place before the document came into existence. Lord Lane CJ said at 71 - “The justices undoubtedly had power to act as they did under the Magistrates’ Courts Act 1952, sections 7(1) so far as their power to commit for trial is concerned, and under the Criminal Justice Act 1967, section 1, so far as their power to commit for trial without consideration of the evidence is concerned. Consequently the fact that in the certificate which comes into existence later the wrong Act was mentioned seems to us in no way to invalidate the committal.”[34]That decision was followed in R v Carey [1982] 76 Cr App R 152 where an examining magistrate failed to sign the statutory certificate, and then in R v Barnet Magistrates’ Court ex parte Wood [1993] CLR 78 the Divisional Court was asked to quash a committal where an abusive and disruptive defendant so disconcerted the court clerk that she failed, as required by Rule 7(10) of the Magistrates’ Courts Rules, to tell him that he could give evidence and call witnesses if he wished to do so. Clearly that was a procedural irregularity which affected what happened thereafter, even though it caused no discernible prejudice. The Divisional Court referred to the trial judge the issue of whether the committal proceedings were so defective that there was no lawful committal for trial, but clearly it did not regard the outcome as a foregone conclusion.[35]In R v Raynor [2000] 165 JP 149 this court considered the refusal of a trial judge to quash an indictment on the basis that two re-translated witness statements included with the committal papers did not comply with the requirements of sections 5A and 5B of the Magistrates’ Courts Act. Clearly there was an irregularity which entitled the Crown Court to consider the extent to which the deficiency in the committal should result in the quashing of the indictment. Latham LJ referred to the speech of Lord Mustill in Neill v North Antrim Magistrates’ Court and another [1993] 97 Cr App R 121, which indicated that in judicial review proceedings in relation to committal proceedings the test is “whether or not a really substantial error leading to demonstrable injustice had occurred.” Latham LJ continued at 154 - “It seems to us that the touchstone is the touchstone of injustice. The question in each case that has to be asked is whether the procedural defect which has occurred is one which has worked injustice to the defendant.”[36]In our judgment even if we were mistaken in our statutory construction there is no evidence of injustice to the appellant in this case. We recognise that on that hypothesis he was deprived of the opportunity to require complainant witnesses to attend to give evidence in the Magistrates’ Court, but so far as we know he never even asked for any one to attend, and what mattered in the end was whether they were or were not prepared to attend and testify in the Crown Court. Accordingly it seems to us that the trial judge was right to decide as he did in relation to Mr Cosgrove’s alternative submission. In our judgment if there was a defect in the committal proceedings it was not fundamental, and did not vitiate the proceedings in the Crown Court.[37]Mr Cosgrove sought to persuade the judge to stay counts 11, 13-16, 18, 19 and 21-25 on the grounds of abuse of process. He failed to do so and has sought to argue that the judge was wrong. His arguments were essentially founded on the prejudice caused by delay in this case. He also sought to argue that, having allowed the trial to proceed, the Judge’s directions as to delay in his summing-up were inadequate. We consider these two matters together.[38]The essential law as to the granting of a stay in these circumstances is clear. There is an inherent jurisdiction to stay proceedings if either the defendant cannot have a fair trial or that it would be unfair for the defendant to be tried. It is a jurisdiction to be exercised sparingly and it is one in which the burden is on the defendant on a balance of probabilities to establish the case for a stay. It is well recognised that in cases like this one, delay is common and the courts are reluctant to grant stays on this basis. In fact Mr Cosgrove’s argument in the end was concentrated on the issue of the documentary evidence that was and was not available.[39]The judge’s reasoning in support of his refusal to grant a stay appears in volume 1 of the Transcripts between pages 25F and 33A. In the course of that ruling the judge at page 28D-H identifies the documents of particular concern to the Defence. The essence of the judge’s reasons for refusing a stay are set out between pages 30C and 31F. We think this should be reproduced in full and it reads as follows:
“I sit back to take stock of the position. First, so far as the June 1991 inquiry by Humberside is concerned, the defence know the names of those who were seen and knows that none of them or anyone else who may have been seen made complaints against the defendant. If this fact is not agreed between the prosecution and the defence, the defence have of course a witness, Mrs King, available to be called to that effect. Secondly, so far as the August 1991 police investigation is concerned, the defendants(sic) know who complained and the terms in which they complained, therefore witnesses do not have a free hand in cross-examination to say what they like. The defence know the context of the interview and the conclusions reached by the police and have, as I’ve said, available to them a comprehensive police report. Thirdly, so far as February 1992 is concerned, the February 1992 police investigation is concerned, the defence know who complained and in what terms, they have a précis of the police interview and, as I’ve indicated, a comprehensive police report. I do not consider that the defence are hampered to the point of unfairness in not having the terms of negative interviews from the June 1991 inquiry. Whether or not there was anything by way of negative statements, arising from either of the police investigations which has been destroyed, is not to be known. I think it likely that, given the amount of documentation retained by the police, that nothing was destroyed but there is no basis for concluding that there was a deliberate policy, albeit a bona fide one, to destroy the favourable and to retain the unfavourable. The absence of details of who was seen but did not complain and what they said by way of non-complaints does not, in my judgment, prejudice the defendant to the point of unfairness. I also remind myself that although it was not mentioned in either party’s skeleton or in oral argument, that one must not lose sight of the fact that under the disclosure regime a number of documents concerning the complainants from Social Services’ files have been made available to the defence for use in cross-examination if they so wish.”
Mr Cosgrove recognises that he confronts a reasoned exercise of discretion with which this court is unlikely to interfere unless either the judge has misdirected himself or reached a conclusion clearly outside the boundary of a reasonable exercise of that discretion.[40]He seeks to do this effectively by demonstrating that the judge had simply not appreciated the proper force of his points about the documentation. Crucially, he argues that the records of interview with the appellant from 1991/2 are missing as are other documents from both the social services’ investigation in June 1991 and the police investigations of 1991/2; he complains that whilst documents containing allegations against the appellant have survived, those that might have been exculpatory have not. He seeks to rely on the unreported decision of this court in Turner (1999/01555/X3) and also that of Bloomfield [1997] 1 Cr App R 135. Finally he draws attention to two letters in 1991/2 indicating that no further criminal action is to be taken against the appellant.[41]We have to say that we did not find the citation of authority on this point helpful. We are considering an exercise of judicial discretion. Each authority is very much tied to its own facts. The use of authority by seeking to compare sets of facts and then trying to draw conclusions about the exercise of discretion is rarely likely to be fruitful. It was certainly not so here. Moreover, it must be remembered that the defence were far from bereft of material documents for much had survived from social services and from the police as well as from The Grove itself. They were not, of course, complete but neither were they insubstantial.[42]It is clear that the judge had all these matters in mind when he addressed the defence submissions in his ruling. He broadly took the view that whilst inevitably some prejudice would arise as a result of delay, the loss of documents and, no doubt, through the start of a new investigation, he was nevertheless not persuaded that a fair trial could not be had or that it would be unfair to try the appellant. He had in mind that some of the prejudice could be relieved by proper directions being given in the summing-up. Notwithstanding Mr Cosgrove’s attack on that ruling we are satisfied that the judge was entitled to come to the decision he did on the basis set out in his ruling quoted above. Indeed on the picture as it appeared to him (and it remains substantially unchanged) we are of the opinion that he was right so to decide.[43]Of course the judge had committed himself to dealing with the matter fully and fairly in his summing-up. Mr Cosgrove submits that he failed to do that and so to that issue we must now turn. The judge deals with it in the course of his directions in law between pages 16A and 17C of volume 2 of the Transcripts. Once again it is necessary to set it out in full and it reads as follows:
“Well, what about delay? We’re here concerned with offences said to have taken place a long time ago, mid-eighties through to early nineties. That this delay might work prejudice to the defendant is something you must bear in mind when considering whether the prosecution has proved its case to the required standard. There are, you may think, two periods to consider. First, the delay between the alleged incident and its first being reported to the police by way of a witness statement taken during Operation Juno. Second, the period between the making of the statement and this trial. You should bear in mind that the passage of time might cause memories to fade or to play tricks on memory. Equally, you may think, a witness cannot be expected to recall with complete clarity events that took place a long time ago. The longer the passage of time since the alleged incident, the more difficult it may be for the defendant to answer it and if you think that the defendant has been prejudiced by delay then, as a matter of fairness and common sense, you take that into account in the defendant’s favour. It is common ground between the prosecution and defence that many of these alleged incidents were not the subject of complaints to the police or to anyone else until fairly recently. The reasons given by the complainants to explain the delay are important matters for you to consider and we shall, of course, look further at this in due course. Some documents are missing: staff attendance records, the residents’ records for 91 and 92, the records of non-complaint, the Social Services internal inquiry in August 1991, notes in 1999 about NW’s not complaining, police notebooks and unused material from the 91 and 92 investigations and AT’s Social Services files. On the other hand, the defendant has had access to personal files and records and has asked questions in cross-examination based upon them and you should also bear in mind that Mr Brizzalari has, you may think, given detailed evidence of events. He’s been able to trace and call several witnesses and you’re entitled, of course, to take this into account when considering whether prejudice has in fact been caused by delay.”
What Mr Cosgrove essentially complains about is that the judge has not clearly identified for the jury the impact of the prejudice which the appellant may have suffered as a result of the absence of documents in this case. It may be that the jury had their attention clearly called to it in the speeches that immediately preceded the summing-up but that is no substitute for the ‘judicial imprimatur’ of the summing-up. In advancing that submission he placed reliance on the judgment of Holland J. in the unreported case of Percival (1997/6746/X4).[44]Mr Cosgrove’s complaint is best illustrated in relation to the case involving SS (counts 17 and 20). Ms Sontag insisted that she was only at The Grove for about a month in mid 1991 whereas records show that she was there from 23rd to 26th August and 31st August to 9th September 1991. The appellant’s case is that he was not there at all for that time. The existing records as to his attendance were equivocal whereas the records which could have shown decisively that he was not there (or, of course, that he was) were missing. He says that that problem was simply not addressed by the judge at all. Against that has to be put the fact that in his summing-up, count by count, the issue of delay is confronted more than once, including a reference to missing documents, not least in his review of the evidence of SS.[45]What is the duty of the judge in these circumstances? In our view valuable guidance is given by Rose LJ in the case of R-v-M [2000] 1 Crim App R 49. At page 57 the Vice-President says this:
“It is apparent that the judgment in Percival was directed to the summing-up in that particular case. We find in the judgment no attempt by the Court to lay down principles of general application in relation to how judges should sum up in cases of delay and we accordingly would wish to discourage the attempts being made, with apparently increasing frequency, in applications and appeals to this Court to rely on Percival as affording some sort of blueprint for summings-up in cases of delay. It affords no such blueprint. Indeed in this area, as in so many others, prescription by this Court as to the precise terms of a summing-up is best avoided. Trial judges should tailor their directions to the circumstances of the particular case. In a case where there have been many years of delay between the alleged offences and trial, a clear warning will usually be desirable as to the impact which this may have had on the memories of witnesses, and as to the difficulties, which may have resulted for the defence. The precise terms of that warning and its relationship to the burden and standard of proof can be left to the good sense of trial judges with appropriate help and guidance from the Judicial Studies Board.”
It is clear that the judge has formulated this part of his summing-up on the basis of the Specimen Direction 37 provided by the Judicial Studies Board. There can, of course, be no objection to the essence of his direction; the crucial issue is whether he has sufficiently elucidated the difficulties which have resulted for the Defence in the absence of some of these documents. In answering that once again we have to remind ourselves of the need to look at the whole of the summing-up and its impact on the Jury.[46]In our judgment the judge has sufficiently fulfilled his duty in this case. The essential direction on delay at page 16A-F (quoted above) is impeccable. Moreover it was adverted to again and again as he summed up the facts. He has dealt with the absence of earlier complaints and that too is considered again in the review of individual witnesses. He has set out (page 17A) the documents whose absence the defence assert causes difficulty and he has made a balancing (and permissible) comment about prejudice. Moreover, immediately following this direction is a full and fair direction as to the good character of the appellant and the bad character of some complainants. He reviews the evidence of SS between pages 87G and 99F. In it he deals with “available records”, clearly and fairly identifies the issues for decision and sets out in some detail the appellant’s case that he was simply not there. When this summing-up is considered in the round it is impossible to conclude otherwise than that the Jury would have had delay and prejudice (including that arising out of missing documentation) clearly established in their minds. There is nothing under this head to make us wonder if the Jury had failed to grasp the essence of these problems to the extent of rendering any of these convictions unsafe.[47]It is and always has been acknowledged that all counts were properly joined in the same indictment. However, at the outset, Mr Cosgrove applied for severance and separate trial of counts 1 and 2. This, in the context of this case, was a matter of great importance to both sides for the complainant in those counts was not a resident but a junior member of staff. In a case where the defence was that all allegations were false, the allegations of a member of staff were of particular significance. The learned judge rejected the application. He referred to the alleged similarities and dissimilarities raised in the skeleton arguments and observed:
“… having considered the matter carefully, I am quite satisfied that her evidence, so far as can be ascertained by a paper analysis, contains sufficient similarities to figure in a mutual support equation within the terms of the judgment of Lord Mackay in the DPP-v-P and, accordingly, this application is refused.”
That was a reference to DPP-v-P [1991] 2 AC 447. No doubt the judge had in mind the passage from the speech of Lord Mackay of Clashfern LC where at pages 460H-461A he said:
“Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no specific manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.”
Clearly the judge was basing himself on this approach[48]Our consideration of this must be prefaced by the comment that this argument became much more complicated than it needed to have been. Given that these allegations amounted to a course of conduct over a period within a single establishment where what was really at issue was the truthfulness of the prosecution evidence, it seems to us that the judge could simply have refused this application by reliance on authority of the House of Lords as expressed in the case of Christou [1997] AC 117. However, as these issues are closely linked with those raised under Ground 9 we propose to deal with them.[49]Mr Cosgrove sought to place reliance upon the judgment of Potter LJ in Musquera [1999] Crim LR 857 although we were provided with a full transcript (98/0161/Y4). Our attention was drawn to observations on pages 13 and 14 of the transcript. Mr Cosgrove begins by recognising that, as Potter LJ puts it:
“It is certainly the case that when the issue is …. that a particular witness is lying, a lesser degree of similarity between the two allegations is likely to suffice to make them cross-admissible than when the issue is, for example, the identity of the defendant…..”
However, Mr Cosgrove stresses these words of Potter LJ:
“… it is still necessary to invoke some common identifiable feature or features constituting a significant connection and going beyond mere propensity of co-incidence.”
Clearly that is correct. Potter LJ returned to this point in Venn [2002] EWCA Crim 236. He observed that cases like Musquera “do little to provide an easy guide to admissibility from case to case”. At paragraph 35 in Venn, he observes:
“Where, as in this case, the prosecution witnesses are alleged to have made up their stories in a situation where collusion or cross-contamination can be discounted, the existence of common features in the nature or context of the separate offences which are the subject of complaint may, whether separately or cumulatively, be more readily regarded as non-coincidental and therefore probative on the issue of lies than would be the case if identity were the issue. That is because, in a case of this kind, the similar facts relied on are the making of similar allegations and not the events which are described in the allegations: see the Commentary of Professor Sir John Sm at [1999] Crim LR 859.”
We respectfully agree. The scrutiny of the judge’s approach must be undertaken not only with these words clearly in mind but also the repeated observation of this court that each of these cases must be dealt with on their own facts.[50]Judge Heppel QC obviously had in mind respectively paragraphs 19 and 11 of the Defence and Prosecution skeleton arguments. He was at this stage considering the case on the basis of what witnesses were expected to say i.e. on the basis of statements. In the event bearing in mind that this was a false allegation case and bearing in mind too the available authoritative guidance, we have concluded that the judge was entitled to hold that there were sufficient similarities here to go beyond mere co-incidence or propensity. That relates not only to the context of the allegations - in the course of his work in a residential home - but also as to the manner in particular set out in paragraph 11(b) and (c) of the prosecution skeleton argument. Moreover, as we have indicated, had the judge approached this case on the basis set out in Christou, it is difficult to see how he could have come to any other conclusions.[51]Having so concluded, however, the judge incurred particular responsibilities when he came to his summing-up. Potter LJ in Musquera considered how the judge should approach the latter “in doubtful cases” and observed:
“Either he should lean in favour of the defendant by telling the jury to treat the charges separately, or he should be particularly careful to identify the similarity or other relationship relied upon by the prosecution, giving some guidance in respect of it in the light of the defence advanced, coupled with the warning (which was appropriate in the circumstances of this case) against relying on mere propensity itself.”
Mr Cosgrove relies on these words as well he might. We do too reminding ourselves once again that the precise terms of a summing-up are dictated by the features of the specific case and noticing that Potter LJ is dealing with “the doubtful case.”[52]How then did the judge deal with this in his summing-up? In the immediate aftermath of his directions on the burden and standard of proof, he turns to the question of supporting evidence. He urges care. He deals with motive. Then he says this:
“Members of the jury, I have already directed you, and I repeat, you must give separate consideration to each charge and the evidence said to prove it. You do not automatically convict of one count just because you have convicted that defendant of another. To do so would be to convict on the basis of mere propensity; that’s something that you must be careful to avoid.”
He then goes on to deal with the question of the need to be sure there was no collusion before turning back to the supporting evidence. It is necessary to set this part of the Direction out in full:
“If you are sure that there has been no collusion between one witness and another or others, you are entitled to consider the evidence of the other or others in deciding whether the one is telling the truth. You should ask yourselves whether it is reasonably possible that two or more persons, independently making similar accusations, could all be mistaken or lying. In answering this question you should consider the degree of similarity between the accusations; the greater the degree of similarity the more likely that independent witnesses are telling the truth because you may think it a remarkable coincidence if they hit on the same lie or made the same mistakes on matter of detail. Now pausing there. Of course the emphasis is on “independent” isn’t it, independent witnesses. On the other hand, the lesser the degree of similarity, the less weight you give to the evidence. Further, you have to consider whether any complainant may have been consciously or unconsciously influenced through hearing or hearing of the accusations made by others and, if you think this may have happened, then you take it into account when assessing the evidence, and the evidence regarding the integrity of the police investigations is of course important in this regard. Members of the jury, as I have already directed you, the evidence and fact finding is entirely your province but the following areas of evidence are said by the prosecution to be similar, and you well know now what they are and I’ve set them out. Playing with his private parts. B-C told you about that; so did B, H, W and S. These witnesses do not here describe an offence or an act said to be preliminary to an offence but what the prosecution submit is inappropriate behaviour of a sexual nature in their presence and sight. The second area, brushing past unnecessarily causing inappropriate physical contact; that is spoken to by B, by Bm, by T and by S Thirdly, inappropriate cuddling leading to touching breasts. Everyone talks about this; B, Sm - sorry, B, Sm, Bm, T, H C, Wk, Bk, W and S, as does Miss R who is not a complainant in this case but a witness. Fourthly, pulling girls onto his knee, leading to indecent assault. This is described by Bm, C and by S, and finally references during rapes to “enjoying it”, said by B and S. Now members of the jury, the extent to which you find the above matters similar is a matter for you. It’s for you to consider the extent to which the evidence given by the various complainants is of a similar nature and the extent to which the evidence of one witness supports that of the other but, in this context, “support” means probative value going beyond mere propensity; proving something beyond a mere propensity.”
Again this must be seen in the context that many of these issues were revisited when the judge came to deal count by count with the evidence. It is not suggested (nor could it be) that there was any significant internal inconsistency in the summing-up. Moreover these directions were also provided to the Jury in written form.[53]We can see no viable basis for complaint in the manner in which the judge dealt with this issue. He was entitled on the evidence to offer the four matters that he did to the jury for their consideration as mutually supporting evidence making it clear to them that it was for them to decide whether in fact it was such. We do not read the Summing-up as inviting speculation as to any other matters that might be regarded as mutually supportive. The judge had sat with this jury long enough to form his own view as to whether he needed to define ‘propensity’ to them. In our view the jury having heard and read these directions could be in no doubt as to what they were required to do and what they had to avoid. We therefore reject these two grounds.[54]In the course of their closing speech, the prosecution alleged that the appellant was relying on two facts that only emerged at the trial and that therefore the jury were entitled to draw an adverse inference from them. These two factors were: first, that the appellant had a long standing skin problem in his groin which may have caused him to scratch over his clothing; and secondly, that he had learnt of SS’s name from reading diaries and from a briefing. The defence asserted that these matters were incapable of coming within Section 34. The judge held that they were and dealt with it in his summing-up. Mr Cosgrove attacks the ruling that these two matters were capable of coming within Section 34; if he is wrong about that, he accepts that the judge’s directions in his summing-up were impeccable.[55]There is no doubt, as it seems to us, that both were relevant matters. It was a feature of the evidence, and indeed left as a matter of potentially mutually supporting evidence, that he was said to have played with his private parts. What he asserts is not, of course, quite the same as it is limited to scratching over clothing. It was central to the appellant’s case in relation to SS that he had never been at The Grove at the same time as she and thus how he came to know her name was of some relevance. The qualifying provision is Section 34(1) which, so far as is relevant, provides:
“(1) Where, in any proceedings against a person for an offence, evidence is given that the accused at any time….on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings….being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned….”
It is apparent that two matters arise for consideration: first whether either of these matters were facts relied on in his defence; and secondly whether the appellant could reasonably have been expected to mention them when questioned.[56]Insofar as Mr Cosgrove persisted in his submission that these were not facts “relied on in his defence”, we say no more than that the judge was clearly entitled to come to the view that the jury should consider this point. The gravamen of this submission was that he could not reasonably have been expected to mention them since he was not asked about them. Helpfully he set out the relevant passages of interview in his advice and they span paragraphs 208-217. We have considered those with care and having done so we have no doubt that the judge was entitled to leave them to the jury. Thereafter, his directions fully and accurately define for the jury their proper approach to this matter and, as we have said, no point is taken on that. It follows that we reject this ground of appeal.[57]We would, however, seek to add an observation discouraging prosecutors from too readily seeking to activate the provisions of section 34. We acknowledge the weight juries will give to being directed as to adverse inferences. We appreciate the difficulties that can be caused to the prosecution if no reliance is placed on Section 34 and this is clearly illustrated in the Opinion of the House of Lords (paragraphs 16 and 17) in the case of R v Webber [2004] UKHL 1. Nevertheless the mischief at which the provision was primarily directed was the positive defence following a “no comment” interview and /or the “ambush” defence. That was not the case here. Whilst therefore we have held that the prosecution were entitled to take the point and, once they had done so, the judge was required to deal with it, we would counsel against the further complicating of trials and summings-up by invoking this statute unless the merits of the individual case require that that should be done. If the section is not relied on in a particular case, it may well be sensible for the judge to raise with counsel whether a direction not to draw any adverse inference is desirable or necessary (see R v McGarry [1999] 1 Cr App R 377 and R v Scott Thomas [2002] EWCA Crim 1308).[58]A fresh ground is raised on behalf of the appellant relating to two categories of material disclosed very recently to those representing the appellant. The first group of documents relates to a complaint made by SS in April 1996 of indecent assault on her by a young man with whom she had been out in a group of young people. The young man concerned pleaded guilty to indecent assault but before proceedings went any further Ms Sontag made a statement indicating that whilst she confirmed what had happened, she had decided on reflection to withdraw her complaint, and she set out her reasons for so doing. The second group of documents relates to an allegation by Ms Sontag in July 1996 of rape by a complete stranger in a public house car park when she was on her way home. She made a statement to the police, but an investigation did not result in any arrest and the file was marked “undetected.” Some doubts were expressed in the crime report about the authenticity of the allegation, and Mr Cosgrove has referred us to a passage in the statement of Sidonie M in which, after Ms Sontag had complained to Ms M of rape, Ms M describes the reaction of somebody else when told about the complaint as saying that Ms Sontag was running true to form. That is something submits Mr Cosgrove that he would have wanted to have investigated.[59]Bearing in mind the nature of the allegations in this case, it is questionable in our judgment whether this material was properly disclosable. It was disclosed in a separate case in which Ms Sontag was a complainant, and came to the notice of those representing this appellant shortly before we began to hear the appeal. For present purposes we treat it as material that ought to have been disclosed before trial. It relates to individual allegations made in a very different context from the allegations that were made in this case. Additionally, these were matters in our judgment that did not adversely affect the credibility of Ms Sontag in that the allegation of indecent assault was acknowledged as true by the plea of guilty and despite some degree of scepticism about the rape allegation, there was no evidence to show that it was untrue.[60]It is also acknowledged on behalf of the appellant that the defence were in possession of other disclosed material relating to allegations made by Ms Sontag against others, including an allegation against another care worker in respect of which there was some evidence that the allegation was false, and the decision was made not to use that material, although the leave of the judge to do so had been sought and granted. The relevance of the recently disclosed material is at best marginal. We have to consider whether its non-disclosure renders these convictions in any way unsafe. In our judgment it does not.[61]We have gone at some length and with some care through all the issues that have been raised in this case. We have done so because we appreciate the gravity of the matter and because this case raises many of the points so often raised in these difficult cases of “historic abuse”. We have concluded that there is no substance in any of the points taken on behalf of the appellant. It follows that we have concluded that there is nothing in the matters that we have been invited to consider that impugns in our minds the safety of these convictions.[62]We think it right to say in conclusion that any fair reading of the careful, balanced and conscientious summing-up of His Honour Judge Heppel QC would leave the reader in no doubt that the Jury would be clear both as to the extent and the proper limits of their consideration. They responded with what was obviously an equally careful and conscientious consideration that spanned several days, an observation reinforced by the fact that they provided different verdicts, some unanimously and some by varying majorities, over these days. It would seem that this serious and sensitive case received the care and attention it merited from both the learned Judge and the Jury. In the result this appeal against conviction is dismissed.[63]The learned trial judge divided up the indecent assaults into two groups using the period during which they were committed as the means of division. For those two groups he imposed sentences of 18 months imprisonment concurrent within each group but made one group consecutive to the other. On count 5 he imposed a sentence of 3 years imprisonment concurrent. Then on the rape and buggery charges he imposed sentences of 12 years imprisonment concurrent to one another but consecutive to the indecent assaults i.e. 15 years in all.[64]Mr Cosgrove realistically recognised that these were very serious offences involving repeated and grave breaches of trust. Indeed he could not (and did not) seek to go behind the expressed view of the judge that these complainants had been systematically groomed and that in the final analysis this appellant was the worst offender of all those from the Grove whom he had tried arising out of Operation Juno. What he sensibly did, if we may respectfully say so, was concentrate on the one and only point realistically available to him: for this man given his age, character and background, 15 years in total was a manifestly excessive sentence notwithstanding the gravity of these offences.[65]It is clear not only that the judge knew that he was passing a very heavy sentence but also that he intended to do just that. This case had been fought hard and long. The impact and effect of that would have been apparent to the judge. Age, character and background, whilst clearly not irrelevant, carry less weight in dealing with this kind of offence than in some others simply because most offenders of this kind tend to be mature people of good character. He took the view that a severe sentence was merited.[66]Of course not every judge might have passed this sentence which, as we have indicated, was severe. However, we are unable to say in the context of this case and the knowledge that the judge had of it, that it was so severe that it could properly be categorised as manifestly excessive or wrong in principle. It may well represent the heaviest sentence that could properly have been passed but in our judgment it does not go beyond that. The appeal against sentence is accordingly dismissed.

Cited in 7 later judgments