Howeson, R v

This appeal concerns offences to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Consequently, no matter relating to the complainants (to whom we shall refer by the initials "A" to "J") shall be included in any publication if it is likely to lead members of the public to identify them or any of them as the victims of any of those offence. This prohibition shall last during their respective lifetimes, unless it is waived or lifted in accordance with section 3 of that Act.

On 22 December 2017, in the Crown Court at Bristol (His Honour Judge Horton and a jury), the Appellant Charles Howeson was convicted, on a variety of unanimous and majority verdicts, of ten counts of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956. The jury could not reach a verdict on a further charge of attempted buggery or, in the alternative, indecent assault. In June 2018, he was re tried on those counts and acquitted. On 22 June 2018, he was sentenced by Judge Horton to an aggregate sentence of seven and a half years' imprisonment for the matters for which he was convicted.

The Appellant now appeals against conviction, leave having been granted by Sir Alistair MacDuff sitting as a judge of this court. The Appellant also applies for leave to appeal against sentence, that matter having been referred to the full court by the Registrar.

The Appellant was born on 27 November 1949. He has a wife and three children, and he was previously of good character. He served in the Royal Navy for over 24 years until 1990, reaching the rank of Commander. Subsequently, in the early 1990s, he was the Executive Director of the Groundwork Trust, a charity. He was later Chairman of First Great Western and Southwest Regional Health Authority, and a Director of Coutts Bank. He held a number of public posts including President of the Plymouth Area Business Council, Chief Executive Officer of the Britannia Association (an association of alumni of Britannia Royal Naval College, Dartmouth), and a founder of the charity the Plymouth Drake Foundation. He was appointed an Honorary Commodore of the Royal Naval Reserve.

The charges arose out of complaints about his conduct during his time in the Navy and whilst working at Groundwork. The complaints were all made over twenty years after the alleged incidents occurred. The prosecution case in relation to the charges was briefly as follows.

On 9 December 1985, A was summoned to the Appellant's cabin at night. The Appellant told him that they were going to have a man overboard drill. They both went to the boat deck to fetch a life sized drill dummy. A led the way with the Appellant behind him. As they climbed a set of ladder stairs, A felt the Appellant touch the back of his legs and his lower back. When they reached the boat deck, the Appellant put one arm round A's shoulders and, with the other hand, grabbed at A's genitals over his clothing. A protested, and they left the boat deck. The indecent attack was sustained, lasting twenty minutes or more. A immediately complained to his Petty Officer, and was taken to the Master at Arms who was responsible for discipline on the ship. He made a statement setting out his complaint, and the allegations were investigated by the Royal Navy Special Investigations Branch; but no further action was taken as a result of the investigation.

The Appellant was found guilty of COUNT 1 and sentenced to 24 months' imprisonment on this count.

COUNTS 2 and 3: B was a young man under 21 years of age. In 1987, the Appellant bought Smallack House near Plymouth. Counts 2 and 3 involved an allegation that, late that year or in 1988, whilst teaching B how to shoot an air rifle in a field alongside Smallack House, the Appellant pulled down B's trousers, indecently assaulted him and attempted to insert his penis into B's anus. B said that this took place during a range of dates before the Appellant had bought the house.

It was these two charges upon which the first jury were unable to agree a verdict, and the second jury acquitted. We will come on to deal with grounds of appeal shortly; but, in short, Mr Daniel Janner QC for the Appellant submits that the summing up in that second trial, by the same judge, was very different. It was shorter and fairer. The Appellant was acquitted. Mr Janner submits that, had the summing up in the first trial been fair, he would have been acquitted of all of the charges.

The Appellant left the Royal Navy in 1990 and became a successful businessman and community leader.

COUNTS 4, 5 and 6: These counts related to another young man, C. In 1994, C worked for a car valeting company which cleaned the Appellant's car. C had previously been in trouble with the police, and his erstwhile employer gave evidence at trial that C was a Walter Mitty character and was not trustworthy. The company was struggling, and C was laid off. The Appellant said that he would pay him to continue to clean his car and do odd jobs. To enable C to get to his house to work, the Appellant paid £400 for the repair of his car when it broke down.

In the summer of 1994, on three occasions, the Appellant asked C to inspect some damp on the roof of the pump house. On each occasion, C climbed a step ladder with the Appellant behind him and the Appellant brushed his arm. As C reached upwards, the Appellant rubbed his hand or arm over C's penis over his clothing. On the third occasion, he also pressed his erect penis into C's buttocks. After that incident, C left the property and did not return.

The Appellant was found guilty on each count by a 10:2 majority, and was sentenced to 18 months on each count concurrent with each other but consecutive to the other sentences.

The rest of the charges concern the period in the early 1990s when the Appellant was Executive Director of Groundwork, a charity based in the Old Naval Dockyard at Plymouth which undertook restoration and thus provided work opportunities for those having difficulties in finding a job. Part of the restoration work was on Drake's Island, a neglected island with a series of underground tunnels which was formally part of the Plymouth Old Port defence arrangements. The complainants were all young men working at the trust.

COUNT 7: D had mental health issues as a result of a head injury sustained as a child. In 1992, the Appellant asked D to accompany him to Drake's Island in order to find a switch in the tunnels there. They went to the island by boat, and the Appellant let D steer. Whilst he was doing so, the Appellant stood behind him with one hand on his shoulder and the other rubbing the inside of his thigh. D moved that hand away. Once inside the tunnels on the island, the Appellant told D that they needed to find some cables and D was to get onto the Appellant's shoulders to do so. D did as he was told, and put one leg over the Appellant's shoulder. The Appellant again rubbed the inside of his thigh. Then, as D reached up to the cables, the Appellant rubbed his genitals over his clothing. The Appellant repeated this when he lifted D in another part of the tunnel.

The Appellant was found guilty of this count by an 11:1 majority, and a consecutive sentence of 18 months was imposed.

COUNT 8: E was a volunteer with an organisation that worked in partnership with Groundwork. The Appellant took him too to the tunnels on Drake's Island. In the tunnels, the lights went out and the Appellant told E that he would lift him up so that E could get the lights working again. The Appellant put his arms round E's middle and lifted him up. He then put his hand inside E's pants and touched his penis and testicles. He pulled the hand away, but the Appellant put it back down the pants again and took hold of E's genitals. E could feel the Appellant's erect penis behind him. E struggled free and ran from the tunnel.

The Appellant was found guilty by an 11:1 majority of this COUNT, and was sentenced to 15 months' imprisonment consecutive to the other sentences imposed.

COUNT 9: This involved a similar alleged incident. F was taken by the Appellant to Drake's Island ostensibly to check cabling. Inside the tunnels, the Appellant stood behind F and lifted him up several times to check that the cables were fastened to the ceiling. In doing so, he touched F's buttocks several times; and in the last lift put his hand into F's trouser pocket and cupped his testicles.

The Appellant was found guilty by 11:1 majority, and a sentence of 3 months consecutive was imposed.

COUNT 10: G had learning difficulties. He too was employed by Groundwork. The Appellant asked him to accompany him to a shed in order to check the top of a wall, and the Appellant lifted him up from behind placing his hands on G's hips. The Appellant then pulled G towards him, and G felt the Appellant's erect penis against his buttocks. The Appellant attempted to touch G's penis, but G pulled away.

The Appellant was found guilty by a 10: 2 majority, and was sentenced to 8 months concurrent with the other sentences.

COUNT 11: H worked in Groundwork's media team. The Appellant asked H to accompany him to a warehouse to see how the space there could be used more efficiently. Once there, the Appellant asked him to look at something above head height and lifted him up at the knees, several times, to do so. On one occasion, he squeezed G's genitals through his clothing.

The Appellant was found guilty by a 10: 2 majority and a sentence of 12 months was imposed consecutive to the other sentences.

COUNT 12: J was also employed at Groundwork. The Appellant took him to the tunnels on Drake's Island as he said he wished to discuss a work opportunity with him in private. The lights went out whilst they were in the tunnels, and the Appellant told J that he would have to lift him up so that he, J, could switch the lights back on. As he lifted him up, the Appellant touched J in the groin area and squeezed his genitals.

The Appellant was found guilty by an 11:1 majority, and a sentence of 3 months' imprisonment concurrent was imposed.

Matters came to light when B contacted the police. The Appellant's arrest was widely reported in the press, and that led to other complainants coming forward, firstly C. Investigations then suggested that other complaints had previously been made. Those investigations showed that a contemporaneous internal investigation by the Royal Navy had taken place, and it appeared to have resulted in the Appellant leaving HMS Cleopatra; and a similar investigation at Groundwork appeared to result in the Appellant resigning at the request of the Board.

The Appellant denied all of the allegations. Indeed, he denied the circumstances in which it was said these offences occurred. For example, he denied that he had ever lifted up any of the complainants as they had suggested. He firmly denied any sexual touching of any of them. His case was therefore that nothing which the complainants had described had ever happened. It was his case that A was motivated by a dislike of the Appellant following the Appellant's clamp down on a drugs problem on the ship. Although, in his own evidence, the Appellant denied those circumstances, there was evidence from his wife that she had been told something of that description. The complaint against the Appellant was internally investigated, and it had been dismissed. After that, the Appellant was positively vetted, and remained in the Royal Navy for a further 5 years being promoted to Commander. He said that allegations about his conduct did not feature as a reason for his leaving the Navy.

However, HMS Cleopatra was a Plymouth ship, and the Appellant continued to live and work in Plymouth. It was his case that there was an acute risk of cross contamination in such a close knit community. It was said that there was evidence of a conspiracy against the Appellant, based on resentment and rumour; and evidence that at least some of the complainants had had an opportunity to collude.

Nevertheless, the jury found the Appellant guilty of the ten counts, as we have described.

The Appellant, through Mr Janner QC, now appeals against conviction on a single but multiple stranded ground, namely that the judge's summing up was unfair because it was long (four days) and muddled, so that there was at least a real risk that the jury lost concentration. They switched off and/or were confused with regard to their task. Furthermore, in summing up the evidence as he did, setting out the evidence at great length and almost verbatim and ending with the evidence in cross examination – and sometimes with a comment of his own which, it is said, appeared to bolster the prosecution case – the judge undermined the Appellant's evidence and thus his case. That was an aspect of the summing up to which Sir Alistair MacDuff referred when granting leave to appeal.

Mr Janner relies upon what he describes as "severe criticism" of a summing up in similar form by the same judge by this court in R v Neill [2013] EWCA Crim 2617, another case involving charges of sexual assault, although by a man on a single complainant, the teenage daughter of a neighbour. In Neill, Moses LJ giving the judgment of the court, said:

"1.

Criminal trials held to determine the guilt or innocence of defendants depend upon two essential features: firstly, on the skill of the independent advocates arguing them, on the one side, and, on the other, and secondly, on the judge fairly and clearly leaving to the jury the issues which they are called upon to determine.

2.

This case amply demonstrates the skill, on the one hand, of Mr Tully for the defence and, on the other hand, Mr Taylor for the prosecution, in properly arguing, the acutely difficult issues which had to be determined in resolving the question whether a young man of 38, with no previous convictions, had indecently sexually assaulted the daughter of his good friend and neighbour in Bristol.

3.

What this case unfortunately also demonstrates is how close this judge, His Honour Judge Horton, in his failure properly to direct and sum up the case to the jury came in upsetting the due process of the determination of the guilt or innocence of the defendant (now the Appellant).

4.

This appeal has turned upon the recitation by the judge of far too much evidence running the danger of deflecting the jury from proper consideration of the clear issues that it had to resolve. Due to the skill of counsel on both sides, this case, which involved a number of witnesses concerning allegations made by a young 13 year old, lasted only some two and a half days.

5.

Quite unnecessarily, and we would add wrongly, the judge then recited large portions of the evidence over a period which occupied two days. In length it was some four and a half hours but it went on from one day to the other. He would have been far better occupying his time leaving the court and preparing a proper summary of the evidence, summarising the evidence and identifying the issues which had to be resolved. His failure to do so has come close to requiring this trial to be held again. We have had to very carefully consider whether the serious inadequacies in the summing up required us to say that the verdicts were unsafe. We hope therefore that this judge will be prepared to accept our comments and not, in future treat a jury to a lengthy and unedited recital of the evidence."

In that case, despite the shortcomings of the summing up, the court considered that the verdicts were safe. However, Mr Janner submits that the summing up here had similar defects but, in the circumstances of this case, the verdict cannot be regarded as safe. This case is distinguishable from Neill, he submits, because the facts were far more complex and demanded a careful and fair summing up. Notably:

Mr Janner submitted in particular that:

Those submissions were forcefully made. We have read the full transcript of the four days of summing up. As in Neill, we consider that the summing up in this case fell short of the optimal. However, having considered the matter with particular care, we have concluded that nevertheless the verdicts are not unsafe.

A summing up should identify the issues that the jury are required to resolve, and then set out both the relevant legal directions and an appropriate summary of the evidence that goes to those issues. By summing up as he did, including lengthy recitation of evidence over a period of four days, in our view, the judge made the jury's task more difficult than it should have been. But the issues in the trial were relatively simple and clear. Although the indecent assaults alleged were not of the most serious kind, by the manner that they were put forward there was very little, if any, room for mistake. Indeed, it was not the Appellant's case, or certainly not his primary case, that there had been a mistake but rather that the case against him in respect of each count had been made up. The prosecution case was that the assaults – although with one exception outside the clothing and, again with one exception, restricted to a single incident for each complainant – could not sensibly have been an accident. It is a case based on quite deliberate "groping", a term used in the trial. There was a stark conflict in the evidence of the Crown and the Appellant, and their respective cases.

Mr Janner frankly accepts that the judge set out appropriate directions for the jury, and he set out the relevant evidence. But it is his submission that the judge erred in the way in which he did so. The length of the review of the evidence, the juxtaposition of directions, evidence and comment and the judge's own comments would or might, he submits, have led to confusion within the jury as to their task and thus a real risk that their verdicts are unsafe.

However, looking at the summing up as a whole, despite its defects, it adequately directed the jurors to their task and the form of the summing up of the evidence, unhelpful as it was, was not such as to deflect the jury from a fair consideration of the issues between the Crown and the Appellant.

Mr Janner focused on a number of particular parts of the summing up, as follows.

Although the judge dealt with the direction concerning assumptions and stereotypes in standard form, Mr Janner submitted that he then unhelpfully set out on pages 9-16 of the transcript the evidence that went to that particular issue, although repeating that evidence in due course when he came to his full review of the evidence.

However, there is nothing inherently wrong, when giving directions, in a judge referring to particular evidence upon which the direction touches. Indeed, in some cases that may be helpful, or even imperative. In this case, we accept that his recitation of his evidence in the part of the transcript to which we were referred, as elsewhere, may have been too long; but we do not consider that it would have deflected the jury from the fair consideration of any of the issues.

Mr Janner referred to the cross examination of C at page 154B-E of the transcript where, after dealing with that evidence, the judge reverted to a general point concerning all of the complainants.

However, again, although we do not consider that that order of dealing with things would have been particularly helpful to the jury, when seen in the context of the summing up as a whole, we do not see that that gets anywhere near a fatal or even material defect in terms of safety of the verdict.

Mr Janner submitted that the way in which the judge dealt with the respective characters of B (who had a criminal record) on the one hand, and the Appellant (who was of previous good character) on the other, was unfair. In respect of the Appellant, he gave a good character reference in conventional form (at paragraph 25 of the transcript), followed by a summary of the substantial evidence commending the Appellant (at pages 26 to 32). Mr Janner does not criticise that viewed discretely. However, a bad character direction in respect of B immediately followed, in which the judge said (at page 35D-E): "The fact that he has always admitted responsibility for his actions however you may think, however serious, they have been may be an important factor in deciding whether he is someone who tells truth when it matters". Mr Janner submitted this comment (which, he submitted, was analogous to the comment in R v Green [2017] EWCA Crim 1774) was inappropriate and unfair to the Appellant because it watered down his otherwise adequate good character direction.

However, Green was very different on its facts to this case; and in any event we do not consider that any deficiency in the bad character direction concerning B in any way substantially undermined the good character direction in respect of the Appellant. It is to be noted that the jury did not find the Appellant guilty of any offence against B. The judge properly and adequately made clear that the Appellant's good character should be taken into account in his favour, and how that should be done.

Mr Janner submitted that the force of the Appellant's evidence and the case was undermined by the judge spending longer on the Crown's evidence than that of the Appellant; and also spending longer on the cross examination of the Appellant than on his evidence in chief notably in relation to COUNT 12 in respect of which he estimates the judge spent about three times longer reminding the jury of the cross examination of the Appellant than his evidence in chief. Also, he criticises the setting out of evidence in reply at the end of the section for each of the Crown's witness: for example, the judge set out the Appellant's evidence in relation to COUNT 1 at pages 101E-108 of the transcript, and the Crown's re-examination at pages 109-115.

However, whilst the recitation in order of evidence in chief, in cross examination and in reply is often an unhelpful way of reminding the jury of the relevant evidence – and we do not consider it was the optimal way of dealing with the evidence in this case – the judge set out the Appellant's evidence in relation to each count fully, and we do not consider that the way he dealt with the evidence as a whole would have diverted the jury from considering all of the evidence fairly as there were expressly directed to do (see, for example, the direction at page 3D-E).

In relation to the submission that some of the judge's observations were inappropriate and unfair, we accept that the comment of the judge that it was the Appellant's case that all of the complainants were lying and had invented their stories at page 154A-D might have been better phrased. But that was essentially the Appellant's case. The judge was required to remind the jury of it. Similarly, we do not consider that the directions of the judge, with regard to the Crown's case as to why the complainants did not complain or report the assaults upon them earlier (at pages 6B-E and 8F-G), which Mr Janner again picks out for particular criticism, were as balanced as they might and should have been. However, we consider that, when the summing up is looked at as a whole, the Appellant's case was fully set out and not undermined by any of the judge's comments to any significant degree.

As Moses LJ's observed in Neill at [17], the court does not sit to mark summing’s up according to their virtues or otherwise. We have to direct ourselves as to whether the effect of this summing up was to render the verdicts unsafe. Having considered the summing up, in the light of all the submissions made by Mr Janner, we are left in no real doubt that the verdicts are safe.

Mr Janner submitted that the case against the Appellant was weak; but we disagree. The case against him was that he used his position over young men sexually to assault eight of them in three different contexts:

For the reasons we have given, we consider that the directions from the judge were adequate for the jury's purpose. The verdicts were, of course, a matter for the jury as properly directed. However, on the evidence, we consider the verdicts were unsurprising.

Turning to sentence, the maximum sentence for an offence under section 15(1) of the 1956 Act is ten years. In respect of the ten indecent assaults on the eight male victims, each aged between 20 and 33, as we have described, the Appellant was sentenced to a total of seven and a half years.

In sentencing him, the judge acknowledged the positive good character of the Appellant who had given years of service to the Royal Navy and to various charities and public works, and he had worked at the highest level in public bodies authorities and business. The references provided to the court were powerful.

However, the judge said the Appellant had masked uncontrolled and predatory sexual behaviour towards young and vulnerable men under his control. The use of such a position is, under the relevant sentencing guidelines, one reason why mitigation might be reduced or eliminated. When the Appellant was a high ranking naval officer, he had abused an Able Seaman of the lowest rank. A was worried that a refusal to obey the Appellant's orders or any act of violence towards the Appellant to protect himself might end his naval career. When the Appellant was working at Groundwork, he abused young men who had sought some form of employment refuge with that charity. He had, at least some extent, groomed some of these young men. He had taken them to places that were isolated and dark. He had used his advantages and power to abuse them with the result that their lives were severely scarred. The victim impact statements showed that these men had been substantially affected by the indecent assaults upon them by the Appellant.

Adopting the approach to the sentencing of historical sex offences set out in the Sentencing Guideline Annex B, the judge considered what would be the appropriate sentence now for the Appellant's behaviour. Each episode would be a sexual assault. The Appellant's culpability was clearly high. The judge placed the following counts in category 2 for harm: COUNT 1 because of its sustained nature, COUNT 8 because of the touching of the bare genitals, and COUNTS 7 and 10 because of the vulnerability of the victims. In the case of C (COUNTS 4 to 6), each individually category 3, the judge placed those in aggregate in category 2A and made the sentences for each concurrent as between themselves. The rest of the offences he placed in category 3A. The guideline starting point for category 2A is 2 years' custody with the range of 1 to 4 years. The starting point for that category is 26 weeks' custody with a range from community order to 1 year.

The judge considered that there were a number of additional aggravating factors, for example, the isolated location chosen for the offence and the fact that the Appellant had failed to heed the warnings or change his behaviour after the incident in the Royal Navy with A.

In mitigation, the judge took into account the good character to which we have already referred and the fact that the Appellant was suffering from prostate cancer, although the judge took the view on the evidence that the Appellant's medical conditions could be managed in prison.

The judge imposed the sentences we have already set out, with an aggregate sentence of seven and a half years. The sentence on COUNT 11, looked at individually was, Mr Janner submits, grossly excessive at 12 months when the similar category 3A offences in COUNTS 9 and 12 only attracted a sentence of 3 months each and, he submits, the sentences on the category 3A offences, including those in COUNTS 4, 5 and 6 – relatively minor assaults he submits – should in the circumstances have been made concurrent. However, his primary submission is that the overall sentence is manifestly excessive. He submits that a sentence of seven and a half years does not reflect the seriousness and circumstances of the offending which (save for one assault which involved the brief groping under clothes), comprised relatively brief groping over the clothes. Furthermore, he submits that that aggregate sentence does not properly reflect the Appellant's substantial mitigation: his age and positive good character including his service in the Royal Navy and with charities and his serious medical condition. That failure properly to reflect that mitigation was at the core of his oral submissions this morning.

We accept, as Judge Horton accepted, that the Appellant was able to call on substantial personal mitigation on its face. He has spent much of his life in public service, in the Royal Navy and then with charities and in public works. However, as the sentencing guidelines emphasise and as the judge indicated, that has to be balanced against the fact that he used his position in authority in the Navy and then Groundworks to commit these offences. That misuse of his position undermines the mitigation of his positively good character. Further, the judge took into account the fact that the Appellant has prostate cancer and a number of other medical conditions which would make his life in prison somewhat harder than for a fully fit younger man; but also that all these conditions, including his cancer, could and would be appropriately managed in prison. On the recent medical evidence, that appears to be the case.

In relation to the offending itself, of course, these were not the most serious sexual assaults. Bar one, they were all groping outside clothing; bar one, they were not sustained; bar one victim, they were single incidents. However, the Appellant engaged in a course of conduct over more than ten years involving eight victims in three different contexts, but over all of whom he had a significant position of authority by virtue of his rank as Commander in the Royal Navy or as a Senior Executive at Groundwork. His victims were far lower down the order. All the victims were, to that extent, vulnerable. A was an Able Seamen, the other victims were his employees and some of the Groundwork victims had additional vulnerabilities.

Of course, other judges may have structured the sentences differently; but we have to consider whether the aggregate sentence of seven and a half years was manifestly excessive for the aggregate offending. It was a stiff sentence; but we have concluded that in all of the circumstances it was not manifestly excessive. For all the criticism of the judge's summing up, he dealt with the sentencing exercise with patent care; and, effectively for the reasons he gave, we consider that the aggregate sentence he imposed was warranted.

Therefore, although we formally grant permission to appeal against sentence, as well as conviction, we dismiss the appeal on all grounds.