Maurice Henn and John Darby Court of Appeal 13th July 1978 [Wilson burglary]

This appeal is by two men, Henn and Darby, who were importing pornographically explicit material. They were appealing against their convictions for indecent and obscene material, which they lost. Henn was previously involved in handling photographs and documents stolen from Harold Wilson when Prime Minister just before he resigned. That is not mentioned in this appeal, but will feature in a future post.

Trigger Warning

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. Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful. Also see Hwaairfan blog An Indigenous Australian Approach to Healing Trauma*  [J]

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” across most of the spectrum of abuse. This may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That information is mainly names of the perpetrators, past addresses, the actual charges the perpetrators faced – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

Cathy Fox Blog Index and Timeline of Court Appeals and Documentation [2]

This particular appeal is in fact unredacted.

[ 1978] EWCA Crim J0713-1

No. 4040/C/77

No. 4418/A/77

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Thursday, 13th July 1978
Before:

The Lord Chief Justice of England (Lord Widgery)

Lord Justice Waller

and

Mr. Justice Milmo

Regina
v.

Maurice Donald Henn

and

John Frederick Ernest Darby

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

MR. L. SCHAFFER appeared on behalf of the Applicant Henn.

MR. E. MONEY appeared on behalf of the Applicant Darby.

MR. COLIN NICHOLLS appeared on behalf of the Crown.

APPLICATION FOR LEAVE TO CERTIFY A POINT OF LAW OF GENERAL PUBLIC
IMPORTANCE AND LEAVE TO APPEAL TO THE HOUSE OF LORDS

Their Lordships, having determined that the proceedings had involved
argument on a point of law and that the hearing in which Judgment was
delivered on Friday, 7th July, 1978 was the hearing of an appeal, granted
an application under section 33(2) of the Criminal Appeal Act, 1968 that a
point of law of general public importance was involved in the decision,
namely, “Whether section 42 of the Customs Consolidation Act, 1876 is
effective to prevent the importation of pornographic articles from Holland
notwithstanding Articles 30 and 36 of the EEC Treaty of Rome”. Leave to
appeal to the House of Lords was refused. Legal Aid was granted to petition
the House of Lords for leave.

1978] EWCA Crim J0707-2

No. 4040/C/77

No. 4418/A/77

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Friday, 7th July 1978
Before:

The Lord Chief Justice of England

(Lord Widgery)

Lord Justice Waller

and

Mr. Justice Milmo

Regina
v.

Maurice Donald Henn

and

John Frederick Ernest Darby

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

MR. L. SCHAFFER appeared on behalf of the Applicant Henn.

MR. E. MONEY appeared on behalf of the Applicant Darby.

MR. COLIN NICHOLLS appeared on behalf of the Crown.

JUDGMENT

(As approved by Judge)

THE LORD CHIEF JUSTICE : These two Applicants Maurice Donald Henn and John
Frederick Ernest Darby were conducting a mail order business in which the
goods sold were pornographic literature of all kinds. There were books, pictures, films and other matters of that kind.

Eventually the authorities caught up with them, and in July 1977 at the
Ipswich Crown Court they both faced an indictment containing a total of
some 15 counts. The indictment included nearly all the versions of what one
might call indecency offences that there are. Count 2, for example, was
procuring the sending of a postal packet, contrary to section 11 of the
Post Office Act, 1953; count 9 publishing an obscene article, contrary to
section 2 of the Obscene Publications Act, 1959; count 10 procuring the
sending of a postal packet enclosing an indecent or obscene article,
contrary to section 11 of the Post Office Act; and, notably, count 13,
which was laid under section 304 of the Customs and Excise Act 1952, and
alleged that the Applicants were knowingly concerned in the fraudulent
evasion of the prohibition on the importation imposed by section 42 of the
Customs Consolidation Act, 1876, contrary to section 304 of the Act of 1952.

Of these various counts (and I need not go into the details of which
resulted in acquittals and which in convictions) one was very much on its
own in that it raised additional issues which did not touch the remainder,
and that is count 13, and it is with count 13 that I can conveniently deal
first.

In simplest language, count 13 was concerned with the importation of a
lorry load of pornographic goods coming from Holland into this country on
the Rotterdam/Felixstowe route. According to the prosecution, the lorry
came across on the ferry and proceeded to a lay-by a few miles from the
point of disembarkation where a rendezvous was held and where the goods
eventually found their way into the organisation run by Henn and Darby, as
I have already described.

The prosecution led evidence of the lorry arriving in this way, and led
evidence which, if believed by the jury, was a satisfactory link or chain
from the arrival of the lorry to the time when the goods were themselves
traced. Therefore, on the face of it, there is nothing surprising about the
fact that they were both convicted and sentenced to appropriate terms of
imprisonment in respect of that offence.

What is unusual about it, and what has given rise to
most of the argument in this appeal, is the contention by the Applicants
that, since the entry of this country into the Common Market on the 1st
January, 1973, there has been a change in the domestic, local law of this
country to the effect, amongst other instances, that the prohibition on the
movement of goods imposed by section 42 of the Customs Consolidation Act,
1876 (which is the basic prohibition said to have been breached in this
case) no longer applied, and that the Common Market legislation has
overwhelmed, as it were, the English domestic legislation on that point.

There is no doubt at all that the effect of the entry into the Common
Market has made very substantial differences of this kind. But one must
examine the particular case with which we are concerned and see how far it
applies to that case.

I turn, therefore, first of all, to the prohibition said to have been
breached by the bringing of these goods into this country. Section 42 of
the Customs Consolidation Act, 1876 provides: “The goods enumerated and
described in the following table of prohibitions and restrictions inwards
are hereby prohibited to be imported or brought into the United Kingdom,
save as thereby excepted ….” In the following table one finds: “Indecent or
obscene prints, paintings, photographs, books, cards, lithographic or other
engravings, or any other indecent or obscene articles.” There is the
prohibition, so far as the English statute is concerned, and I have already
indicated that the offence is created by section 304 of the Customs and
Excise Act, 1952.

There is, of course, no doubt that one of the major objectives of the
Common Market was that goods should have free circulation between the
various member states, and the argument put forward by the Applicants (both
below and in this Court) on this point is that in pursuance of that desire
the effect of the change in the legislation has been to remove the
prohibition contained in section 42.

The basis of the argument that the Common Market legislation has had that
result is Article 9 of the Treaty of Rome, which provides: “The Community
shall be based upon a customs union which shall cover all trade in goods
and which shall involve the prohibition between Member States of customs
duties on imports and exports and of all charges having equivalent effect, and the
adoption of a common customs tariff in their relations with third
countries.”

Subparagraph 2 provides: “The provisions of Chapter 1, Section 1 and of
Chapter 2 of this Title shall apply to products originating in Member
States and to products coming from third countries which are in free
circulation in Member States.”

There is the objective, as one might describe it, the promised land at
which the Common Market is aimed.

More specifically, in working out that general contention, one looks at
later Articles in the Treaty, notably Article 30, which provides:
“Quantitative restrictions on imports and all measures having equivalent
effect shall, without prejudice to the following provisions, be prohibited
between Member States.”

There is a provision striking at restrictions on imports of the kind which
warrant the adjective “quantitative”. Here, as I have already indicated,
the prohibition is total; the prohibition is on all obscene goods, not
merely measured by quantity. At first blush, and subject to the authorities
which follow, we would, I think, be inclined to say that Article 30 did not
apply to this case because the restriction was not related to a
quantitative measure.

But the matter does not stop there, because, even if the prohibition
appeared to be caught by Article 30 of the Treaty, there remains a further
line of defence under Article 36, which provides: “The provisions of
Articles 30 to 34 shall not preclude prohibitions or restrictions on
imports, exports or goods in transit justified on grounds of public
morality, public policy or public security; the protection of health and
life of humans, animals or plants; the protection of national treasures
possessing artistic, historic or archaeological value; or the protection of
industrial and commercial property. Such prohibitions or restrictions shall
not, however, constitute a means of arbitrary discrimination or a disguised
restriction on trade between Member States.”

Looking at that, one can see immediately that it is dealing with
prohibitions which are justified on grounds of public morality or public
policy, and one can now see the shape of the argument at once, because the
argument for the Crown in
this case is that, notwithstanding the creation of the Common Market, and
notwithstanding the provisions which I have read, and indeed, if it is the
case, notwithstanding the proper construction of the word “quantitative” in
Article 30, yet, despite all those things, the Crown say Article 36 remains
and saves this prohibition, and accordingly enables the Crown to uphold the
conviction.

We are entirely in agreement with the argument of the Crown on this point,
but I must deal with one or two of the matters which were particularly
canvassed in argument. First of all, it was said that we should give the
word “quantitative” a very wide interpretation. There is authority in the
Common Market cases which justifies that general statement.

We still, however, find it extremely difficult to see how the adjective
“quantitative” can appear in this Article except in order to limit the
prohibition to those concerned with quantity.

Further, we have been shown authority which indicates that in Article 36
the word “justified” is the equivalent of the word “necessary” in the
official translation it is “justified”. “Justified” seems a far more
appropriate word, and, therefore, we are entitled in the context of this
case to say that we are not required to read “justified” as though it said
“necessary”. It may be it would not have made any difference if we had put
in “necessary” but it seems to us that would not give effect to the plain
English words of this version of the Treaty.

Having said that, the matter is resolved because the Court of Appeal in
England has already pronounced on a number of other matters arising out of
these Articles of the Treaty. In particular, in * H.P. Bulmer Limited and
Anor v. J. Bollinger S.A. and Others * (1974) 1 Chancery 401 , Lord Denning
has indicated the attitude which should be adopted by first instance courts
in dealing with matters of this kind. Lord Denning’s observations, of
course, are in the light of Article 177 of the Treaty, which provides that
any court of a member state may refer problems of interpretation of the
Treaty of Rome to the Court at Luxembourg. Much of the argument we have
heard today has been that we ought to take that course; in other words, it
has been said that this is a case where we
ought not to rely on our own views but ought to take the expert opinion of
the Luxembourg Court.

This is what Lord Denning said about that kind of problem in * Bollinger’s *
case. He said at page 421: “Whenever any English court thinks it would be
helpful to get the view of the European Court – on the interpretation of
the Treaty -there is a condition precedent to be fulfilled. It is a
condition which applies to the House of Lords as well as to the lower
courts. It is contained in the same paragraph of article 177(2) and applies
in article 177(3) as well. It is this: an English court can only refer the
matter to the European court ‘if it considers that a decision on the
question is necessary to enable it to give judgment.’ Note the words ‘if it
considers. ‘ That is, ‘if the English court considers.’ On this point again
the opinion of the English courts is final, just as it is on the matter of
discretion. An English judge can say either ‘I consider it necessary,’ or
‘I do not consider it necessary.’ His discretion in that respect is final.”

We would undoubtedly refer this problem to the European court at Luxembourg
if we had any doubt at all as to whether we have got the right solution to
the problem here posed. It seems to us that there may very well be cases in
the future where a real question is raised as to the meaning of the phrase
“public morality” or “public policy” but we do not see any possible way in
which such issues could arise in this case, because it seems to us too
clear to be argued that when one comes to look at Article 36 its plain
purpose is to preserve prohibitions, which in turn have the plain purpose
of supporting public morality. We cannot see how prohibition on the
introduction of obscene literature can be other than a prohibition
justified on the grounds of public morality and public policy.

So much for the main issue in the appeal. It has taken rather a shorter
time to comment upon it than it took to argue it, but we have been very
much assisted by Counsel today. That is not the end of the matter because,
quite apart from the argument based on the Common Market, Counsel on behalf
of each of these Applicants has had a case to argue seeking to set aside
the convictions on other grounds. I am anxious to
do justice to the arguments which we have heard, but, as will appear in a
moment, it is not the easiest case to deal with either as Counsel or as
Judge.

I can conveniently take first what has been referred to as the aversion
theory. The theory has grown up in recent years that articles which are
apparently obscene, disgusting and filthy may not deprave or corrupt if
they are so bad as to put off their readers from such practice.

This principle was most fully stated in the case of * Regina v.
Anderson * (1972)
1 Queen’s Bench 304 , and some will remember it as being concerned with a
publication called Oz. In the course of that case the aversion theory was
propounded, that is to say it was said that much of the material in Oz was
so disgusting that it would put people off and not encourage them to evil
ways, and that matter was not dealt with fully or at all by the trial Judge.

In giving the judgment of the Court of Appeal in that case I referred to
the failure of the Judge to deal with the aversion argument and also
certain other irregularities in the course of his summing-up. Then I went
on at page 315 to say: “Those two matters put together, in our judgment,
form a very substantial and serious misdirection, and they are not made any
better by the fact that, on the one occasion when the judge dealt with the
aversion argument in any serious way at all, he dealt with it in such a way
as to destroy its value rather than to explain its value.”

The outcome of * Regina v. Anderson * was that the conviction was quashed
because the failure of the trial Judge adequately to deal with the aversion
argument was found to be enough with the other matters complained of to
cause the conviction to be quashed.

Here Mr. Money (and I think Mr. Schaffer too) certainly raised the aversion
theory before the court of trial and he invited the trial Judge to direct
the jury upon it in the ordinary way. However, when the trial Judge was
about to finish his summing-up (an operation which had lasted something
like five days) Counsel were somewhat apprehensive because they felt that
certain important matters had been omitted from the
summing-up so far. Accordingly, in what was no doubt a most helpful way
they, between them, put together a non-controversial list of matters which
they were going to invite the trial Judge to comment on before he sent the
jury out. Mr. Nicholls, in particular, pointed out in the clearest terms
that the learned Judge had not dealt with the aversion argument and invited
him to do so.

The Judge was not very enthusiastic about this. At page 307 of the
transcript one sees how he receives this suggestion from Mr. Nicholls. He
says: “Secondly it has been represented to me that Mr. Money in his speech
to you referred to the possibility that the effect on people of receiving
some or any of these published documents might be to avert them from any
addiction. Aversion, it is called. Well there was a case decided in which a
doctor gave evidence that the material was so fearful or ghastly if I use
that word that its effect would be totally to disgust and turn away and
make people avert their eyes and ears from the material. The judge failed
to leave that to the jury. It comes to would it tend to corrupt and deprave
if that was its effect and if instead of corrupting or depraving you it
cures you that is not corrupting or depraving you. For that is a case where
a doctor gave evidence, a psychologist I do not know, and it was not dealt
with. An aversion has been mentioned, no witness has been called to say
this material would cause you to avert you might wonder how it arose. But
as it has been mentioned in a speech consider whether the material in your
view instead of tending to deprave or corrupt it tends to cure by aversion,
if you think such a thing is likely. But what the Prosecution say is this
is material which persons would pore over and far from being improved in
their moral health, I suppose that is what one calls it, would be made
worse.”

The Judge there, as I say, is not being awfully enthusiastic about the
aversion theory. He refers to the earlier case to which I have already
referred as being one where a doctor was called, rather implying the jury
should not follow the aversion theory unless there is some medical evidence
to support it. He also refers to the fact that the aversion theory was
mentioned in a speech of Counsel rather than in evidence on oath in the
ordinary way. Then, after all that,
he produces a number of statements about the aversion theory, but he
describes it in about three lines, whereas the arguments against it have
taken about thirteen. It is said that when one looks at the thing as a
whole, in the cold light of the Court of Appeal, he did not give the
aversion theory a clear run at all. If that is so, Mr. Money, naturally
enough, invokes the * Anderson * case and says we ought to quash the
conviction.

We have thought a lot about this because this is not at all an easy point,
but we think one has to remember that the aversion theory is simply the
theory that people may be turned away from unpleasant things by reason of
their very unpleasantness. The reason why one insists on a matter being
referred to in a summing-up is because there are plenty of jurors to whom
this idea would never occur unless they had it put before them. Therefore,
what is required is that something should be said which will remind the
jury that, if they are thoroughly disgusted by the sight of these articles,
they must not run away from them until they have considered the possibility
that they would have the effect of aversion and, therefore, would not be
tending to corrupt or deprave at all.

We think, on the whole, that that would have got over to the jury in the
language of the Judge which I read in full, and so we do not find any
reason for quashing the convictions on the basis of the aversion theory.

The next ground is one put forward by Mr. Schaffer on behalf of Mr. Henn,
and it is concerned with a Sergeant of police who had interviewed the
Applicant Henn and had taken down a note of his evidence. According to the
police officer, the Applicant had refused to sign the note when it was
completed, and there is written on the bottom of the note itself the words
“Signed refused.” This was a matter of some importance, as all notes given
to police officers by suspects will be. Someone mentioned, possibly more in
jest than otherwise, that a day had been spent at the trial on this point
alone. But, be that as it may, Mr. Schaffer, following in the trail with
great care and great skill, if I may say so, managed to get the piece of
paper on which the words “signed refused” had been written to the forensic
laboratory to see if they had been
written with the same ink. The answer came back that they had not been
written with the same ink. Mr. Schaffer was much encouraged and thought he
had uncovered a case winning point. But the police officer turned the point
blandly away by saying “I carried five biros in my pocket anyway. It is
quite possible I pulled out one to make the statement and a different one
to write the words ‘signed refused’.” Of course the moment that is said, if
the jury were generally favourable to the police sergeant and thought he
was a man of truth, they would at once accept his explanation of why the
different ink had been used, and the whole argument collapses round Mr.
Schaffer’s head if one sees that possibility and recognises, as I think one
must, that the jury evidently believed the police officer and were prepared
to accept the excuse which he had given.

Then, to show how deeply one can descend in arguments of this kind, we had
one based on payment of VAT. It was elicited in the course of the trial
that these pornographic articles which had come across from Rotterdam to
Felixstowe had paid VAT and that the English government would obtain some
microscopic benefit from this because all VAT went into a common fund out
of which a suitable dividend would come.

It was then argued, and I think in these strong terms, that a government
which shared the VAT on the sale of pornographic literature could hardly
then proceed to enforce the prohibition on its entry or to punish the
importer for having done so.

It does not seem to us that that argument is worth the time spent upon it,
and we pass on.

We pass on, indeed, to the last ground which we propose to deal with, and
in a sense it is the most difficult.

This case lasted 41 working days, which seems an incredibly long time for a
comparatively simple case. The summing-up, as I have already said, was said
to have occupied something like five days. There was an interval in the
middle for the jury to catch their breath, but it occupied five working
days, as I understand it, before it was finally concluded.

There is criticism of the learned Judge on the ground that his summing-up
was confused and confusing, that it was much too long, that it lacked
pattern, and that, in particular,
it signally failed to direct the jury that they must be satisfied of guilty
knowledge on the part of these Applicants in cases where guilty knowledge
was necessary.

It is very difficult for Counsel to make a criticism of this kind. It is
equally difficult for the Respondent’s Counsel to resist the attack, and it
is equally difficult for the trial Judge or Judge of the Court of Appeal to
endeavour to describe the factors which have led him to reach a conclusion.
We have read the parts of the summing-up to which our attention has been
referred, and we have listened to the considerable and powerful arguments
directed towards us by Mr. Money, principally, about the deficiencies of
this summing-up. We think it was too long. We do think it lacked pattern or
shape, and these long summings-up do require pattern and shape and a little
bit of thought in planning them in order to make them helpful to the jury.

We see all those matters, but, of course, the final question which we have
to ask ourselves is: was the summing-up such a failure overall that the
verdict is itself now unsafe or unsatisfactory. There is no other way of
attacking a jury’s verdict in this situation except by saying that for this
reason or another the result was unsafe or unsatisfactory.

We realise the responsibility which is involved in reaching a conclusion on
a long and rather woolly summing-up such as we have before us, but we have
come to the conclusion in the end that we are not in a position in which we
regard the verdict as unsafe or unsatisfactory. That means that, so far as
the applications for leave to appeal against conviction are concerned, they
must all be refused.

We will, however, listen to argument on sentence if and in so far as there
are applications in regard to sentence still extant.

(Mr. Money addressed the Court on sentence on behalf of the applicant
Darby.)

THE LORD CHIEF JUSTICE : The only way in which the Court is minded to alter
the sentence on Darby is that we think there is an element of injustice and
hardship in the activation of a suspended sentence such a long time after
the events giving rise to the activation.
Having regard to that criticism of the sentence imposed, we shall allow the
appeal against sentence, assuming Mr. Money’s instructions allow us to do
so. We shall allow the appeal against sentence to the extent of making the
suspended sentence concurrent instead of consecutive. The total sentence
will now be four years and six months.

(An application for leave to appeal to the House of Lords was adjourned.)

Links

[2] 2015 Cathy Fox Blog Timeline of Court Appeals and Documentation https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-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/

[G] Jim Hopper Mindfulness http://www.jimhopper.com/mindfulness/

[H] Jim Hopper Meditation http://www.jimhopper.com/mindfulness/#cultivate

[J] 2016 Jan 5 Hwaairfan blog An Indigenous Australian Approach to Healing Trauma* https://hwaairfan.wordpress.com/2016/01/05/an-indigenous-australian-approach-to-healing-trauma/

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

“The only thing necessary for the triumph of evil is that good men do nothing” – Edmund Burke

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the truth will out, the truth will shout, the truth will set us free...
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One Response to Maurice Henn and John Darby Court of Appeal 13th July 1978 [Wilson burglary]

  1. Pingback: An Index and Timeline of Court & Court of Appeal, EWCA and Scottish Documents on Cathy Fox Blog | cathy fox blog

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