Alan Ernest Tanner 10th June 1983 Court of Appeal

Appeal against sentence on one count was successful, but had no overall effect on 5 year sentence.

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 details, there may also be “assault redaction” 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 software 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 [1]

Index of Court Appeals on this blog [2]

[1983] EWCA Crim J0610-4     No. 3620/A1/82

IN THE COURT OF APPEAL

Friday, 10th June 1983

Lord Justice Purchas

Regina v Alan Ernest Tanner

(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36-38 Whitefriars Street, London EC4Y 8BH. Telephone number: 01-583 7635. Shorthand Writers to the Court.)

J. WALKER-SMITH appeared on behalf of the Appellant.

JUDGMENT (As approved by the Judge)

LORD JUSTICE PURCHAS: On 21st June, 1981, at the Central Criminal Court, before his Honour Judge Lawson, Q.C., this Appellant pleaded guilty and was sentenced as follows. On the first count of an indictment relating to a youth called [A], aged 17 at the relevant time, for buggery, he was sentenced to 5 years’ imprisonment. On Count 2 of that indictment, for indecent assault on a boy aged 15 at the relevant time, [B], he was sentenced to 2 years’ imprisonment. On Count 3, in respect of a boy aged 15, [C], for indecent assault, he was sentenced to 2 years’ imprisonment. On Count 4 and Count 5, each of which related to the boy C, for buggery, he was sentenced to 5 years’ imprisonment. All those sentences were ordered to run concurrently, making a total of 5 years’ imprisonment.

In addition, for an offence of gross indecency on a different indictment which had been preferred at Bristol Crown Court on 30th April, 1981, sentence being adjourned pending the determination of the indictment to which we have just referred, he was sentenced to 3 months’ imprisonment. That also was concurrent.

The circumstances behind these offences are as follows. Between May, 1979, until his arrest in July, 1981, the Appellant was a tenant of premises above a launderette in Tottenham High Road, which was in effect a homosexual lodging house of which the Appellant was the landlord. Various men and youths stayed there varied throughout the period. The majority were homosexuals and there were a variety of relationships between the users of the premises, involving also, in so far as the offences with which we are now concerned, the Appellant. Persons also visited during the day, including boys who were playing truant from school. They came to enjoy the amenities of the premises, to watch television and video films. When the police searched the premises there were homosexual books and films found there.

So far as A is concerned, he was introduced to the Appellant by a [man G], who had lived at that address previously, and with whom he had had a sexual relationship. A moved into the Appellant’s flat shortly before Christmas, 1980. After moving in he slept with the Appellant who [assault redacted]. It is not necessary for us to go into the surrounding details of that matter. There is a suggestion that a mild stimulant was used, referred to as poppers. A was over 16 at the relevant time, which is a matter of some importance.

B, who was subject to indecent assault only and not buggery, was younger. He was aged 15. There was some dispute as to the accounts given by the victim and the Appellant. Before the Judge the prosecution was based substantially on the frank admissions of the Appellant himself. The learned Judge dealt with the case on that basis and in our view he rightly did so. To do otherwise would be to rely upon a notoriously unreliable class of evidence, namely that of the boys.

In December, 1980, B ran away from home and lived at the Appellant’s flat for about four weeks. There were about five occasions of [assaults redacted] during that period. He was also present in the same bed when offences took place with A. It is right to say that the prosecution did not allege, nor did the learned Judge take into account, any element of corruption in this case. That is a positive feature in the Appellant’s favour which is frequently absent from cases of this kind.

So far as Counts 3, 4 and 5 are concerned, C we also under 16. The Appellant on his account had, to use his expression, “picked him up” on 26th March, 1981, and invited him back to the flat. C visited the flat for four weeks and stayed there at least one week, having run away from home. Again there is no suggestion that he was seduced away from his home or corrupted. There are differences of account between C and the Appellant. The common ground is that sexual activities of various kinds took place and that[assault redacted] occurred on at least two occasions, although C claimed that that had taken place against his will and that he had been drugged on one occasion. The learned Judge did not accept that, and rightly so, and he was dealt with on the basis that young as he was, C did not physically or otherwise resist. When C’s [details redacted] , the Appellant, to his credit, telephoned the social services department and delivered C to them; C saying that he did not want to return home.

It is also in the Appellant’s favour that he made full admissions to all these matters. He did not expose the youths and boys to the ordeal of giving evidence and, as we have already intimated, the matter proceeded upon his pleas of guilty and on his account of the affair.

The Appellant is now aged 43. He was born on 23rd June, 1939. He has a considerable criminal history. The relevance of offences of an entirely different nature is of course limited when the question of sentence is considered. In no way, however, could the Appellant be described as a person of impeccable character, nor one who was unfamiliar with the inside of a prison. Nor could it be said that this syndrome was exceptional or the first occasion upon which the Appellant descended into criminal activities of this kind. His record shows otherwise, including an offence of gross indecency of some 11 years ago now, and earlier two cases of indecent assault for which he received borstal training as long ago as 1956. He is clearly a confirmed homosexual who is unable to control his homosexual tendencies and activities within the law, even as it is now prescribed. That was the position in which the learned Judge found himself when he came to pass sentence.

Mr. Walker-Smith appeared for the Appellant and his speech in mitigation has been transcribed and is before us. It was a speech of skill and relevance and it reflects all the points which Mr. Walker-Smith has again skilfully and helpfully made before us. I hope that we have summarised the important points in mitigation. It would be unnecessary for us to burden this judgment by rehearsing the matters so ably and eloquently placed before this court and, indeed, at greater length also before the learned Judge.

One matter to which we have not referred was that the starting point of this progression of crime was an unhappy breakdown in a homosexual relationship that the Appellant had formed with a friend in Bristol who had come to London, who did not like London and had returned to Bristol with consequent distress and anxiety to the Appellant. But be that as it may, although that might be the background of the start of this progression of crime, it does not excuse it in any way, although it is of course something properly to be considered within a limited degree in mitigation.

The learned Judge passed sentence in these terms: “Alan Ernest Tanner, you have pleaded guilty to offences which revolt most people. Perhaps they do not revolt you. I must deal with you upon the basis, (A), that you have pleaded guilty and, therefore, have not sought to waste the time of the Court and, (B), upon the basis of the admissions that you made and not on the basis of the far wider allegations made against you by the victims. Therefore, I propose to take an overall view.” The learned Judge then approached the sentencing from that angle. That led him to pass a sentence of 5 years’ imprisonment on Count 1, in relation to a youth over 16 which, as Mr. Walker-Smith says, and rightly, is the maximum sentence provided by law under the new Act. The features in this case would not appear to support a case for passing a maximum sentence for an offence even of this gravity.

That argument, however, does not apply in the case of C who was under 16 and in respect of whom the maximum term under the Sexual Offences Act is one of life imprisonment.

The application to the single judge was refused, the learned single judge commenting: “In my judgment there is no ground on which leave to appeal would be justified. The total sentence of 5 years’ imprisonment was appropriate for the type of offences to which you pleaded guilty, having regard to the ages of the youths involved and the extent of your corrupting activities as disclosed by the whole of the evidence, which I have read in detail.” We would only comment that in using the words “corrupting activities” the learned single judge must clearly have been referring to the total background of what went on in the premises of which the Appellant was landlord. As we have already said, there was no case made by the prosecution that any individual victim was corrupted, in some cases rather the contrary.

The Appellant renewed his application to the full court who said this: “Although the single judge regarded the sentences as perfectly appropriate, and so indeed they may be, we think that this matter ought to be looked at by the full court with the assistance of counsel. Accordingly, without saying anything further or holding out any hope to the appellant that the appeal will succeed, we grant leave, with legal aid for one counsel only.”

The matter now comes before us. The grounds of appeal include a suggestion that the sentences imposed do not adequately reflect the mitigating factors, especially the fact that all three youths were willing participants in sexual activity, there being no evidence of coercion or intimidation being used. Further it is submitted that there was no question of abuse of authority, and that the sentences are out of line with the levels of sentences currently being approved by the Court of Appeal for this type of offence, for example  R. v. Cedric Malcolm Armston  (1982) Cr.L.R. 188 . We are very grateful to Mr. Walker-Smith for drawing our attention to that case, now reported in the Criminal Appeal Reports (Sentencing Vol. 3 320. In view of that latter ground of appeal, it is perhaps of help if we consider the case of  Armston  briefly.

Armston  was a plea of guilty on two counts of buggery, before Mr. Justice Drake, who has given us the advantage of some detail of the case involved. The sentence passed at the Crown Court at Shrewsbury was one of 2 years’ and 9 months’ imprisonment in respect of two counts of buggery. He appealed with leave of the single judge. The Appellant was 41 years of age and, so Mr. Walker-Smith says, of a similar age. He was undoubtedly a confirmed homosexual and he attended and was a member of a homosexual club and in that way had got to know the two youths who were the subject of his attentions and of the counts in the indictment.

The judgment of the court, delivered by the Lord Chief Justice, sets out the facts. I quote a short passage:

“The first youth was aged 15 at the time of the offences. He was, unhappily, in care at the time because he had stolen a bicycle. He had spent most of his time in a local authority home. It is true that he was not a stranger to homosexual activities, but, so far as one can gather, when he was first buggered by the appellant it was the first time that he had had that experience. It was agreed on all hands, both by the youth himself and by the appellant in a statement to the police, that anal intercourse took place between them on from 15 to 30 occasions in a period of 9 months.

“The other youth was aged 19 or 20 at the material times. He was of thoroughly unreliable character and there is no doubt that even at an early age he was a male prostitute. Certainly he had been before the courts before and he had in that period been involved with men other than the appellant. The appellant had anal intercourse with this youth on three or four occasions.” In that case, the appellant had never previously appeared in court. Until the offences he had had a good record. For him, a person of that character and being middle aged, his experience in prison was unpleasant. At his own request, he had been in solitary confinement and on that ground it was submitted by counsel that the sentences passed by Mr. Justice Drake should be reduced.

I quote again from the judgment: “The learned judge had to consider not only the effect on the appellant but also the effect on others. It must be made perfectly plain that boys of 15, whatever their character, cannot be treated in this way. If the judge had passed a sentence of less than two years’ imprisonment for these offences he would have done less than his duty to deter others. We are unable to say that the sentence was in any way wrong or excessive. We think that the learned judge was correct in the sentence that he passed on the appellant.”

Having read that account of  Armston, we would wish to make the following comments. Clearly, there were many distinguishing features between that case and the case with which this court is now concerned. The court in  Armston  was considering whether there should “be a reduction of the sentence imposed, even in those conditions in which the criminal record of the appellant was without “blemish until he committed the offences involved. There was also the difference in the background, that is, that he attended a place of assembly of homosexuals, rather then being the landlord of such a premises; and there were a number of other features with which it is not necessary for us to deal in detail.

Mr. Walker-Smith, in his excellent submissions and in his notice of appeal, relies on  Armston  to indicate some sort of trend. We would only make two comments about that.  Armston , although it is reported, does not purport to give guidelines, as some judgments in this court purport to do, as to sentencing in cases of this hind. Such trends as are detectable over recent years are to be seen in the provisions of the various statutes dealing with this particular type of offence. The recent Act still preserves in the case of “boys under 16 a severe sentencing potential. It would be inconsistent, in our view, with that statutory situation to detect a trend in relation to serious offences of buggery with boys under 16. Indeed, we do not find any assistance in the case of  Armston  towards establishing such a trend in this particular sphere of sentencing.

The second comment that we would venture to make is that reports on sentencing must have a limited value, however excellently reported. Sentencing is an art that has to be tailor-made to each case and must be flexible and adaptable to the circumstances of the offence, the circumstances and condition of the accused, the circumstances, age and condition of the victims. Therefore, we find no assistance in the case of  Armston  in dealing with the particular facts of this case.

We now turn to the individual sentences. So far as Count 1 is concerned, because the learned Judge decided – in our view correctly -what the appropriate sentence was to deal with the matter as a whole, he clearly overlooked that in the particular circumstances of Count 1, the age of the youth being over 16, 5 years was in effect the maximum term of imprisonment that could have been imposed. From what we have already said, there were clear mitigating circumstances which would not justify the passing of a maximum sentence. Therefore, so far as that particular sentence is concerned, we think that it was excessive and we would reduce it to 3 years’ imprisonment.

So far as the other sentences are concerned, that is, the two counts of buggery involving C, who was under 16, we agree with the comments made by the single judge. Where a boy is under 16, Parliament has drawn a clear distinction, whether he consents or not, and in those circumstances we are of the view that the sentence of 5 years passed on those two counts was perfectly satisfactory and there is no cause for this court to interfere.

As to the remaining sentences on Counts 2 and 3 and on the indictment that had been adjourned from Bristol, again we find no fault with them.

The overall effect, therefore, will be that the total term of imprisonment will remain at 5 years’ imprisonment, but as leave has been granted and this is an appeal we will quash the one sentence of 5 years on Count 1 and substitute a sentence of 3 years’ imprisonment. All sentences will run concurrently as before.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [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

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] 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/

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One Response to Alan Ernest Tanner 10th June 1983 Court of Appeal

  1. Pingback: Bristol Child Abuse Network 2000 | cathy fox blog

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