James Bernard Littlewood 1. 28th June 2004 Supreme Court

This series of appeals concern alleged perpetrators at Scawby Grove Care Home in North Lincolnshire and St Camillus Care Home, Tadcaster, Operation Juno and perhaps Operation Courier

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

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” to protect victims, there may also be “assault redacted” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual.

Some redaction 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 vital information is mainly names of the perpetrators, past addresses, instituions where assaults occurred, 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.

Some transcripts may have been subject to automatic reading softwware and whilst effort has been made to correct these, the text should not be regarded as definitive.

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 redacted for personal details and assaults.

[2004] EWCA Crim 1648

Case No: 200203085/X4 & C1

IN THE SUPREME COURT OF JUDICATURE

Monday 28th June 2004

Lord Justice Waller

Between R

v.

James Bernard Littlewood


(Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

William Harbage QC and Catarina Sjolin (instructed by CPS Grimsby) for the Respondent

Anthony Arlidge QC and John Lodge (instructed by Bark & Co) for the Appellant

Judgment

As Approved by the Court

Lord Justice Waller:

1. In May 2002 the appellant was tried at the Crown Court at Grimsby before His Honour Judge Hepple QC and a jury on an indictment containing twenty-one counts. The counts covered a period of some fifteen or so years from the early 1970s through to the 1980s. The first four counts related to four complainants at St Camillus Care Home – three asserting cruelty to a child and one (count 2) buggery, the complainant on that count being [A] . The other seventeen counts related to twelve complainants who had been at Scawby Grove Care Home, at which the appellant was at first the deputy head and then the head. Twelve of the seventeen counts were again counts alleging cruelty to a child; one count alleged indecency, the complainant being [B], and four counts alleged buggery, the complainant on one count (count 9) being B, and the complainant on the other three (counts 11, 12, and 13) being [C].

2. The appellant was convicted on all the counts alleging cruelty except two. Of those two one related to a complainant, [D] (count 5), where the facts, even as alleged, indicated a rather minor incident, and the other related to B (count 7). The appellant was acquitted on all three counts relating to B (counts 7, 8 and 9). B it seems had tried to withdraw his statement prior to the trial. That was suggested by Mr Arlidge QC, representing the appellant, as a possible explanation for the verdicts on those counts.

3. The appellant was convicted on the count alleging buggery of A (count 2). As regards C the jury convicted on one count of buggery (count 11), acquitted on one count of buggery (count 12), and could not agree on the third count alleging buggery (count 13).

4. The judge passed concurrent sentences of four years on each of the counts of cruelty on which the appellant was convicted. [These sentences may require consideration in the light of an application for permission to appeal against sentence yet to be dealt with.] The judge passed sentences of nine years on the two counts of buggery on which the jury convicted (count 2 relating to A and count 11 relating to C) concurrent between the two, but consecutive to the four years on the cruelty counts making thirteen years in all.

5. The appellant originally applied for permission to appeal against the conviction on count 11 relating to C on the grounds of an alleged inconsistency with the acquittal on count 12 and the inability to agree on count 13, i.e. the other counts alleging [assault redacted] of C. The appellant also applied for permission to appeal against the conviction on count 2, the [assault redacted] of A, on the basis that if the appeal was allowed on count 11, the conviction on count 2 could not be considered safe. He also applied for permission to appeal against the conviction on count 10, a count alleging cruelty towards C on the basis that if the conviction relating to the [assault redacted] of C was set aside, the conviction for cruelty should be considered unsafe.

6. The single judge originally refused permission. Before the matter came before the full court a further application was made to put in fresh evidence. The main thrust of that evidence was to attempt to cast further doubt about the safety of the conviction for the [assault redacted] of C on count 11. The application also sought to put in some evidence to cast doubt on the safety of the conviction on count 2, the count alleging the [assault redacted] of A. There was also an attempt made to demonstrate non-disclosure of social service records, particularly relating to one complainant called [E], the complainant in count 6, which was a cruelty count.

7. The full court granted permission to argue the consistency point relating to C, plus the possible consequential effect which quashing the conviction on count 11 might have on count 2 (the [assault redacted] of A) and count 10 (cruelty against C). The full court stood over the application to put in fresh evidence to the court hearing the appeal.

8. Before the matter came before the full court Mr Arlidge QC came in to advise. At his instigation for the first time some criticisms were made of the judge’s summing up and of the admissibility of certain evidence. He has applied both to be allowed to deploy those points to support the appeal relating to the counts for which the appellant has permission and to broaden his attack so as to gain permission to appeal the convictions on the cruelty counts.

9. Some of his criticisms were in our view quite misplaced, having regard to the way that the trial had been conducted. First he took a point on the admissibility of evidence in relation to which no objection had been raised at the trial and which no-one thought of raising as a point on appeal until Mr Arlidge came into the case. In relation to count 1, which alleged cruelty against [F], the Crown called the complainant’s father to say that F had complained about the conduct close to the time when it was alleged to have taken place. Mr Arlidge submitted that the evidence was inadmissible because, he submitted, it is a “general rule of evidence that statements may be used against a witness as admissions but that you are not entitled to give evidence of statements on other occasions by the witness in confirmation of the testimony” [see Archbold 2004 Edition, paragraphs 8–102]. To that he submitted there are certain exceptions. First, statements constituting recent complaints in sexual cases may be given in evidence, but, as he submitted, a count of cruelty is not a complaint in a sexual case. The further exception is that statements may be put in evidence rebutting an allegation of recent fabrication. Such statements will of course normally only be adduced in re-examination or by way of rebuttal evidence and would not normally be given by evidence in chief.

10. Mr Arlidge may be right technically, but in this trial clearly it was being alleged generally that the complainants were fabricating their evidence following a police enquiry started many years after the events with which the counts dealt. No doubt those representing the appellant at the trial were content that the evidence of the father of the complainant, F, should be given in chief, as opposed to being put in either in re-examination or by way of rebuttal. In any event, no objection having been taken to the evidence of the father being adduced in chief, it seems to us that it is not open to make the complaint that Mr Arlidge does in the Court of Appeal.

11. Mr Arlidge also criticised a direction which the judge gave relating to cruelty. The judge directed the jury so far as cruelty by ill-treatment is concerned as follows:-

“Before you can convict you must be unanimous that the complainant was subjected to ill-treatment in one way or another, but you do not as a jury have to be unanimous as to the particular incident or incidents. Although several incidents are alleged in respect of some complainants, one is enough. So one of you can come to the conclusion ‘well, I find that such and such happened and that is ill-treatment’, another of you can say ‘well, I find that something different happened but that’s ill-treatment’; if between you you are satisfied that the defendant ill-treated the complainant, that’s how the course of conduct charges work but, of course, all the other elements with the events have to be proved. So much for cruelty.”

12. This was a direction discussed between the judge and counsel for the prosecution and the defence. It was not a direction to which any objection was taken by the defence team conducting the trial. Unsurprisingly again until Mr Arlidge came into the case no-one on the defence team thought of criticising that direction. If it were obviously a misdirection, which competent counsel could not have agreed to, that might be attackable in the Court of Appeal, but one of the reasons for encouraging the discussion of directions as between judge and counsel is to limit points that can give rise to appeals. It would not be right to allow a new member of the team thereafter to go behind what was accepted as a perfectly legitimate and understandable stance taken on a direction at the trial.

13. These two criticisms were points taken in order to persuade us to grant permission to appeal against the convictions on the cruelty counts, or some of them. Other points taken to seek to persuade us to take that course were:-

i) that disclosure at the trial was inadequate;

ii) that evidence of conduct relating to other incidents not the subject of the counts had been wrongfully admitted;

iii) that certain fresh evidence relating to count 6, where the complainant was a young woman called E, was now available.

14. It is convenient to deal with these points at this stage since, as we made clear at the hearing, we take the view that there is no basis on which permission to appeal against the convictions on the cruelty counts should be given.

Non-disclosure

15. Mr Harbage QC has set out in the Crown’s written submissions the position so far as the Crown is concerned respecting disclosure. In his original submissions, at paragraph 29, he set out the policy which in fact was applied at a different trial. There were three trials arising out of the police enquiry into Scawby Grove and the policy that he there sets out was that adopted in relation to the first trial. By a note of the 25th May 2004 he sets out a different procedure applied in relation to the second trial, being the trial with which this appeal is concerned. That involved the police seeking a court order in relation to compelling the various social service departments to give their relevant files to the police. The disclosure officer then compiled placement histories for the children and picked out those documents which were disclosable under the usual CPIA disclosure regime. Copies of the placement histories and disclosure documents were given to the prosecution and defence. Documents from the file relating to the complainant E were disclosed in this manner. It seems that when the appellant instructed new solicitors for this appeal the new solicitors approached the CPS for copies of all unused documents disclosed at the trial. Junior prosecuting counsel’s copies of the unused documents were copied and sent to the new solicitors. It is however the Crown’s understanding “that all documents sent to the appellant’s new solicitors, including those relating to E , had previously been disclosed at trial.”

16. Mr Arlidge was not able to demonstrate that there was any reason not to accept the above statement.

Evidence relating to other incidents

17. Such evidence was clearly admissible in the context of showing the overall conditions at these care homes. It appears that no objection was taken to the admissibility of that evidence at the trial and accordingly no arguable point arises by reference to that evidence.

Fresh evidence relating to E

18. Two aspects arise in relation to this suggested fresh evidence. First the submission is that following the trial this lady went public, resulting in a press article. That she undoubtedly did. It is asserted that that led others to make contact with the appellant’s advisors and/or Mrs Littlewood saying that the account given by E was inaccurate.

19. The second aspect relates to the fact that it is suggested that it is only now that E’s social services record has been made available. What is submitted is that this record now shows an entry relevant to what may be the relevant evening on which the girl said the act of cruelty occurred, i.e. being dragged by the hair down the stairs.

20. As to the first aspect, the appellant had the ability to call and did call a great deal of evidence from those who worked with him at the care homes to support his case. The further evidence produced as a result of the article could have been available. In any event, it is not conceivable that it would have made any difference so far as the jury were concerned, in that all the evidence called by the appellant at trial made the points now sought to be made.

21. As to the second aspect, the entry may pinpoint the relevant evening, and it may even indicate that the complainant on count 6 was a difficult girl and that some degree of force might have been needed to control her. All that, however, was already before the jury. Furthermore, it seems unlikely that this entry was not available and disclosed to the defence prior to the trial, having regard to the point made on non-disclosure above. The question was whether the dragging of the girl by her hair downstairs took place. The jury were sure that it did and nothing disclosed persuades us that it is arguable that with this material the jury might have reached a different verdict.

22. It was in those circumstances that we refused permission to appeal on the convictions on the cruelty counts.

Count 10

23. It is convenient while dealing with the cruelty counts to deal with count 10. As regards count 10, where C was the complainant, we can say that even if, in relation to the counts to which we are about to turn, we thought there was a doubt about the safety of the conviction for [assault redacted] on count 11, we could not in the context of the many convictions on other counts of cruelty of other complainants take the view that there was any lack of safety so far as count 10 was concerned. The lack of safety on count 11 could not in our view have any knock-on effect so far as count 10 is concerned.

Count 11 and Count 2

24. We now turn to count 11 and count 2, the counts where the jury convicted the appellant of buggery of C and of A, although they had acquitted the appellant on the second incident of [assault redacted] alleged by C (count 12) and failed to agree on the third (count 13). There are four points. First, is the verdict on count 11 consistent with the verdicts on counts 12 and 13, or, to put it another way, are the verdicts on counts 12 and 13 taken alone such as to cast doubt on the safety of the conviction on count 11? Second, should fresh evidence be admitted and, if so, would that evidence cast doubt on the conviction on count 11? Third, if there is doubt as to the safety of the conviction on count 11, is there doubt by virtue of that fact alone as to the conviction on count 2? Fourth, is there fresh evidence that should be admitted that casts doubt on the conviction on count 2?

The facts on these counts

25. Certain background evidence was called both by the prosecution and by the defence. As regards St Camillus, Ian Watson gave evidence for the prosecution that he was in the appellant’s house at St Camillus and worked on the farm. The appellant was a bully and was very hard on the boys and would regularly slap them. He further said that there was no-one to listen to the complaints.

26. As regards Scawby Grove, this was divided into two units each taking about twelve children. One unit comprised girls and smaller boys and the other had older boys. Some young people were there on remand pending court cases and others were there because of a breakdown of foster placements or being beyond control at home. Some children went to school outside the home. The appellant was deputy head and later became head.

27. Alison Butterworth-Clarke gave evidence that she was a probation officer at Scawby for nine or ten years in the 1970s and 80s. The appellant kept cricket equipment in his office and sometimes, if he wanted to discipline or intimidate anyone, he took a snooker cue to his office. Often residents ran away and on their return they would be put in PE kit and wellington boots to stop them running away. The appellant would interview absconders in his office. On one occasion Miss Butterworth-Clarke heard a snooker cue being smashed on the table and the appellant shouting aggressively for two or three minutes. Sometimes he would come into the dining room holding a cue or baseball bat as a means of control. The regime was very strict and the children were polite to the appellant but were very frightened. The appellant told the female staff that if they did not co-operate they could leave. If there were inspections by outsiders the whole place was cleaned and the inspectors were kept away from disruptive elements. There were no complaints procedures for staff or children.

28. In cross-examination she said she never saw the appellant strike any resident. When she voiced concern she was told to get on with her work and not to cause trouble.

29. The appellant gave evidence that he had been married for thirty-five years and had two daughters. He worked in the steel industry and then gained Home Office qualification to work in an approved school. In 1974 he began as house warden at St Camillus. Most of the boys were there because they truanted from school or were offenders. The object was to turn their lives round through training. If boys absconded they would lose points which qualified them for home leave. Some boys were aggressive. Discipline was flexible within reason and would involve the imposition of tasks as well as withdrawal of weekend leave.

30. In 1978 he moved to Scawby as deputy head. It was a short-term residential place with a bigger turnover of young people. The rate for absconding was not greater than the national average. It was a serious matter because of the risks to the absconder. Each child had an independent social worker. The admissions procedure included medical examinations which were conducted by doctors. He played no part in them although he may have been called to stand in the room at the time of the examination. Discipline and punishment was as strict as at St Camillus. There were more difficulties with the children there and there were extra chores and sanctions for absconders.

31. In cross-examination the appellant said that St Camillus was caring, fair and firm. At Scawby they were concerned about the well-being of the children and providing a family environment. There was no corporal punishment, not even a punch, slap or kick. Standing naked for long periods would be morally unacceptable. He never hit anyone. There was no documentary complaints procedure but the children could report problems to a social worker and staff could complain to the line manager. Any complaint from a child would be noted and taken seriously. It could be just coincidence that the former residents were making similar complaints. He and his wife had good reputations and people had told lies.

32. Mrs Littlewood gave evidence that she had been involved in social work since the 1970s and had accompanied her husband to St Camillus, where she became a house-mother, and she had also been at Scawby Grove. She said she would not still be married to the appellant if she had thought he had done the things alleged. They had never been disciplined and had been called to investigate other social workers’ difficulties.

33. Various members of staff gave evidence on behalf of the defence that Camilla’s was a happy unit and no boys complained of physical or sexual assault; they included Bernard McCain; Ruth Turner; Kenneth Harrison; and Hazel Atkinson.

34. Members of staff from Scawby also gave evidence that it was an ordered and well-run home and there were no complaints of abuse. The children respected the appellant, who was strict and fair. Those members of staff included Simon Alcock; Janet Cooper; Marina Harris; Sister Mary Mulcahy; Sandra Foster; Christine Hawke; Christine Foster; and Jean Marshall. Sister Mulcahy however said that she would not like to cross the appellant and Sandra Foster said that she was wary of him if she did not do her work properly.

35. Michael Boden and Alan Ransom gave evidence that they would attend Scawby for case conferences and never saw anything to cause concern.

Count 11

36. The particular details relating to count 11 were as follows. C said that on one occasion several members of staff took some of the children to a camp at Mablethorpe. C shared a tent with [G]. The appellant had an Australian hat with corks and C messed about with it. The appellant slapped him across the head in front of Miss Alison (Butterworth-Clarke) and told him to stay in his tent while the others went out. Later the appellant called C to the main hut and shouted at him for messing about. He grabbed him, spun him round and bent him over the counter. He held him down and [assault redacted]. C could not resist. The appellant told him that no-one would ever believe him and C was crying when he returned to his tent. That night the tent blew down in a storm and G tried to get C to go to the hut but he would not go and tried to fix the tent. Over the next few days, according to C, he was crying and keeping himself to himself. He could not tell anyone. He spoke to [H] and he gave him some calamine lotion saying “next time wipe yourself better” or words to that effect.

37. In interview the appellant had agreed that the Grove used a particular campsite at Mablethorpe. Asked whether he remembered wearing a hat with corks he said there may have been somebody who did but he doubted whether it was him and he denied buggering C at the camp. In evidence he remembered attending the camp at Mablethorpe on two or three occasions and he accepted that C would probably have been at the first camp but he denied hitting him at the camp. He remembered an occasion when he remonstrated with C after he had absconded. In evidence he said the member of staff who had the hat with corks was a man called Hancock, but he said that he, the appellant, never wore such a hat. In cross-examination he accepted that C may have been kept behind but thought there was another boy staying as well and another member of staff. Thus he recalled an occasion when C had been left behind at the camp (albeit not alone), but he denied [assault redacted] him.

Count 12

38. In relation to the incident, the subject of count 12, C alleged that shortly after being buggered at the camp he was messing about in Scawby with a boy called [J]. He was dragged to an office belonging to Miss Lena, where the appellant locked the door. The appellant shouted and grabbed C and spun him round and bent him over the table, [assaulted redacted] him. The appellant led him to the conference room. Although he went to an outside primary school C did not tell anyone about being [assault redacted]. He asserted that over the years he did tell social workers and the police but they did not do anything.

39. The appellant in his evidence said that Miss Lena was the matron. She had an office in the outer office which he shared when he was a deputy. He said he did not sexually assault C in that office, indeed he asserted that in the mid-afternoon members of staff would be there and would have been able to see what was going on.

Count 13

40. As regards the incident, the subject of count 13, C said that on a further occasion after physical education the showers were full and a member of staff, Mr Harrison, told C to use the staff shower. The others went back to school. C said the door was locked and the appellant banged on it and told C to let him in. C wrapped a towel around himself and the appellant came in, locked the door [redacted]. He [assault redacted] C for a bit longer this time. He told him he would never beat the system and no-one would believe him. C said that when Mr Harrison saw C crying, C told him that he was missing his family and he didn’t want to tell anyone what had happened.

41. In cross-examination he said he spoke to social workers and a police officer about the violence but they did nothing. He did not mention the sexual abuse because no-one would believe him. In 1983 he had seen a solicitor about other matters and did not mention the violence. He did tell social workers about it. When the police first came to see him he told them to go away but eventually he made three statements and mentioned the sexual abuse in the third one. He did not want to give evidence and would not have done so had he not been arrested.

42. Kenneth Harrison was called by the defence. He described the regime at Scawby as being happy and well-structured. He said the children were content. He described the appellant as being a strong personality and a strict disciplinarian but still approachable and caring. The children responded to the appellant with respect and only feared him if they had done something wrong, when he would give them a dressing down. He was not cruel, intimidating or violent. He asserted that C goaded other people with sexual overtones and went to staff for protection. He seemed to crave attention. There were not signs of sexual abuse. In cross-examination he said that he did not give C permission to use the staff shower and he did not find the boy in tears after any alleged incident.

43. The appellant did remember seeing C in the staff shower, but the appellant said he was not with Harrison, he was with the property services manager and he was concerned that somebody had left the tap on.

Count 2

44. As regards count 2, A gave evidence that he was aged forty-two at the time of the trial. He had been in care from the age of seven and when he was fifteen he went to St Camillus for several months. The man in charge of his house, whose description fitted the appellant, called him “[Nickname]” and slapped him a lot. He described how on one occasion, as A was passing a storeroom, the appellant came out, put his arm round him and said he wanted help. The appellant’s wife was in the storeroom and she [assault redacted], a normal occurrence. A was put over a laundry bag. The appellant, according to A, lay on top of him, tapping his head and trying to undo A’s pants. A tried to struggle [assault redacted]. His head was all over the place and he recollected that Mrs Littlewood was there. It went on, not for long, but for three to five minutes and A could not describe how he felt. He then described how the appellant got up, told him he was sorry, locked him in the cupboard for about half an hour and then gave him about five cigarettes out of a packet. A described how he then went downstairs and told McCain, who was playing snooker. They went for a walk and A told McCain what had happened but McCain did not want to know. McCain took A into the office and in front of the appellant told the appellant what A had said and the appellant flew off the handle and smacked A all over the office. He ran away five or six times that week and told the police when they took him back, but the police and social worker never did anything, they didn’t listen in those days.

45. In interview the appellant said that A’s allegation was sheer fabrication and fantasy; it was a tissue of lies. When he gave evidence he said that he could remember A from the Leeds area with a burn on his chest. He said that the [assault redacted] never happened. He remembered no incident with him of any significance. He was never in the linen room with him and McCain never spoke to the appellant about the allegation. Under cross-examination he said he couldn’t remember calling A “[Nickname]”. He withdrew a suggestion that he made during his interview that there could have been some confusion between the appellant and McCain so far as A was concerned. He did not believe that McCain reported anything to him and he did not smack A about.

46. McCain was also called and he described how he had been a social worker and worked at St Camillus from 1968 to 1983. Social workers visited whenever they wanted to do so, and at a minimum three month intervals. He found the appellant to be honest and upright, fair and firm with the boys. He never saw any behaviour which caused him any concern. He recalled A as being somebody who had been badly burnt. He remembered that A was bullied and that they had to look after him. He described how he had personal contact with A almost every day, but said that A never complained to him at any time. He said that he never saw the appellant use physical force on A. He said that A made no complaint of sexual assault in the linen cupboard. He could not recall taking A to the appellant’s office or the appellant striking him.

47. Mrs Littlewood also gave evidence. She described the linen cupboard and how persons could only go in there if they were authorised to do so. She said it was untrue that she had any sexual contact with A. She said he was fantasising.

48. Ruth Woodhead, a social worker to A, said she had checked her files. She had no independent recollection of A apart from the files, and she said they revealed no complaint of any abuse.

Is the jury’s verdict on count 11 inconsistent with their verdicts on counts 12 and 13?

49. As to the correct approach, there is a convenient summary in Archbold, paragraph 7–70 which reads as follows:-

“An appellant who seeks to obtain the quashing of a conviction on the ground that the verdict against him was inconsistent with his acquittal on another count has a burden cast upon him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by an appellate court. The court will interfere if it is satisfied that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion which was reached: R v Durante, 56 Cr.App.R 708 ; R v Malashev [1997] Crim.L.R. 586 ; R v Hunt [1968] 2 Q.B. 433 , 52 Cr.App.R.580 , in which Lord Parker C.J. said the principle in every case is whether the inconsistency is such that it would not be safe to allow the verdict to stand. The fact that two verdicts are logically inconsistent does not, however, make the verdict complained of unsafe unless the only explanation of the inconsistency must or might be that the jury was confused or adopted the wrong approach: R v McCluskey, 98 Cr.App,R 216, CA ; R v Segal [1976] Crim.L.R.324 , CA; R v Velasquez [1996] Cr.App.R. 155 , CA. See also R v Andrews-Weatherfoil Ltd, 56 Cr.App,R.31 , DA (per Eveleigh LJ at pp 40–41). The mere fact that the different counts all depended on the evidence of the same witness, whose evidence was uncorroborated, and whose credibility was in issue, could not render different verdicts on the different counts inconsistent for this purpose: R v Bell [1997] 6 Archbold News 2, CA (observing that R v Cilgram [1994] Crim. LR 861, CA , is to be regarded as an exceptional case.”

50. A passage from the judgment in R v Bell , of which we have a transcript, dated 15 May 1997, is worth quoting in full. Having expressed the view that in that case there was an “obvious explanation” for the jury having accepted the complainant’s evidence on certain counts but rejected it on others, the others being accounts in relation to which an independent witness gave evidence, Rose LJ said this:-

“There is, in any event, as it seems to us, a difficulty with Mr Higginson’s submission in relation to whether there is any inconsistency at all. As it seems to us, there is no logical inconsistency in the verdicts returned by the jury, and unless there is a logical inconsistency, the question of whether or not the jury’s verdicts can sensibly be explained does not generally arise. There have recently been a number of appeals to this Court based on allegedly inconsistent verdicts, and it is perhaps therefore worth emphasising that it is axiomatic that, generally speaking, logical inconsistency is an essential prerequisite for success on this ground: see Durante 56 Cr.App.R. 708 , at page 714, and Warner , unreported, Court of Appeal, Criminal Division, transcript dated 17th February 1997.

There are, of course, exceptional cases of which Cilgram (1994) Crim.L.R. 861 , provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this Court, differently constituted, expressly rejected the submission that, where a complainant’s credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant’s allegations.

As was pointed out by Evans LJ, giving the judgment of the Court in Warner , see transcript page 15F, such a conclusion would be contrary to the proposition that juries should generally be directed to give separate consideration to each count.

The jury in the present case was so directed. There was, as it appears to us, no logical inconsistency between the verdicts which they returned, but, in any event, there was, as we have indicated, a good reason for the jury to differentiate between the counts in the way which they did. Accordingly that ground failed.”

51. We were further referred to R v Selwyn Bell [2003] EWCA Crim 319 , R v Hooper [2003] EWCA Crim 2427 and most recently the report in the Times, R v Smolenski , Friday 28th May 2004. These cases deal with the difficulties that there are in relation to historic abuse and the difficulties that the court has in reviewing the safety of the convictions in these very difficult cases. But those authorities recognise the importance of the Court of Appeal reminding itself that it is the jury which has seen the witnesses, not the Court of Appeal, and that the trial process depends upon confidence in the jury system.

52. We believe that the proper approach is as follows. First, we do not understand the phrase “logical inconsistency” as used by Rose LJ in R v Bell to be different from the concept of being satisfied that “no reasonable jury who had applied their minds properly to the facts” could reach the conclusions which the jury did reach. The reasonable jury test was propounded by Devlin J and approved in R v Durante 56 Cr. App. R. 708 , and is accurately summarised in the quotation from Archbold above. Second, it is obvious, particularly in the modern context, that paramount in consideration of any case is the “safety” of the relevant conviction. Third, in the context of cases where complainants have given evidence in relation to individual counts, it is important to remember that trial by jury is the foundation of our criminal justice system. It is the jury that has seen the witnesses and justice must to be done to complainants as well as to appellants.

53. With the above approach in mind we start from the summing up in this case. The judge directed the jury in a fashion which Mr Arlidge could not criticise when he said at page 9:-

“You must therefore give separate consideration to each count on the indictment and it follows, because you must give separate consideration, that your verdicts may be the same but they need not be; they need not be the same in respect of complainants who are themselves the subject of more than one count.”

54. The last comment applied only to B and C. Now it is true that when he came to deal with the C counts the judge did at the commencement of his summing up on those counts put the matter in this way:-

“Now the issue so far as Mr C is concerned, and as with him so with each of these other complainants, is this; did he, when this police enquiry contacted him at the age, as he then would have been, 37 or 38 years of age, having been twenty years out of the care systems, invent a story about Mablethorpe, with little details about hats with corks and tents blowing down, invent a story about Miss Lena’s office, or the staff shower and being told to use it by Mr Harrison when he was putting the gear away after a softball game? Was all that an invention or was his account a true one and one which, in a public court before a judge and jury, he would have preferred, simply out of embarrassment, not to have to give? Now, that’s the issue in this case, members of the jury, put full square before you and, as I said, a nettle that you have to grasp in each case.”

55. The judge also was, as Mr Arlidge submitted, directing the jury to look at the whole picture. He said:-

“These allegations are not tried together in one court by one jury and one trial merely for the sake of convenience. They are tried together because they are all said to arise out of Mr Littlewood’s career in children’s homes, and so that you, the jury, can consider the whole picture. The issue, members of the jury, is not that you would convict on the evidence of one complainant standing alone, but whether, taking into account all the evidence, you find the offences or any of them proved.”

56. Mr Arlidge suggests that in directing the jury to be assisted by the “whole” picture, the judge should have also warned the jury that if they became unsure about one piece of the whole picture, that that may begin to have a knock-on effect on others. He accepted that the judge’s directions were in accordance with the Judicial Studies Board suggested standard directions. The Judicial Studies Board direction contains no warning as to the knock-on effect of finding that one piece of the jigsaw did not fall into place.

57. Mr Harbage says that it is a matter of common sense that if a jury cannot be sure of one piece of the jigsaw, they cannot use that evidence to support the whole picture. It is also a matter of common sense, he says, that the more pieces that fall out of the “global picture” the less looking at it from a global point of view will help.

58. This is another area where the judge took great care to reduce his directions to writing; he discussed them with counsel, and no-one contemplated that some other factor as suggested by Mr Arlidge should be added. We do not consider there was any misdirection in this case. We also would point out that the judge in his summing up clearly and carefully marshalled the evidence by reference to each count separately.

59. We simply come back to the first question: does the fact that the jury could not be sure of the buggery alleged under count 12, and could not agree that they were sure in relation to the buggery alleged under count 13, give rise to a doubt about the safety of the conviction under count 11?

60. It has to be accepted that in relation to each of these counts it was the word of C against the word of the appellant. But the counts related to three distinct incidents. The detail of the evidence given by C was different in relation to each of the incidents. Count 11 related to an incident at the camp in Mablethorpe. C gave detailed evidence about the appellant wearing an Australian-type hat with corks and about he, C, messing about by flicking the corks. He described how the appellant had lost his temper and grounded him and, in some detail, how he had [assault redacted] him in a hut. He described his [redacted] discomfort and how a member of staff had given him calamine lotion, making the comment to which we have referred. There is no dispute that the appellant attended such a camp at the same time as C, and the appellant accepted that someone had such a hat, albeit the appellant thought it belonged to someone else. There was no dispute that the appellant had stayed behind with C, albeit the appellant thought two other persons were there.

61. Count 12 related to an allegation said to have taken place at The Grove in Miss Lena’s office in the middle of the afternoon. C gave much less detail of this [assault redacted]. The appellant made the point in his evidence that members of staff would be about during the afternoon, and indicated that the office had a window to the outside, something which had been denied by C. On the second day of their retirement the jury asked a question about the photographs of the office and it is to be noted that photograph 4 of the jury bundle showed a hatch and an outside window, both of which could have given a view into the office. The jury may well simply have found the point made by the appellant very persuasive, and thus felt unable to be sure that the incident as C had described it had happened.

62. Count 13 was an allegation of [assault redacted] in the staff shower at The Grove. In this instance the appellant accepted that he had found C in the staff shower on an occasion. However, other evidence from C was not supported by a witness, Harrison, called by the defence. C suggested that Harrison had given him permission to use the staff shower and furthermore suggested that Harrison would have seen C in tears after the incident. Harrison did not support either aspect of C’s evidence.

63. The jury had been told that they could reach different verdicts on the different counts, even on counts relating to the same complainant. Why then, we ask rhetorically, should not the jury be sure that one act of buggery took place at the camp, not be sure that the second act of buggery in the office into which others might be able to look had not taken place, and be unable to agree in relation to the third act of buggery? We can see no reason. They were sure that the appellant had committed an act of [assault redacted] on C (count 11). The fact that they could not agree in relation to the totally separate incident, the subject of count 12, and were not sure about a totally separate incident, count 13, does not in our view on its own cast any doubt upon the safety of the conviction under count 11: in the words of Rose LJ “there is no ‘logical inconsistency’ between these verdicts”. Obviously the verdicts on counts 12 and 13 cannot in that event cast doubts on the safety of the conviction on count 2. Indeed if there is any force in the argument of Mr Arlidge for the appellant as to the knock-on effect of one verdict on another, the conviction on count 2 is as capable of providing further support for the safety of the conviction on count 11, as the verdicts on counts 12 and 13 are for casting any doubt on its safety.

64. We then turn to the fresh evidence. Mr Arlidge QC would put his case in the following way if he were allowed to put in fresh evidence in the Court of Appeal. He starts by pointing out that C’s allegation of sexual abuse only came in this third statement. That is true, but C referred to being sexually abused in his first statement, and it is well known in these types of case that it is sometimes hard for a person who has been abused to reveal the abuse that they suffered many years after the event. The fact that C was reluctant was known to the jury, because he in fact had to be arrested before he would give evidence. It was for the jury to decide whether that reluctance was genuine in terms of not wanting to reveal the abuse that had taken place, or whether the reluctance was because he did not want to pursue an untruthful account. Thus this is not a strong starting point from which to judge the submissions on fresh evidence.

65. Mr Arlidge then turned to the evidence relating to Alison Butterworth-Clarke. C gave evidence that Miss Alison had struck him while at the camp and had indeed seen the appellant strike him. In his evidence C had said that he was sure that she was at the camp. At the trial Miss Butterworth-Clarke Alison gave evidence for the prosecution and, although supporting much of the prosecution case, denied striking C or seeing C mistreated by the appellant. Mr Arlidge submits that fresh evidence is now available to demonstrate that she was not at the camp at all. That, he submits, fatally undermines the evidence of C.

66. We are far from clear that the fresh evidence would “establish” that Miss Butterworth-Clarke was not at the camp; we are also far from clear that much of the evidence relied on could not have been available at the trial. But, more important, we do not think, in the light of the evidence that Miss Butterworth-Clarke did give at the trial, which did not support C, that establishing that she might not have been at the camp at all would have altered the jury’s view of C’s evidence. Indeed the defence would almost certainly have preferred to leave her evidence on the basis that she was at the camp, since she denied seeing the appellant mistreat C.

67. There has been produced some meteorological evidence said to cast doubt on whether there was a storm on the night when it was alleged that the appellant had [assault redacted] C at the camp. C had given evidence that there was such a storm on the evening that he was [assault redacted]. There was in fact some inconsistency on this aspect between C’s statement, which suggested that the storm was on the next evening, and his evidence. Nothing was made of that inconsistency at the trial and that was clearly because this did not go to the nub of the issue whether the jury could be sure that C had been [assault redacted] by the appellant on that evening.

68. It is also submitted that fresh evidence is available to show that on the night in question, Wednesday 31st August, the appellant assisted in trying to trace some absconders, including a boy called [K]. It is of passing interest that C’s statement, albeit he did not repeat it in his evidence, was remarkably accurate as to the precise day on which he asserted the [assault redacted] the subject of count 11 had taken place. In his statement he remembered it was a Wednesday and the appellant arrived on that day and left on the Thursday. Fresh evidence does lend some support for the view that there was an absconder, K. But that does not detract in any way from the fact that the appellant accepted that on this evening C had been kept behind and that the appellant was there. The appellant never suggested at the trial that it could not have happened as C suggested because he was elsewhere.

69. Section 23 of the Criminal Appeal Act 1968 permits the Court of Appeal to admit evidence if it thinks it necessary or expedient to do so in the interests of justice. It requires the court to have regard to, amongst other matters, whether it appears to the court that the evidence may afford any ground for allowing the appeal and whether there is a reasonable explanation for the failure to adduce the evidence in the proceedings.

70. There is considerable doubt as to whether there is any reasonable explanation for the failure to adduce any of the fresh evidence sought to be admitted in this court at this stage. But on any view we do not think that any of that evidence would have afforded any ground for allowing the appeal against conviction under count 11. We do not believe it to be either necessary or expedient to admit any of that evidence. We believe that none of it casts doubt on the safety of the conviction under count 11.

71. That leaves only the question whether some additional evidence on count 2 should be admitted. The submission of Mr Arlidge was that A had asserted that he had been [assault redacted] over a laundry bag. It is said that evidence has recently become available to show that laundry baskets were in use, not laundry bags. Thus it is said A’s evidence is undermined.

72. In fact the appellant’s own evidence at the trial, supported by Mrs Littlewood, was that wicker laundry baskets were in use at the time. No point appears to have been taken at the trial that this evidence somehow undermined A’s account. We thus do not accept that this evidence was unavailable at the trial. In any event our view is that A’s account would not have been undermined by reference to this evidence. We do not believe it is necessary or expedient in the interest of justice to admit this evidence

Conclusion

73. In our view the jury, having heard the evidence, were entitled to reach the conclusion they did. These convictions are safe and the appeal must be dismissed.

 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 #OpPaedoHunt, cathy fox blog, Child Abuse, Child sexual abuse, Childrens home, Court, Yorkshire and tagged , , , , , , , , , , , . Bookmark the permalink.

One Response to James Bernard Littlewood 1. 28th June 2004 Supreme Court

  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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