John Handscomb 21 October 1994 Court of Appeal

This is an application by Mr John Handscomb for judicial review of a decision of the Stevenage Magistrates in which they declined to stay proceedings as an abuse of the process of the court. Application was dismissed and therefore the committal proceedings against Handscomb could proceed.

Redaction

Some court 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.

This particular post has not been redacted

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

Index of Court Appeals on this blog [2]

[1994] EWHC J1021-5

IN THE HIGH COURT OF JUSTICE

CO/2621/93


Royal Courts of Justice, The Strand, London

Friday 21 October 1994

Before: Lord Justice Beldam and Mr Justice Buxton

Regina

v.

Stevenage Magistrates Court

Ex Parte John Handscomb

MISS SARAH PLASCHKES (instructed by Messrs Hilliers, Bedford) appeared on behalf of THE APPLICANT

MR JOHN McGUINESS (instructed by the Crown Prosecution Service, Hertfordshire) appeared on behalf of THE RESPONDENTS


Computer Aided Transcription by John Larking, Chancery House, Chancery Lane, London Telephone No: 071–404 7464 (Official Shorthand Writers to the Court)

JUDGMENT

(As Approved by the Court)

Friday 21 October 1994

LORD JUSTICE BELDAM: Before the court this afternoon is an application by Mr John Handscomb for judicial review of a decision of the Stevenage Magistrates on 1 November 1993, in which they declined to stay proceedings as an abuse of the process of the court.

The facts of the case are that Mr Handscomb, from about 1975 onwards, was said by the complainant, a girl then 10 or 11 years old, to have been a house parent at a children’s home run by the Borough of Islington. The complaint she made against him was that over a period of one or two years, or perhaps even longer, he had indecently assaulted her whilst she was at the home and this amounted to a course of conduct of sexual abuse. On this complaint being made, he was interviewed and two offences were charged against him. The first was indecent assault between 21 August 1975 and 20 August 1976, when the complainant was 10 years old. The second was an offence of indecency with a child between 1 January 1976 and 31 December 1976, when she was under 14 years of age. It was made clear to the justices that if the justices committed for trial the case for the Crown would be that these were specimen charges to represent the course of conduct of which the complainant was complaining.

The complainant had gone to live at the children’s home when she was about 6 or 7 years of age. According to her, the applicant, Mr Handscomb, had come to the home later as a house parent. She said he was called ‘uncle’ by the young people there, and that he worked in four other children’s homes in or around Stevenage. She described how he used to drive a minibus there.

She gave a description of the first incident which occurred at the children’s home when she said that he indecently assaulted her by touching her private parts. She described how matters progressed from there, so that at weekends, when he was “sleeping over” at the children’s home, he would sometimes enter her bedroom and wake her up. More serious indecent assaults took place including incidents of masturbating, simulating sex and oral intercourse.

The complainant said that he had told her that he liked her and that if ever she told anyone, nobody would believe her. She began to believe that nobody would believe her. She thought it was her fault. She was not even sure if what was happening was right or wrong; nor did she know whether it was happening to any other young people. That was her explanation in her statement for not having made any complaint about this course of conduct at the time, or indeed for a substantial number of years afterwards.

Later she had a relationship with a partner by whom she had two sons. That relationship ended and in 1991 she met someone else. She says that at about that time she started to have nightmares about what had happened to her. She eventually told the young man who was then her partner.

It was not until 21 March 1993 that these serious allegations were put to the applicant. He was then 66 years of age. He was in a restaurant in Stevenage. He was seen and recognised by the complainant, who confronted him as the person who had indecently assaulted her all those years ago.

The matter came before the justices of Stevenage on 1 November 1993. Miss Plaschkes, who appeared on behalf of the applicant, submitted that the proceedings amounted to an abuse of the court on the grounds of delay.

Before coming to the basis of her argument on delay, it is helpful to bear in mind the observations of the Court of Appeal in Attorney General’s Reference No. 1 of 1990 [1992] 1 QB 630 , a case in which the delay was nowhere approaching the delay in this case, but which had been referred to the court for guidance on the question of abuse of process, and the extent to which delay in bringing proceedings might be regarded as an abuse of process. After reviewing several authorities which had dealt with questions of delay, Lord Lane CJ, at page 643, said:

“However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris in Connelly v Director of Public Prosecutions [1964] AC 1254, 1304, that ‘generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.’

Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J in Jago v District Court of New South Wales (1989) Crim LR 23 .

In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

In answer to the second question posed by the Attorney General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.”

Those last words are of particular importance in a case of this kind, in which it is well-known that complaints of sexual abuse frequently surface only after long delay. Often the complainant may be able to satisfy a jury that there is good reason for the delay, but it is essentially part of the process of the trial to put all the features before the jury, from which they can judge whether or not that is the case.

Be that as it may, in this case, after making submissions to the justices and after the justices had heard submissions in reply from the Crown Prosecution Service, after the legal representatives for both sides had referred them to a number of cases, including the Attorney General’s Reference No. 1 of 1990 , to which I have just referred, the justices, according to an affidavit from the Chairman of the Bench, retired to consider the arguments. They came to the conclusion that they would not stay the proceedings on the ground of abuse of process because:

“We considered, having regard to the facts and the nature of the offence, that the delay in this case was not exceptional and that a fair trial was in our opinion possible, and the application was therefore not justified.”

They then adjourned the hearing on an application by the applicant that the committal proceedings should await the outcome of this application for judicial review.

It is submitted by Miss Plaschkes, on behalf of the applicant, that in their affidavit the justices betrayed a misunderstanding of the way in which they should treat abuse of the process. She says that the justices ought not to have considered whether the delay was exceptional. Before they considered whether a fair trial was possible, there was only one question for them: had the applicant been so prejudiced by the delay that it was no longer possible for him to receive a fair trial? She has emphasised before us several reasons why a fair trial was no longer possible. First, she points to the statement made by the complainant and the references, within the statement, to a number of witnesses whom she described as “potential witnesses”, for example, welfare officers who visited the home and others who were in charge there. She submits that had these proceedings been speedily brought, those witnesses might have been able to give significant evidence about the conduct of the complainant, whether she was distressed at any time, and what her demeanour was like. She says after this lapse of time nobody will be likely to remember either the girl’s demeanour or indeed, be able to support the applicant by giving evidence that he was a man whose behaviour with small children was exemplary and that they had never observed any kind of over-affectionate behaviour on his part.

Next, she submits that it is now quite impossible for the applicant to recall what the layout of this particular home was like at the time. He might, if this complaint had been made earlier, have been able to take photographs and if photographs had been available, they might have undermined the credibility of some of the complaints; for example, she says, it might have been possible to show from the photographs that some of the events could not have happened.

Further, she says that all the records, which might have been available if these offences had come to light at the time, have been destroyed and are no longer available. There might have been Social Service files, school reports or medical reports, and by looking at these records, it might have been possible to cast real doubt on the statements made by the complainant. None of those is available to the applicant.

She points to the allegations that some of the assaults took place at the weekends, and she submits that the applicant might have been able to show that he was elsewhere at the time, or that he was not at the home on the occasions when the complainant alleges the offences took place. She says that the applicant’s opportunity to establish that he was not there, at the appropriate time, would have been much better if this complaint had been made before so many years had gone by.

All these points Miss Plaschkes has made with considerable force. But the question is not whether we consider that there is an abuse of process here because of delay and that a fair trial can no longer be possible; the question for us is whether it was open to the justices to conclude that a fair trial was possible. In spite of Miss Plaschkes’ arguments, she has not convinced me that the justices approached this case wrongly, that they took into account any matter they ought not to have taken into account, or failed to take into account the matters she has urged upon us today. I am unpersuaded that they misdirected themselves in any way about the issue which they had to consider. Miss Plaschkes has to show that no reasonable Bench of Justices, faced with the complainant’s evidence, faced with the reasons for undoubtedly a very long delay, and applying the test laid down in the Attorney General’s Reference No. 1 of 1990 (supra), could have come to the conclusion that a fair trial was still possible.

For my part, I consider that many of the matters which Miss Plaschkes has so forcefully made are just the kind of matters which Lord Lane had in mind at the end of the passage in his judgment to which I have referred when he said:

“[it] should be borne in mind, the trial process itself, should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.”

Generally speaking, those considerations apply to this type of case. For those reasons I would dismiss this application.

LORD JUSTICE BUXTON: I agree with my Lord’s view of this matter and with the order that he proposes.

I would venture to add only one thing. I regard it as a matter of considerable regret that the effect of these proceedings has been that in a matter where delay is already strongly complained of, the justices were seized of this case on 1 November 1993 and it is only now resolved that the matter should go forward. In the application and affidavit of the applicant, setting out the background and grounds of the matter, the only reference to the proceedings before the justices is one sentence: “On 1 November 1993 the justices gave no reasons for refusing my application; they simply stated that the case was not an abuse of process of their court.”

We now know from the affidavit, which was filed by the respondent after leave to move had been granted on the basis of the application, that full argument was addressed by both sides, including counsel instructed on behalf of the applicant, before the magistrates. We have been able to deduce from what has been said to us today that the magistrates were taken to, and had the advantage of seeing, all the witness statements in this case. I shall not comment further than to say it might have been more helpful if the single judge who had to consider this matter had been given more detail of what happened at the Magistrates’ Court. If that had been done in the application, which, in my judgment, it should have been, it is possible that these proceedings might have taken a different course.

Save for that point, which I add to what has been said by my Lord, I content myself by saying that I entirely agree with everything that has fallen from him.

MR McGUINESS: My Lord, the applicant is not legally aided. I therefore apply for costs. These proceedings have been in abeyance now for almost a year, pending this application.

LORD JUSTICE BELDAM: Miss Plaschkes, what do you say?

MISS PLASCHKES: My Lord, my application is that costs should remain where they lie. Mr Handscomb is not legally aided. He is a relatively old man of 67. Although the application has failed, I take on board my Lord’s remark a moment ago about the arguments. Nevertheless, leave was granted. I hope my Lords thought there was an arguable case to that extent. I would ask the court, in the court’s discretion, not further to burden Mr Handscomb with the costs of the Crown.

LORD JUSTICE BELDAM: We have listened to what you have said, but we think that costs should follow the event. We think that you should pay the costs of the respondent.

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
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
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One Response to John Handscomb 21 October 1994 Court of Appeal

  1. Pingback: John Handscomb 21 October 1994 Court of Appeal — cathy fox blog | circusbuoy

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