Robert Black Court of Appeal 1995 Feb 23

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 has been redacted of two victims names, one with reporting restrictions and one still alive and not widely known. This is to prevent the ghoulish corporate press writing for entertainment, bothering families and is to help prevent more anguish to families. Similarly identifying locations have been redacted. Assault redaction has also been done.

*IN THE COURT OF APPEAL CRIMINAL DIVISION*

No. 94/3697/S1

Royal Courts of Justice

The Strand

London WC2

Thursday 23 February 1995

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr
Justice Ognall and Mrs Justice Steel

*Regina*

*v.*

*Robert Black*

*MR RONALD THWAITES QC* and *MR RUPERT MAYO* appeared on behalf of *THE
APPELLANT*

*MR JOHN MILFORD QC* and *MR TOBY HEDWORTH* appeared on behalf of *THE
CROWN*

Computer Aided Transcription by John Larking, Chancery House, Chancery
Lane, London WC2 Telephone 071–404 7464 (Official Shorthand Writers to the
Court)

*JUDGMENT*

*(**As Approved by the Court*)

*Thursday 23 February 1995*

*THE LORD CHIEF JUSTICE*: On 19 May 1994, at Newcastle upon Tyne Crown
Court, before Mr Justice Macpherson of Cluny and a jury, the applicant was
convicted of a number of grave crimes —on counts 1, 7 and 10, kidnapping;
on counts 2, 5 and 8, murder; on counts 3, 6 and 9, preventing lawful
burial of a dead body; and on count 4, false imprisonment.

The charges arose from the abduction of four young girls, three of whom
were murdered and their bodies abandoned. The verdicts in respect of counts
1, 2 and 3 relating to Susan Maxwell and count 10 relating to AB were unanimous. Those in respect of counts 7, 8 and 9 relating to
Sarah Harper were by a majority of 11 to 1. Those in respect of counts 4, 5
and 6 relating to Caroline Hogg were by a majority of 10 to 2. The
applicant was sentenced on the same day to life imprisonment on each count.
In respect of counts 2, 5 and 8 (murder) the judge recommended that the
applicant serve a minimum of 35 years before release. He applied for leave
to appeal against conviction and the Registrar referred the application to
the full court. On 20 February 1995, we refused the application and now
give our reasons.

The offences spanned a period of six years between 1982 and 1988. The
applicant was arrested and charged with them following his conviction of
abducting, assaulting and indecently assaulting a 6-year-old girl, CD in July 1990 at [P] near [town near P]. He had two previous
convictions in Scotland in 1963 and 1967 for libidinous conduct with girls
aged between 6 and 7. On 10 August 1990, he pleaded guilty to the offence
against CD and was sentenced to life imprisonment. The facts of
that case must be briefly described since it was the Crown’s case that they
bore a strong similarity to the modus operandi in the cases under appeal.

 

*THE CD CONVICTION*:

The applicant was born in 1947 in Scotland but moved South in 1969. At all
material times he worked as a driver for a London based firm making
deliveries throughout England and Scotland. July 14, 1990 was a hot
Saturday. The applicant was in [P] [location redacted] village in his transit van. He drove up
and down beside a children’s playground. He approached one young girl and
asked directions to a cafe which was obvious being on the main road. He did
not pick the girl up, perhaps because she had a dog. He had lunch at the
cafe and again drove up and down near the playground. He stopped beside
CD, got out, cloth in hand, and bundled her into his van.
Fortunately, this was seen by a neighbour. The van had been pointing south
where the applicant’s remaining delivery was to be made, but he turned it
round and drove to a lay-by north of the village. There he took the child’s
shoes and socks off and indecently assaulted her [assault redacted]. He again
turned south and went back through the village. Fortunately, the neighbour
had raised the alarm. The van was stopped by the police and the applicant
was arrested. In the van, the applicant had bonds, plaster, a hood, a small
girl’s swimming costume, a polaroid camera and certain objects described in
the trial as [redacted]. The applicant told the police he had always liked young girls. He
had just seen the victim and got her into the van; he had tied her up
because he wanted to keep her until he had made his last delivery and until
he went somewhere like Blackpool so that he could spend some time with her.
He would then have “just let her go”. Later he said he would not have taken
her to Blackpool.

We turn to the facts concerning the instant offences.

*THE MAXWELL OFFENCES ”Counts 1 to 3*:

On the afternoon of Friday 30 July 1982, which was also a hot day, Susan
Maxwell aged 11 disappeared as she walked home in Coldstream after a game
of tennis. She wore shorts, white socks and laced trainers. She was last
seen alive in the vicinity of the bridge over the Tweed shortly after 4 pm.
A fortnight later, on 12 August 1982, her body was found in a lay-by 244
miles to the south at Loxley in the Midlands. The body was not concealed.
Her shoes were missing. Her knickers were under her head but her shorts
were on as were her socks. Due to decomposition, the cause of death was not
discovered. No scientific evidence was obtained to connect the victim’s
body or clothes with the applicant.

A white transit-type van with curtains at its rear door window was seen
close to the spot from which the victim disappeared. It was admitted that
at the time in question the applicant was driving an unmarked white van
somewhat similar in appearance to a transit and there was evidence its back
windows were covered. Evidence of the timing of purchases by the applicant
of petrol at Stannington in Northumberland and later at Invergowrie,
Dundee, were consistent with the applicant having been in Coldstream at
about 4 pm. Similarly, a sighting of him in Carlisle and the purchase of
petrol at Watford Gap on 31 July were consistent with his having travelled
south very close to the A518 where the body was found in the lay-by.

*THE HOGG OFFENCES”Counts 4 ?6*:

Between 7 and 8 pm on 8 July 1983, Caroline Hogg, aged 51/2, went missing
from outside her home in Portobello near Edinburgh. She was wearing short
socks and velcro fastened trainers. She was seen by witnesses at a
fairground talking to a scruffy man who was holding her hand. Her naked
body was found just over four weeks later on 3 August 1983, over 200 miles
to the south, lying unconcealed in a lay-by on the A4 road at Twycross.
Again, decomposition made the cause of death indeterminate. No clothes or
shoes were found.

The applicant had friends at Donnisthorpe, near Twycross and was said to be
a regular visitor in the area.

There was no specific identification of the applicant or direct evidence of
his being in Portobello at the material time. However, the evidence as to
purchases of petrol and delivery of posters showed the applicant to have
been in Edinburgh between 8 and 11 July and he purchased petrol late on the
night of 9 July in Stafford, not far from the lay-by on the A4. Moreover,
the applicant’s route along the A1 to Edinburgh would have taken him along
Portobello High Street some 300 metres from the point of the victim’s
abduction.

*THE HARPER OFFENCES ”Counts 7 ?9*:

Shortly after 8 pm on 26 March 1986, Sarah Harper, aged 10, disappeared as
she was returning from a corner shop close to her home in Morley near
Leeds. Her body was found some 90 miles to the south in the River Trent
some three weeks later on 19 April 1986. Her shoes were missing. Although
the cause of death was drowning, there were a number of injuries inflicted
during life. These included bruises to the back and front of the head and
bruising to the neck which was consistent with pressure. [assault redacted]

A depot to which the applicant frequently made deliveries was less than 200
yards from the victim’s home in Morley. A white “transit-type” van was seen
at the relevant time near to the point of abduction. Again, a white
transit-type van was seen close to the River Trent just before the M1
flyover at about 9.15 pm on the evening of the abduction and there was
police evidence that the journey from Morley to the flyover would take
about 11/4 hours.

*THE AB OFFENCE ”Count 10*:

At about 7 pm on 24 April 1988, a warm Sunday, AB, took leave
of her boyfriend and started to walk home on her own in [Q][location redacted].
Although aged 15, she looked younger, about 12. She noticed a blue transit
van and saw a man open the bonnet. He called out to her, asking if she
could fix engines. She said no and began to walk faster. The man seized
her, wrapped his arms round her and carried her across the street towards
the van as she struggled. She knocked off his sun-glasses, but he got her
to the entrance of the vehicle and was trying to push her inside when her
boyfriend returned and shouted to the man. He dropped the girl, got into
his van and drove away. Both AB and her boyfriend described the man in
terms consistent with the applicant’s appearance. The boyfriend however
also described the van and in particular noticed there was damage to the
middle part of its bonnet which looked as though it had been caused by a
hammer. The applicant’s blue transit van was repaired shortly afterwards
and the repairer described a dent about 1 ft. wide in the centre of the
bonnet. A blue Ford transit van was filmed by a video camera mounted on a
bank near the point of abduction. The van was pictured turning some seconds
after the two young people ran off, but the camera did not capture the
driver or the registration number. The boyfriend thought the vehicle to be
a 1986 transit with a C registration. The applicant’s van was a 1986 model,
but with a D registration.

Two days after that incident, the applicant was again in [Q] [location redacted and newspaper]. That edition contained an account of the offence. Some two years later that very newspaper was found at the applicant’s home after his arrest.

The case for the Crown was that the [P] offence to which the applicant pleaded guilty, displayed a “hallmark” or “signature” strongly
replicated in each of the instant offences so that evidence of all the
incidents including the offence in [P] could properly be put before the
jury. The defence contended that there was no such “hallmark” or
“signature” to be discerned; further, that the prejudice of admitting the
[P] incident greatly outweighed its probative value if any, and
accordingly that incident should not go before the jury. The trial judge
considered this issue in advance of the trial when sitting at Chelmsford
and ruled in favour of the Crown. Evidence was accordingly led of all the
incidents, including not only the [P] conviction but the circumstances of
that offence.

A further application was made on behalf of the applicant during the trial,
to exclude certain other evidence the prosecution wished to adduce. A
suitcase had been found at the house where the applicant lodged in London.
It contained a large body of pornography, children’s clothing (such as a
small girl’s bathing costume), polystyrene dildos and other “probes”. The
judge ruled that no reference should be made to the dildos and probes found
in the suitcase but he admitted the pornography and the children’s clothes.

At the end of the prosecution a submission of no case was made but the
learned judge rejected it. Thereafter, the applicant did not give evidence,
but a number of witnesses were called on his behalf. They were relied on to
support what was called the defence’s “contrary case”. There was no dispute
that the three girls had been murdered and that all four girls had been
abducted, but the defence sought to show that one or more persons other
than the applicant must or may have committed the offences. Thus, in
relation to the *Maxwell* offences, witnesses were called who claimed to
have seen vehicles other than a white van; evidence was called to suggest
that at the relevant time the applicant may have been making a delivery in
Glasgow; and sightings of a red or maroon vehicle in the Loxley lay-by
between 30 July and 2 August 1982 were adduced.

As to the *Hogg* offences, evidence was called about the man with the
victim at the funfair, suggesting he may have got into an old blue car, a
light blue Volvo, or a navy blue Cortina. A witness was called who had seen
a girl resembling the victim in a Ford car with a man seeming to be drunk.

In relation to the *Harper* offences, there were sightings of a red or
maroon vehicle and a man with light gingery hair who seemed to have a green
Saab car.

The first ground of appeal was that the judge should not have permitted the
applicant’s conviction in Scotland for the [P] incident to be before the
jury. The law relating to the admission of similar fact evidence was stated
definitively in *DPP v P* *[1991] 2 AC 447* . At page 462D, the Lord
Chancellor, giving the sole opinion in the case, said:

“When a question of the kind raised in this case arises, I consider that
the judge must first decide whether there is material upon which the jury
would be entitled to conclude that the evidence of one victim, about what
occurred to that victim, is so related to the evidence given by another
victim, about what happened to that other victim, that the evidence of the
first victim provides strong enough support for the evidence of the second
victim to make it just to admit it, notwithstanding the prejudicial effect

of admitting the evidence. This relationship, from which support is
derived, may take many forms and while these forms may include “striking
similarity” in the manner in which the crime is committed, consisting of
unusual characteristics in its execution, the necessary relationship is by
no means confined to such circumstances. Relationships in time and
circumstances other than these may well be important relationships in this
connection. Where the identity of the perpetrator is in issue, and evidence
of this kind is important in that connection, obviously something in the
nature of what has been called in the course of the argument a signature or
other special feature will be necessary”.

Mr Thwaites accepts that whilst the word “signature” or the word “hallmark”
(which was used in the present case) may be helpful shorthand expressions,
the test for admissibility is best expressed in terms of probative value.
Does the evidence sought to be adduced by way of similar fact have such
positive probative value that it ought to be admitted? Mr Thwaites argued
that in the present case there was not, between the [P] incident and the
offences on the indictment a common “hallmark” or “signature”, nor did the
[P] incident have the requisite probative value.

The Crown had prepared a schedule of similarities in respect of the attacks
on *all* the victims including CD. They were all pre-pubescent
girls; they were all abducted from a public place. Save in the case of
AB where the offence was nipped in the bud, all had their
shoes removed and there was evidence of indecent assault. The three who
were murdered were all driven long distances south of the point of
abduction and the applicant admitted an intention to carry CD
south with him having trussed her up. The three who were murdered were
deposited in an area described during the trial as the “Midlands Triangle”
near to Donnisthorpe and there was no attempt at concealing the bodies. In
four of the five incidents, a transit-type van was sighted. Again, in four
of the incidents, the victims were wearing white socks with bare legs above
and four of the incidents occurred at weekends in warm weather.

Mr Thwaites argued that some of the similarities relied upon were
common-place features in offences of this kind. He also pointed out
dis-similarities. For example, Sarah Harper was the only victim drowned,
the other two deceased being left in a lay-by. Caroline Hogg was taken into
a fairground, whereas the others were snatched straight into the vehicle
and driven away. Mr Thwaites submitted that the learned judge did not
sufficiently consider the dis-similarities. Mr Thwaites relied upon dicta
by this Court in *Morris* , *54 Cr App R 69* at page 81, and in
*Johnson* *(Judgment
5 July 1994)* as support for his contention that the judge was under a duty
to consider dis-similarities as well as similarities. He submitted that in
the present case the learned judge did not do so.

In our judgment, the decision of the learned judge to admit the [P]
incident cannot be faulted. We are told that Leading Counsel appearing on
behalf of the applicant at Chelmsford addressed the judge fully on the
dis-similarities and we have no doubt that the learned judge took them into
account. However, in the present case, the similarities were striking
indeed. To pick only two, the transport of the victims so many miles to the
south, and in the case of the three deceased to the “Midlands Triangle”,
and the removal of the shoes, were unusual and strikingly similar features.
Mr Thwaites concedes that the transport of the victims to the south was a significant
similarity. We have no doubt that the judge was right to admit the [P]
incident.

Mr Thwaites further argues, however, that even if the fact of the
applicant’s conviction in the Edinburgh High Court was admissible together
with such details as appeared in the libel, the judge was wrong to allow
evidence to be led as to the circumstances of that incident. He complains
that witnesses were actually called to prove the facts, although the
defence raised no challenge to them. In our judgment, the justification for
admitting the [P] incident depended upon the similarity of the
circumstances. If that incident was to be admitted at all, it was right
that those features which were probative in relation to the other incidents
should be adduced in evidence. The fact that witnesses were called rather
than their statements read is not in our view a valid ground of complaint.
The Crown were entitled to enable the jury to hear from the witnesses
themselves what they had observed.

Two criticisms of the learned judge’s summing up are made in regard to the
similar fact evidence. First, Mr Thwaites complains that the judge did not
deal with the dis-similarities. On a number of occasions, he summarised the
points relied upon by the Crown to build up what they contended was the
applicant’s signature or hallmark, discernable in each case. But, it is
contended, he did not as he should have done, remind the jury of features
which ran counter to the “signature” thesis.

However, at page 16 of the transcript, the judge said this:

“The defence, in vigorous terms, attacked the basis of the Crown’s case. Mr
Black —for it is his case and not the case of Mr Thwaites —says, through Mr
Thwaites, that there are both negative and positive reasons why you should
find that no case is proved against this man. Mr Thwaites said, and I think
that I quote him accurately: ‘not only have they not got a case but there
is a contrary case or there may be a contrary case’ including, as he summed
up to you on Friday, three potential different murderers and a different
abductor in the case of AB. He argues that the police and the
Crown have seized upon [P] and its awful features and upon the
characteristics of this man who he, Mr Thwaites himself, described in
strong and uncomplimentary terms and they seek, fruitlessly, to make 2 plus
2 = 4. Mr Thwaites attacks and impugns the methods of the Crown and says in
effect that there has been hindsight and reconstruction which is
unjustified and a ‘false fitting of this man with a suit which is in
tatters’. That was his simile you remember, in opening his case to you”.

The judge then told the jury it was for them to consider, that his own duty
was to remain impartial and not to argue the case and that if he, the
judge, said anything with which the jury disagreed, they should ignore his
point of view. Further, at various points in the summing-up (at 19E, 29E,
55E, 63B and 73D), the judge directed the jury to bear in mind all that
they had heard both from the Crown and the defence, to scrutinise all the
evidence called by both sides and to judge the applicant on the whole of
the evidence. He dealt with the facts of each of the incidents and in the
course of doing so, clearly rehearsed with the jury, features of the
evidence which showed dis-similarities as well as those which the Crown
relied upon as similar. Accordingly, in our judgment this ground of appeal
failed.

The other criticism of the summing up as to similar facts raised a point of law. Mr Thwaites submitted that given the admission of the [P]
incident and the joint trial of all the counts on the indictment, the judge
ought to have adopted what in argument was called by Mr Justice Ognall, a
sequential approach rather than a global approach. In other words, the
judge ought to have advised the jury that only when they were sure of guilt
in relation to one incident could they use the evidence of that incident to
assist them on the next incident they were considering. They were not
entitled to use all of the similar fact evidence in a global approach to
determine their first verdict.

In fact, the Crown’s case was put by Mr Milford on a sequential basis and
the judge, at page 14 of the transcript, adopted Mr Milford’s approach
which was in the following terms:

“Put at its simplest, in this particular case, when you consider the case
against Mr Black and Susan Maxwell, you are entitled to look at the
evidence of what happened in [P]. You are allowed to look at those two
together in this particular case. If you are satisfied as we would invite
you to be, you are satisfied that he committed those offences against Susan
Maxwell, then, when you look at the offences that concerned Caroline Hogg,
if you are sure he committed the offences against Maxwell, given the
similarities between the offences committed against those two girls, you
are entitled when looking at Hogg, to look at what you have already found
that he did to Susan Maxwell. Similarly, when you get to the case of
Harper, you can look at it as well”.

The learned judge adopted that approach. However, the complaint is that
later in his summing up in two passages the judge veered more towards the
global approach. At page 44F, when dealing with the Maxwell incident, the
learned judge said:

“After that, with the support or limited support, if you accept it, of the
white van sightings, the Crown say that it is the similarity of what
happened in and after Coldstream, with the other incidents, which should
make you sure of his guilt. His signature, say the Crown, is writ large in
the facts of the case. ?.”

Again, at page 56, still dealing with the Maxwell incident, the judge said:

“The Crown say that the similarity of Susan Maxwell’s case with the
specimen signature of [P] and with the instances that followed —for they
must all be taken together —outweighs conclusively and for sure any kind of
hesitation which those sightings or supposed sightings could cause to exist
and can be said for the whole of the case. Primarily and perhaps
predominantly, say the Crown, Mr Black was available to be there and at all
the other scenes, all five of them, and the facts and the transport South
should pull you up in your tracks and make you sure that this is the man
who committed those crimes”.

Mr Thwaites relied upon the decision of this court in *McGranaghan* *[1992]
Crim LR 430* (of which we have a transcript) to support his submission that
the sequential approach is the right one and that the global approach,
which he says the judge adopted in the latter two passages, is wrong. In
*McGranaghan* , a Home Secretary’s Reference, the appellant was charged in
respect of three separate instances of aggravated burglary, sexual assault
and robbery. The circumstances, especially of the sexual assaults, were
similar. The Crown relied *inter alia* upon identifications at an
identification parade in respect of each instance. Fresh evidence however showed that
seminal staining on a bedspread in one instance could not have been that of
the appellant and in the circumstances this court held that the appellant
could not have been guilty of that offence. Dealing with criticism of the
judge’s directions on similar facts, Glidewell LJ said that similar fact
evidence may be adduced for different purposes. He went on, at page 27 of
the transcript as follows:

“Here the purpose was a different one of supporting the identification of
the appellant by each of the ladies as her assailant.

If it is sought to adduce similar fact evidence in order to prove that one
of two or more offences was committed by the defendant, in our view such
evidence may only be admitted if the jury are sure on evidence other than
the similar fact evidence that the defendant is guilty of the other
offence. ?. The jury should be directed to consider first whether
disregarding the similarity of the facts the other evidence is sufficient
to make them sure that the defendant committed offence No.1. Only if they
are so sure is evidence of similarity admissible to prove that the
defendant committed offence No.2. An identification about which the jury
are not sure cannot support another identification of which they are also
not sure, however similar the facts of the two offences may be. The similar
facts go to show that the same man committed both offences not that the
defendant was that man. There must be some evidence to make the jury sure
that on at least one offence the defendant was that man”.

That passage has been criticised, notably by the editors of Archbold
Criminal Pleading Evidence and Practice 1995 edition at paragraph 13–36 and
13–37. Moreover, in *Downey* *(Judgment 17 March 1994)* Evans LJ giving the
judgment of a different constitution of this court in a case involving two
robberies said to have similar facts, declined to add to the discussion of
*McGranaghan* in Archbold. However, at page 9 of the transcript, having
quoted the last passage of the above citation from *McGranaghan* , Evans LJ
went on:

“If there is evidence which entitles the jury to reach the conclusion that
it was the same man (who committed both offences A and B) even though that
evidence alone does not enable them to be sure who the man was, then it
follows that they can take account of evidence relating to both offences in
deciding whether that man was the defendant”.

Later at page 11 of the transcript he said:

“The approach by the judge was in our judgment entirely correct. The jury
was invited to consider whether the evidence established that both offences
were committed by the same man, whoever that man might be, and if they were
satisfied that that was the case, then they were entitled to take account
of the evidence relating to both offences when reaching their decisions in
respect of each”.

In our judgment that passage is correct. We would draw three distinctions
between the present case and *McGranaghan* . First, it was clear from the
fresh scientific evidence that *McGranaghan* could not be guilty of one of
the three offences said to be similar. Secondly, that was a case in which,
as Glidewell LJ said, the purpose of the similar fact evidence was “one of
supporting the identification of the appellant by each of the ladies as her
assailant”. This court has been particularly vigilant following *Turnbull* *63
Cr App R 132* not to allow one doubtful visual identification to be
supported by another doubtful visual identification. Thirdly, and most importantly in
the present case, there was the firm finding of guilt by the applicant’s
own confession of the [P] offence, a feature absent from *McGranaghan* .
Having regard to that firm finding which identified the applicant as the
abductor in the [P] incident, and having regard also to the dicta we have
cited from *Downey* , we consider that the learned judge’s directions in
the present case cannot properly be criticised.

A separate and discrete ground of appeal related to the admission by the
judge of the pornography and children’s clothes found in the applicant’s
suitcase. The Crown had sought to introduce not only those items but also
the [redacted] found in the suitcase. Mr Milford
submits that the judge’s exclusion of those extra items was over-generous
to the applicant since they were directly relevant in the *Harper* incident.

On the medical evidence, the injuries to Sarah Harper’s [assault redacted] . Since the pornography included photographs of young girls with various [assault redacted] in the applicant’s van were before the jury, Mr  Milford submits the probes found in the suitcase could properly have been admitted too. The pornography and [redacted]were directly relevant to an offence charged.

In fact, only two of several albums containing many photographs were shown
to the jury and markers indicated the photographs relevant to the Harper
incident.

Mr Thwaites argued that once the judge excluded the [redacted] found in the
suitcase, there was no justification for admitting its other contents. For
the reasons given above we cannot agree. He also complained of a passage in
the summing up at page 23 in which the learned judge seemed to be
indicating that the pornography was relevant as showing the sort of man the
applicant was. However, at page 72, the judge correctly indicated the true
possible relevance of the material to the injuries sustained by Sarah
Harper. In our judgment, this ground of appeal was not made out.

Finally, Mr Thwaites took us through the summing up in some detail,
pointing out deficiencies (as he called them) in the judge’s review of the
evidence. It is unnecessary to lengthen this judgment by dealing
individually with those complaints. Suffice it to say that Mr Thwaites did
not himself claim that even if sustained, the complaints could amount to
grounds for allowing the appeal. He relied on them as part of a cumulative
case, the more substantial points being those already considered.

In the result, we concluded that the criticisms of the judge’s summing up
were unfounded. No doubt, as in many cases, the defence would have
preferred the judge to have echoed more of the points made on the accused’s
behalf or to have echoed them more strongly. This judge however, was
rightly at pains to assist rather than oppress the jury by paring down his
review of the evidence to what he regarded as essential. At page 2 of the
transcript he said:

“I have thought and thought again about the scale of the summary which is
required. What I have done is to try to prune it as much as I feel able, in
order to make your task clearer and less cluttered, and to enable you to
apply your good commonsense to the case. Remember, always, that all the
evidence is there for your consideration. ?. so that if I mention or
stress evidence which seems unimportant, or if I fail to mention something
which looms large in your memory, then it is your view and your stress
which must prevail, because you and you alone, ladies and gentlemen make
the decisions which decide and will conclude this case”.

This trial had lasted six weeks and the judge’s summing-up occupied just
over a day. In our judgment it was a model of clarity and conciseness,
well-balanced and fair. We have no doubt that it was of much greater
assistance to the jury and much more likely to have been heeded in its
entirety than would a much longer rehearsal of all the evidence whether
important or marginal. It is clear from the verdicts of the jury, some
unanimous, others by varying majorities, that they approached their task
with care and discrimination. We were satisfied in the outcome that the
verdicts are safe and satisfactory and accordingly this application was
refused.

*MR MILFORD*: My Lord, would you make the usual order preventing the
publication of anything which leads to the identification of CD?

*THE LORD CHIEF JUSTICE*: Yes, certainly. I hope that is understood by the
press. Again, may I say we are very grateful to counsel for their concise
arguments.

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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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 Robert Black Court of Appeal 1995 Feb 23

  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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