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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Thompson, R v [2001] EWCA Crim 1498 (27th June, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/1498.html Cite as: [2001] EWCA Crim 1498

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THOMPSON, R v. [2001] EWCA Crim 1498 (27th June, 2001)

Case No: 2000/01608/X5

Neutral Citation Number: [2001] EWCA Crim 1498

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 27^th June 2001

LORD JUSTICE HENRY:

1. This is the judgment of the Court. On 4th May 2001 this Court dismissed the appellant's appeals against conviction, reserving its reasons to a later date. These are now set out in the judgment below.

2. On 16th February 2000 after an eight-day trial at the Crown Court at Doncaster, before His Honour Judge Crabtree, the appellant was unanimously convicted of two counts of indecent assault (Counts 3 and 4) but acquitted of another six (Counts 1, 2, 5, 6, 7 and 8). The indictment originally contained 17 counts which were severed and ordered to remain on the file on 7th February 2000.

3. The appellant was sentenced on 17th May as follows:

Count 3: Three months imprisonment suspended for two years;

Count 4: Absolute discharge.

He now appeals against conviction with the leave of the Single Judge, restricted to two grounds of appeal.

4. The background to the case was that the Crown alleged that the appellant was involved in allegations of sexual abuse against a number of children resident at Fairfield Children's Home. The appellant and his wife had resided and worked there from 1974 to 1984. The allegations against the appellant came to light after the investigation of more serious allegations against other members of staff. The sexual abuse, the Crown say, took the form of indecent assaults on male and female children aged between seven and sixteen. The appellant's defence was one of denial. He said that any physical contact between him and the complainants had been perfectly innocent. The trials took place 20 years or more after the events in question, there were difficulties with disclosure, as there were with documents lost and destroyed.

5. The first ground of appeal related to Ground 4, which was an allegation of indecent assault on SB, between 23rd September 1976 and 19th April 1983. SB was an important figure in this investigation. She had started the whole enquiry into Fairfield when she had made serious allegations against a member of staff, not the appellant. She approached Social Services with these allegations in 1993, and took them to the police in 1997. In March 1998 she was seen by two police officers, and during general conversation with them she made the allegations concerning the appellant. This was the first time that she had made any allegations against him. In her evidence in chief she described the indecent assault that founded Count 4:

"On several occasions he would come up behind me and have a squeeze of my bottom ... it was just a light-hearted thing. I laughed it off."

6. The appellant denied that anything of the sort had happened. But SB made clear that it had. Mrs Smullen for the appellant asked her whether she thought she was being sexually abused, and got the answer:

"No, I can't say I did. ... It hasn't affected me. ... It meant nothing."

Reading between the lines of her evidence, she was clearly astonished that a squeeze of the bottom 20 years before should be investigated in a criminal court.

7. The judge summed the matter up in this way. He told the jury:

"Perhaps at the end of the day though the most important thing you really have to decide in relation to her evidence is: `Is this really indecent assault?' because she did not think so. Mr Dallas [counsel for the Crown] says feeling a girl's bottom is indecent assault. In the end it is for you to decide. You have heard her evidence about it, the circumstances in which it happened and her reaction to it. Is it right, in the light of her evidence, for you to describe it as indecent assault. It's for you to decide. I do not make these decisions, you must make up your own minds."

8. At the end of the day, in the absence of the jury, Mr Dallas for the Crown indicated that he was unhappy with the way that the judge had summed up SB's evidence. His objection involved consulting of notebooks as to the exact words used. The judge, in what seems to us to have been understandable irritation, said this:

"This jury must decide what sexual assault is, as [SB] described it. If Mrs Smullen [counsel for the appellant] had invited me to I would have withdrawn it from the jury. She did not. And so the jury have now got it."

The judge continued:

"Well, in the light of how she described it, I find it difficult to understand why really he was charged with indecent assault after 20 years, when she thought it was a joke. Anyway, there it is, Mr Dallas, I have no sympathy with that complaint, I'm afraid."

9. But on the second day of the summing-up the judge returned to this point and he said to the jury:

"First of all, of course, you have to decide ... whether he did squeeze this girl's backside, and then you have to decide whether it crossed the line and should be described as indecent assault. That is your job not mine. You set the standards."

So he left it firmly and squarely to the jury, who unanimously convicted on that count.

10. The way this is put in this ground of appeal is this:

"The learned judge made his views very clearly known and he should have withdrawn the case from the jury if he thought there was no evidence."

11. We quite agree that he should have withdrawn the case from the jury if there was no evidence, and knowing what we do of Judge Crabtree, we have no hesitation in saying that he would have. It is clear to us that his reply to Mr Dallas, that he would have withdrawn the case from the jury had an application been made to him to do so, was not a considered remark. This is demonstrated by the fact that both before that answer (p39 of the summing-up) and after (p 81 of the summing-up) he made it perfectly clear, as in our view the law is, that in this context it was for the jury and not for the judge to decide where the line was to be drawn, and whether this assault was indecent or whether it was not. He plainly recognised that it was a matter for the jury, and not for him. Had he thought no reasonable jury could have found the squeeze to be indecent, he would have intervened. But he plainly did not, and was right not to. There is nothing in this first ground of appeal.

12. The second ground of appeal concerns Count 3, an allegation of indecent assault on YC, a girl aged 15. Though there was only one count on the indictment, the Crown alleged two types of indecent assault by the appellant. First putting his hand up the skirts of girls he was helping onto the minibus, and second a discrete incident in a local park where they had taken some small children from the home on an outing and the appellant had, YC alleged, put a tennis ball down her top and then put his fingers down to take it out and touched her breasts whilst he was doing it. Again his defence to this was a denial.

13. The Crown had elected that the second incident was what they were relying on for the purpose of the count, with the minibus allegations being relied on as similar fact evidence. It is clear by the verdict that the jury believed the girl and did not believe the appellant.

14. The grounds of appeal are twofold:

a) in relation to YC the defence were not given proper disclosure by the prosecution in relation to psychiatric reports.

b) The learned judge did not allow cross-examination in respect of her pregnancy and termination. This was important evidence going to the central issues of the complaint and should have been allowed. This was not a rape allegation and section 2 of the Sexual Offences Amendment Act, 1976 did not apply.

15. The problem of secondary disclosure was difficult in this case. The Crown had sought to solve that problem by employing an independent social worker to go through the extant files, and take from them the documents which seemed to be relevant to the incidents in question. One way in which this could be helpful was if it showed when the complaint as to each incident which featured in a count was first made - was it an initial complaint, or was it an afterthought? For whatever reasons, disclosure seems often to have been piecemeal and quite often late.

16. In relation to the first sub-ground of appeal on this count, there was a document in the files discovered by the independent social worker which stated that on 8th March 1978 (22 years before the trial) YC had been the subject of a psychiatric report. This was put to her, and she denied it. Meanwhile counsel for the Crown realised from information in front of him that the date was several years out, having related to a psychiatric examination that had occurred much earlier at another place. What had happened was that the independent social worker had accurately copied another document which had the wrong date for the examination, as the details of the entry would have made clear to anyone who recognised the name of the infants' school there referred to.

17. There had been a similar incident the day before, when there had been disclosed to the appellant's defence team two pages of medical notes covering the same period. Counsel put one of these notes to the witness who pointed out that that was not her medical record, it was her sister's. Now those are just the sort of mistakes that often happen in litigation, and no fuss was made of them here. Counsel for the Crown made clear in his closing speech that no blame attached to the defence, and there is nothing to suggest that it in any way imperilled the safety of the conviction on this count. The incidents passed over without the defence losing credibility.

18. The reason the defence was trying to establish those dates was to put a time on the incidents. It was difficult for the defence to establish precisely when the incident in the park occurred, or was said to have occurred. This is scarcely surprising when the date was 22 years before.

19. However, there was a period toward the end of YC's stay at Fairfield (between 3rd March 1987 and 11th April 1978) when she was away from Fairfield by reason of the fact that her pregnancy was being terminated. She had been an emotional and distressed witness, and the Crown believed (and counsel and the judge knew) that the witness was alarmed lest this information (which shamed and distressed her) be made public.

20. Counsel for the Crown volunteered to make an admission that she was absent from the home over that period, which would have established that she had not been at the home over that period, so the assault could not have taken place then. But defence counsel had become more ambitious in her application. She now sought leave to put the pregnancy and the termination on the basis that the general impression she gave (which the judge described as that of an innocent 15-year old) exposed her to challenge.

21. The judge regarded that application as, at best, premature, and refused on the basis that it was not relevant on the evidence at the time of application. Indeed, it was ambiguous: to have an unwanted pregnancy terminated does not tell whether the 15-year old is knowing or naive, and even if it did, would throw no light whatsoever on what the appellant did or did not do with her in the park on the occasion complained of.

22. The judge was right to say that no case had been made out for examining the complainant on her sexual history, nor was it made out at this hearing. It follows that this ground of appeal fails also.

23. Accordingly, this appeal is dismissed on both grounds.