Ely v R. [2005] EWCA Crim 3248

Case No D4/2001/03865

[2005] EWCA Crim 3248

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT EXETER

HIS HONOUR JUDGE COTTLE

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday, 21 st December 2005

Before

LORD JUSTICE PILL

MR JUSTICE NEWMAN

MR JUSTICE LLOYD JONES

Between

JOHN BRIAN ELYAppellant

THE QUEENRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal WordWave Limited

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SIR IVAN LAWRENCE QC and MR M D BARLOW (instructed by Shepherd & Co. NN12 6DB ) for Appellant

M R IAN PRINGLE QC and MISS R COLLINS (instructed by CPS Exeter, EX2 5WX) for Respondent

Judgment

[1]On 8 June 2001 in the Crown Court at Exeter before His Honour Judge Cottle and a jury, John Brian Ely was convicted of eighteen counts of indecent assault on a male (Counts 1 to 6,11,12,14,16 to 19, 21 to 24 and 31), seven counts of buggery (Counts 7 to 10, 15, 33 and 34) and one count of attempted buggery (Count 32). He was sentenced to a total of fifteen years imprisonment. This was made up of terms of six years imprisonment on Counts 7,8,9,10 and 15, to run concurrently, sentences of six years imprisonment on counts 33 and 34, concurrent with each other but consecutive to that on Count 7, five years imprisonment, concurrent, on Count 32 and three years imprisonment on each of the Counts of indecent assault, concurrent with each other but consecutive to the sentences for buggery.

[2]This is a renewed application for leave to appeal against conviction, leave having been refused by the single judge. An appeal against sentence is brought with leave of the single judge. We grant leave to appeal against conviction, on all counts, with a qualification which we will mention later.

[3]Verdicts of not guilty were entered on eleven counts of indecent assault (Counts 13, 20, 25 to 30, and 35 to 37). On those, four were by direction of the judge (Counts 20, 30, 35 and 36).

[4]The appellant was a housemaster at Bryn-y-Don Approved School in South Glamorgan from 1962 to 1967 and at Forde Park Approved School at Newton Abbott, Devon between 1967 and 1979. He was also the Scoutmaster at Forde Park. The offences are alleged to have been committed against boys who were pupils at those schools. The trial

[5]The appellant’s arrest in 1999 followed a police investigation at the schools. Pupils were contacted by the police and a number of them made allegations against the appellant. The prosecution relied on the evidence of twelve complainants, four who had been pupils at Bryn-y-Don (Counts 1 to 13) and eight at Forde Park (Counts 14 to 37).

[6]The appellant, who gave evidence at the trial, completely denied allegations of misconduct. The defence case was that the complaints were fabricated and that there had been collusion between complainants, most of whom had criminal records, to fabricate them. It was also said that there was a financial motive in that compensation may be payable to victims of sexual abuse. The appellant was sixty seven years old at the time of trial and had no previous convictions, including of course during the period since 1977.

[7]Evidence was called, both by prosecution and defence, describing conditions at the two schools. There was evidence that no complaints of abuse were brought to the meetings of the Board of Managers at Forde Park School. A former member of the Board, Mr Folland, described the running of the school as relatively smooth and trouble-free but he believed that the regime would have prevented boys from reporting any incident of abuse. A former chairman of the Board, Mr Mitchelmore, said that he was not aware of any allegations of abuse. While the school was run along very strict lines, the boys would have had the opportunity to report alleged abuse to sympathetic members of staff. Mr Clark, who did a placement at Forde Park in June 1971, said that there was a culture of bullying among boys and discipline was arbitrary and harsh.

[8]Evidence of former pupils at Forde Park who were not complainants varied in its assessment. One described the appellant as a very good member of staff but said that the boys were in constant fear of physical violence from most members of staff and could not turn to anybody about it. Another described the appellant as a ‘great bloke’ and looked on him as a father-figure. He was not aware of any sexual abuse of boys. A witness who was a pupil at Bryn-y-Don while the appellant was there said that his time at the school was the best he had ever had. He did not witness any sexual abuse and the appellant was a popular man who knew how to get the best out of people.

[9]The appellant’s wife gave evidence that the boys did not visit their home, Dalmeny, on the school site at Bryn-y-Don, though a group of boys did do some gardening. She would not have welcomed them into the home. They were not to be trusted. The applicant was a good honourable man. He was also described by his son as a loving father.

[10]Before referring to the ground of appeal, we refer, in summary form, to the allegations, without, at this stage, referring to the convictions of the complainants and their alleged motive to obtain compensation. Those subjects were explored in evidence.

[11]SH was a pupil at Bryn-y-Don between August 1963, when he was eleven years old, and March 1967. He said that the appellant was like a father to him, taught him to play football and showed him affection and interest. He went to the applicant’s house twice. On the first occasion (Count 1), he ended up sitting on the appellant’s lap. The appellant opened his fly, rubbed the complainant’s penis up and down four or five times and put his hand between the complainant’s legs. He felt very disappointed and let down. The appellant told him never to tell anybody what had happened. On the second occasion, the witness tried to sit on the appellant’s lap but the appellant pushed him away, saying that he had made a mistake once and was not going to make it again. The witness said that he nearly did not come to court because, if what the appellant did to him was all he had done wrong in his life, nothing should happen to him.

[12]TD was a pupil at Bryn-y-Don between November 1963 when he was thirteen years of age, and July 1965. The appellant was popular with the boys. He occasionally supervised the showers and on occasions would come along the line, take hold of his penis, pull it backwards and forwards and ask if he had washed himself properly. Counts 2 and 3 were specimen counts.

[13]G was at Bryn-y-Don between February 1964, when he was almost twelve years of age, and March 1967. R attended Forde Park between June 1970, when he was just fourteen years of age, and March 1972 and DE between April 1973, when he was ten years of age, and August 1977. We consider the counts involving G, Counts 4 to 6, 11 and 12 (indecent assault) and Counts 7 to 10 (buggery) in a separate section of the judgment, as we do the counts involving R (Counts 14 and 15, buggery) and those involving DE (Counts 23 and 24, indecent assault).

[14]R was at Forde Park between June 1970, when he was just fourteen years old, and November 1972. The witness joined the scout troop at the school and saw the appellant as a very nice person. On a scout trip to Snowdonia, at which another member of staff Mr Buttery was present as well the appellant, the witness felt ill when he had climbed a mountain. The appellant told him to go to his, the appellant’s tent, which he did. When he was lying on the camp bed, the appellant lay beside him and told him to keep warm. He felt drowsy and the next thing he knew the appellant had his hands between AR’s legs touching his genitals. He was frightened and did not say anything. In the morning the appellant said it would be better not to tell anyone (Count 16).

[15]JA was at Forde Park between September 1971, when he was twelve years of age, and August 1975. He too joined the scouts and went on a trip to Snowdonia. The appellant would call all the boys into his tent one by one. JA said that when he was naked the appellant rubbed Deep Heat all over him saying it would keep him warm in the mountains. The appellant would touch his intimate parts when doing so (Counts 17 and 18). On the way home from Snowdonia, they camped overnight in South Wales and he had woken to find the appellant playing with his penis. He was very shocked and stunned and said he wanted to go to the toilet (Count 19). He left the scouts because of what was going on and did not tell anybody about it because he was scared.

[16]MS was at Forde Park between January 1972, when he was twelve years of age, and December 1975. He was the smallest of his group, a bed-wetter and was seen as dull or retarded. He described the regime as very harsh. Because he was a bed-wetter, he was required to shower alone in the mornings. On numerous occasions when he was showering, the appellant would wash his private parts and the effect would be to arouse him (Counts 21 and 22). This was once observed by another boy, CC, and MS said that he “got the micky taken out of me for it.” On a trip to Switzerland, when he was lying down in his tent, the appellant lay on top of him, pushed himself against the witness and touched his privates and backside. MS started shouting to other boys and the appellant punched him in the eye. MS complained to the Deputy Head who said that he would deal with it.

[17]JW was at Forde Park between January 1974, when he was ten years of age, and July 1977. He went on scout trips to Snowdonia. On one trip, the appellant would call each boy over one at a time into his tent. JW said he was massaged all over by the appellant with Deep Heat after he had been told to take his clothes off. It included a massage of his backside and lasted ten to fifteen minutes (Count 31).

[18]On the next occasion, following the massage, the appellant lay on top of him without any shorts on and tried to bugger him. He told the witness that it would not hurt but the witness said it did. He tensed and the appellant stopped (Count 32). On two subsequent occasions (Counts 33 and 34), following massage, the appellant did penetrate his anus. The witness said that these were his first sexual experiences. The appellant was great as a master, was good to him and JW enjoyed the scouting trips.

[19]Where the judge directed not guilty verdicts, it was because the witness had not mentioned in evidence the incident alleged in the count.

[20]The appellant gave evidence. He was married in 1963, the year after taking up his post a Bryn-y-Don and lived in a house near the school. He ran a football team at Bryn-y-Don and frequently took boys on school trips. Occasionally boys would work in his garden under close supervision. The appellant was away at a course at Selly Oak Colleges for a year from September 1965. The appellant moved to Forde Park in 1967. It was run under a strict regime. He took charge of the scout group three nights a week. He would go alone with the boys to Dartmoor but, if he went to Snowdonia, another member of staff was always present. There were two trips to Switzerland, in 1973 and 1976. Boys did not sleep or swim naked. Deep Heat was used on trips to relax muscles and prevent fatigue. Most boys applied it themselves but he did so to a few of the younger boys, outside his tent. It was never done with a naked boy and he never touched a boy’s genitals while doing it.

[21]The appellant said that the allegation of SH was “sheer fantasy”, those of TD were “ludicrous” and those of G, “complete fantasy”. G was a “pathological liar”. It was, he said, typical of MS’s low intelligence that he should have broken down in the witness box. JW might have had a grudge against him for being thrown out of the scout troop following a petty theft. He had not been allowed to go to Switzerland in 1976 and admitted to having been bitter about it. In relation to JA, the appellant denied having camped in South Wales on the way back from Snowdonia. We will consider further points made by or on behalf of the appellant when considering the application of the ground of appeal to particular counts.

[22]The prosecution evidence was given over five days and the defence evidence over a further five. Some of the sitting days were short. A week’s break following a Bank Holiday intervened in the course of the defence evidence. No application was made to stay the trial as an abuse of process. No direct criticism has been made by the appellant of the conduct of the defence case at trial and privilege has not been waived with a view to having that investigated. Before summing-up, the judge conferred with counsel as to the legal directions to be given. The appellant was represented at the trial by leading counsel and an experienced defence team. There was a full discussion and no apparent disagreement. When asked whether there were other matters for discussion, leading counsel for the defence said: “No thank you”.

[23]The judge summed-up in three and a half hours. The jury were in retirement for an hour and a quarter on the first day and for three full days before giving their verdicts. In the course of the second day, they had indicated that they had reached a verdict, on which they were all agreed, on at least one count in the indictment. No verdicts were taken at that stage. In the course of the first full day, the jury, by way of a note, asked several questions. These were dealt with and we shall refer to one of them. The appeal

[24]There is a single ground of appeal:

“That in all the circumstances of this case, all the convictions are unsafe”

. This ground is supported by twenty points. Further particular points are made with respect to specific counts. Application is also made, under section 23(1) of the Criminal Appeal Act 1968 (“the 1968 Act”) to call additional evidence, both oral and documentary. Section 23 provides: “(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice-- (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to-- (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. (3) Subsection (1)(c) above applies to any evidence of a witness (including the appellant) who is competent but not compellable. (4) …” (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

[25]The court heard evidence, de bene esse, from Mr A D Cooksley, whom we found to be credible, and considered documents. Beyond that, the application was refused, for reasons to be given. The court has regard to the contents of the Home Affairs Committee Report on Conduct of Investigations into Past Cases of Abuse in Children’s Homes (2002) and the Government’s response (2003 Cm 5799) but does not set them out.

[26]On behalf of the appellant Sir Ivan Lawrence QC, who did not appear at the trial, by way of summary, submits that the cumulative effect of the twenty points raised should be to create a general feeling of unease about the fairness of the trial and the safety of the verdicts. Taking the points collectively, the convictions should be quashed. Sir Ivan relies on the statement of Lord Woolf CJ in R v Brian Selwyn B

[2003] EWCA Crim 319

, at paragraph 27:

“However, there remains in this court a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand. This is so even where the trial process itself cannot be faulted. It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious that we are not only involved in deciding where justice lies for the appellant. We must do justice to the prosecution, whose task it is to see that the guilty are brought to justice. We must also do justice to the victim. In this case we are particularly conscious of the position of the victim. If she is right, she was treated in a most disgraceful way by someone whom she should have been entitled to trust; her stepfather. For years, for understandable reasons, as we have already indicated, she felt unable to make public what had happened. She is entitled to justice as well. But we also have to do justice to the appellant. At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice is not done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted.”

[27]The appellant was arrested and questioned in 1999, that is between 28 and 37 years after the dates in the indictment between which the offences are alleged to have been committed. Particular care is, in such circumstances, required, it is submitted. We summarise Sir Ivan’s twenty points in support of his ground of appeal:(1) No contemporaneous complaints were made to the authorities.

(2) Complaints were made following a police trawling exercise. It is not suggested that the trawl was improperly carried out but that in terms of suggestibility and contamination the trawling exercise had its dangers. It is submitted only that, unconsciously, enquiries may have contaminated evidence. One complaint may have triggered other complaints.

(3) The judge should have told the jury that the prosecution had not suggested that any complaint had been made against the appellant prior to the police investigation into possible abuse at the school.

(4) The appellant was not the only member of staff at the schools against whom allegations of abuse had been made. Even if many allegations had been proved to be well founded, it may raise the possibility of confusion as to which former authority figure had committed a particular offence so many years previously. It is accepted that such a possibility was not raised at the trial but it is submitted that it is a feature which could lead to the unsafeness of the convictions.

(5) Papers originally served revealed that there may have been a culture of lying by complainants at both schools.

(6) Unlike most historic child abuse cases, the complainants were pupils at approved schools and most had committed criminal offences before being sent there. Some had continued to offend after they had left.

(7) The lure of substantial compensation was a possible motive for lying. It is accepted that there is no specific evidence of collusion about compensation.

(8) There was no corroborative evidence of any of the specific assaults alleged, even of the shower complaint in Counts 2 and 3. That was significant, it is submitted, in the context of a very thorough investigation by the police and the circumstances at the schools.

(9) In the circumstances, there should have been a specific direction in relation to the absence of corroborative evidence, for example by way of an eye witness, of any specific count.

(10) Had complaints been made before the change in the law as to corroboration, directions would have been given which would have meant that the appellant would have had a greater chance of acquittal.

(11) The possibility of collusion between complainants was a fundamental element in the appellant’s defence and insufficient guidance was given to the jury as to the relevance of this.

(12) The appellant was in no position to provide evidence that there was collusion and the records available to the defence, for example from the Forde Park Survivors Group were scanty. (This was a group of former pupils who kept in touch with each other.)

(13) A fuller direction should have been given as to the appellant’s good character and the complainants’ records contrasted with good character of the appellant.

(14) Relevant contemporaneous documents have become available only since the trial.

(15) The absence of surviving records, such as logs of adventure outings, has prejudiced the appellant. He was meticulous in his preparation of plans for outings and keeping records of them. Logs would have established who was at which camp and who was on which barge.

(16) Documents describing examinations by psychiatrists and counselling of witnesses at the time complaints were made have not been disclosed and disclosure of school records has been insufficient.

(17) Many witnesses, from prosecution and defence, gave evidence of the appellant’s good character and behaviour and the absence of complaints about him. If he did have paedophilic tendencies, it is surprising that so much evidence in his favour should have been forthcoming. The point was also made that because of deaths during the intervening years, and other reasons, less evidence is available to the appellant than would otherwise have been.

(18) The length and content of the indictment must have been confusing for the jury and might have provoked “volume apathy”. The judge had a duty to take the initiative in ensuring a fair trial and, at least, the allegations at Bryn-y-Don should have been severed from those at Forde Park.

(19) While in other circumstances, this summing-up would have been a model of its kind, it was in the circumstances of this case too short and failed to give sufficient guidance to the jury.

(20) There was insufficient direction in the summing-up about the prejudice caused to the appellant by the delay in bringing proceedings. In the course of the hearing of the appeal, the further point was sought to be made in relation to Count 1 that a post-trial document throws doubt upon the credibility of the complainant SH. Submissions on the summing-up

[28]Little criticism is made on behalf of the appellant of the legal directions actually given in the summing-up. The submission is that more guidance should have been given. Sir Ivan Lawrence accepts that the summing-up was a model of its kind but, by reason of the factors present, the judge should in this case have been more pro-active.

[29]Reliance is placed on the judgment of Auld LJ, giving the judgment, of this court in R v Percival (Transcript 19 June 1998). At page 12, Auld LJ stated:

“That experience and the underlying problem of unreported abuse has served to encourage experienced judges to be more liberal in their concept of what is possible by way of a fair trial in the face of delay, but, as we think there is a price, namely safeguarding the Defendant from unacceptable resultant prejudice by a ‘pro active’ approach in terms of directions. Before a conviction following such a trial can appear to be safe, it is necessary to be satisfied that the judge has confronted the jury with the fact of delay and its potential impact on the formulation and conduct of the defence and on the Prosecution’s fulfilment of the burden of proof.”

The court allowed the appeal against conviction in that case identifying specific defects in the summing-up which cannot to any significant degree be said to occur in the present summing-up. The court concluded: “If long delayed cases are to go before juries, judges have to have a prominent role in ensuring that any convictions reflect a full appreciation of the problem, delay and the solution the burden and standard of proof”.

[30]The effect of Percival was considered in the R v M

[2000] 1 Cr.App. R 49

. The Vice-President, Rose LJ stated, at page 57:

“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 or proof can be left to the good sense of trial judges with appropriate help and guidance from Judicial Studies Board.”

[31]Reliance is also placed on behalf of the appellant on the judgment of this court in R v Maybery

[2003] EWCA Crim 782

. Giving the judgment, Latham LJ referred, at paragraph 20, to the need for the judge to put to the jury material which had been put to complainants in cross-examination. He concluded, at paragraph 21;- “The fact of the matter is that in cases such as these, a judge, it seems to us, must ensure that here has been a full and proper evaluation of the evidence in order to assist the jury, and that may, depending on the facts of any given case, require the judge to provide for the jury help as to the criticism being made of the individual complainants and the way in which the appellant’s case was put to that witness in cross-examination. This was one of those cases and it leaves us with the feeling that the appellant did not, at the end of the day, have his case put to the jury in the way which was required by the facts that we have related – in particular, because of the delay.”

[32]The general point is made that more should have been made of the convictions of the complainants where those convictions were in evidence, and of the absence of corroboration. It is submitted that more detail was in certain respects required in the summing-up. The jury should have been reminded of the appellant’s year’s absence from Bryn-y-Don at Selly Oak Colleges. Other points will emerge when specific counts are considered.

The judge gave the following similar fact direction:

“The next legal direction I give you I preface by reminding you of this - that you must consider each count, and each complaint, separately. However, when considering whether the allegations made by one complainant are truthful, then, subject to one important consideration, you are entitled to take into account that other witnesses have given evidence that similar acts were committed against them. It is for you to decide whether there are similarities between accounts which emerge from the evidence. Let me give you an example. If witness A gives evidence that certain sexual acts were committed against him by the defendant, and you are deciding whether A's evidence about that is truthful, you are entitled, subject to one important consideration, to take into account evidence from witnesses B and C that similar sexual acts were committed against them by the defendant. The law perhaps does no more than go hand-in-hand with what you would consider to be commonsense. The important consideration is this. If you consider that the similarities between the accounts are, or may be, explained by the fact that two or more of the witnesses have put their heads together to concoct a similar story, then the similarities would be explained by that fact, and therefore there would be no evidential significance in the similarities. Ask yourselves this. Are you sure that the complainant whose allegations you are considering, and the other witnesses who have testified to similar offences being committed against them, have not put their heads together to make false accusations against the defendant? If you are sure that there was no putting together of heads, you are entitled to consider the evidence of the other witnesses when deciding whether the witness whose allegations you are considering has told you the truth. You must then ask yourselves this: is it reasonably possible that several people, independently making similar accusations, could all either be lying or mistaken? If you think that is incredible, then you may well be satisfied that the evidence given by the witness you are considering is truthful. In answering this question you must consider two important aspects of the evidence. First of all, the degree of similarity between the accusations; the more similarities that exist, the more likely it is that the witnesses are speaking the truth; for you may think it would be a remarkable coincidence if they happened to make up the same lies, or made the same mistakes, as to matters of detail. On the other hand, the less similar they are, the less weight should be given to the evidence. Secondly, you must consider whether any of the witnesses may have been consciously or unconsciously influenced in their evidence as a result of hearing about complaints made by others. If you think it is possible that any witness may have been influenced in making the accusation at all, or in the detail of it, as a result of hearing about complaints made by others, then you must take that into account in deciding what weight, if any, to attach to that witness's evidence.”

[34]Later in the summing-up,

the judge stated:

“The prosecution say four boys from Bryn-y-Don and eight boys from Forde Park have made similar allegations against the defendant, who was a member of staff, first at Bryn-y-Don, and then at Forde Park. The prosecution say: How does it come about that two separate sets of boys - each set unknown to the other, from approved schools in different parts of the country - all make similar allegations against the defendant -- some immensely serious, others, when looked at in isolation, not particularly serious? It all comes about, say the Crown, because they are all truthful witnesses, and that is how, and why, twelve now grown men have gone into the witness box and disclosed what happened to them as children at these two schools; and the Crown say that the comparatively minor assaults complained of by some serve only to reinforce the truthfulness of the witnesses. The issue, members of the jury, for you on each count in this indictment is identical - is it proved that it happened? You look at each complainant in turn, and ask yourselves: Are we sure that his account is fundamentally truthful? If you are not sure, then you will find the defendant not guilty. If on the other hand you are sure, then you will, in accordance with your oath, convict him.”

[35]In relation to good character, the judge stated: “You know that the defendant is a man of good character, not just in the sense that he has no convictions recorded against him, but witnesses have spoken of his qualities and his good character. Of course good character cannot by itself provide a defence to a criminal charge, but it is evidence which you should take into account in his favour in the following two ways. First of all, he has given evidence, and, as with any man of good character, it supports his credibility. This means it is a factor which you should take into account when deciding whether you believe his evidence. In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit the crimes alleged against him in this indictment. I have said that these are matters to which you should have regard in his favour. It is for you to decide what weight you should give to them in this case. In doing this, you are entitled to take into account everything that you have had heard about the defendant, including his age, and the other matters about which witnesses spoke. Having regard to what you know about him, you may think he is entitled to ask you to give considerable weight to his good character when deciding whether the prosecution have satisfied you of his guilt.

[36]In relation to delay,

the judge stated:

“We are now concerned with events which are said to have taken place many years ago. You must appreciate that, because of this, there may be a danger of prejudice to a defendant. This possibility must be in your mind when you are deciding whether the prosecution has made you sure of the defendant's guilt. You are entitled to consider why these matters did not come to light sooner, to consider whether that is or is not a reflection on the reliability of the complainants. You should make allowances for the fact that, with the passage of time, memories fade; witnesses - whoever they may be - cannot be expected to remember with crystal clarity events which occurred many years ago. Sometimes the passage of time may even play tricks on the memory. You should also make allowances for the fact that, from the defendant's point of view, the longer the time since an alleged incident, the more difficult it may be for him to answer it. You only have to imagine what it would be like to have to answer questions about events which are said to have taken place many years ago to appreciate problems which may be caused by delay. Even if you believe that the delay in this case is understandable, if you decide that because of this the defendant has been placed at a real disadvantage in putting forward his case, take that into account in his favour when deciding if the prosecution have made you sure of his guilt. I refer in particular, in this context, to the absence of records that would have existed at the time, or nearer the time, but which no longer do exist as a result of the passage of time, and their destruction. You should bear in mind also in this context the fact that potential witnesses are deceased, or perhaps too infirm. You should recall in this context that the passage of time may deprive the defendant and his lawyers of the opportunity of checking matters of detail.”

[37]As to collusion and compensation,

the judge stated:

“There is a suggestion lurking beneath the surface of this case that there may have been collusion between the witnesses. You must have regard to that. You should also be aware of the possibility that money may be a motive. That said, of course, the majority of the complainants told you that they have not made any claim at all, and were not intending to do so. The schedule which was put before you right at the very start of this case - it is not, as you will appreciate, an agreed document; it is not evidence in the case. All that it is an aide-memoire; it is intended only to be a brief summary of how the prosecution put their case, so that you can see at a glance how each case is put, each count is put. Let me, members of the jury, summarise the two sides of this case. The defendant says there is not a word of truth in any of these allegations. He says he showed nothing but kindness to these boys, and in particular, in his capacity as scout master at Ford Park, he introduced them to a large number of enjoyable and memorable experiences - in particular, camping trips in the UK and abroad. I remind you that the defendant does not have to prove anything, and he is certainly not required to suggest, let alone to establish, a possible motive that any, or all, of these complainants may have for lying. He has from time to time referred to a political witch hunt, to a conspiracy fuelled by the police. He says that the complaints are all malicious, and he is totally confused as to why he should be in the position that he is. In fairness, you will have to examine the possibilities that may have existed for collusion between the complainants, the possibility that the lure of compensation may have provided a motive; and you will have to consider, in fairness, the possibility of a conspiracy.”

[38]As to the character of the complainants,

the judge stated:

“Each one of the complainants from whom you heard has been in trouble with the law; for most of them it was why they ended up where they did in the first place, and for many of them - I think all of them - it did not stop there, did it? They carried on, to a greater or lesser extent, committing criminal offences, one or two of them committing immensely serious offences. What is the relevance of that - the fact that they have previous convictions? The relevance of it is that it goes to credibility - in other words, it is relevant to the question of whether or not you can rely upon the witness's evidence; that is the relevance of it.”

[39]Those were, in our judgment, impeccable directions well suited to the requirements of the particular case. In his direction on delay, the judge made two references to the required standard of proof, the ingredient stated in Percival to be an important one in any direction.

[40]We find no merit in the criticism of the good character direction in relation to the appellant. It included that reference to giving ‘considerable’ weight to his good character recommended in the JSB Specimen Directions in an appropriate case. As Sir Ivan Lawrence recognised, the important thing was that the appellant’s good character and the numerous convictions of many of the complainants were in the minds of the jury. Having been given those directions, it cannot, in our judgment, have failed to be.

[41]As to the absence of corroboration, for example by scientific evidence or evidence from an eye-witness, it was a matter for the judge’s discretion what, if any, warning he considered appropriate. In R v Makanjuola

[1995] 2 Cr.App. R 469

, Lord Taylor CJ, giving the judgment of this court, stated, at page 473, that “attempts to re-impose the straightjacket of the old corroboration rules are strongly to be deprecated”. Lord Taylor added that “this court will be disinclined to interfere with a trial judge’s exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense”. It was in our judgment a proper exercise of discretion for the judge to confine his direction as he did.

[42]Complaint is made about a reference later in the summing-up to compensation, though it was on a count where the jury acquitted.

The judge stated:

“He [the complainant] said that he was pursuing a claim for compensation. The situation seems to be, on the evidence, that his solicitors have calculated his claim to be worth £101,000. That sum has not been offered to him, and there will need to be, as things presently stand, a decision as to his entitlement to that, or any sum. That is not your concern.”

It is suggested that the judge directed the jury that the fact that the complainant was pursuing a claim for compensation was not their concern. In context, we do not agree; concern was directed to, and would have been understood to have been directed to, the question of quantum. As to the compensation factor generally, some complainants have sought compensation since the trial but none of them gave dishonest answers about their attitude to compensation claims in the course of their evidence. As to the alleged collusion, there was no direct evidence of it and the words the judge used when introducing his direction (“lurking beneath the surface”) were appropriate words which in no way diminished the importance of the subject.

[43]During their retirement, the jury asked a number of questions, one of which was:

“The police visited witnesses on their investigation. Why?”

Having conferred with counsel, and apparently obtained the agreement of counsel,

the judge replied:

“The answer to that question is this. There was a police investigation into both these schools, about which you have been hearing, as a result of which – or in the course of which – former pupils of both schools were contacted by the police, and it is accepted by counsel that there is nothing unusual about that at all. That is normal, standard police procedure.”

[44]It is submitted that a further direction was required to the effect that the prosecution had not suggested that the relevant complaints had been made before the police investigation began. The direction given was accurate and was sufficient, and appropriate, in our judgment, to answer the question posed. Further enquiry could have been made by the defence, in the course of the evidence, as to the history of the investigations but it was not, and probably for good reason. In relation to the appellant’s point (4) above, there were obvious dangers in cross-examination directed to the investigations which had led to convictions of other members of staff, and to the investigation into the appellant’s own conduct in the late 1970’s (involving other complainants). No police action followed that investigation.

[45]While some of the complainants have committed very serious offences since their time at the schools, as well as offences before that time, some have had successful careers, G running a business, JA becoming a manager for a public utility, after a career in the army. MS has settled down to respectable family life for many years. . R had no convictions either before or after his stay at Forde Park.

[46]The appellant relies on the case of R v Burke

[2005] EWCA Crim 29

, where one of several convictions was quashed when it was crucial to a complainant’s evidence that the conduct had occurred after he had been returned to the relevant Home at about midnight. If the defendant had been on night duty when the complainant was returned, it could be powerful evidence in support of the complainant’s account. The contemporaneous documents which would have shown whether he was on duty were missing.

[47]It is accepted on behalf of the prosecution, that some records will have been lost with the passage of time but, it is submitted that the present counts are not like the counts in Burke where everything turned on the contents of a particular record, which was missing. Full disclosure has been made of available records. The witness Yvonne Roxby was charged with the responsibility of overseeing Social Services material. She was available throughout the trial and was not required to give evidence. Substantial material from Forde Park was disclosed. The prosecution recollection is that no application was made for the disclosure of medical records arising at the time the complainants made their statements to the police.

[48]In relation to the manageability of the trial and delay, the prosecution rely on the unsuccessful appeal against conviction in R v Hooper

[2003] EWCA Crim 2427

(a Forde Park case) where an application to stay the prosecution as an abuse of process was made and failed. In that case, there were 44 counts and 15 complainants and the trial was longer than the present trial. The Vice-President, Rose LJ, stated, at paragraph 83: “As to severance, as we have already suggested, this turned out to be, as the judge had anticipated, a manageable trial. Not only were there no compelling reasons for further severance, (it being remembered that there was a separate part of the indictment which was severed and which related to 14 further complainants), there is no ground for concluding that the learned judge was wrong in the decision which he reached”.

[49]Rose LJ stated, at paragraph 75:

“… the learned judge managed to sum the matter up briefly and with the utmost clarity as well as with correct directions of law. That, with the benefit of hindsight, casts some light on the manageability or otherwise of this case”

. The same comments can, in our judgment, appropriately be made in the present case. The test to be applied

[50]In R v Pendleton

[2002] 1 WLR 72

, where fresh evidence was considered, Lord Bingham of Cornhill cited the speech of Viscount Dilhorne in Stafford v Director of Public Prosecutions [1974] A C 878. Lord Dilhorne stated, at page 893:

“It would, in my opinion, be wrong for the court to say: 'In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused. We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours, we quash the conviction' for Parliament has, in terms, said that the court should only quash a conviction if, there being no error of law or material irregularity at the trial, 'they think' the verdict was unsafe or unsatisfactory. They have to decide and Parliament has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come. If the court has no reasonable doubt about the verdict, it follows that the court does not think that the jury could have one; and, conversely, if the court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the court has a reasonable doubt.”

The word “unsatisfactory” does not of course now appear in Section 2(1) of the 1968 Act , as amended. Lord Bingham also cited the further observation of Viscount Dilhorne at page 906:

“While, as I have said, the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question.”

[51]In Pendleton, Lord Bingham stated, at paragraph 19:

“It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision. Thus the House in Stafford v Director of Public Prosecutions [1974] AC 87 8 were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury. It would, as the House pointed out, be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

[52]Lord Bingham concluded his analysis at paragraph 21:

“In the present case, as adherence to precedent required, the Court of Appeal formulated a test based on Stafford and other cases in which Stafford had been cited and applied. No criticism of its formulation is made if Stafford itself was correct. Since the principle laid down in Stafford was, in the opinion of the House, correct, the attack made on the Court of Appeal's self-direction in the present case must fail. The foregoing paragraphs, it is hoped, make clear the approach which the Court of Appeal should follow.”

[53]Lord Mackay of Clashfern, Lord Steyn and Lord Hope of Craighead agreed with Lord Bingham.

[54]Lord Hobhouse of Woodborough cited the judgment of Lord Bingham, when Lord Chief Justice, in R v Jones (Steven)

[1997] 1 Cr.App. R 86

at 94:

“It seems plain on the language of the statute and authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe”

. In his speech, Lord Bingham also mentioned Jones (Steven).

[55]Lord Hobhouse stated, at paragraph 38:

“It does not help and is in principle wrong to seek to explain or put a gloss on the words of section 2 of the Act. "Unsafe" is an ordinary word of the English language. It connotes a risk of error or mistake or irregularity which exceeds a certain margin so as to justify the description "unsafe". It involves a risk assessment. Where the conviction results from a plea of guilty entered by the defendant, the circumstances in which the plea was entered are relevant. Where the conviction is after a trial, it is the trial and the verdict which are relevant. But, in my judgment it is not right to attempt to look into the minds of the members of the jury. Their deliberations are secret and their precise and detailed reasoning is not known. For an appellate court to speculate, whether hypothetically or actually, is not appropriate. It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?”

Submissions on specific counts

[56]We turn to further points made upon convictions on specific counts. These must be considered in the light of the general submissions made on behalf of the appellant as to the summing-up and conduct of the trial but also in the light of the way in which the defence case was conducted at the trial. The cross-examinations of complainants and the presentation of evidence were prepared in a context where widespread misconduct at the schools had been alleged, and proved in other cases, and there were obvious dangers in pressing complainants too hard or in introducing material which could affect the jury adversely. On subjects such as allegations of collusion, where the defence had nothing specific to go on, and compensation, the defence team at the trial was in a good position to assess how much to attempt to make of it. We do not spell out in detail the evidence of the complainants but some of it appears to have had considerable robustness and directness. The jury were in a good position to assess the credibility and reliability of individual complainants and the complaints made. We consider the applications to adduce fresh evidence in the context of the counts to which it relates. The application to call the appellant was not pursued. G

[57]The appellant was convicted on five counts of indecent assault (Counts 4, 5, 6, 11, 12) and four counts of buggery (Counts 7 – 10) against G.

[58]G gave evidence that before football or rugby matches the appellant would call him into his office, make him strip to his underpants and would massage him all over, telling him that it would make him play better the following day. This happened on dozens of occasions, usually before soccer or rugby matches. Later on it progressed beyond that. The appellant put his hands into his pants, masturbated him and felt his testicles. On the first occasion, the appellant told him that he was not normal because his penis stayed the same. That occurred about half a dozen times. On a few occasions, the appellant told him to put his hands down the appellant’s trousers and the appellant’s penis went hard before he ejaculated. (Counts 4, 5 and 6) Quite a few times, probably on dozens of occasions, the appellant told him to bend over the table in the office and pull his pants down. The appellant then put his penis inside him, moving it in and out. This was painful causing G to bleed. The appellant gave him toilet paper to wipe himself with and told him not to tell anyone. (Counts 7 – 10) On a few occasions, G had to perform oral sex on the appellant. On the first occasion the appellant ejaculated into his mouth. When it happened it was before anal sex. G did not tell anyone out of fear. (Counts 11,12) (A1 166 – 171) (Transcript references are given when considering the counts involving G because they are numerous.)

[59]In addition to the general grounds of appeal, the appellant seeks to rely on two specific matters in relation to these convictions.(1) The impossibility of the offences having been committed in the location alleged by G.

(2) The impossibility of the offences having been committed, at the times alleged by G. In particular, they could not have occurred, as G alleged, on the days before football matches, as the appellant never worked on Fridays at Bryn-y-Don. Furthermore, he was away from the school on service as a Territorial Army captain during most weekends in 1965.

[60]So far as the first specific ground is concerned, G gave evidence that the acts complained of always took place in the housemasters’ office. (A1 185 F-G) The appellant contends that this office was open to public view. He maintains that he was deprived of the opportunity of showing how unlikely the alleged attacks on G were because of the absence of school plans.

[61]By the time of the trial, alterations had been made to the buildings at Bryn-y-Don. No plans or photographs of the buildings as they existed at the date of the alleged offences were available. Nevertheless, we are satisfied that this did not prejudice the defence case at the trial. Plans, maps and photographs of the buildings as they existed at the date of trial were available to the defence and they made use of them at the trial, both in cross-examination of G (A1 175C, 187 E – 193B) and in the evidence-in-chief of the appellant. (A2 457-8) Furthermore, the appellant was able to give detailed evidence concerning the office. He explained that it was used by four masters in total. He described a window in the office, without any curtains or blinds, opening onto the quadrangle. He also gave evidence that it would have been completely impossible for the activities alleged by G to have occurred in that office because just outside that window was an access door to the main corridor of the school. Staff and boys would have been going past. Furthermore, he gave evidence that there was a window in the door of the office. (A2 457-8) G was cross examined at length about the layout of the school. He was unable to contradict the defence case that the office had a window onto a courtyard. (A1 186 C-D, 188 F-G, 190 C-D, G) However, he maintained that nobody was ever allowed in the central courtyard (A1 191 B) and did not accept that the office was open to view from any number of people (A1 193 B-C) Had it been thought necessary, it would have been open to the appellant to call further evidence in relation to the layout, features and use of the office and permitted access to the courtyard.

[62]So far as the second specific ground is concerned, G went to Bryn-y-Don in February 1964, shortly before his twelfth birthday. (A1 176H – 177A) He was placed immediately in the intermediate section, despite his age, because he was of above average intelligence. These offences are alleged to have occurred when he was in the intermediate section of the school. The appellant moved from the senior section to the intermediate section of the school as a housemaster on 1 January 1964. (A2 440 D) G’s evidence in chief was that this abuse went on for between eighteen months and two years. (A1 171C-D). However, in cross-examination he said that he was not abused by the appellant in the first six to nine months after he joined the school in February 1964 (A1 184 F-H) and that the abuse was taking place through the winter of 1964-65. (A1 187 A-D) He also said that the acts of anal sex with the appellant occurred “every few weeks or something” over the whole of the time he was in the intermediate section. (A1 193 D-E) Between October 1965 and September 1966 the appellant was away from the school while attending a course at Selly Oak Colleges in Birmingham. (A2 452) G moved to the senior section in February 1966. When the appellant returned to Bryn-y-Don, G was in the senior section.

[63]On behalf of the appellant it is said that on G’s account there is a difficulty in reconciling the period of the alleged offences with the times at which the appellant was at Bryn-y-Don. If the abuse did not begin until six to nine months after he joined the school in February 1964, it cannot have continued, as G alleged, for between eighteen months and two years because the appellant was away from the school from October 1965. However, we do not read the evidence of G on these matters as intended to define the relevant period with precision. In cross-examination he stated that the abuse occurred through the winter of 1964 – 65. (A1 187 A-D) Moreover, these contradictions, if such they be, were matters of which the jury were well able to take into account in arriving at their verdicts on these counts.

[64]The appellant ran the school’s under-15 soccer team for two seasons, including 1964-65. Referring to G’s evidence that these incidents of abuse occurred on the days before matches, the appellant now maintains that this is an impossibility because he never worked on Fridays at Bryn-y-Don. He says that at the time of the trial he had forgotten this fact and that the significance of this aspect of G’s evidence had escaped him.

[65]At his trial, the appellant gave the following evidence as to his work pattern. “Well, I worked three nights per week and two weekends out of three. The days that I was on – I had one day off per week, which was usual - -- always attached to a weekend, so I had a long weekend off.” (A2 446 C-D)

[66]Furthermore, before this Court, the appellant maintains that he was away from the school on service as a Territorial Army captain during most weekends in 1965.

[67]The appellant makes a number of general points in this regard. He maintains that he has been deprived of the opportunity of showing that he was not on duty on the days before football matches because of the lack of records, in particular:(1) The lack of school records showing the days on which he was on duty.

(2) The lack of school records showing the days on which matches were played.

(3) The lack of army records showing the weekends when he was engaged in activities with the Territorial Army away from the school.

[68]Furthermore, the appellant sought permission to adduce further evidence pursuant to section 23 of the 1968 Act in relation to the following matters.(1) The appellant sought permission to call Mrs. Olwen Foulkes, a former housemother at Bryn-y-Don, to give evidence that the appellant never worked on Fridays.

(2) The appellant sought to call Mr. George Griffiths, a former Secretary of the Cardiff Schools Football League, to give evidence that it would be very rare indeed for league matches not take place on Saturday mornings.

[69]We have refused permission to call Mrs. Foulkes for the following reasons:(1) At one stage of this appeal it was suggested for the appellant that Mrs. Foulkes could not have been called because her husband was terminally ill. Later this was corrected on behalf of the appellant; the intention had been to call Mr. Foulkes but he was too ill to attend. Accordingly, the appellant maintained that the evidence of Mrs. Foulkes could not be called at trial because the appellant had forgotten he did not work on Fridays at Bryn-y-Don. However, we were told by the Respondent that Mrs. Foulkes’s name had been given by the Defence to the Prosecution at the trial as a witness the Defence intended to call. In these circumstances we are far from satisfied that a reasonable explanation has been provided for the failure to adduce the evidence at trial.”

(2) However, in any event, for reasons which we develop below, we do not consider that this is evidence which could have assisted the appellant at his trial. It does not appear to the Court that this evidence may afford any ground for allowing this appeal.

[70]At the hearing of the application, we were told that Mr. George Griffiths was too ill to travel to London to give evidence. A doctor’s certificate to that effect was produced. We should, in any event, have refused permission to call Mr. Griffiths for the following reasons:(1) We were not satisfied that a reasonable explanation had been provided for the failure to adduce this evidence at trial.”

(2) As in the case of Mrs. Foulkes, we do not consider that this evidence may afford any ground for allowing this appeal.

[71]We did, however, admit in evidence on this appeal, pursuant to section 117, Criminal Justice Act, 2003, fixture cards of the Cardiff Schools’ Football League for 1963-64 and 1964-65, which is the material Mr. Griffiths would have produced had he been permitted and able to give evidence. These show that Intermediate League fixtures were played on Saturdays between 21 September and 23 November 1963, between 18 January and 15 February 1964, between 19 September and 21 November 1964 and between 16 January and 13 February 1965.

[72]We have come to the conclusion that this ground is wholly lacking in substance. First, we do not understand it to have been the evidence of G that these offences were committed exclusively on the day before a match. In his evidence in chief, G stated:

“Yes, it started when I was – I think when I was made up to B grade, and I started going out, and then before football or rugby matches he would call me in, tell me to take my shorts and tee-shirt off, and then massage me, and said it was good and would relax me, and make me play better the following day.” (A1 166 A-B) He was questioned further about this: “Q. On about how many occasions did that sort of behaviour occur? A. Usually before soccer or rugby matches. Q. So you say usually before soccer or rugby matches. That does not quite answer my question when I say “on how many occasions?”

. I mean, if you had to say whether it was three or four occasions, dozens of occasions, hundreds of occasions, what would you say? How would you most accurately describe it?” A. Dozens. Q. So that is massaging you when you were lying on a table wearing only your underpants. Did it ever progress beyond that? A. Yes, it did later on.” (A1 166 E -167 A) G then went on to describe how it developed after that. He stated that on the first occasion on which the appellant had felt his testicles and penis, he had been called into the office “like you normally were”. (A1 167 D-E) In cross-examination he stated that the abuse always occurred in the housemasters’ office (A1 185 F-G) and usually took place after tea (A1 186 D). We would not expect the jury to have understood this evidence as meaning that the abuse occurred only on days before matches.

A. Yes, it did later on.” (A1 166 E -167 A)

[73]Secondly, it proceeds on an assumption that all matches were played on Saturdays and that therefore these offences, on G’s account, must have been committed on Fridays. There is no basis for this assumption.(1) There was no evidence that the only soccer matches played by the boys at Bryn-y-Don were matches in the Cardiff Schools League.

(2) G’s evidence was not that these incidents occurred before soccer matches but “before football or rugby matches” (A1 166A), “before soccer or rugby matches” (A1 166 F.)

(3) G’s evidence was that he played both rugby and soccer. (A1 163 A-B.) He also gave evidence that when he suffered from bleeding after being buggered by the appellant, the appellant told him to tell the Matron that he had been kicked at rugby in the backside. (A1 170 B)

(4) There is further evidence that rugby was played at Bryn-y-Don. H [not a complainant] gave evidence that he played rugby and soccer at Bryn-y-Don. The appellant had taught him soccer and Mr. Attrell had wanted him to play rugby. He had been good at both sports and the two masters “were both vying for me to play for the soccer or the rugby”. Mr. Attrell had asked him what he felt better at, scoring a try or scoring a goal. H had thought that scoring a try was better and then he started to play rugby instead of football. (A1 134).

(5) Perhaps most tellingly, the appellant himself stated in interview that soccer was also played on Wednesday afternoons. When asked who would be responsible for collecting all the kit he replied, “I can’t remember, to the best of my memory, if I said to Matron’s staff, you know we’ve got football this afternoon, which they probably knew we did on a Wednesday afternoon, the kit would be there for you.” When asked about warm-up routines he said:

“I mean, let’s keep this in perspective. I mean the number of matches that were played, might have been about 13 in the season, that’s 26 matches that we’re talking about, which is 6 months in a 3 year period. It is only a tiny fragment of the time, they would play football a lot more than that. … On a Wednesday afternoon, or whatever the afternoon was.”

The appellant explained that on a games afternoon the boys went down from the school to the school field, picked sides and got on with playing football. The game would be amongst the boys. One member of staff might be refereeing and the staff might play on the sides. The appellant often played in goal.

We also note the following exchange:

“Fullwood: So for a Wednesday afternoon, you mentioned, which was the sports day. Ely: If it, it might have been Tuesday, I don’t know, one afternoon per week, yes.”

On a Wednesday afternoon, or whatever the afternoon was.” We also note the following exchange:

[74]Sir Ivan Lawrence submits that the Respondent has been unable to point to any evidence that rugby matches were played at Bryn-y-Don. However, the evidence that rugby was played by the boys makes it extremely improbable that they did not play matches. Furthermore, we note that during his cross-examination the appellant volunteered the following statement: “If I can go back to Brian Goddard, he says the events started in about, if I remember correctly – and you may correct me if I am wrong – in about the April of 1965, and carried on for twelve months. In April 1965 the football season had finished with – and he is talking about an event that we’re supposed to have gone to for eighteen month - right through the summer, when there were no football or rugby matches.” (A2 119 D-F) Sir Ivan also points out that the appellant’s statements in interview in relation to football do not refer to matches. Furthermore, in the light of these statements in interview, which were produced by the Respondent at the hearing before us, he submits that the appellant has been deprived of the opportunity to say that his contract was for a four and a half day week and that he never worked on Tuesday evenings. However, it is improbable in the extreme that the appellant could have been off duty on the evenings before most soccer or rugby match played by the intermediate boys throughout the relevant period, as the appellant contends. Moreover, we note that in interview the appellant was unclear as to the day on which the games afternoon was held.

[75]So far as the appellant’s involvement in the Territorial Army is concerned, he says that between mid-January and mid-June 1965 he was involved in training in Snowdonia for the Welsh 3000s event held on 13th June 1965. However, we note that he says that training began in mid-January and continued every three weeks, coinciding with his weekends off duty at school, until the race itself. This amounts to a total of seven weekends during the relevant period of some five months. It is therefore not the case, contrary to the statement in the appellant’s Perfected Renewed Grounds of Appeal (p. 14) that “he was away from the school on service as a Territorial Army Captain during most of the weekends in 1965”. In these circumstances, the absence of army records cannot have prejudiced the appellant’s defence at trial.

[76]For reasons given, we do not consider that the fresh material referred to on these counts could reasonably have affected the decision of the jury to convict. Counts 14 and 15 (R)

[77]Counts 14 alleged that the appellant indecently assaulted R between 8 June 1970 and 5 March 1972 (count 14) and Count 15 that the alleged buggery occurred between the same dates (count 15).

[78]Despite the breadth of time covered by the indictment, R’s evidence was that the offences occurred within a short time after he arrived at Forde Park, that is “… about three weeks roughly”, on the occasion of a seven to ten day camping trip to “Dartmoor, Princetown around that area”. R stated that the appellant was in charge of the trip and that he had “distant” and “vague memories” of another member of staff, Mr Alan Cooksley, being there as well.

[79]R recounted how the boys slept in groups of three or four in tents. The appellant had his own tent. Whilst sharing a tent, R stated two, maybe three boys, got inside his sleeping bag, abused him and buggered him. When asked whether he reported the incident, he replied:

“Yes. I saw the scoutmaster, Mr Ely”

. He said he told the appellant that there had been bullying and rude things done to him, and that the appellant had told him “to stand up for himself”. He was unable to say whether the appellant had taken any action but, in any event, it happened again on the next night. When asked more about the treatment he received from the boys he stated that it was thirty years ago and that he had “tried to shut …. out of” his mind what happened at Forde Park and that he found it very hard to come forward and tell people. Nevertheless:

“… the contents are straight and truthful as far as my memory, but they might not be in the right sequence…”

[80]On the third day he said the boys went walking on the moor and, after that, the appellant said to him; bending over and speaking to him, “You know, you get - massage your legs because obviously you’re aching”. He invited R to his tent. On arrival there he was told to strip to his pants, and his legs, thighs and genitals were massaged. That stopped and the appellant then masturbated and ejaculated into a handkerchief. At this point in his evidence, owing to his state of distress, a short adjournment was taken.

[81]When he resumed he recounted that he was told that what had happened was “proper” and that he was not to say anything otherwise it could result in him being longer at the school. That night the appellant invited him to sleep in his tent and, in the course of the night, he was pushed face down and buggered. R observed “… he just done the same as what the previous boys I’d thought I was there to escape from; and that’s what happened again to me”. After this the appellant seemed “quite cheerful and friendly and helpful”, but criticised him for not pulling his weight and doing more.

[82]On cross-examination by leading counsel for the appellant, counsel commenced by stating “… I am not going to worry about the exact dates, or days, or so forth”, but sought confirmation that it was about three weeks after arriving, to which R replied:

“as far as memory”. “Q. As you remember it; so let us not worry too much about the time, but it was some time after you arrived that summer? A. Yes. Q. Still in the summer time? A. Yes. Q. You went to Dartmoor? A. Yes. Q. You went to Dartmoor with the scouts? A. Yes. Q. You are clear about that? A. As clear as I can be. … Q. Forgive me; the scouts were there or they were not there? Was it the scouts ---? A. Yes. Yes, they were there, yes. Yes. Q. You talk about a scoutmaster, so you are absolutely clear it was the scout troop? A. I was in the group, the Green House – become scouts. Whether I was – whether we were classed as scouts on that trip I couldn’t categorically say, but I’d say they were the scouts. That’s (after a pause) let’s say I couldn’t say for certain that they were the scouts, rather than just take it for granted they were; but I was with them; I was there and on that trip, and they were people that were on that trip as well – names that I ---. Q. And Mr Cooksley; you have a memory of him being there? A. I’m not sure whether he was there or not …. Q. … you have a vague memory of him being there on Dartmoor? A. Yes.”

Q. Still in the summer time? Q. You went to Dartmoor? Q. You went to Dartmoor with the scouts? Q. You are clear about that? Q. And Mr Cooksley; you have a memory of him being there? Q. … you have a vague memory of him being there on Dartmoor? A. Yes.”

Q. … you have a vague memory of him being there on Dartmoor?

[83]R then made reference to a ghost story being told and someone jumping up. The case for the appellant was then put in these terms:

“Q. Because what I am going to suggest to you is this – that you did go to Dartmoor with Mr Cooksley, but it was not with the scouts. It was with Mr Cooksley’s adventure week – adventure trip – not the scouts and Mr Ely was not on Dartmoor that summer. A. Totally wrong.”

A. Totally wrong.”

[84]Counsel next asked about the other occupants of R’s tent. “I’ve got a vague [inaudible] names of people, like somebody B; the name, as time has worn on, have become clearer, it is, but I think it’s – I can put his name now, whereas I couldn’t have remembered it before, as Nigel (inaudible) and D … that probably the surname…”.

[85]Counsel next suggested that it was “… some several months after joining the school” that R became a member of the scout troop. “…I am talking six months or more, six to nine months … and that it was not until 1971 that you went camping in Wales and Capel Curig”. R replied:

“Well if that’s the case, how come I can remember times, like stories round the campfire, adventures, different things? Then, you know, we can’t both be wrong …I knows where I was and where I wasn’t”

. Counsel repeated the suggestion that the first time R camped with the scouts was at Capel Curig in 1971 and not on Dartmoor and added:

“The boys that had abused you – D and B – were never in the scouts. What do you say about that? A. I could quite accept what you say. I might not have been in the scouts at the time, and as you’ve already pointed out, that I was probably taken into the scouts four or six months - I was put into Green House. I was relatively new at that school, and I was whisked off to camp…”

. When pressed about the presence of both D and B being in his tent, he replied: “D and B was in my tent – one of them, at least two of them, and this other person. I don’t know. They was there, yes”.

[86]It is necessary for us to review the appellant’s evidence so far as it is material to the R allegations. When examined in chief (page 466), the appellant gave evidence about camping and the tent layout which used to be adopted. He did this by reference to one of his contemporary photographs. It was taken in 1969 in Cornwall when the whole school made one of its annual visits to Tregantle Fort. The appellant explained that in 1968 he had quickly been bored by walking on the beach and decided to do something in 1969 with the scout troop:

“… we were dropped off … and spent three days walking back to Tregantle Fort …”

. A little later he was asked about his camping trips generally:

“Q. When you went away on camps with the boys would you go alone, or would other masters attend? A. It depends where I was going. If it was on Dartmoor I would often be on my own. If it was to an area like Snowdonia, which is a potentially hazardous area, I always insisted I had somebody else with me.”

He stated that the number of boys in the scout troop “fluctuated in accordance with the number of boys at the school”. He liked to keep it to fifteen boys, but he could remember eighteen at one camp and twelve at many others.

[87]His evidence in chief in connection with the R allegation was that he definitely did not abuse him on Dartmoor: “A. … 1970 is the year he was talking about. He had just come to the school. He says that within a few days of arriving at the school he came on a camp on Dartmoor with me. I only ever camped with the scout troop. Members of the scout troop were always – if they came to the school – a new boy came to the school – he was always given a period of settlement - a month, whatever it took, six weeks – before he was allowed to join the scout troop; so no boy coming to the school in June would, within a few weeks, come with me. Impossible. Q. Again we know, because there is no dispute, that he was a member of the school from 8th June, when he entered, of 1970 to 5th March 1972. A. Yes; but the camp would have been planned weeks before that. Q. You were asked about this in interview to the police, and do you stand by what you say … A. Emphatically. I vehemently deny his allegations. He is a liar”.

[88]When cross examined, he repeated the allegation:

“And I’ll say it loud and clear again now. He’s a liar”

. Q. He’s a liar. He couldn’t have been in the scouts within a few weeks of joining the school, or a few days of joining the school? A. Correct. Q. He could have been in the scouts within four to six weeks? A. Possibly. Q. Possibly? A. Yes, but unlikely. … A. Because, I mean, boys could only join the scout troop if there was a vacancy. There were fifteen boys with me in 1970, as I have been able to ascertain, so there probably weren’t even any vacancies”. When asked about the complaint from R about being abused by other boys, he denied it had been made. “… He was not with me in 1970. There is evidence to sustain the fact both boys he named – D and B – could have been with him, but neither of them were with me”. To the allegation of buggery, he replied:

“A. Total fabrication. We have evidence that Mr Cooksley was camping in that area – specific area of Dartmoor – in 1970, and then we have evidence that D was with him in 1970 at that specific site”

. Q. He could have been in the scouts within four to six weeks?

Q. Possibly?

[89]Thus R said that he went to a camp on Dartmoor in the summer of 1970 and, he thought, soon after arriving at the school. He did not know whether he was classed as a scout at that time. The appellant was at the camp.

[90]What was put to him in cross-examination was that he did indeed go to Dartmoor but it was with Mr Cooksley and not with the scouts. The appellant was not with Mr Cooksley. It was put to him that his first camp with the scouts was at Capel Curig in 1971. He accepted that D and B were never in the scouts.

[91]In evidence, the appellant said that R could not have been in the scouts within a few weeks of joining the scouts. R was not with him in 1970. D and B were not with him. The appellant said: “We have evidence that Mr Cooksley was camping in that area – specific area of Dartmoor – in 1970 and that D was with him at that specific site”.

[92]The jury plainly accepted the evidence of R. The appellant did not give evidence as to where the scouts went in the summer of 1970, though he claimed to remember the events of that year.

[93]R did not assert that he was a scout at the time of the camp. He did not claim that B and D were scouts. It was when he was pressed in cross-examination that he accepted that one of them at least was at the camp.

[94]It is in that context that the fresh evidence has to be considered. The court heard Mr Cooksley de bene esse. Contrary to submissions made, he had not refused to co-operate with the defence at the time of trial. When telephoned by solicitors, he was only asked in general terms whether he would assist and did not think he could contribute anything. He would have been prepared to help with relevant evidence if he had thought he could.

[95]We do not even now know what “evidence” the appellant had, if any, which established that Mr Cooksley was camping in the specific area of Dartmoor in 1970 and that D was with him. Mr Cooksley made clear that, notwithstanding the case to be put at trial in relation to R, Mr Cooksley had not been asked about the summer camps. If there was any such evidence, it could have been called at the trial.

[96]Mr Cooksley’s evidence was that the school closed down for a period in the summer. Staff took and supervised various outdoor activities. The school closed down for Adventure Week, June 17-24 1970. Mr Cooksley’s activity was camping with map reading and teaching the basics of rock climbing, involving up to five boys. He said it was really very basic. Others did more strenuous activities. The scouts did more adventurous things. He did not go on scouting activities.

[97]The contemporaneous report on D, now available, establishes that Mr Cooksley was at a camp from 17 to 24 June 1970 and that D was with him. The appellant was not. Mr Cooksley was not, however, at Princeton on Dartmoor but at Buckfast, although it might be said that that was on the “edge of the moor”. Mr Cooksley said that there was a scout outing going on at the same time but he did not know where.

[98]The oral evidence can now be considered in the context of a headmaster’s report on R which has become available and is dated 1 September 1970. Under the heading “Progress in School to Date”, it is stated: “R’s admission time coincided with a particularly active period of the term. Consequently he found himself thrown quickly into activities of a proportionately demanding and revealing nature. During the second half of June, he spent a full week camping on nearby Dartmoor and engaged in activities of a very physical and demanding nature. Overall he did quite well and states that he enjoyed the period very much. Subsequently, the school has spent two weeks at Tregamtle Fort in Cornwall – the site of annual school camp. At camp the accent is placed on small group activities with every opportunity being taken to utilise the many resources available in the area for sailing, canoeing, fishing, scrambling, cliff walks and general beach activities. He participated in all of these activities with a good degree of enthusiasm and declared an evident enjoyment of the majority of them. Shortly after his admission, he expressed an interest in joining the school scout troop and opportunity was given to him to do just that at the end of July. He jumped at the chance and he has since entered wholeheartedly into the activities of the troop and shows every indication of benefiting from them. During the school camp in Cornwall, together with the rest of the troop, R spent three days on a trekking camp from the north coast down to the south coast of the country. The weather for the trek was anything but favourable and conditions at times were quite severe. In spite of this he did very well and proved a useful and co-operative member of the group”.

[99]That note confirms R’s evidence that he did attend a camp in June, that it was on Dartmoor and that he engaged in activities “of a very physical and demanding nature”. He cannot have been with Mr Cooksley, who was not on Dartmoor and whose activities were of a different kind. R said that he went trekking and was aching as a result. The June camp described by R was on Dartmoor and was most unlikely to have been Mr Cooksley’s. Plainly he was at camp and the other camps described are the scout camps. A witness, MB, who was not a complainant, gave evidence to the effect that Dartmoor was the main place they visited on camping trips with the scouts.

[100]The note also shows that R showed an early interest in joining the scout troop and did so at the end of July 1970. In the school camp in Cornwall, in the summer of 1970, R spent three days on a scout trekking camp from coast to coast in Cornwall. That is entirely inconsistent with the suggestion put to him on behalf of the appellant that the first time that he had camped with the scouts was at Capel Curig in 1971. Whether R was or was not himself a scout in June was not an issue at the trial and R did not claim that he was.

[101]The fresh evidence does nothing to support the appellant’s case at the trial, and now, that the June camp attended by R was with Mr Cooksley. Indeed, it tends to support R’s claim that he was at the appellant’s camp. It does establish that D was with Mr Cooksley at the June camp but R was not adamant that D was at camp with him, though, on cross-examination, he thought he was and we bear that in mind. The note strongly supports the early participation of MR in the vigorous activities conducted by the appellant with the scout troop and Mr Cooksley, who was not on Dartmoor, said nothing which points in the opposite direction.

[102]Mr Pringle did keep open the possibility that the offences against R were committed at another camp during the summer of 1970 and that R may simply have had the sequence wrong. He was on the scout trekking camp during that summer. On our findings, that issue does not arise but we do not accept that, by making the suggestion, the prosecution “moved the goal posts”. The relevant period set by the defence at the trial, by way of cross-examination, was the summer of 1970 and that period included the Cornish activities described in the note on R.

[103]We refused leave to call evidence from B and D. They were available to be called at the trial, but the defence declined to call them after requesting an adjournment for the position to be considered (A2 418). Counsel for the appellant attempted to cross-examine the officer who had taken a statement from B (there being a statement also from D) about the account they had given in connection with R’s complaint. Although the record is not entirely clear, it would seem she wished to question the officers about their account that “… they had not observed any such incident as had been complained of by R …” (A2 418). From the use of the expression observed this is likely to have referred to R’s complaint against the appellant and not each of them.

[104]Having considered the issue, the defence elected to proceed by agreeing admissions. The defence proposed an admission from B to the effect that he had stated:(a) he had never joined the scout troop;

(b) he had never gone camping with the school on Dartmoor or anywhere else and had never assaulted R. An admission was sought that D had stated that: (a) he went on a camping trip on Dartmoor whilst at Forde Park; (b) he remembered no incidents between boys on that trip;

(c) he was never involved in incidents involving B and R. The admission placed before the jury simply recorded the fact that statements had been taken and that their names and addresses had been made available to the defence.

[105]Leave was sought to call them “… to deny … sexual encounters with R” (see paragraph 10(iv) of the Skeleton Argument). We doubt that such evidence, which went only to the credit of R, would have been admissible at trial. In context, it amounted to an inappropriate attempt to raise a collateral issue. The grounds for the application did not suggest that they could help on the question whether they camped on Dartmoor in June 1970 or not or could remember where they camped. In any event, they were available at trial to be called.

[106]Count 16 (AR). We have considered two documents not available at the trial but now available. The first is a note prepared by the appellant about a visit to Forde Park by Mr Burgoine, Social Worker, on 30 June 1971 in relation to AR. The appellant noted that on his return from a long conversation with AR, “Mr Burgoine expressed complete satisfaction with the visit and with the way that the boy’s training is developing”. The second document is a memorandum from a social case worker to the headmaster dated 19 July 1971. That referred to a visit to the school on 17 July by AR’s mother who was content that AR should stay at the school and expressed no concerns about his treatment. The documents go to the absence of complaint.

[107]The appellant refers to the death before trial of Mr Buttery, who was on the Snowdonia trip, as having prejudiced his defence on this count. Mr Buttery’s death was made known to the jury, though not mentioned again in the summing-up.

[108]In the context of this case, and with all the other evidence about the regime at the school and the agreed lack of complaint, it is not conceivable that the introduction of the two documents would have influenced the verdict of the jury on Count 16. Moreover, the jury had been given directions as to delay and its effects. The alleged circumstances of the offence were not such that, in the context of this case, Mr Buttery would have been likely to be able to assist. If it was committed, it is most unlikely to have been in his presence. AR was properly cross-examined at the trial about his subsequent contacts with other pupils at Forde Park.

[109]Counts 21 and 22 (MS). The appellant relies on the contents of a psychiatric report from Professor H Zeitlin, dated 22 April 2002, which has become available since the trial. MS gave evidence that the appellant had, in Switzerland, punched him in the eye causing a split and a wound “pouring with blood”. The first point made is that there is reference in the report to a medical examination shortly after return from the trip to Switzerland, where the assault (and the indecent assault with which it was claimed to be associated) is alleged to have occurred, and there was no mention of the wound. The second point is that AR has been inconsistent in that he told Dr Zeitlin of more serious conduct by the appellant, attempted buggery, than he had mentioned in evidence. In the medical report, allegations against several other members of staff were also recorded.

[110]We consider it very unlikely that leading counsel at the trial would have put the contents of the report to the witness. First, the lapse of time between the alleged assault in Switzerland and the medical report on return from a sixteen day trip make the lack of references to its unsurprising. Secondly, there would have been obvious dangers in referring to the alleged attempted buggery. The defence had chosen not to broaden the scope of cross-examination into an investigation of wider allegations made at the school and that was an entirely defensible approach in the circumstances. Sometimes, as Sir Ivan Lawrence points out, evidence of the inconsistency is more important to the jury than the substance of the allegation, but we very doubt whether the defence or jury would have regarded it in that way in this case and neither would we.

[111]MS stated that another pupil, CC, had been a witness to an indecent assault in the shower. CC’s statement to the police, denying seeing such an incident, was disclosed to the defence and he could have been called had that been considered appropriate. Two other boys mentioned by MS in relation to the Swiss assault, T and McE, did give evidence.

[112]The new material does not, in our judgment, cast doubt upon the safety of these verdicts. Counts 23 and 24 (DE)

[113]DE was in the scouts. On a scout trip to Snowdonia, tents were blown away during a stormy night. DE went to the appellant’s tent and woke to find that the appellant had unzipped his sleeping bag and was playing with his penis. He did not know what to do. He felt inside that it was wrong. He was too scared to say anything (Count 24).

[114]On a canal trip, the witness was on the appellant’s barge, one of two used by the school on the trip. DE said that the appellant decided that the witness would move to a position next to him. They were in a double bunk alongside each other, each in a sleeping bag. That night he woke to find the appellant sucking his penis. The witness said that he froze, was scared, knew it was not right and did not know what to do. He did not sleep there again. He regarded the defendant as a fair man until that happened (Count 23).

[115]In support of the general grounds of appeal on these counts, the appellant relies on the lack of opportunity to show that he was not on the same barge as DE because of the absence of school records relating to the canal trip. It is also submitted that the judge did not remind the jury in his summing-up of the extent of DE’s convictions. Leave was sought to call Mr D Curtis, the master in charge of the other barge on the canal trip, and SP, another former pupil. Both could have been called at the trial, having given statements to the police, though in his recent statement Mr Curtis does say that he has been very reluctant to become involved in this criminal investigation. He could confirm that the appellant kept thorough records, but that is not in dispute. He recalled that each boy would have been allocated a bunk and that he could not remember any occasion when a boy had been required to move bunks.

[116]Boys could clamber from one boat to another while they were at rest but on the move would remain on their allotted boat. He would have expected boys to be allotted to each barge in accordance with their scout patrols. Mr Curtis remembered DE but not which barge he was on. Mr Curtis had had no hesitation in entrusting his own children into the care of the appellant. Mr Curtis also recalled that on a barge trip, he saw the appellant take DE downstairs and tap him on the bottom with a dap (gym shoe) several times, albeit not hard.

[117]Before expressing our conclusion on this issue, we have regard to the fact that DE’s account in evidence that he had been on the appellant’s barge was not challenged in cross-examination. In his own evidence, the appellant said that he could not remember which boy was on which boat but added that “the information that I have been given, is in fact, that DE was not on my boat at all but on Mr Curtis’s boat”. As with a similar point in relation to R on Dartmoor, no explanation was or has been given as to what “information” the appellant had in mind, whether there ever was such information and, if so, why it was not put in evidence. Mr Curtis’ evidence now would be that he could not remember which barge DE was on. We do not consider the photographs helpful in deciding which boy bunked on which barge.

[118]SP would also say that the appellant ran expeditions and camps with military style and precision. On canal trips, scouts stayed within their patrols and a boy was allotted to a bunk for the whole trip. Each patrol would stick together. He would say that DE joined his patrol, from another patrol:

“In fact I am sure that he was passed around several.”

[119]SP was available at the trial and not called. In a statement to the police, he had made an allegation of sexual impropriety against the appellant and referred to another occasion when the appellant had made him feel uncomfortable. He now complains of the manner in which the statement, which he gave to the police on 14 December 1999, was taken. It is claimed that the police officers “cherry picked” every comment he made. It is submitted on behalf of the appellant that had this been appreciated at the time, SP would have been called as a witness. Having read his several statements, we very much doubt that. He could have been cross-examined about his allegations against the appellant with consequences adverse to the appellant.

[120]There was a good reason for the defence not having called SP at the trial. His evidence would have been (and could be) damaging to the appellant. Beyond that, there is no reasonable explanation for the failure to adduce evidence from Mr Curtis and SP which was not adduced at the trial and strong justification would be required for a second opportunity to be granted. Moreover, the potential evidence, which we have summarised, does not afford any ground for allowing the appeals against convictions on counts 23 and 24. We concluded that it was neither necessary nor expedient in the interest of justice to receive the evidence. The other specific submissions made on these counts do not significantly advance the general submissions made as to delay, lack of records and the convictions of the complainant. Counts 31 to 34 (JW)

[121]In relation to JW, reference is made to the fact that his convictions were not put to him in cross-examination, although in fact he had a large number of convictions between 1973 and 1991. It is also submitted that MT, a boy claimed by JW to have observed improper conduct towards him, did not support that allegation. That point was dealt with at the trial by way of an admission that, in a statement of 7 September 1999 made to the police, MT said that he did not remember JW and did not remember an incident involving him walking into the appellant’s tent to see JW lying naked. That written admission was of course before the jury. Also before the jury, and mentioned in the summing-up, was JW’s evidence of his admitted bitterness for being required to leave the scout troop. This was suggested to provide a motive for lying. On the serious charges contained in those counts, all the relevant material was available to the defence at the trial.

[122]Points made upon the cases of TD (Counts 2 and 3) and JA (Counts 17 to 19) are covered by the general submissions and comments already made. SH (Count 1)

[123]We have left until now considerations of this count because, in the course of the hearing a new point was raised by Sir Ivan Lawrence. SH’s civil claim form of 5 March 2004 in what is described as the South Wales Children’s Homes Litigation, prepared by solicitors but signed by SH, contained a description of the alleged abuse by the appellant in different terms from that alleged in evidence. It was stated in the civil claim: “The claimant recalls that [the appellant] would force him to masturbate him and perform sexual acts upon him which the claimant did. The claimant describes him as grooming him for sex”.

[124]In evidence, Count 1, SH had alleged that the abuse took the form of the appellant masturbating SH. Shortly before the hearing, Sir Ivan Lawrence noticed the discrepancy which, until then, no-one had.

[125]It has not been possible to obtain an explanation from the solicitor who prepared the claim form, though SH himself was available. The claim form also made relevant a medical report based on an interview with SH on 19 November 1994, prepared for the purposes of the civil claim. In that report SH’s complaint is recorded these terms:

“Mr Ely had made him sit on his knee and played with his genitals and then masturbated [SH]. However SH stated that Mr Ely did not make your client masturbate him and that they did not have penetrative sex. [SH] told me that that was the only time that any sexual contact occurred. He believes that he was around twelve years at that time.”

[126]That account is entirely consistent with the account given at trial. Having regard to the extremely late stage at which this point was made, and to the overall context of this case, we do not consider it in the interests of justice to have regard to the discrepancy revealed by the document, it being impossible to investigate the circumstances in which the inconsistent statement was made. It affects only one count of many and one where the lesser charge of indecent assault is involved. Moreover, though the difference between the evidence and civil claim is substantial, the accounts do both allege an indecent assault by way of masturbation. The “knock-on” effect

[127]Sir Ivan Lawrence makes the submission that a consequence of the similar facts direction being given is that if this court considers any one of the convictions to be unsafe, all others must also be unsafe. The jury were told that they were “entitled to consider the evidence of other witnesses when deciding whether the witness whose allegations you are considering has told you the truth”. The jury may have relied on the evidence of X, where the convictions are held to be unsafe, in deciding that Y had told them truth, and so on.

[128]Reliance is placed on the decision of this court in R v Williams-Rigby & Lawson

[2003] EWCA Crim 693

. On the facts of that case, it was held (Kennedy LJ presiding) that fresh evidence directly undermined the evidence of two of the complainants and the evidence of one of those complainants may well have assisted the jury to reach a conclusion in relation to other witnesses (paragraph 14). The same conclusion was reached in R v Sheikh

[2004] EWCA Crim 387

. Non-availability of evidence at trial having rendered unsafe a conviction on one count, Penry-Davey J, giving the judgment of the court, stated at paragraph 17:

“that has a knock-on effect because the judge directed the jury that each complainant’s account was capable of providing support for the account of the other and vice versa. He identified the similarities in the accounts to the jury. In those circumstances, the convictions on the remaining counts relating to the other complainant are necessarily rendered unsafe .”

Both cases were child abuse cases.

[129]We do not accept the submission in its general form or that it should be applied indiscriminately or universally. There will be cases in which the “knock-on” principle stated in Sheikh applies but analysis of the particular circumstances is in our judgment required. Applying the Pendleton test, the court may conclude that while it was a real possibility that a jury, on the basis of further evidence, might well have acquitted on one count, convictions on other counts are safe. The direction given and the circumstances of the particular trial and the particular count would need to be considered.

[130]On our findings, the issue does not arise in the present case. If it had done, we would have been unlikely to apply the “knock-on” principle generally, though the reason why an appeal had been allowed on a particular count would have required consideration in this context. We would have had regard to the wide range of situations involved in the counts in the indictment, the fact that allegations were based on events at two different schools and the fact that it is plain the jury had regard to the credibility and reliability of each complainant by its decision to acquit on a number of counts but to convict on many others. There is every indication that they considered the evidence of each complainant on its merits. The importance of doing that was underlined by

the judge (paragraph 40 of this judgment) who ended the relevant part of his summing-up by stating:

“You look at each complainant in turn, and ask yourselves: are you sure that his account is fundamentally truthful?”

Conclusions

[131]We have commented, in the course of this judgment, both on the general submissions on which reliance is placed and the matters arising on the specific counts and now express general conclusions. We have considered the documents individually and collectively (though noting that where documentary evidence has become available since the trial, it has sometimes, for example, the contemporaneous 1970 report on R, supported the prosecution case rather than that of the defence). Where fresh evidence has not been admitted, the court has considered its duty under Section 23 of the 1968 Act in reaching its conclusion. In relation to the fresh material, we apply the test laid down in Pendleton to the material before the court. The ultimate responsibility for considering the safety of a verdict rests with this court, and the court is obliged to exercise its own judgment, but the court should test its own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury, the primary fact finding tribunal, to convict.

[132]Having considered submissions on individual counts, as well as the general submissions, we do accept that the long passage of time between alleged offences and trial increased the difficulties of the defence. The appellant carefully planned scout trips and other school activities and kept records of them. These were not available at the time of trial. The extent to which the appellant could expect to remember specific events was also diminished, as was that of potential witnesses on his behalf. These point could be, and we have no doubt were, forcefully put to the jury in submissions on behalf of the appellant.

[133]Moreover, the judge did confront the problems arising from the passage of time and did so in a way which we consider appropriate and sufficiently full. No application to terminate the trial as an abuse of process was made and no application for severance was made. The judge referred in his summing-up “in particular” to the absence of records which would have existed but no longer did.

[134]It is not suggested that the appellant was other than competently represented at the trial. The judge was required to give legal directions in accordance with the law current at the time of trial and not that applicable at an earlier time.

[135]The appellant’s good character and the convictions of the complainants were sufficiently brought to the attention of the jury, as was the compensation motive. The references in the summing-up were commensurate with the need including the weight given to points in the course of the evidence. The summing-up was not defective by reason of the absence of a fuller reference to the convictions. There is every indication that the jury, having been given accurate directions, carefully considered the evidence on each count before bringing in their verdicts. The trial was conducted with great fairness; the judge intervened little in the course of the evidence and rightly discussed with counsel the directions to be given to the jury in the summing-up.

[136]The points raised on specific counts, taken of course with the general submissions, do not raise a doubt in our minds as to the safety of the verdicts in this case. Where further material has become available, it does not, for reasons given when considering specific counts, create a doubt as to the safety of the convictions.

[137]In those circumstances, the appeals against conviction must be dismissed. Sentence

[138]There is an appeal against sentence by leave of the single judge who stated that it was arguable that the sentence of fifteen years imprisonment was too long having regard to the age of the offences and the appellant’s age.

[139]When sentencing the appellant, the judge referred to the positions of responsibility held by the appellant at Bryn-y-Don and at Forde Park. The appellant was in breach of trust by sexually abusing the boys. In some cases the abuse was not particularly severe while in others it was extremely serious. Silence was ensured by the regime to which the boys were subject. The appellant had avoided responsibility for his actions for many years.

[140]We agree with the analysis of the judge, who also referred to the age of the appellant. Sir Ivan Lawrence refers to the impeccable character of the appellant both before and after the long period when the offences were committed and the very long period between those offences and the trial.

[141]In 2003, that is after the present sentence was imposed, this court allowed an appeal against sentence by Derek Hooper who was employed, though not as a master, and also did voluntary work at Forde Park. His offences included buggery, attempted buggery and indecent assault. The court reduced the sentence of eighteen years to fourteen years.

[142]We consider there is force in Sir Ivan Lawrence’s submission. Following the investigation into his conduct in the late 1970s, the appellant left his employment at the Approved School and took up employment which did not involve contact with boys. Many years elapsed without conviction. The appellant is now 71 years old. His family have stood by him.

[143]In those circumstances, the overall sentence of fifteen years was in our judgment too long. That is quashed and is substituted by a sentence of 12 years. That total sentence will be made up of sentences of 5 years imprisonment on Counts 7,8,9,10 and 15 to run concurrently, sentences of 4 years imprisonment on Counts 33 and 34, concurrent with each other but consecutive to that on Count 7, 3 years concurrent on Count 32 and 3 years imprisonment on each of the counts of indecent assault concurrent with each other but consecutive to the sentences for buggery.

[144]To that extent, the appeal against sentence is allowed.