R v Jones

The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences of which this applicant was convicted. Under those provisions where an allegation has been made that a sexual offence has been committed against a person no matter relating to that person shall during their lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. That has not happened and there is no reason to suppose that it ever will.

On the 25^th November 2025 in the Military Court Centre at Catterick before Assistant Judge Advocate Legard the applicant, who was then 79 years old, was convicted of eight counts of indecent assault. He was acquitted of one further count of indecent assault. On the 28^th of January 2026 the applicant was sentenced to a total term of ten years’ imprisonment for those eight offences committed against three children aged seven or eight years old at the time when they occurred. A number of other orders were made which it is not necessary now to set out. One of those offences was an offence for which a sentence ought to have been imposed as the applicant fell to be treated as an offender of particular concern. That did not happen, we shall return to that at the end of this judgement. The applicant requires a short extension of time in order to make this application. The application for leave to appeal and that extension have been referred to the full Court by the Registrar and we now deal with both. The applicant has put forward a good reason for the short delay in lodging the application for leave to appeal and we grant the extension.

The facts of the case were, in summary, as follows. The charges brought against the applicant dated from 1981 to 1982. At that time he was employed as a teacher at a school for the children of members of the British Armed Forces in Germany. The three complainants had been pupils at the school and were girls aged seven and eight years old at the time of the alleged offending. C1 was the complainant in relation to the first three counts. She alleged that she had been repeatedly abused in the class stock room having been made the stock room monitor. She alleged that she had been made to touch the applicant’s penis, that the applicant had touched her vaginal area and that on one specific occasion the applicant had penetrated her vagina with his finger. Those were charges one to three. C2 was the complainant in respect of charges four to six. She alleged that she had been abused in the stock room by the applicant who repeatedly made her expose herself to him while he masturbated. She also alleged that he had made her insert a pen into her vagina and further that on a specific occasion he made her expose herself to him while he masturbated whilst in the caretaker’s house. Those three allegations were reflected in charges four to six. C3 was the complainant in relation to the rest of the allegations, charges seven and eight. She alleged that she had been subjected to repeated sexual touching in the classroom while she sat beside the applicant and again in the caretaker’s building also.

It is unnecessary to set out in this judgement any further detail of the precise nature of the allegations of sexual misconduct which each of these complainants made against the applicant. It is fair to say that there were some similarities between the different allegations made by the different complainants and that those similarities were not limited to the fact that the alleged misconduct occurred while the applicant was engaged to be the teacher of these then children and that they alleged that he had abused that trust and exploited his position in order to have access to them for the purposes that we have summarised.

It is necessary however to say something in view of the grounds of appeal about the circumstances in which these allegations came to light. C1 had made a complaint to her school counsellor in 1992, about ten years after the facts giving rise to the allegations were said to have occurred. There was a degree of investigation at that time by a civilian police force but no charges were brought. It appears that witness statements were taken from some witnesses who had been able to say something about the nature of the premises where the allegations were said to have taken place and other matters about the surrounding circumstances of them. The applicant was interviewed by the police at that time. C1 appears perhaps to have been unaware of the fact that the police had taken such interest in the information which she had conveyed to her school counsellor. It seems that her parents took the view that it might be seriously disadvantage to her at the stage in her academic development which she had reached by 1992 if she became embroiled in an investigation and perhaps subsequent trial of these sexual allegations. Accordingly, they took the view that in her best interests this investigation which had begun in 1992 should go no further. It would appear that the applicant was informed that that had been the outcome. Because of the routine destruction policy operated by the police force concerned all documents in relation to that investigation have long since been destroyed and are no longer available. That means that the witness statements which had been taken, in particular from a caretaker and the headmistress of the school, had ceased to exist. By the time matters resurrected themselves in 2005 those two witnesses had died and accordingly their recollections were lost for ever.

That loss was of particular significance because of the dispute which was to arise during the course of the subsequent investigation and which was ventilated at trial. C1 alleged that the majority of the abusive acts against her occurred in a stock room. C1 said that the door was closed behind them by the applicant so that he could perpetrate his abusive acts against her in private. He said that for the majority of the time during which it was alleged that this activity had been going on there was no door on that storeroom. It had been taken off its hinges, he said, to the knowledge of the caretaker, so that it could be used in some way we have not fully investigated in the creation of some form of pond. That was a dispute which emerged at trial and which was placed at the forefront of his case as an important matter which the Board had to consider. He said in an abuse of process application that was made before the trial started the loss of the evidence in relation to that issue in particular rendered the proceedings unfair such that they were an abuse of process and ought not to be continued. It will follow from what we have already said that that application to stay the proceedings as an abuse of process was dismissed by the Assistant Judge Advocate for reasons to which we shall return shortly.

Following the events of 1982 and the civilian police force investigation C1 made a further complaint in 2004/2005 after she had been in touch with some other pupils on a web site or social media sight called Friends Reunited. She came forward again with her complaint which, we interpolate, she had clearly not invented as a result of the Friends Reunited contact because she had certainly made a similar complaint a dozen years or so before that contact had taken place. She was interviewed at a formal preliminary examination at Catterick on the 27^th September 2005. What that means is that her evidence was captured in court by a process of examination in chief in the presence of the applicant who was represented at the time when that process took place. He, through his representatives, would have had an opportunity to cross-examine C1 had they seen fit to do so but they did not. That is entirely conventional in circumstances of that kind. What that means is that what she had to say was secured and transcribed as it was in September 2005 and that transcript was available for consultation and for use in cross-examination if so advised when the trial eventually took place ten years or so later.

The complaint which resulted in that process came to an end in December of 2005. We have had to investigate this morning with the assistance of counsel the precise circumstances in which that happened. As we have said a degree of investigation had taken place following the resurgence of the complaint in 2004 and into 2005. Once again the applicant had been spoken to and the complainant had now made a formal complaint including by giving the oral evidence as we have described. The evidence was then considered by Lieutenant Colonel M J Culver who was the reviewing lawyer of the Service Prosecuting Authority. He prepared a memorandum on the 19^th December 2005 which set out in detail his decision as to whether there should be charges preferred for trial at a Court Martial or whether there should not. His decision at that stage was that there should not. This internal memorandum was circulated to a list of addressees which importantly did not include the applicant or his lawyers. It identified the evidence as it stood as at December 2005 analysing fairly its strengths and its weaknesses, it recorded the absence of some important evidence, some of which we have referred to already, it analysed the interview of the applicant which he had given in February 2005, and it records that he firmly denied all the allegations that were made against him by C1 which were at that the time the only allegations under consideration.

In that interview he set out his case about the stock room saying that the door may have been removed from the doorway in order that it could be used as a nature table. Lieutenant Colonel Culver analysed the evidence carefully and identified weaknesses in it. Among other weaknesses he recorded this. The applicant despite a long teaching career from which he was shortly to retire faced no other similar allegations made against him by anybody else. As a result of recording that observation and others Lieutenant Colonel Culver concluded “the combination of these weaknesses with those referred to in earlier paragraphs is such that in my opinion there is not a realistic prospect of convictions”. The action that he took as a result of that decision was to create a document which was called “Notice to Accused under section 83B(4) of the Army Act 1955”. This reads in substance:

“In accordance with section 83B(4) of the Army Act 1955 you, ex 151729G Mr I Jones, are hereby notified that I have decided that Court Martial proceedings are not to be instituted against you in respect of the case referred to this authority arising out of alleged incidents between 1980 and 1982.”

That notice, as we have already said, refers only to the allegations that had been made by C1. We will come back to that later in this judgement but now continue the narrative by explaining briefly how the other two complainants came to be involved in what transpired.

C2 telephoned a British Forces in Germany hotline and reported that she had been the victim of abuse by the applicant during 1980 and 1982 when she was nine years old. For reasons which are not explained anywhere in the materials before us no substantial action seems to have been taken about that complaint for a number of years. The complaint seems to have been made in around 2000 but the investigation began in November 2016. At that stage C2, made a full video recorded interview setting out her allegations in detail but at some point after that withdrew her support for a prosecution. So, matters in relation to C2 did not proceed further beyond 2016 for that reason until much later.

C3 appears to have been the catalyst for the trial in the form which it ultimately took. She made her report to civilian police in 2022. She was interviewed on the 18^th October 2022 and the 17^th of January 2023. During that second interview she was asked to look at a school photograph which contained photographs of two of the teachers one of whom was the applicant and the other another teacher also called Mr Jones. She identified the other Mr Jones at that stage as being the perpetrator of the abuse of which she had been complaining. Later, she corrected herself and said that that Mr Jones who she identified was in fact a perpetrator of some violence rather than sexual misconduct and the sexual offender was the other Mr Jones, the applicant.

All of that resulted in the applicant being arrested on the 31^st July 2024 in respect of offences against C2 and C3. Again, he denied all the allegations made against him and raised matters in that interview also concerning the geography of the school and its layout which he said tended to undermine the cogency of the allegations made against him.

There was, as we have said, an allegation before the trial that these proceedings were an abuse of the process of the Court. The applicant, through his counsel, submitted that the allegations in counts one to three only should be stayed as an abuse of process. It was said that there had been unjustifiable and excessive delay and that as a result of that delay he, the applicant, had suffered detriment. As we have said witness statements had been irretrievably lost and those people who had made them had died. He relied upon other items of specific prejudice including a decision by him before the 2005 investigation to destroy some of his own material and a subsequent decision after that to destroy some more material. He said that in reliance upon the decision in 1992 to take no further action and the notice that he was given in December 2005 he had destroyed documentary material in his possession which had he retained it would have been useful in his defence. He said that for those reasons the proceedings were an abuse of process because no fair trial could be held. He also relied upon the December 2005 notice as an unequivocal assurance that he would not be prosecuted in respect of the offending alleged by C1 on which he had relied to his detriment. He therefore said that the proceedings in relation to those allegations were an abuse of process for that reason also.

The prosecution submitted in response that in all the circumstances the trial process could fairly address the deficiencies in the evidence which had arisen from the passage of time and from the force destruction policy of the civilian police force which carried out the 1992 investigation and from the applicant’s own decisions to destroy material of his own. The prosecution submitted that the notice that was given in December 2005 by Lieutenant Colonel Culver was not an unequivocal assurance that he would never be prosecuted if further material had come to light. Given that further material did come to light the prosecution submitted that the proceedings in relation to the complaints made by C1 should not be stayed on that ground either.

The judge rehearsed the arguments and reminded himself of the observation of Lord Phillips, Chief Justice, in R v Abu Hamza [2006] EWCA Crim 2918, [2007] 1 Criminal Appeal Report 27 at paragraph 54. At that point in the judgement the then Lord Chief Justice said this:

“These authorities suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless:

In his ruling on the application to stay the proceedings as an abuse the judge said this:

The key questions in this case are:

Whether either the prosecution, which includes for these purposes police investigators and prosecuting authorities, and/or C1 are “at fault” for the delay.

Whether the defendant received an unequivocal no prosecution promise upon which he acted to his detriment such that the prosecution against him is an affront to justice.”

I do not consider either the prosecution or C1 to be “at fault” for failing to prosecute the C1 allegations in 1992 or indeed in 2005. In 1992 C1 was 18 years old and her life lay ahead of her, she reported the alleged abuse to a school counsellor and in doing so named the defendant. It was the police not C1 who made the decision and that came about as a result of an intervention from her parents. Their concern was for her personal and academic wellbeing and to avoid damaging her future prospects. It was also erroneously thought at that time that the defendant had been arrested and had been placed on the sex offenders register. These matters are capable of being considered in the round by the Board during the course of the trial.”

The defendant maintains that he subsequently destroyed potentially relevant material on the advice of his psychiatrist however the defence has failed to specify precisely what that material may have contained or shown such as to lend support to his case or undermine that of the prosecution. If true we can only speculate about what this missing material might have shown. This missing material does not represent a significant demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. This is not a case where, for example, forensic evidence has been destroyed in circumstances where such evidence might have conclusively determined the issue. Ultimately a Board will have to determine whether one or more of these complainants are telling the truth when they allege that the defendant assaulted them in the context of a teacher/pupil relationship.”

Nor were the prosecution at fault in deciding not to prosecute in 2005. The prosecution investigated the matter, conducted a preliminary examination and following a review determined that there were no reasonable prospects of conviction. That decision in large part as a consequence of there being no corroboration. As Lieutenant Culver set out “as is often the case with allegations of this nature the complainant’s evidence is almost entirely unsupported by other evidence which a Court would usually look for and is adamantly rejected by Jone”. There is no doubt that had the evidence from C2 or C3 been available at that time the decision would have been entirely different.”

I do not accept that in 2005 the prosecution gave the defendant an unequivocal and irreversible promise not to prosecute. In any event the facts that subsequently came to light, specifically the emergence of two further complainants both of whom appear to have come forward independently of the other and independently of C1, fundamentally altered the position. There is limited evidence that the defendant acted to his detriment in reliance on the Culver letter (the alleged destruction of his personal material having taken place earlier) but more importantly new facts had come to light which were not know when Lieutenant Colonel Culver made his decision. Accordingly in my judgement and applying Abu Hamza proceeding with the prosecution is entirely justified”

The judge then in his ruling went on to deal with the impact of delay and what he described as “obvious prejudice to the defendant” caused by it. He pointed out that that prejudice was not limited to the allegations of C1 but also impacted the ability of the Board to assess the allegations made by C2 and C3. He observed that this is not an uncommon situation in cases of allegations of very old non-recent sexual offending. The judge expressed his faith in the trial process to be able to deal with that and indicated that he would of course give to the Board an appropriate direction to ensure that they dealt with the matter in the proper way. For all of those reasons the judge ruled that the application to stay counts one to three reflecting C1’s allegations should fail.

In due course during the trial the various matters which had troubled Lieutenant Colonel Culver were fully ventilated with the relevant witnesses who were able to give evidence at that trial. These included, obviously, C1, C2, C3 and most importantly the applicant. There were some other witnesses who were able to recall earlier complaints by the complainants much nearer the time and other relevant matters. The evidence about destroyed material was adduced before the Board and the evidence in particular about the door on the stock room was dealt with by all the witnesses who were able to deal with it. Counsel were able to address the Board in relation to the issues resulting from delay and the protracted history of the various investigations into these allegations. At the end of that process the judge of course summed up the case up to the Board. In relation to delay he gave them a direction in the usual form. This was tailored to the evidence which had been given and the points which had been made about it. The direction was in these terms:

“The next matter I am going to talk to you about is the passage of time. In this case you are considering events alleged to have occurred over 40 years ago. A number of potential issues arise from that. First of all the delay between the alleged events and today or this week invariably impacts upon a witness’s ability to recall events and detail accurately. Any person describing events that took place a long time ago, whether they are a witness, complainant, defendant, will be less able to remember exactly all the detail, what took place, where it took place and when. You will want to consider therefore the extent to which a witness’s memory and therefore reliability may have been affected by the passage of time. Secondly, the passage of time will have affected the defendant’s ability to recall events just as much as the complainants’ or the witnesses’. That may put him at a disadvantage. He may not be able to recall details that would have helped him in his defence or be able to call upon witnesses who may have been able to assist with particular aspects of the case.

“Now, the defence may argue that the defendant has been disadvantaged by the fact that had these complaints been made in a more timely fashion potentially witnesses, such as schoolteachers, other pupils, the caretaker, they could have been questioned while events were reasonably fresh in their memory. The defence point to the fact that both the caretaker and the headmistress, Miss Wood, for example were interviewed in 1992 following C1’s original complaint. Following the decision not to proceed with the complaint at that time all records including statements were subsequently destroyed. Both witnesses are no longer alive. The defence also argue that the defendant was encouraged by his counsellor for the sake of his own mental health to destroy his own records pertaining to that time and that included class diaries. But for that delay he may have been in a better position to adduce evidence or recall class layout, routines, timetables and so on. He may not even have appreciated what evidence has been lost after such a period of time. As there are no specific dates for when things are said to have happened, as there may have been had a prompt complaint been made, the defendant cannot say if he was, for example, say he was elsewhere or say that there was someone else in his company or call a witness to confirm that.

“If therefore you consider that the defendant has been placed at a material disadvantage by the passage of time you should take that into consideration when deciding whether or not you are sure that the prosecution has proved its case.”

In support of this application Mr Fitch-Holland, who had appeared for the applicant before us as he did at trial, although not at the time when the abuse of process argument was determined, has effectively split his submissions into two. The first submission alleges that the prosecution ought to have been stayed in relation to counts one to three because the trial could not be and was not in fact fair. That rolls into the question of whether that unfairness was such as to render the convictions unsafe. At this stage before us the issue is whether the convictions were safe rather than whether they should have been stayed on ground one, limb one that being essentially the same question. The second part of the submission Mr Fitch-Holland makes is that the judge ought to have stayed the allegations in relation to C1 on the basis of the unequivocal assurance given by Lieutenant Colonel Culver in December 2005 that there would be no prosecution.

In his written and oral submissions Mr Fitch-Holland places the issue in relation to the storeroom door as being of critical significance. Evidence about that would have been clearly available had the information gathered by the police in 1992 not been destroyed. By 2005 it was already too late to fill that gap. He also argues that the loss of earlier evidence from C1 and any recording of what she had said in 1992 meant that her consistency in the different stages of which she has given accounts could not properly be tested.

Dealing first with the way in which the judge dealt with the application to stay counts one to three relating to complainant one we consider that the way in which he formulated his three questions might perhaps have been more clearly expressed if he had focused on the difference between the two different limbs on which an abuse of process argument may stand identified by the House of Lords in R v Horseferry Magistrates Court ex parte Bennett [1994] 98 Cr App R 114: [1994] AC 42. As is well known the first limb identified in that decision which may lead to a finding that a prosecution is an abuse of the process is that no fair trial can take place. The judge’s formulation of the first of his questions, namely that he had to decide whether the prosecution was at fault, had no part to play in addressing the second of his questions, namely whether the trial was fair or not. If the trial was inevitably going to be unfair then it had to be stayed as an abuse of process whether the prosecution was at fault or not. Prosecution fault is much more likely to be relevant to the second limb identified by the House of Lords in Horseferry Justices. This arises where some event has occurred which means that the continuation of the proposed prosecution would be an affront to the conscience of the Court. In such a situation the trial which would be held would be fair but it would be unfair to try the defendant at all because of some serious acts which had that result. Most commonly that will involve fault on behalf of the prosecution or perhaps the police or perhaps some other emanation of the state but this is not invariably the case.

We will deal with the limb one argument about the fairness of the trial after we have dealt with the limb two argument. There was only one limb two factor on which reliance could be placed in support of the submission that these counts ought to have been stayed at that stage. This was the assurance given by Lieutenant Colonel Culver in December 2005. We have been required this morning to examine carefully the documents which survive from Lieutenant Colonel Culver’s process including his internal memorandum and the notice itself. The important document for present purpose is the notice. Mr Fitch-Holland is right to say that it does not contain a warning to Mr Jones that this is not a guarantee that he will never be prosecuted if circumstances change so that there is now a realistic prospect of conviction. It is often the case that such documents emanating from the Crown Prosecution Service in civilian proceedings may contain such a warning. To that extent it is right to regard it as “unequivocal”.

However it is also right to say that Lieutenant Colonel Culver did not decide under section 83B(13) to direct at the time when giving that notice that it should have the effect provided for by section 134 of the Army Act 1955 which would, if so directed, afford a defence equivalent to autrefois acquit. It is also true that this notice was directed to Mr Jones through his solicitors. In other words, at the time when he received it he had available to him legal advice as to its effect. It is reasonable to suppose that a lawyer reading this notice and being familiar with all the sub-sections of section 83B of the Army Act 1955, as it then stood, would understand that it was clearly not a direction under section 83B(13) capable of giving rise to the autrefois acquit defence. It therefore did leave open the possibility of a prosecution taking place in the event that circumstances changed. A lawyer would understand that and would be able to advise his or her client accordingly.

We therefore do not accept the submission that this was the necessary unequivocal assurance upon which a limb two abuse argument could rest. Moreover and in any event as the last part of the dictum of Lord Phillips we have quoted earlier in this judgment makes clear if further evidence comes to light which changes the position even there has been an unequivocal assurance followed by detriment then it may be appropriate for proceedings to be permitted to continue. This is such a case. At the time of Lieutenant Colonel Culver’s decision and at the time of the notice there was only one complainant. By the time the prosecution began which led to the trial there were three. Such a change in circumstances more than justifies the change in approach between the one taken by Lieutenant Colonel Culver and the one taken by the Service Prosecuting Authority in 2023/2024 when C3’s complaints came to light. We acknowledge and understand the submission that had we decided that limb two argument differently it would have a knock on impact for the other convictions which were not the subject of the application to stay because of course all of the convictions rested upon a trial at which three complainants rather than two gave evidence.

We then turn to the limb one abuse argument which involves a consideration of the sufficiency of the direction given by the judge at the trial which we have set out in full above. Ultimately, as we have said, the question for us is the safety of these convictions. We acknowledge entirely that the defence at trial were able to make powerful arguments before the Board about inconsistencies and weaknesses in the evidence of the three complainants both individually and when compared one with the other. There were clearly issues about the way in which the evidence had been obtained and preserved particularly in respect of C1 and C2. The issue of delay was a matter of very substantial concern because of the duration of the delay and the events which had taken place during its currency. All of those issues which we are invited to assess to say that these proceedings were unfair, that they should have been stayed and that even if not the conviction should be quashed as unsafe were fully ventilated in evidence before the Board. They were placed before the Board for them to appraise.

In our judgement the direction as to delay that was given by the judge was in accordance with good practice. It was designed to focus the Board’s attention on the important question of delay and upon its impact upon the evidence that they had received. It required them to evaluate that evidence in the light of those points which had been made to it and no doubt they did so. In our judgement that direction and the way in which the evidence was adduced at trial and challenged and the way in which the points were made on behalf of the applicant by Mr Fitch-Holland, his counsel, all constitute the ways in which the trial process accommodates the kind of considerations which always arise in cases of this kind.

In our judgement this was a fair trial resulting in fair convictions. The strength of the case where there were three complainants even where there are issues between them is such that the decision of the Board is readily understandable notwithstanding the force of the points we have referred to. For those reasons we give leave but dismiss the appeal.

We should leave the case with this observation. On this charge sheet charges three and five were indecent assault contrary to section 14 of the Offences Against the Person Act 1956. Those became count three on the indictment and count three was an abolished offence within the meaning of paragraph 12 of schedule 13 to the Sentencing Code to which the provisions of paragraphs 10 and 11 of that schedule applied. Accordingly the Court was required to impose a special sentence for an offender of particular concern pursuant to section 278 of the Sentencing Code. However that sentence is not before us, and we have in any event no power to impose any sentence which is more severe on this appellant than the way in which he was dealt with below and the purpose of referring to that is simply to record the fact that in deciding not to interfere with the sentence we are not condoning what was in fact an unlawful sentence. We record the fact that we have observed that it should not have been passed in the way that it was but we have also observed that we have no power to do anything about that.