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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Stack, R v [2000] EWCA Crim 69 (13th December, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/69.html Cite as: [2000] EWCA Crim 69

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STACK, R v. [2000] EWCA Crim 69 (13th December, 2000)

Case No: 2000/01436/Z5

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 13th December 2000

LORD JUSTICE HENRY:

1. On 21st February 2000 in the Crown Court at Liverpool, before His Honour Judge Crompton, the appellant was convicted of seven counts of indecent assault on a female (Counts 1 - 5, 7 & 8) and one of committing gross indecency with a child (Count 6). She was sentenced to two years' imprisonment on each of Counts 1, 2 and 3 concurrent; to two years' consecutive on Count 4 and two years' on each of Counts 5 and 6, concurrent; and to two years' consecutive on Count 7 and two years' concurrent on Count 8 - a total of six years' imprisonment.

2. She now appeals against conviction with the leave of the Single Judge. At the relevant time the appellant was employed as a care worker at Derwent House, Liverpool, a local authority assessment centre for girls, and the three complainants were residents there.

3. Counts 1, 2 and 3 concerned three allegations of indecent assault on Patricia Cusack between 23rd May and 29th September 1974, when she was aged 14 or 15. Count 1 related to an occasion when the appellant had said something untrue about the complainant which spoilt her chances of going home. The complainant lost her temper and tried to attack the appellant but was restrained and put into a side room. Later in the day in company with another female worker (referred to as Bubbles) the appellant attacked and restrained the complainant enabling Bubbles to insert an object into to her vagina and her anus.

4. The second count involved an occasion when Bubbles took her out of her dormitory and she and the appellant took her into another dormitory where she was pushed onto a bed, Bubbles placing her hand over the complainant's mouth whilst the defendant lifted her night-dress and felt her breasts. One of them inserted something into her vagina.

5. The third count was a specimen charge to cover four or five incidents where the complainant was held down by the appellant and Bubbles and something was inserted into her anus and vagina.

6. In relation to Counts 4, 5 and 6, the complainant was Katherine Foley, the period from 26th July to 23rd September 1974 when she was aged 13. Count 4 was an occasion when the appellant followed her into the shower and put her hand into her vagina. The appellant then took off her own clothes and made the complainant do the same to her. Count 5 was an occasion when the appellant pushed the complainant back onto a bed, told her to take her knickers off, and played around with her body. She pushed something, not a hand, inside the complainant. Count 6, the allegation of indecency with a child, was an occasion when she made the complainant masturbate herself.

7. Counts 7 and 8 concerned Ann-Marie Griffiths and a period between 12th April 1978 and 4th September 1978, when she was between 13 and 15. The first dealt with her arrival at Derwent House, when under the pretence of searching her the appellant took her to a room and told her to remove all her clothes, hold out her arms and spread her legs. She then ran her fingers through her hair, then inserted her finger and moved it around successively in her vagina, her anus, and her mouth. Count 8 was a specimen count to cover all the other conduct alleged - she said that the appellant made her undress and carried out similar invasive searches before and after visits at least a dozen times or more. She accepted it because she did not see that she had any choice. Other members of staff searched her by patting her over her clothing.

8. The jury convicted unanimously on each of those counts after a relatively short retirement of at most one hour and ten minutes, but which is said by counsel for the appellant to have been about 50 minutes.

9. Counsel for the appellant had no criticism of the judge's conduct of the trial, nor his summing-up. During the course of the trial there were no arguments regarding the admissibility of evidence or procedure. This appeal against conviction is based solely on two rulings made by the judge prior to trial. First, he did not accede to an application to sever the trial of Counts 7 and 8. Second, it is said that the judge should have stayed the indictment on the grounds of abuse of process.

10. We deal with severance first. It is common ground between the appellant and the Crown as to the principles of law here to be applied. Where the charges are part of a series of offences of the same or a similar character, then the Indictment Rules, 1971, Rule 9 permits their joinder at the discretion of the trial judge under Section 5(3) of the Indictments Act, 1915.

11. That being so, the question of severance would not have arisen had the judge not rejected the Crown's application that the evidence of Karen Foley and Patricia Cusack each be admissible in the counts relating to the other. But he made that order, and the defence sought an order that the counts relating to each complainant be tried separately.

12. As there is no complaint of misjoinder of these counts on the one indictment, it is accepted by the appellant that the statutory discretion as to whether to permit joinder is that of the trial judge, to be interfered with only on Wednesbury grounds. In R -v- Cannan [1991] 92 Crim App R 16 (a cross admissibility case) it was submitted where the evidence on one count was not admissible on others that the judge should have followed "... the general modern practice in sexual cases" and severed the counts unless the evidence was cross-admissible. The Court of Appeal (Lord Lane CJ presiding) emphasised the judge's discretion as being a matter with which the Court of Appeal would not interfere save on grounds of Wednesbury unreasonableness. This authority was considered again in R -v- Christou [1997] AC where the approach of Lord Lane, Chief Justice was approved by his successor, Lord Taylor CJ. The trial judge had a discretion to order joinder, that discretion to be exercised taking into account all factors to achieve a fair resolution of the issues, fair to the accused and fair to the Crown. Matters to be considered include how discrete or inter-related the counts are. There was close inter-relation here - this was a course of conduct, the offences all coming under the heading of abuse of office. There were good reasons for the jury having the whole picture, even when each count had to be considered separately. Indeed, our impression is that today in course of conduct cases where identification is not in dispute, non-severance is the norm.

13. Mr Altham for the appellant contended first, that the jury might, out of prejudice or disgust, not be able to comply with the direction to consider each count separately. This reflects the fear that in sex cases the jury might ignore such directions given to them by the judge. Again, our impression is that such fears have lessened in an era of greater sexual knowledge and less naiveté, together with a proper respect for juries in their judicial role. Our system of trial by jury proceeds on the belief that the jury can be trusted to accept and comply with legal directions, and if instructed to consider each case separately, they will do so.

14. The judge heard the argument, and gave his ruling. His ruling confirms that there was no error of principle in his approach, and in our judgment the decision to try all these counts together was not only well within the broad ambit of his statutory discretion, but a decision with which we agree. Counsel has sought to question the jury's judicial process on the basis that they could not have considered eight counts separately in 50 minutes. We do not agree. The trial lasted six days. The jury had seen the three complainants in the witness box for an extensive period. They will have built up a picture as they listened. A short retirement can reflect the compelling nature of the evidence, or equally the skill of the foreman in handling the jury's discussions. It certainly would be wrong to read into quick verdicts the unwarranted assumption that they reflected illegitimate short cuts. This ground of appeal fails.

15. We come next to the abuse of process argument, and whether the judge should have stayed the indictment on the basis that the defendant could not have a fair trial.

16. Again, there was no dispute as to the basic legal principles. I take the five points listed in the appellant's skeleton argument:

"- Delay can be a ground for staying an indictment (Att-Gen's Reference (No 1 of 1990) [1992] QB. 630, 95 Cr App R, 296, CA)

- the imposition of a permanent stay will be the exception rather than the rule (ibid Cr App R 303)

- the imposition of a stay will be rarer still in the absence of any fault on the part of the complainant or prosecution (ibid pg 303)

- no stay should be imposed unless the Defendant can show on the balance of probabilities that, owing to the delay, he will suffer serious prejudice. (ibid pg 303)

- the court must consider its powers to regulate the trial, the proper comment which can be made on the effect of the delay and directions which can be given (ibid pg 303)"

17. Sexual cases where the complaint is made years after the events in question are at best difficult and worrying cases, particularly where it can be shown that the defence has been so prejudiced by the delay that it raises a real doubt as to whether a fair trial of the defendant is now possible.

18. These cases are by their nature fact-sensitive, and it is inevitable that the trial judge will have a more complete view of the facts than the appellate court. Some of these cases will turn on the case-management efforts made by the trial judge to ensure that a fair trial is possible. Given the nature of Derwent House, the social services files on these three complainants (at a difficult time in their lives) were extensive - albeit that these files were not complete, and indeed the day by day log books and staff registers of Derwent House were missing. Though the records showed significant gaps, there was no suggestion that there had been any culpable destruction of records. It seems to have been more a combination of routine destruction, a haphazard archiving policy, the erosion of time and other matters. The Crown summed up the position in their skeleton argument:

"(c) Although it is accepted that records had been lost, there was a wealth of important documentation which had been preserved and which was disclosed. The Crown deliberately declined to object to the admissibility of documents made by witnesses who were either untraced, unavailable or dead. The Defence were able to put, without challenge, the comments and conclusions (often unpleasant and damning) of professionals who had compiled reports and memoranda at or around the time when the complainants were children in care. Although individual day's records were largely lost, a picture was put before the jury in respect of each complainant of the views of the professionals dealing with them at the time. Although not exhaustive, it was substantial.

(d) By this method, each complainant had placed before the jury as full a picture of their character and personality as children as one could have hoped for in a case of such age. To this extent, the absence of particular witnesses to events at the time was substantially counterbalanced. It was not contended that the acts of abuse took place in front of eyewitnesses (save for potential co-defendants). The light that such witnesses could shed on the specific allegations would therefore be limited."

That sensible and imaginative procedure introduced by the Crown and honoured by the judge will have gone a long way to reduce the inevitable difficulty in trying old cases. And, for reasons already made clear, this was a more fully documented case than most.

19. In relation to each set of counts, the appellant can identify how complete records might have helped, and can identify witnesses that cannot be traced. But all in all, the judge was entitled to conclude that a fair trial was possible, given his relaxed ruling in relation to the admissibility of the documents and reports in this case. The judge was right to let the trial proceed and accordingly this appeal must be dismissed.