Joynson, R. v [2008] EWCA Crim 3049

[2008] EWCA Crim 3049Case No 2008/00373/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 26 November 2008
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
LORD JUSTICE TOULSON
and
MR JUSTICE MADDISON
Between
R E G I N ACrown- v -
Between
FRANK JOYNSON
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr M D Barlow appeared for AppellantMr J Gosling appeared for Crown
J U D G M E N T
[1]On 27 November 2007, at Hereford Crown Court, before His Honour Judge Matthews and a jury, the appellant was convicted of twelve counts of indecent assault on a male contrary to section 15 of the Sexual Offences Act 1956 and of two counts of buggery contrary to section 12 of the same Act. He was sentenced to a total of thirteen years' imprisonment and disqualified from working with children. He appeals against his convictions by leave of the single judge, who also referred to this court his application for leave to appeal against sentence.[2]Wessington Court School was a boarding school which catered for boys with special needs. The appellant worked there as a house parent from a time in the late 1960s to the early 1970s. The period spanned by the indictment was from 1 May 1969 to 1 January 1972. According to the appellant's evidence, that represented his period of employment. As a house parent his responsibility was to care for boys outside classroom hours.[3]The headmaster was a Mr Eagles. In 1999 Eagles was convicted of a number of offences which involved the serial abuse of boys at the school during a ten year period beginning in 1973.[4]There were five complainants in the present case, the youngest of whom was aged 8-11 during the period of the indictment and the oldest of whom was aged 11-14.[5]The nature of the allegations can be summarised without going into great detail. Two of the complainants were twins ("Twin A" and "Twin B"). Six counts in the indictment (three pairs) related to Twin A. The first two counts alleged that the appellant masturbated him when sitting on his lap. Counts 3 and 4 alleged that the appellant put Vaseline on Twin A's penis and masturbated him. Counts 5 and 6 alleged that he penetrated Twin A's anus digitally. These were all presented as specimen counts. The appellant was convicted of counts 1-5 inclusive and acquitted of count 6.[6]In relation to Twin B there were two specimen counts (7 and 8). These alleged that the appellant masturbated Twin B while he was sitting on the appellant's knee. The appellant was convicted on both counts.[7]In relation to another complainant, "NE", the allegations were that whilst he was sitting on the appellant's lap, the appellant pushed his penis against the complainant's bottom. Those were specimen allegations set out in counts 9 and 10. There was also a specific count of buggery (count 11). The appellant was convicted on all three counts.[8]The fourth complainant was "PF". By the time the case came to be summed up to the jury there were two counts relating to him. These were an allegation that the appellant fondled his penis while he was sitting on the appellant's lap (count 12), and an allegation of buggery (count 14) on the same day. PF could not recall the date (or even the approximate date) when the offences occurred, but those were specific as distinct from specimen counts.[9]The final complainant was "KC". There were three allegations in relation to him. It was alleged that while he was sitting on the appellant's lap (counts 15 and 16) the appellant played with his penis. Those were specimen allegations. There was also a specific allegation that the appellant touched KC's penis on a particular occasion (count 17). The appellant was acquitted on count 17 but convicted on counts 15 and 16.[10]There are two grounds of appeal against conviction. The first is that the judge wrongly failed to stay the case as an abuse in the light of the delay and its prejudicial effect on the appellant. The application was made at the close of the prosecution case. We have already identified the period covered by the indictment. This period was 35 to 38 years before the date of the trial.[11]The appellant was born on 28 June 1944, so he was aged between 24 and 27 during the period covered by the indictment. He was aged 63 at the date of trial. By that time there were no extant records from the school, except a school register which had been recovered from Eagles' home during the course of the police investigation into Eagles' activities. During that investigation the police had also recovered certain diaries kept by Eagles. They included diaries for 1969, 1970 and 1972 (but not 1971). Some of the complainants' medical records survived, but not all.[12]A significant feature of the case was that there were five complainants. It was one of the twins who made the initial complaint which led to the investigation against the appellant, but there was no evidence or material to suggest any connection between the twins and the other witnesses, or the other complainants among themselves, in the making of the allegations which they put forward.[13]The judge gave a direction quite properly that the evidence of one complainant, if believed, could support that of another. It follows that when considering prejudice it is necessary to consider the prejudicial effect of delay and the absence of documents not only in relation to any particular complainant, but also its secondary effect in relation to others whose evidence may have been bolstered by the evidence of another complainant. In short, it is necessary for us to consider the prejudice alleged in relation to the specific complainants and then to stand back and look at the matter in the round.[14]It is convenient to begin with PF, who was a witness of good character and whose evidence contained no self-contradictions. As Mr Gosling for the prosecution candidly accepted, he stood alone among the complainants in that combination. Aside from the appellant's denial of his allegations, his account as an apparently credible witness could effectively only be challenged if there was material upon which properly to do so.[15]PF gave evidence that while he was at the school he was worried by being placed on a teacher's lap. He told his mother about this, but he did not go into further details.[16]A statement was taken from PF's mother. She did not give evidence to the jury, but the effect of her statement was agreed between the parties and formed one of a number of agreed facts placed before the jury. She confirmed in her statement that her son had complained about having to sit on a teacher's lap but she was definite that his complaint was about Eagles. PF's evidence was that it was not. Whatever PF said to his mother was clearly not just a passing remark because, according to her, it caused her to attend the Social Services Department, where she spoke about the matter to a Mrs Hamilton, who promised to look into it. Mrs F heard no more. As the judge observed in his summing-up, plainly PF and his mother could not both be right.[17]The point made on behalf of the appellant was that if the Social Services records had still existed, and if PF's mother was right, there should have been a record of her making the complaint that she did to the department. The relevance of such a contemporaneous record was obvious.[18]PF also gave evidence that the appellant used to make lewd sexual remarks in the shower room about the appellant and another boy "DC". That might not have been regarded as a matter of any very great significance, but it is clear that the parties did see it as a matter of some significance in the context of PF's credibility, because the prosecution called a witness "B" whose sole relevance was to confirm PF's account of what the appellant said in the shower room regarding DC.[19]According to the school register, DC was enroled on 19 January 1972, which would have been at the beginning of the term after the appellant left the school, if the appellant's evidence about his dates of employment was right.[20]The judge referred to this matter in his summing-up. He said:21. "Now, what are you to make of that evidence of [PF] in the light of the information in the register and from Mr Joynson that [DC] did not come until the term after Mr Joynson had left?"22. "Of course, the evidence might be explicable if Mr Joynson's evidence that he left in December 1971 was itself wrong, but, as Mr Barlow pointed out, the prosecution did not challenge or explore Mr Joynson's evidence on that topic and there is no evidence to contradict the dates that he gave to you in the course of his evidence."[21]It was submitted by Mr Gosling that the effect of that direction to the jury would have been to invite them to treat as an established fact that the employment dates given by the appellant were right and that the evidence given by PF (and B) about DC had to be wrong.[22]Taking the passage as a whole, we do not read it in that sense. Indeed the reference to B's evidence would not have made sense if the jury was being told to treat it as an accepted fact that the employment dates were as the appellant gave them, and that therefore there was in that regard an error in PF's evidence.[23]The point made in this regard on behalf of the appellant is that if his employment records had still existed, they would have resolved this matter beyond doubt; if they had been as he submits, then contemporaneous evidence would have shown that, at least in this respect, PF's evidence was plainly false. It is the appellant's case that, when regard is had to the absence both of the Social Services records relating to PF's mother's complaint and records of his own employment dates, two pieces of hard contemporaneous material for challenging the accuracy of an otherwise seemingly reliable witness were denied to him by reason of delay.[24]We turn to the evidence of KC. The appellant was convicted on two counts of masturbating KC (counts 15 and 16), but acquitted of a specific charge of indecent assault (count 17). There was some inconsistency in the different versions given by KC, but in relation to count 17 his evidence was that he was seen at the school by a doctor who prescribed cream for a penis infection. It was his evidence that the appellant said he would administer it. KC objected, but at some stage during this episode the appellant touched his penis. The appellant denied that any such episode had occurred and said that he had no recollection of KC ever having seen a doctor. KC's medical records do not survive. If KC's account is correct, the records should have recorded a doctor's visit and the prescribed treatment.[25]In the course of his summing-up, the judge reminded the jury of the absence of this evidence. As Mr Gosling observed in his submissions, the only sensible explanation for the jury's acquittal on count 17, taken in conjunction with their conviction on counts 15 and 16, is that they did not feel sure in relation to count 17 because of the absence of medical evidence. But the point is made on behalf of the appellant that if the medical records had been in existence and in fact did not support KC's account, this would have gone to KC's credibility in relation to the other two counts on which the jury convicted the appellant. It is further submitted that the absence of relevant records in relation to PF and KC not only prejudiced the appellant in relation to meeting their allegations, because he lacked the means to test their stories by reference to contemporaneous objective evidence, but it had a knock-on effect in relation to the case generally, since the prosecution relied on their credibility to support the credibility of other complainants who in isolation may well have been regarded as significantly less credible. In particular both twins had lengthy criminal records, including convictions for dishonesty and histories of drug addiction.[26]In relation to the fifth complainant, NE, there was also some material for questioning his reliability. His evidence was that he had told police officers about the assaults on him, but not about the alleged buggery, when they had visited him at his home seven years before the trial at the time when there was a police investigation into activities at the home which resulted from allegations about Eagles. One of the two police officers who went to see NE gave evidence which contradicted NE's evidence about this. The judge properly reminded the jury about this conflict of evidence in his summing-up. He pointed out that NE and the police officer could not both be right and that if they thought that NE was or might be wrong, they would have to bear that in mind in assessing his credibility. It is suggested that in assessing his credibility the jury may well have been influenced by a favourable view of the credibility of PF and KC and that, therefore, if there had been available to the appellant objective material for undermining the reliability of PF and KC, then that would have undone the value of their credibility in propping up the credibility of the twins and NE.[27]Other points of prejudice as a result of delay and the non-existence of particular documents were set out in Mr Barlow's skeleton argument, but we have highlighted the points which seem to us to be of greatest cogency.[28]At the close of the prosecution case Mr Barlow submitted that the combination of the exceptional period of delay and the absence of records made this a case in which there could not be a fair trial.[29]The judge considered the matter with care and, having reflected overnight, he gave his ruling. After referring to the general principles in this area which are well-known, he said:
"I have a responsibility to look at each count and each complainant in order to decide whether, having regard to the delay, the defendant can have a fair trial on that count. Because the application to stay has been deferred until the close of the prosecution's case, it means that I have had the opportunity to hear the evidence of the prosecution witnesses, and, more importantly, to hear Mr Barlow's thorough and searching cross-examination of the witnesses. Save for the particular passages of evidence to which I have referred, and to which Mr Barlow referred in his submission, it has appeared to me that Mr Barlow's instructions have enabled him to test fully both the veracity and the reliability of the witnesses in the case, and the complainants in particular, and, more importantly, the integrity of the police investigation; I say importantly because the defendant in his defence case statement has made it clear that he suggests a degree of collusion or contamination. I am acutely conscious that the delay in these proceedings coming to trial 37 or 38 years after the alleged event is by any standards exceptional. That having been said, I have been surprised by the powers of recall, and, in many cases, detailed recall, demonstrated by the prosecution witnesses and demonstrated by Mr Joynson when he was interviewed on the two occasions by the police." 32. "
I am not persuaded that the absence of Social Services or education records creates the sort of serious prejudice that would require a stay in this case. 33. In my judgment it is difficult to see how they would have added significantly to the jury's knowledge of the complainants or material witnesses." Amplifying the reasons for his conclusion, he said: 34. "It is, in my judgment, impossible to say whether the defendant has, in fact, been prejudiced by the absence of any medical records relating to [KC], or, if he has, the extent of any such prejudice. It is arguable that the absence of the records is as much a handicap to the prosecution as it is to the defence. 35. .... 36. I am not persuaded that any possible prejudice to the defendant arising from the absence of that complainant's medical records cannot be adequately and fairly addressed by a robust warning to the jury to take account of the delay in the case; the difficulties that has caused Mr Joynson in a number of different respects and, in particular, the absence in any medical record that might have assisted the defence in relation to that complainant."[30]This was a very difficult case. It was tried by an experienced judge who considered it with care. The question for this court -– and the only question for this court –- is whether the convictions are safe. In our judgment there are particular features of this case which, taken together, caused real potential prejudice to the appellant. We have identified the principal features. The first is the delay. The courts have sadly become familiar with sex abuse cases going back many years, but, as the trial judge recognised, the period of delay in this case was by any standards exceptional. Moreover, it was delay in the complainants giving evidence about events which were alleged to have occurred during their childhood (in one instance as young as 8). The surprising apparent powers of recall of witnesses 35 years and more after the event impressed the judge, but did not lessen the importance of the absence of contemporaneous evidence by which to test the degree to which such apparent recall was true and reliable recall.[31]Having identified in summary the nature of the significant prejudice in this case, we must consider whether the case was so strong and/or whether there were sufficient safeguards that the convictions may nevertheless be regarded as safe, despite such prejudice. This is a fact-specific exercise and it calls for close scrutiny. As to the first, it is difficult to isolate consideration of the strength of the case from what the missing documents would or might have shown. For example, if contemporaneous documents had shown that as a schoolboy PF complained about Eagles, not the appellant, and that his evidence about the appellant's references to DC were an instance of his memory playing him false 35 years after the event, the case would inevitably have appeared less strong than otherwise, for the defence would then have been able to say that on the two points where contemporaneous objective evidence existed, it demonstrated that the seemingly credible recollection of the witness was wrong.[32]We turn to consider the adequacy of the safeguards, doing so again in the context of the particular facts of this case. Mr Gosling has referred us to the protections inherent in the trial system. One safeguard was the ability of Mr Barlow to cross-examine the complainants and other witnesses, to which the judge referred. However, the effectiveness of any cross-examination must be dependent on the material to be deployed. In one case there may be ample other material and the significance of missing material may therefore be small. In another case the absence of material which previously existed may be critical.[33]In relation to PF, the defence, as Mr Gosling has rightly submitted, had available to it the contradiction between PF and his mother. It also had the evidence of the appellant himself that he had left the school before DC arrived. In relation to those issues the jury was left with the word of one witness against another. They lacked contemporaneous evidence which would have settled those points. There was no objective evidence to show that PF was wrong. Without that material the effectiveness of any cross-examination was bound to be reduced.[34]We also find it difficult in this case to see how the specific prejudice which we have identified could be nullified or made practically harmless by a "strong direction". A jury could be warned -- and indeed this jury was properly warned -- to consider with special care the risk of memories becoming unreliable through passage of time, but, as the judge also correctly directed them, the jury had to decide the case on the evidence. No general warning could in this case be a substitute for the documents which were missing.[35]This court is always slow to allow an appeal against a conviction where the case has been handled with care by an experienced judge and the jury has reached its conclusions of fact after hearing all the witnesses. Nevertheless, we must stand back from the case and ask ourselves whether we regard the convictions as safe. The case as presented to us may be a little different from the way it was presented to the judge when he read the skeleton arguments which were before him, but we are troubled by the very great delay and its particular consequences in the context of the specific allegations in this case. We have reached the conclusion that we cannot regard these convictions as safe.[36]Mr Barlow advanced a second ground of appeal. We were not impressed by it. However, it is unnecessary for us to say any more about it in the light of the conclusion we have reached on the first ground of appeal. Accordingly, the appeal must be allowed.

THE LORD CHIEF JUSTICE: The appeal will be allowed and the convictions will be quashed. __________________________________

Cited in 5 later judgments