Kinsey, R. v [2005] EWCA Crim 1871

Case No 2004/02027/D4[2005] EWCA Crim 1871
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 4 July 2005
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE FIELD
SIR JOHN ALLIOTT
Between
R E G I N ACrown- v -
Between
JOHN MICHAEL KINSEY
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR C VOSPER QC appeared for APPELLANTMR R I W BOND appeared for CROWN
J U D G M E N T

Monday, 4 July 2005

[1]On 5 March 2004, in the Crown Court at Worcester, this appellant was convicted of seven counts of indecent assault on a male person. He had faced an indictment containing twelve counts. Of the other five counts, four of them resulted in verdicts of not guilty from the jury; and in relation to an allegation of assault with intent to commit buggery there was a verdict of not guilty by direction of the judge. The appellant was sentenced to five years' imprisonment on each of the counts of indecent assault in respect of which there had been a conviction, the sentence was to run concurrently. There were also ancillary orders under section 2 of the Sex Offenders Act 1997 and section 28 of the Criminal Justice and Court Services Act 2000. He now appeals against conviction by leave of the full court.[2]The background to the matter is that in the second half of the 1980s the appellant was a novice monk at Belmont Abbey Monastery in Hereford. He was there between September 1985 and September 1988, after which he studied in Rome for a period of three years before returning to the United Kingdom. He was ordained as a priest in September 1991.[3]There were three complainants whose names appeared on the indictment. We shall refer to them as "L", "B" and "G". They were ex-pupils of Belmont Abbey School, which was adjacent to Belmont Abbey. The general allegation was that the appellant had sexually abused the three complainants between 1985 and 1988 when they were pupils at the school and the appellant was in his mid-twenties.[4]Count 1 in the indictment was the only one which named the complainant L. The allegation was that the appellant had indecently assaulted L, when L was 16 years of age, by putting his hand inside L's trousers, beneath his underpants and touching his groin area without his consent.[5]The complainant in relation to counts 2-5 was B. The appellant was convicted on counts 2-4, but acquitted on count 5. The allegations related to a time when B was aged between 16 and 18. The case for the prosecution was that the counts reflected a number of occasions when the appellant had touched B's penis without his consent.[6]The remaining counts on the indictment, 6-12, referred to the complainant G. The outcome was that the appellant was convicted on counts 6, 7 and 8, but acquitted on counts 9-12. On count 11 he was acquitted by direction of the judge. The case for the prosecution was that the appellant had committed indecent acts upon G from the time when G was aged 14. They continued throughout G's time at the school and after he left, up until his 19th birthday.[7]Counts 6-8 (which resulted in the convictions) were alleged to have occurred before G's 16th birthday. For that reason there was no issue as to consent. Counts 6 and 7 alleged instances where the appellant was said to have masturbated G. Count 8 concerned an alleged act of oral sex upon him.[8]The subsequent counts were alleged to have occurred after G's 16th birthday. The allegation was that they had taken place without his consent.[9]The case for the appellant was that in relation to L and B the allegations were wholly untrue. There had been no sexual contact between himself and either of the boys. In relation to G the defence was different. The appellant, who acknowledged his homosexuality, stated that he and G had enjoyed a consensual homosexual relationship, but only after G had left the school and when he was in his early twenties. The defence, therefore, was that G had transposed events which occurred at that time into a context of their having occurred at the school when he was much younger.[10]Before this court the appellant's case has been skilfully advanced by Mr Christopher Vosper QC, who was not defence counsel at trial. Counsel then defending the appellant is now a Circuit Judge. The first ground of appeal advanced by Mr Vosper is that the judge misdirected the jury in respect of similar fact evidence, in particular with regard to the evidence of L and B. It is accepted on behalf of the appellant that, subject to proper direction and evidential satisfaction, L and G could be treated by the jury as mutually supportive. There was undoubted similarity between their accounts. They had been friends at the school at the time in the mid-1980s. They then went their separate ways.[11]L first complained of sexual abuse at the hands of the appellant in November 2001. At that stage the complaint was made to the Prior of the abbey. He later made a witness statement to the police in March 2002. That led to the appellant being interviewed by the police in the following month. However, on 23 April 2002, the police decided to take no action. L was informed of that decision shortly afterwards.[12]Up until then, B had not made a complaint to the police. However, he contacted the police for the first time on 17 July 2002. The case for the prosecution was that the closeness in time of those events, after a period of fifteen years or more, was no more than a coincidence, there having been no contact between L and B in the intervening years. There was no evidence of collusion, but from the point of view of the defence there was a suspicion of it. Prior to closing speeches the matter was briefly aired between counsel and the judge. In the exchanges that then occurred, Mr Bond for the prosecution suggested to the judge that there had been no allegation of collusion.

He added:

"If there had been an allegation of collusion it would be a different matter, but it has never been raised and I can understand why that has been done in this case." 13. "
Thank you. Might I, in order not to take anybody by surprise, obviously I have not set out my stall as clearly as I should have done. I shall be addressing the jury upon the basis that there is something slightly curious about the timings and contacts by [B] and [L], although I cannot make the same point so far as [G] is concerned." 14. "Timings of contacting the police, making enquiries as to what the state of play is with the ongoing complaint." There was no further discussion that afternoon or indeed the following day.[13]In this case we have a transcript of the closing speech on behalf of the defendant. It is necessary for present purposes to refer to how defence counsel dealt with this matter in his address to the jury. At page 11 of the transcript he said:
"There is no evidence .... of collusion in this case .... we venture to suggest that there is something very curious in this case. Something so fundamental that perhaps it is easy to understand why it has been overlooked. .... is it a coincidence that according to them [that is L and B], and I did ask them both actually, you may recollect, whether there had been any contact between them, simply to lay the ground for the point that I am going to make. Isn't it incredible that having been contemporaries in school, [L] and [B] both made complaints in the same year? They both had 15 years to do it and they both make complaint in the same year."
He added: 16. ".... the evidence of [B] was that he only went to the police when he learned that [L's] complaint was not being forwarded and we know that the decision not to forward it was communicated to both [the appellant] and to [L] in April 2002 and lo and behold within a mater of months thereafter, having learned of that fact, [B] makes his complaint against [the appellant]." 17. "But, I repeat, it is a very strange coincidence, is it not, that two men who assert that they have had no contact with each other since leaving Belmont Abbey School, both choose to make complaints in the same year."[14]No doubt when counsel spoke those words he did so in the expectation that the judge would give the direction which he had indicated he would give in the earlier discussion. However, when the time came he did not. In his summing-up this is what the judge said to the jury:
"I am now going to give you a direction, again on the law, on what is called similar fact. We know in this case that the witnesses did not put their heads together, there has been no suggestion about that, to concoct some story against the defendant. In those circumstances you should ask yourselves is it reasonably possible that the three principal witnesses independently making the similar accusations which you have heard could all either be lying or mistaken? If you think that is incredible, then you may well decide -- you may well decide that the witness whose evidence you are considering is telling you the truth but, in answering that question, you should consider two important aspects of that evidence. First of all, the degree of similarity between the accusations of the three principal witnesses, the three complainants, because the greater the degree of similarity the more likely it is that independent witnesses are speaking the truth for you may think it would be a remarkable coincidence if they hit upon the same lies or made the same mistakes as to matters of detail. On the other hand, obviously, members of the jury, the less the degree of similarity the less weight should be given to that evidence. You should also consider whether the three complainants may have been consciously or unconsciously influenced in their evidence through hearing the complaints by others. If you think that is possible, that they or any of them may be influenced in making the accusation at all or in the detail of their evidence, you must take that into account in deciding what weight you can give them, to give to their evidence."
Within those directions there is contained a considerable reflection of the early part of the specimen direction at 20.3. However, it is common ground before us that the direction fell short of including the later part of the direction which deals specifically with collusion and the need for the jury to be sure that witnesses have not put their heads together and to be sure that there was no collaboration.[15]Mr Vosper submits that that passage was a serious misdirection because the judge excluded collusion rather than directing the jury that they had to be sure that it had not occurred. He points to the opening words of the passage:
"We know in this case that the witnesses did not put their heads together...." 20. ".... it is accepted by the defence that each of those witnesses made their allegations separately. They did not put their heads together or co-operate in any way."
Mr Vosper submits that that was not accepted by the defence, as was apparent from what defence counsel had said to the judge and later had said to the jury in his closing speech.[16]Mr Vosper further relies on a passage in the speech of Lord Mackay of Clashfern LC in R v H [1995] 2 Cr App R 437, 451, where, drawing on a previous decision of this court in R v Ryder (1994) 98 Cr App R 242, 251, Lord Mackay said:
"Even if the judge himself is of the view that there is no real possibility of collusion, when the matter has been argued he should leave the issue to the jury."
[17]Mr Bond's response is that although the judge did not direct the jury as he had said that he would, as there was no evidence of collusion the judge was correct to proceed as he did. It is difficult to avoid the impression that if counsel then defending the appellant had within the confines of propriety been less opaque in his cross-examination of the witnesses and in his submissions to the judge and his address to the jury, or had raised the judge's omission to give the previously indicated direction at the end of the summing-up, we would not be in the position we are today. Equally, on the other hand, counsel for the prosecution could have raised the omission, which he now unhesitatingly acknowledges. However, we take the view that by his cross-examination and the content of his words to the judge and address to the jury, defence counsel had put the issue of collusion on the agenda. It is not a complete answer to say that there was no evidence of collusion. Such direct evidence is often absent. But the circumstances nevertheless raise the need for the possibility to be excluded.[18]We consider that this is such a case and that the judge ought to have given the direction that he had indicated. His failure to do so was a misdirection. It goes to the safety of the convictions in relation to the L and B counts. The next question is whether it also impacts upon the convictions in relation to the G counts. In our judgment it does. The matter had been left to the jury on the basis that the evidence of L and B, if accepted, was capable of supporting the evidence of G. On one level the G counts were different in the sense that the defence was that G had backdated actual events to an earlier time and place. However, we take the view that on the basis of the direction which they had received, the jury may have used the evidence of L and B as supportive of the evidence of G as to his age at the date of at least some of the events. In these circumstances, after some hesitation, we have concluded that the misdirection on collusion also renders the convictions on the G counts unsafe. It follows that the appeal is allowed and the convictions are all quashed.[19]For the sake of completeness we turn to the second ground of appeal, which relates only to the counts in which the complainant was G. The submission is that the judge did not do justice to the appellant in the way that he summed up that part of the case to the jury. The essence of the defence, as we have observed, was transposition, that is it was said that G was referring to later adult consensual acts and transposing them to an earlier period during most of which his age would have negatived consent. It is clear that the judge reminded the jury that that was the defence. The complaint is that in summing up the evidence of G, the judge virtually ignored his evidence in cross-examination and made no reference to defence points which were material to B's credibility. In his skeleton argument Mr Vosper set out a number of these at some length. Two of them related to the way in which the judge dealt with count 10, upon which the jury acquitted the appellant, and count 11, in respect of which the judge had previously directed a not guilty verdict.[20]Save in relation to those two matters, the points sought to be raised by Mr Vosper all related to what can fairly be described as background matters. It is also pertinent to observe that throughout the summing-up the judge chose to focus on primary issues and said relatively little about the cross-examination of any witness, whether for the prosecution or defence. It had been a short trial. He explained his approach to the summing-up in these two passages. The first occurred at the beginning of his summing-up when the judge said:
".... if I fail to remind you of parts of the evidence which you think are important, then you will take them into account because, as I say, you and you alone are the judges of fact."
The second is at the end of the summing-up, when the judge said: 26. "Well, members of the jury, that is obviously a rather rapid run through the evidence but I think the important thing is that you should take into account all the evidence that you have heard. I have just merely referred you to some of the evidence which I think can help you most, and reach your verdicts on an overall view." 27. "It was my first sexual contact with another person." Later in cross-examination G conceded that he had had earlier sexual contact with other persons (and indeed later sexual contact as well). There was no doubt about G's homosexuality. The complaint is that the judge ought not to have referred to that sentence in-chief without also referring to the point that was made in cross-examination.[21]Secondly, when dealing with count 11

the judge said:

"And then the count which you are no longer concerned with but, of course, the evidence may be relevant if you so decide: 'When I was working in Cardiff I was aged 18 to 19. He tried to screw me and penetrate my anus with his penis. I let him get on with it, so to speak'."
As to the first of those two passages upon which Mr Vosper concentrates, plainly if a judge refers to a passage of evidence in-chief, but omits to mention the contradictory passage in cross-examination, the picture is incomplete. However, this was not a matter of central importance. Standing alone, it would not have affected the safety of the convictions on the G counts. The same can be said of the obscure reference to count 11. It is not clear to us what relevance the judge was suggesting it might have. It is just possible that he may have had in mind its relevance to the defence case. But if so, we have to question why he referred only to the passage of evidence which, left alone, gave no assistance whatsoever to the defence. It is all a little odd, but we shall leave it there. Suffice it to say that nothing in the second ground of appeal would have resulted in the quashing of the convictions were it not for the strength of the first ground of appeal which has led to that result. 22. We have considered with counsel the question whether, upon the quashing of these convictions, there ought to be a retrial. Although the matters are of some antiquity as historical events (if that is what they were), there is nevertheless a public interest in this kind of case. We are minded to accede to the prosecution application and order a retrial. We shall do so in an order in the usual terms, which will require the appellant to be arraigned again in the Crown Court. Mr Bond helpfully tells us that, although he has instructions enabling him to seek a retrial, he has no up-to-date information as to the attitude of the complainants. He tells us that the decision to go ahead may be reviewed if the complainants express a different view. That sounds to us to be very sensible, but it is a matter that can be resolved in the Crown Court rather than requiring any return to this court. 23. The grounds upon which we have quashed these convictions are entirely concerned with matters of law. Nothing that we have said should be taken as expressing any criticism or view of the complainants or indeed of the appellant. We have not seen any of them give evidence. We have been concerned solely with the appropriateness or otherwise of the summing-up. In the circumstances we say no more about that. 24. MR VOSPER: My Lord, might I ask your Lordships to make a representation order for the retrial in the Crown Court in the terms of the original order? 25. LORD JUSTICE MAURICE KAY: He had legal aid which entitled him to leading counsel alone, did he? 26. MR VOSPER: Alone, and solicitors, yes. 27. LORD JUSTICE MAURICE KAY: Yes. Obviously it is appropriate that that should be the same. 28. MR VOSPER: My Lord, there is one other costs matter. I am not sure whether it is an appropriate application. The cost of the transcript of the evidence of the third complainant was a cost which had to be borne by the appellant privately -- in fact, by his father privately. From your Lordships' judgment I am not entirely sure whether that is an appropriate cost. If it is an appropriate cost, I think I can ask if your Lordships would consider making a defendant's costs order in respect of that. It was about £300. 29. LORD JUSTICE MAURICE KAY: Yes, certainly. 30. MR VOSPER: I am grateful. The final matter is whether your Lordships would grant bail pending the new trial. 31. LORD JUSTICE MAURICE KAY: He had bail before the original trial, did he? 32. MR VOSPER: Yes, up to his conviction on 5 March. 33. LORD JUSTICE MAURICE KAY: On conditions? 34. MR VOSPER: I am afraid I do not have the conditions, but in fact he was living at his parents' address in a suburb of Cardiff certainly until the trial. 35. LORD JUSTICE MAURICE KAY: Mr Bond, anything to say about bail? 36. MR BOND: My Lord, no. I am sure your Lordships would like to know, I am sure -- I am speaking from my recollection last year -- that only one of the complainants still lives in the Worcestershire/ Herefordshire area. The other two complainants live many, many miles away. 37. LORD JUSTICE MAURICE KAY: I take it from that that you are not objecting to bail? 38. MR BOND: I am not. 39. LORD JUSTICE MAURICE KAY: What conditions would you seek? 40. MR BOND: Residence and not to complainants, just in case. 41. LORD JUSTICE MAURICE KAY: Yes, certainly. He may have bail on a condition of residence at an address which will be handed to the associate, please, Mr Vosper. There will also be a condition that he must not contact the three complainants or any other prosecution witness. _________________________________