Novac, Archer, Raywood, Andrew-Cohen 1976 Dec 15 Court of Appeal

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.

For An Index / Timeline of Court Appeal Documents on Cathy Fox Blog [1]

This post is relevant to Paedophilia around Piccadilly Part 4- Playland Trial and Cover Up [2]

[ 1976] EWCA Crim J1215-1

No. 4691/C/75

No. 4708/A/75

No. 4727/A/75

No. 4732/A/75

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Wednesday, 15th December 1976
Before:

Lord Justice Bridge

Mr. Justice Wien

and

Mr. Justice Kenneth Jones

Regina
v.

Malcolm Jack Raywood

Basil John Andrew-Cohen

David Archer

and

Andrew Novac

(From the Shorthand Notes of Cherer & Co. (incorporated with Walsh & Sons)
55-57 Clifford’s Inn, Fetter Lane, London, EC4A 1BU. Telephone Number:
01-242 7057. Shorthand Writers to the Court.)

MR. L. GIOVENE appeared on behalf of the Applicant Raywood.

MR. G. GUTHRIE JONES, Q.C. and MR S. LESLIE appeared on behalf of the
Applicant Andrew-Cohen

MR. J. ALLIOTT, Q.C. and MR. C. TAILBY appeared on behalf of the Applicant
Archer.

MR. A. CAMPBELL, Q.C. and MR. P. JACKSON appeared on behalf of the
Applicant Novac

MR. A. JEFFEREYS and MR. HAWKINS appeared on behalf of the Crown.

JUDGMENT

(As approved)

LORD JUSTICE BRIDGE :* On the 19th June last year the appellants Andrew
Novac, Malcolm Jack Raywood, Basil John Andrew-Cohen and David Archer were
arraigned with two other men at the Central Criminal Court on an indictment
containing thirty-eight counts including five separate conspiracies. The
two other men offered pleas of guilty acceptable to the Crown and to the
Court.* Thereupon it was indicated by the prosecution that the scope of the
indictment could be radically reduced. In its attenuated form it included
nineteen counts, of Which only one charged a conspiracy. The trial
effectivel commenced on the 20th June. It was adjourned for four weeks
between the 1st August and the 1st September. In due course the judge
summed up for four full days and sent the jury out early on the morning of
the fifth day, Friday the 19th September. The jury returned their verdicts
late that afternoon. The trial had occupied, in total, forty seven working
days.

The outcome was as follows: Novac, Raywood, and Andrew-Cohen were convicted
of conspiring together between the 13th May and the 24th July, 1974, to
procure the commission by male persons under the age of twenty-one years of
acts of gross indecency with themselves (Count 1). Raywood alone was
convicted of living on the earnings of prostitution of other male persons
between the same dates (Count 2). Novac (after changing his plea from “Not
Guilty” to “Guilty” at a late stage) and Raywood were both convicted, again
between the same dates, of persistently importuning in a public place for
immoral purposes (Count 3). Andrew-Cohen had been charged in Counts 8, 9
and 10 with specific offences of gross indecency with named male persons
under the age of twenty-one years, committed in or about the same period as
that covered by the conspiracy count. The jury had been directed that if
they convicted Andrew-Cohen of conspiracy they need not return verdicts on
Counts 8 and 9. But no similar direction was given with respect to Count 10
and on Count 10 Andrew-Cohen was convicted of gross indecency. All the
foregoing counts will hereafter be referred to as “the conspiracy and
related counts”.

Novac was further convicted of three specific offences of indecent assault
on named boys under the age of sixteen years (Counts 4, 5 and 6). These
offences were charged and the evidence relating to them alleged their
commission between the 1st September and the 8th November 1974. Raywood was
further convicted of one offence of buggery with a named male person under
the age of twenty-one years (Count 7). This offence was charged and
alleged to have been committed between the 1st November and the 3rd
December 1974. Andrew-Cohen was further convicted of a specific offence of
indecent assault upon a named boy under the age of sixteen years (Count
11). This offence was charged and alleged to have been committed between
the 1st September and 8th November 1974. Counts 4, 5, 6, 7 and 11 will be
referred to as “the specific offence counts”. It will be observed that the
specific offence counts all charged offences committed well outside the
period of the conspiracy.

Finally Archer, who was not concerned in the conspiracy and related counts,
was convicted of five offences of buggery with named male persons under the
age of twenty-one years and two offences of gross indecency with two of
those males (Counts 12 – 18 inclusive). Archer was acquitted of a charge of
gross indecency with a male person under the age of twenty-one years on
Count 19.

Novac applied for leave to appeal against conviction on all Counts except
Count 3. Raywood applied for leave to appeal against conviction on Count 7
only. Andrew-Cohen applied for leave to appeal against conviction on Count
11 only. Archer applied for leave to appeal against conviction on all
counts. At the hearing of the applications the Court granted leave to
appeal in each case and treated the hearing as the hearing of the appeals.

The evidence relevant to the conspiracy and related counts can, for the
purposes of this judgment, be very briefly summarised. It fell under three
headings. The first and most voluminous category of evidence was that of
police officers Who between the dates mentioned in Count 1 of the
indictment had kept observation on the movements and activities of the
first three appellants in and around an amusement arcade near Piccadilly
Circus called Playland, which clearly was, upon the evidence, a favourite
resort and meeting point for young male prostitutes and their customers.
The second head of evidence was the evidence of nine or ten youths of
various ages under twenty-one who spoke of acts of indecency between
themselves and the first three appellants. Most of these were committed at
an address in Garratt Lane, Wandsworth where these three appellants were
living together at the time. Finally there was evidence of lengthy written
statements made by each of these three appellants and of interviews with
police officers, all of which on the face of them contained important and
damaging admissions. Without examining the evidence in detail it is no
exaggeration to say that the evidence as a whole presented an overwhelming
picture of these three appellants habitually consorting with young male
prostitutes in the West End of London and frequently entertaining them at
their flat in Wandsworth for immoral homosexual purpose.
It was inevitable that in the case of each of the appellants, Novac,
Raywood and Andrew-Cohen, the question would sooner or later arise whether
and to what extent the evidence led in relation to the conspiracy and
related counts was admissible as relevant to and capable of providing
corroboration of the evidence of the boys concerned in the specific offence
counts. The nettle was first grasped by counsel for Raywood. He applied on
the 19th June that Count 7 against his Client should be severed from the
remainder of the indictment. This was opposed by counsel for the Crown on
the ground that evidence in support of the conspiracy and related counts
would be available as “similar fact” evidence relevant to and capable of
corroborating the evidence of the boy named in Count 7 (Transcript Vol. 1
pages 23 and 24). The judge accepted his submission. At the end of the
trial, if it was not in terms conceded by counsel for the Crown that his
submission on this point could not be sustained, at all events we are told
that in his final speech to the jury he invited them to consider the
evidence directly relevant to Count 7 in isolation from the remainder of
the evidence affecting Raywood. In summing up the judge said (Transcript
Vol. 3, page 13 at F): “Members of the jury P (the boy named in Count 7),
R, S, and O (boys who had given evidence against Raywood in support of the
Conspiracy count) do not corroborate one another about Raywood, because
although each has given evidence about buggery, or attempted buggery on
them by Raywood, there is nothing strikingly similar”.

Mr. Giovene in this Court submitted that the judge’s initial refusal to
sever Count 7 of the indictment was based upon the erroneous view that the
conspiracy evidence was available as “similar fact” evidence to corroborate
the evidence of P on Count 7. He relied upon the principle of which the
most cogent expression is to be found in the speech of Lord Cross of
Chelsea in * R. v Boardman * (1975) A.C. 421 , when he said at page 459,
D-G: “When in a case of this sort the prosecution wishes to adduce ‘similar
fact’ evidence which the defence says is inadmissible, the question whether
it is admissible ought, if possible, to be decided in the absence of the
jury at the outset of the trial and-if it is decided that the evidence is
inadmissible and the accused is being charged in the same indictment with
offences against the other men the charges relating to the different
persons ought to be tried separately. If they are tried together the judge
will, of course, have to tell the jury that in considering whether the
accused is guilty of the offence alleged against him by A they oust put out
of mind the fact – which they know – that B and C are making similar
allegations against him. But, as the Court of Criminal Appeal said in * Rex
v Sims * (1946) K.B. 531, 536 , it is asking too
much of any jury to tell them to perform mental gymnastics of this sort. If
the charges are tried together it is inevitable that the jurors will be
influenced, consciously or unconsciously, by the fact that the accused is
being charged not with a single offence against one person but with three
separate offences against three persons. It is said, I know, that to order
separate trials in all these cases would be highly inconvenient. If and so
far as this is true it is a reason for doubting the wisdom of the general
rule excluding similar fact evidence. But so long as there is that general
rule the courts ought to strive to give effect to it loyally and not, while
paying lip service to it, in effect let in the inadmissible evidence by
trying all the charges together.”

Mr. Jeffereys for the Crowm submitted that this principle does not deprive
the trial judge of his discretion with respect to severance. He referred us
to the following passage from * R. v Kray * (1969) 3 W.L.R. 831 quoted with
approval in the House of Lords by Lord Pearson (with whom all their
Lordships agreed) in * R. v Ludlow * (1971) A.C. 29 : “… offences cannot be
regarded as of a similar character for the purposes of joinder unless some
sufficient nexus exists between them. Such nexus is certainly established
if the offences are so connected that evidence of one would be admissible
on the trial of the other, but it is clear that the rule is not restricted
to such cases”.

We accept that the question is ultimately one for the exercise of the
judge’s discretion. But if in a homosexual case one group of offences is
not connected with another by features of such striking” similarity as
would make the evidence mutually relevant and corroborative, the
considerations mentioned by Lord Cross must, at least in the vast majority
of cases, be decisive as to how the discretion should be exercised.
Accordingly, if in this case the refusal of Raywood’s application to sever
Count 7 was founded upon an erroneous view that the conspiracy evidence
would be relevant to Count 7 on the “similar fact” pinciple, we cannot
escape from the conclusion that this amounted to a material irregularity in
the conduct of the trial which must have seriously prejudiced Raywood on
Count 7.

Notwithstanding the view which was tacitly accepted in the final speech of
counsel for the Crown at the trial and in the judge’s direction referred
to, Mr. Jeffereys submitted in this Court that when at the beginning of the
trial the judge refused Raywood’s application for severance, he could
properly take the view that the evidence in support of the conspiracy would
be relevant to and capable of corroborating the evidence of the boy P on
Count 7. We have sought to test this submission by reference to the
concise statement of principle to be found in the speech of Lord Salmon in * R.
v Boardman * who said. (at page 462, B-D): “In the case of an alleged
homosexual offence, just as in the case of an alleged burglary, evidence
which proves merely that the accused has committed crimes in the past and
is therefore disposed to committed the crimes charged is clearly
inadmissible. It has, however, never been doubted that if the crime charged
is committed is a uniquely or strikingly similar manner to other crimes
committed by the accused the manner in which the other crimes were
committed may be evidence upon which a jury could reasonably conclude that
the accused vac guilty of the crime charged. The similarity would have to
be so unique or striking that common sense makes it inexplicable on the
basis of coincidence.

Three of the boys called by the Crown to give evidence in connection with
the conspiracy and related counts testified that Raywood had offered or
attempted to bugger them. In each case he had met them in Playland or some
similar amusement arcade and picked them up by offering them money to play
the pin tables. In each case he had offered there shelter overnight at the
place where he was living at the time and the offer or attempt to commit
buggery had occurred when Raywood and the boy were sharing a bed. The boy P
the subject of Count 7, had similarly been picked up in an amusement arcade
and offered shelter, but it is to be observed that he was first taken by
Raywood to the house of a woman friend and it is not alleged that any
offence was committed there. According to P he was subsequently taken to
another address where the offence alleged in Count 7 was committed when the
boy and Raywood were sharing a bed. We cannot think that two or more
alleged offences of buggery or attempted buggery committed in bed at the
residence of the alleged offender with boys to whom he had offered shelter
can be said to have been committed in a uniquely or strikingly similar
manner. If a man is going to commit buggery with a boy he picks up, it must
surely be a commonplace feature of such an encounter that he will take the
boy home with him and commit the offence in bed. The fact that the boys may
in each case have been picked up by Raywood in the first instance at
amusement arcades may be a feature more nearly approximating to a “unique
or striking similarity” within the ambit of Lord Salmon’s principle. It is
not, however, a similarity in the commission of the crime. It is a
similarity in the surrounding circumstances and is not, in our judgment,
sufficiently proximate to the commission of the crime itself to lead to the
conclusion that the repetition of this feature would make the boys’ stories
inexplicable on the basis of coincidence. It was for these reasons that we
reached the conclusion that the evidence on the conspiracy count was
inadmissible against Raywood on Count 7 and that accordingly the refusal of
his application to cever Count 7 was reached oa an erroneous basis. In the
result his conviction on Count 7 had to be quashed.

It is surprising that no application similar to that made on behalf of
Raywood should have been made on behalf of Novac or Andrew-Cohen to sever
the specific offence counts against them. Mr. Alan Campbell for Novac told
us that he thought it pointless to make such an application after the
application on behalf of Raywood had been refused. But we can see no basis
which would have justified him in assuming that the one application must
necessarily be determined in the same way as the other. It was for him to
make an application to sever on his own client’s behalf if -hought
appropriate. No such application having been made there can be no basis for
complaint in this Court that the conspiracy and related counts were heard
together in * Novac’s * case with the specific offence counts. It is right
to add that Mr. Guthrie Jones osn behalf of Andrew-Cohen did not attempt to
support his client’s appeal on the basis of any complaint of failure to
sever.

These considerations, however, in no way detract from the force of the
submission made on behalf of both Novac and Andrew-Cohen that it was
necessary for the judge to consider whether and to what extent the evidence
in support of the conspiracy and rolated counts was relevant to the
specific offence counts, and to give the jury a clear and unambiguous
direction one way or the other as to whether the conspiracy evidence was or
was not capable of providing corroboration of the boys who gave evidence on
the specific offence counts. The learned judge’s general direction on the
subject of corroboration was in the following terms: “In all sexual cases,
and cases in which evidence for the prosecution is given by an accomplice –
and an accomplice is someone who took part in the offence, somebody v/ho
could possibly have been charged jointly with the defendant in the offence
– it is usual to give a warning to juries. This I now do. Although you may
act on the evidence of the victims of the offences, or the accomplice, if
you are absolutely satisfied that the victim, or the accomplice, has spoken
the truth and is reliable, it can be dangerous to do so for various
reasons. You see, the witness might have some reason of his own for giving
the evidence which he did. He might want to minimise his ovm part in it. He
night want to put the blame on somebody else, and so forth. Therefore, this
warning is always given to juries: that it is safer and wiser to look for
corroboration, because, as counsel says, it is easy to accuse, difficult to
refute.
“Corroboration means evidence coming from some source other than the victim
or the accomplice which tends to confirm or corroborate the evidence which
the victim or accomplice has given, insofar as it implicates the defendant
in a material respect. He has not got to confirm or corroborate everything
that was said, otherwise you would not want the victim and the accomplice,
you would simply want the corroborating witness, but confirmation, or
corroboration as we call it, of something which tends to show that what the
main, principal, witness has said is true, insofar as it implicates the
accused in the allegation that has been cade against him.

“It is the judge’s function to point to such evidence, if there is any,
which is capable of amounting to corroboration. It is the jury’s function
to decide if such evidence does in fact corroborate the main witness. As we
come to it, in due course, if there is any, I shall from tine to time say:
‘This is capable of corroborating so and so.’ It is for you to say if it
does. Or I shall say: ‘This is not capable of amounting to corroboration,
and therefore you must not consider it as such.’

“The corroboration of witnesses in sexual cases is, indeed, very important,
because it is easy for the alleged victim to accuse, difficult for the
defendant to refute. What can he do but say: ‘I didn’t do it’? I suppose he
could say: ‘I wasn’t there,’ and, if he can call alibi evidence, so much
the better, but it is for this reason that corroboration is tremendously
important.”

The judge continued by explaining to the jury the principles derived from
the decisions of the House of Lords in * R. v Kilbourne * (1973) A.C. 729
and * R. v Boardman * (1975) A.C. 421 . He emphasised the general rule that
the commission of one offence on one occasion is no evidence relevant to or
probative of an allegation that the offender has committed another similar
offence on another occasion.

He continued in the following terms: “There is an exception to this rule.
That is the one you have been told about by counsel, but I must tell you
also. Evidence that the accused has committed other offences, whether
charged as counts or not, is admissible, and capable of amounting to
corroboration, subject to a qualification I will mention in a moment, if it
shows that the other offences have common features with the offence that is
charged of such an unusual nature, or striking similarity, that they cannot
be explained on the basis of mere coincidence.

Let me take again, in order to illustrate this exception to the rule, the
robberies on the bank. Suppose the robbery at Lloyds Bank was done by, for
example, a helicopter landing on the roof, and by the use of tear gas – I
hope
I am not putting ideas into anyone’s head – and there is evidence from an
accomplice in that robbery that X was the pilot of the helicopter. Suppose
that there is also evidence that, in the robbery at Barclay’s Bank, that
was carried out in the same way, by helicopter and tear gas, and another
accomplice in that robbery gives evidence to the effect that X was the
pilot of that helicopter. Well, it would be, you may think, so unusual, and
of such striking similarity, that the evidence of the second accomplice
would be capable of corroborating the evidence of the first accomplice.

“The qualification which I mentioned a moment or two ago is this: before
you can accept the evidence as corroboration in these cases of striking
similarity, as we call them, similar fact evidence, you would have to be
satisfied, firstly, that there was no possibility of the witnesses having
put their heads together to invent a false story. Secondly, you would have
to be satisfied that there was no possibility of a witness telling lies in
order to draw attention to himself, to seek publicity. That sort of thing
does sometimes happen, as you know.

“Now, can I apply all that I have just been telling you to sexual offences?
There is nothing striking or unusual in a homosexual offence, whether
buggery, or whether it is gross indecency, including even oral sex, so it
appears. If A is alleged to have committed a sexual offence on B, the case
against him cannot be supported by an allegation that he also committed a
sexual offence on, for example, C and D. He may have committed the offence
on C and D, but that would not prove that he committed the first offence on
B.

“On the other hand, as an exception to that rule, if when, to take up the
example that has been given to you by counsel in order to illustrate the
point, he committed the offence on B, he was wearing the Red Indian’s
headdress we have heard so much about, and if C and D were to give evidence
that, when he committed the offences on them, he was also wearing a Red
Indian headdress, obviously, it would be so strikingly similar as to render
the evidence of C and D admissible, and capable of corroborating B. Of
course, vice versa, provided the jury were satisfied there was no
conspiracy of falsehood: that they had not put their heads together to tell
this false story, or that they were not seeking publicity.

“When you have considered much of the evidence in this case, it will be for
you to decide, if you think there are or not a number of unusual or
striking features in the evidence given by the various boy witnesses.- If
you take that view, that there are, you will have to consider whether you
are
satisfied that evidence is true, or whether it is the result of them
having, for example; put their heads together to tell a false story, in
which case, it would not be true.

“Of course, the striking features, the similar features, do not have to be
as striking or unusual as the illustrations I have given you. The Red
Indian head-dress was extreme, simply in order to illustrate the point. But
you nay think that the cumulative effect of a number of features can
properly be described as strikingly similar; not just one matter, or
another natter, or even, perhaps, another matter, but add then all
together. If you keep on getting the repetition, it is capable – it is for
you, not me – of being strikingly similar.

Even assuming that the jury had it well in mind that the judge had told
then earlier that he would point out what material was and what was not
capable of providing corroboration, this long passage was well capable of
being understood by the jury as extending to then an invitation to decide
for themselves where in the evidence to lock for corroboration, on the
basis of “similar facts”, of any of the individual boys whose evidence of
offences committed with then fell within the ambit of the judge’s general
warning of the dangers of convicting without corroboration. In this
situation it became doubly important that at some time before concluding
his summing up the judge should, in the case of each appellant charged with
conspiracy, either tell the jury what evidence relevant to the conspiracy
they could look to, as available to provide corroboration of the boys
giving evidence in support of the specific offence counts, or tell the jury
in emphatic and unambiguous terms that when they came to consider those
counts they shold disregard the evidence relating to the conspiracy and
related counts in its entirety.

In the summing up of the case against Andrew-Cohen on Count 11 there is
from start to finish no indication at all to the jury as to whether or not
there was evidence capable of corroborating the evidence of the boy H named
in Count 11. Mr. Jeffereys for the Crown has argued that the judge could
properly have directed the jury that some at least of the acts of indecency
committed by Andrew-Cohen of which evidence was given in support of the
conspiracy and related counts, could be regarded as strikingly similar to
and corroborative of the evidence of the boy H on Count 11. We do not find
it necessary to examine this subnission in detail in relation to the
evidence because it is clear that the learned judge did not make any
decision to that effect. In * R. v Boardman * , Lord wilberforce, in
considering the application of the principles on which ‘similar fact’
evidence can be received in sexual cases said this at (1975) A.C. page 442
F-H: “In each case it is necessary to estimte (i) whether, and if so how
strongly, the evidence as to other facts tends to support, i.e., to make
more credible, the evidence given as to the fact in question, (ii) whether
such evidence, if given, is likely to be prejudicial to the accused. Both
these elenents involve questions of degree.

“It falls to the judge, in the first place by way of preliminary ruling,
and indeed on an application for separate trials if such is made (see the
opinion of my noble and learned friend Lord Cross of Chelsea), to estimate
the respective and relative weight of these two factors and only to allow
the evidence to be put before the jury if he is satisfied that the answer
to the first question is clearly positive, and, on the assumption, which is
likely, that the second question must be similarly answered, that on a
combination of the two the interests of justice clearly require that the
evidence be admitted.”

It is clear therefore that the trial judge is in the best position to reach
a decision on this question, with all the materials which may bear upon it
fully present to his mind. It would, we think, be only in the clearest of
cases that an appellate court could base its decision on the view that
“similar fact” evidence had properly been left for the jury’s consideration
where it did not appear that the trial judge had consciously and
deliberately applied his mind to the issue and reached and expressed a
decision on the point favourable to the Crown. This is not such a case. For
those reasons we decided that Andrew-Cohen’s conviction on Count 11 had to
be quashed.

The case of * Novac * presents certain features which differ from that of
Andrew-Cohen, but we think that on this point in the end the same principle
must be applied with the same result.

It is true that the group of offences charged against Novac in Counts 4, 5,
and 6 were closely interrelated, and the judge’s directions to the jury,
indicating the extent to which the evidence relevant to these Counts was
capable of being regarded as mutually corroborative, were impeccable. Mr.
Jeffereys has urged upon us the view that these admirable directions in
some way made good the absence of any direct’.on that the conspiracy
evidence should be disregarded when the jury came to consider Counts 4, 5
and 6, and he has invited us to apply the proviso. Mr. Jeffereys, however,
frankly conceded that there was, in addition, a specific misdirection
affecting Novac on Counts 4, 5 and 6, at Vol. 4 p. 51, where the judge
indicated to the jury that Novac’s admission of a homosexual relationship
with another boy under twenty-one, during the same period of time as that
involved in Counts 4, 5 and 6, was capable of corroborating the boys
concerned in those counts. In the case of * Novac * also we were impelled
to the conclusion that his convictions on Counts 4, 5 and 6 must be quashed.

It would not have been appropriate to uphold the convictions of any of the
first three appellants on any of the specific offence counts under the
proviso to Section 2 (1) of the Criminal Appeal Act 1968. It may very well
be that, if each appellant had been tried separately on these counts, or if
the jury had been clearly directed to disregard the evidence on the
conspiracy and related counts when considering the specific offence counts,
each would still have been convicted. But it is impossible to say that that
would necessarily have been the result. It is accordingly impossible to say
that the refusal of Raywood’s application to sever or the way in which the
matter was left to the jury in the cases of Andrew-Cohen and Novac resulted
in no miscarriage of justice.

The appellant Archer was not concerned in the conspiracy and related
counts. The series of offences alleged against him in Counts 12 – 19 of the
indictment were quite separate and distinct from the natters on which the
case against the other three appellants rested, save that in a number of
cases the youths with whom Archer’s offences were alleged to have been
committed claimed that they had met him at the Playland Amusement Arcade.
The evidence relied on by the Crown against Archer, however, included
evidence of the police officers, whose observations were the foundation of
the conspiracy case, that they had seen Archer on three or four occasions
at or near Playland in company with the other three appellants and in
circumstances suggesting that he was freely consorting with homosexual
prostitutes and interested in them in a sexual way. This evidence was
objected to on behalf of Archer but was allowed to be given. Unfortunately,
we do not have a transcript of the relevant ruling by the learned judge.
Mr. Jeffercys has sought to justify the ruling on the basis that the
evidence was admissible on “similar fact” principles. The short answer to
this submission is that the evidence impugned not only did not show that
Archer had committed other offences in a manner strikingly similar to the
specific offences with which he was charged; it did not show he hod
committed other offences at all. It was probative of nothing relevant to
the offences with which Archer was charged. What it did, unquestionably,
was to weave a web of suspicion about Archer which must have been
devastatingly prejudicial when the jury
came to consider the disputed evidence of the boys with whom specific
offences wore alleged to have been committed. – The case against Archer in
respect of the specific offences was an extremely strong one. As between
the evidence of the several boys who spoke to those offences, there was,
upon the evidence, sufficiently striking similarity in certain detailed
respects in the manner in which the offences were committed, for the judge
quite properly to have directed the jury, as he did, that the witnesses
mutually corroborated each other. In spite of these considerations, we
could not exclude the possibility that the inadmissible evidence of the
police officers which was allowed to be given against Archer may have
turned the scales against him decisively in the jury’s mind. We concluded
in this case also that it was impossible to apply the proviso, and decided
that all Archer’s convictions must be quashed.

So far as concerns the appeals against conviction, it remains only to
consider Novac’s appeal against his conviction of conspiracy on Count 1.
Under the first head of his submission Mr. Alan Campbell links three
matters of complaint, which he submits makes this conviction unsafe and
unsatisfactory. First, he submits that the Judge misdirected the jury in
the course of explaining the ingredients of the crime of conspiracy when he
said; “It does not necessarily have to be an oral, or spoken agreement,
because you can join a conspiracy by conduct: by simply joining in”, and
agand when he said: “The first question you ask yourselves about Count 1 is
this: Was there a conspiracy at all? That is, was there an agreement -not
in writing, not necessarily in words – but by mutual conduct, and perhaps
in words as well?”.

We can find no misdirection in these passages. The learned judge was merely
telling the jury, quite correctly, that an agreement can property be
inferred from conduct.

Secondly, Mr. Campbell points out that the scope of the alleged conspiracy
in Count 1 was narrowed in the course of the trial. At the outset the
conspiracy alleged was between the first three appellants and other
persons, of whom particulars were given in response to a request, and the
purpose of the conspiracy was alleged to be procuring acts of gross
indecency not only with the three appellants themselves but also again with
other persons, of whom particulars were given. By the end of the trial, in
response to applications for the defence the case was left to the jury on
the footing that the only persons to be considered as potential
conspirators were the three appellants named in Count 1, and that similarly
they were the only persons for whose benefit acts of gross indecency were
to be procured.
Mr. Campbell complained that in some way this narrowing of the scope of
Count 1 prejudiced his client. We cannot see that it did any such thing. On
the contrary, the reduced ambit of Count 1, as it was eventually left for
the jury’s consideration, resulted from a concession made by the Crown at
the urgent insistence of Mr. Campbell on behalf of Novac and can only have
been to Novac’s advantage. Thirdly, Mr. Campbell pointed to Novac’s
acquittal on Count 2 of the charge of living on the earnings of male
prostitution and suggested that this cast some doubt on the jury’s
conclusion on Count 1. We need only say that we see no basis for that
contention. For the reasons indicated, each of the three points collated
under the heading of Mr. Campbell’s first submission, when examined
individually, is seen to be without substance and we have been unable to
see how they gain any strength by being considered in conjunction with each
other.

Under the second general heading of his submission, Mr. Campbell complained
that, just as the jury may have improperly treated the conspiracy evidence
as corroborating the evidence of the boys on Counts 4, 5 and 6, so,
conversely, they may have relied on the evidence of those boys in support
of the case against Novac on Count 1. The logic of this submission is
undeniable. However as soon as one considers the character of the evidence
on Count 1 and compares it with the character of the evidence on Counts 4,
5 and 6 it becomes apparent that the’ complaint, though logical, is
insubstantial. There was only one witness, the boy F, who spoke to a
specific incident of indecent behaviour by Novac within the conspiracy
period and whose evidence fell within the judge’s general warning about the
danger of convicting on such evidence without corroboration. Quite apart
from the evidence of F the evidence from police officers and from Novac’s
own statements, pointing to Novac’s participation in the alleged
conspiracy, was quite overwhelming. For those reasons, even though it may
be right technically to regard the judge’s failure to direct the jury that
the conspiracy count should be considered in isolation from the evidence
relating to Counts 4, 5 end 6 as a failure to give a necessary direction,
the danger that the jury may have relied on the evidence of the boys
concerned in Counts 4, 5 and 6 in arriving at their verdict of guilty on
Count 1 is so small as to be negligible and Novac’s conviction on Count 1
we unhesitatingly uphold by the application of the proviso.

Novac and Andrew-Cohen applied for leave to appeal against sentence. In
respect of the convictions we affirmed, Andrew-Cohen was sentenced to
concurrent terms of two years’imprisonment on Count 1 and three years’
imprisonment on Count 10. He was sentenced to-a consecutive tern of twelve
months’ imprisonment for offences of dishonesty to which he pleaded guilty
on a second indictment. Mr. Guthrie Jones’ only criticism of these
sentences was directed at the term of three years imposed on Count 10. He
cubmitted that there was no logical reason why the jury should not have
been discharged from giving a verdict on this Count, as they were on Counts
8 and 9, since the offences in all these three counts, were essentially
part of the conspiracy. Alternatively, Mr. Guthrie Jones submitted that, if
the offence charged in Count 10 warranted a separate conviction, it
certainly did not warrant a longer sentence than that imposed for the
conspiracy. We thought these submissions were well founded, granted leave
to appeal against sentence and reduced Andrew-Cohen’s sentence on Count 10
from three to two years’ imprisonment, with the result that his total
sentence on both indictments was reduced to three years.

Novac was sentenced to two years’ imprisonment on Count 1, twelve months’
imprisonment concurrent on Count 3 and eighteen months’ imprisonment
consecutive for five offences of dishonesty to which he pleaded guilty on a
second indictment, with fourteen similar offences taken into consideration.
We could find no ground to justify any reduction in these sentences and
refused his application for leave to appeal against sentence.

We cannot conclude this judgment without pointing out that, in our opinion,
cost of the difficulties which bedevilled this trial, and which have led in
the end to the quashing of all convictions except on the conspiracy and
related counts, arose directly out of the overloading of the indictment.
How much worse the difficulties would have been if the case- had proceeded
to trial on the original indictment containing thirty eight counts, does
not bear contemplation. But even in its reduced form the indictment of
nineteen counts against four defendants resulted, as is now plain, in a
trial of quite unnecessary length and complexity. If the specific offence
counts against Novac, Raywood, and Andrew-Cohen and all the counts against
Archer had been tried separately, the main trial of the conspiracy and
related counts would have been reasonably manageable and the four separate
trials would have been short and straightforward. Quite apart from the
question whether the prosecution could find legal justification for joining
all these counts in one indictment and resisting severance, the wider and
core important question has to be asked whether in such a case the
interests of justice wore likely to be better served by one very long
trial, or by one moderately long and four short separate trials.
We answer unhesitatingly that whatever advantages were expected to accrue
from one long trial, the precise character of which has never been apparent
to us, they were heavily outweighed by the disadvantages. A trial of such
dimensions puts an immense burden on both judge and jury. In the course of
a four or five day summing-up the most careful and conscientious judge may
so easily overlook some essential matter. Even if the sunning-up is
faultless, it is by no means cynical to doubt whether the average juror can
be expected to take it all in and apply all the directions given. Some
criminal prosecutions involve consideration of matters so plainly
inextricable and indivisible that a long and complex trial is an
ineluctable necessity. But we are convinced that nothing short of the
criterion of absolute necessity can justify the imposition of the burdens
of a very long trial on the Court.

In making these comments we are by no means criticising the learned judge
in the instant case. When, at the cutset, he had to consider the question
of severance, to the limited extent that it was canvassed before him, he
had had no opportunity to consider the voluminous committal papers and
could only decide on the basis of such arguments as counsel presented to
him. He certainly had no opportunity to apply his mind to the wider
questions to which we have drawn attention. It must always be the
responsibility of those who have the conduct of a prosecution of any
magnitude to consider those wider questions. It is quite wrong for
prosecuting authorities to charge, in a single indictment, numerous
offenders and offences, simply because some nexus may be discoverable
between them, leaving it to the Court to determine any application to sever
which may be made by the defence. If multiplicity of defendants and charges
threatens undue length and complexity of trial then a heavy responsibility
must rest on the prosecution in the first place to consider whether joinder
is essential in the interests of justice or whether the case can reasonably
be sub-divided or otherwise abbreviated and simplified. In jury trials
brevity and-simplicity are the hand-maidens of justice, length and
complexity its enemies.

(Application by Mr. Campbell for certification of a point of law of general
public importance refused.)

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.

Links

[1] Cathy Fox Blog 2015 May 8 [constantly updated] An Index / Timeline of Court Appeal Documents on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[2] 2015 May 6 Cathy Fox blog Paedophilia around Piccadilly Part 4- Playland Trial and Cover Up  https://cathyfox.wordpress.com/2015/05/06/paedophilia-around-piccadilly-part-4-playland-trial-and-cover-up/

[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...
This entry was posted in #OpDeathEaters, #OpPaedoHunt, cathy fox blog, Child Abuse, Child sexual abuse, Court, London, Paedophilia around Piccadilly and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

6 Responses to Novac, Archer, Raywood, Andrew-Cohen 1976 Dec 15 Court of Appeal

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

  2. cassandracogno says:

    http://www.ft.com/cms/s/0/611a30ec-84a2-11da-b3f3-0000779e2340.html#axzz3ZaAp6ZrH Raywood’s barrister went on to become 17th Duke of Girasole, Italy in 1994! Wondered why R didn’t have a QC like the others

  3. Pingback: Paedophilia around Piccadilly Part 4 Playland Trial and Cover up | cathyfox blog

  4. Pingback: Playland 1970-1975: When protecting ‘millionaires titled and influential’ paedophile punters becomes paramount | Bits of Books, Mostly Biographies

  5. Pingback: Paedophilia around Piccadilly Part 5 1980s and Operation Circus | cathy fox blog

  6. Pingback: 1981 Playland Plot thickens – Tax Evasion | cathy fox blog

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