R v Nigel Anthony Pipe

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

This is an appeal against conviction brought with the leave of the full court, following refusal by the single judge. The essential question raised by the appeal is whether the trial judge was right to allow the case to proceed against the appellant when evidence, gathered as part of an investigation in 1966 into allegations made by a number of boys, is no longer available and this, and other missing material, was said to cause the appellant prejudice in defending himself at trial.

On 12 October 2021, following a trial in the Crown Court at Nottingham before Her Honour Judge Warburton and a jury, the appellant, Nigel Pipe (then aged 86), was convicted unanimously of six counts of inciting a child under 14 to commit an act of gross indecency, three counts of indecency with a child, 14 counts of indecent assault and four counts of buggery. He was sentenced by the trial judge to a special custodial sentence of 28 years in total, comprising a custodial term of 26 years and a two year extended licence period.

Nigel Pipe died on 5 January 2022. In accordance with section 44A of the Criminal Appeal Act 1968, his widow, Margaret Jean Pipe, sought leave to continue with the application. The matter was considered by the Vice President of the Court of Appeal Criminal Division and leave was granted. Accordingly, Mr Pipe's widow now acts in her late husband's place and the appeal will be considered in the normal way. We shall refer to Mr Pipe as "Pipe" for convenience and without, we hope, any disrespect.

Mr Barlow, who was trial counsel and appears for Pipe, contends that this was a complex and factually difficult trial. Pipe, who denied all allegations made against him, had to face allegations in the present proceedings (made by "the trial complainants") dating back to 1966, so a delay by the time of the trial in the region of 55 years. In 1966 sexual abuse allegations were made against Pipe. They were taken seriously by the school at which he worked. They were independently investigated by the police and dismissed when the boys withdrew their allegations. However, the records relating to those investigations and to material concerning the school's modus operandi and events that took place have been lost over time. Mr Barlow’s case is that that missing material was fundamental to the defence: to establish Pipe's innocence of the allegations made in the present proceedings and to establish the fundamental unreliability of the trial complainants' accounts of their time at the school. The fact that the trial proceeded without them resulted in overwhelming prejudice. Pipe could not and did not receive a fair trial.

There are three grounds of appeal advanced by Mr Barlow on Pipe's behalf. The first ground is that the judge erred in concluding that the abuse of process argument should be heard at the conclusion of the prosecution case, rather than, as the defence argued, before the trial began. The second ground is that the judge erred in concluding that a fair trial was possible. The third ground is that Pipe did not and could not receive a fair trial.

The appeal is resisted, and we have had the benefit of both written and oral submissions from Ms Sarah Knight and Mr Samuel Skinner on behalf of the Crown. We are grateful to them and to Mr Barlow for the considerable assistance with which those submissions have provided us in addressing the issues on this appeal.

At different times in the 1960s Nigel Pipe worked at a Nottinghamshire children's home called Skegby Hall ("the School"), which was situated in Sutton-in Ashfield near Mansfield.

Pipe began to work as the relief housemaster at the School in February 1965. His wife, Margaret, a trained nurse, joined the staff as a housemother. They occupied a staff flat within the old building, which was where the junior school residents were accommodated. As part of his employment by Nottingham County Council, Pipe was required to attend a residential course in Ipswich in January 1967. During that period, Pipe and his family vacated the staff flat and lived in Ipswich. They returned to the School in January 1968, following which they lived in the same staff flat within the old building. Pipe left the School on 31 March 1969. Until his retirement, he remained working within the care environment as a senior manager of assessment centres for children.

It was the prosecution's case that Pipe abused his position of trust and repeatedly sexually abused a number of young boys under his care and control. At trial he faced an indictment containing 27 counts in relation to five different child complainants: C1, born on 4 April 1954; C2, born on 15 April 1954; C3, born on 18 October 1952; C4, born on 18 March 1955; and C5, born on 25 November 1954 (and now deceased).

Pipe was the subject of a number of investigations over the years from 1966 onwards. He first faced allegations of sexual misconduct made by four boys at the school on 21 March 1966. Of the four boys, the only one identified with any certainty was "CR" who alleged sexual abuse by Pipe. The headmaster notified the police of the complaints at the time and a police investigation commenced. CR then withdrew the complaint saying he had lied and got other boys to lie in support of the complaints. The police did not think it necessary to interview Pipe during that investigation.

In 2002 there was a second investigation following comments posted on the School chat room, "nowhere.com", set up by an individual who was believed to be an ex-pupil, "MT". A strategy meeting concluded that it was not possible to obtain any additional details, and the police decided not to pursue any further enquiries at that time.

On 26 February 2004, MT visited West Bridgford Police Station and repeated his allegations against Pipe. That was the starting point for an investigation that came to be known as "Operation Aircrew".

On 22 March 2005, Pipe was arrested for gross indecency and indecent assault on MT.

On 18 January 2006, he was arrested again and interviewed in relation to allegations made by others. They included "CR", "WD" and "GR". In addition, statements were taken from other former residents of the school in the course of Operation Aircrew. They were from "SB", "JM", "DG", John Beastall (who was the Deputy Head), Cynthia Roper (who was a housemother and became the matron) and David Holiday.

On 26 March 2008, the prosecution in relation to an indictment concerning the allegations made in Operation Aircrew was stayed by His Honour Judge Burgess.

"Operation Xeres" was launched in January 2015. It concerned a number of care establishments in the Nottinghamshire area. MT had contacted Nottingham Police and repeated his allegations against Pipe. That operation later became "Operation Equinox".

In September 2015, C3 contacted Nottinghamshire Police after seeing a newspaper article about the School. He told police that he had been resident at the School and had information to give to them. He was seen by police. He said he had been abused at the School and had witnessed others being abused, but was not yet ready to disclose details about what had happened as he had not yet confided to members of his family about the abuse. He asked the police not to contact him further until the following year.

In April 2016, C4 contacted Nottinghamshire County Council Social Care to report that he had been abused by a staff member at the School named Pipe. Social Care contacted Nottinghamshire Police. C4 was seen by police in June 2016 and told them that he had reported the abuse to Social Care following the death of his wife. He made it clear that he had not made her aware of being abused as a child.

From their investigation into the School for the relevant period, the police identified C2 who had been a resident at the material time and was a person who might be able to assist with their enquiries. They sent a letter to C2 in September 2016. On 3 October 2016, C2 made contact with Detective Constable Beddoe (the officer in charge of the case). On 6 October 2016, DC Beddoe visited C2 at his home address. C2 said that he had been abused by Pipe but had kept it secret for more than 50 years.

On 25 October 2017, police left a phone message for C3 to enquire if he wished to provide any further information to the police at that time. On 30 October 2017, he called the police back and told them that he had been sexually abused by a Mr Pipe who had a wife who also worked at the School. He said that he needed time to think before deciding whether to do anything further.

The police investigation identified two more former residents of the School in the relevant period. They were C5 and C1. In December 2017, the police sent letters to each of them at potential addresses that had been identified for them. C5 responded by telephone to DC Beddoe, saying, "I have been waiting for this call for 50 years". An interview was arranged and C5 complained that together with others he had masturbated Pipe.

C1 did not respond to the December 2017 letter. In November 2018 the police identified another potential address for C1 and wrote to him at that address. There was no reply. On 27 November 2018, the police visited that address. C1 answered but made it clear that he could not talk as his wife was at home. He said that she knew nothing about what he wanted to discuss with the police. The next day, 28 November 2018, C1 telephoned DC Beddoe and disclosed that Pipe had abused him many times and had abused others. C1 said that he had carried this all his life and had told no one about it, not even his family.

In due course, each of the trial complainants gave evidence in video recorded interviews, in summary as follows. In C4’s case, records confirmed that C4 was admitted to the School at the age of 12 years and four months on 26 July 1967 and discharged on 4 April 1970. In his first recorded interview he said he was sent away at the age of 12 to 13 years and had ended up at the School. He mentioned Pipe. He said Pipe used to be on duty in the evenings, and that he used to come around the bedrooms in the dead of night. He remembered being woken. He said that masturbation and oral sex had happened "dozens of times". He left the School when he was about 15 and married when he was 16. In his second interview, C4 said that there were four to six boys in each dormitory. Pipe did not work there when he first arrived at the School but came about six months later. Pipe was married and lived in the Old House with his wife and child. When Pipe was on dormitory patrol duty at night in the New House, he would sleep in the night room. On the first occasion of being abused, C4 said Pipe had come into his room one night, woken him up, and told him to go to the night room. C4 said that he did as he was told. Pipe was in his pyjamas and stood in the night room with an erect penis and told him to hold it. C4 said that the abuse progressed from there to masturbating to ejaculation, and then to oral sex. He said that Pipe would touch him, rub his back and bottom and would even insert his finger a little into his bottom. He never told anyone about what was going on at the time. Pipe instructed him not to say anything. Over the years, C4 said that he made no contact with anyone from the School.

In C2's case there were records confirming his admission to the School at the age of eight (almost nine) on 7 March 1963 and discharge on 14 June 1967. In his first recorded interview C2 said that he was at the school for about five years. He said Pipe lived in a flat on the top floor. C2 recalled living at first in a dormitory called Little John. He recalled bath and shower night, with Pipe sitting on a chair. He spoke of Pipe fondling himself in bed and then fondling him (C2). He was moved from a dormitory to a single room after two or three such incidents and treated "a bit different". He spoke of being Pipe's "blue eyed boy". He left when he was 13 and never reported to anyone what had happened to him. In his second interview he said Pipe abused him. He described an occasion when Pipe made him a cup of cocoa and showed him his flat. His wife was away at the time. Once there Pipe asked him to take off his pyjamas. Pipe himself was naked. He had an erection. He placed C2's hand on the erection and played with himself. After a few minutes he went to the toilet, so C2 did not know whether or not Pipe had ejaculated. C2 said that he must have fallen asleep. He remembered being woken by Pipe who told him to go, and instructed him that he must not tell anyone about what had happened. A couple of weeks later he was moved to the Robin Hood dormitory. He was in bed and said it happened again. Pipe told him that it would have to stop when Mrs Pipe came back. He was required to masturbate Pipe. Pipe fondled C2's bottom cheeks and pressed his penis against him. Pipe got up to go to the bathroom and did not ejaculate in the bed. C2 said that the last time this happened was summertime. Everyone was asleep. Pipe came in and sat on C2's bed. He asked if C2 was coming through. C2 told him, "Don’t want to do it no more". Pipe tried to persuade him and took him back to his room, but C2 would not co-operate. C2 said that he was going back to his own room. Pipe instructed C2 not to tell anyone. After this C2 said he started to rebel and play up. He was moved back to the Little John dormitory. He said Pipe treated him differently from then on.

In C5's case, there were records showing that he was admitted to the school at the age of 12½ on 21 February 1967 and discharged on 1 August 1969. In his first recorded interview he said he was sent to the School between the ages of 12 and 15. In his second interview he spoke about various members of staff at the School and made mention of Pipe "trying it on". In his third interview he spoke about Pipe often being on an evening shift. He had his own room in the new block. He never saw Pipe's wife. He and others were told it was okay to go to Pipe's bedroom. He and four others used to take it in turns and at the time it was "a giggle". Pipe would make out that he was sleeping. They would pull the blanket back and start masturbating him. No other sexual activity took place according to C5.

In C3's case there were records of his admission to the School aged 12¼ on 3 February 1965 and discharge on 6 January 1967. In his first recorded interview he said he was sent to the School at 13. He had not kept in touch with anyone from the School since he left, and not told anyone over the years about what had happened to him. He had recently confided in his wife, and then come forward to police. In his second interview he spoke about Pipe. He remembered that Pipe lived in the old block of the school and mainly did night duties, patrolling around and checking on everyone. He spoke of the abuse that he had suffered at the hands of Pipe. He said that the first time was a Sunday. He had hurt his ankle and was not allowed to go out for a walk with everyone else. He remembered being in the little corner library. Pipe came up to him and said, "Shall we go up to your room?" There were no other members of staff around.

Once there, Pipe made C3 take off his trousers and pants and kneel on the bed. He was told, "This is gonna hurt, but you'll get used to it". Pipe then entered him. C3 spoke about how much it hurt and that he was crying. He was instructed by Pipe to put his clothes back on and not to tell anyone about what had happened. He said that this type of abuse went on for quite a while. Pipe would send everybody else off to do other things and then shout to C3. They would go to the store cupboard next to the bathroom. Pipe would make C3 touch him. C3 recalled an occasion when Pipe made him put his (Pipe's) penis in C3's mouth. He was told to "suck it like a lollipop". Pipe ejaculated in his mouth, and C3 remembered how it made him heave. He said Pipe would make him touch him and they would give each other a "hand job". Pipe would sneak around and slip his hand under the bedcovers to touch C3. There was also a time when few other people were around as they had gone away on a trip to Wales. The last time C3 was abused, Pipe came into his room. C3 screamed on that occasion. This woke other boys. Pipe told them to go back to sleep. After that, Pipe never touched him again. He remembered being told off the next day in front of the headmaster for screaming, but he did not speak up about why he had screamed. The abuse stopped around his birthday in October time.

In C1's case there were records showing his admission to the School at the age of 10 years five months on 4 September 1964 and his discharge on 12 April 1969. In his first interview he said he was sent to the School for five years. He remembered Pipe as a housemaster. He spoke of six boys in a dormitory. His first recollection of abuse was Pipe coming in and sitting on the side of his bed. Pipe was wearing his pyjamas. His fly was open and his penis was hanging out. Pipe took hold of C1's hand and placed it on his (Pipe's) penis and smiled. He then got up and left. After that first time it became a regular, probably nightly, occurrence. He said Pipe took him to the basement area and made him (C1) put Pipe's penis in his mouth. He ejaculated and made C1 swallow it. This became a normal way of living. C1 spoke about a camping trip when he was about 12, when he was first raped. Pipe came to his tent and took him away to his own tent. He told him to be quiet. Once inside Pipe's tent, Pipe removed C1's pyjama bottoms and started to stroke him between his legs, his penis and around his bottom. He used oil. Pipe laid C1 face down on his front and held his head down. Pipe rammed his penis into C1's backside. He remembered the pain. He felt he could hardly breathe. He remembered bleeding and crying. Pipe then took C1 back to his tent, zipped it up and left. C1 said the abuse stopped after this. C1 said he did not tell anyone about what had happened. He said that until he spoke to the police, he had kept it to himself. He had not been in touch with any of the residents of the School since the day he left.

Pipe was interviewed on three occasions. He was a man of previous good character. In his first interview on 12 February 2018 he confirmed that he had worked at the School. Whilst he said that he did not have a precise memory of the dates, he agreed that he was at the School between February 1965 to the end of 1966, and then again from January 1968 to March 1969. He said he was in his 30s at the time. He mentioned that his wife also worked at the School but took maternity leave twice. He spoke of the School being fairly strict. He said that some "devious and delinquent children" were sent there. He recalled annual school camps and said he organised expeditions for the boys on the North Yorkshire Moors, hiking for two to three days and camping out. He said he had to take one other adult with him. He remembered C5. He described him as a "decently behaved" lad. He denied knowing C2 or C4 and denied their allegations. He denied ever having oral sex ever with anyone in his life and said that he was not gay. In his second interview on 10 April 2018, he denied knowing C3. He denied the allegations that he had made. In his third interview on 11 December 2018, he was asked about C1. He said he remembered him, but not a great deal. He said he remembered his name. He denied C1's allegations in their entirety.

In his Defence Case Statement, and maintained in evidence, he denied that he had sexually abused any one of the trial complainants. He said that their allegations were all entirely false.

The issue for the jury ultimately was whether the offences took place, as alleged by each of the trial complainants.

From the outset the defence case was that any further prosecution of Pipe amounted to an abuse of process. Mr Barlow submitted then, as he has maintained before us, that this was one of the rare cases where it was fair and appropriate to hear legal argument on the question of abuse before the trial and before any evidence was called. He made it clear, well in advance of the trial, that this was the course that the defence invited the judge to adopt. He submitted that a failure to do so would force the defence to lead evidence about what had happened in 1966 and 2008 because, in order to challenge cross-admissibility in relation to the trial complainants' evidence and at least demonstrate the real possibility that contamination existed in the case, the defence would have to lead evidence about the earlier events which were not relied on by the Crown as part of their case. By postponing legal argument on this issue, the defence would be forced to act and that would be unfair.

Written argument relating to the abuse application was prepared by both sides and the application was listed to be heard well in advance of the trial. The judge did not give a detailed ruling, but on 24 June 2021, she held that it would not be appropriate to deal with the abuse of process application before the trial given that it hinged so heavily on the evidence and arguments that the defence would be hampered in countering the prosecution case. The judge ruled that the application should be heard at the close of the prosecution case. Her ruling was made well in advance of the trial, which commenced in the autumn of 2021. That enabled the defence to consider their position and to consider how in the course of the trial they wished to deal with the earlier investigations.

At the close of the Crown's case, the abuse of process application was advanced by Mr Barlow. He highlighted records from the School for the relevant period that were no longer available, including employment records, staff rotas, records about when particular rooms were occupied by certain children, locations and dates of trips, and the names of pupils and staff members who would have been involved in those trips. He submitted that witnesses who would have been available at the time were now unavailable, either because they had died or could not be traced. He emphasised the absence of material relating to the inquiry at the School in March 1966, into allegations of sexual abuse by four resident boys, which hampered the ability to challenge witnesses in these proceedings about their involvement in that investigation. The lack of evidence as to precisely which boys made complaints in 1966 also prevented the defence from proving that C2 was one of the four boys; that he made false allegations in 1966 about Pipe, and lied about that in the course of these proceedings.

Mr Barlow also relied on the fact that the proceedings in 2008 were stayed as an abuse of process because of the missing 1966 and other material. The judge had concluded that Pipe could not then have a fair trial on this basis and nothing had changed since 2008. Pipe was equally prejudiced in these proceedings. He submitted that as a result of the missing material, the defence had been unable fully to explore issues of contamination or collusion as between the trial complainants and/or other witnesses which might have occurred in 1966 or subsequently, as a result of viewing reports in the media or online referring to allegations involving the School and/or Pipe. He urged the judge to conclude that no direction given to the jury could overcome the prejudice created by this prosecution. This case was very like R v Anver Sheikh [2006] EWCA Crim 2625 and R v Joynson [2008] EWCA Crim 3049, where courts had concluded in the context of missing records, that a prosecution would have amounted to an abuse of process. The same applied here. Overwhelming prejudice caused by delay, missing records and unavailable witnesses meant that despite all legal directions that could be given, Pipe could not receive a fair trial.

The Crown resisted the application, accepting that records from the School and material which may have been generated during the 1966 inquiry, were no longer available, but contending that considerable evidence remained and was capable of being used to test consistency as regards dates and details of the allegations. The extent of the relevance of missing material to the issues in the case was limited and fell far short of being potentially determinative of any issue before the jury. In relation to a number of the trial complainants, the Crown submitted that there was no specific issue central to the jury's determination which would be so impacted by the lack of material referred to as to bring it within the category of cases where there could be no fair trial, and relied on the fact that questions of contamination and collusion had been robustly explored.

In a careful and detailed ruling, Her Honour Judge Warburton held that a trial could be fair and refused the application. She considered and answered each of the relevant questions derived from the judgment of this court in R v RD [2013] EWCA Crim 1592 (Treacy LJ), as follows:

What evidence directly relevant to the defendant's case has been lost by reason of the passage of time?

What is the importance of such evidence in the context of the case as a whole and the issues before the jury?

What prejudice, if any, has been caused to the defendant by the delay?

Is it possible sufficiently to compensate for any such prejudice by judicial directions?

Can the defendant have a fair trial?

The judge referred to the fact that the only complainant said by Pipe to have been involved in the allegations investigated in 1966 was C2. The defence argument was that they had been deprived of the opportunity of proving he was one of the four boys who had been involved, made a false complaint and retracted it in 1966, and then lied about it in this trial. However, she concluded there was no basis for this submission, which was based on speculation and a series of assumptions. There was nothing which could be derived from the 1966 inquiry that proved definitively that any of the four boys who originally complained, was in fact lying. Furthermore, it was purely speculative to suggest that C2, contrary to every piece of evidence he had given, was in fact one of the four boys. When he gave his account in interview in 2015, he could not possibly have known what material would have existed from 1966, or whether he might be contradicted by it. Nonetheless, he had volunteered to police information as to his knowledge and involvement, and had not wavered from that in evidence in these proceedings. He maintained throughout that he had never spoken to anyone about what had happened to him since it had happened because he was so ashamed.

The judge dealt with the defence argument that the absence of records meant that the defence could not verify the dates when C2 had occupied a single room at the School. She explained the relevance of the dates to the issues in the case, and reviewed the evidence of C2 on this topic. She concluded that C2's evidence was not definitive as to the reason why Mrs Pipe was away from the School. In any event, there was evidence available which suggested that C2 was in the single room by 13 October 1965; and a note remained available, dated 14 October 1965, which stated, "Mrs P is resigning shortly due to pregnancy". As the judge observed, the baby was not born until 23 March 1966, and it was accordingly unlikely that Mrs Pipe was on maternity leave as early as October of the previous year. The judge concluded, in any event, that the evidence that the defence said was missing was not determinative of the issue, and nor had it been impossible for the defence to launch the same challenge as they would have been able to make had records of the relevant dates been available.

The judge reached similar conclusions in relation to the other trial complainants, having addressed, in particular, the timing of C3’s ankle injury and missing records relating to that, and also having addressed the timing of C1’s camping trip and its relevance. As for the remaining trial complainants, the judge concluded that no specific issue had been raised in their cases that could not fairly be addressed by directions to the jury.

As regards the earlier proceedings stayed in 2008, the judge rejected the defence argument that those proceedings having been stayed as an abuse of process nothing had changed which could possibly distinguish the successful abuse application in 2008 from the application made before her. Rather, she identified a number of significant differences between the two sets of proceedings. Significantly, CR was the main complainant in 1966 and again in the proceedings that were stayed in 2008. He was the person said to have admitted lying about complaints against Pipe in 1966. He was the person three boys identified as having orchestrated false complaints by them. The judge held that one could readily appreciate that material relating to what CR had said, both in the first instance when complaining, and then in retracting the complaint, would have been regarded not only as crucial material for cross-examination, but also directly relevant to the fundamental issue before the jury in relation to proceedings in which he was the main complainant. None of those considerations applied to the present proceedings. The judge held that to the extent that there was prejudice to Pipe, it could be sufficiently compensated for by clear judicial directions so that a fair trial remained possible.

The judge reviewed the position at the end of the defence case and her decision, notified to the parties, was that she remained of the view that a fair trial was possible.

In the course of her summing up the judge gave appropriate legal directions to the jury. These have not been, and nor could they be criticised.

The judge addressed the impact of delay both in writing and in the course of her oral summing up (Transcript pages 17-18). Her written direction to the jury was as follows:

The judge also dealt with the question of cross-admissibility and the defence case on collusion and contamination. So far as the latter is concerned, she explained that it was not suggested by the defence that the trial complainants had got together and concocted stories against Pipe. Rather, it was the defence case that each of them was aware of allegations made against Pipe in the past by others. They were all at the School at the time of or in the aftermath of the 1966 allegations, when there was rumour and gossip between boys at the School. She directed the jury that the defence case was that it was simply inconceivable that any boy there at that time, or within a relatively short time thereafter, would not have heard about those events from other boys at the School. She directed the jury to consider those points when assessing the evidence of each of the trial complainants and the witnesses in the case. She dealt expressly with the position in relation to C2, and with his awareness and the extent of his alleged involvement in the 1966 investigation.

She also directed the jury that Pipe had chosen to put evidence of those earlier matters in 1966 and 2008 before the jury, so that the jury would understand the background and so that the issues could be aired by challenging the witnesses. She directed the jury, however, that it was no part of their role to consider or assess the truthfulness of the earlier allegations:

The principles governing an application for a stay of proceedings for abuse of process arising from delay are well-established and uncontroversial. They were set out by this court in Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296 by Lord Lane CJ. They were then confirmed in a number of cases, including R v S (SP) [2006] EWCA Crim 756, [2006] 2 Cr App R 23; restated in R v FS[2011] EWCA Crim 1844, [2011] 2 Cr App R 28; and summarised more recently in R v Hewitt [2020] EWCA Crim 1247, [2021] Crim LR 227.

From these authorities, the following propositions are clear:

A stay of proceedings is the exception, not the rule; it is a measure of last resort.

No stay should be imposed unless the court is satisfied, on the balance of probabilities, that by reason of delay causing serious prejudice, a fair trial is not possible.

When assessing possible serious prejudice, the judge should bear in mind the power to regulate the admissibility of evidence. The trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate directions from the judge. There may be cases, on the other hand, in which no direction to the jury can dispel the resulting prejudice which one or other of the parties will suffer, but that inevitably depends on the facts of each case.

Where there is no fault on the part of the complainant or the prosecution, it will be rare for a stay to be granted.

If having considered all factors the judge concludes that a fair trial will be possible, a stay should not be granted.

When an application for a stay should be heard and ruled upon is a matter for the trial judge. In R v FS Lord Judge CJ said that an application to stay for an abuse of process should ordinarily be heard and determined at the outset of the case and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage. Plainly, there may be good reason to defer hearing an abuse application until the close of the prosecution case, where to do so enables a better evaluation of the significance of the absence of missing material about which complaint is made. This was the approach in Hewitt where the trial judge concluded that to defer would better enable the judge to see in practice, rather than in theory, the extent to which delay and missing documentation hampered the defence in making an effective challenge to the complainant's evidence.

In R v FS particular importance was attached to the fact that it is for the trial process to ensure that all relevant factual issues are placed before the jury for their consideration, including, where relevant to prejudice, the reasons for the delay. As the court made clear:

Finally, while Mr Barlow has pointed to a number of cases where a fair trial was simply not achievable in circumstances where relevant material was no longer available to be deployed, we emphasise that no two trials are the same. The type, quantity and quality of the evidence is liable to differ greatly between different cases, as are the issues that are or may be determinative of guilt. Thus in R v PR[2019] EWCA Crim 1225, where similar issues were considered and addressed, and the trial judge's refusal to stay the proceedings was upheld in circumstances where evidence gathered by the police in 2002 was no longer available at trial in 2018, Fulford LJ said:

“65.

It is important to have in mind the wide variations in the evidence relied on in support of prosecutions: no two trials are the same, and the type, quantity and quality of the evidence differs greatly between cases. Fairness does not require a minimum number of witnesses to be called. Nor is it necessary for documentary, expert or forensic evidence to be available, against which the credibility and reliability of the prosecution witnesses can be evaluated. Some cases involve consideration of a vast amount of documentation or expert/forensic evidence whilst in others the jury is essentially asked to decide between the oral testimony of two or more witnesses, often simply the complainant and the accused. Furthermore, there is no rule that if material has become unavailable, that of itself means the trial is unfair because, for instance, a relevant avenue of enquiry can no longer be explored with the benefit of the missing documents or records. It follows that there is no presumption that extraneous material must be available to enable the defendant to test the reliability of the oral testimony of one or more of the prosecution's witnesses. In some instances, this opportunity exists; in others it does not. It is to be regretted if relevant records become unavailable, but when this happens the effect may be to put the defendant closer to the position of many accused whose trial turns on a decision by the jury as to whether they are sure of the oral evidence of the prosecution witness or witnesses, absent other substantive information by which their testimony can be tested.

66.

In a case such as the present, the question of whether the defendant can receive a fair trial when relevant material has been accidentally destroyed will depend on the particular circumstances of the case, the focus being on the nature and extent of the prejudice to the defendant. A careful judicial direction, in many instances, will operate to ensure the integrity of the proceedings. This general statement is not meant to preclude the possibility that a fair trial may sometimes be unachievable when relevant material cannot be deployed (see, for instance, R v Anver Daud Sheikh [2006] EWCA Crim 2625.)But we stress that the strength and the utility of the judge's direction is that it focuses the jury's attention on the critical issues that they need to have in mind.”

The missing documents in R v Anver Sheikh were likely to be highly relevant to whether the appellant would have had the opportunity to win the complainant's trust in that case, and also the opportunity to commit the offences; whereas in the case with which we are concerned, the missing documents did not, in the judge's view, touch upon either of those issues. Likewise in R v Joynson the missing contemporaneous documents might have shown that the complainant named another man as his abuser; but misidentification is not an issue in the case with which we are concerned. These cases are accordingly of limited assistance and are all cases which turned on their own particular facts.

Against that background we turn to consider the three grounds of appeal. The first ground concerns the timing of the application for a stay for abuse of process. Mr Barlow submitted that this was one of the rare cases where it was appropriate and fair to hear legal argument before the trial in relation to abuse of process. Legal arguments had been prepared prior to the trial date, and there was recorded evidence for each of the trial complainants. The failure to take this course meant that the defence were forced into leading before the jury evidence relating both to the 1966 investigation and the investigations that ultimately led to the proceedings being stayed in 2008. The Crown did not rely on these matters as part of their case. The abuse of process argument hinged on the 1966 investigation. If the judge had ruled out the evidence of C2 and others, it would have been open to the defence not to introduce the 1966 investigation into the trial at all. Whilst he accepted that contamination was at the heart of this case, he submitted that had the judge at trial made a favourable ruling at the outset, he could have focused his fire on the widespread publicity in the 2000s in the Nottinghamshire area concerning care homes, and on websites, and not introduced the 1966 investigation at all. The judge's decision forced the defence's hand and meant that they could not remain silent in relation to the 1966 investigation. This put them in a unique and difficult position and meant that there was real unfairness.

In relation to ground 2, Mr Barlow contended that the judge erred in concluding that a fair trial was possible. He developed that argument by reference to the particular circumstances of the case and in particular the position concerning C2, C3 and C1, and submitted that no direction given to the jury could overcome the prejudice created by this prosecution. This case was comparable on its facts to those in R v Anver Sheikh and R v Joynson. The missing evidence was directly relevant to the defence case. Its importance was obvious and no direction could sufficiently compensate for it. The result was that Pipe could not receive a fair trial.

In relation to ground 3, Mr Barlow contended that Pipe did not and could not receive a fair trial because of the missing evidence and the delay. He emphasised the position in relation to C2 being the only witness who admitted being spoken to about CR in the 1966 investigation. He submitted that on his own evidence C2 lied at the time to the headmaster; and he referred to the fact that it was Pipe's clear recollection in his police interview that one of the boys who made allegations of sexual assault was C2, together with CR and MT. Although Mr Barlow accepted that Pipe was not as sure about that when it came to giving evidence, and realistically conceded that he might be wrong, both about MT and C2, nonetheless the prejudice created by the missing records enabled C2 to say what he wished to say about the 1966 investigation, without any possibility of Pipe proving that he was in fact one of those boys. He pointed again, as he did before the judge, to the fact that whether C2 was a 1966 complainant was fundamental to the abuse of process argument, and that it was the basis on which the 2008 trial was held to be an abuse of process so far as CR and MT were concerned.

Mr Barlow also pointed to other aspects of the evidence called by the Crown which were unsatisfactory because of the delay and the loss of important records. He identified significant conflicts in the evidence relating to C2's account of the timing of alleged incidents of abuse and in particular when he was in the single room, and when Mrs Pipe was away from the school on maternity leave. He emphasised the arguments in relation to C1 and the allegation of rape committed during the course of the Matlock camping trip, and he emphasised the position in relation to C3 and his evidence that the first incident of abuse occurred while he was excused from a Sunday afternoon walk because of an ankle injury. In each case the absence of records created overwhelming prejudice to Pipe. Had the evidence been available, it would have established whether Pipe was on duty at the time and whether he had the opportunity to commit the serious offences. Given the real conflict in the evidence, the nature and extent of the prejudice caused to Pipe was, he submitted, insurmountable and no fair trial was possible, notwithstanding the directions given by the judge.

In her submissions, both in writing and orally, Ms Knight addressed us on the timing point and in relation to the significance of the missing documents. In summary, she submitted that this was a case, like many historic sex cases where documents are frequently missing, where none was determinative of any issue for the jury. The careful ruling given by the judge was unarguably correct. She was entitled to defer ruling on the application as she did. Moreover, the comprehensive and fair directions given by the judge to the jury addressed any residual prejudice to Pipe so that the trial was undoubtedly fair and the convictions are undoubtedly safe.

To justify the grant of a stay, the court had to be satisfied, on the balance of probabilities, that by reason of the delay, coupled with the missing records and other material, Nigel Pipe would suffer serious prejudice to the extent that a fair trial could not be held. HHJ Warburton was not so satisfied for the reasons given in her ruling, which we have summarised above. The ultimate questions for us are whether the judge's conclusion on this question was wrong or perverse, and whether Nigel Pipe received a fair trial. For the reasons which follow, and after careful consideration of all the material before us, we are satisfied that the judge was fully entitled to reach the conclusions she did. We are satisfied that such residual prejudice as there was, was fully addressed by the comprehensive and admirably clear, focussed directions given by the judge to the jury, so that the delay and missing material did not therefore render a fair trial impossible.

We start with the timing of the abuse of process application. In our judgment, this was a case where it was plainly open to the judge to defer ruling on the abuse of process application for a stay until the conclusion of the Crown's case. Contrary to the submissions advanced by Mr Barlow in this regard, it was essential for the judge to be in a position to evaluate the significance of the absence of the material that the defence claimed would otherwise have been relied upon. That had to be done in relation to each category of missing document, and in relation to the evidence of each of the trial complainants and witnesses. Moreover, because of the nature of the arguments advanced by the defence, particularly in relation to contamination, this could realistically only be done at the close of the Crown's case. By deferring the decision, the judge put herself in the best position to assess the extent to which the defence were in fact impeded in challenging the evidence on these grounds. We consider that the decision to defer was not only available to the judge in her discretion, but we agree with it. Moreover, this was not a case where the decision was taken immediately before the trial, without opportunity for the defence to consider and plan the approach that they would take. The decision was taken in June 2021, well ahead of the trial. The trial started in the autumn of that year. This enabled any tactical decisions necessary in consequence to be considered appropriately and fully.

It seems to us, moreover, that the decision taken by the judge meant that there was the opportunity for the defence to explore, in the absence of any documents that contradicted their case, the possibility that C2 was involved in the 1966 investigation. It was only in consequence of these issues being explored that the judge was in a proper position to assess the extent to which the defence case was really hampered.

The fact that tactical decisions had to be made by the defence to adduce material about the 1966 investigation, or even the 2008 proceedings, does not alter this conclusion. Indeed, we cannot see how the timing of the abuse application made any difference. We note that in his original skeleton argument prepared before the trial in support of the abuse application, Mr Barlow made clear that the reality of this case was that the prosecution were seeking a cross-admissibility direction. That rested on the absence of collusion or contamination. In order to challenge cross-admissibility the defence would have had to expose the fact of the 1966 investigation and what followed from it. We consider that it is unrealistic to suggest, as Mr Barlow has, that the defence would have taken any different course. In any event, great care was taken to limit what the jury were told about the 1966 investigation, or the 2008 proceedings. No detail about what the boys were saying by way of allegations was given to the jury, either in relation to 1966 or 2008. The judge gave a careful direction, as we have already indicated, in which she explained to the jury the relevance of these matters and for what limited purpose this material was led.

In fact it seems to us that the defence were afforded a full opportunity to explore possible contamination with the trial complainants, without having to go into the detail of the complaints made by CR and the three unnamed boys in the 1966 inquiry, and in that sense were able to adduce evidence that favoured the defence, but was damaging to those who made the complaints earlier in time.

Ultimately, we have concluded that in the absence of any incurable prejudice to Pipe, the abuse of process application was likely to be unsuccessful whenever it was made, and accordingly there was no prejudice to him. This ground of appeal must fail.

We turn next to the question of whether the judge was correct to conclude that a fair trial was possible. It is clear to us from what we have read that disclosure was responsibly and seriously conducted. The investigation by the police was extensive, as confirmed by DC Beddoe when he gave evidence to the jury, and the consequence was that, notwithstanding the records from the School that had been lost or destroyed, the defence team were nonetheless in possession of such records that remained in existence and were able to use these to test the reliability and credibility of the trial complainants and other witnesses.

The Crown also made appropriate admissions concerning the unused material during the course of the trial and in relation to the earlier investigations. In this way the issues of credibility, together with questions of collusion and contamination, could be and were robustly and effectively addressed. The jury heard evidence about how each trial complainant came to make their complaint against Nigel Pipe, and by reference to social care records that remained, the evidence was capable of being tested.

In relation to the question of contamination, the trial complainants gave evidence of the detail of their own complaints against Pipe, and their Achieving Best Evidence interviews formed part of the evidence in the case so that the jury could assess not just what they said, but their demeanour when doing so. Each (save for C5) gave evidence before the jury, and there was the opportunity to cross-examine them to explore the issue of contamination in relation to their accounts. Moreover, as part of their additional evidence in chief, each (save for C5), was asked to confirm their answers to a list of questions to assist the jury in assessing the evidence of contamination. The questions asked concerned the name of a specific list of individuals, consisting of each of the other complainants in the case, the complainants in the 2008 proceedings, other witnesses who were not complainants, namely, David Green, Stephen Blackham and Derek Holmes, and also Cynthia Roper. They were asked to answer the following questions:

Do you know a person named X?

If yes, how do you know them?

When did you last see them?

How and when did you last communicate with them?

Did you talk about Nigel Pipe with them?

If so, what did you say?

In relation to the 1966 investigation, the jury were provided with agreed facts as follows:

Accordingly, the jury had clear evidence as to the limited documents still in existence from the 1966 investigation and a summary of their contents. They were told what information could be derived from these documents, and in particular what happened in respect of CR and the contemporaneous adverse views and assessment of him and the allegations he made.

The jury also heard evidence from Cynthia Roper about the fact that she had broken up a fight between CR and another boy. It was put to her in cross-examination that the other boy was MT, and that one of the boys had a diary, the contents of which were reported to the housemaster by Ms Roper, who was given the diary. Her evidence was that this took place on a Friday and that she was next on duty the following Monday and that CR was moved to another establishment that morning. She accepted that the timeframe may well have been longer than that, but that was evidence to support the fact that CR was moved away from the school within a short space of time inconsequence of the 1966 allegations he made.

Other documents that remained from the 1966 investigation showed that CR was in fact transferred to Stockton Hall School, and that his discharge date was 1 April 1966. It was clear from the summary of the 1966 complaints that they were assessed to be without foundation by both the headmaster and the police at the time; and an adverse assessment was made of CR's reliability.

The defence was able to cross-examine each of the trial complainants about what he knew of the 1966 enquiry without documents that contradicted the defence case, and any prejudice caused by the absence of documents from this period was significantly mitigated in consequence. In fact, apart from C2, none of the trial complainants was even aware of the 1966 investigation.

C2 confirmed in evidence that he knew at the time about CR's complaints about Pipe. He denied that he was one of the boys who made a complaint against Pipe. He agreed that he was spoken to by the headmaster in 1966 but said that he did not know who the other boys were who made complaints against Pipe at that time. The defence were able to explore this evidence in cross-examination and to explore any possible contamination in relation to C2, without going into detail about the actual complaints made by CR and the other three unnamed boys, as we have indicated. They were able to do so without documents that may well have contradicted their case.

There were agreed facts in relation to the 2008 proceedings. None of the trial complainants played any part in those proceedings, and the detail of the accounts they gave as part of the "Operation Aircrew" inquiry was not aired before the jury. The jury had their evidence as to any association, or lack of association, between those complainants and the trial complainants, so that they could assess the risk of contamination on that basis; and, as we have indicated, the judge gave legal directions to the jury concerning the stayed proceedings.

Although some individuals had died by the time of the trial, the jury had the benefit of hearing other evidence from witnesses who remained able to give evidence, including Mrs Roper, Derek Holmes, Stephen Blackham and David Green. These witnesses helped the jury in their task of assessing the reliability and truthfulness of the accounts given by the trial complainants.

In her ruling at the close of the Crown's case, which we have already summarised, the judge plainly considered with care the evidence directly relevant to Pipe's case that had been lost by reason of the passage of time. She considered the importance of the missing evidence in the context of the case as a whole and in the context of the issues that the jury had to decide. She recognised the considerable element of speculation involved as to what such documents would or would not have showed and the extent to which they might not have supported Pipe’s case. Having considered those matters, she identified the nature and extent of any prejudice caused to Pipe by the delay, and also whether judicial directions would be sufficient to compensate for such prejudice as may have been caused, or whether, alternatively and in truth, a fair trial could not properly be afforded to him. Her conclusion on each of these issues was, in our judgment, unarguably correct.

In relation to the 1966 investigation, as we have recorded, she rejected as without factual foundation, the defence argument that the defence had been deprived of the opportunity of proving that C2 was one of the boys, that he had made a false complaint and retracted it in 1966, and that he had lied about it in the trial. That, she said, was based on speculation that C2 was one of the boys, which was contrary to all the available evidence.

The judge concluded that material relating to C3's ankle injury was not determinative of the issues relating to him viewed in the context of the case as a whole. There were nine counts alleging abuse against him over a protracted period and in various locations. While medical evidence and rotas might have assisted the defence case, such documents might equally have significantly strengthened the prosecution case. The absence of such evidence meant that the defence could make the points they wished to make, unimpeded by that material.

The judge addressed similar points, as we have indicated in relation to C1 and the camping trip. She dealt in detail with his evidence and also the evidence relating to C2 and when he was in a single room.

We have no doubt that the judge's conclusions in relation to each of the points, and in relation to the 2008 proceedings, were not only open to her but were correct and that she was right to conclude that Pipe could and would have a fair trial. She reviewed that position at the close of the evidence in the case and maintained her position. That afforded an additional safeguard.

So far as the adequacy of the judge's directions to the jury are concerned, we have no hesitation in concluding that they amply fulfilled the requirements identified by Fulford LJ in R v PR at [73]:

We have already summarised the judge's directions. They focused the jury's attention on the critical issues that the jury needed to have in mind in relation to delay. Each point was clearly identified and carefully addressed. She directed them that they would have to make allowances for the inevitable difficulties caused to Pipe in having to answer questions about events said to have taken place over 50 years earlier. She directed them about the possibility that other witnesses might have been able to give evidence and might have helped the defence, but were no longer available as a result of that delay; and she gave clear examples of possible missing documentation and how it meant Pipe might have been hampered in his defence because those documents might have contradicted evidence from witnesses on specified alleged events. She directed the jury about the disadvantage which flowed from the lack of police records relating to the 1966 investigation; and she told them that they should take into account the long delay in Pipe's favour when deciding whether or not the prosecution had proved that he was guilty so that they were sure on each of the counts.

In our judgment, the directions on delay were exemplary, and we are in no doubt that they operated to ensure the integrity of the trial process in this case.

Ultimately, the offences with which Pipe was charged were very serious offences. The difficulties caused by the delay were similar to those which often occur in historic sex cases of this kind. In the instant case there were extant records available to be deployed by the defence to test the trial complainants' evidence and that of the witnesses in the case. Moreover, underlying many of the submissions made by Mr Barlow was an assumption that the missing evidence would necessarily have supported Pipe's case, when the reverse may well have been true, as the judge explained. This is not a case in which the missing material was determinative of any specific issue before the jury, since the complaints of abuse were for the most part not date-specific and were couched in general terms of sexual abuse occurring on different occasions, in different locations, within broad periods identified in the indictment. Any disadvantage which flowed from the delay and the staleness of the allegations could be, and was, fully and properly addressed in the directions given to the jury, as were matters of contamination and collusion.

The dismissal of the 2008 proceedings did not mandate that the present proceedings should have been dismissed as well. As the judge explained, the two sets of proceedings were materially different, not least given that these proceedings involved different complainants to the 2008 proceedings.

In light of all these conclusions, we have no hesitation in concluding that Pipe's trial was fair and that the convictions on all counts are safe. Accordingly, and notwithstanding the forceful submissions made by Mr Barlow, this appeal is dismissed.