Survivor v The Director of Public Prosecutions 25 Jan 2001 High Court (Aston Villa FC)

This was an application to challenge the decision of the CPS to stop a prosecution.

The alleged abuser was a scout for Aston Villa Football Club. The offences were between 1971 and 1977. It also mentions abuse at Forde Park.

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 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.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is unredacted by cathy fox blog

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

Index of Court Appeals on this blog [2]

[2001] EWHC 58 (Admin)

CO/2468/2000

IN THE HIGH COURT OF JUSTICE


Royal Courts of Justice

Strand London WC2

Thursday, 25th January 2001

Lord Justice Brooke and

C

v.

The Director of Public Prosecutions


(Computer-aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 190 Fleet Street, London EC4A 2AG Telephone No: 0208-421 4040/0208-404 1400 Fax No: 0171-831 8838 Official Shorthand Writers to the Court)

MR R BLYTH (instructed by Woollcombe Beer Watts, County Chambers, 75 Queen Square, Exeter, Devon EX4 3RX) appeared on behalf of the Applicant.

MR P J L LAMBERT (instructed by Crown Prosecution Service, Avon Branch Office, Froomsgate House, Rupert Street, Bristol BS1 2QJ) appeared on behalf of the Respondent.

JUDGMENT

(As approved by the court)

Thursday, 25th January 2001

JUDGMENT

1. LORD JUSTICE BROOKE: This is a renewed application by C for permission to challenge the decision of the Crown Prosecution Service which was formally given to the Bristol Magistrates’ Court on 3 November 1999, deciding to stop a prosecution of the proposed defendant for five charges of indecent assault and two charges of rape of a man, between 1971 and 1977.

2. In the formal letter, it was said that the reasons for stopping the case were as follows:

“The defendant is aged 86 years with no previous convictions or other complaints against him. The offences are 20 years old. The indecent assault charges could not be proved as there was no ‘assault’ and the 2 x buggery charges are no longer criminal offences as the complainant was 19/20 yrs old at the time. The admissions are made in an interview without a solicitor and [do not appear in the transcript of the interview] until page 62. The total of those factors lead me to decide it is not in the public interest to proceed.”

3. The applicant, who was born in [redacted] 1953 and is now a man of 47, wrote to the Chief Crown Prosecutor expressing concern about this decision, and received a reply that the case had been carefully reviewed by a Senior Crown Prosecutor:

“Several considerations arose from that review. First, the proposed defendant is now aged 86 and apparently in a poor state of general health. Secondly, these alleged incidents took place some 20 years ago when, as I understand it, you were 19/20 years old. Whilst at that time acts of buggery would have constituted criminal offences because you were under 21, the law has since changed. The prescribed age is now 18.

Therefore, conduct of a similar nature amounting to buggery would not now be prosecutable.

So far as the indecent assaults were concerned, they could not be prosecuted because there was no true assault. In any event, having regard to the age of these matters and the other factors set out above, it would not have been in the public interest to proceed even if an assault could had been established.

I hope I have been able to explain the reasons why proceedings against the proposed defendant could not be continued.”

4. Before reading the response to that letter, I must say something about the contents of a statement made by the applicant to the police, of which we have a draft, dated 11 April 1999. He explains that at about the age of seven or eight, he had to go into care. He was resident at three Social Services establishments, and was then at different schools. He was then sent to Forde Park School, which was residential accommodation run by Devon Social Services. He says that he was subjected to physical and sexual abuse by staff there. He then described that how when he left the school, he had been given career advice which told him to keep up his football as he showed promise and that he had the potential to become a professional footballer. His statement describes how, in the early 1970s, he sent a letter to Aston Villa Football Club asking for a trial, and these were the  circumstances in which he came in touch with their local football representative or scout, the proposed defendant.

5. He describes how he first came into contact with the proposed defendant and of his great desire to become a professional footballer, and he describes an incident when there was a conversation when he was back in the proposed defendant’s flat, “and he said to get into professional football I had to do things for him.”

6. The statement goes on:

“I asked whim what he meant and he said that this would be ‘satisfying’ him by [redacted]; he told me not to worry about my age (I was 19 —19 1/2 at the time) as he said this would be all right. I was quite shocked by what he had said but I was very anxious to get a trial and get into a footballing career and genuinely believed he could help me. I left that night having declined his suggestion.”

7. The statement continues to the effect that there were prospects, he believed, of playing football for Manchester United, who were said to be very interested in him. He describes how various acts of an indecent nature took place. At one stage the statement reads:

“He told me things like I would feel better if I did and I declined to participate and left.”

8. That was a refusal to take part in an [redacted].

“I was feeling very used and only had thoughts of furthering my football career with his help and guidance.”

9. And so the matter went on. Acts of buggery were alleged, and the main thrust of the statement is that he was very influenced by this man. He feels that he was manipulated to his ends, and he was doing things that, under normal circumstances, he would not have done as he had no other relationship with the man, sexual or otherwise. He describes what he thinks has been the permanent effect of the way he was treated by a man with whom, although at that stage he was an adult, there was, to a certain extent, a relationship of trust.

10. So it came about that in his letter of 13 December 1999, which was written about eight months after he first came forward with these allegations, he said that it was his understanding that on arrest the proposed defendant made admissions in relation to the allegations he had made. He said he would like a detailed account of the ruling that allowed this man to walk out of the magistrates’ court a free man. He then raised four particular points, including the suggestion that the CPS might think that senior citizens were above the law. He expressed concern that the criminal law might be working to ‘time bar’ rules. In particular he said:

“Don’t you think the public would be interested to know that their sons with aspirations of becoming the next Michael Owen, are at risk from the proposed defendants of this world? This man took young boys (sic) dreams and aspirations and tore them to shreds and made them dirty. Would it be of interest to the public that CPS won’t be pursuing the conviction of this man?”

11. The Crown Prosecution Service wrote a short letter in reply. They did not address that fourth point at all. In short, a reference was made to their earlier letter, and the writer said:

“Clearly, ‘senior citizens’ are not above the law. In this case, the proposed defendant is 86 years old, the alleged offences more than 20 years old; offences of that nature would not now be prosecutable, and finally, the proposed defendant is apparently infirm and in a poor state of health.

In order to prove an assault in these circumstances, it will be necessary to prove beyond reasonable doubt that the approaches made by the proposed defendant were without consent. This standard of proof cannot be attained.”

12. There was a delay in bringing these proceedings, but Mr Lambert for the Crown says that he wishes to take no point in that delay. In my judgment it is inappropriate for the court to take a point.

13. Both parties to the proceedings are very well aware of the very high hurdle which this court places before applications for judicial review of decisions by the Director of Public Prosecutions can be judicially reviewed. In R v Crown Prosecution Service, ex parte Hitchins ( 13 June 1997 ), after giving the judgment of the court in two such applications which were dismissed, I ended by saying this:

“It would be wrong to leave [these applications], however, without repeating what Staughton LJ said 18 months ago in this court in R v Crown Prosecution Service, ex p Waterworth (unreported, 1st December 1995 ):

‘Parliament has entrusted the decision of who should be prosecuted and for what offences to the Crown Prosecution Service under the supervision of the Director of Public Prosecutions and the Attorney-General. We can only interfere if the decision is wholly irrational or perverse or absurd or such as no reasonable Crown Prosecutor could make.'”

14. My judgment continued:

“As recently as 1975 Lawton LJ said in Selvarajan v Race Relations Board [1975] 1 WLR 1686 at p 1697 that so far as he knew the courts had never interfered with the Director’s discretion. In Elguzouli-Daf v Commissioner of Police for the Metropolis [1995] QB 335 Steyn LJ observed at p 346 that the Attorney-General, and through him the Director of Public Prosecutions are accountable to Parliament for what they do, or omit to do, in relation to criminal proceedings, and that the scope for judicial review proceedings is very limited indeed. We unreservedly agree, and we hope that the frequency with which this court is now dismissing applications of this nature (see, for example, ex p Waterworth (supra); ex p Jennifer Jones (unreported, 10th June 1996 ); ex p Burke (unreported, 12th December 1996 ; and now these two cases) will be fully taken into account by those contemplating similar challenges in the future.”

15. There is, therefore, a very high hurdle. That the high hurdle can be surmounted in very rare cases is evident from the judgment of this court in R v The Director of Public Prosecutions, ex parte Treadaway , which was given in the following month on 31 July 1997 by Rose LJ and Jowitt J, when the court did quash a decision by the Director of Public Prosecutions in what it described as a very unusual case indeed. The unusual feature of the case was that a High Court judge had heard evidence from material witnesses on both sides and had reached a conclusion of assault by a high standard of proof, giving his reasons in detail. This court considered that that judgment required a most careful analysis if a decision not to prosecute was to be made.

16. On the present occasion, I remind myself that all we are concerned about is whether we should grant permission to C to apply to the full court for judicial review; whether his case is properly arguable or whether it should be shut out now and he is not given the opportunity to argue it. Nothing that this court says at this stage can possibly take the place of a judgment of the full court following reasoned arguments on both sides.

17. Mr Blyth is aware that his client faces formidable hurdles to get over, but in my judgment this is a case which demands a further scrutiny which this court will be able to give it on a full application for judicial review.

18. The Crown Prosecutors, operating at the end of the 20th century, were clearly taking into account the fact that the law had changed and that attitudes had changed, and although the consensual act of buggery with a man of 19 was a criminal offence at the time when it is alleged, and there is some evidence of admissions, it is no longer a criminal offence. In those circumstances they thought it would not be in the public interest to prosecute, particularly in the light of the proposed defendant’s age and failing health and the unlikelihood of a jury being willing to convict.

19. What it appears to me to be arguable is that the Crown Prosecution Service has failed to take into account the legal ingredients of consent in a sexual case of this kind. Even between 1971 and 1977 the offence of assault with intent to commit buggery was a very serious criminal offence. If there was any prospect of the Crown succeeding to the criminal standard of proof in proving, without supporting evidence, that the acts of which C makes complaint did happen, and that they did happen without consent (and the onus would be on the Crown to prove the absence of consent), that would be a powerful consideration which would have to be taken into account by a careful prosecutor, and there is no evidence that it was taken into account.

20. One of the difficulties is that the law as practised in the criminal courts up and down the country every day treats consent as a very simple concept. The case of Olugboja [1982] 1 QB 320 has been widely reported, a judgment of Dunn LJ, following the amendment to the Sex Offences Act in the middle of the 1970s, but subsequent decisions of the Court of Appeal on that issue have not been reported, except when they raise points which are of interest to academic lawyers or which may appear to raise interesting technical questions as to whether certain types of fraud may vitiate consent. I addressed some of these issues in the judgment of the Criminal Division of the Court of Appeal on 10 October 1996 when I was sitting with McCullough J and Judge Rivlin QC, both of whom have vast experience in the criminal law. Indeed McCullough J for many years served on the Criminal Law Revision Committee.

21. The reserved judgment of the court in the case of McAllister , which is very briefly summarised in 1997 Criminal Law Review at page 233, moved the debate forward from the judgment of Dunn LJ in Olugboja . I am going to quote a little bit of my judgment in that case so that it will be available to the full court when it considers this appeal. I said this:

“The legislature in many other common law jurisdictions (in Australia, New Zealand, Canada and the United States) have now given the courts detailed statutory guidance as to what constitutes consent, and what are the circumstances which may vitiate consent, as the very recent Law Commission Consultation Paper No 139 has shown, but although that guidance embraces a lot of the common law rules we also use in this country to direct juries, we do not have any guidance of this kind in a codified form.

It is against this background that what Dunn LJ said in Olugboja falls to be considered, and he was pointing out little more than the obvious. In the absence of statutory guidance Parliament has been content to leave it to the jury, or to the magistrates, as finders of fact to decide whether there was or may have been consent to activities of a sexual nature between two human beings when each had the intellectual capacity or maturity to take decisions of this kind for themselves. Who they are, whether they have met each other before, whether they know each other well, whether they are or have been related in marriage, and the nature of their relationship to each other, are all matters which the factfinders will have to consider. Dunn LJ was able to draw on his long experience at the bar and on the bench in the Family Division when he observed that consent covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other.

In the unreported case of Mohammad Zafar (92/2762/W2, 18th June 1993), this court commended a direction to the jury by Pill J in a case involving a charge of rape where a man and a woman had lived together for a long time as husband and wife. In his charge to the jury Pill J had said:

‘In considering whether it is proved that the complainant…did not consent, bear in mind when considering the evidence the relationship between them. When people enter into long-term relationships/marriage either within or outside marriage they usually contemplate regular sexual relationships. In most partnerships, even not entirely happy ones, there is often a give and take between the partners on sexual as on other matters. A female partner may not particularly want sexual intercourse on a particular occasion but because it is her husband or her partner who is asking for it she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner, is still a consent.

However, a woman is entitled to say “no” and to refuse to consent even to her husband or long-term partner.

There is a dividing line between a real consent on the one hand and a lack of consent or mere submission on the other. It is for you to decide whether the absence of consent is proved in this case applying your combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of the case.'”

I went on:

“It is considerations like this a jury will have to take into account, and in the absence of statutory guidance judges are left to make it clear to juries, without incanting ritualistic formulae, that they have to decide as a question of fact whether in all the circumstances there was or may have been a real consent or that the defendant may have honestly, if mistakenly, believed there was. In the absence of obvious pointers such as a fraud (of a particular type) or threats of violence this may often require quite a subtle understanding of human nature, but in the last resort it will be a decision for the twelve members of the jury to make and there will be a limit to the help a judge can reasonably give them.

The focus of the inquiry in all these cases is based on the sexual autonomy of the complainant. The circumstances of a possibly reluctant consent may be infinitely varied and on each occasion the jury has to decide whether an alleged agreement to a sexual act may properly be seen as a real consent or whether it should be regarded as a submission founded on improper pressure which this particular complainant could not reasonably withstand from this particular defendant.

Whether the charge be one of rape or one of indecent assault on a complainant over the age of 16, the governing principles are the same, although in the latter case it is likely that the more humiliating or painful the assault, the more willing a jury may find that no consent was in reality given.”

22. As I have said, the applicant faces formidable problems in this case. There are formidable evidential problems because it is only his word. There is no supporting evidence except possibly, and we do not know the quality of them, certain admissions. And there are formidable problems relating to the burden of proof.

23. But all these are matters which, in my judgment, the full court ought to consider on the substantive application. In particular it should consider whether there is any evidence that the Crown Prosecution Service took into account the matters of law to which I have just drawn attention in this judgment.

24. As Mr Blyth has said, there was no sign in the original decision that there were any evidential problems in this case. The decision was taken on public interest grounds, and if the proposed defendant is ill and of failing health, then it may be that there was an overwhelming case on public interest grounds, but in my judgment the absence of any evidence on the material currently before the court that the Crown Prosecution Service took into account the very important factors which C set out as item four in his letter to the Crown Prosecution Service, is a matter which ought to be considered carefully by the full court, which should be presided over by either the Lord Chief Justice or Rose LJ or Kennedy LJ.

25. For those reasons, whilst not wishing to suggest that there is not force in some of the other submissions which Mr Blyth has made, which no doubt he will repeat to the full court, I would grant permission.

26. MR JUSTICE MORISON: I agree. If the case against the proposed defendant were put to a jury, it seems to me that the real and sole, but important, issue would be consent. The question before this court is whether, on the material before them, the Crown Prosecution Service have lawfully, sensibly and rationally concluded that a prosecution should not proceed.

27. Mr Lambert on behalf of the Crown Prosecution Service accepts that their stated reasons for not proceeding were open to debate and criticism, and ultimately was minded to accept, though I hasten to say not formally, that this was a case which could properly be considered by the full court. I regard the position of Mr Lambert on behalf of the Crown Prosecution Service in this court as entirely proper at this stage.

28. I would wish to emphasise that by giving permission, this court is, of course, not second guessing or trying to second guess the outcome of the full court’s consideration of this matter in due course.

29. I agree with everything that my Lord has said.

30. LORD JUSTICE BROOKE: It is, in every sense of the word, desirable that this substantive hearing should be expedited, but we will have to consider the timetable between now and then. The application should be formally served on the Crown Prosecution Service, who already has it, within seven days. It may be that they will accept what they have received so far as formal service. I do not know.

31. MR LAMBERT: We so accept, my Lord.

32. LORD JUSTICE BROOKE: How long would you like to put in any evidence in reply?

33. MR LAMBERT: I would seek 21 days.

34. LORD JUSTICE BROOKE: 21 days. That seems to be reasonable.

35. MR BLYTH: Obliged, my Lord.

36. LORD JUSTICE BROOKE: To be listed on the —how long is this going to take? A day?

37. MR BLYTH: My Lord, we agree that it will probably last a day.

38. LORD JUSTICE BROOKE: Yes. To be listed for a day on the first open day more than seven days after the respondent’s evidence has been filed.

39. Very grateful to you both.

40. MR BLYTH: I am very grateful. My Lord, would you order that the applicant’s costs be taxed in accordance with Regulation 107?

41. LORD JUSTICE BROOKE: If it is a permission application, do I need to do it now? There is going to be a substantive application.

42. MR BLYTH: There is.

43. LORD JUSTICE BROOKE: You will get a full order then.

44. MR BLYTH: My Lord, there is only one other matter, and that is that I was approached by a gentleman of the press who wanted to know whether there are any extraordinary reporting restrictions on this case. My view is, of course, that the proposed accused should not be named. It seems to be a matter for my client whether he chooses to disclose his own identity, but I thought it right to mention the matter to the court in case there were any matters which I had not taken into account which the court thought that the press should be alerted to.

45. LORD JUSTICE BROOKE: Do you have any submissions to make about that, Mr Lambert?

46. MR LAMBERT: My Lord, no. If there is no intention to publish the name of the potential accused man, then —

47. LORD JUSTICE BROOKE: It seems satisfactory to refer to the complainant by the letter C or something of that kind.

48. MR BLYTH: Yes.

49. LORD JUSTICE BROOKE: Subject to that, and if the prospective defendant is not named, I hope that we have succeeded in getting the balance right between the rights of the press and a certain amount of need to not to publicise names if it is not necessary to do so.

50. MR BLYTH: My Lord, I am sure the press —

51. LORD JUSTICE BROOKE: Let me make that direction clear. We direct that there will be no report of this decision which will identify the name of the prospective defendant and that the prospective applicant should be called by the name C throughout. When I come to proof the transcript, please remind me of that. Very well.

52. I direct that it is transcribed and available to the full court.

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.
  • One in Four [C]
  • 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]

Links

Advertisements

About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
This entry was posted in cathy fox blog, Child Abuse, Child sexual abuse, Childrens home, Court, Devon, football, Schools / teachers, South West and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to Survivor v The Director of Public Prosecutions 25 Jan 2001 High Court (Aston Villa FC)

  1. Pingback: An Index and Timeline of Court and Court of Appeal Documents on Cathy Fox Blog | cathy fox blog on child abuse

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s