R v Great Grimsby Appeal Court 22 Feb 2002 Court of Appeal

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 unredacted.

[2002] EWCA Crim 641

No: 200105915/S4

IN THE COURT OF APPEAL CRIMINAL DIVISION

Friday 22nd February 2002

Lord Justice Kennedy

Regina v Great Grimsby Crown Court


Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

MR J R LODGE appeared on behalf of the Applicant

MISS C EVANS appeared on behalf of the Respondent, the Scunthorpe Evening Telegraph

MISS C S JOLIN appeared on behalf of the Crown as a friend of the Court

JUDGMENT

(As approved by the Court)

22nd February 2002

1. LORD JUSTICE KENNEDY: This is an application for leave to appeal against a ruling made by Judge Heppel in the Great Grimsby Crown Court on 13th September 2001. The applicant is a defendant in a criminal trial in which he faces five counts of buggery, a count of indecent assault and a count of cruelty to children. The charges arise out of what is said to have occurred at two children’s homes where the applicant was employed between 1975 and 1989. Those two homes were at Scunthorpe and York. Originally there were three defendants. The other two defendants were a man named Michael Brizzalari and another named Keith Mair, but before September 2001 it had been decided that they would be tried separately, Mair in January of 2002, this applicant in April and the final man, Brizzalari, in June, all by the same judge.

2. It is against that background that counsel for Mair and counsel for this applicant applied for orders under section 4(2) of the Contempt of Court Act restricting publication of their names and addresses. The relevant provision of that Act reads as follows:

“In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.”

3. The judge declined to make the order sought.

4. It is important to recognise that the section provides an exception to the general rule that justice must be done in public, as was made clear by Lord Diplock in a well-known passage in Attorney General v The Leveller Magazine [1979] AC 440 , and is now reinforced by Article 6 of the European Convention on Human Rights.

5. If an order is made under section 4 then a defendant may well be content and the prosecution, as in this case, may well be indifferent, but the media may be dissatisfied and may wish to invoke rights to publish which are safeguarded, amongst other things, by Article 10 of the Convention. It was to meet that dissatisfaction that Parliament implemented section 159 of the Criminal Justice Act of 1988, which, so far as relevant, provides in subsection (1) that:

“A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against—

(a) an order under section 4 or 11 of the Contempt of Court Act 1981 made in relation to a trial on an indictment;

(b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial.”

6. The obvious difficulty which Mr Lodge, on behalf of the applicant, faces is that in this case no order was made. That was precisely the difficulty which faced the defendant in the case of R v S [1995] Cr App R 347 who wanted those proceedings against him heard in camera. Steyn LJ said in that case at page 349:

“In our judgment, there is no jurisdiction to grant the relief sought. The court may entertain an application for leave. If leave is granted, the appeal is in respect of ‘any order restricting access to the public to the whole or any part of a trial on the indictment’, that is, an appeal only lies in respect of an order that the proceedings be held in camera or against an order so far as it directs that part of the proceedings be held in camera. If the judge refuses to order the proceedings to be held in camera, section 159(1)(b) does not apply. In that event, there is no power to entertain any application or appeal against the judge’s entirely negative order. It follows that if the judge makes an order directing that part of the trial be heard in camera, but the remainder in open court, there can be no power to entertain an appeal against the negative part of the order. That the power of the court should be so limited is unsurprising. After all, appeals of the type contemplated in this case would be productive of inconvenience and delay. There are powerful policy reasons against such appeals. Upon examination it will be seen that counsel’s arguments attack the exercise of the judge’s discretion, but he fails to satisfy the threshold requirement of a right of appeal. If the applicant is convicted he might conceivably have a remedy, but at this stage he has no remedy whatever.”

7. In the present case Mr Lodge, perhaps anticipating the problem which now faces him in this court, sought judicial review, but he failed to obtain permission to move. He has now come to this court seeking to find a meaningful distinction between section 159(1)(a) and section 159(1)(b) which was the subsection considered in the case of R v S . As to that he says this in paragraph 5 of his skeleton argument:

“It is submitted that a distinction can be drawn between section 159(1)(a) and section 159(1)(b). Section 159(1)(a) Contempt of Court can, as in the current case, he anticipated and be determined prior to the trial date. On the other hand subsection (1)(b), applications and hearings in camera, are more likely to occur during the currency of a trial. There is a risk of inconvenience or delay if the trial is interrupted by applications to the Court of Appeal. There could be said in those circumstances to be a policy reason for drawing a distinction between a defendant whose application would delay a trial and the media whose application would not.”

8. With the greatest of respect we see no distinction at all. The reasons given by Steyn LJ for the conclusion at which the court arrived in the case of R v S are equally applicable to an application such as that which is before us today. Accordingly, we are bound by that decision which, in our judgment, was in any event right.

9. Mr Lodge did not advance that part of his argument orally because he considered, frankly, that a more powerful submission could be made in reliance upon the European Convention itself and in particular on Article 6. He invited our attentions to an observation made by Rose LJ in R v Manchester Crown Court ex parte H [2000] 1 WLR 760 at 766, but as he recognises that particular observation is only an observation made in passing and is not of direct relevance to the matter with which we are now concerned.

10. Mr Lodge submits that if there is no right of appeal under section 159 there certainly should be and that this court should, relying on the provisions of section 3 of the Human Rights Act of 1998, read in to section 159 the necessary right of appeal. He submits that there should be equality of arms as between the defendant, on the one side, and the media the other.

11. However the difficulty, of course, is that the defendant is a defendant in criminal proceedings in which the media are not a party. The reality is that the defendant’s right to a fair trial in those proceedings is already fully and adequately protected by his right of appeal at the end of those proceedings to this court. In consequence, as it seems to us, there is simply no room for the application of the principle of equality of arms to the situation which faces us here.

12. There is, to go back to what we said a little while ago, no order, so far as he is concerned, against which he can appeal. He has the normal rights of a defendant to have a fair trial. If he does not have a fair trial, he has a right of appeal. There is nothing in what we have seen or heard this morning which persuades us that we have the jurisdiction to grant leave to enable Mr Lodge to advance the grounds of appeal which he would wish to lay before us.

MISS EVANS: My Lords, in the light of your judgment I am instructed to make an application in relation to the costs of the appeal from the newspaper’s perspective, that is the newspaper’s costs of preparing for and attending today be paid by the defendant. I should say that my understanding is that the defendant is in receipt of legal aid in relation this appeal and I feel that would have a bearing on your Lordships’ consideration of this application. But the application is put on the simple footing that the appeal—the application for leave to appeal should never have been brought on the basis that it was clear from the start that it was misconceived and bound to fail because of the jurisdictional difficulty. On that basis, costs being entirely in the discretion of the court on an application such as this, I would ask that the newspaper’s costs be paid by the defendant.

MR LODGE: My Lord, if the newspapers’ costs be paid they should be paid from Central Funds. I anticipate there is power for that to be done. A defendant who is covered by Crown Court Legal Aid, and who brings an application in the course of those proceedings, in my submission should not normally have orders for costs made against him during the currency of those proceedings.

LORD JUSTICE KENNEDY: I thought you might have argued on the basis that you never got beyond the application stage.

MR LODGE: I do now.

LORD JUSTICE KENNEDY: Yes. (Pause). This matter not having gone passed the application stage, and applications being a hurdle which an applicant must surmount before anybody else is necessarily a party to the action, we make no order in relation to costs.

Nothing in the judgment which we have delivered should be taken as in any way impairing the order made by Judge Heppel, in so far as it was restrictive. That was never the subject matter of litigation in this court. We only say that in order to make it absolutely clear that we have not in any way watered down what the judge said.

MR LODGE: I am grateful for that, my Lord. The order that he made stays and in fact I anticipate the order as he made in the trial of Mair, which extended to a ritual (?) order stays. I am obliged.

LORD JUSTICE KENNEDY: Yes. In so far as that applies to what was said relation to the names—I don’t think it does—but in relation to the names of defendants during the course of those proceedings, then it must take effect. I don’t think it actually has any bearing on them. Thank you very much.

 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...
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One Response to R v Great Grimsby Appeal Court 22 Feb 2002 Court of Appeal

  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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