Paul John Wrights appeal was successful
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 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 
Index of Court Appeals on this blog 
 EWCA Crim J0426-1 No. 3889/E3/88
IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice
Wednesday, 26th April 1989
Before: Lord Justice Mustill, Mr. Justice Hodgson and Mr. Justice Potter
(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd. Pemberton House, East Harding Street, London, EC4A 3AS. Telephone Number: 01-583 7635. Shorthand Writers to the Court.)
MR. M. GALE, Q.C. and MR. C. TAYLOR appeared on behalf of the Appellant.
MR. J. TOWNEND, Q.C. and MR. R. CARR appeared on behalf of the Crown.
(As approved by Judge)
LORD JUSTICE MUSTILL : Paul John Wright was tried in the crown court at Lewes during May and June 1988. He faced an indictment containing 26 counts. He was convicted on 9 counts, and received sentences totalling five years’ imprisonment.
He now appeals against these convictions by leave of the single Judge.
At the material time the appellant was Headmaster of Slindon College, an establishment which he had built up from scratch with considerable effort. The school accepted a substantial number of maladjusted children. Several witnesses spoke highly of the appellant as a teacher and a man.
The prosecution case was that, whatever his merits, the appellant had fallen prey to a terrible temptation; that for at least two years he had been indulging in homosexual activities with the pupils; that he had regularly been engaged in buggery, in both the active and the passive role; that the pupils had buggered each other in his presence and with his encouragement; and that he was also guilty of repeated acts of gross indecency. The case was that these acts had taken place in the appellant’s study at the school and at his flat in Arundel. The prosecution also alleged that when the police began to investigate the allegations against him, the appellant conspired with persons named Hamilton-Byrne and Dawson to persuade the complainants to change their stories and to give false evidence favourable to the appellant.
The appellant’s answer to all this was that he had never engaged in any sexual activity with the boys. The truth of it was that a clique of boys had been engaged in buggery and other homosexual activities, in pairs and in groups, and that fearful of discovery and punishment they had concocted a story which made the appellant the seducer and ringleader. As to the conspiracy, his case was that it may have been that his supporters and friends were active in trying to persuade the false witnesses to admit the truth, but this was because they rightly believed the appellant to be in danger of suffering an injustice, not because they wanted to cover up any criminal offences; and besides, even if what they did was imprudent or even criminal, it was not done at his instigation.
As we have said, the indictment contained 26 counts. A number of these were ordered to lie on the file on the usual terms. We need not trouble with them. Counts 4, 5 and 6, which alleged offences with a boy named [A], were withdrawn, because A gave evidence favourable to the appellant. Counts 9, 10, 14 and 15, which alleged various incidents of group sexual activity, were withdrawn because the accounts of the boys did not tally. Count 12 was an alternative charge, on which a verdict was not taken. Counts 16 and 18 were withdrawn because the complainant, [B], was abroad and did not appear at the trial.
This left the following live charges. On counts 1 to 3, counts 7, 8 and count 11, count 20, count 21 and count 22 the appellant was found guilty of offences relating to complainants named respectively [C], [D], [E], [F], [G] and [H]. Charges contained in counts 24 to 26 were withdrawn by the election of the Crown to proceed on the conspiracy charge in count 23. On the latter count, which alleged a conspiracy on the lines which we have already mentioned, the appellant was acquitted.
Thus the general effect of the verdicts was that the appellant was convicted in relation to the substantive counts of offences against individuals, which were of course specimen charges, with the exception of those concerning B, who did not give evidence, and A, whose evidence favoured the appellant. The appellant was acquitted, together with his co-accused Hamilton-Byrne and Dawson, on the only surviving conspiracy charge.
The details of the allegations and evidence which underlay the substantive charges on which the appellant was convicted are of no materiality, because the appeal was concerned exclusively with questions of law and procedure, and we say nothing about them except to emphasise, as is obvious, that the issue was one of credibility between on the one hand a number of boys who admitted homosexual behaviour and alleged that the appellant was a participant, and on the other the appellant, who denied any homosexual behaviour with the boys: and we emphasise “with the boys” for reasons which will appear.
It is convenient for present purposes to take issues in a rather different order from the more logical sequence in which they were developed during the submissions advanced for the appellant.
1. The trial Judge erred in allowing the prosecution to bring before the jury two potentially incriminatory articles, namely a booklet and a video tape, the former as evidence in the prosecution case, the other in cross examination of the appellant, and having admitted them did not properly explain their significance to the jury.
2. The prosecution introduced without warning questions in cross-examination relating to matters which it had been agreed in advance should be excluded.
3. The trial Judge mistakenly admitted in evidence an account by the complainant D of what was said to him by a man named Bridge [Z], not charged or named as a co-conspirator, of what Z thought about the guilt of the appellant and of the reason why Z was trying to get D to change his story.
4. The trial Judge should have acceded to a request by counsel for the appellant to order a separate trial of the conspiracy charges.
We shall deal with these submissions in turn.
1. The incriminatory articles:
Some explanation of the background is required here. The appellant was first arrested on 13th April 1987. With his consent a search was made of his study at the school and of his flat. Nothing was found at the flat. As to the study, it is right to record that this was by all accounts very different from the ordinary, and perhaps old-fashioned, kind of headmaster’s study. Evidently it was more like a social centre for the school, which the pupils often visited to watch television, converse and on occasions work.
In this room there were discovered some hotel bills concerning visits to Paris. The details are immaterial. Sufficient to say that there was an explanation, which the jury could believe if it chose, of why the appellant had been paying visits to Paris.
Much more important was the finding, on or in the appellant’s desk, of a booklet named “The Incognito Guide to Paris”. In itself this publication was innocuous enough. It contained no pornographic material, and consisted mainly of a list of addresses and advertisements, of a kind produced in many large cities with a view to letting the visitor know what attractions exist in the locality, and where they are to be found. Its significance in the present case was that any juror who saw it could immediately recognise that it was aimed at males with homosexual leanings, and in particular at those with an interest in young men.
The appellant was released and re-arrested some eight months later. By this time he had moved from the flat in Arundel, which he had occupied at the time of his alleged offences and at the time of his arrest, to a house elsewhere in the same town. This was now searched by the police, who discovered a video tape. This was in quite a different category from the “Incognito Guide”. It was grossly obscene, consisting of displays of buggery between two or more adult males.
The explanation of these articles ultimately given by the defendant was that they had nothing to do with him. He said that many people had access to his desk, and that the Guide might have been placed or left there by accident or design in any number of ways. As to the video tape, he had never seen it except when a friend, who was helping to sort out his possessions after he had been compelled to leave his former accommodation, had pointed it out to him. It was not found until eight months after he had left the school, and he had no idea where it had come from.
The question which arises under the first group of issues is whether the appellant should have been put into the position of having to give any explanation of these two articles, since the effect of them must inevitably have been to show the jury that the appellant was a man with homosexual inclinations, and indeed in the light of the video tape that he had a keen interest in buggery, at least between adults. (We should mention that it was rightly agreed on all hands that the appellant could have no prospect of a dispassionate consideration by the jury if the disgusting video had been shown to them, and that, when it was put to the appellant in cross-examination, its contents were summarised in brief and clinical terms).
To anyone but a lawyer it might seem obvious that in general this kind of evidence ought to be admitted. Here was a man accused of homosexual activities on the occasions for which he was indicted. He denied having done any such thing, making out the boys to be liars. Why should he be allowed to say this, and what is more, to assert that they were themselves a clique of buggers and yet remain silent about his own proclivities?
Here we find his advisers setting out to conduct the case on the basis that it was immaterial to the questions which the jury had to decide whether he was a homosexual or not, and that nothing mattered except the narrow issue whether he had done the homosexual acts complained of. The appellant’s position was therefore that he would say nothing about whether he was heterosexual, homosexual, bisexual or asexual. No questions could be asked of him to elicit this information, nor could any evidence (such as the incriminating articles) be laid before the jury which might enable them to form an opinion on a matter which surely must have been foremost in their minds. Surely, so it might strike the layman, this cannot be fair.
It is not uncommon to find in judgments a suggestion that a particular proposition might appeal to a logician, but not to the ordinary man; or vice versa. In the present instance it might be said that to allow the appellant to run his case in this way would appeal to neither. Naturally we had in mind the rule, now well established for more than a century, that evidence of disposition may not in general be led against an accused person, and we were of course struck by the fact that, at least in the earlier stages of the trial, counsel for the prosecution were willing to play their part in ensuring that this neutral stance on the part of the appellant should not be compromised. Nevertheless, since this aspect of the appeal was concerned with the question whether the appellant’s immunity from enquiry into his sexual orientation had been improperly breached, we thought it right to invite submissions on the basis of the supposed immunity.
In response we have received a very full citation of the authorities which has left us in no doubt that counsel both for the appellant and for the Crown were quite right to take as the starting point of the trial the general proposition that as regards his own evidence in chief, the questions put in cross-examination, and evidence from other sources on the same point, the jury should not be invited to consider whether he was a homosexual or not. Whilst gratefully acknowledging the assistance which we have received, we need not burden this judgment either with any exploration of the reasoning which underlies this well-established principle of English criminal procedure, or with the numerous and difficult authorities on the so-called similar facts rule: a rule which has nothing to do with the present case. It is sufficient for present purposes to cite from those judgments which are most directly in point. But first we must summarise the course of events in the Crown Court.
What happened was this. The appellant and his advisers had a choice of three strategies. First, he could accept (if it was indeed the case) that he was a homosexual, or at least had homosexual tendencies, but that he would never have thought of committing the crimes of which he was accused, against the young and vulnerable people entrusted to his care. At the other extreme he could have presented himself as a heterosexual to whom the idea of committing the kind of act described by the witnesses for the prosecution would have been repugnant in any circumstances, let alone those of a relationship between headmaster and pupils.
In the event, as we have said, the appellant and his advisers chose to present a third, and entirely neutral, picture of his sexuality. He was put forward neither as a heterosexual, nor a homosexual, nor a bisexual, nor a person with no sexual inclinations at all. Instead the case for the defendant was to be that his sexuality, whatever it might really have been, was to be left to the jury as a complete blank.
To run a case like this, in the context of a long and complex trial, was liable to present many opportunities for misunderstanding and error. Accordingly counsel very sensibly discussed the matter beforehand and an agreement was reached as to the way in which the prosecution would present its case. The general drift of this was that the prosecution would not set out to portray the appellant to the jury as a man with homosexual tendencies, who because of these tendencies was more likely to have been guilty of the offences charged than if he were heterosexual.
Consistently with this approach the witness statements of the police officers were edited so as to exclude those parts of their interviews where they had asked the appellant, and he had denied, whether he was a homosexual. Also, the Crown agreed to exclude some evidence about hotel bills which might, without explanation, have pointed towards overseas trips for homosexual purposes. It also seems clear enough that the agreement between counsel had two particular features. First, that the prosecution reserved the right to invite the Judge to admit the “informal guide” in evidence as part of its case. Second, that the prosecution could not seek to put the video tape in evidence as part of its case.
Unfortunately the precise effect of this agreement either was not clarified in the first place, or became obscured in the course of the trial. We appreciate very well that whereas in an appellate Court the issues are usually few and clear-cut, by contrast during a trial, and particularly during the earlier stages, there are numerous questions of tactics and administration preoccupying those responsible for presenting the case – and preoccupying the Judge also – which may lead to ends being left untied. Nevertheless, the fact remains that there must have been a misunderstanding about the degree of the Crown’s consent to abstain from using the incriminating articles, which led to serious difficulties later in the trial.
However that may be, the case for the prosecution in its initial stages was conducted without reference to the appellant’s sexual preferences or to the incriminating articles. The complainants completed their evidence, which was the subject of vigorous cross-examination, not only on the offences themselves but also on the complainants’ own homosexual tendencies and practices, and on their characters and behaviour in general.
On the ninth day of the trial the evidence of the police officers was being taken. The prosecution then sought to lead evidence of what their searches of the defendant’s study and house had revealed, and in particular of their discovery of the booklet and the video tape. The admission of this evidence was objected to, and there was argument upon it. By this time leading counsel for the prosecution (Mr. Townend Q.C.) was no longer able to participate in the case, and the conduct of the trial was in the hands of his learned junior, Mr. Carr.
Two comments must be made about the decision to lead evidence about the incriminating articles. First, as to the booklet: the possibility of putting this in evidence was expressly reserved in the pre-trial agreement, and the appellant can have no complaint about it. Nevertheless – and we say this without any disrespect to Mr. Townend, for whose frank and helpful submissions on this appeal this Court is greatly indebted – it is not easy to see how an attempt to prove possession of the booklet, which, as Mr. Carr said to the Judge, was put forward as evidence that the appellant was a homosexual, could be consistent with the general agreement that he would not be put forward by the prosecution as being a homosexual. Secondly, the attempt to put in the video tape as part of the prosecution case was contrary to the agreement reached before the trial: so there must have been some misunderstanding on the side of the prosecution.
In the event the trial Judge admitted evidence of the booklet and excluded the video tape. His ruling was expressed as follows:
“I have had to pick my way, as best I can, through the minefield of the law relating to the admissibility of evidence in respect of articles found in possession of a defendant bearing in mind, in particular, the allegations which have been made in cross-examination of the boys to the effect that here was a conspiracy to accuse the headmaster of buggery because the boys themselves had been indulging in conduct of that kind and so were anxious to protect themselves. I hold that the evidence of the Incognito Guide of Paris, 1983, is a relevant matter of evidence and is admissible in law. But I hold that the evidence of the video tape found in the defendant’s possession months after his original arrest is inadmissible. If it should be admissible, then I would exercise my discretion in favour of the defence. I therefore have to decide whether to allow the evidence relating to the Guide to be given, or to hold that its probative value is outweighed by its prejudicial effect, and I decide that the prejudicial effect is a matter which this defendant has to ‘tolerate’ – to use the word used in the case of Ager. So far, therefore, as the Incognito Guide is concerned, I exercise my discretion in favour of the Crown.”
In accordance with this ruling a police officer gave evidence of finding the booklet. He said nothing about the video tape.
At a much later stage however, when the appellant himself was giving evidence, the prosecution applied for and obtained leave to cross-examine him on the video tape under section 1(f)(ii) of the Criminal Evidence Act 1898, on the ground that by cross-examination of the police officers and the complainants and by his own evidence, he had presented himself as a person of good character, a kind and considerate headmaster, and so on, whereas he had attacked the prosecution witnesses as perverts who had banded together to put him into prison through lies.
The appellant now contends that neither of the items should have been put in evidence. We shall take the booklet first.
One must begin by asking whether, in a case where the issue is whether the act alleged by the complainant ever took place at all, evidence is admissible that the defendant had done similar acts in the past, or could be shown through the possession of incriminating articles or otherwise, to have a learning towards such acts.
It is not hard to imagine legal systems in which such evidence would not only be admissible, but would be regarded as having high probative value. Nevertheless, this has never been the policy of the English criminal law, not so much on the grounds of logic, but because it is considered that to entrust it to a jury would be too great a risk. It is unnecessary to cite any more authority for this proposition than the off-quoted opinion of Lord Herschell in Makin v. Attorney General for New South Wales (1894) A.C. 57, 65.
This principle is subject to exceptions, as Lord Herschell himself acknowledged. Thus if a person accused of indecnetly touching a child admits the contact but asserts that it was accidental, evidence of previous similar acts may be admitted, because it is relevant to the issue of accident or design: see Makin (supra) and Bond (1906) 2 K.B. 389. So also if there is a defence that acts prima facie attributable to guilt in fact had an innocent explanation. See Gale (1987) (unreported), where a defendant who had taken indecent photographs of his young step-daughter claimed that he had done so for artistic purposes at the instigation of his wife, and where it was held to have been proper to admit evidence that he had written pornographic fantasies to describe in a manner which bore a close resemblance to the very type of incident which the girl had herself described the sexual initiation of a young girl by her father.
Again such evidence may be permitted where it goes to disprove a defence that an association with the complainant bears an innocent explanation. Another exception exists where there is no doubt that an offence was committed by someone, but where the defendant denies that he was that person, and where the evidence is of acts done by the defendant which bear a striking similarity to those done by the offender on the occasion in question: Thompson (1918) A.C. 221 ; Reading (1965) 50 Cr. App. R. 98 and Mustfa (1976) 65 Cr. App. R. 26. (Whether Twiss (1918) 2 K.B. 853 can now be justified on this ground may one day have to be discussed. We need not decide this here).
Although these exceptions are well established, it is also quite clear that they are not brought into play simply through a denial that the acts in question ever happened at all. This is demonstrated by Cole (1941) 28 Cr. App. R. 43 , Horwood (1969) 53 Cr. App. R. 619 , and perhaps most clearly by Lewis (1982) 76 Cr. App. R. 33 , where evidence of paedophilic tendencies was held admissible in relation to counts where the touching was said to have been innocent or accidental, but not in relation to an incident which could have had no innocent explanation, but which the defendant denied had ever taken place.
Here it cannot be said that the appellant had raised any defence of the types which we have mentioned: he did not admit the incidents whilst denying that they involved any criminality on his part. He asserted that the boys had made them up. In argument at the trial counsel for the prosecution asserted, and the Judge must be taken to have accepted, that the book was “strong probative evidence that he was a homosexual”. The authorities show that this is not a permissible ground for admitting the evidence, any more than was the evidence of the questions about homosexuality in the police interviews, and of the visits to Paris, which were properly omitted pursuant to the agreement reached before the trial began.
In our judgment the evidence concerning the booklet should not have been admitted, and the booklet itself should not have been seen by the jury.
We now turn to the video tape. We have already shown that the admissibility of this article was put in question twice: first when the prosecution sought to adduce evidence of it from the police officer, and secondly when the appellant was giving evidence on his own behalf. On the first occasion the learned Judge excluded the evidence. Given that in the course of the same ruling the Judge had decided to admit the booklet, which raised the same issue of principle, and in the light of the arguments preceding the two rulings, it seems that the Judge must have founded his decision to exclude the tape on the lapse of eight months between the alleged offences and the discovery of the tape: evidently on the ground that proof that the defendant was interested in group buggery eight months after the event told the jury nothing about his guilt or innocence at the time of the event.
We have no doubt that the ruling was right, but on the simpler ground that the tape was on the same footing as the booklet, and was inadmissible in principle, quite apart from the fact that in the face of the agreement not to lead evidence of the video tape, an attempt to lead it should not have been made.
The real issue was whether the tape should have been let in at the later stage. This question turns on section 1 of the Criminal Evidence Act 1898, the material parts of which read as follows:
“Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person.
“Provided as follows: …… (e) A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination, notwithstanding that it would tend to incriminate him as to the offence charged. (f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –….. (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecution or the witnesses for the prosecution…..”
It seems to us that the possible objections to the admission of the evidence under paragraph (ii) of the proviso may be summarised as follows: (1) The evidence was inadmissible, and hence could not have been adduced, even if the requirements of sub-paragraph (f) (ii) were satisfied. (2) The cross-examination about the tape did not tend to show that the appellant was “of bad character”. (3) The attempt to deploy the tape in cross-examination was contrary to the agreement reached before the trial began. (4) The terms of the first ruling misled the appellant’s advisers into believing that they were immune from any future attacks of which the tape might form part. At the least should have warned them of the risk that he might let the tape in at a later stage. (5) There was insufficient evidence to connect the appellant with the tape. (6) If the evidence was to be let in, it required, but did not receive, a very careful direction to the jury about the uses to which it was to be put. We take these points in turn.
The first two objections, which may conveniently be taken together, have caused us some anxiety, because of the way in which the matter developed in argument. The problem is as follows. One of the contentions advanced on behalf of the appellant was that the question about the tape did not go to his “bad character” within the meaning of proviso (f), and were therefore not permissible under section 1.
In the course of argument on the appeal the Court inquired whether this did not perhaps state the position the wrong way round. Perhaps one could say that if the 1898 Act were to be read literally, the proviso would be seen not as a permission to ask questions which could not otherwise be asked, but as a prohibition against asking questions which otherwise could properly be asked; and that the effect of sub-paragraph (f) (ii) would therefore be to define the circumstances in which the prohibition would be lifted, and questions otherwise permissible would once again be permitted.
On this view it would be necessary to consider as the first stage of the inquiry whether the questions could, apart from the statute, properly have been asked. It might therefore be said to follow that if (as we have held) the booklet and tape were inadmissible, as being outside any exception in Makin , the questions could not be put whatever “bad character” might mean. Moreover, it would seem to follow that the meaning of “bad character” could not arise in the present case, for the words would merely serve to identify the kind of question which would be prohibited if the requirements of sub-paragraph (ii) were not fulfilled: whereas it is not disputed here that they were fulfilled, given the way in which counsel for the appellant had cross-examined the complainants and adduced evidence of the appellant’s sterling worth.
In the event neither counsel was inclined to support this way of looking at the Act, and some of the cases read seemed to be against it. The point was therefore not pursued, and the argument was confined to a brief analysis of the ordinary meaning of “bad character”.
Since the conclusion of the argument we have taken the opportunity to conault the speech of Viscount Sankey, Lord Chancellor, in Maxwell (1935) A.C. 309 , at page 316 to 320, and the discussions in Cross on Evidence, 9th Edition, Chapter XI and Phipson on Evidence, 13th Edition, paragraphs 13-19 et. seq. These seem to show that in part the view tentatively advanced may have been right; to this extent that proviso (f) does not enlarge the scope of what is admissible. They also show however that the tentative view expressed in debate, that if the tape was not admissible under the exceptions to Makin , it could not come in under the statute at all, was probably mistaken: for Maxwell and other cases show that questions about bad character may also be admissible if (i) they serve to controvert a positive case of good character which the defendant has himself raised, or (ii) the question is sufficiently relevant to the credibility of the defendant.
If the gist of these opinions was indeed correct, a difficult question would arise. The whole matter stems from a statutory provision which has often been characterised as an unsatisfactory compromise. Authorities on the intrinsic relevance of questions asked of a defendant aside from the statute are hard to find, since a defendant could not give evidence in any but a limited class of case, until permitted by the 1898 Act, so that the issue has almost always arisen within the framework of that Act. Moreover the distinction between matters going directly to the primary issue and those going to the credit of those who give evidence on the issue is hard to operate in practice, and possibly unsound in theory. The whole matter is overlaid by the general discretion of the Judge to exclude evidence: so that if one asked by way of example whether the question put in the present case would have been within the statute if the appellant had been accused of burglary, not buggery (cf. phipson, op.cit., paragraphs 13-43), the answer would be that in practice a Judge would never allow them to be put, whatever the position in theory. Furthermore it would also be necessary to consider to what extent the character of the defendant can be regarded as “divisible”.
If the present appeal had turned on this particular point, we would have thought it right to invite full argument upon it, and we should have wished to explore how it could matter, for present purposes, what “bad character” might mean, given that the defendant had put his character in issue, and had hence released the prohibition against asking questions about bad character. As will appear however, we do not regard this ground of appeal as decisive, and although we have spent some time in explaining the difficulties, we think it preferable to express no conclusion upon them, since they may prove to be of great importance in another case.
We pass therefore to the next question, which concerns the pre-trial agreement. Here again there must have been a misunderstanding. Mr. Townend told us, and we accept, that he would never have agreed that the tape would in no circumstances be used. This would, for example, have meant that if the appellant had spontaneously departed from his tactic of sexual neutrality, and announced in evidence that he was a heterosexual for whom the very idea of buggery was disgusting, the prosecution would have been unable to confront him with the tape. No counsel would tie his hands in this way. What undoubtedly was agreed was that so long as homosexuality was not an issue in the case, the prosecution would not make it an issue by utilising the tape.
The problem is to know what the agreement meant in relation to section 1(f). From the very outset it was inevitable that the conduct of the case for the appellant would let in the proviso, for he could do no other than subject the complainants to every available attack. If he went further and put himself forward as an upright man, reliance on the proviso became even more likely. In such a case did the prosecution bind themselves not to invite the Judge to put the tape in evidence? If it was admissible on credit, would it be excluded because it went also to homosexuality – as did several other questions which could have been put? We believe that in the press of preparing for trial this problem was not worked out. At all events, we do not feel justified in holding that the use of the tape in cross-examination was an unfair breach of the pre-trial understanding.
The next complaint is that the Judge’s first ruling, unaccompanied by any warning as to its limitations, misled the appellant’s advisers into believing that they could call their client without risk of his being taxed with the video tape. The warning to which this argument relates is not the warning customarily given when counsel embarks on a line which may put his client’s character in issue: for any such warning would have fallen due much earlier in the trial, when the complainants began to be cross-examined about their own behaviour, and it is not of course suggested by Mr. Gale that he did not know just what was involved in the course which he pursued.
What is said, as we understand the argument, is that if the Judge had made it clear that his ruling was only provisional, the appellant’s advisers would have considered whether it would be wise for him to give evidence, particularly since they had made a considerable impression in cross-examination, as the withdrawal of the charges in relation to A made clear. Whatever decision they might ultimately have taken, it was unfair to let them take it in the dark.
This is not a point which can be discussed at length. We can only say that, having studied the transcript of the argument and the first ruling, we see nothing which unequivocally indicated either that the time element made the tapes useless for any evidentiary purpose, or that the Judge was doing any more than reject the application before him, which was to allow the tape to be used as part of the prosecution case. What its status would be at a later stage would depend on the circumstances.
The fourth complaint is that the prosecution never laid the ground for establishing that the tape was ever in the possession of the appellant, in the non-technical sense, so as to be available as evidence of vicious tendencies: and, what is more, that he should have been called upon to explain why it wa amongst his belongings, before that ground was laid.
Without a full transcript we cannot assess the weight of this argument and, because of our opinion on other issues, it is unnecessary to do so.
The fifth objection is that the learned Judge did not sufficiently direct the jury in relation to the significance of the video tape and to the facts of which they must be satisfied before relying on it as evidence against the appellant. The same criticism is made with regard to the booklet.
In our judgment, whatever doubts there may be about some of the points previously discussed, the appellant is on firm ground here. The two incriminating articles were dealt with briefly at an early stage of what was to be a long summing up, when the learned Judge was discussing the evidence of character on both sides. The jury would at this stage need help on two questions: first, about whether there was any sufficient connection between the articles and the appellant, beyond the fact that one had been discovered in or on his desk, and the other in his house.
Often there would be no problem, and no need for elaborate direction, about the provenance of articles found in the apparent possession of a defendant. Here, by contrast, there were serious issues about the nature of the study and the desk on the one hand, and the long time lapse coupled with removal of possessions from their original location on the other, of which the jury needed to be reminded, and on which they would need guidance. They received none.
Secondly, it was essential that they should be told that if the articles were relevant at all, they went to credit, and not (via proof of propensity) to a direct proof of guilt. All that the learned Judge actually said was this:
“Has the defendant been very unfortunate in having these two articles found amongst his belongings when both could show an interest in homosexual activities with young males?”
We acknowledge unreservedly the difficulty of formulating an intelligible direction to a jury on a matter which is so opaque even to lawyers. Nevertheless on attempt must be made. In this case we are obliged to say that no such attempt was made, and that what the Judge did briefly have to say had the effect of pointing the jury in the wrong direciton. So we hold that there was a material misdirection, quite apart from the irregularity which occurred in the admission of the booklet, and which may well also have occurred in relation to the video tape.
2. Cross-examination on excluded matters:
The next ground of objection is stated on the following lines. It will be recalled that an agreement was made concerning the excision of certain exchanges in the police witness statements about hotel bills relating to foreign visits of his own, and trips with other men, on the ground that this went only to the issue whether the appellant was a homosexual. Nevertheless, when the appellant was being cross-examined, it was put to him without warning that such visits had been made.
Again there must have been a misunderstanding on the prosecution side. It is true, as was pointed out for the Crown, that there was no application on behalf of the appellant for the jury to be discharged, and it is said that no great harm was done. We are by no means so sure of this, since there was also evidence of a trip by the appellant and two of the complainants to Monte Carlo. There was no evidence of any impropriety on this trip (which had, as it happened, proved to be the event which set the whole investigation and prosecutions in train), but the jury must have been led to wonder whether it was not all of a piece with the behaviour of the appellant as a whole. However this may be, the adoption of this line in cross-examination was not in accord with the agreement previously made, and should not have happened.
3. Evidence of D:
It is first important to make clear that the evidence complained of
If admissible, was admissible only in relation to the conspiracy charged in count 23, and indeed the Crown only sought to adduce it on that basis.
The co-defendants to the conspiracy charged were the appellant, Hamilton-Byrne and Dawson, who were alleged between 1st May 1987 and 8th January 1988 to have “conspired together and with a person or persons unknown with intent to pervert the course of justice …. in that they approached …. potential witnesses ….. with a view to persuading them to change existing statements ….. or give false evidence”.
The evidence complained of was the evidence of a schoolboy witness, D, to the effect that he had been asked by another boy, A (who had been called as prosecution witness), whether he would discuss the case with someone, as a result of which D, A and another boy, E (also a Crown witness), met a man called Z, who was in fact the son of Mr. Z the Trustee of the School. D said that Z was trying to get all three boys to change their statements. He said that the appellant “did not deserve it”, and also asked the boys to write a letter and send it to the appellant apologising for the trouble they had caused him and saying that it was all wrong.
All this was plainly hearsay evidence, quite inadmissible under ordinary rules of evidence relating to substantive charges, and it was objected to by the defence on the grounds that the conversations, and in particular the remarks of Z, were no more admissible on the conspiracy count, since they were not the acts or statements of any conspirator named in the indictment, nor of “a person unknown”.
The defence also took the point that the Crown’s anxiety to introduce the evidence was in reality an attempt to discredit the evidence of A who, when called by the Crown, had stated in evidence that the statements and allegations the boys referred to had indeed been concocted. Further the Judge had refused the application of the Crown at that stage to treat A as a hostile witness, and it was suggested that the Crown were simply seeking to circumvent the Judge’s earlier decision.
It is of course the rule, as both counsel accepted before the Judge in the course of their submissions, that where conspiracy is charged, the acts and statements of any of the conspirators in furtherance of the common design may be given in evidence against the others. In such cases the first thing to be proved is the conspiracy. Then evidence must be given to connect the defendant with it and, finally, if it is intended to give in evidence against the defendant the acts or statements of another person, it must be shown that such person was a member of the same conspiracy and that the act was done in the furtherance of the common design.
It is also the position, as we would observe, that in any given case (i) the presentation of the evidence and the jury’s later consideration of it may not follow the logical pattern outlined above, and (ii) the evidence going both to the question of the existence of the overall conspiracy and the defendant’s participation in it may be substantially the same. However at the end of the day each element falls to be considered separately and the sufficiency of the evidence must be assessed in relation to each: see R. v. Walters (1979) 69 Cr. App. R. 115.
In the instant case all the necessary elements, that is to say proof of the conspiracy, the overt acts in pursuance of it, the identity of the defendant as connected with it, and the inference of common design, substantially, if not entirely, depended on the contents of the single conversation between Z and the other schoolboys referred to above.
That being so, in relation to the question of admissibility defence counsel raised a further point of objection, namely that, even assuming Z was capable of being regarded as a co-conspirator (although not referred to in the indictment), the only evidence of common purpose between himself and the appellant was the conversation relied on, and therefore, at best, this was an instance of the “conditional admissibility” of evidence which would have to be excluded if no outside or additional evidence of common purpose was adduced: see R. v. Donat (1986) Cr. App. R. 173 at pages 179 to 180.
The answers of the prosecution to the points taken by the defence were as follows.
First it was said that the fact that Z was not named as a co-conspirator with the appellant was not fatal to the admission of evidence as to what he had said, if on all the facts it was plain that he was such a conspirator and that the conversation was an overt act carried out in the course of such conspiracy. It was explained (not very convincingly in the view of this Court) that, on the evidence available to it, the Crown had felt unable sufficiently to identify Z for the” purposes of making him a named conspirator, and that he was properly to be regarded as a person covered by the reference in the conspiracy count to “a person or persons unknown”, whose identity had subsequently become obvious.
Whether or not that was so, the authorities are clear that, for the purposes of the admissibility of the acts or statements of one conspirator (A) against another conspirator (B) in the furtherance of a common design, it makes no difference whether A has been indicted or not: see Archbold (43rd Edition) paragraph 28-30. Accordingly the defence objection on that particular ground failed.
Second, the prosecution denied that the purpose or effect of admitting the evidence was to seek to destroy the effect of the evidence which A had given when called for the prosecution.
Again this Court found that denial somewhat unconvincing. Again however such purpose or effect would not in itself render the evidence inadmissible and the Judge’s decision to admit the evidence cannot be faulted on that score.
Third, the prosecution sought to avoid the effect of R. v. Donat by referring to links established aliunde in the evidence between the appellant and his named co-conspirator which might suggest or lead the jury to infer that the appellant was party to the attempt to suborn witnesses, from which in turn it was said the jury might infer that the appellant had put Bridge up to making the approaches he was said by D to have made.
However those references failed to meet the essential point that, even if Z to be regarded as a co-conspirator, something more was needed to establish a common purpose or link between Z and the appellant than the very statement of Z alleged to have been made (and only admissible if it was made) in the course of the conspiracy. In that respect the Crown did not at the time of the defence objection indicate, and never subsequently adduced, any evidence of a link between the appellant and Z, who was in no other respect the subject of, or mentioned in, evidence for the Crown at the trial.
This being so, it seems to this Court that the Judge was in error in admitting the evidence and, having done so, was in furhter error when he failed in summing up the case to the jury to instruct them to put out of their minds the evidence which D gave.
Nonetheless the principal point taken by the prosecution on this appeal is that, even if the Judge was in error, no harm was in fact done because the defendants were acquitted on count 23 of the indictment, which was the only count to which the evidence of D was addressed. Accordingly it is said that this Court should be prepared to apply the proviso in this respect.
Mr. Gale for the appellant argues to the contrary, and asserts that upon the acquittal of the defendants on count 23, the damage done by the admission of D’s evidence was by no means spent. Indeed, the effect of the evidence led (which we have summarised above), was compounded by the answers of the witness in cross-examination, when he said in terms that Z was not saying that the Headmaster was not guilty but that the Headmaster was guilty “but did not deserve what he would get”. Mr. Gale says that all one can reasonably deduce from the acquittal on count 23 was that the jury did not find that the appellant’s complicity in Z’s approaches had been proved.
Mr. Gale goes on to say that the evidence that the approaches were made, and the terms in which they were said to have been made, would have created in the mind of the jury not only the impression that the appellant had been party to Z’s approaches, but that Z at least (and probably others) believed that the appellant had been guilty of indecent conduct and was worthy of assistance, not because of his innocence, but because there were worse offenders about than him.
Mr. Gale also complains, rightly in our view, of the Judge’s failure when summing up to instruct the jury to disregard the evidence of D in relation to the substantive charges in the indictment.
If the error of the Judge in admitting D’s evidence had stood on its own, we should have wished to consider carefully whether its effect was so serious as to preclude the application of the proviso. It does not however stand alone, and we do not consider that it should be viewed in isolation from the other grounds of appeal.
We shall deal with this last complaint as briefly as we can, given the conclusions which we have reached on the remainder of the appeal. It arises in this way. Before the trial began three submissions were made by Mr. Gale in relation to the indictment: that counts 21 and 22, which related to comparatively minor incidents concerning two complaints, should be severed; that counts 23 to 26 should also be severed; and that the Crown should be put to its election whether to proceed on count 23 (the overall conspiracy count), or on the associated substantive count. The first submission failed. We are not concerned with this. The third submission succeeded, and the Crown elected to proceed on count 23 alone. The second failed, and this is the subject of this ground of appeal.
The submission that counts 23 to 26 should be severed was made to Judge Clay in rather unusual circumstances, in that it had already been argued on an application to sever, made before His Honour Judge Gower Q.C. on a pre-trial review, after arraignment, and had been rejected. No complaint has been made upon Judge Gower’s ruling, although as matters turned out it was the remote origin of the problem with D and Z which we have just discussed. But that is hindsight. We have read the proceedings before Judge Gower and are quite satisfied that he made no error of law and that his decision not to sever was well within the scope of his discretion. The problem concerns the ruling of Judge Clay when the point came to be raised again at the outset of the trial.
In summary our opinion is this. We think it immaterial whether or not the trial can be supposed to have begun when the appellant was arraigned before Judge Gower, since the power under section 5(3) of the Indictments Act 1915 may be exercised “before trial”. We further consider that if the question had arisen during a trial before a Judge who had already ruled at the outset of the trial, he would not have been formally bound to maintain his original ruling. He could have reversed it, if he felt that the interests of justice so demanded, with whatever consequences as to the future conduct of the trial the circumstances might dictate. Equally he could have refused to entertain a renewed submission on the question, unless satisfied that the circumstances governing his original ruling had not materially altered. It would not be his duty to listen, to the same arguments on the same facts over and over again. The position would, as it seems to us, be the same if his prior ruling had been given just before rather than at the trial.
The curiosity of the present case arises from the fact that it was a different Judge who had been responsible for the first ruling. This is not simply a reflection of the fact that there was a pre-trial review: a valuable practice which results from judicial administrative action, not from any statute or rule of court. Independently of any pre-trial review, the 1915 Act permits the decision to be taken before trial, and there is nothing to say that it must be taken by the Judge who ultimately proves to be the trial Judge: although, as the present case amply demonstrates, it is much preferable if matters can be so arranged that the Judge who makes important decisions before trial does so in the knowledge that it is he who will conduct the trial itself.
In our opinion, the decision on severance by the first Judge does not bind the second; conversely, the latter is not obliged to hear the same point argued again if nothing material has changed. If however it is asserted that there has been a change, then he should permit the happening of the change to be canvassed, and if satisfies that there really is something new which might affect the justice of maintaining the original order, he should look at the matter for himself.
Now what seems to have happened here is that Mr. Gale for the appellant, arguing before Judge Clay, contended first that what had been decided by Judge Gower had no real status at all, and that Judge Clay ought to approach the question of severance entirely afresh; and that, alternatively, there had been sufficient change of circumstances, in the shape of the decision by one of the complainants not to appear, so that three of the substantive counts would fall away, and the balance of the trials as between the substantive counts and the allegations of conspiracy had undergone a substantial change.
For the Crown Mr. Townend accepted, correctly as it seems to us, that if there was a new situation the second Judge should, or at least could, re-open the position; but he went on to contend that the circumstances had not in fact changed sufficiently to make this necessary.
It appears however that Judge Clay did not adopt either approach. He simply regarded the matter as concluded by the ruling of Judge Gower.
In this we believe the learned Judge to have erred. The consequence is not easy to decide. Here we have a decision by Judge Gower unimpeachable on appeal. If Judge Clay had considered whether there had been a sufficient change to justify re-opening the question, he might properly have decided that there was not: and ever, if he had looked at the matter afresh, he might properly have reached the same conclusions as Judge Gower. We do not know, since he never entered upon either question.
Should this Court now interfere? The idea that we should is unattractive, given that if the matter had arisen for the first time before Judge Clay, a decision not to sever would have been well within the scope of a proper exercise of the discretion. But the learned Judge never exercised the discretion at all in relation to the submissions with which he was faced. We cannot exercise it for him. Not can we say that the decision to sever was a foregone conclusion, so that the absence of any formal consideration of the matter by Judge Clay has caused no injustice: for although Judge Gower’s decision could not properly have been attacked on appeal, it was a point on which different Judges might well have taken different views. In these circumstances we are driven to hold that the failure of Judge Clay to address at all the question whether to review Judge Gower’s decision must be regarded as a material irregularity.
As already indicated, it has been submitted that, since the defendants were acquitted on the conspiracy count, no harm was done by the refusal to sever. We do not accept this argument. As we have said already, the verdict is inconsistent with a conclusion by the jury that the individual attempts to suborn witnesses were made out but that the agreement was not. If that was the view of the jury, they may yet have drawn an inference, not logical, but perfectly understandable inference adverse to the appellant, for the reasons already stated in relation to the evidence of D.
Whilst recognising that this was a difficult trial for the Judge and counsel alike, we are bound to state that there were a number of material irregularities, as well as more than one important misunderstanding between counsel, which make it impossible for the verdicts of guilty to stand. The appeal must be allowed and the convictions quashed.
MR. TAYLOR: May I on behalf of the appellant apply firstly for his costs. He is presently legally aided. I would ask your Lordships to grant his costs both of these proceedings and in the court below. If your Lordships were minded to take the view that in some way he brought the matter on his own head, I am in a position to address you briefly what that is not so.
LORD JUSTICE MUSTILL : Were you legally aided throughout, or only here?
MR. TAYLOR: My Lord, no, legally aided here, privately below. Mr. Wright was placed in a difficult position which again perhaps underlies some of this case, in that there were in his school a number of pupils who effectively wanted to oust him —–
LORD JUSTICE MUSTILL : We need not go into any of that. The appeal was allowed on the ground of things having gone wrong at the trial. We have not said a word to suggest he was improperly prosecuted. Nevertheless he has prevailed in the end. Is there anybody here who reflects the public interest who desires to address us to the contrary? No. Very well. You may have your costs. Taxation here.
Index of Newspaper and Journal articles on this blog 
Index of Court Appeals on this blog 
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
 Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/
 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/
 2014 Nov 10 Mirror Paedophile teacher from top private school jailed for sexually abusing boys as young as 9 http://www.mirror.co.uk/news/uk-news/paedophile-teacher-top-private-school-4590717
 Wikipedia The Family – New Age Group Anne Hamilton-Byrne https://en.wikipedia.org/wiki/The_Family_(Australian_New_Age_group)