John Robert Moseling Appeal Court 30th November 2001

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers.  National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on triggers [E] from SurvivorsJustice [F] blog.

Redaction Some reports have had victims names redacted and some assault details redacted. This is a difficult balance-  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details. In addition to the obvious “victims redaction” I have thus “assault redacted” on descriptions of assaults but not on the charges themselves. It appears to make no large difference to the vital information for researchers that these documents contain. That information is mainly names of the perpetrators, past addresses, and the charges they faced – on which newspapers are pathetically inaccurate. If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

*R v M (John Robert Moseling)*

1. LORD JUSTICE TUCKEY : On 30th November 2001 at the Inner London Crown
Court before His Honour Judge Issard-Davies and a jury the appellant, John
Robert Moseling, was convicted of four counts of buggery, one count of
incitement to commit buggery and five counts of indecent assault upon
males, for which he was sentenced to a total of ten years’ imprisonment. He
appeals against conviction and sentence by leave of the single judge. The
appeal against conviction complains about unfair questioning in
cross-examination of the appellant by prosecuting counsel, and that the
judge should have discharged the jury when it was discovered that they had
a document containing information which they should not have seen.

2. This prosecution arises out of the time between 1975 and 1982 when the
appellant was the superintendent of Ivydale, a children’s home in Suffolk.
It was a specialist unit for very disturbed children and had a very high
staff ratio. The appellant had a flat within the home. The charges were all
of indecency during that period and involved three children who were
residents in the home at different times. They were all boys: F,
[month redacted] 1976, L, born [month redacted] 1968 and S, born [month redacted] 1965, and the
offences were committed when the boys were aged between 9 and 15. 3. The
appellant denied all the charges against him. He was originally to stand
trial with George Simpson, who was his deputy at the home, and Alan Essex,
who was a care worker on the home staff. They also faced charges of
indecent assault and buggery against a number of boys in the home. Only one
of those boys, S, was involved in the offences with which the appellant was
charged.

4. It is convenient to deal at this stage with the complaint about the jury
not being discharged at the end of the trial since it arises out of the
fact that the appellant was jointly charged with Simpson and Essex. That
trial did not take place because of the appellant’s then state of health.
His case was severed from that of his two co-accused, who were tried and
convicted earlier in 2001. At that trial Simpson had pleaded guilty to the
offence of indecent assault against S. At the appellant’s trial S told the
jury that he had complained to the appellant that Simpson had indecently
assaulted him but that the appellant had done nothing about it. The
appellant had, furthermore, as we have already said, so it was alleged,
indecently assaulted S, and that was count 1 in the indictment, which the
appellant denied.

5. The Crown applied to put Simpson’s plea of guilty before the jury, but
the judge ruled that they could not do so because it would have a
prejudicial effect. The jury was not told of that conviction, therefore, or
of the fact that Simpson and Essex had or were to stand trial as well as
the appellant as a result of what had happened in the home. Unfortunately,
however, the first page of a schedule, which had been used in the earlier
trial, showing the title * “R v Simpson and Essex” * was not changed in the
copies of this schedule which were used in the appellant’s trial and
provided to the jury. On counsel’s copy of that schedule and the judge’s
copy of that schedule the name had been changed to show, accurately, that
the case was * “R v Moseling” * but not on the jury copies. Soon after the
jury retired at the appellant’s trial, they sent a note which said:

“Schedule 1, the title reads * ‘R v George Simpson and Alan Essex’ * . What
is this? Why have we got it?”

6. Counsel for the appellant at the trial, Mr Phelvin, who appeared with Mr
Carter, who appears for the appellant today, said that this was something
close to a disaster, having regard to the steps which had been taken to
keep any information of this kind from the jury. He asked for the jury to
be discharged because they would now know that Simpson had been prosecuted
and they could see from some other schedule they had in the case that Essex
had been a member of
staff at the home at some time. They would assume, he said, that there was
a culture of child abuse at the home, which was highly prejudicial to the
appellant. That was why Simpson’s plea had not been put before the jury.
The judge obviously thought that was an overreaction and decided that the
jury could be trusted to accept that this was a clerical error, which it
was, which they should ignore. That is what he did. After discussion with
counsel, having referred to the jury’s question, the judge answered it by
saying:

“The answer to that is that whoever typed Schedule 1 did not know the
details of the case and mistakenly put those two names into the document
and I have to ask you to disregard it and it is a clerical error and to
substitute ‘John Moseling’ where those names exist.”

The jury, having received that direction, did not return their verdicts
until the following afternoon. Mr Carter says that the judge approached the
question in the wrong way. He should have asked himself whether there was a
risk that the jury would draw inferences prejudicial to the defendant from
what had happened and that on that basis he should have discharged the jury.

7. We do not agree. The decision of whether or not to discharge a jury is
very much one for the trial judge, who is best placed to decide whether a
defendant has been prejudiced by something of this kind. This was the
seventh day of the trial. The judge was entitled to take the view that the
jury could be trusted to accept his direction that there had been a
clerical error, which they should disregard. There is nothing to indicate
that they did not follow this direction.

8. There is more substance in the second ground of appeal, which again
arises from S’s complaint about Simpson, which was the springboard for
counsel for the Crown’s cross-examination of the appellant. He asked about
Simpson and asked the appellant whether he knew that Simpson was
homosexual, which the appellant denied. That, it is submitted, was not a
legitimate question, nor was a much later question where counsel put to the
appellant the assertion that S had been telling the truth when he said to
the appellant that he had been indecently assaulted. But Mr Carter reserves
his principal criticism for the next passage of the cross-examination,
where counsel asked the appellant whether he took holidays when he was away
from the home. The appellant said that he did, he having said that he
insisted on having his recreation time. At this point Mr Phelvin objected,
saying that he could not see any relevance to questions about what holidays
the appellant took away from the home. He made the point that he had been
unhappy about some of the earlier questions and that he did not want to
keep interrupting the cross-examination. He asked the judge to ask
prosecuting counsel where this line of questioning was taking the case. The
judge said that he was not inclined to do that. He added:

” if it looks as though something prejudicial is going to emerge then I
shall have to step in or I will hear the objection. [but] until that point
I am not going to ask [counsel] anything about it at all. I cannot really
see why I should.”

That is how things stood, the judge having ruled in that way, although he
invited defence counsel to discuss with prosecuting counsel to what his
questioning about holidays was directed. We are told by Mr Carter that he
had that conversation and prosecuting counsel said, as was the case, that
as the appellant had put in his character and had said that he was of good
character, as he was, that it was legitimate for him to ask questions of
this kind.

9. The questioning therefore resumed after the short adjournment on that
day after the discussion between counsel when counsel said:

“Q. Can you tell us what holidays you had and where you went to, please?

A. I went to Italy, I went to Spain, I went to Tunisia, Morocco.”

Then a little later on counsel said:

“Q. You did not go alone on holiday, I suppose, did you?

A. Mostly, yes.

Q. What about Morocco, who did you go with?”

To which the appellant replied that he went with a friend called Ian
Lawson, who was a Scotsman, who was now deceased.

“Q. Was he a married man?

A. He was divorced.

Q. The reason for going to Morocco?

A. Was that of a holiday.

Q. I realise that, but the reason for going to Morocco for a holiday?

A. Well I went horse riding in the Atlas Mountains.”

Then the very next question was: “You said this morning that children do
not arouse you?” and the appellant replied, “That’s true”. There was then
further cross-examination along those lines in which counsel again explored
that answer and whether in truth the appellant was sexually attracted to
children.

10. At a later point in the cross-examination counsel referred to evidence
which the appellant had volunteered in chief that he was bisexual and
explored that further by asking what sort of people he had had
relationships of that kind with, to which the appellant gave answers and at
the end of which counsel returned to the theme that the appellant was, was
he not, attracted to boys.

11. Mr Carter says that the questions particularly about holidays were not
designed to adduce any relevant evidence, but were purely prejudicial. The
underlying motive about the questions, particularly as they focused on
holidays on Morocco, was designed, he suggests, to show that the appellant,
in company, was a sex tourist to that country where, it is said, the jury
would have known that such tourists could buy the favours of young boys for
sexual gratification.

12. There are a number of strands to the cross-examination, as the summary
of which we have given shows. There was, it seems to us, nothing wrong with
the question about Simpson’s sexual orientation. If the appellant had
believed or known that Simpson was homosexual and attracted to young boys
it would be relevant to the way which he did or should have reacted to S’s
complaint to him about Simpson’s behaviour. Likewise, it seems to us
questions designed to explore the appellant’s sexuality, directed as they
obviously were to the question, which was returned to more than once, as to
whether his sexuality included a sexual liking for small boys, was relevant
but we do think that the question about the holiday; and particularly the
way in which the holiday in Morocco was asked, was unfortunate. We think
that the judge should have acceded to the invitation that counsel for the
Crown should be asked to explain where it was he thought the question was
going to, and that, if that had been done, it is possible that the judge
would have intervened to prevent questioning along this line.

13. As it was, the questions fell within a very short compass, about two
pages of transcript of a cross-examination which occupies over 80 pages of
transcript, and in the event no harm was done, it seems to us. If it was
intended to plant the idea in the jury’s mind that these two had been sex
tourists, it was done in the most oblique fashion and certainly does not
carry with it immediately, at least to the minds of members of this court,
the underlying motive which is suggested. The appellant managed to answer the questions and explain what
the purpose of his trip to Morocco had been and, as we have said, in the
event we do not think any real harm was done. Accordingly, that ground of
appeal does not persuade us that this conviction was unsafe. We are of
course conscious of the fact that the appellant faced a trial on
allegations which were of events which had occurred many years previously
and the need in those circumstances for ensuring that the trial was fair
was obviously of great importance to the appellant, but at the end of the
day this ground of appeal does not persuade us that his conviction was
unsafe. For those reasons the appeal against conviction is dismissed.

14. We can turn then to the question of sentence, where obviously the facts
have to be considered in a little more detail. We have already referred to
the fact that there were three complainants. The first of those in time, F,
went to Ivydale in July 1976, when he was 9. Within a short time of his
arrival he wet his bed one evening and was invited to share the appellant’s
bed in the duty staff sleeping room. The complaint was that the appellant
had cuddled F and then started [assault redaction]. There was a later incident in the appellant’s
flat, when the appellant started to play with F. This was the precursor to
a number of indecent assaults which followed. On his 10th birthday, F
complained that the appellant tried [assault redaction 5 lines]

15. The next complainant had also gone to the home aged 9. [assault redaction] on holiday in Devon
16. The complainant S, to whom we have already referred, made the
complainant about Simpson when he was about 12, [assault redaction]

17. The appellant is now 62. He was of previous good character. His trial
had had to be postponed because he had had major open heart surgery in the
months before it actually took place.

18. Mr Carter accepts that the sentence which the judge imposed was not
excessive standing on its own for this catalogue of very serious offences
involving three separate complainants, given the high degree of trust which
the community was expecting the appellant to have observed in his role as
the superintendent of this children’s home, with its very vulnerable
inmates. The only ground of appeal is one of disparity between the
sentences the appellant received and those imposed upon Simpson and Essex
who, as we have already said, had been tried earlier.

19. Simpson was about the same age as the appellant. He was convicted on
three counts of buggery and on a fourth count of attempted buggery. He
pleaded guilty to two offences of indecent assault, one of whom was S.
There were three different boys involved in the complaints against him. He
received a total of six years’ imprisonment. Essex, who was a younger man,
was also convicted of offences against three separate boys. He likewise
received six years’ imprisonment. In sentencing those two defendants, the
judge appears to have taken into account the fact that each had, as he put
it, some present physical condition which would make a prison sentence
difficult to take. But apart from that, we can see no distinction between
this appellant’s case and their cases, apart from the fact that the
appellant as the superintendent was
the senior man. Perhaps the health distinction is not a valid one either,
since it is obvious that this appellant had health problems as well.

20. These three were intended to stand trial together. If they had done so
and these sentences had been passed, we think that the appellant Moseling
would have a legitimate cause for saying that his sentence was disparate
with those of the other two. The fact that they did not stand trial
together is something which happened for reasons which we have already
explained, but does not, it seems to us, justify applying the same
principles as would have applied if they had stood trial together. There is
no apparent reason for such disparity and we think that that has to be
reflected in a reduction in the sentence on Moseling. To mark the fact that
he was the senior man, it is possible to justify a longer sentence in his
case; but not one of four years. We think that the right sentence in his
case for those reasons is one of eight years. To that extent his appeal
against sentence is allowed. That will mean that we will simply substitute
a sentence of eight years on those counts on the indictment for which
Moseling received ten years’ imprisonment, which were for the offences of
incitement to buggery and buggery. To that extent the appeal against
sentence is allowed.

21. It follows from these convictions that registration under the Sex
Offenders Act 1997 is compulsory, but we make it clear that that is the
case. Was any order made under section 28, working with children in this
case?

22. MR CARTER: Not that I am aware of. I was not in fact present when Mr
Moseling was sentenced.

23. MR BENNETTS: I did not understand that it was, the reason being –

24. LORD JUSTICE TUCKEY : It is mandatory, is it not? We make it clear
again that that mandatory provision is invoked in his case, lest there
should be any doubt about it.

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers.  National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on triggers [E] from SurvivorsJustice [F] blog.

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

This is all written in good faith but if there is anything that needs to be corrected please email cathyfox@bigfoot.com

cathyfox the truth will out, the truth will shout, the truth will set us free

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
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One Response to John Robert Moseling Appeal Court 30th November 2001

  1. Pingback: Timeline of Court and EWCA Documentation on Cathy Fox blog | cathyfox blog

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