Appeal against conviction was allowed and conviction quashed. This appeal is important as it contains legal precedent for corroboration and is a case often referred to in this regard, and there is also reference to two definitions of indecent assault.
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 details, 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. I have also redacted unnecessary detail of assaults.
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, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – 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.
Index of Newspaper and Journal articles on this blog 
Index of Court Appeals on this blog 
 EWCA Crim J0731-14
IN THE COURT OF APPEAL
Monday, 31st July 1972
Lord Justice Lawton
Regina v John Kilbourne
(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. E. GREENWOOD appeared on behalf of the Appellant.
MR. C. HOLLAND appeared on behalf of the Crown.
LORD JUSTICE LAWTON: The Appellant, John Kilbourne, was convicted at Leeds Crown Court after a trial before Mr. Justice Lawson and a jury on one count of buggery, one of attempted buggery and on five of indecent assault. He was sentenced to ten years’ imprisonment for buggery, seven years for attempted buggery and five years’ imprisonment on each of the other counts. The sentences on counts 1 to 4 were to be concurrent with one another and the sentences on counts 5 to 7 were to be consecutive to the sentences on counts 1 to 4, but concurrent with one another. These sentences totalled fifteen years: all were certified to be extended ones. He now appeals by leave of the single Judge against both his conviction and his sentences.
The appeal against conviction raises this problem; when a number of boys, not being accomplices, give evidence about acts of indecency by an accused on different occasions in what circumstances, if any, is the evidence of each one admissible on counts involving others; and if it is, is such evidence capable of being corroboration of the evidence of others.
The counts fall into two groups. Counts 1 to 4 referred to offences alleged to have been committed in the months of October and December 1970 and involved four boys, [A], [B], [C] and [D] ; counts 5 to 7 alleged offences in the same months of the following year and involved two boys, [E] and [F]. All the boys save two were aged 10 at the time of the alleged offences: the boy C in count 3 was then 9 and the boy F in count 7 was aged 12. The trial judge was of the opinion that they were all old enough to be sworn in the form prescribed by section 28 of the Children and Young Persons Act, 1963, and they were so sworn. It follows that no question arises about the effect of the unsworn evidence of children.
The prosecution’s case against this Appellant can be stated shortly. It was alleged that he had encouraged small boys to come to his house by providing them with comics, playing cards, small gifts of money, and light refreshments and by holding out inducements such as allowing them to take his puppy for a walk or to clean his van. Having got the boys into his house he committed, so the prosecution alleged, the acts charged in the indictment. Save on count 3, it is unnecessary to go into any detail about the evidence; it suffices to say that A, B, D and E all alleged that the Appellant had got them on the floor face downwards, had lain on top of them, moving up and down. F alleged that the Appellant had [assault redacted] and had asked him to do the same to him. If the boys concerned (C excepted) were telling the truth, as the jury must have found they were, the offences of which he was convicted were committed. At his trial the Appellant admitted that all the boys named in the indictment had been to his house; he denied that he had enticed them there for any indecent purpose and that the acts alleged had been committed by him.
The Judge in his summing-up summarised the Appellant’s defence as follows:”His case is ‘Yes, they all came. They come a great deal but my association with these boys was an entirely innocent association, apart from a little bit of skylarking’.” After arrest the Appellant was alleged to have said to the police in relation to the boys named in counts 1 to 4:”I never committed buggery with them but I’ve pretended to a lot of times with some of them I’ll be fair with you and I tell you that I’ve played with the private parts of them all but I don’t know how many times I’ve done it”. The Appellant denied that he had said anything of the kind; but if he did, there was ample evidence capable of corroborating the evidence of four of the boys.
Counsel for the prosecution appreciated that this corroborative evidence depended upon the assessment which the jury might make of the credibility of the police officers who gave it; and by way of safeguarding his case against the possibility that the jury might reject the police evidence, he submitted to the trial Judge, so he told us, that there was other evidence which was capable of corroborating some of the evidence of the boys. It is this submission which gives rise to the main point in this appeal; but before dealing with it, we would like to dispose of a problem arising on count 3, which charged the Appellant with [assault redacted] the boy C. His evidence turned out to be unsatisfactory. He started by saying that he did not know the Appellant. Very much later in his evidence, on being questioned by the Judge, he admitted that he did know him. He spoke of only one act of [assault redacted] with the Appellant, but the medical evidence suggested that [details redacted] consistent with more than one act. The Judge seems to have been of the opinion that there was no evidence capable of corroborating C. He referred to the evidence of the boy B who had said that C had gone upstairs to what he called the toilet; that the Appellant had followed; and that shortly afterwards he had seen C leaving the toilet pulling up his trousers when the Appellant was inside. At one stage of his evidence C, who had spoken of acts of indecency committed on him by the Appellant as well as an [assault redacted], said:”He (meaning the Appellant) did nothing to me at all”. It is manifest from the summing-up that the Judge was concerned about the reliability of C’s evidence. In our judgment the verdict on this count was unsafe and accordingly we quash it.
We turn now to the main problem which arises in this case. The nature of the charges necessitated the Judge giving the jury a direction about the need to look for corroboration of the boys’ evidence. This he did in general, but, in our judgment, adequate terms. He ended his general direction by telling the jury “to look around to see whether there is corroboration”. What he did not do was to specify clearly what was, and what was not, capable of being corroboration; but he made some effort in this respect. For example, he told the jury that the evidence of the police officers to which reference has already been made, was capable of being corroboration (see pages 17 BC and 19E of the transcript).
Complaint was made to us that when dealing with the evidence of A’s mother as to what she had noticed [details redacted], the Judge had told the jury that such evidence could be corroboration. The context in which this direction came must be examined. It was in these terms:”The evidence of (A’s mother) and the evidence of the boy (B) can be taken as some corroboration of (A’s) evidence that indecent things were done to him and in the case of (A’s mother) her evidence that she saw [details redacted] on one occasion can be evidence to corroborate (A’s) own evidence that he was knocked about”. In our judgment the Judge was not directing the jury that such evidence was capable of corroborating A’s evidence so as to implicate the Appellant in the offence charged. Nevertheless, in our judgment, the direction of the Judge could have been clearer as to what evidence was, and what was not, capable of being corroboration; but we do not consider that the lack of clarity was sufficiently grave to make the verdict unsafe or unsatisfactory on that ground.
More fundamental was the submission that the Judge had misdirected the jury by telling them that they could regard the evidence of the boys E and F, who had given evidence about what had been done to them in the autumn of 1971, as corroboration of the evidence of the boys A, B, C and D whose evidence related to the autumn of 1970, and vice versa. The first matter to be decided is whether the Judge did so direct the jury.
The passage which is said to be a direction to this effect was in these terms:”You would be entitled to take the evidence of F and E or either of them, if you think that their evidence is true as to what was done to them by the accused and you would be entitled to take this view of it, ‘Well, we can use the evidence of F and E or either of them’ if you accept it as reliable, ‘as supporting evidence given by the boys in the first group’, but what you must not do is to use the evidence of A as to what was done to him to reinforce the evidence of another boy in the first group, B for example, as to what was done to him. You can use the evidence of the first group, if you accept it, in weighing up the evidence of E and F. You can use the evidence of E and F, or either of them, if you accept it, in weighing up the evidence in the first group. The reason why the Judge differentiated between the two groups was because the boys in each group knew each other well and could have collaborated in putting forward their stories whereas it was unlikely, if not impossible, that the two groups could have got together to tell false stories or to embellish true stories with accusations of indecencies.
Each member of this Court, on reading the transcript of the summing-up before coming into Court, had construed the passage just quoted as a direction upon corroboration. Counsel for the Crown submitted that it should not be read as such but as a direction that the evidence of each group could properly be considered when dealing with the counts relating to the other group. This may be what the Judge intended but in our judgment it is probable that the jury understood the direction in the sense we all understood it. It follows, so it seems to us, that fairness requires that it should be considered as a direction on corroboration and as such we have to decide whether it was correct in law.
This problem has had to be considered in three stages: first, we have had to decide whether the evidence of one group of boys was admissible at all on the counts in which the other group of boys were named. If it was not, there was a misdirection as to the admissibility of evidence; but if it was admissible, the second and third stages have to be considered. The question at the second stage is whether such evidence if it had involved neither victims nor children could have been capable of being corroboration; and the third stage is whether in the circumstances of this case in which child victims were involved, it was capable of being corroboration.
In our judgment the problem whether the evidence of one group of boys was admissible on the counts relating to the other group has been resolved in favour of admitting the evidence by the decisions R. v. Sims 31 Criminal Appeal Reports 531 , R. v. Chandor 43 Criminal Appeal Reports 74 and R. v. Flack 53 Criminal Appeal Reports 166 .
In the present case, with the exception of the [assault redacted] involving the boy F, each accusation bears a resemblance to the other and shows not merely that the Appellant was a homosexual, (which would not have been enough to make the evidence admissible), but that he was one whose proclivities in that regard took a particular form. Further, the evidence of each boy went to rebut the defence of innocent association which the Appellant put forward: this by itself made the similar fact evidence admissible (see R. v. Chandor per Lord Parker, Chief Justice at page 78). We have had no doubt that the evidence of one group of boys could properly be taken into account by the jury when considering the counts relating to the other group. But for what purpose since only relevant evidence is admissible? What, for example, did E’s evidence prove in relation to A’s on count 1? The answer must be that his evidence, having the striking features of the resemblance between the acts committed on him and those alleged to have been committed on A, makes it more likely that A was telling the truth when he said that the Appellant had behaved in the same way to him. Professor Cross in his book on Evidence, 3rd Edition, has pointed out at page 182 that, subject to special rules, “it is difficult to see how admissible evidence of the misconduct of the defendant or accused on other occasions could ever fail to corroborate the evidence relating to the question with which the Court is concerned. If it is admissible at all on account of its relevance for some reason other than its tendency to show a propensity towards wrongdoing in general or wrongdoing of the kind into which the court is inquiring, the conduct must, it would seem, implicate the “defendant or accused in a material particular in relation to the occasion into which the court is inquiring”. We agree with him, but as he pointed out there is no English authority on this topic. The problem in this case, however, is whether any special rules do apply.
R. v. Sims is the relevant authority. In that case the accused had been tried and convicted on an indictment charging acts of buggery committed on different occasions in similar circumstances with a number of different men. The men had given evidence against him. Two questions arose. The first was whether the evidence given on each count was relevant to prove the guilt of the accused on all the others. It was held that it was. The second was whether the evidence of the men could be considered as corroborating one another. It was held that it could not.
We cite two passages from the judgment of the full Court, the first at pages 168 to 169:”Applying these principles, we are of opinion that on the trial of one of the counts in this case the evidence on the others would be admissible. The evidence of each man was that the accused invited him into the house and there committed the acts charged. The acts they describe bear a striking similarity. That is a special feature sufficient in itself to justify the admissibility of the evidence. The probative force of all the acts together is much greater than one alone; for, whereas the jury might think one might be telling an untruth, three or four are hardly likely to tell the same untruth unless they were conspiring together. If there is nothing to suggest a conspiracy, their evidence would seem to be overwhelming. In this case the matter can be put in another and very simple way; the visits of the men to the prisoner’s house were either for a guilty or an innocent purpose; that they all speak to the commission of the same class of acts upon them tends to show that in each case the visits were for the former and not the latter purpose. The same considerations would apply to a case where a man is charged with a series of indecent offences against children, whether boys or girls; that they all complain of the same sort of conduct shows that the interest that the prisoner was taking in them was not of a paternal or friendly nature but for the purpose of satisfying lust”.
The second passage is at page 173:”We do not think that the evidence of the men can be considered as corroborating one another, because each may be said to be an accomplice in the act to which he speaks and his evidence is to be viewed with caution; but the judge gave the jury ample warning as to acting on the evidence of an accomplice, and no objection can be taken to the summing-up on that account”. Neither of these passages, as we have cited them, appears to be affected by criticisms of Sims in later cases.
We make two comments on the passages in question: (1) It is perhaps surprising that the evidence could not be regarded as corroboration if, as the Court said in the first passage, the coincidence of all the accomplices telling a similar story, without any evidence of conspiracy, made an “overwhelming” case against the accused. (2) In respect of corroboration a child giving evidence of an indecent act committed against itself is in the same position as an accomplice. If the similar fact evidence of one accomplice cannot corroborate that of another, then children giving such evidence cannot corroborate each other.
We refer to the later case of R. v. Campbell 40 Criminal Appeal Reports 95 to distinguish it from Sims’ case and from the present case. There the accused was charged with committing a number of indecent assaults on different children. It was held that the evidence of child A that he had seen the accused assaulting child B could corroborate B’s evidence of this assault, even though A had also given evidence to prove that on another occasion he himself had been assaulted. That is not the present case or Sims’ case. The evidence of A corroborating B was not evidence of a similar assault: it was evidence of the same assault given by a child who in respect of that assault was neither an accomplice nor a victim.
At the end of the judgment in Campbell’s case the following passage is found:”As we are endeavouring in this judgment to deal comprehensively with the evidence of children, we may perhaps endeavour to give some guidance to courts who have from time to time to deal with cases of sexual assaults on children where the evidence of each child deals only with the assault on him or her self. In such cases it is right to tell a jury that because A says that the accused assaulted him, it is no corroboration of his evidence that B says that he also was the victim of a similar assault, though both say it on oath. At the same time we think a jury may be told that a succession of these cases may help them to determine the truth of the matter, provided they are satisfied that there is no collaboration between the children to put up a false story. And if the defence is one of innocent association by the accused with the children, the case of Sims , subsequently approved on this point by the House of Lords in Harris v. The Director of Public Prosecutions , 36 Criminal Appeal Reports 39 , shows that such evidence can be given to rebut the defence”.
Here Lord Goddard is apparently distinguishing between evidence which can be used as corroboration and evidence which may help the jury in some other way to determine the truth. In the following section in brackets the letters are illustrative and not to do with the children in this case [A’s evidence that the accused indecently assaulted him may not be used to corroborate B’s evidence that B was indecently assaulted, but it may be used in some other way to help the jury to determine the truth of B’s evidence; see Cross on Evidence at pages 320 and 321, footnote 7, where he cites Sims’ case as an authority for this difficult distinction.]
R. v. Mitchell 36 Criminal Appeal Reports 79 introduces a further complication. There the accused was charged with indecently assaulting a child T. The prosecution called another child S to prove that T had been assaulted by the accused in similar circumstances. It was held that it was the Judge’s duty in such a case to warn the jury of the danger of acting on S’s evidence if it were uncorroborated. As S’s evidence had apparently been offered as corroboration of T’s, the decision suggests that, notwithstanding Sims’ case, the corroborated evidence of the accomplice (or child) S may be used as corroboration of the evidence of an accomplice (or child) T who is alleging a similar offence.
Because the Judge’s direction in the present case might have led the jury to believe that the evidence of one group of children giving evidence about a different series of offences (though not itself corroborated) could corroborate the evidence of the other group, it is, we think, inconsistent with the rule laid down in Sims’ case, even as qualified by Mitchell’s case. Bearing in mind the observations of Lord Diplock in the recent case of The Director of Public Prosecutions v. Merriman about the duty of the Criminal Division of this Court not to depart from precedents which are in favour of the accused, we think it is our duty to follow Sims’ case, which was, as we have said, a decision of the full Court. Accordingly we must hold the direction to be defective, with whatever consequences may follow from this view.
One further point on the appeal against conviction requires consideration. The trial Judge directed the jury as to what constituted an indecent assault in these terms:”It means a deliberate touching of somebody else’s body, clothed or unclothed, with an indecent intention. That is to say, a deliberate touching which is activated by some indecent purpose”. In our judgment, this direction was much too wide and could cover acts which were nothing more than preliminary steps towards committing an indecent assault, as for example, touching a woman’s hand. In R. v. Leeson 52 Criminal Appeal Reports 185 , Lord Justice Diplock said at page 187:”The definition of ‘indecent assault’ which has long been accepted in these courts is an assault accompanied with circumstances of indecency on the part of the prisoner towards the person assaulted”. In the circumstances of this case, however, the acts which the jury must have been sure had been proved were clearly indecent assaults. Had there been a correct direction as to what was an indecent assault the Appellant was bound to have been convicted, so the misdirection avails him nothing.
There having been a misdirection about corroboration what is the result? There was ample other evidence coming from oral statements which the Appellant was alleged to have made to the police officers which was capable of being corroboration if the jury accepted it; but there was an issue at the trial as to whether the Appellant had said what he was alleged to have said. We do not know whether the jury accepted the evidence of the police officers. If we had known, or could have found out that they did, we should have had no hesitation in applying the proviso to section 2(1) of the Criminal Appeal Act 1968.
The appeal against conviction will be allowed and the conviction will be quashed.
MR. HOLLAND: Manifestly the judgment of your Lordships as just delivered does raise a number of very significant matters which one would like to consider with a view to take them further. I would have liked to have been in the position of having drafted already what I would have submitted was a point of law of general public importance to see if your Lordships would certify it as such, and once having drafted that, I would have liked to be in the position at any rate to consider the matter further. I appear, of course, with the leave of the Director of Public Prosecutions. He gave leave for this particular prosecution and I would like to consider then whether it would be desirable to take the matter further.
LORD JUSTICE LAWTON: There will be a copy of the judgment available for your use. The difficulty is this, of course, this is the last day of the present legal sitting. Next term the Court will be differently constituted and one anticipates both Mr. Justice MacKenna and Mr. Justice Swanwick will not be available. It is very important that the principle of law should be settled today.
MR. HOLLAND: If your Lordships would adjourn this matter shortly, I can certainly do that very quickly.
LORD JUSTICE LAWTON: Mr. Justice Swanwick and I are sitting as a two-Judge Court for the whole of the morning. Mr. Justice MacKenna will be in the building. So we can deal with that side of it today. But may I just add this, you must not assume that we will grant leave.
MR. HOLLAND: No.
LORD JUSTICE LAWTON: Or certify. There are one or two difficulties in this case, and I just mention it to you. One is that the difficulty may have arisen in this case, as you pointed out, through the Judge using language in summing-up to the jury, which reflected what Lord Goddard had said in Campbell’s case, but omitting to point out what the legal effect of it was and distinguishing such evidence from corroboration. Do you follow?
MR. HOLLAND: I do indeed, my Lord.
LORD JUSTICE LAWTON: In those circumstances it may not really raise a straight principle which ought to be considered elsewhere. These are matters which you shall have to consider when we know what is the point of law that arises.
MR. HOLLAND: I do feel, however, I ought to seek to draft such a point for consideration.
LORD JUSTICE LAWTON: Certainly, but I do not want you to assume we shall be granting leave. It may be, I will just throw it out, it is a matter for consideration under the appropriate committee of the House of Lords, whether they want to, in view of the complications, look into the matter.
MR. HOLLAND: May I then mention this case before your Lordships later in the morning?
LORD JUSTICE LAWTON: Yes. Mr. Greenwood, the House of Lords I think the week before last pointed out that this Division of this Court, when this situation arises, must act with certain amount of caution and I do not propose to order the release of your client at this moment. We will reconsider the matter when Mr. Holland comes back. He will be detained in custody until further notice.
(Later in the day)
LORD JUSTICE LAWTON: We have come to this conclusion with regard to this matter. First we certify in the terms which have been drafted by learned Counsel for the Prosecution and we are prepared to certify in those terms on all Counts of the indictment other than Count 3. Secondly, the Prosecution, having given us notice that they intend to apply to the House of Lords for leave to appeal the Appellant will remain in custody pending the hearing of that petition which must be filed within 14 days. If it is not proposed to proceed by Petition for leave to appeal, then the Prosecution must inform the Registrar as soon as a decision has been made and the Registrar to take such action as he determines. If a Petition is filed then the Appellant will remain in custody until the hearing of the Petition. If the Petition is refused he will, of course, be released. If the Petition is granted he will remain in custody until such time as the House of Lords adjudicate; but all this is on the basis that this Court refuses leave to appeal. The reason for that being that the House of Lords must decide by itself whether or not the point which we have certified arises sufficiently clearly on the facts of this case to merit an appeal. If the Prosecution does not file a Petition within 14 days the Appellant will remain in custody pending such decision as is taken on the second indictment.
(The Court certified the following point of law of general public importance, but refused leave to Appeal to the House of Lords:”Whether and in what circumstances the sworn evidence of a child victim as to an offence charged can be corroborated by the admissible but uncorroborated sworn evidence of another child victim as to similar misconduct of the accused on a different occasion.”
Legal Aid, Counsel and Solicitors was granted for the hearing of the Petition. In the event of leave to appeal being granted by the Appeals Committee, there would be Legal Aid, leading and Junior Counsel and Solicitors.
It was ordered that the second indictment be a matter for the Leeds Crown Court and that the Appellant continue to be detained in custody pending disposal of all ancillary matters.)
The Principal Clerk,
House of Lords,
Criminal Appeal Office,
Royal Courts of Justice,
CRIMINAL PETITIONS FOR LEAVE TO APPEAL
TO THE HOUSE OF LORDS
Director of Public Prosecutions v. Kilbourne
###query### Baillie application will be considered at a later date.
Index of Newspaper and Journal articles on this blog 
Index of Court Appeals on this blog 
John Kilbourne has four appeals
1972 Jul 31 John Kilbourne Appeal 1  Court of Appeal
1973 Mar 6 John Kilbourne Appeal 2  Court of Appeal
1981 Oct 5 John Kilbourne Appeal 3  Court of Appeal
1982 May 17 John Kilbourne Appeal 4  Court of Appeal
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
 Cathy Fox Blog Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/
 Cathy Fox Blog Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/
 2016 Jul 28 Cathy Fox Blog John Kilbourne Appeal 1 July 31st 1972 Court of Appeal https://cathyfox.wordpress.com/2016/07/28/john-kilbourne-appeal-1-july-31st-1972-court-of-appeal/
 2016 Jul 28 Cathy Fox Blog John Kilbourne Appeal 2 March 6th 1973 Court of Appeal https://cathyfox.wordpress.com/2016/07/28/john-kilbourne-appeal-2-march-6th-1973-court-of-appeal/
 2016 Jul 28 Cathy Fox Blog John Kilbourne Appeal 3 October 5th 1981 Court of Appeal https://cathyfox.wordpress.com/2016/07/28/john-kilbourne-appeal-3-october-5th-1981-court-of-appeal/
 2016 Jul 28 Cathy Fox Blog John Kilbourne Appeal 4 May 17th 1982 Court of Appeal https://cathyfox.wordpress.com/2016/07/28/john-kilbourne-appeal-4-may-17th-1982-court-of-appeal/