Anderson, R. v [2012] EWCA Crim 1785

[2012] EWCA Crim 1785

Case No 2011/04796/C3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 20 July 2012

The Strand

London

WC2A 2LL

B e f o r e:

LADY JUSTICE HALLETT DBE

MRS JUSTICE COX DBE

and

MR JUSTICE HADDON-CAVE

Between

R E G I N ACrown

- v -

Between

STEPHEN ANDERSON

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Mr M D Barlow appeared for Applicant

Judgment

[1]On 2 August 1995 at the Luton Crown Court before His Honour Judge Rodwell QC and a jury the applicant, who is now in his mid-sixties, was convicted by a majority of the jury of indecent assault on a male. He was sentenced to three years six months' imprisonment. His trial counsel advised against an appeal against conviction, but did advise an appeal against sentence which failed. He renewed his applications for an extension of time (approximately sixteen years), for leave to appeal against conviction, and for leave to call a witness (Professor Conway), after refusal by the single judge.

[2]The reason for the delay of sixteen years since the trial in making this application is set out in a statement from the applicant's solicitor dated 8 August 2011. The applicant applied first to the Criminal Cases Review Commission and received a response in 2002. He approached his present solicitors in 2009. Professor Conway, upon whose report the applicant had intended to rely, agreed to act but could not provide a report until October 2010. Counsel (Mr Barlow) was instructed to analyse the material on 7 October 2010. For reasons that remain unexplained, his advice was not dated until 3 August 2011. Mr Barlow's solicitors have not attended this morning. Mr Barlow has attended pro bono. We have no further information from Mr Barlow or his solicitors as to why the various delays have occurred.

[3]The facts are as follows. The complainant, to whom we shall refer as "C", was 9 years old and a new pupil at the Royal Caledonian boarding school. He was there from about September 1989 until at least 1992. The applicant was one of those responsible for C's pastoral care. One night C was crying in his bed and this fact was brought to the attention of the masters. C was taken into the applicant's room, where he fell asleep in a chair. He woke much later on the applicant's bed. When he woke he found himself on his side facing the window. He claimed that the applicant was behind him with his hand under his pyjamas, rubbing his penis and stroking his legs. He recognised the applicant from the smell of nicotine on his breath. C froze. After a while the applicant stopped and C was carried back to his own bed in the dormitory. The prosecution alleged that this behaviour happened more than once during the months of September, October and November 1989. Each time the applicant removed the complainant from his bed in the dormitory, and took him to the applicant's own room on the pretext of comforting him for home-sickness. Sometimes the assaults of which complaint was made consisted of rubbing C's bottom rather than touching his private parts. C could not remember how many times this occurred, but he specifically remembered one other occasion when he wore boxer shorts rather than pyjamas.

[4]C complained to a Mr Weiner at the school. Mr Weiner told him to tell the padre. C also told his parents that he had been assaulted. The padre visited the family at home four or five days later and said that he had spoken to C. The purpose of his visit was to persuade the family that it would be in C's best interests if no fuss was made and the matter not reported to the police. He led them the family to believe that the applicant would be sacked. The headmaster did subsequently give the applicant notice, but the applicant insists that this was because of a personality clash rather than allegations of abuse. He left the school on 22 October 1989.

[5]A man called Meredith, who had been the applicant's assistant and whom C also remembered, took over the applicant's job. A separate investigation (by a police officer looking into Meredith’s behaviour) uncovered C’s complaint.

[6]C made a statement in October 1994 and the applicant was arrested in November 1994. In interview he denied the allegations, although he accepted that there were circumstances in which C had been alone in his room at night. He asserted that nothing untoward had ever happened with any other child. However, the prosecution called another pupil, "A", who claimed at trial that he had also been invited to share the applicant's bed when he had gone to the applicant complaining of feeling unwell.

[7]At trial the applicant gave evidence in accordance with his interview. He could not rely upon the evidence of the headmaster Mr Pope and his deputy, Mr Watts, because they were themselves standing trial the following year, in June 1996, on charges of failing to act on concerns and to prevent abuse at the school. They were acquitted. However, both C and his parents gave evidence at their trial.

[8]This application was launched on the basis that the first ground of appeal would be fresh evidence from Professor Conway and from the 1996 trial of Pope and Watts. However, somewhat belatedly Mr Barlow decided to abandon his reliance upon the evidence of Professor Conway.

[9]Although not now relevant to this appeal we feel we should mention that this is not the first time that Mr Barlow and his instructing solicitors have attempted to overturn a conviction on the basis of Professor Conway's evidence as to the reliability of childhood memories. His reports are controversial. Only once to our knowledge, in an "unusual" case, has this court accepted his evidence (see R v JH and R v TG

[2006] 1 Cr App R 10

). However, the court was unaware at that time of significant criticisms of Professor Conway’s methodology which have led to the court’s declining to receive his evidence (see R v S

[2006] EWCA Crim 1404

, R v E

[2009] EWCA Crim 1370

and R v H

[2011] EWCA Crim 2344

). In the light of those decisions, we have our doubts as to whether JH and TG, which was restricted very much to a specific set of facts, would be decided the same way today. Professor Conway may wish to consider amending his CV in which, we note, he mentions only R v JH and r v TG.

[10]We turn to the grounds of appeal as now advanced which focus on the 1996 trial. The first hurdle in the applicant’s path is providing a satisfactory explanation for the 16 years delay in putting the so-called fresh evidence forward. In truth no real attempt was made. Nothing daunted, Mr Barlow pointed to what he claimed was a catalogue of "changes in the evidence" of C and his parents about the alleged abuse and the detail of C’s complaints.

[11]The remaining three grounds of appeal consist of criticisms of the judge's summing-up. Mr Barlow accepted that at the time of the trial the judge's directions were entirely appropriate on the evidence as given. The sole basis for his criticism was that in the light of the evidence at the subsequent trial, the directions were “wrong”: a novel proposition.

[12]Ground 2 relates to the direction given by the judge on what was alleged to be a specimen count. Mr Barlow submitted that this alone renders the conviction unsafe. At the applicant's trial the Crown alleged indecent assault on at least two separate occasions. On his reading of the complainant’s evidence to the Pope and Watts jury, there was only one actual “indecent assault”, Mr Barlow argued, therefore, that the judge’s direction on specimen counts was otiose and dangerous.

[13]Ground 3 is a criticism of the judge's direction to the jury on the recent complaint evidence, which he accepts, was accurate at the time. In the light of the material from the second trial, Mr Barlow suggested the recent complaint was not one of a sexual nature. C complained of one incident only, he did not complain of his penis being touched until much later. His recent complaint was simply that he had been "touched down below". On that basis, Mr Barlow submitted, there was no evidence of fresh complaint and no need for a direction.

[14]Finally, Mr Barlow referred us to the evidence of A. In the course of his summing-up

the judge directed the jury:

"A's evidence was called and this is important evidence because if you accept this to be the truth it would indeed then lend confirmation to C's story of what happened to him. Let me tell you that the [applicant] disputes this in part."

Mr Barlow had originally intended to argue that this direction was plainly wrong and that the evidence was inadmissible. However, having seen what the single judge said in refusing leave, he changed his mind. He accepts now as he should have accepted all along, that the evidence was clearly admissible to rebut the defence that, despite many years caring for young boys, no-one else had ever complained. It was clear from the evidence of A that a complaint as to the applicant's behaviour was made. Nevertheless, under this head, Mr Barlow sought to argue that the judge failed to give the jury a full direction highlighting the “issues of contamination and/or collusion". This was said to be a serious non-direction which rendered the resulting conviction unsafe. Unfortunately, he was unable to put before us any evidence of collusion or contamination to justify the direction.

[15]In summary, Mr Barlow claims, as he has claimed in other cases, that the applicant is a victim of a "miscarriage of justice" because the allegation was investigated and prosecuted when "the dangers of such historic investigations into care homes, schools and other youth organisations were not recognised". For those of us in practice at the time, this came as something of a generalisation.

[16]In his very carefully crafted observations, the single judge, when refusing leave, said:

"There is no valid explanation of the delay. You cannot wait for many years to see if there is a change in attitudes or procedures and then -- substantially in reliance upon evidence of an expert (whose evidence has been of doubtful assistance in other cases and who has no knowledge other than of his reading of papers of the circumstances of your case) -- to seek to upset a verdict which was obtained in accordance with the proper trial procedures at the time. Even after you determined to try and mount an appeal, there has been delay in obtaining the evidence of the expert and the advice of counsel. I see no merit in your application and am satisfied that there is no basis for extending time. Nevertheless, in case there was a good basis for considering that your conviction was unsafe, I have spent several hours upon your papers and you do not begin to persuade me that you have any valid ground of appeal. You rely principally upon the wish to call Professor Conway. I consider that much of his evidence would be inadmissible for reasons which the Court of Appeal have given in earlier cases when refusing permission to adduce his evidence; otherwise it is of marginal value. A jury can well understand from their own experience how a child's memory may be coloured. As to the evidence of [C], your complaints of inconsistency and the judge's inadequate summing-up are not made out on the material which I have read. The jury was well aware that there was a real issue as to the reliability of his memory and the extent to which he had said (to that point) inconsistent things. This ground also lacks merit. You rely upon what you say are inconsistencies in his evidence at the later trial. These are more supposed than real. I fail to see how the conviction can be considered unsafe by the judge's giving a specimen count direction. Evidence of complaint (ground 3): The judge gave a perfectly adequate direction in line with directions given at the time; your secondary submission that the evidence at the later trial undermined the direction given does not stand scrutiny. There is nothing in his evidence which (had it been given at your trial) would have made the judge's direction inappropriate. Evidence of [A] (ground 4): As the respondent contends, it must be the case that this evidence was called to rebut the defence and the direction given was appropriate. I should add this. As I have read into these papers, I have been able to see for myself what a strong case this was and you do not begin to mount an argument that the conviction was unsafe."

We agree. We, too, have spent many hours upon these papers and we have yet to see any hint of an arguable ground which can properly be advanced.

[17]There seems to be an increasing trend for advocates who were not instructed at trial to scour a summing-up in an ancient case to look for possible failings. It should be remembered by those who indulge in minute forensic examination of a summing-up that the test for this court is safety of the conviction. It is highly unlikely that a conviction will be overturned sixteen years after the event on the basis that the judge directed the jury in a particular way, with the agreement of the parties and in accordance with proper and fair practice at the time, unless, of course, the directions were plainly wrong.

[18]It is also highly unlikely, given the state of medical opinion that this court will receive the evidence of the kind put forward by Professor Conway in the near future. Yet, according to Mr Barlow’s solicitor, “substantial funding” has been obtained from the Legal Services Commission to advance this appeal. Mr Barlow cannot help us on what that money has been spent, save that part has been spent upon the report from Professor Conway. Any lawyer attempting to obtain public money with which to instruct experts has a duty to reveal to the funding authority decisions of the Court of Appeal Criminal Division which suggest such evidence may not be received.

[19]For all those reasons we are satisfied that nothing has been put before us which, even arguably, would provide any grounds for concluding that the conviction is unsafe. The applications are refused. ____________________________