Fenwick, Chamberlain, O’Hanlon, Jones and Fisher 8 Mar 1978 Court of Appeal (Police)

The Kelland Inquiry was the third Inquiry by Police into police corruption in the seventies, see Cathy Fox Blog The Fall of Scotland Yard [4] and Spectator Police and the pornographers [3]

Deputy Assistant Commissioner Gilbert Kelland’s Inquiry into corruption of over a dozen Soho and Mayfair detectives led to three trials, and the dismissal of Commander Wallace Virgo, sidekick Moody and ex Commander Kenneth Drury the most senior Scotland Yard men then brought before the courts as well as several others and the discreet dismissal of 20 other detectives.

This is an appeal by George Edward Fenwick, Michael Leonard Chamberlain, Charles Edward O’Hanlon, David Cyril Jones and Peter John Fisher who were tried in Nov and Dec 1976.

Fenwick, Chamberlain and O’Hanlon sought leave to appeal against both conviction and sentence. Jones and Fisher applied for leave to appeal against sentence.

Porn sellers were concerned were Bernie Silver, James Humpheys, Big Frank Misud.

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]

[1978] EWCA Crim J0308-1

Nos. 343/R/77

IN THE COURT OF APPEAL

Wednesday, 8th March 1978

Lord Justice Geoffrey Lane

Regina v

George Edward Fenwick

Michael Leonard Chamberlain

Charles Edward O’Hanlon

David Cyril Jones

and Peter John Fisher


(From the Shorthand Notes of Walash, Cherer & Co. Ltd., 55-57 Clifford’s. Inn, Fetter Lane, London, EC4A 1BU. Telephone Number: 01;242 7057. Shorthand Writers to the Court.)

MR. P. WEITZMAN Q.C. and MR. T.J. LANGDALE appeared on behalf of the Applicant Fenwick

MR. M.H. SELF Q.C. and MR. R. GREY appeared on behalf of the Applicant Chamberlain.

MR. W.M. HOWARD Q.C. and MR. J.G. BOAL appeared on behalf of the Applicant O’Hanlon.

MR. J.G. BOAL appeared on behalf of the Applicant Jones.

MR. S.N. PARRISH appeared on behalf of the Applicant Fisher.

JUDGMENT

(As approved by judge)

LORD JUSTICE GEOFFREY LANE: These applicants stood trial at the Central Criminal Court before Mr. Justice Mara-Jones and a jury, charged with series of offences involving corruption. the trial lasted some 33 days in November and December 1976 and ended on 22nd December that your with the following results: all the applicants were convicted by unanimous verdicts on count 1, conspiracy to accept bribes corruptly. On the individual counts which were laid is the indictment thereafter, under section 1 of the Prevention of Corruption Act 1906 – those counts comprised the rent of the indictment – there were the following convictions, each of them by a majority of eleven to one: the applicant Fenwick was convicted on four counts, namely counts 5, 9, 10 and 11; the applicant Chamberlain on five counts, namely counts 11, 13, 17, 19 and 21; O’Hanlon on three counts, namely counts 11, 18 and 21; Jones on three counts, namely counts 2, 4 and 9; and Fisher was convicted solely on count 1, that is the conspiracy count.

Tho sentences were as follows: Fenwick on count 1 was sentenced to ten years’ imprisonment and was sentenced to two years on each of the other four counts on which he was found guilty, those two-year sentences to run consecutively between themselves, but concurrently with the ten years, giving him a total term of ten years’ imprisonment; Chamberlain was sentenced to eight years on count 1, to twelve months on each of counts 11 and 13 and to two years each on counts 17, 19 and 21, again those individual sentences on the substantive counts being consecutive amongst themselves but concurrent with the eight years, making his total sentence eight years; O’Hanlon was sentenced to seven years on count 1 and to two years on each of the other counts, dealt with is the same manner, making seven years in all; Jones was sentenced to seven years on the first count and to two years on each of the other counts dealt with in like manner, making seven years is all in his case; and Fisher was sentenced to four years’ imprisonment on count 1.

Fenwick, Chamberlain and O’Hanlon seek leave to appeal against both conviction and sentence it is with those three applicants that this part of the judgment of the Court is dealing. Jones and Fisher apply for leave to appeal against sentence only.

All these applicants were police officers and all the charges arose out of their activities as members, past or present so to speak, of the Obscene Publications Squad, the headquarters Of which was at New Scotland Yard. Fenwick was a Detective Chief Inspector in that squad from September 1970 to January 1972, during which time he was very largely in control of the squad. Chamberlain was a Detective Constable in the squad from August 1970 until about August 1973, when he retired from the Metropolitan Police Force. O’Hanlon was a Detective Sergeant is the squad from 14th Jane 1971 to January 1973, but was absent on a criminal inquiry in Australia for some two months during that period. Jones was in the squad from September 1966 to November 1967, first as a Detective constable and later as a Detective Sergeant. Fisher was a Detective Sergeant in the squad from April 1969 to the autumn of 1971.

Although, as I said, the headquarters of the squad was at New Scotland Yard, the main store where the seized pornographic material with which the case was very largely concerned was kept, was in the basement of the Forensic Science Laboratory in Holborn.

The undisputed background to the case, stated as briefly as can be, was this. The squad was very small. There were only some fourteen officers or thereabouts engaged in it at any one time, of whom the Chief Superintendent and one of two Chief Inspectors ware, to all intents and purposes, engaged full time officially on other duties not connected with the squad. To a large extent the squad ware a law unto themselves.

So far as these applicants were concerned, the trouble really started for them when Sir Robert Mark become commissioner of the Metropolitan Police. Up to that time the policy had apparently been – and no criticism is made of it –to take no action against booksellers of pornographic material – who were referred to throughout the trial as “pornographers” to save time, and we too shall refer to them as such – except as a genuine complaint by a member of the public or else in circumstances where the Director of Public Prosecutions had himself ordered or suggested that each steps should be taken. But in late 1972 that system was changed and raids began to be made upon suspected pornographers or their stores on the initiative of the police, not stimulated by either the public or the Director of Public Prosecutions.

What is more important is, the investigation of this type of offence was then taken over by a small squad of uniformed officers under a Chief Inspector called Hay and they began to investigate the problem of pornography in the west End, which was indeed a problem. So in 1973 the Obscene publications Squad as it had been up till that date, manned by plain clothes officers, was wound up and the uniformed branch took over.

After that a whole series of complaints came to light to the effect that these pornographers in the West End had, over the years been making regular payments to officers who were employed on the Obscens publications Squad, in consideration of those officers warning the pornographers about intended raids and in consideration of the officers giving preferential treatment in other ways to those who paid the money.. There had been examples in this case, for instance, of an occasion where It was alleged that Chamberlain, assisted by O’Hanlon, with Fenwick also involved, cooked the evidence before the Magistrates Court in London in respect of a gentleman called Murrin, and it was alleged that the evidence was falsified by Chamberlain because he had received, through an intermediary, the sum of £1,000 from Murrin for the price of that activity. That is the sort of evidence which was before the jury.

There was a code word to warn the Pornographers that a raid was likely to be in the offing: “W.H. SMITH” was the rather unkind choice which was made for that purpose.

The other chief allegation with which we are concerned in these applications was that from time to time these officers, or some of them, would take a Pornographer to the store in Holborn, where the seized material was kept, having taken the precaution of equipping the Pornographer in question with a C.I.D. necktie to make It look as if he was one of the force, and the Pornographer in question would be allowed to inspect the goods and to buy seized pornography so that ho could sell it at a profit.

In 1972 there was an inquiry instituted as a result of certain allegations which had been made in the press. Detective Constable Collins was is charge of that inquiry. It elicited no evidence of corruption and the general view seems to have been, at least amongst the police officers, that the “Collins Inquiry’ was a whitewashing exercise which was of little moment or of little value. That is the impression one gets; It may be right, it may be wrong.

Eventually inquiries were taken over by the A. 10 Branch, which of course is the branch which investigates complaints against members of the Metropolitan Police Force. It is really as a result of the inquiries which members of that branch made that those charges were laid against the applicants.

There was a formidable body of evidence called on behalf of the prosecution. On the one hand there were the pornographers who said, if they were to be believed, that they had been paying money for years to keep in business without being molested by the police, without having their valuable store of pornographic material seized and taken to Holborn to be stored or shredded, as the case may be. Ex hypothesi they were all men of dubious character, many, if not all, of them had convictions of one sort or another and there was every possible reason for them to blacken the police If they possibly could and as doubt each of them would be tempted to blacken the police unjustly and with lies if he could. It was on their evidence that the specific charges – all the counts except count 1 – were based.

On the other hand there was the evidence of four police officers who had themselves served on the Obscene Publications Squad, who spoke as to their knowledge and experience of what had gone on whilst they were in the squad. They spoke as to regular payments being made by these three applicants with whom we are dealing, Fenwick, O’Hanlon and Chamberlain and they spoke about payments being made to other members of the squad on a more or less regular basis. This evidence was directed to count 1. It did act deal specifically with any of the allegations, which have been called the substantive counts, which appeared later is the indictment

It was of course evidence of great weight, because, as the learned Judge pointed out in commenting upon it, it required a good deal of courage for these officers to come forward and give evidence, which would have the side effect, at any rate, of blackening their own good name and of showing, however unwilling they Bight have been, that they themselves were involved in this terrible story of corruption.

The importance of count 1 scarcely needs emphasising. It could have been, no doubt, a possibility that the individual substantive counts really told the whole story, namely that a series of officers had given way to the undoubted temptation, which must present itself to every police officer who has his job in the West End of London the temptation to make easy money. The importance of the conspiracy count was to show, if it was substantiated, that this went further than a series of individual officers behaving in an illegal and corrupt manner, but to show, if It was to be believed, that this was a centrally operated system of even greater gravity than a series of individual officers receiving money.

The first officer who gave that evidence was Detective Inspector Kilkerr. He spoke about being told by Fenwick, when he first arrived on the squad, not to apply for a search warrant without getting, so to speak, clearance either from Fenwick, O’Hanlon, Fisher or Chamberlain. On the very first Friday night said Kilkerr, Fenwick gave him a handful of crumpled Treasury notes, despite his protests. This continued each week. It was about £20. Later the payments were takes over by Fisher and later still by O’Hanlon, who had been rather more open in his payments than either Fenwick or Fisher. It seems that Kilkerr left most of the envelopes containing these amounts of money in his drawer in the office of the Obscene Publications Squad and he was rebuked by O’Hanlon for running that sort of risk on the ground that if anybody had carried out a snap search of the officer’s desk, it really would have been fatal to every one if these envelopes and contents had been found.

Detective Sergeant Munro gave similar evidence and so did Detective Sergeant Warren. Is said ho had been paid by Jones amongst others. Detective Sergeant Tomlin was the fourth officer concerned. He was paid regularly by Jones or Fenwick or sometimes by a man called Tilley, who does not appear in this particular series of applications.

The Pornographer evidence was given by a series of men. There was Wallace and Reynolds who was Wallace’s partner. They spoks to the incidents alleged in counts 2. 9 and 10; Mason and his shop manager or friend, a man called Vinn, who spoke to counts 4 and 5; Gibbons and his partner Murrin, who spoke to counts 11 and 21; Nicholls and Cox, who spoke to count 13; and gentleman who were called Mr. A and Coomber, who spoko to count 17, 18 and 19.

In addition there was one witness who did not fall into either category, either a Pornographer accomplice or police accomplice, a man called Mr Martyn-Woodnutt. who was in fact a solicitor in the office of the Director of Public Prosecutions. He case into the picture in such a way that his evidence in the and turned out to be of considerable importance. He had been in charge of prosecuting the case against Murrin, whose name I have already sentioned. In that case the prosecution before the Magistrates had foundered badly and resulted in Murrin being acquitted, because Chamberlain had, according to Mr. Martyn-Woodnutt, suddenly and without warning gone back on the proof of evidence which he had given for the purpose of the prosecution.

I need not go into the details of the prosecution against Murrin. It was based on observation in Soho when Murrin and another man had been seen peering into the boot of a car. The suggestion was that Murrin had been inspecting pornographic literature with a view to buying it and he had been charged with the attempt. The evidence according to an affidavit which was sworn by Chamberlain was almost overwhelming against Murrin. But when it came to the hearing before the Magistrates, as I said, the applicant Chamberlain gave evidence which in effect exonerated Murrin from suspicion and resulted in his acquittal. There was further evidence given that through the efforts of Gibbons, who acted as an intermediary, money was paid – £1,000 no less – to Fenwick, which no doubt would be distributed, some of it getting to Chamberlain as a reward or as inducement for him to change the evidence in the way that he did.

The importance of Mr. Martyn- Woodnutt’s evidence was this. First of all as against Chamberlain, that if he was to be believed, Chamberlain, for no apparent reason, changed his evidence as I have indicated, so that Murrin was acquitted. Although the applicant O’Hanlon was not in Court to hear Chamberlain give that evidence, according to Mr. Martyn-Woodnutt, after the incident he had a conversation both with Chamberlain and O’Hanlon outside the Court is which he asked what on earth had happened. If he was to be believed, that conversation made it perfectly plain that both the officers were in agreement and that each of them had been equally reaponsible for what happened. That evidence, if it was believed, was very important corroboration from an untainted source, untainted sources being difficult to find in prosecutions such as this.

We have already pointed out the way in which the police were able to help the Pornographers in return for the money which, it was said, the Pornographers handed to the police. There were two witness called by the prosecution, both of then Pornographers. The first was a was called Mason, who plainly had made a great deal of money out of this business and spent most of his time, for tax purposes, living outside the United Kingdom. He was involved in counts 4 and 5. He gave evidence, amongst other things, of being taken to the Holborn stores by Fenwick and 0’Hanlon, The second man was Wallace who appeared in counts 9 and 10. He also gave evidence of corrupt payments.

That is the background against which this case was played out, and I now turn to the complaints which are made about the trial in respect of each of the applicant with whom we are now concerned.

First of all with regard to Fenwick, the first complaint made by Mr. Weitazman arises from a passage in the summing up at page 11 in Volume 2, and that deals with the way in which the Jury were told to view the evidence on each of the particular counts later se, which runs as follows: “You must consider the evidence against each defendant on each count separately. If yon should find a defendant guilty of one charge, that does not mean that you must finding guilty on any other charge that may be laid against him. However, if yon find there is such a similarity between the evidence on a count where yon find a man guilty and other counts, so as to indicate a systematic course of conduct on the part of that individual defendant, that fact may assist you in coming to a conclusion on that other count or counts. I hope you follow as Mr. Weitzman makes two complaints about that. First of all he suggests, although not with very such enthusiasm, that the Judge should more properly have directed the jury that each individual count did have to be considered separately and that it would be improper for the jary to use the evidence on count 2, for example, when considering counts 3, 4, 5 and so on, The second submission, which he put with sore enthusiasm and more forcibly, was that the Judge there failed to carry out the duty which this Court sad the House of Lords said a Judge in these circumstances should carry out, namely explaining to the jury in much greater detail than he did the sort of similarity between the various counts which must be present before a jury can properly use the evidence of one count when considering guilt or innocence on the others.

We were referred to various passages in the decision of this Court in R. v. Scarrot 65 Cr. App. R. 125 , It is submitted by Mr. Weitzman that the Judge ought to have given to the jury in this case the sort of direction which the learned Recorder gave to the jury in Scarrot’s case.

We were referred to a passage at page 128 of the report, which reads: “To be admissible, the evidence by Its striking similarity has to reveal an underlying link between the matters with which it deals and the allegation against the defendant upon the count under consideration. Subject to one comment, which really goes only to choice of language, wo would respectfully accept the way is which the general principle was put by Lord Salmon in Boardman’s case (1994) 60 Cr. App. R. 165 , 188. Lord Salmon puts the general principle as follows: ‘Whether or not evidence is relevant and admissible against am accused is selely a question of law. The test must be: is the evidence capable Of tending to persuade a reasonable jury of the accused’s guilt am some ground other than his bad character and disposition to count the sort of crime with which he is charged? In the case of an alleged homosexual offence, just as in the case of an alleged burglary, evidence which proves merely that the accused has committed crimes in the past and is therefore disposed to commit the crime charged is clearly inadmissible. It has, however, never been doubted that If the crime charged is committed is a uniquely or strikingly similar manner to ether crimes committed by the accused, the manner in which the other crime, were committed may bo evidence upon which a jury could reasonably conclude that the accused was guilty of the crime charged. The similarity would have to be so unique or striking that commonsense make it inexplicable on the basis of coincidence, I would stress that the question as to whether the evidence is capable of being as regarded by a reasonable jury is a question of law. There is no easy way out by leaving it to the jury to see how they decide it.'”

We feel that examples drawn from the sphere of homosexual offence and cases involving much crimes are of limited value when considering a serious case of corruption of the sort with which these charges worm concerned. It seems to us likewise, from what I have already said about the background to this case and the charges against these various men, inescapable that the jury must, in fairness to the defence and the prosecution, be given the chance of considering the evidence relating to all the various substantive counts when directing their attention to any particular substantive count.

The matter was dealt with in R v. Boardman 60 Cr. App. R. 165. At page l81

[1978] EWCA Crim J0308-1

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Lord Hailsham said: ‘The truth is that mere succession of facts is not normally enough must be something more than more repetition. What there must be is variously described as ‘underlying unity’ (Moorov) ‘system’ (see per Lord Reid in Director of Public Prosecutions v. Kilbourne nexus’, ‘unity of intent, project, campaign or adventure’ (Moorov), ‘part of the same criminal conduct’, ‘striking resemblance’ (Sims). These are all highly analogical not to say metaphorical expressions and should not be applied pedantically. It is true. that the doctrine ‘must be applied with caution’ (see Ogg per Lord Aitchison). but the test in each ease and in considering each particular charge is: “Was the evidence with regard to the other charges relevant to that charge?” (per Lord Wark). The test is (per Lord Simon of Glaisdale in Director of Public Prosecutions v. Kilbourne ) whether there is ‘such an underlying unity between the offences’ as to make ‘coincidence an affront to common sense’, or, to quote Mr. Justice Hallett in Robinson (1953) (37 Cr. App. R. 95, 106) , in the passage cited by Professor Cross: ‘If the jury is precluded by some rule of law from taking the view that a something is a coincidence which is against all probabilities if the accused person is innocent, then it would soon to be a doctrine of law which prevents a jury from using what looks like common sense.’ “

It seems to us that whichever principle, metaphor or analogy, one likes to use here, it would have been wrong if the Judge did not invite the Jury in some such terms that he used to consider the evidence of each count separately, but nevertheless if they saw fit so to do to use the evidence of other counts as demonstrating a system, and in the particular circumstances of this case it seems to us that the passage which I read from his judgment is all that was necessary to put the jury correctly on the lines on which they should consider the matter. That ground accordingly fails.

Mr. Weitzman’s next ground was an allegation that the Judge had dealt unfairly and improperly with a side issue is the case which arose is this way. Chamberlain was not the first of the applicants to give evidence. He had been

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preceded, at any rate, by Fenwick. In cross-examination of Chamberlain Mr. Mathew, appearing on behalf of too Crown, had cross -examined his about a company called Arder Ltd. Briefly the interesting feature about that company was that its directors were apparently the wives respectively of Fenwick, Chamberlain and Jones. The reason obviously why Mr. Mathew had reserved this particular piece of ammunition for Chamberlain was that there was evidence that Chamberlain self had paid some £1,000 for the benefit of that company. So he was the obvious person who should be cross-examined about the matter.

There is no doubt that the cross-examination of Chamberlain was very effective. He was driven to a position where he was on the horns of a dilemma and whatever he said was going to toll against him and it obviously did.

The complaint made by Mr. Weitzman is this. The affect of that evidence must have rubbed off on Fenwick. So far no one could possibly dispute that. Ho said that the cross-examination had been carried out upon Chamberlain after his client had given evidence and without Fenwick having been given the opportunity to deal with this matter himself. The answer to that is a short one. It was open to Mr. Weitzman to apply to the Judge to have his client recalled in order that this matter might be put to him. He did not make that application and it is too late to complain about it now. Indeed even if he had been given an opportunity of dealing with the matter, it is difficult to see what he could have said which would have made the situation any better for him.

The next ground of complaint is with reference to a passage in the summing up at page 40 in Volume 2. This deals with the two pornographers, Wallace and his partner Reynolds. What the Judge said was this: “If you can trust Wallace and are sure that he has told you the truth, supported as it is by his partner, Reynolds, but not corroborated (because Reynolds too would be an accomplice) them you should convict both Jones and Fenwick on those counts.” The complaint made by Mr. Weitzman is that the Judge should not have used the word “supported” because by using the word “supported” he is in effect telling the jury that the evidence of Reynolds was corroborative of that of Wallace. It is perhaps a

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little difficult to use moderate language about that submission although it was made charmingly by Mr. Weitzman, because the very next words are “but not corroborated”. We suppose it could have been said, if the Judge had been choosing his words with elaborate Parliamentary care, be would have said “Reynolds had given similar evidence” without using the word “supported”. But to suggest that that sentence, taken as a whole, would have misled the jury into using Reynolds as a corroborative witness of Wallace is saying too much. That is not a valid ground of appeal.

Them it is said, so far as count 11 is concerned, that the verdict of the jury on that count was inconsistent with their verdict of not guilty on count 6, the basis of the complaint being that on both counts the evidence against Fenwick consisted only of the uncorroborated evidence of the Pornographer Gibbons It is suggested that since on count 6 the applicant was the only defendant whereas on count 11 he was charged with O’Hanlon and Chamberlain, and since on count 11 there was, so to speak, additional evidence against O’Hanlon and Chamberlain, the jury may have been misled by that fact into believing that there was corroborative evidence against Fenwick when there was not.

When one reads the direction which the learned Judge gave to the jury, there is me mistake which he can be seem to have made. He deals with the matter is four places. The first one is at pass 78H to page 79B of Volume 2, which reads as follows: “Count 11, members of the jury, is Fenwick, Chamberlain and O’Hanlon. 14th October, 1971. The bribe alleged to have been given is £1,000 by Gibbens, alias Fletcher, alias Joss Charles. This is going to take some time to sum up, but it is really, you say think, about as important a piece of evidence as the prosecution could hope to rely on. This is a case where there is evidence capable of amounting to corroboration of the allegations made by two accomplices: Murrin and Gibbons.”

It is perfectly true that the Judge does not say in terms there that it is only corroboration is respect of the other two and not of Fenwick, but one

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turns to page 93G. There the matter is referred to again: “It is agreed” says the Judge, “that no enquiries were made by Chamberlain, who was in charge of the case, or O’Hanlon, who was a supervising officer, at the Western Police Headquarters about Murrin. If you accept the view that the answers given by the defendant Chamberlain in cross-examination were false to his knowledge, that is evidence capable of amounting in law to corroboration of this charge against Chamberlain.” So there he is making it absolutely plain that the limit of the corroboration does not include Fenwick.

At page 98D is the same: “If you believe Mr. Woodmutt, as I say, his evidence is capable of amounting to corroboration of this charge is count 11 against both Chamberlain and O’Hanlon….”. Here again he does not include Fenwick.

Finally one turns to the other volume, at page 43 of Volume 3, where one finds the same distinction made: “That evidence was relevant, of course, to count 11, where both Chamberlain and the defendant O’Hanlon are charged with an offence, as well as Fenwick.” So there it is.

It is complained that the Judge should have said positively that this evidence is not corroborative against Fenwick. But short of using those very words he made it as plain as he could. That was what the situation was, and it is quite impossible to say, for these reasons, that the verdict on this count was in any way unsafe. It seems to us that the direction was accurate and adequate and if anything was wrong with the original direction on page 78 which I have read. it was more than amply cured by the later direction to which reference has been made.

That brings us to Mr. Weitzman’s third ground. It starts off with the statement “The learned trial Judge, whenever he expressed a view about the evidence, indicated a view hostile to the defence. The impression throughout was one of bias against the defence.”

This is a ground which has been embarked upon by all three applicants is different terms and in different forms, and it is right that we should deal

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with it as though it were a single ground advanced on behalf of each of them.

What they are saying. courteously and carefully, is this, that the impression which the directions of the learned Judge to the jury gave both to then and possibly, more important, to their cliants, was one that the trial was conducted with unfair bias in favour of the prosecution. A number of different passages have been drawn to our attention and quite plainly the learned Judge made comments. He made vigorous comments and in some cases extremely telling comments about the evidence. It is equally plain that the devastating comments he made were most of then directed at the evidence of the defendants and not very many of the devastating comments were directed at the evidence called for the prosecution despite the fact that so many of the prosecution witnesses unsavoury character. That is the way in which the complaint is put.

In some cases the way in which a judge handles a trial, and the sort of expressions he uses and the sort of atmosphere which is produced may indeed be unfair and may result in the jury coming to the wrong conclusion. But in order to assess the value of this type of criticism, which is difficult to make politely, but nevertheless has been made very courteously in this Court, the way one must examine it is this. One most look at the overall picture of the evidence in this case, because if the evidence is overwhelming on behalf of the prosecution, that inevitably, like it or not, is going to be reflected in the sumsing up, It is only where the evidence is balanced, the defence on one side and the prosecution on the other, than one must scrutimise the way is which the Judge handles it with vary great care.

It seems to each of us, reading the papers in this case, that the evidence was really overwhelming. Although it may be that some of the remarks which the Judge made may have gone a little further than each one of us night have gone, nevertheless, scrutinising it with groat care, we have come to the conclusion that it cannot be said that this is within measurable distance of a case where the Judge by the language he uses succeeds in producing a result which is in any way unfair. We hope we have dealt with that with sufficient clarity.

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Now to turn to more specific matters in ground 3 in Mr. Weitzman’s notice of appeal: the first allegation relates to the way in which the Judge dealt with the evidence of Detective Sergeant Dell. That is at page 57, Volume 2: “Well, members of the jury, that is evidence in favour of the defendant Fenwick, and you must give it due consideration. There is no reason to suggest that Dell is telling you anything but the truth about that, but, If he was telling Dell that he still had his suspicions about whether he was still engaged in the porn trade, why did he not have him followed in the West End? You give that such weight as you think proper. If you think it does not help, ignore it.” That phrase “ignore it” is referring to his comment and not to the evidence of Dell. If that had been the way that the Judge was dealing with the evidence of Dell, that would be a proper complaint about it. But it is perfectly plain to us that what the Judge is saying there is this: “I makes this comment. If you like it, well and good. If you think it does not help and is a bad point, ignore it.” He is referring quit clearly not to the evidence of Dell, but to the consent which he himself had made.

The next complaint is that the learned Judge suggested that a number of witnesses who had served on the Obscene Publications Squad called by the defence did not help the jury very much in deciding whether corrupt payments had been going on in the squad. He deals with that in these terms: “So you may think – it is a matter entirely for you – that all those witnesses who gave evidence do not really help you very much in deciding whether there were corrupt payments going on in the squad at the time with which you are concerned.” Indeed having read the account which the learned Judge gave of their evidence, it seems to us that this was a proper comment.

The next complaint is that the Judge dealt too cavalierly with the evidence of Detective Sergeant Greenfield, who was called by the defence and this is really part of the complaint of the Judge’s whole conduct of the trial and the direction to the jury which operated unfairly. I have already dealt with that efficiently I think with that matter, which would include the specific complaint made

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about the evidence of Detective Sergeant Greenfield.

The next complaint, really the last of the main complaints of Mr. Weitzman, was relation to the witness Mason. The witness Mason had been saying in his evidence that Fenwick had gone down with a man called Andrews to the store in Holborn where the seized literature was kept. His evidence of course was very important so far as Fenwick was concerned. The complaint is that although Mason was demonstrated to have been telling lies, or at least to have been inaccurate in a number of matters, the Judge failed properly to comment on that fact and that his comment fell far short of bringing those matters properly to the attention of the jury. Mr. Weitman agreed that all the material was reviewed by the Judge. The complaint is simply that he did not comment enough.

It so happens that the learned Judge had before him as extract from the verbatim transcript of the evidence on this point (it is at page 1 of Volume 3), and the Judge actually read out question and answer, everything that had been said on this matter. No doubt the transcript had been obtained by Mr. Weitzman for the benefit of everyone and it seems carrying criticism beyond the point of legitimacy to say that the way the Judge read oat the evidence in question verbatim did not deal sufficiently with the matter before the jury, because he did not make adequate comment on all the evidence that he heard.

There were other matters of complaint which Mr. Weitzman, with our leave, raised but which wars not in his notice of appeal. He complained about the way in which the learned Judge had dealt with the policy of the Obscene Publications Squad prior to the arrival of Sir Robert Mark. We do not read that part of the learned Judge’s direction as anything but an historical account and we do not think that Mr. Weitzman can properly complain about anything which was mentioned there.

There were other complaints, particularly about the way in which the learned Judge dealt with the evidence of Woman Police Constable McGoohan called in support of Fenwick. That evidence, it was said, should have been approached with more emphasis in order to show that corrupt payments were probably not being made

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regularly as the prosecution alleged. Those are fringe matters, but in the end it seems that none of the specific grounds advanced by Mr. Weitzman on behalf of his client can succeed and there is nothing unsafe or unsatisfactory as far as the conviction of Fenwick is concerned.

That brings us to the application of Chamberlain, which was argued before us by Mr. Self. The first ground that he put forward in the notice of appeal he did not pursue. That was a complaint that the Judge was wrong in allowing count 1 to be tried at the same time as the substantive counts.

Ground 2 complains that the Judge should have told the jury that the evidence of the accomplics officers was not admissible on the substantive counts, that is was not admissible on anything except count 1, and should be disregarded by them entirely so far as counts 2 onwards were concerned. One accordingly looks to see where the learned Judge dealt with that natter.

In the first place at page 15C, Volume 2. He is here dealing primarily with the question of corroboration, and he says: “Having said all that, I must asks it clear to you that, if you, having given due need to ay warning, are convinced that a particular accomplice or accomplices are telling you the truth about these charges, you are entitled to act upon that evidence, even though it is uncorroborated.

What is the nature and extent of the danger of acting upon the uncorroborated evidence of a witness? You may think that there is a distinction to be drawn here between the porn merchant accomplice and the police officer accomplice, in this respect: the former are persons of bad character anyway, all engaged on their own admission, in evading the consequences of deliberately breaking tho law. In addition, some of them have convictions for dishonesty, as wall as convictions for contravening the Obscene Publications Acts. In individual cases, such as Gibbons and Collingbourne, who served substantial prison sentences as the result of police action, there may be room for the motive of revenge.”

Then one turns to page 19, where the learned Judge says this: “… even if you found a particular defendant not guilty of all the substantive counts

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in which he is named as defendant, it would still be open to you, on the evidence in this case, to find him guilty on the count of conspiracy on the basis of the evidence of the police officers, if you accept it. Is that clear? That is because the evidence of the police officers was of a general nature and it cannot be tied up to any individual count in the indictment, except, of course, the charge of conspiracy.”

At page 44, Volume 3, he says this: “As I have told you on more than one occasion, you are to consider counts 2 to 22 first and decide guilt or otherwise on each defendant on those counts before you come to consider count 1. Then, whether you found any of the defendants guilty on counts 2 to 22 or not, you will come to consider count 1, the charge of conspiracy. When you do, you will consider and take into full account the evidence of the four police officers: Kilkerr, Munro, Warren and Tomlin.”

That is the way in which the learned Judge dealt with the matter. It is true that he did not in terms tell the jury that the evidence of the police officers was inadmissible on a substantive count. But he did the next best thing or did what amounted to the same thing by using language which I have indicated he did. In respect of that matter he was telling the jury as plainly as could be that the evidence of those officers was to be considered on count 1 and count 1 only.

The next complaint is that the learned Judge goes on, at a passage in Volume 3, at page 18, to mention the police officers in the same breath as the pornographers, the suggestion being that he persuaded the jury to consider the officers’ evidence on substantial counts. I am not going to read the passage but it is perfectly plain, if one reads it, that the Judge there is dealing with an entirely different matter. He was dealing with the likelihood or unlikelihood of this large body of witnesses, each of them coning forward to commit perjury. We cannot see how any jury can possibly be led by that passage to regard the officers’ evidence on any other count but count 1.

Ground 2, as put in the notice of appeal, is as follows: “Lies attributed

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to the Defendant concerning Mason were said in the summing up to be capable of being corroboration. This was stated in general terms with no reference to any count. Later in the summing up although the Learned Judge Aid then state that the corroboration was referable to the conspiracy count, he at no time excluded the evidence from the Jury’s consideration of the substantive counts or the other evidence concerning alleged payments by Mason to the Defendant. The Defendant was not charged with any substantive counts on Mason’s evidence.”

That ground arises in the following way. There was plain evidence that this particular defendant and Mason knew each other and had known each other well. There was evidence that Chamberlain had denied any knowledge or acquaintanceship of Mason and it was plain, indeed it was admitted by Chamberlain, that he had lied about his knowledge of Mason. The learned Judge quite rightly directed the jury that those lies told before this case started ware matters which they could properly consider as being corroboration so far as Chamberlain was concerned.

The way in which the Judge dealt with it can be demonstrated at page 68C Volume 2: “Although there is no specific count in the indictment which alleges an improper payment by Mason to these two officers, he did give evidence to the effect that he gave them sums of money, £20, £25, which, obviously, would have been regarded as corrupt payments. It is a matter for you to consider, It would certainly be relevant to the consideration which you will, in due course, give to the charge of conspiracy in count 1. It is capable of amounting to corroboration so far as those two defendants are concerned, O’Hanlon and Chamberlain, of their involvement in a conspiracy to receive corrupt payments.”

It seems to us that what he is saying there is absolutely correct and the direction which he has given to the jury is correct. He is saying that the evidence given by Mason and the possible corroboration of that evidence, is referable to count 1. Indeed it could scarcely be complained if the Judge had gone on, although he did not, to say that the admitted lies. told by Chamberlain might have amounted to corroboration on other counts as wall.

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So far as that is concerned, we can see no substance in the complaint.

The next ground of complaint is a similar complaint is regard to Wallace. It reads: “Reference the pornographer Wallace’s case: Although frequent references made is the summing up to the Defendant’s participation in a bribe received from Wallace no direction was given to the jury as to how such evidence was to be considered in relation to the substantive counts, there being no substantive count concerning the Defendant and the said Wallace.”

This allegation was an allegation of a payment of £50 by Wallace to Chamberlain. One of the matters to which we have been referred is the fact that Wallace in Court said that he was unable to recognise Chamberlain, He had only seen him on this one occasion some years before and he was unable to recognise him. He was net asked to make any identification in Court. No reference was made to that in the summing up. There was so corroboration in respect of this £50 payment to Chamberlain. It was all part of the conspiracy or appeared to be part of the conspiracy which was going on in the Obscene Publications Squad at this time. It seems to us clear that it fell well within the sphere of similar type evidence and could properly be used by the jury if they so wished in respect of count 1. Indeed it could be, as I have said with regard to Mason’s evidence, used in respect of any other count. The fact that the learned Judge did not give any specific direction as to how the jury were to approach that evidence, which so to speak was in the air so far as Chamberlain was concerned, does not seem to be a proper ground for complaints

The next complaint by Mr. Self was that the learned Judge failed to give a proper direction to the jury with regard to corroboration. There is no question at all but that the general direction on the law of corroboration was faultless. There is no need for me to read it. No complaint has made and one would not expect criticise to be made of a Judge of this experience so far as the general directions were concerned.

The complaint is this, that the learned Judge failed, as is said to be necessary in the decision in kilbourne 61 Cr. App. R. 84 , to direct the jury

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that there is no point in looking for corroboration of evidence which is prima facie incredible. In other words it is suggested that the learned Judge should have said to the jury “Before you start to consider corroboration at all, you must ask yourselves whether the evidence which is said to be corroborated is worth listening to at all.”

It seems to us that this was the theme upon which the whole of the direction was based. It was made abundantly clear to the jury that these pornographers were persons upon whose testimony one would only with great reluctance rely. It seems to us to have been implicit in everything that the learned Judge said that the first thing they had to decide wan whether they started to believe these pornographers generally. Although no such direction in term was given to the jury, it is plainly to be inferred from everything that the Judge said and the jury could not have been left in any doubt as to what their task was on this particular aspect of the case.

Then complaint is made that the learned Judge, having directed the jury rightly that the accomplice police officers required corroboration, then by praising the actions of these police officer accomplices, he detracted from or destroyed the affect of the warning about corroboration. So it is necessary to read the passage about which complaint is made: “Before I come to deal with the evidence of the prosecution witnesses, I must remind you that they too are accomplices, because they have admitted that they took a share of what they believed to be corrupt payments. Accordingly, it would be dangerous for you to convict any of these defendants on their uncorroborated evidence. There is no evidence capable in law of amounting to such corroboration in the case of those police officers, but. if you are convinced that they, or one or more of them, have told you the truth, you can act upon that evidence alone.”

Then he goes on to make the comments, about which complaint in made; “You may think that those four police officers fall into a very different category from the pornographers and their associates. They are all man of good character, and the Crown submits that there is really no conceivable reason why they should

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lie to the detriment of their former collegaues. By coming forward here and admitting being party to the sharing Of those corrupt payments, they have not only placed the six defendants in peril on this very grave criminal charge but they have destroyed their own reputation. Their good name has gone forever. There is no evidence (and, indeed, it is not suggested) that they have conspired together to tell wicked lies against their follows. Yet it is suggested by the defence that each of them has come forward and given similar false evidence about what went on in the Porn Squad during the time that they were serving on it.”

That was obviously a powerful comment. But was it an unfair comment? We think the answer is, unhesitatingly, me. It was a comment which the learned Judge was bound to make. He would hare been doing less than his duty if he did not. That really was the nub of the case. If there was no conspiracy between these officers amongst themselves and no conspiracy between the officers as a whole and the pornographers as a whole, it is inconceivable that the jury could come to any other conclusion than one of guilt. We do not think that those comments were unfair. We think that they should have been made and were made properly.

The next complaint concerned corroboration provided by the Murrin case and the evidence of the solicitor from the office of the Director of Public Prosecutions. The complaint is that “The Learned Judge invited the Jury to consider aspects of the Marrin case (count 11) as being capable of corroboration, bat he gave no assistance to the Jury as to whether this evidence was or was not capable of corroborating the other pornographers outside Marrin and Gibbons, i.e. count 7, count 12, count 13, count 17 and count 19”.

The passages of the summing up relevant to those are as follows: first of all Volume 2. page 140, which reads as follows (I think I have road this before); “In this case there is evidence which is capable of amounting to corroboration in that direct names, namely, the lies that were admittedly told by the defendants Chamberlain and O’Hanlon to the investigating officers, and the answers given in cross-examination by the defendant Chamberlain at the committal proceedings of Marrin and what Mr. Martyn-Woodmutt said happened outside the court after the

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case had been dismissed. It is for you to decide whether or not Mr. Martyn-Woodmutt’s evidence is true. If you decide that it is. it is for you further to consider whether that amounts to satisfactory corroboration of the allegation made against the two defendants, Chamberlain or O’Hanlon, in relation to that count.”, making it perfectly clear exactly it is that count to which the corroboration refers.

These remarks are repeated in similar terms, though not precisely the sane terms, at various points is the directions, at pages 79, 93, 94, 98 and also in Volume 3 at page 44. It is quite plain that the learned Judge left the jury is no doubt exactly what it was they ware entitled to do, if they thought fit, in respect of any corroboration arising out of Martyn-Woodmutt’s evidence.

The next complaint is that the learned Judge invited the Jury to consider the defendant’s denials of knowing Mason as being capable of corroboration. The complaint is that this was early in the summing up and it was not until page 68 of the summing up that the learned Judge referred to this matter as being only referable to the conspiracy count. The short answer to that is he did make it perfectly plain to the jury at page 68 that this matter was referable only to the conspiracy count and in doing so he probably erred on the said of overcaution. There is nothing in that complaint.

There are farther complaints made about the question of corroboration and the way in which the learned Judge dealt with it both with regard to Mason’s case and with regard to the Martya-Woodmutt/Marrin incident and with regard to the Wallace case. We hope Mr. Self will not think we are being in any way discourteous or abrupt in the way that we deal with those matters. But it seems to us that they are susceptible precisely to the same answer as the other grounds. The learned Judge dealt with the matter correctly and fully. There are no proper grounds for complaint. Consequently so far as the application for Chamberlain is concerned, his application for leave to appeal against conviction is refused.

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That brings us finally to the case of O’Hanlon. His main complaint was a suggestion that the learned Judge failed adequately to distinguish between O’Hanlon aad Chamberlain on the very important matter of the Murrin case. I have already touched upon that feature. But let me explain haw it is that Mr. Howard pate that natter.

It will he remembered that the evidence given before the Magistrates in Marrin’s case was given by Chamberlain. No evidence was given by O’Hanlon. Indeed he was not in Court. nobody expected him to be and he was not. He was outside.

Unhappily, the solicitor, Mr. Martyn-Woodmutt, in a manuscript report which he made on the incident at a later stage, wrongly stated that both those officers had given evidence and that was a mistake. He was cross-examined and properly cross-examined. No doubt he was cross-examined on that point because it went to his credit.

What happened after the case was this. Quite plainly Mr. Martyn-Woodmutt was, to say the leant, a bit upset at what had gone on. There he was, holding a proof in his hand, proof form a police officer, which plainly indicated the guilt of Murrin and there was the police officer on his oath in the witness box giving evidence which bore very little relation to the proof at all. That was all evidence, and powerful evidence, against Chamberlain, because if the Jury took one view of the matter, that would be strong evidence that Chamberlain was deliberately perjuring himself in order to justify his reception of part of the £1,000, if the prosecution were to be believed, which had come to the police via Fenwick. So Mr. Martyn-Woodmutt, according to his evidence, had a long conversation both with Chamberlain and O’Hanlon outside Court. The effect of that evidence was, according to Mr. Martys-Woodmutt, both these officers were quite plainly implicated in this change of front and although O’Hanlon had not given evidence, if Martyn-Woodmutt were to be believed, O’Hanlon was outside court accepting that he van a partner is what Chamberlain had been doing.

It is suggested that the learned Judge did not adequately distinguish between

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the part played by Chamberlain on the one hand and O’Hanlon on the other. The way he dealt with this is to be found at page 93C – it is a passage I have read before and I apologise, for reading it again; “As I say, Mr. Martyn-Woodmutt has been strongly criticised for wrongly placing in that note a record of the fact that O’Hanlon had given evidence when he had not. He deserves censure for having done that. It was a bad mistake. It was not a criminal offence, members of the jury, though it has been made to sound like it. What you are concerned with in this case, according to the Crown, is somebody who committed perjury, which is a criminal offence: the defendant O’Hanlon.”

That, as Mr. Howard has rightly pointed out, is a mistake, an obvious mistake. O’Hanlon had not committed perjury. If anyone committed perjury, it was Chamberlain. Bat nobody seems to have observed the mistake. The Court must have been packed with counsel. If they had observed it, no doubt they would have risen and corrected the learned Judge. So little effect did that mistake have that nobody seems to have observed. It cannot vitiate the conviction or lead the conviction to be unsafe or unsatisfactory.

Then the Judge want on as follows “As I say, at that time, Mr. Martyn-Woodmatt believed that these two officers were telling him the truth and that Chamberlain’s answers upon oath were true. Indeed, there is no question about it, the case for the defence is put on the basis that answers Mr. Martyn-Woodmutt gave and the evidence he gave about what happened outside the court are untrue, and untrue to his knowledge.” Again I interpolate, that was one of the suggestions which were made to his. Another suggestion which was made was that he was mistaken in his recollection about these events which took place very long before the evidence which he was giving before the Central Criminal Court.

Then the learned Judge goes on to say: “It is agreed that no enquiries were made by Chamberlain, who was in charge of the case, or O’Hanlon, who was a supervising officer at the Western Police Headquarters about Murrin. If you accept the view that the answers given by the defendant Chamberlain in

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cross-examination were false to his knowledge, that is evidence capable of amounting is law to corroboration of this charge against Chamberlain.” He makes it quits plain that that particular matter refers to Chamberlain alone.

Reading those passages and those on the next page, which are to like effect, we do not think that the Jury could possibly have been led into a situation where, for example, they were considering the fact that Chamberlain had gives perjured evidence, if he did, that that could is any way be taken against O’Hanlon. What he was inviting the jury to consider (and properly) was this, namely that if the solicitor’s account of the events outside the Court were to be believed, both officers must plainly be involved. So far as that ground is concerned, that is not substantiated.

The next complaint is with regard to count 18, namely that the learned Judge failed to put O’Hanlon’s defence on this count adequately or at all to the jury. The case depended upon the evidence of Mr. A and the suggestion by Mr. A was that O’Hanlon had manufactured two witness statements which were alleged to have been made by Mr. A. In other words in order to extricate Mr. A from the difficulties in which he found himself, O’Hanlon had, for the usual consideration, made out two statements which Mr. A signed, statements which, with O’Hanlon’s experience of the matter, were sufficient to get Mr. A out of his difficulties.

The complaint made by Mr. Howard on this point is a complaint that is not altogether easy to follow, but I will endeavour to do the best I can. He complains that the learned Judge did not give any space in his summing up to the fact that Mr. A and the other pornographer, Gibbons, may have been connected in this matter, the suggestion being that the contents of the statement about which complaint is made may in fact have been Mr. A’s own statement and not suggested or written out by O’Hanlon. The basis of that is that Mr. A and Gibbons know each other. One of the names used in the bogus statement was Martin and another of the names was Malkin. It is said that Merthon was the name of a Danish supplier of pornography with whom Mr. A or Gibbons had traded. Mr. A had opened a bank account in the name of Morthon himself. It is

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suggested from the similarity between these names that there must have been some connection between Mr. A and Gibbons, based on this, what appears to us to be, somewhat flimsy foundation, and that the learned Judge should have referred to this in his summing up as tending to help or substantiate the defence of O’Hanlon that he had nothing to do with the manufacture of these statements.

I must confess that if the jury had had the same sort of difficulty as we have had in understanding precisely what the suggestion was, it would not have been very helpful to them in their consideration. Secondly, the Judge is not only entitled to, but must be selective in the material which he places before the jury. It seems to us that if he had placed this material before the jury, it would have been counterproductive from everybody’s point of view, including the point of view of O’Hanlon. We consider that the Judge was correct is not mentioning that matter.

The next matter was withdrawn by Mr. Howard and is not for consideration. The final ground which he put before us was the ground which each applicant had raised, that the whole conduct of the trial was unfair. I hope I have dealt with that sufficiently.

So far as O’Hanlon is concerned, his application for leave to appeal against conviction must fail.

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

 

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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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2 Responses to Fenwick, Chamberlain, O’Hanlon, Jones and Fisher 8 Mar 1978 Court of Appeal (Police)

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