J U D G M E N T

Tuesday 6 ^th December 2016

LORD JUSTICE ELIAS:

Introduction

1. This is an appeal against both conviction and sentence brought with the leave of the single judge.

2. On 25^th and 26^th April 2016, in the Crown Court at Newcastle before His Honour Judge Earl and a jury, the appellant, who is now aged 87 years old, was found guilty of 15 counts of indecent assault, contrary to the Sexual Offences Act 1956. The offences were committed against five different victims when the appellant was teaching at what was then known as an approved school in the late 1960s. In fact, he taught there between 1958 and 1971. Nine of the verdicts were unanimous and six were majority verdicts. The jury were unable to reach agreement on three other counts, including the two most serious counts on the indictment, namely, two counts of buggery, contrary to section 12 of the 1956 Act (counts 6 and 7) and one count of indecent assault (count 18).

3. On 13 ^th May 2016 the appellant was sentenced to 15 years' imprisonment. The sentences imposed were terms of three years' imprisonment on each count. The sentences were ordered to run concurrently on the counts relating to each victim, but the sentence in respect of each victim was ordered to run consecutively with the sentence for each of the other victims, thus giving the total of 15 years' imprisonment.

4. Notwithstanding the appellant's age and the length of the sentence which he faces, it has apparently been thought appropriate that he should be retried on the three counts on which the jury could not agree. In the circumstances we find that extremely surprising and wonder how it can properly be in the public interest given his age and the fact that he is facing a lengthy sentence in any event..

The Background

5. For the purposes of dealing with this appeal, it is not necessary to set out the nature of the offending in any detail. The prosecution case was that the appellant engaged in a campaign of systematic sexual abuse during the 1960s at the Axwell Park Approved School, Blaydon, Tyne and Weir. All of the complainants had been pupils at the school and had been convicted and sentenced in what would now be the Youth Court for various crimes.

6. HB alleged that the appellant took him from his bed at night and made him touch his (the appellant's) penis in the corridor (counts 1 to 3).

7. PH alleged that the appellant enticed him into his bedroom where he used neck ties to restrain him before physically and sexually assaulting him. He also alleged that he had been subjected to buggery twice (counts 6 and 7). Those were the two counts on which the jury were not agreed.

8. RW similarly alleged that he was enticed to the appellant's bedroom and then indecently assaulted (counts 8 to 13), although he did not claim to have been buggered.

9. DG stated that when in public the appellant would rub his groin against him, and laugh and make a joke about it.

10. JH claimed that the appellant originally approached him when he was alone in the football locker room and subsequently came to visit him in his dormitory. He said that the appellant would touch his penis (counts 14 to 17). He also alleged that on one occasion the appellant put a lubricated finger inside his anus (count 18, on which the jury could not agree).

11. In addition to the evidence of the complainants, the prosecution also relied upon a caution which the appellant had accepted in 1998 when he had admitted indecently assaulting a boy under 14 whom he had groomed. He admitted to having touched the boy's penis on several occasions. Later, the appellant alleged that he had been pressurised into accepting the caution.

12. In interview he initially denied any sexual wrongdoing. He specifically denied taking boys to his bedroom or tying them up. Indeed, he said that he was unaware of any sexual abuse at Axwell Park. However, later in the interview he accepted that he had engaged in sexually inappropriate behaviour with respect to other boys when he was at Axwell Park. He said that he would cuddle them and he accepted that he may have touched their groin area. He also admitted that he would tie them up on his bed, but only for the purposes of tickling them. He denied that anything like that had happened with respect to any of the complainants. Indeed, he could not remember them. He said that his memory of this period was very limited, partly because of a bout of meningitis which he had suffered in 1999. His case was that the complainants were unreliable and that they were either telling deliberate lies, or they were mistaken.

13. An issue in the case was why these allegations had surfaced 50 years after the alleged offences occurred. It seems that it was because there had been local publicity in the press in November 2012 about the school and the alleged activities that had gone on there. The local Member of Parliament raised issues of concern in 2013 and encouraged victims to come forward.

14. The credibility of the complainants was, therefore, central to this case. To varying degrees they had all had difficult childhoods, which was the reason why they had ended up in the approved school. Two of them were serving sentences of life imprisonment (one for murder, and one for rape and false imprisonment) when they raised their complaints. Another had been involved in domestic violence and had a history of lying and of making wild and unsubstantiated allegations of improper sexual behaviour against health and Social Services' professionals. These were, of course, matters which were drawn to the attention of the jury in the course of the summing-up.

15. At trial the appellant chose not to give evidence. A report from Dr Singh, a Consultant Neuropsychiatrist, was adduced before the jury. Indeed, the members of the jury took the report with them when they retired. On his behalf Mr Comb submitted that in the light of that report the appellant was not medically fit enough to give evidence. His case was a denial of all the allegations. He also claimed that until an operation in 1968 he had suffered from erectile dysfunction and could not achieve an erection.

16. In the course of his summing-up the judge gave a number of directions, including a Lucas direction on lies, and a section 35 direction about the circumstances in which a jury could draw adverse inferences from the appellant's decision not to give evidence. He also gave a specific direction on cross-admissibility of the counts.

17. Mr Comb, who appeared for the appellant at trial, as he has before us, sought to persuade the judge not to include a section 35 direction, or one on cross-admissibility. However, the judge thought it was appropriate that they should be included. It appears that the judge provided draft directions and invited the observations of counsel. Counsel made certain observations, in the light of which the judge amended his directions. Without discussing them any further with counsel, they were the bases of the directions given to the jury in the summing-up. In relation to the section 35 direction, Mr Comb has fairly said that he suggested some amendments which the judge adopted; but he is not now sure whether he objected to the lies direction being included.

The Grounds of Appeal

18. There are three principal grounds of appeal on which the single judge gave leave, and one on which leave was refused and it is renewed.

19. The first ground of appeal relates to the section 35 direction. It has two limbs. The first limb is whether, in view of the medical evidence, the judge should have given the section 35 direction at all. The second limb is that, even if he were entitled to give it, the way he formulated his direction to the jury was unfair, potentially prejudicial, and did not properly set out for the jury how they had to approach the appellant's failure to give evidence.

20. The second ground relates to the fact that the judge's direction on lies was defective and failed properly to reflect the standard direction which ought to be given in accordance with the well-known case of Lucas .

21. The third ground concerns the direction relating to the bad character of the complainants. It is said that there was a material misdirection at some point and that, in any event, the judge did not properly impress upon the jury the importance of their assessing, in the light of the history of each of the complainants, whether or not their evidence was reliable.

22. The ground which the appellant seeks to renew relates to the issue of cross-admissibility which, it is said, the judge ought not to have included in his summing-up.

23. We will deal with these in turn.

The section 35 direction

24. The effect of section 35(1)(b) of the Criminal Justice and Public Order Act 1994 is that it should not be open to the jury to draw any adverse inference from a defendant's failure to give evidence "if it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence".

25. Mr Comb rightly emphasises that this is not confined to cases where giving evidence would have an adverse effect upon the health of the defendant. It is wider than that and will include cases where it would be unjust to draw an adverse inference because the defendant may not be able to do himself justice when giving evidence: see the observations of Treacy LJ giving the judgment of this court in R v Dixon [2014] 1 WLR 525 at [45] to [46].

26. The meaning of this provision was considered in R v Friend [1997] 2 All ER 101. The offender, who was aged 15, was tried for murder. He had a mental age of 9. An expert gave evidence on the voir dire about his mental ability and concluded that if he was given time to settle down and concentrate, the offender could give a coherent account but he would have difficulties if under stress. The expert had some concerns that the offender would not do justice to himself if he were to give evidence. The defence submitted that, in the light of his evidence, there should be no adverse inference direction under section 35 and that the jury should be told that the failure to give evidence should not count against him.

27. The trial judge disagreed. The judge concluded that, on balance, the accused's mental condition was not such as to make it undesirable for him to give evidence. The defendant had given a coherent account of events in his third interview. The expert had said that he was not suggestible, and the judge was satisfied that the court would be able to ensure that the witness was not put under any undue pressure.

28. There was an appeal to this court, but it was unsuccessful. The court held that the language of the section gives a wide discretion to the judge which can only be challenged on Wednesbury criteria: that is, it must be shown that no judge, faced with the relevant evidence, could rationally have reached the conclusion that it was not undesirable for the defendant to give evidence. The language of the section was simple and clear. It was appropriate for the judge to have regard to answers in interview and to the judge's powers to ensure that the defendant was not put under stress.

29. In Dixon Treacy LJ emphasised the broad discretion which judges have in this context.

30. In Friend there was, in fact, a second appeal following a reference by the Criminal Cases Review Commission in the light of fresh medical evidence about the mental state of the appellant: see [2004] EWCA Crim 2661. The appeal succeeded. The new report identified that the appellant was suffering from ADHD and that he could not have done justice to himself when giving evidence. His understanding was limited, and he was easily distracted. The court accepted – and indeed the prosecution conceded – that had this been known at the original trial, no adverse inference direction would have been given. In addition, the report could have affected directions on other matters. In the circumstances it could not be said that the verdict in that case was safe. However, nothing in the later appeal cast doubt on the general approach of the court in the first appeal to the proper application of section 35(1)(b) or the conclusion that the trial judge had reached in the light of the evidence then before him.

31. In the case with which we are concerned the appellant relies upon the evidence of Dr Singh, a Consultant Neuropsychiatrist with a specialism in acquired brain injury. As we have said, his report was placed before the jury. The doctor noted that the appellant had problems with cognitive functioning which, he said, had "more to do with concentration, reduced psychomotor speed and problems of retrieving information both for short and long term events. He was able to recall recent events better than the remote". However, he added this:

"Despite these cognitive difficulties he did relatively well for his age in the interview and managed to give a good history with some gaps in the recent and remote memories which would reflect the nature of his problems."

That, we think, relates to the interview with the doctor, not to the interview with the police.

32. In view of this report, coupled with the fact that the appellant was having to recollect incidents which had occurred 50 years ago, the defence say, to use the language of the section, that it was "undesirable" for him to give evidence and that a section 35 direction was not appropriate. All the appellant could do was to deny the charges against him. He had reduced concentration, which meant that he would have great difficulty in coping with cross-examination.

33. We accept that there is force in these submissions. We recognise that other judges may have thought it better not to give a section 35 direction in the circumstances. But this is a case where the judge has a wide discretion as to the appropriate position to adopt. In our judgment the judge here was entitled to conclude that this was not one of those cases where it would be undesirable to require the appellant to give evidence. The appellant had been interviewed. He was able to give some explanation as to what had happened so many years ago. He did not allege that he had no memories of events at that time. Indeed, he could remember that he had done nothing untoward with regard to these particular complainants. As Mr Moran, counsel for the Crown, points out, there are a number of issues arising out of the appellant's interview which could usefully have been pursued in cross-examination, including how he knew that he had not committed the offences against these boys and why he had changed his account in interview. There was no reason to assume that he could not have dealt with those questions. The judge would have had to make sure that the appellant's evidence was dealt with sensitivity and to ensure that he was able to understand and respond to the questions; but on the face of it the medical evidence did not preclude this. Indeed, we have indicated that the doctor noted that the appellant managed to give a reasonable history of events in his interview with him.

34. We do not, unfortunately, have the judge's ruling in relation to this matter. Apparently Mr Comb raised with him the section 35 issue before the directions were confirmed. The judge appears to have concluded that in the circumstances it would be appropriate to give such a direction because the report did not suggest that there would be insurmountable difficulties for the appellant because he had given the account in interview and because mitigating measures could, if necessary, be taken to assist him. Those are maters which the judge has referred to in the course of the summing-up, and we take them to reflect his reasoning.

35. It seems to us that this was a perfectly rational approach for the judge to take, notwithstanding, as we have said, that others may have concluded that it would be fairer not to give such a direction. It cannot be said to be Wednesbury unreasonable. It is, indeed, akin to the situation in Friend where, for similar reasons, it was thought appropriate for the defendant to give evidence.

36. It is also pertinent to note that the jury were given Dr Singh's report. They were told that if they felt that the reason for the appellant not giving evidence was because of his medical state (or indeed any other good reason), then they should not hold his failure to give evidence against him.

37. This leads to the related ground which complains about the way in which the judge directed the jury on this matter in the summing-up. The judge gave a lengthy and, for the most part, relatively uncontroversial direction in the sense that he drew attention to the relevant matters which, in accordance with the well-known case of R v Cowan [1996] QB 373, ought to be drawn to the attention of the jury in the context of this direction. In particular, the judge told the jury that there must be a sufficiently strong case to answer independently of silence, and that they had to be satisfied that the only reason for the failure to give evidence was that the appellant had no answer to the charges, or at least none which would withstand scrutiny.

38. It is said that there were three areas in particular where the summing-up on this matter was defective. The first relies upon some observations of the single judge when granting leave to appeal. In order to understand this complaint, it is necessary to set out part of the direction given in the summing-up, where the judge said this:

" It is open to you to reach decisions adverse to [the appellant's] case, but you should only do so, as I say, if you regard the prosecution case sufficiently strong to require an answer from him, and further the only explanation for his silence is awareness that he has no answer to the charges that he faces, or none that would bear examination. The defendant was interviewed at length twice in the last two years. He made certain admissions about his behaviour at the time with some boys, but not these boys specifically in the counts or charges before you, and with at least one other boy and one other adult male in the years since in similar circumstances, and you have those again in the agreed document. You have what he said in interview, and you will weigh what he said in interview, I am sure, in the balance with all of the other evidence that you have heard, because that is what you have got from the defendant and that is all that you have got from the defendant. When you weigh them in the balance you have to decide what you feel to be the reason for his failure to give evidence, and if that reason is a good one, for medical or other reason, then it precludes you from drawing an adverse inference against him for remaining silent ." (Our emphasis)

39. In relation to those passages, the single judge said this:

"However, I am concerned about the terms of the direction which tends to suggest that the jury first have to decide why [the appellant] did not give evidence: 20F. They were then directed that if they 'felt' that the reason was a good one this would preclude an adverse inference. Obviously if they 'felt' that the reason was a bad one, then they would draw such an inference. This is not connected in the summing-up with the passage at 20C which requires them to decide that the only explanation for silence is the absence of an answer to the charges. The way in which those two directions cohere is quite important to understanding them. The jury can only arrive at the end point (no answer etc.) by excluding other explanations because ex hypothesi they will have no explanation from the defendant himself."

As we read those observations, the complaint is that there would be some confusion as to the appropriate test. The jury are first quite properly told that any adverse inference could be drawn only if the prosecution case was strong and if the only explanation for the appellant's silence was that he had no case to answer. In a later passage the jury were told that they must consider the reason why he did not give evidence and if they felt that it was a good reason, then they were precluded from drawing an adverse inference. The suggestion is that the later way of explaining when an inference can be drawn suggests that if the jury feel that the explanation is not a good one, they can draw an adverse inference. We are not sure that that is a necessary inference in arising from the way the direction is framed. But, in any event, we do not think that this constitutes a material misdirection. There is no doubt that this direction could have been considerably clearer. The single judge suggested a much more desirable way in which the judge could have given the direction to the jury. But the issue is not whether this was the most focused or eloquent of directions; the question is whether it fairly represented to the jury how they should deal with the appellant's failure to give evidence. We consider that the judge's direction does do that. It seems to us that it would have been clear to the jury that a good reason for not giving evidence would be any reason "medical or other reason", as the judge said in terms. It would not be a good reason if the only reason was that the appellant had no answer to the case against him, or none which would bear examination. The direction could have been put better and more crisply, but we do not consider that it was a misdirection.

40. Second, it is said that the judge was wrong to point out to the jury, in the context of the appellant not giving evidence, that he was "fit to be tried". Mr Comb properly points out that someone may be fit to be tried and yet it may still be undesirable for him to give evidence, or he may still have good reasons why he does not wish to give evidence. The prosecution agree that this was an unnecessary observation, albeit an accurate one. That is our view also. At the same time, we do not think as a consequence that the jury could possibly have believed that because he was fit to be tried, the jury should automatically draw an adverse inference merely from his failure to give evidence. The jury were told, in effect, that there may be reasons which might explain the failure to give evidence and that it was only if they were satisfied that the failure was because he had no good answer to the case against him that they could properly draw the adverse inference. We think, therefore, that nothing turns on this observation.

41. The third complaint relates to the reference by the judge to the possibility that special measures might have been taken to assist the appellant should that be necessary. The judge said this:

"Counsel cannot advance reasons for silence without evidence. That evidence, in this case, is in the form of Dr Singh's statement. You have been given a copy, as I say, to review. There may have been matters that Mr Moran could have put to assist his memory perhaps, if he had given evidence. Perhaps his memory could have been jogged by certain things being put to him, or indeed measures put in place to help him give his evidence more easily or in more comfort – some form of special measures perhaps, which would have meant that it would have been less difficult for him to give that evidence due to his personal circumstances. That option, of course, is not available because he did not give evidence."

42. The Crown accept that it was not appropriate to make that comment in the absence of some indication of what those measures might be. We think that that is a rather harsh criticism of the judge. It seems to us that the judge simply told the jury that if it proved to be the case that the appellant was having difficulty with remembering matters, as the medical report suggested might be the case, it could be possible to mitigate those problems. It is unfortunate that the judge did not give an indication of what he had in mind, but we suspect that he had in mind the standard ways of assisting a vulnerable witness. For example, he could have ensured that the appellant had breaks, that questions were structured so that they were put simply and cogently, and perhaps the range of cross-examination could have been limited if it was demonstrated that it was causing undue and unfair stress to the appellant. Those were matters which no doubt could and would have been explored with counsel had the appellant chosen to give evidence. We do not think that there was any prejudice to the appellant in that observation.

43. Looking at the direction in the round, although there are points of detail where criticism is justified, as we have indicated, and although it could have been crisper and more effective, we do not think that it gave rise to any material misdirection.

Lies

44. We turn to the ground relating to lies. The relevant lie was what was said by the appellant initially in interview. He denied any improper behaviour with boys, but later in the interview admitted that he had touched boys in sexually inappropriate ways.

45. The Crown relied on the appellant's admissions and not on his lie. Although they did not seek to have a lies direction, the judge obviously thought that he ought to refer to it. It seems likely that neither counsel sought to dissuade him from taking that step. We think that, given that the lie was retracted so quickly, it was not in the circumstances a particularly helpful direction to have given to the jury. It may have confused them rather than assisted them. But at the same time it was a direction which, strictly, the judge was entitled to give. We do not think that it can be said that there was a legal error in his choosing to do so.

46. Where there was an admitted legal error, as the Crown concedes, is in the terms in which the direction was given to the jury. It failed to tell the jury, in accordance with the well-established Lucas direction, that they should consider whether there might be an innocent explanation for the lies, such as embarrassment or shame, and that if they thought that there might be such an explanation, then they should not hold the lie against the appellant.

47. We agree that this was unsatisfactory. But in truth the issue of lies would barely have figured in the jury's deliberations. The fact that the appellant lied initially was nothing like as important as the admissions he did make in interview and on which the Crown relied.

Bad character of the prosecution witnesses :

48. The bad character of the victims was central to the defence case, especially as the appellant had not given evidence. It is plain – and it is peppered throughout the summing-up – that the judge made this perfectly clear to the jury. They must have appreciated that the appellant's case was that the complainants were not reliable. The powerful evidence in support of that was their (to different degrees) chequered history. We do not think that it can fairly be said that the point was not properly put to the jury. There was, however – again as the Crown concedes – a misdirection in the way in which the jury were told to look at the question of lies in relation to one of the complainants, PH. After having recounted aspects of his bad character, the judge said this:

"You must decide in this case if his character as to the offence for which he has been convicted makes him so incapable of being relied upon that his evidence on these matters should be discounted. That is a matter for you to decide on the facts that you have before you in assessing his evidence."

That direction is inaccurate. It suggests that unless the bad character completely destroys the evidence, then the jury should pay no attention to it.

49. However, the judge had properly directed the jury in relation to bad character in a number of other places. For example, on the immediate preceding page in the summing-up, with respect to the complainant HB, he said this:

"Concerning [HB], the subject of counts 1 to 3 on the indictment of indecent assaults, that is three indecent assaults, the defence say, 'Look, here is a man who lied to Social Services. He had to go on a domestic violence perpetrators course because he trashed his family home'. They say these matters are capable of undermining his credibility in this case. If he is prepared to tell lies about having contact with his wife and children, having made an agreement and breached it with Social Services, what else is he prepared to lie about?"

50. On the page immediately following the page where there had been the inappropriate direction, in relation to another complainant the judge said this:

"Again, you must ask yourselves to what extent that previous behaviour may assist you in deciding if his evidence in this case against this [appellant] is true or untrue, credible or unreliable."

51. We agree with the Crown that when the summing-up is considered in the round, and given that the way in which the judge gave directions on these matters was for the most part appropriate, it is unrealistic to think that the jury would have gone away with the impression that they had to ignore bad character unless they were satisfied that it made a complainant's evidence incapable of being relied upon. Common sense would tell them that they must have regard to bad character as part of the overall assessment. Apart from that particular misdirection, that is essentially what the jury were told.

The Cross-Admissibility Direction

52. The ground on which leave was refused was that the submission that the judge was wrong to give a cross-admissibility direction. The judge directed the jury that if they were sure that there was no deliberate or subconscious contamination, then the evidence on one count was capable of supporting the evidence on other counts. The essence of the argument advanced is that there was a real risk of contamination, given in particular the institutional gossip at the time that the appellant was at the school when it is said that it was common knowledge that he was a man with paedophile inclinations, and the fact that it was only as a result of the publicity, and in particular the encouragement to come forward from the local MP, that the complainants gave evidence at the same time.

53. It is said that it is only appropriate to give a cross-admissibility direction in the circumstances if it was clear that it was no coincidence that the various complainants gave their evidence when they did. The submission is that the judge ought to have recognised that they had come forward because they understood that they could make these allegations against the appellant at this time.

54. The single judge rejected this as a potential ground of appeal. So do we. We accept that the circumstances in which the complainants came forward might well suggest that they were not telling the truth and were seeking either to gain compensation or to gain some advantage in the way that they might in future be dealt with the Parole Board who would have to consider whether or not they should be released. So they might have reasons for making these allegations, other than the fact that they were true.

55. However, the judge directed the jury on the burden and standard of proof. In the circumstances we think it was appropriate for him to have left the issue of cross-admissibility to the jury. He reminded them of the appellant's case about the common gossip and told them that they had to bear this in mind when they were determining whether they could properly have regard to the fact that all of the complainants had come forward at the same time.

56. There is no complaint about the way in which the direction was formulated; the complaint relates merely to the fact that the direction was given. But in our judgment it was not improper to give the direction.

57. In all the circumstances, therefore, and having regard to all the matters that have been raised by defence counsel, whilst there are certainly some unsatisfactory features of the summing-up, we are satisfied that they do not materially affect the safety of the verdicts returned by the jury.

58. Accordingly, the appeal against conviction is dismissed.

The Appeal against Sentence

59. We turn to the appeal against sentence. We recognise that this was in many ways a difficult sentencing exercise. It is always hard to strike the balance between a proper sentence for an offender who commits offences of this nature, whilst having regard to his age and health.

60. The judge quite properly emphasised the significant breach of trust in a case such as this in which a school master abused pupils. That is all the more so in circumstances where they were compulsorily at the school because of their own misbehaviour.

61. In his sentencing remarks the judge went through the offences in relation to each and every one of the complainants. He explained that he would have increased the sentence by two years, but for the principle of totality.

62. In our judgment, with all due respect to the judge, we think that this sentence is far too high. In that context it is important to bear in mind that these were non-penetrative acts of assault.

63. The guidelines are not straitjackets. They do not prevent a court taking a humane view of somebody in the position of the appellant. He is now 87 years of age. His health is far from good. He has had to pay the price for something that he did 50 years ago. We think that, standing back and asking how the public interest is properly served, striking a balance between the need to punish the appellant for his past offending, but recognising that he is approaching the end of his life, that the appropriate sentence in a case of this nature would have been one of eight years' imprisonment. Quite independently of his health and age, we do not think that the judge gave proper consideration to the issue of totality. . But those mitigating factors must be given particular weight, it seems to us, in a case of this nature.

64. Accordingly, we quash the sentences totalling 15 years' imprisonment and we substitute for each set of offences against each complainant concurrent terms of eight years' imprisonment, all to run concurrently with each other. The total sentence will, therefore, be one of eight years' imprisonment.

65. To that extent the appeal against sentence succeeds.