Virgo, Hamer, Moody and Tilley Court of Appeal 15 March 1978

These court appeals from 1978 relate to police corruption in the Obscene Publications Squad, which is relevant to a post, yet to be published, on how police corruption affected child sexual abuse.

This have been subjected to automatic reading software and so some mistakes could creep in. Many have been corrected when spotted if the correction is obvious. If not obvious then a questionmark is left in the text. The text therefore should not be seen as definitive.

2016 Cathy Fox Blog Index / Timeline of Court Appeals and Documentation [2]

 

[1978] EWCA Crim J0315-2

No. 2870/R/77

IN THE COURT OF APPEAL

Wednesday, 15th March 1978

Lord Justice Geoffrey Lane

Regina

v.

Wallace Harold Virgo

David Gareth Lee Hamer

Alfred William Moody

and Rodney Laurence Tilley


(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. D. FARQUHARSON, Q.C. and MR. P. COOPER appeared for the Appellant Virgo.

MR. G. SHINDLER Q.C. and MR. B. BARKER appeared for the Applicant Hamer.

MR. V. WINSTAIN appeared for the Applicant Moody.

MR. S. BATTEN appeared for the Applicant Tilley.

MR. D. TUDOR-PRICE and MR. M. NELLIGAN appeared for the Crown

JUDGMENT

(As approved by Judge)

LORD JUSTICE GEOFFREY LANE: On May 13th of last year at the Central Criminal Court, before Mr. Justice Mars-Jones and a jury, these men, Virgo, Hamer, Moody, Tilley, Alton and Brown – of whom Virgo is now an Appellant and the remainder are Applicants – were all convicted on Count 1, charging them with conspiracy corruptly to accept bribes. The Applicant Tilley had in fact changed his plea of not guilty to one of guilty on the 29th March of last year before he went into the witness box to give evidence on his own behalf. The Applicants were also convicted, as indeed was Virgo, on various other counts which charged them with corruption under section 1 of the Prevention of Corruption Act, 1906.

They were sentenced as follows: Virgo on Count 1, the conspiracy count, to twelve years’ imprisonment and Counts 26 and 27 to two years’ imprisonment on each consecutive to each other but concurrent with the sentence on Count 1, thus making twelve years in all; Hamer, on Count 1 to four years’ imprisonment and on Count 19 to two years’ imprisonment concurrent, that is four years in all; Moody on Count 1 to twelve years’ imprisonment and on Counts 2, 3 and 16 to two years’ imprisonment consecutive with each other but concurrent to the twelve years, that is twelve years in all, and Tilley on Count 1 to three years’ imprisonment and on Count 23 to two years’ imprisonment concurrent, that is three years in all. Of those, Virgo appeals against his conviction, the other three are Applicants with regard to conviction and the remaining two men, whom I am about to mention, do not apply for leave to appeal against conviction but only against their sentences. Those men are Alton, who was convicted on Count 1 and Counts 4, 5, 7, and 12 and was sentenced to ten years’ imprisonment on Count 1 and two years’ imprisonment consecutive to each other on each of the other four Counts but concurrent to the ten years, that is ten years in all; and finally Brown who was sentenced, on Count 1, to seven years’ imprisonment, on Counts 12, 14 and 15 to two years’ imprisonment again consecutive inter se but concurrent to the seven years and on Count 23 to two years’ imprisonment concurrent, making seven years in all.

The facts of these distressing cases all arose out of the activities of the Obscene Publications Squad which was a Department of the C.I. Division at New Scotland Yard. We have

already dealt last week, so far as convictions were concerned, with a number of Applicants who were tried – again before Mr. Justice Mars-Jones – at an earlier date at the Central Criminal Court on similar charges. The judgment of this Court on relation to those applications is available. It may be, in those circumstances, that a very brief summary of the fact, which lie behind this case will be adequate. All the men involved in these proceedings are, of course, policemen. They all had, at various times, served in the Obscene Publications Squad. That, strictly speaking, is not entirely true as far as Virgo was concerned; although he was a Detective Sergeant on the Squad from December, 1961 to May, 1962, at the times which were material to these proceedings, he was the Commander of C.I. Division which included the Obscene Publications Squad amongst very many other departments under its aegis. He was Commander of the C.I. Division from April, 1970 until he retired in March, 1972, so strictly speaking he was not a member of the Squad. The other were Hamer as a Detective Constable from November, 1967 to May, 1970 when he was posted away; Moody as Detective Inspector from 1st July, 1965 to the 1st December, 1966 and as Detective Chief Superintendent from January, 1969 to about August, 1971; Tilley as a Detective Sergeant from February, 1968 to May, 1971; Alton from June, 1963 to February, 1965 and then he took over from Moody as Detective Inspector in December, 1966 until he was transferred in December, 1968 and, finally, Brown as a Detective Constable on the Squad from the 9th November, 1967 to February, 1970.

Up to the year 1972, the Obscene Publications Squad (which I will refer to as the “Squad” hereafter) was, largely speaking, an autonomous body operating under sever, restrictions owing to a lack of manpower. Action against possible purveyors of pornography (to whom for the purposes of brevity, I will inaccurately refer as “pornographers”) was only to be instituted against a genuine complaint from the public or else at the instance of the Director of Public Prosecutions. The result was that the amount of activity directed at pornography was very slight indeed.

Everything changed when Sir Robert Mark became the Commissioner of the Metropolitan Police in 1972. To cut a long story short, the uniformed branch took over the task which had previously been carried out by the Squad acting through plain clothes officers. Very shortly afterwards a flood of complaints started to issue forth alleging that the plain clothes officers, who had been operating the activities of the Squad, had been guilty for years of corrupt practices.

The types of corruption were manifold. To take a few examples, the main complaint was that for payment of very large sums of money the members of the Squad would undertake to warn pornographers of impending raids by sending them coded messages over the telephone. There was assistance also provided by the making of statements in order to extricate pornographers from difficulties if they were charged or likely to be charged. There were allegations that pornographers had been taken by Squad Officers to the store in Holborn where seized pornographic material was stored. There, it was said, pornographers (who were lucky enough to have this service made available to then) were allowed to select publications they wished to buy back at competitive rates from members of the Squad for resale once again to the public. That was the broad background of the complaint.

The A10 Branch, that is the Branch of the Metropolitan Police which has the job of investigating complaints against serving officers, then took over enquiries and the present charges emerged from the activities of A10: the investigations which they conducted, the facts they were able to discover, and the statements they were able to obtain.

There are two main sources of evidence. The first source, was, of course, the various pornographers and their acolytes who alleged that the police were corrupt and who were prepared to give chapter and verse for the payments which they said they had made to the police and for the activities which they said the police had carried out in consideration of payments they took, and the second main source of evidence was from officers who had served in the Squad in the past – some of them had since left the Force, some of them were still in the Force – who were prepared to say that they had observed this type of behaviour going on whilst they themselves were in the Squad at New Scotland Yard.

It is invariably the case when that type of evidence has to be relied upon by the prosecution that difficulty arises on the question of corroboration because, ex hypothesi, both form, of evidence are deeply suspect. The pornographers are accomplices; they are self-confessed criminals because they have, on their own story, been busily engaged in illegal activities for years. A very large number of them had convictions recorded against them and they were all unsavoury; some were a good deal more unsavoury than other. So far as the police officer, were concerned, they likewise are in a similar sort of difficulty though they were all men who, up to the time when matters came to light, had a good reputation and good character. By the very nature of things, the evidence they were giving indicated they were involved in this kind of behaviour to a greater or lesser degree. They too, for that reason, are suspect and they too, for that reason, would require corroboration. Thus many of the problems which beset both the Prosecution and the learned Judge, who had to direct the case and direct the jury at the end of it, were concerned with the thorny problem of what is corroboration and what is not.

I think it is only fair to say, at the outset of this judgment, that the direction to the jury by Mr. Justice Mars-Jones in this case was a tremendous tour de force. It is quite plain to anybody who reads it, as we have read it, that that direction involved the most enormous amount of homework. No one could have produced a summing up of that length, dealing with facts of that complexity and dealing with the number of defendants and witnesses which he did, in such a clear and masterly way without a great deal – a tremendous amount – of preparation and care. We pay that tribute to him as indeed it has been paid to him by members of the Bar who have argued their respective clients’ cases before us in this matter.

I turn, first of all, to the appeal of Virgo. This has features which are not shared by the other cases that are before this Court for consideration. He, as I say, was a Commander of C. I. Division. To say he was a senior operational officer in the Metropolitan Police, I think, is a fair way of describing him. He had under his command a large number of different departments. We are told now by Mr. Farquharson – and w. have no doubt that he is correct – that there are three commanders at the present day who carry out the tasks which Virgo alone carried out when he was in command of C.I.

It is quite plain that numerically, and I think in every other way, the Squad was a very small part of the organisation which he commanded. There was very little evidence from police officers that Virgo had taken part in any corrupt receipts at all from pornographers; if indeed there was such evidence at all.

So far as Virgo was concerned, the evidence against him was entirely, or almost entirely confined to the evidence of pornographers. When one looks at the various counts on which he originally stood charged and compares those with the counts on which he was eventually found guilty, one sees this. On Count 1, which was the overall conspiracy count, he was found guilty. On Count 17, which charged him with having received, in December, 1969, the sum of £50 from a pornographer called Humphreys, he was found not guilty. On Count 21, which charged him in 1970 with having received £100 from another pornographer called Mason, he was found not guilty. On Count 24, which charged him with having received, in 1970, £1,000 from the man Humphreys, he was found, not guilty. It was only in respect of the last two counts, Count 26, a charge of accepting £2,000 in 1974 from Humphreys and Count 27, which charged him on a specific date – the 15th January, 1971 – with having received £50 from Humphreys corruptly that he was found guilty.

Grounds of appeal have been eloquently advanced by Mr. Farquharson on his behalf. Two have caused us a great deal of concern. I am sure Mr. Farquharson would not think that we are being discourteous to him if we concentrate our attention on those two particular complaints, because they seem to us really to carry the burden of his criticism of the way in which the learned Judge handled this trial. The first ground concerns the direction given by the learned Judge as to the effect of the diaries, two of them, which were adduced and which were referred to by Humphreys when he was giving his evidence. The second complaint is that the Judge used language which was too emotive when commenting upon the evidence which the Appellant Virgo had given to the jury.

So far as the second ground is concerned, that is the question of the comments of the learned Judge, we feel that on its own it would not justify any interference with the verdict of the jury. A Judge is entitled to comment and to comment strongly on the evidence. It is never easy for an appellate Court to say precisely when the proper bounds of comment have been transgressed. The main complaints which are directed at the summing-up are to be found in a very narrow compass in transcript, volume 1 on pages 115 to 121. There is no need for me to do more than read one short extract, although there were four about which Mr. Farquharson made his complaints. The one I read is at page 121 and is as follows: “Well, what did you make of that? Was this another instance of Virgo being caught out in another blatant lie, thrashing about rather like a fish that is well and truly hooked, charging away in a different direction, putting forward different explanations in his attempt to escape?” and so on. There are other passage, couched in similar sort of language. We feel that the comments reached the limits of proper judicial observation. We feel that more moderate words would have been equally or even more effective, but we do not think, on the other hand, that any injustice was likely to have been caused, by the words used when one reads them against the evidence which the jury had, over the weeks, been listening to. This is however, a case where the Defendant is likely to have left the Court with a feeling that he had been unjustly used as a butt of judicial rhetoric. That, if possible, is to be avoided. We say no more about that aspect.

The other matter relates as I said, to the question of the Humphreys’ diaries. The circumstance, which gave rise to those diaries was this. The two pornographers chiefly concerned in giving evidence, so far as Virgo was concerned, were, first of all, a man called Mason and, secondly, the man Humphreys. Each of them quite plainly was a man in a very big way of business in a highly unsavoury type of activity. There is no doubt that each of them was a rich man and it needs little imagination to conjure up what the source of their wealth was.

So far as Mason was concerned, the jury acquitted Virgo on any count which involved him. Mason, and, as I have already indicated, although the jury acquitted on some of the Humphreys’ counts in Virgo’s case, they did convict on two of the Humphrey, counts; the final two Counts, 26 and 27. One asks why that was. The answer seems to be tolerably clear – although Mr. Tudor-Price would not agree with this – namely that the Humphreys’ diaries were directly relevant to Count 27 which alleged the payment on a specific date, the 15th January, 1971, and seems to us were indirectly or less directly relevant to Count 26.

Consequently it seems to us that the likelihood is that it was the diaries which tipped the balance in favour of the prosecution so far as those two counts were concerned.

Mr. Farquharson submits that the Judge was guilty of error in the way in which he dealt with those entries in the diaries. May we say immediately that we are in sympathy with the Judge on this issue. Diary entries are never an easy matter with which to deal.

The diaries in question related to two years: 1971 and 1972. The diary in respect of 1971 was not available. It had gone, one does not know where. The prosecution, not unnaturally, sought to allow Humphreys to use various entries in those diaries to refresh his memory whilst giving evidence. The necessary permission was given and defending counsel, very properly, realising that it would be necessary to cross-examine the witness, in extenso about the contents of the diaries, did not object; indeed may actually have encouraged the jury to have copies of the documents. At any rate copies were before the jury. The defence had no material upon which they could suggest to Humphreys that the entries were other than contemporaneous as to the incidents which they purported to record, although they did not accept or concede that the entries were contemporaneously made.

The main attack was directed, as it had to be, towards showing that any reference to “Wally” in the diaries, of which there were many, were not references to Wally Virgo, the Appellant, but were references to one of the other two Wallys with whom undoubtedly the witness Humphreys was acquainted or whom he knew. If that attack had succeeded, it would undoubtedly have destroyed Humphreys as a witness and would have resulted in Virgo’s acquittal on the two specific Counts 26 and 27. It is quite obvious that the attack did not succeed.

There is always a danger in circumstances such as these when attention has been focussed on a particular document for a long period of time, and when the document has been subjected to a minute and line by line analysis, as these diaries were, that the document will achieve an importance which it does not warrant. It was most important in this case that the status of these diaries should be clearly understood throughout the trial and particularly at the end of the trial when the learned Judge came to sum up the matter to the jury.

Those diaries were never more, at best, than a means whereby Humphreys might be able to give accurate dates and accurate chapter and verse for the incidents in respect of which he was giving evidence. They were never more than documents prepared by Humphreys and Humphreys was a self-confessed dealer in pornography. He was an accomplice and he was, on any view, a highly unsavoury character in many other ways. His evidence, par excellence, required corroboration.

The learned Judge made perfectly plain to the jury, in impeccable language at the outset of his direction, the general law relating to corroboration. No one complained about that for a moment, nor could they complain. So far as Humphreys’ diaries were concerned, not only did his evidence in general require corroboration, but by the same token, the answers which he gave about his diaries required corroboration. At the very highest, if the jury were convinced that the diaries were genuine, they showed a degree of consistency in Humphreys which otherwise might have been lacking, just as a complaint by the victim of a sexual assault, if made at the first reasonable opportunity thereafter, may show consistency in his or her evidence, though that analogy, one concedes, is not altogether apt. What the diaries could not under any circumstances do, was to support the oral evidence of Humphreys other than in a very limited way which we have already endeavoured to describe. In no way were they evidence of the truth of their contents.

Taking the two steps as set out in the decision in R. v. Turner , to which we have been referred, the diaries might assist the jury to say, in the first instance, that the witness in question was not wholly devoid of credit but what they could in no circumstances do was to contribute to the second stage of Turner , namely the search for corroboration.

Against that background it becomes necessary to see what it was that the learned Judge in fact said to the jury in relation to these diaries. There are a number of extracts which it is necessary to deal with individually. Volume 1, page 38D. This is a general direction on corroboration and reads as follows:

“All the persons I have referred to as being parties to this conspiracy, the pornographers and their agents, the serving police officers who gave evidence and the former police officers who went into that witness box, are all what we call accomplices, thirty-five pornographers and their agents, the two former police officers, Culver and Andrews and the five serving police officers who were called having admitted their involvement in these crimes to a greater or lesser degree. Now I must warn you that it would be unsafe for you to convict upon their uncorroborated evidence because they may have a motive of their own to serve, namely to lie at the expense of the defendants, or some of them, in order to minimise their own responsibility by putting some blame, or all the blame, on their shoulders – do you follow? Now there is material in the case of each and every one of these defendants which is capable of amounting to corroboration in law, either in respect of Count 1, the charge of conspiracy, or in respect of one or more of the substantive individual counts.” No complaint could be made about that.

Page 40 of the same volume: “So that is the way it works.” says the learned Judge “I tell you what is capable of amounting to corroboration in law and you, following that direction carefully, decide whether you think it is satisfactory corroboration.” Again, absolutely accurate and no-one could possibly complain. He then goes on, at 40D as follows: “Having said all that, I must tell you that even though there is no corroboration in a particular case, you would still be entitled to convict on the uncorroborated evidence of an accomplice if you were convinced that the witness in question was telling the truth. On the other hand, if you came to the conclusion that the evidence of an accomplice was not credible, not capable of being accepted as true, then no amount of corroboration could save it”. Again, absolutely accurate and in accordance with the judgment of this Court in Turner .

We then go to page 46B. This is dealing, in particular, with the witness Humphreys. The learned Judge says this between B and C: “He claimed, and still claims, that he was innocent of that offence, and that the Home Office have agreed to conduct an enquiry into that case. He agrees that had it not been for that fact, he doubted whether he would have given evidence in this case; he probably would not. So that is one of the matters the defence rely upon in underlining the danger of acting on his uncorroborated evidence.” Page 47D: you must obviously regard Humphreys’ evidence with great care because, first, he is an accomplice in these matters with which the Defendants stand charged on his own story; secondly, he is a man of bad character, and he has a record of dishonesty and admits to having lied on his oath on other occasions; thirdly, he admitted in terms that he is willing to lie in his own interest. He seems to consider this as obvious good sense which everybody ought to appreciate. Those are his reasons for giving evidence here.” Again impeccable.

Page 52C is also about Humphreys: “Although he has paid the price demanded by society by serving a term of imprisonment, he has shown himself to be a man who does not hesitate to stoop to dishonesty when it suits him and is admittedly prepared to lie when it suits his purposes. Again there are reasons why, in addition to the fact that he is an accomplice, you should regard his evidence with great care – a man of bad character who has been proved to be a liar, indeed a self-confessed liar in these proceedings.”

Finally in this Volume, on page 114: “Humphreys gave evidence in support of Counts 17, 24, 26 and 27,” I interpolate to say that Virgo was acquitted of Counts 17 and 24 and convicted of Counts 26 and 27. The learned Judge goes on “allegations of corrupt payments made by him to Virgo. I need not remind you again of Humphreys’ history and his character; you will have that well in mind. You will bear those matters very much in mind when you are weighing up the evidence against Virgo. His service career and record I have just reviewed. There is no evidence capable of amounting to corroboration of what Humphreys or Mason say in relation to the individual Counts. When I come to deal with the charge of conspiracy in relation to Virgo I shall tell you that there is corroboration. We are not concerned with that at this stage. So no material which is capable of amounting to corroboration.”

Turning to the second Volume page 5C, the Judge said: “so we come fellow members of the jury, to the diaries for the years 1971 and 1972. We told you some of these entries were made in advance, others were made after the events, not later than the morning after the events referred to. The entries had been extensively investigated in cross-examination. They show, amongst other things, Humphreys’ international contacts in porn trade – with Charlie Curtis at Amsterdam and Julian in the United States and so on – and it also discloses his association with well-known criminals so these documents undoubtedly contain an awful lot of material that Humphreys would not wish to be made known publicly. Now no-one has suggested that the entries are not genuine, genuine contemporary records, made just before or just after the events recorded. Mr. Farquharson has made that clear. It is not suggested that these are forgeries, documents written up afterwards in order to create a false picture; they are accepted as entries which were, as Humphreys said, made just before in the case of an appointment, or just after the events referred to there.” I interpolate, that is not strictly true as I have endeavoured to indicate already and that was the subject of an intervention by counsel at a later stage. The learned Judge goes on: “That is a very important matter because it really does put the documents in a rather special category: it is accepted as being a genuine contemporary record.” That was, I interpolate again, indeed over-stating the case. “What is said” continues the Judge “on behalf of the Defendant Virgo, is that the references to ‘Wally’ in those diaries are not references to the Defendant Virgo, they are references to somebody else; it was suggested that they were references to Humphreys-driver and more recently it was suggested by Mr. Farquharson that they were references to another pornographer with whom Humphreys had dealings. I don’t think that suggestion was put to Humphreys, if my recollection is right. Now you are invited to test those two possible alternatives as we look at those entries because if you come to the conclusion that they are references to Wally Virgo then those diaries become the moat important documents in the case against Virgo, do they not? That is something which you must give your best consideration to. Is it just coincidence that those two diaries contained very many references to a ‘Wally’ and in one case to Virgo? Is it just a coincidence that the Defendant Virgo has a Christian name Wally? Is it just a piece of luck that fell the way of Humphreys when he decided that he would launch a malicious, lying attack upon the Defendant Virgo or do those entries point strongly to the fact that Humphreys is telling the truth? Those are alternatives which you must have in mind.” I underline, if I may, “those diaries become the most important documents in the case”.

The next reference is on page 16 of the same Volume: “There it is. We have gone through the entries which are said to be relevant in both diaries and if you are satisfied so as to be sure that the entries we have had a look at refer to Virgo, you may think, as I have said, that that is powerful evidence pointing to a corrupt relationship between Humphreys and the Defendant. The fact he denies any connection with them at all is also significant if you come to that conclusion.” Again I underline the words, if I may, “that is powerful evidence pointing to a corrupt relationship”.

Volume 2 page 25D. This is the final reference and possibly the most important from the Appellant’s point of view. It is as follows: “Then there is the matter of Henn about the alleged payment made by Jeff Phillips to him at the Carlton Towers Hotel. All three witnesses are accomplices; there is no corroboration of their evidence – or at least there is no evidence which is capable of amounting to corroboration in law – but very important in connection with Humphreys’ evidence are those entries in the diaries.” I underline again “no evidence which is capable of amounting to corroboration in law – but very important in connection with Humphreys’ evidence are those entries in the diaries.”

We have considered those passages and particularly those in respect of which I have underlined certain words – all anxiously. We realise that the learned Judge perhaps did not have the difficulties brought to his attention quite so clearly as would have been desirable, but we have also come to the conclusion that the jury must inevitably, in the light of the language which was used, have been left with the impression that even if the diaries were not, strictly speaking, corroboration, then they were the very next best thing. They were not. It was not sufficient to say that they did not amount to corroboration in law. The jury, we feel, should have been told the very limited value which those documents had as we have endeavoured to describe earlier in this judgment.

That being the case, it seems to us inevitable, certainly so far as two specific Counts are concerned, Counts 26 and 27, that the convictions must be quashed. There can be no possibility for the application of the proviso for the reasons which I have already indicated, namely that on a broad reading of the case it was the diaries which really caused the conviction on the two specific Counts.

That, of course, leaves the question of the first Count. In order to see in what way the conviction on the two specific Counts affected Count 1, it is necessary to turn to Volume 4 of the summing-up, page 20, to see the way in which the learned Judge directed the jury. It reads as follows: “Some of the evidence is common to the substantive Counts and to the Counts of conspiracy; that is the evidence of the organisation involved in the selection of members and the services rendered in return. In addition Insofar as you may find any of these Defendants guilty of a substantive count, you may take that fact into consideration in deciding whether that Defendant was a party to the alleged conspiracy.” That was a proper direction, if we may say so respectfully. It invited the jury – an invitation which they doubtless accepted – to take any specific counts on which they found a particular defendant guilty and use it as evidence, so to speak, against Count 1. There is no reason to think the jury did anything different as far as Virgo was concerned. Therefore the invalidation of the two substantive Counts 26 and 27, results in the conviction on Count 1 likewise being invalidated. Accordingly I say no more about it. The convictions of Virgo on these three Counts are quashed.

That leads me to the next man Hamer, an Applicant with regard to conviction. His case has been argued, and argued skilfully and forcefully, by Mr. Shindler. Ground 1 in respect of David Gareth Lee Hamer submits that the “learned trial Judge erred in allowing the prosecution to introduce a large number of Pornography Squad investigation files.” As the Notice of Appeal says, a Schedule became Exhibit 95 during cross-examination of the Applicant. “The use of these files by the prosecution was unjust in that the defence were given no notice of their existence nor proposed use, and the production at such a stage precluded any discussion as to their contents between the Appellant and his representatives.” In order to reinforce that submission, Mr. Shindler addressed our attention to the decision of this Court in Kane (1977) 65 Criminal Appeal Reports page 270 , and it would perhaps assist if I read a portion of the judgment of the Court in that case which was delivered by Lord Justice Scarman. It appears at page 274 of the Report as follows: “In general, evidence which is capable of forming part of the affirmative case for the prosecution should be tendered and read in the course of that case. If it did not form part of the evidence upon which an accused man was committed for trial the practice is to give notice of the additional evidence to the defence before it is tendered. Apart from informing an accused of the nature of the further material it provides him or his representatives with an opportunity to take any proper objection and the trial Judge with time to consider whether in strict law or in the interests of justice it should be admitted or excluded. The question of admissibility is all the more acute where the subject matter is not an acknowledged statement by an accused, but is a record of a verbal exchange the very accuracy of which is or may be in issue. If evidence becomes available for the first time after the prosecution case has been closed, the subsequent introduction of that evidence or its exclusion are matters to be decided by the trial Judge there are good reasons for this. The fresh evidence may be wholly inadmissible as for example a confession induced by some promise or threat. In such a case an accused who made the confession could not properly be cross-examined as to his admissions……So also the fresh evidence might include material which the trial Judge would in his discretion think it proper to exclude although it is strictly admissible; as where it is highly prejudicial in regard to the defendant immediately concerned or in regard to a co-defendant, but is minimally probative of guilt. Or whore it is suggested that statements by an accused in the course of a police investigation were obtained in breach of the Judges’ Rules.” This particular Rule is of greatest effect and most important in cases of statements; whether they are written or oral statements. There is plainly a duty on the prosecution, whore it can possibly be foreseen that statements may become material, to adduce those statements as part of the prosecution’s affirmative case. The reason is obvious. In the case of statements there may be all sorts of reasons for objecting to the admissibility of statements at all. The voluntary nature of the statement, to take one example, the question of whether the man was properly cautioned under the Judges’ Rules and so on. If the statement is, so to speak, sprung on the Defendant for the first time in cross-examination – long after the prosecution’s case is closed – then those safeguards are apt to be short-circuited. That is not to say the Rule does not apply to other matters, but in other matters the prosecution has a wider discretion. It is difficult enough in a case such as this, with the complexity of the evidence which was involved here and with the number of witnesses which were involved and so on, for the prosecution to select which evidence is likely to be required and which evidence they ought to reject without having to peer into the future in order to try to discover what sort of answers a particular defendant is going to make in his examination-in- chief, if he gives evidence at all.

What happened here was this. It was only when the defendant, as he then was, Hamer, was giving evidence, that it appeared to Mr. Tudor-Price, appearing for the prosecution, that certain documents – certain files of investigation – were going to be material at all. Although it is perfectly true, as Mr. Shindler says, that all these documents were in the possession of the prosecution long before this case ever started, Mr. Tudor Price had exercised his discretion (and we think with absolute correctness and propriety) not to produce those documents in chief because they were of marginal relevance. When, however, in answer to a question put by Mr. Shindler himself, the Defendant Hamer started giving evidence directed to these files, it became perfectly plain that the prosecution could not let the matter rest there and they had to introduce these files. That being so, the only question that remains is whether the defence in the circumstances were given by the learned Judge the proper opportunity to consider the matter and given such adjournments and so on as they reasonably requested. The answer is, plainly, “Yes”. Mr. Shindler did not take objection to the introduction of the documents and could not properly have done so. There was a short adjournment to allow the matter to be considered and to allow the Defendant to have a look at the documents. As far as we can see, there is nothing remotely approaching any unfairness of any sort which resulted from the introduction of these documents.

The second ground is an allegation that the learned Judge interrupted frequently in the cross-examination of Hamer, so frequently indeed, that it created an unfair effect; that it was made more difficult for Hamer to present his defence and to give proper answers to questions and gave the impression that the learned. Judge was, so to speak, cross-examining on behalf of the prosecution. When one reads the passages which are complained about, it becomes abundantly clear that Hamer was one of those witnesses who was reluctant to give a straight answer when being cross-examined by counsel for the Crown. It becomes equally apparent that when the Judge, in order to get a straight answer which he could put down in his notes, intervened to clear the matter up, Hamer did give a direct answer. It is not surprising, therefore, that the interventions by the learned Judge were frequent but they were all fair and they were all, it seems to us, directed to the end of getting a plain story from the witness, which was not only in the interests of the Judge, who has to make a note, but in the interests of the witness himself.

The point to which Mr. Shindler devoted the most time was the suggestion that the learned Judge was wrong in directing the jury that there was corroboration in respect of Count 19 which was the only individual Count upon which this man Hamer was convicted. It is perfectly true the Judge changed his mind on this subject. There was, as one would expect, a series of submissions and discussions between counsel and the learned Judge at various stages of the trial; those discussions being directed to the end of enabling the Judge to have clearly in his mind what matters were capable of acting as corroboration and what matters were not. It is highly desirable that a Judge should act as this Judge did, namely, canvassing the views of the members of the Bar appearing before him in order, so far as possible, to get a consensus of opinion on this thorny matter of corroboration. To start off with he was minded to direct the jury, as he himself said, that there was no corroboration on Count 19. In the end he changed his mind and directed the jury that there was such corroboration. Mr. Shindler submits that he was wrong in that way to change his mind and that there was no such corroboration.

Keeping the exposition of this aspect of the ease as brief as possible, but we hope, nevertheless, doing it justice, the situation was this. The main allegation against Hamer, and the one upon which he was eventually convicted, related to a man called Mansfield. There had been two Mansfields, Bernard and John. Bernard was the father, John the son. Bernard had, for very many years, run a mail order business. It was a mail order business in pornography. There was a dispute as to whether it was what is called “soft pornography” or “hard pornography”. Undoubtedly he had run such a business for many years. Bernard had died and the good work was carried on by John after the death of his father. There is no doubt that Mansfield, pere et fils, had caused the police some considerable work over the years. There were two versions, it seems to us, of the Mansfield saga. One version was the Mansfields were sending out circulars advertising the advantages of ordering pornography from them and, as a result of orders which came in, were sending out hard pornography which their circulars indicated they would send out. The other version of events was that not only were they purveyors of pornography, but also confidence tricksters, the suggestion being that although the circulars sent out to the British public indicated that the pornography was hard pornography, in fact anyone sending off for the goods would in the end, in return for their money, only get soft pornography – a sort of full frontal pin-up type of photography.

It seems from the evidence that the Mansfield affairs ware so consistently before the police that they were almost a full time job for one policeman. That man was Hamer. The allegation made about Hamer by John Mansfield was that he had paid for a “licence” from the police in order to trade in pornography by paying Hamer regular sums of money as his father had before him so they might be free from unwelcome interruptions from the police in carrying out their pornographic trade.

The corroboration which is put forward by the prosecution as being available to strengthen Mansfield’s evidence was the fact that over the years when he had been concerned Hamer had done practically nothing by way of investigation and had done practically nothing to investigate whether or not these people were selling hard porn. Point was lent to that criticism by the fact that at one stage the Customs and Excise Officers, acting independently, had raided the Mansfield premises and struck gold because they had found not merely pin-ups but a quantity of hard pornography in the possession of Mansfield.

Hamer in cross examination – and I do not propose to read the extract – made it plain that in retrospect he conceded perhaps he should have been more energetic in his pursuit of the Mansfields. He conceded that, with hindsight, it perhaps was not enough to go along to the Mansfields and say “Excuse me, could you give me a sample of the type of goods you are sending out to customers” and accepting what the Mansfields gave him at its face value. The fact that he had been inactive was the corroboration suggested.

What Mr. Shindler submits is this. The prosecution never proved that he, Hamer, was under any duty to carry out investigations such as those suggested he should. The answer to that is to be found in Hamer’s own evidence where he concedes in effect that he was under such a duty. The second point Mr. Shindler makes is this. All that Hamer was doing was what his predecessors had done. Mr. Shindler points to the fact that over the years, the officer who was in charge of looking after the Mansfield side of the Obscene Publications Squad’s business never had done any more in fact than Hamer did. Mr. Tudor-Price’s riposte to that is that this is exactly the prosecution case; this had been a corrupt concern for years and Hamer was carrying on the corruption in exactly the same way. We think the learned Judge was correct in the direction he gave to the jury in so far as corroboration was concerned. There was ample evidence available to the jury to use as corroboration if they saw fit to use it and they obviously did.

The final ground is that the learned. Judge failed to give an adequate direction as to what evidence in the case of Hamer went to the conspiracy Count rather than the substantive Count, but we do not think there is anything in that ground at all. That too fails. So far as Hamer is concerned, his application in regard to conviction is refused.

That brings us to Moody. Moody, on all the evidence, was plainly implicated in these unsavoury events. Mr. Winstain, who has presented Moody’s case before us with great charm and skill, if we may say so, is realistic enough to realise that it is no good applying for leave to appeal against conviction on anything except one of the Counts on which Moody was found guilty, that is Count 16. The way in which he puts it, and we hope we can do it briefly at the same time doing justice to his cogent arguments, is this. Count 16, he said, involved facts so extraordinary, so bizarre, that they really required special treatment by the learned Judge; it was net sufficient to treat this Count a. though it were simply another case of corrupt payment by a pornographer to the police. It should, he suggests, have received special treatment, and the fact that it did not make, the conviction on this Count unsafe or unsatisfactory.

That involves a brief account of what the facts were on which the charge was based. I read from Mr. Winstain’s own notice of appeal which sets it out admirably as follows: That the conviction on Count 16 was unsafe and unsatisfactory. Count alleged that between the 1st July 1969, and the 15th September of the same year, the Appellant Moody corruptly accepted £14,000 from Ronald Eric Mason as an inducement to show favour to the said Mason and to George Samuel Vinn. “a) the case for the Crown was that at the beginning of July, 1969, Mason’s manager Vinn was arrested by a special squad (unconnected with the Obscene Publications Squad) as a result of a raid on the pornographic office premises at 53 Dean Street, W.1 and was charged with possessing obscene articles for gain. Mason who was living in Spain, was informed and came back to England where he saw the Appellant who said that Vinn was in serious trouble and looks like going to prison but that he (the Appellant) knew the arresting officer, Detective Chief Inspector Robertson and would see what he could do. First off the Appellant informed Mason that Robertson did not want to play but later, after saying he had prevailed upon Robertson, the Appellant indicated that the price of Robertson’s help would be £14,000. Mason agreed and got the money which he placed in a carrier bag and handed it over the Appellant in Regents Park. On the 15th September 1969, when Vinn pleaded guilty at the Central Criminal Court he was fined £300 on a total of two Counts.

“b) The case for the Defence was that this incident never occurred, and that it was incredible to expect Mason to agree to pay over as large a sum as £14,000 without so much as meeting Robertson in order to help Vinn (whose last conviction had been on 16th December, 1955. for selling ‘Lady Chatterley’s Lover’ which had resulted in a fine of £50 on an appeal from Bow Street Magistrates’ Court to the County of London Session Appeal Committee).”

What Mr. Winstain says is this. He says there were the following extraordinary features about that prosecution case. First of all, that Mason conceded it would take three days for him to carry out the arrangements in respect of getting the £14,000 but when his passport was examined it could be seen that he was only in this country for under one day. He arrived back, I think, on July 3rd from Spain and went back to Spain on the 4th.

Secondly, it is suggested that it was quite incredible that anyone would, particularly with Mason’s skill in business affairs, think of paying £14,000 in the circumstances when it was quite obvious that the raid carried out by Robertson could not be hushed up; thirdly that the circumstances surrounding the withdrawal of money from Mason’s wife’s bank account which Mason had spoken to, was incredible. That evidence was that £10,000 had been removed from his wife’s bank account in order to satisfy part of the £14,000 and he had extracted the rest from his own safe deposit box and then thereafter, his wife, on his instructions apparently, had removed the rest of the money from her account in order, so it was said, that the dishonest transaction might be concealed. It was pointed out that that was a non sequitur. To suggest that by closing an account the bank would have been deprived of the opportunity of producing documents relating to the account was nonsense. Finally, it was said, why not draw the whole of £14,000 out of his wife’s account? There was plenty in it, why not do that? The suggestion that it was an elaborate confidence trick played on Mason by Moody without the knowledge of Robertson was too bizarre to be considered for a moment.

There was a great deal in the argument which Mr. Winstain put before us. I have no doubt Mr. Simpson, who appeared with Mr. Winstain at the trial on behalf of Moody, made a great deal of capital out of these very arguments when he addressed the jury. We have had as much hinted to us by Mr. Tudor-Price. There is nothing which can possibly be complained of in the Judge’s direction, indeed Mr. Winstain does not seek to, so far as this particular Count is concerned. We certainly do not feel sufficient doubt about the matter to say that the outcome was unsafe or unsatisfactory. It may be surprising that the jury came to the conclusion that they did, but they saw Moody and Mason and we have not seen Moody and Mason. The answer may be found in that simple fact. So it is, in some ways with regret, that we find it Impossible to say there is anything wrong with that conviction on that Count so far as Moody is concerned.

That brings me, finally, to the case of Tilley. Tilley has drawn his own notice of application for leave to appeal against conviction. It relates to one Count. That was an allegation that he corruptly accepted the sum of £40 from one Terence Nicholl. We have read the notice of appeal. It complain, that the conviction on that Count is inconsistent with the acquittal of the other Applicant, Alton, in respect of a similar Count. It is not inconsistent at all. We have examined that ground and examined it with care. There is nothing in it and indeed it is not attempted to be supported by Mr. Batten who appears on his behalf to argue the question of sentence. Consequently the applications of both Moody and Tilley, so far as conviction is concerned, are refused.

 2016 Cathy Fox Blog Index / Timeline of Court Appeals and Documentation [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • 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.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area

Links

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

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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 Child Abuse, Court, London, Police and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to Virgo, Hamer, Moody and Tilley Court of Appeal 15 March 1978

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

  2. Pingback: Virgo, Hamer, Moody and Tilley Court of Appeal 15 March 1978 | cathy fox blog | fighting for the rights of childrens human rights

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