“Um, I was in my bedroom and Michael opened my door and he said to Iain, who’s stood right behind him, ‘You could, you could do whatever you want to her,’ and shut the door behind, behind it.”
“I knew of his name … only because, like, I’d heard Karen and Michael speak about him … I hadn’t seen him before.”
“Iain did, he pushed me onto the bed and he took my clothes off and I remember him being the strongest person. I said, ‘I don’t want, I don’t wanna do this’. He just, he just told me to shut up (cries). I remember [ML] walking back, back in and he said, ‘I’ll have a go after you’.”
“I saw her in the same way as I saw [his other siblings], the same way as I see my own children today … This is my sister. I wouldn’t have sex with my sister.”
“No way … No I wouldn’t do that to my sister. I wouldn’t do that at all. I wouldn’t do that to my daughter. I wouldn’t do that to anybody, no way. I would rather kill than do that to anyone, to my sister, or to even any member of my family.”
“At the time he and [ML] went out drinking once or twice a fortnight and occasionally became involved with females they met whilst they were out. Each of them were having affairs at the time and covered up for each other with their respective partners. However, he was only aware of meeting [AB] on a few occasions and never became intimate with her in any way. Most of the times he saw her were when he was visiting [ML’s] address at the same time as he was. There were always a number of other people around at the time. The only incident that he is aware of happened at a family party in Bridport, possibly at the home of [ML’s] mother. There were a large number of people there when [ML] asked him if he wanted to come upstairs and have fun with some girls up there. He went upstairs and in a bedroom saw two or three females lying dressed on a bed. One of them was [AB] and [the Claimant] felt uncomfortable. He immediately left the room where he spoke to [ML’s] mother who was outside the door. He does not believe he has seen [AB] for about 10 years.”
“I can’t believe what is being alleged against Michael and his old friend Ian. I don’t even believe that Ian even really met [AB] and if he did it would have been down at our local pub.”
“Firstly, any allegation of rape is a very serious matter and has to be dealt with as such. In your case we have no legal issues because it is a simple factual dispute. Your position is you can’t remember ever meeting the girl and you certainly did not go to the house where the incident took place and you certainly have not raped her or had sexual intercourse with her in any way.”
“Statement made by KL … does not corroborate [the Claimant’s] account that he met [AB] a couple of times at their address whilst she was present.”
“To a degree we can distance ourselves from [ML]. The complainant’s allegation against [the Claimant] is somewhat vague. The complainant cannot remember whether the offence took place in August 2002 or 2003.”
“[The Claimant] … believes the only time he met her was at a house party and not as she describes. He says that he can remember the party in fact the mother apparently flashed her breasts at him unfortunately though he cannot remember the address where the party took place and from recollection he believes the party was for someone’s birthday, believe it was step-sister’s.”
“He believes he met him after the father [Mick L] died and to help with this the timeline refers to him dying in August 2002. [The Claimant] believes that he met ML in August 2003. He met him at karaoke and they sang a duet and [ML] dedicated it to his father. The party, he thinks, was 12 months later. As to her description of him, [the Claimant] instructs that he is the same build now as he was 10 years ago. He has a Scottish accent he is 6’ 1” and is NOT white.”
“fair to say an associate rather than a good friend.”
“[KL] told me and Sarah at March of this year. [AB] made an allegation she had been raped when still at school at Bridport … - guy lived round corner Fireman. Intimate with him – he went back to house when parents [unclear] – had sex with him and then left. Felt been taken advantage of. Don’t know if reported to police.”
“[ML was subject to a full care order in November 1988]. Mr Watson was a care worker having it seems some responsibility for [his] case. The Watson document was a one page document signed by Mr Watson recording on the face of it admissions by [ML] of sexual activity with his brother and sister [this was his full sister and for obvious reasons not AB] … Mr Watson was not available and despite efforts could not be found. The Watson document was however referred to in a witness statement dated7th February 2013 by a Mr Arthur Ruby who had been a social worker involved in [ML’s] case. The contents of the Watson document are double hearsay …”
“HHJ Jarvis rules that on what he has had submitted to him he finds no propensity or false impression proved but allows the Crown to make further investigations.”
“RB clarifies that IT did not meet ML until after [ML’s] father had died in August 2002. IT confirms that it was around Xmas 2002 that they met. IT wishes RB to know that [AB] had an affair with a fireman who had sex with her but then said that he could not commit to her and left. Could this be the man that she describes in her interview? RB explains that we have a fine line to tread in this case. We are saying that it was not us and that is it. We do not know why [AB] is saying what she says, it may be to bolster her case against ML. We shall have to wait and see what KL says in the witness box. RB explains that it will be necessary to tread carefully in cross-examination with [AB] because we do not want to alienate the jury.”
“Counsel for ML objects. RB for Torrance unable to object. HH rules that the jury shall be discharged and there be a retrial.”
“9:55am Conference. Counsel advised that the Prosecution had found very little extra, it is basically the same as last time. It is whether the Judge will allow the evidence in. The effect upon client if it was allowed in would be possible guilty by association. The same hurdle as before. IT wished to advise Counsel that he had set up his own cleaning business, employing staff with a van and uniforms. Better that the jury should hear about his work rather than being unemployed. End 10:05 … Case resumed 12:11 in absence of the jury. [The Crown] makes a bad character and hearsay application in respect of ML. [Co-defendant’s counsel] argues against the applications. Miss Bradbury makes no submissions. HHJ Jarvis grants the applications as per the Watson document.”
“Judge: Thank you. Anything you want to say on this Miss Bradberry? I do not think that it affects you, but – Miss Bradberry: No your honour, it doesn’t.”
“I am slightly concerned, because I take on board what it is that [Counsel for ML] says about the last two extracts of the interview with the police, because where on the one hand the sort of sexual misconduct which is revealed [the transcript contains an error] in the Watson document could, if the jury chose, have resonances in relation to the earlier pages, there is nothing in the Watson document which resonates with the introduction of a friend, the door of the complainant’s bedroom and introducing the friend to the complainant and I am uneasy about pages 193 and pages 204 and I may invite further submissions as to how [the transcript contains an error] the Court should address that.”
“15th July 2013 3:55pm Conference to discuss points made. IT anxious that RB brings out various issues in her closing speech. RB assures him that she has all the points ready. Ends 4:00pm17th July 2013 9:15am. Liaise with RB Conference. The notes are gone through one by one and the amended proof of evidence is once again amended.”
“I’ll say probably about three times ever. Q: And where, if you can remember, when did those occasions take place? A: Well, I know I certainly, when I used to pop in to see [ML] just after I met him, there’d be occasions there. His family would be there. I’d pop in for a quick cup of tea. I think I met her once or twice on those occasions whilst there was family round. And the last time I met her was a sort of party that [ML] invited me to. I’m sure he said it was a birthday party, and that was at his step mum’s house, DD, and that was probably I would say, some time in 2003.”
“did [the Claimant] know about [ML’s] court case and sentence?”
“Matters were explained to the [Claimant] in the cells afterwards. He was gracious and expressed gratitude for representation during the trial. He will go to Dorchester prison. I phoned his partner afterwards at his request. … I advised that trial counsel would advise on appeal against conviction in due course (at this request) but put him on notice that grounds could only be advanced if in the opinion of trial counsel they were properly arguable.”
“At the outset of this matter he indicated that KL … had indicated to him that the complainant had been raped or sexually assaulted by another man around about the same time as the alleged offence.”
“I do recall that after the jury had been sent out that [the Claimant] mentioned that KL did say something about [AB] having complained to her that around the time she disclosed to her that she had been raped.”
“Grounds of appeal must be drafted with greater particularity than those demonstrated in your particularised grounds of appeal at page 3 of your application. No valid or arguable criticism can be made of the judge’s direction on identification nor can it be argued that the judge should have ordered severance. I refer the applications to extend time and to call fresh evidence to the Full Court. These applications should be listed together with the appeal of ML. In the event of [ML’s] appeal succeeding you may wish to draft a ground of appeal contending that the applicant was adversely affected by such an error on this direction as the Court may find in the case of [ML].”
“For the Watson document to be properly admitted to correct any impression given by L in interview … the judge would have to be satisfied that a reasonable jury could conclude beyond a reasonable doubt that the supposed confessions were true. The judge acknowledged as much in his summing-up, but in our judgment that is in reality an impossible position on the facts here. Given all the circumstances which we have summarised, it cannot be said that a reasonable jury could conclude to the criminal standard of proof that the contents of the Watson document were true. The summing-up moreover falls short of making it clear what use precisely the jury might make of this material.”
“The cases against the two were inextricably linked. The Crown case against T, as we have recited, was that L took him into the complainant’s bedroom and in effect invited him to have sex with her. The admission of the Watson document against L could clearly have weighed with the jury and induced them to accept such a scenario or made it more likely that they would accept such a scenario. L’s encouragement of T was integral on the facts to the Crown’s case against T. The point is perhaps emphasised by the complainant’s own evidence which the judge noted … that L said to T, ‘I’ll have a go after you’.”
“No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably wellinformed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. … If subsequently a barrister is sued by his own client for negligence on what he advised or did in the particular case, he has the protection that the judge before whom the action for negligence against him will be tried is well qualified, without any need of expert evidence, to make allowance for the circumstances in which the impugned decision fell to be made and to differentiate between an error that was so blatant as to amount to negligence and an exercise of judgment which, though in the event it turned out to have been mistaken, was not outside the range of possible courses of action that in the circumstances reasonably competent members of the profession might have chosen to take.”
“The barrister is under no duty to be right; he is only under a duty to exercise reasonable care and competence. Lawyers are often faced with finely balanced problems. Diametrically opposite views may and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he has been negligent.”
“63. The circumstances in which barristers and solicitors have to exercise their judgment vary enormously. On the one hand decisions have frequently to be made in court with little time for mature consideration or discussion. That is a situation familiar to any advocate. It is one in which it may be very difficult to categorise the advocate's decision as negligent even if later events proved it to have been wrong. Or in a very complex case it may be that in advising settlement too much weight is given to some factors and not enough to others. Here again a difficult judgment has to be made; and unless the advice was blatantly wrong, i.e. such as no competent and experienced practitioner would give it, it cannot be impugned and the prospects of successfully doing so would seem very slight.”
“Any judge who is invited to make or contemplates making an order arising out of an advocate's conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate's conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order against him.”
“The courts can be trusted to differentiate between errors of judgment and true negligence. In any event, a plaintiff who claims that poor advocacy resulted in an unfavourable outcome will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome.”
“The courts have been careful to point out that advocacy is a difficult art and that no advocate is to be regarded as having been negligent just because he has made an error of judgment during the conduct of the case in court. … While the advocate owes a duty to his client, he is also under a duty to assist the administration of justice. The measure of his duty to his client is that which applies in every case where a departure from ordinary professional practice is alleged. His duty in the conduct of his professional duties is to do that which an advocate of ordinary skill would have done if he had been acting with ordinary care. On the other hand his duty to the court and to the public requires that he must be free, in the conduct of his client's case at all times, to exercise his independent judgment as to what is required to serve the interests of justice. He is not bound by the wishes of his client in that respect, and the mere fact that he has declined to do what his client wishes will not expose him to any kind of liability. In the exercise of that judgment it is no longer enough for him to say that he has acted in good faith. … He must also exercise that judgment with the care which an advocate of ordinary skill would take in the circumstances. It cannot be stressed too strongly that a mere error of judgment on his part will not expose him to liability for negligence.” 139.In the opinion of Lord Hobhouse (at p.737G-H): “The standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error was one which no reasonably competent member of the relevant profession would have made.”
“51. The difficulty in cases such as the present, however, is that the task of the judge was not to apply facts, as found, to the legal landscape as he or she found it to be but, rather, to exercise an evaluative judgement in relation to the thought processes and professional assessment of lawyers engaged in the extremely difficult task of the moment, namely how to deal with the issues raised by the changed dynamic and risks of success or failure in a case which was then, immediately, due to be tried. 52. In that regard, the fact that another solicitor or member of the Bar would have acted differently is not to the point. As Sir Murray Stuart-Smith said, the relevant advice must have been such that no competent and experienced practitioner would give it. Mr Willems accepts that, as a consequence, the bar which he must overcome is set high.”
“If a client could sue his lawyer for negligence in conducting his litigation, he would have to prove not only that the lawyer had been negligent but also that his negligence had an adverse effect upon the outcome. This would usually mean proving that he would have won a case which he lost.”
“I discussed it with the Claimant and we agreed that the evidence at this stage was of very poor quality, was vague and contained hearsay. I was of the view that it would not be admitted on the grounds of propensity because the allegations were of a very different nature, but it might be used to correct a false impression. On that limited basis, impacting upon ML alone, I did not consider that it would impact the case against the Claimant, with appropriate directions. Prior to the start of T1 it was not clear whether it would be admitted by the judge, but I thought that it was it adduced, it might be another factor to help to distance the Claimant from ML …”
“[15] … If the admission of the evidence of the bad character of one Defendant would unfairly prejudice the fairness of the trial against the others then either that evidence ought not to be admitted or the judge (under s. 78 PACE 1984, if not under the 2003 Act) could rule the Defendants whose character is not impugned should be tried separately by ordering severance. [16] But, in our view, admitting the evidence of X's previous conviction would not cause unfairness, provided, of course, that the jury is properly directed about that evidence. It is true that it made the defence of L and particularly M more difficult. Once it is accepted that it was important evidence against X since it showed propensity to force others, more vulnerable than her, to engage in sexual activity in her presence, it made it much more difficult for M or L to persuade the jury that the Complainant may have been consenting. But there are many cases of joint criminal activity involving a number of Defendants where the evidence against one of them is far stronger than against the others. There are many such cases where once the jury are sure that one of the Defendants is guilty it becomes far more likely that they will be equally convinced of the guilt of the others. This case, in our view, is no different. [17] Once the jury was sure of the Appellant X's guilt then it was far more likely, although not inevitable, that they would be convinced of the guilt of the other two. But, even though the two Appellants were unaware of X's previous conviction, we see no unfairness in the effects of X's previous criminal activity. It is trite to observe that the trial must be fair to both the prosecution and the defence. It would have been unfair if the jury had not been told of X's previous behaviour, so similar was it to her behaviour in this case. It would have been unfair on the prosecution if all three Defendants had not been tried together …”
“The interests of justice are best served by the ventilation before a jury of allegations which find a common thread, defendant to defendant, event to event, or by reference to other factors, during a trial whose process can protect a defendant from avoidable injustice … No body of learning is necessary to establish that robust directions are in general enough to preserve the integrity of the trial process. Miah[2011] EWCA Crim 945 underlined that very exceptional circumstances set the high bar for a successful severance application…”
“When the Judge suggested, at the end of T1, that the trial should be adjourned and the Jury discharged, I did not believe that objecting would be in the best interests of the Claimant. At this point, the Judge was suggesting that he was going to admit the Watson evidence in order to correct a false impression, but was unhappy with the quality of the evidence. He was concerned as to whether there was more substantial evidence which the Prosecution had not been able to obtain or evidence which undermined what the Crown had discovered this far. Additionally, if the prosecution were unable to produce any better evidence then the Judge might not have been inclined to admit it … We thought that if we continued with the trial, the evidence might be admitted by the Judge in its current form; whereas if it was adjourned, there was a chance the application might fail …”
“I had a discussion with the Claimant about whether we should call Lisa Welsh to give evidence. The Claimant inferred that he didn’t know Lisa Welsh, and knowing the layout of the property he was of the view that she wouldn’t have heard anything. Therefore there was no point in trying to locate and call her.”