Appeal 3 Niven James Sinclair 24 Jul 1973 Court of Appeal

Appeal against conviction was dismissed

Redaction

Some reports have had victims names and personal details 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 whichcorporate  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 software and whilst effort has been made to correct any inevitable errors, the text should not be regarded as definitive. Alias letters are not transferable between appeals.

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]

[1973] EWCA Crim J0724-1

No. 2397/B/71

IN THE COURT OF APPEAL

Tuesday, 24th July 1973

Lord Justice James

Regina v Niven James Sinclair


(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London, WC2R 3AT. Telephone Number: 01-583 4121. Shorthand Writers to the Court.)

MR. J.P. COMYN, Q.C., and MR. G. THOMAS appeared on behalf of the Appellant.

MR. C. NICHOLLS appeared on behalf of the Crown.

JUDGMENT

LORD JUSTICE JAMES: We were going to wait for the expected decision in the House of Lords, but I understand it is not going to be given this term, and we therefore felt it was right to deliver the judgment which will now be delivered and not make Mr. Sinclair wait the result any longer.

The judgment I am now going to deliver is the judgment of the Court, and I am authorised by Mr. Justice Stocker to say that he agrees, although he is not present.

On the 14th May, 1971 the Appellant was convicted, after a trial extending over twelve working days, of the offences of buggery, indecent assault upon boys under the age of 16 years and attempting to procure an act of gross indecency with one of those boys. He had pleaded guilty on the 22nd April, 1971 to an offence of possessing an old Beretta pistol without a firearms certificate, an offence of having that weapon unlawfully in a public place, and of possessing it within the prohibited period of having served a sentence of imprisonment.

He was sentenced to a total effective term of ten years’ imprisonment.

He sought leave to appeal against both conviction and sentence. His application was upon grounds to be settled by solicitors and counsel. He had defended himself at the trial. Counsel understandably required a transcript of the summing-up and the proceedings following verdict before advising. The transcript was not available until February 1972. There were then difficulties over legal representation, and in March 1972 the single Judge, on consideration of the available information, refused the application for leave.

The Appellant renewed the applications and requested that a decision by the full Court be held in abeyance until he had completed the formulation of his grounds of appeal. In the end a massive volume of grounds, carefully and attractively presented, were received by the Registrar. Let it be said that the Court could not have had greater assistance in the understanding of an appeal and in the identification of points relied upon and criticisms made than that which has been afforded by the combination of the Appellant’s own grounds and arguments, supplemented by the argument of Mr. Comyn at the hearing of the appeal.

The renewed applications came before the full Court constituted of Lord Justice Orr and Mr. Justice Kilner Brown on the 6th February, 1973 within about a month of the receipt of the final formulation of the grounds. The Appellant was not present or represented. The Court gave a detailed judgment. At page 9 Lord Justice Orr said: “It is impossible to refer in this judgment to all the grounds of appeal put forward by the Applicant. Many of his legal grounds proceed, and it is not a matter for which he can be blamed in any way, upon a misunderstanding of passages from Archbold, of which he cites a great number. Other of his grounds, both legal and factual, have been answered in the review that I made of the facts, in particular, for example, his complaint about the boy [K] not having been called when an opportunity had been given to him to have him called, and others of these are contradicted by the transcript before us.

“His grounds in relation to the medical evidence have, in our view, no merit, the Judge having fully and fairly reviewed the evidence as I have earlier stated. Having considered all these grounds, along with the further documents he has sent to us, we find no substance in any of them and we refuse leave to appeal on any of those grounds.

“We have, however, come to the conclusion that there is a matter of law on which he is entitled to appeal as of right. The learned Judge, in what appears to us to have been an otherwise quite impeccable summing-up, used the formula in directing the jury that it would be safer and wiser to look for corroboration.”

I interpose to recall that that Court had not the advantage of hearing argument on the quality of the summing-up. Continuing, Lord Justice Orr said: “In the case of R. v. Henry and Manning , reported in 53 Criminal Appeal Reports, page 150 , it was laid down by this Court that: ‘What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone.’ In our view it is arguable that the use of the words ‘safer’ and ‘wiser’ did not satisfy that requirement.” The Court took the view that that was a point of law upon which the Appellant did not require leave to appeal.

Mr. Comyn submitted that he was entitled to raise the grounds of appeal, other than that point of law, as a continuation of the application for leave to appeal against conviction. We reject that contention. This Court expressly refused leave upon the other grounds and cannot entertain those grounds again. On the other hand, we are satisfied that Mr. Comyn was entitled to raise the subject matter of those other grounds in so far as it is relevant as the context of the ground he is entitled to argue, and in so far as it is relevant to the applicability of the proviso to Section 2 of the Criminal Appeal Act, 1968. In the result Mr. Comyn was not precluded from bringing to the attention of the Court any matter upon which he wished to rely.

It is necessary to say a little more about the charges. The indictment included seventeen counts. They were not in chronological order. They were divisible into groups according to the alleged victims. The first group in time referred to a boy [A] , aged 14, and a boy [B], aged 15 years: Count 12 (indecent assault upon A), Count 13 (indecent assault upon B) and Count 14 (attempting to procure gross indecency with B).

The second group concerned [C], aged 14, and [D], aged 13 years: Counts 1 and 2 (Buggery of C); Counts 5 and 6 (Buggery of D). Also in this group were [E], aged 14 years: Counts 9 and 10 (indecent assault); and [F], Count 11 (upon which the jury acquitted of indecent assault). The jury were discharged from returning verdicts on Counts 3, 4, 7 and 8 alleging indecent assault on C and D. There were two other boys called to give evidence in relation to offences within this group, namely, [G] and [H]. In respect of H no charge was preferred. In respect of G a charge of indecent assault was preferred at the committal stage and dismissed by the Magistrates. One further boy gave evidence, [J] , who on the evidence was not connected with the other boys in the other groups save in that he was present on an occasion referred to in the evidence of E. His evidence of involvement with the Appellant related to matters giving rise to suspicion of sexual familiarity rather than proof of criminal offences.

The Appellant is a single man and at the material time lived alone in a maisonette at Stanmore. He owned a dog. He got in touch in various ways with young boys to whom he offered Jobs such as walking the dog or cleaning the flat for reward. The boy C appears to have been responsible for introducing other boys to the Appellant, and in this respect was a person who the jury could regard as an accomplice in the Appellant’s conduct. D, a close friend of C, on the evidence was so closely associated with C that the jury could regard him as tainted by C’s status as accomplice.

A gave evidence of being engaged to exercise the dog in March 1970 and of an occasion in May when the Appellant [assault redacted]. A told his friend B and his parents of this and terminated his association with the Appellant.

B, whom A had introduced to the Appellant, was engaged to clean the flat and exercise the dog. He gave evidence of behaviour similar to that complained of by A and of an occasion when the Appellant had said that he would like to [assault redacted]. B said that on that occasion he had refused and the Appellant had replied “To deny pleasure is to create misery” –a statement which was relied on by the Crown as of importance, and in relation to which the Appellant makes stringent criticism of the Judge’s summing-up. Neither boy went to the Police. Both were traced as a result of inquiries into activities with the second group of boys.

C and D were involved in the period July to August 1970. They were engaged to clean the flat and exercise the dog. The Appellant, according to the Crown evidence, wrote to the mother of each and spoke to C’s mother by telephone seeking permission for their engagement on the basis that his wife was away in Scotland and the cleaning woman was also away. The letters were not produced. The conversation and content of the letters was disputed by the Appellant who advanced reasons for their being mistaken and for confusion. Each of these two boys gave evidence of repeated acts [assault redacted] while the other was in the flat, once, according to D, in the same room. D said the Appellant once showed him the gun and spoke of the Appellant saying that he had “better get undressed or he would shoot”. C was also shown the gun but not threatened.

C gave evidence of an occasion when the Appellant had E on his knees [assault redacted] and of having persuaded G to go into the bedroom.

C’s evidence was that the last occasion of [assault redacted] by the Appellant was on the 29th August. He was examined by a doctor at 9 p.m. on the 2nd September [details redacted]. Evidence of a Scientific Officer was that there was a [details redacted]. At the trial that witness said she could not say how [details redacted] At the Magistrates’ Court she had put a maximum of three days to the length of time [details redacted]. The doctor said [details redacted]

Considerable time was taken up in an endeavour to establish on the Appellant’s part that [details redacted] could not have been from the Appellant.

Both boys were imprecise as to dates and there were inconsistencies between their evidence at the trial and statements previously made. D’s evidence as to dates was palpably unreliable. He was medically examined on the 5th September. No swab was taken from him.

E was introduced to the Appellant through C, with whom and D he had been at school. He was introduced by C as C’s brother, K. On his first meeting he took his friend H along. He found J at the Appellant’s maisonette. He subsequently visited the Appellant, once with his friend G, also introduced by C –in his case as a cousin. He spoke of two instances of the Appellant [assault redacted].

F was stopped by the Appellant in the street on the 8th August and offered a holiday job as a delivery boy. The Appellant gave him his card and asked him to call. The boy told his father and they went to the Police. No action was taken. F was repeatedly stopped by the Appellant who offered to take him to the pictures. Eventually, encouraged by other boys with the prospect of cleaning the flat for money and having fun, he went to the flat and he described an instance of the Appellant [details redacted]. He told his father and they went to the Police. In his first statement he made no allegation of assault. Later he did make the allegation. He explained the [details redacted] by a version of having fallen from a tree, a version derided by the Appellant.

H gave evidence of a vague nature about “messing about” in the flat; G said that he had visited the flat and that the Appellant had invited him into bed but he had escaped in fright and locked himself in the lavatory until other boys came back to the flat. He continued to visit the Appellant and spoke of kissing on these occasions. He was ultimately barred by the Appellant, and the latter’s suggestion was that it was that action which caused G to persuade F to make a report to the Police.

Police interviewed and arrested the Appellant on the 3rd September, 1970 and he has been in custody since that date. According to the Police evidence, when he was told they were investigating sexual offences in relation to C, D, F and G, he made replies which the Crown relied on as “corroboration” of the evidence of those boys and as being in the nature of admissions. I read from page 69 at H of the summing-up: “It is as follows, after being cautioned: ‘Of course, you don’t expect me to admit these offences, whatever the truth of the matter is. But I would ask you to consider very carefully the consequences in this matter before you take any action. I will not be the only one to suffer if this goes to court. There would be the employees of my firm and last, but not least, my family. Also, these boys are all healthy young animals and would the experience of being dragged through the courts be more harmful to them than what has already happened to them?’ The officer said, ‘You do know these boys then?’ The defendant said, ‘That’s not in dispute. Of course I know them; they’ve all been to my flat. Cand D were working for me, keeping the flat clean, looking after my dog. The other two weren’t invited by me, but came as friends of C and D.’ The officer said, ‘When you say, “what has already happened to them”, are you now saying that you have, in fact, committed these offences?’, and the defendant said, ‘I’m not saying one way or the other.’ The officer said, ‘Is that your final answer?’, and the defendant said, ‘Yes, I feel that, without the benefit and the guidance of a solicitor and bearing in mind the seriousness of the allegation, it would be unwise for me to say anything more at this stage.’ The officer told him that a remand would be sought for and the papers sent to the Director of Public Prosecutions, and the defendant said, ‘I’m glad that these matters will be considered before I am charged with them, for a lot of people have an awful lot to lose, and I am sure that really the interests of justice can be better served by you or your superiors reading the Riot Act to me, or whatever you do, and avoid my going to court with all the subsequent unpleasantness and publicity.'”

It seems that the Appellant, who did not give evidence but who made a statement from the dock, did not in cross-examination accuse the Police witnesses of lying or, in this respect, of being mistaken, but he did in his address call the evidence “pure, unadulterated invention”. The Appellant was, of course, inhibited in his cross-examination by reason of his previous convictions of sexual offences which he naturally wished to conceal from the jury.

It is convenient to interpolate at this point that, since this trial, the senior officer giving evidence of these matters, upon which the Crown relied strongly, has been convicted of a conspiracy with other Police Officers to accept bribes as a favour for assisting to facilitate bail for an accused person in proceedings unconnected with this case [!] . This is a factor to which we have had to give very anxious consideration. It is clear that, as a matter of generality, the Appellant conducted his defence on the basis that the Police witnesses were unreliable and he challenged the validity of their evidence. The Police took possession of an exercise book, the Appellant’s property. An extract from this was put before the jury. It contained in a context of sexual matters the sentence “To deprive someone of pleasure is to create misery” – not precisely the same wording as B had attributed to the Appellant, but to the same effect. B, in evidence, had apparently said he could not recall seeing the book; this is referred to in the summing-up, but at a later stage it is put to the jury in the form that B denied seeing it.

The summary we have made of the evidence is at greater length than would normally be the case. It is referred to and made the subject of detailed argument in the grounds of appeal. What has been said in this judgment nevertheless is only a bare recital necessary to indicate the extent and nature of the evidence, and in particular the feature of different groups of boys giving evidence of similar conduct on the part of this Appellant upon different occasions.

The first and principal argument for the Appellant is that there was a serious misdirection of the jury as to the approach they should make to the evidence of the boys. It has long been established that as a rule of practice, so strong as to be accorded the force of a rule of law, judges should warn juries in certain classes of case that it is dangerous to found a conviction on the evidence of particular witnesses or classes of witness unless that evidence is corroborated in a material particular implicating the accused in the commission of the offence. One such class of case is that of sexual assault on young children. The present case is within that class. Another class is that in which the evidence is of an accomplice in the offence charged. The present case is regard to C and D is in this class if the jury regarded C as an accomplice.

In the absence of a proper direction containing such warning a conviction will be quashed on appeal subject to the application of the proviso to Section 2 of the Criminal Appeal Act, 1968, which reads: “Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.”

In the case of Kilbourne (1973) 57 Criminal Appeal Reports 381 , a case of homosexual offences involving boys, the Lord Chancellor said at page 388: “It has been common ground throughout the case that the evidence of the boys was of the class demanding the customary warning to the jury about corroboration”. I emphasise the words “demanding the customary warning”. At page 393 the Lord Chancellor said this: “But side by side with the statutory exceptions is the rule of practice now under discussion by which judges have in fact warned juries in certain classes of case that it is dangerous to found a conviction on the evidence of particular witnesses or classes of witness unless that evidence is corroborated in a material particular implicating the accused, or confirming the disputed items in the case.” I emphasise the words “classes of case that it is dangerous to found a conviction”. In the same report Lord Reid at page 408 says: “By what has now become a rule of law the trial judge was bound to warn the jury of the great danger of accepting the unsupported evidence of a boy of this age and to advise them that they should look for corroboration before convicting on any count.” I emphasise the words “the great danger”. Mr. Comyn argues that their Lordships re-emphasised the need for a proper warning of danger.

The reasons of their Lordships in Kilbourne were not delivered until January 1973, long after the conviction in the present case, but it is of value to cite from the Lord Chancellor’s speech at page 394 where he says: “However, it is open to a judge to discuss with the jury the nature of the danger to be apprehended in convicting without corroboration and the degree of such danger” (and he cites Price ) “and it is well established that a conviction after an appropriate warning may stand notwithstanding that the evidence is uncorroborated, unless, of course, the verdict is otherwise unsatisfactory ( Baskerville ). There is, moreover, no magic formula to be used ( Price ). I agree with the opinions expressed in this House in D.P.P. v. Hester that it is wrong for a judge to confuse the jury with a general if learned disquisition on the law. His summing-up should be tailor-made to suit the circumstances of the particular case.

The word ‘corroboration’ is not a technical term of art, but a dictionary word bearing its ordinary meaning; since it is slightly unusual in common speech, the actual word need not be used, and in fact it may be better not to use it. Where it is used, it needs to be explained.”

In Price (1968) 52 Criminal Appeal Reports 295 Lord Justice Sachs at page 299 said this: “This Court has examined the above passage with anxious care and wishes it, first of all, to be made clear that there is no magic formula which has to be used with regard to any warning which is given to juries, nor is there such a formula as regards the circumstances in which, despite the absence of corroboration, they can act on the evidence of an accomplice. Nor does this Court wish in any way to suggest that it is not open to a judge to indicate in his summing-up that the degree of danger or risk in relying upon an accomplice’s evidence may not vary considerably according to the circumstances of the particular case.”

In Henry and Manning to which reference has already been made Lord Justice Salmon, as he then was, said at page 153: “What is complained about by both these appellants is the learned judge’s summing-up on corroboration. This Court has said again and again, and I hope, quite recently made it clear….that there is no magic formula or mumbo jumbo required in a direction relating to corroboration. What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute.” I interpose to say the same danger exists with small boys, the alleged victims of sexual offences. Resuming the quotation: “Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. The judge should then go on to tell the jury that, bearing that warning well in mind, they have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then the fact that there is no corroboration matters not at all; they are entitled to convict.” The important words in the last sentence are “having given full weight to the warning”.

Referring again to Kilbourne at page 402 the Lord Chancellor, having referred to the case of Moorov v. H.M. Advocate (1930) Court of Judiciary 68 , said this: “In addition to the valuable direction to the jury, this summing-up appears to me to contain a proposition which is central to the nature of corroboration, but which does not appear to date to have been emphasised in any reported English decision until the opinion delivered in D.P.P. v. Hester by Lord Morris of Borth-y-Gest, although it is implicit in them all. Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony fails of its own inanition, the question of his needing, or being capable of giving, corroboration, does not arise.”

Upon the statement of the law in the earlier authorities, since confirmed upon this point in Kilbourne , the jury in the present case should have been directed in appropriate terms but not by way of any set formula (i) that they should be sure that the witness, in respect of whom supporting testimony implicating the accused in the offence is to be sought, is himself a credible witness; if they are not satisfied that the witness is credible there is no need to look for such supporting testimony;

(ii) that if they are satisfied of his credibility they should look for evidence, from a source other than the witness, which tends to confirm the evidence of the witness in a material particular implicating the accused in the commission of the offence;

(iii) that it is dangerous for a jury to convict upon the uncorroborated evidence of such a witness, the judge assisting the jury as to the degree of danger and the reason for regarding it as dangerous;

(iv) that, if having looked for such supporting testimony they find none, they can nevertheless convict, provided that they bear in mind the warning of danger in doing so and, despite that warning, they are satisfied that they can safely rely upon the uncorroborated evidence of the witness.

What was the direction in this case? We find it in two passages in the summing-up. The first is at page 14 at H to page 16 G and it is necessary to read the full passage. It commences in this way: “Now, in the case of sexual offences, although you may act on the evidence of the alleged victim if you are absolutely satisfied that that victim is speaking the truth, it is usual to warn juries that it is safer and wiser to look for corroboration of the evidence which those various persons gave. The same rule applies where evidence is given against a defendant by, what we lawyers call, an accomplice. An accomplice is somebody who has committed or might have committed the same offence jointly with the defendant. Well, now, it is entirely a matter for you, members of the jury, but you may think it safer and wiser to regard perhaps C and D as accomplices, so that, if you do think so, it would be safer and wiser to look for corroboration of their evidence, and if you do not, you may think it safer and wiser to look for corroboration of their evidence, because they are alleged to be the victims of sexual offences, and with regard to the other boys you may not think were accomplices, – it is a matter for you whether you do or you do not – again, as victims of sexual offences, you may think it wise to look for corroboration, but you do not have to.” I emphasise the words he used “you do not have to”. Resuming the quotation: “I want to make that absolutely clear, that it is not essential if you are satisfied, taking each boy in turn, that he has been speaking the truth. I will deal more with the law of corroboration explaining what it means and what my functions are in respect of it and what your functions are at the end of the evidence, because it is much better for you to be able to appreciate what I have to say about corroboration in the light of the evidence rather than speak to you about it beforehand. Suffice it to say at the moment that it has been suggested by the defendant that the boys have put their heads together and concocted a false story. Well, such a happening, of course, is always possible. It is right that you should bear that in mind in this sort of case, and, the suggestion having been made, it is right that you should consider it and give it such weight as you think it merits; but, members of the jury, it cannot have escaped your notice that A and B and for that matter [L] , but A and B, and, for what it is worth, L, do not know and have never known C, D and their associates. None of them, neither A nor B, C and D, and all the other boys that they know, have ever met J except outside this court when they were waiting to give evidence, the few who happened to be there on the day which J gave evidence. Even if you took the view, and it is a matter for you whether you do or do not, that some of those boys had put their heads together with regard to some aspects of this case, – it is entirely a matter for you – you will have to ask yourselves seriously whether in those circumstances you can possibly think that all of them put their heads together. They do not know each other, all of them. It would be, you may think, a remarkable coincidence if A and B decided to tell a false story about the defendant, also C and D, E, G, F, put their heads together and decided to tell a false story, and quite apart, J, on his own, decided to tell a false story. You may think that would be quite a remarkable coincidence if it happened.”

The second passage occurs towards the end of the summing-up as promised by the Judge, at page 73 of the transcript at A: “Now I have to return to the subject of corroboration. As I have already explained to you, cases involving sexual offences where a victim gives evidence, or cases in which an accomplice gives evidence, or cases in which evidence is given by young persons, in all those cases it is usual to warn juries, as I told you yesterday, but I make no apologies for telling you about it again, because it is important, that though the jury can act upon the evidence of such witnesses if they are absolutely convinced that the witness has been speaking the truth, it is wiser and safer to look for corroboration. Corroboration means evidence coming from some other independent source, other than the victim or the accomplice or the young person, which tends to confirm or corroborate what the victim or accomplice has said in so far as it can be said to implicate the defendant in the offence. So you have got to look, if you think it necessary, for independent evidence, that means other than the victim, and it has got to be evidence which implicates the defendant in the offence, and tends to corroborate in some way what the victim has said. Now, here we have got sexual offences; we have got young persons as victims and, as I said yesterday, you might think it safer to regard C and D, in a sense, as accomplices; in fact, it is fairer to the defendant to regard them as such, because, you see, it was C who invited all these other boys there; it was C who gave sixpence to F to go to the flat, and so forth. Let me tell you first of all that one accomplice cannot corroborate another accomplice, and so, if you think it is necessary to look for corroboration of, for example, C’s evidence, you cannot say, ‘Ah, well, I’ve got it from D’, if you think he also is an accomplice. Nought plus nought is still nought. Equally, of course, it would not be right to regard what C said as corroboration of what G and E said happened to them, which C said he saw, because you might think it right to regard C as an accomplice. You have to consider, of course, when you are making up your minds, whether you think you can accept the evidence completely the boys have given or”-and I emphasise the word “or” – “whether you think it is safer to look for corroboration. You have to ask yourselves whether you think it is safer to look for corroboration. You have to ask yourselves whether you think it is possible all these boys have lied. Of course, it is possible. You must consider it in this sort of case. Do you think it probable that all of them lied? Did you think J was lying? Did you think A was lying? Did you think that  B was lying? Three boys who do not know the others at all. You saw them. You were able to assess their demeanour. You heard them cross-examined. You were able to test how they stood up to cross-examination. Unfortunately, you could not compare their demeanour in cross-examination with the defendant, because he was not cross-examined. You cannot make a comparison. You have simply got to look at those boys by themselves. If you think any of them lied, as I say, can they all be lying? In this context it is proper that I should tell you that if, for example, {the following letters in brackets are ones the judge suggests, they are not aliases} {A} says the defendant assaulted him, it is no corroboration of his evidence for {B} to say that he, {B}, was assaulted by the defendant. That is not corroboration. C says he was [assault redacted] by the defendant. It is not corroboration of it that D should also say that he, D, was [assault redacted] by him, unless, apart from the fact that they were accomplices, each of them was present when each other one was [assault redacted]. Do you follow? This did happen on one occasion according to D. But you cannot do that in this case, or you might think it not safe to do it in this case, and you may take the view that it is wiser to look upon those two boys as accomplices. On the other hand, it is right to tell you also that a succession of such incidents with different boys – and we have a succession of them here; not merely buggery, but of indecent assault; a succession of indecent assaults with different boys – may help you to determine the truth, provided you are satisfied that there has been no collaboration between them to put up a false story.”

In the light of the speeches in Kilbourne , the direction was too favourable to the Appellant in the bald statement of the example given at page 74 G which I have just read. It is not in error at page 75 B to C, where the Judge points out the succession of indecent assaults which he says may help the jury to determine the truth provided they are satisfied that the boys had not collaborated to put up a false story.

But the following criticisms are made by Mr. Comyn:

(i) At page 15 A “it is usual to warn juries” this is an understatement of what amounts to a rule of law and derogated from the importance of the warning.

(ii) At page 15 B the Judge failed to explain in this passage the proper basis for regarding C as an accomplice, namely, that they could take the view that he was procuring the introduction of boys to the Appellant, but it is noted this is explained later at page 73 G.

(iii) Page 15 C, the direction that, if the jury regarded C and D as accomplices, “you may think it safer and wiser to look for corroboration” is a misdirection as it does not impart the necessary warning of danger.

(iv) Page 15 D, the direction that, if C and D are not accomplices “it would be safer and wiser to look for corroboration” repeats the same misdirection.

(v) Page 15 E, the direction in respect of the other boys “you may think it wise to look for corroboration” is a like misdirection, one stage worse in that it omits “safer”.

(vi) Page 15 E, the words “but you do not have to” (look for corroboration). “I want to make that absolutely clear, that it is not essential if you are satisfied, taking each boy in turn, that he has been speaking the truth” are a misdirection in that they tell the jury that they need not look for corroboration. That this is what the Judge is directing the jury (in contrast to a direction that corroboration is not essential) is plain from his words at page 73 E “So you have got to look, if you think it necessary, for independent evidence”. The same criticisms are levelled by Mr. Comyn at the passage at pages 73 to 75. One finds there the repetition of the words “it is usual to warn juries” and of the “wiser and safer” direction. At page 73 G the direction as to one accomplice not being able to corroborate another, as it is put, is, in the light of the subsequent speeches in Kilbourne , too favourable to the Appellant. But at page 74 B to C there is an alternative left to the jury which is criticised as a misdirection: that is, “whether you think you can accept the evidence completely the boys have given or whether you think it is safer to look for corroboration.” In particular the sentence “You have to ask yourselves whether you think it is safer to look for corroboration” is said to be posing the wrong question.

We have no doubt that these are valid criticisms. Despite the fact that in certain respects the directions are more favourable to the Appellant than the strict application of the law required, there are serious misdirections in that:

(a) the Judge told the jury that they need not look for corroboration if they were satisfied that they could accept the evidence of the boys as credible. The Judge appears to have blurred the important distinction between the need to look for evidence supporting a credible witness, and the right, having looked and being mindful of the danger, to convict upon the unsupported evidence of such a witness.

(b) The words “wiser and safer” were not apt, in the absence of any other expression conveying the danger of reliance upon uncorroborated evidence, to warn the jury in sufficiently strong language of that danger.

(c) The whole tenor of the direction understates the importance of the warning which the Judge must give.

Mr. Comyn’s argument proceeds to criticise the manner in which the Judge dealt with matters which the jury were not entitled to regard as corroboration and matters which the jury could properly regard as corroboration of the boy victims.

The Judge at page 75 E very properly directed the jury that the medical and scientific expert evidence could be regarded as confirming the evidence of C and D that they had been buggered but, because it did not implicate the Appellant, it could not be corroboration. Mr. Comyn argues that the Judge should have gone on to make the point for the defence that the evidence could be regarded as establishing, by reason of the dates, that it was not [assault redacted] by the Appellant which resulted in [details redacted]. There is no substance in this argument for, looking at the summing-up as a whole, that point for the defence is properly placed before the jury.

At page 75 G the Judge properly directed the jury that the pistol and ammunition could not be regarded as corroboration of evidence of sexual assault. We find no misdirection in the manner in which that matter was dealt with.

Turning to the direction as to evidence capable of amounting to corroboration, the criticisms made are these:

(1) The Judge was wrong at page 76 E when he said that the Appellant had not challenged the evidence as to the letters written to Mrs. D and Mrs. C [mothers] and the telephone conversation relating to his wife being in Scotland. The Appellant had to interrupt to correct the error, and, at page E the Judge (somewhat lamely and grudgingly it is said) acknowledged that he was wrong. Associated with this criticism is the point made that the Judge did not adequately put before the jury the Appellant’s defence that the two ladies may have been confused and mistaken by the Appellant’s references to visiting his “family” in Scotland and by the presence of a lady passenger in his car on one occasion.

Secondly, the Judge was wrong at page 77 H to page 78 factually in saying in relation to B “the defendant said to him, ‘To deprive someone of enjoyment is to create misery’; and there you get in the defendant’s own handwriting in an exercise book in his home, that B says he has never seen before, the very same words.” The points are made by Mr. Comyn that the words spoken to by B and the words in the exercise book are not precisely the same, and the words “that B says he has never seen before” are an exaggeration of B’s evidence that he did not recollect seeing the book.

Thirdly, the Judge was wrong at page 78 B to C in directing the jury that the evidence of what the Appellant said to the Police was capable of being corroboration on all the counts and “The best of all and? is not disputed”.

Before stating our conclusions on this part of the argument we would refer to Mr. Comyn’s more general attack upon the summing-up. The Appellant contends that the summing-up was adverse to him, biassed in favour of the prosecution. Mr. Comyn does not dispute the proposition that a Judge is entitled to sum up in favour of a conviction where the evidence warrants that course, nor does he dispute that a Judge is entitled to make comments upon the evidence which comments may be unfavourable to the defence. But it is said, and we think rightly said, that if a Judge does sum up in favour of a conviction or does make comments unfavourable to the defence, the Judge must be particularly careful to ensure firstly that the defence is fully and adequately placed before the jury, and, secondly, that the facts disclosed by the evidence and upon which comments are based are accurately stated to the jury. In this case it is argued that the Judge, in more than one respect, was inaccurate as to the facts and that the defence was not properly put. It would serve no useful purpose to review, in this judgment, all the passages to which we have been specifically referred. The criticisms are put forward against the background that the Appellant conducted his own defence at the trial and we have borne that feature continually in mind. It must be said however that in the conduct of his defence the Appellant was not slow to correct any matter put before the jury which to him appeared to be wrong.

Mr. Comyn invited attention to these matters amongst others. The Judge had to be corrected as to the nature of the charge in Count 14 (see page 13 D) and he had to be corrected on the facts the subject of that count (page 14 D). At page 19 H to 20 F the Judge fell into error to the prejudice of the defence in using words which could be taken as meaning that there were offences of a similar nature against other boys and that the charges were “sample charges” within the limits of the evidence. The words “there is an offence against J” usurps the jury’s function to decide the facts. The Judge reminded the jury of the evidence of C and D as to the use of vaseline (page 32 E and 43 H) and commented in regard to C “Is all that invented, the vaseline, the towel and the instructions to go to the lavatory?”, but did not at that point of the summing-up remind the jury that  no lubricant was found in the Appellant’s premises and that the medical and scientific evidence was that there was no trace of grease.

Although two boys gave evidence of seeing the gun (for example page 33 D), that was its only connection with the sexual offences being tried and yet the Judge invited the jury to take the gun with them when they retired (page 104 A).

At page 53 the Judge, commenting on the position of G, said “for some reason or other – I can’t help you because I simply do not know – the Magistrates dismissed that particular charge as far as G is concerned.” That is said to be a less than fair portrayal of G’s position and a clear example of the biassed tenor of the summing-up.

Again, at page 61 G, in dealing with J, the words “like what I now know happened to the other boys” prejudge the matter of what happened and should, it is said, have been put in proper perspective by explanation of what J was saying.

In dealing with the Appellant’s defence at page 81 E it is said there is a failure to put the defence fully in respect of the date of the last alleged assault on C and the finding of semen on the 2nd September and in respect of absence of evidence of grease.

The words at page 82 “if the police and the prosecution are as wicked as the defendant has alleged that they are” are said to establish that the Judge did in fact appreciate that the Police evidence was challenged, and yet the Judge told the jury that it was not, and the Judge had to be corrected.

At page 85 C the Judge answers, on behalf of the prosecution, the point made by the Appellant as to failure to take a swab from D and fails to make the defence point that [details redacted]it would have supported the defence case.

Finally, and we can deal with this compendiously, it appears from the transcript, pages 96 to 102, that, at what seems to have been the intended conclusion of the summing-up, there was a discussion in the presence of the jury, initiated by the Appellant, between him and the Judge as to corrections which he wished to make to the summing-up. It would have been better from one point of view had the jury been absent during this duscussion, but from another point of view their presence enabled them to hear again the contentions of the Appellant. It was at this stage that counsel for the Crown put right the error of regarding the conversation with the Police Officers as corroboration on Counts other than those 1 to 8 and Count 11. It was at this stage that the Appellant drew attention, in the presence of the jury, to the other matters which are urged in this Court as misdirections in relation to evidence capable of being corroboration.

We have reached the conclusion that in respect of being corroboration they can have no greater bearing on this appeal than that they are examples of errors which were made and put right before the jury retired to consider their verdicts. They do not in themselves afford any ground for quashing the convictions.

Likewise, we conclude that the careful analysis to which this summing-up has been subjected, both in the grounds of appeal and in the argument before us, does not reveal a situation in which it can be said that the trial was unfairly conducted. We have recited in this long judgment the main criticisms in some detail in order to demonstrate the value that is to be placed upon them and to do justice to the work that has gone into the presentation of this appeal. Stripped of advocacy they are bare of substance.

They afford no ground for disturbing the verdicts. At most they take their place as the background against which we must decide the question whether to apply the proviso to Section 2 and dismiss the appeal although we find that there are misdirections which might serve to decide the appeal in favour of the Appellant.

In the Criminal Appeal Act, 1966 Parliament re-enacted, with the omission of the word “substantial” the proviso contained in Section 4(1) of the Criminal Appeal Act, 1907. In 1968 Parliament re-enacted the proviso in the terms of Section 2(1). This power having been given to the Court and re-enacted in recent legislation, the Court should not be reluctant to exercise the power in a cane where no miscarriage of justice has occurred. The power is there. It is not fettered.

There have been many cases in which the Court has expressed the criterion to be observed when considering whether or not to apply the proviso. In Muller No. 3668/68 Lord Justice Fenton Atkinson said at page 10 C to D “there was really an overwhelming case against this Appellant. We take the view that the verdict of the Jury was fully justified on the evidence and that despite faults in the summing-up no miscarriage of justice here has actually occurred.” That applies the test of the Appellate Courts’ view on the evidence.

Lord Salmon in Robinson No. 7712/68 at page 12 A in the transcript said “the real question must be would a Jury properly directed have inevitably convicted the man”.

Viscount Simon, Lord Chancellor, in Stirland (1943) 30 Criminal Appeal Reports 40 at page 46 used these words: “When the transcript is examined, it is evident that no reasonable jury, after a proper summing-up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore, no miscarriage of justice and this is the proper test to determine whether the proviso to section 4 (1) of the Criminal Appeal Act, 1907 should be applied. The passage in Woolmington v. D.P.P. (25 C.A.R. 72 at p. 96) where Viscount Sankey, L.C., observed that in that case, if a jury had been properly directed, it could not be affirmed that they would have ‘inevitably’ come to the same conclusion should be understood as applying this test.” Viscount Simon then referred to Haddy 29 Criminal Appeal Reports 182 , in which the Court of Criminal Appeal had applied this test.

In Ashwood No. 8112/69 lord Justice Winn said at page 5 C of the transcript “there is such a grave misdirection that it is quite impossible to apply the proviso. It is not possible to say what the Jury verdict would have been had a correct direction been given to them. It is only where it is inevitable in the opinion of this Court that the same verdict would have been returned by a Jury properly directed that the Court will apply the proviso to the Criminal Appeal Act”. I omit in the quotation the words which are not relevant for present purposes.

Finally we would refer to Varone No. 6430/70 per Lord Justice Sachs “the Crown must satisfy the Court that if the correct directions had been given it would have been inevitable that the Jury would have come to the same conclusion”; Hetherington No. 411/72 in which the same test was applied with reference to “any Jury doing its duty in the light of the evidence”; Hutchinson No. 1784/71 per Lord Justice Roskill “no member of this Court feels able to say with the requisite certainty that any Jury properly directed must of necessity inevitably have convicted this man of this crime however probable it is that any Jury so directed would have done so.”

In our judgment the decision as to whether the appeal should be dismissed despite the misdirection must be made upon the assessment by this Court of whether upon a proper direction of law to the evidence the inevitable conclusion is that of guilt. The different ways in which the criterion has been expressed really come to the same thing. It is for the Court to decide whether there has been a miscarriage of justice or not. We can do no better than adopt the words of Lord Justice Fenton Atkinson in Muller (supra): there was really an overwhelming case against this Appellant. We take the view that the verdict of the jury was fully justified on the evidence and that despite the faults in the summing-up no miscarriage of justice here has actually occurred. The verdict of guilty on each of the counts upon which the jury convicted was inevitably the result of the evidence.

The appeal is dismissed in relation to the conviction.

As to sentence Mr. Comyn has placed before us all the factors which could be relied on in mitigation. The Appellant is 48. He has been convicted in 1961 of indecent assault on young boys, and in 1967 for buggery and indecent assault he received a sentence of five years. The appeal in respect of sentence is dismissed.

MR. THOMAS: My Lord, having regard to the serious matters involved in your Lordship’s judgment I apply for a certificate that in this case there is a matter of public importance involved and I seek your Lordship’s leave to appeal to the House of Lords.

LORD JUSTICE JAMES: Mr. Thomas, you are quite right of course to make the application at this stage if you are going to make the application at all, but having regard to the fact that we have not had the advantage of seeing their Lordships’ reasons in the case that they have not yet pronounced upon, I think it would be premature to make a decision as to whether we should certify in this case or not. It may be found that no point of general importance arises at all because their Lordships have already decided any point of general importance. It may be that in the light of their reasons it appears that there is a point of general importance still outstanding. You may take it that you have made your application and it has been adjourned so that you may renew it at such time as you may think fit and as you may advise once their Lordships’ reasons have been considered. Does that meet with what you require?

MR. THOMAS: My Lord, yes. There may of course be other points. The point of law may be a different point to that considered and dealt with by their Lordships.

LORD JUSTICE JAMES: You will not be shut out from making an application on such grounds as you are advised to make it.

MR. THOMAS: I am very grateful to your Lordship.

LORD JUSTICE JAMES: If it assists you, now the judgment has been delivered, I think there is probably a spare copy of the judgment available for you and for the Crown.

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

Other articles relevant to child sexual abuse see [constantly updated] Index Timeline of Newspaper Articles on Cathy Fox Blog [4]

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] 2016 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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4 Responses to Appeal 3 Niven James Sinclair 24 Jul 1973 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

  2. Pingback: Niven Sinclair – Child Rapist worked for the BBC for 30 years | cathy fox blog

  3. Pingback: Niven Sinclair – Child Rapist worked for the BBC for 30 years | cathy fox blog

  4. Pingback: Niven Sinclair – Three times convicted Child Rapist worked for the BBC for 30 years | Ace News Room

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