This is an appeal against sentencing by a scoutmaster, John Anthony Coghlan, who committed abuse in the 1960s, against a child for a period when the child was aged 10 until 14. The child was at that time was an altar boy and a member of the choir at the church where the appellant was a priest. He was also a cub or a scout in a troop of which the appellant was a assistant leader and latterly he became a pupil at a school where the appellant was the chaplain.
It is not clear where the church or the scouts were but it does mention a scout camp in Staffordshire and a Black Park Woods.
The appeal succeeded on one count as it was improperly brought under the wrong law.
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
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 EWCA Crim 1542
IN THE COURT OF APPEAL
Royal Courts of Justice, Strand, London, WC2
Monday, 19th June 2006
Lord Justice Hughes
John Anthony Coghlan
Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
MR R SMITH QC appeared on behalf of the APPELLANT
MR M HICKS QC appeared on behalf of the CROWN
JUDGMENT(As Approved by the Court
1. LORD JUSTICE HUGHES: In July 2005 this appellant, who is a priest now aged 72, faced trial on an indictment alleging six counts of sexual offences against a single complainant. The offences were alleged by the complainant to have taken place between 1961 and 1966, that is to say approximately 40 years before the trial. The appellant was convicted by a majority on counts 1 to 5 which charged indecency with a child. The gist of those allegations was that he had persuaded the complainant to masturbate him either with a home massage machine or orally. He was acquitted upon count 6 which charged as indecent assault events which on the complainant’s account amounted to an isolated incident very close to attempt at buggery.
2. The principal submission of Mr Robert Smith QC on the appellant’s behalf is that the convictions are unsafe on grounds which relate to the combination of the extreme age of the complaints and the consequential absence of evidence which might otherwise have been available, together with various features of the complainant’s evidence which he suggests are simply too unsatisfactory for the convictions to be permitted to stand.
3. Before, however, we come to that there is an admitted legal flaw in count 5. Counts 1 to 5 were all laid under the Indecency with Children Act 1960. That Act made it an offence to commit an act of gross indecency with or towards a child under the age of 14. The upper age limit was subsequently raised to 16 by section 39 of the Criminal Justice and Court Services Act 2000 with effect from 11th June 2001, but the offence charged in count 5 had, of course, been committed many, many years before that. The offence charged in count 5 related to events at a time when the complainant was 15. Accordingly, at the time that the alleged events took place, even if they had occurred, they did not amount to the criminal offence charged. It is agreed, properly and realistically on behalf of the Crown, that the conviction on count 5 must be quashed. Conversely nobody suggests, again realistically, that that has any impact upon counts 1 to 4. This was not a case in which as a result of the existence of count 5 there was placed before the jury evidence which it would not otherwise have had.
4. By the time of the trial the complainant was 54. His complaint had surfaced for the first time in either 2002 or 2003, something like 35 to 40 years after the events which he said had taken place. They had taken place, he said, when he was of the age of ten to 14. At that time he was an altar boy and a member of the choir at the church where the appellant was a priest. He was also a cub or a scout in a troop of which the appellant was a assistant leader and latterly he became a pupil at a school where the appellant was the chaplain. At that time the appellant was in his late 20s or early 30s. He seems to have been appreciably younger than the other priests connected with the parish community concerned and he seems to have been a popular figure amongst the families and amongst the children.
5. The complainant alleged that the offences began when he was taken to the bedroom at the presbytery occupied by the appellant. He said that he had been induced to masturbate the appellant using a home massage vibrating massager. Similar behaviour he said was repeated and count 1 was a sample of such events.
6. He next said that there had been a scout camp in Staffordshire which he attended and at which the appellant was also present as a leader. According to the complainant he shared a tent with the appellant, just the two of them, whilst the other scouts were accommodated in larger dormitory tents. He gave evidence that he was required during that holiday to provide the appellant with oral relief. That was represented by count 2.
7. Counts 3 and 5 were sample counts of similar acts over the relevant period. Count 4, however, related to a specific incident which the complainant said had taken place in some woods called Black Park Woods when, according to him, the appellant had taken him there.
8. Specific occasions in the presbytery, at the scout camp and in those woods apart, the complainant alleged that the appellant would behave in this way whenever opportunity presented at various scout camps and also when he visited the complainant at home at times when his parents were not there, such times including, latterly at least, times when the complainant was truanting. Also, according to the complainant, the appellant took him out in his car.
9. The appellant submitted at his trial that the case should not be left to the jury. That submission was made at the close of the Crown case and it was made in the alternative. First, it was submitted that on ordinary Galbraith principles there was, taken at its highest, no evidence upon which a jury correctly directed could properly convict. In addition, however, it was submitted that the trial should be stayed on grounds of abuse of process arising from the very considerable delay and the consequence for the appellant that a number of people who might have been potentially key witnesses had since died.
10. The test upon those two submissions are, of course, not the same. On a Galbraith application the judge asks himself whether the evidence taken at its highest is sufficient for a jury correctly directed to convict. When considering an application to stay on grounds of abuse of process arising from delay, the question is not whether the evidence suffices to sustain a safe conviction, but whether or not, even if, on the face of it, it might, the passage of time has had the effect that the appellant cannot fairly be tried. If, rarely, that is the case, it will usually be because he cannot by reason of the passage of time properly defend himself against the evidence, strong or weak as that evidence may be, or as it may appear to the judge.
11. These days a submission of the second kind is sometimes made at the close of the Crown case rather than before the trial begins. Certainly that was the course which had been taken in R v Stephen Paul S  EWCA Crim 756 and it there attracted no adverse criticism. We accept that it may be an advantage in some cases for the submission to be made at that stage. The judge can then see rather better than he could at the outset of the case whether, and, if so how far, the defendant has been hindered in challenging the evidence of the Crown, and make a better assessment of whether a fair trial is possible. We accept also that that decision may be informed by the nature of the evidence which the appellant has to face, although it does not at all follow either that strong evidence means that a fair trial is possible or that weak evidence means that it is not. In our system, provided that a fair trial can be undertaken, it is for the jury to decide whether evidence, weak or strong as it may appear to the trial judge, is accepted or not. The jury must be permitted to make that decision unless either it is evidence on which the jury correctly directed could not be properly convicted, or the trial simply cannot be fair to the appellant.
12. We respectfully endorse the principles which have been set out in many cases and were repeated by this court recently in R v Stephen Paul S at paragraph 21:
“(i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;
(ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;
(iii) No stay should be granted in the absence of serious prejudice to the defence such that no fair trial can be held;
(iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge;
(v) If, having considered all these factors, a judge’s assessment is that s fair trial will be possible, a stay should not be granted.”
13. In the present case we have a transcript of extensive discussion between counsel for the appellant and the judge in relation to the Galbraith submission from which it is apparent that he had directed himself correctly in relation to that. There is no reasoned judgment in relation to the second limb of the submission that was made on behalf of the appellant. It is not entirely clear whether that is owing to absence of transcript or owing to the fact that the judge gave his decision in very short terms. But it is realistically and rightly accepted on behalf of the appellant that the judge had been properly referred to the correct principles. He would not have been referred to R v Stephen Paul S which was decided later, but he certainly had been referred to the relevant and well-known authorities on the subject, in particular Attorney General’s Reference No 1 of 1990 95 Cr App R 296 , R v Smolinski  EWCA Crim 1270 and R v EW  EWCA Crim 2901 .
14. Mr Smith does not suggest that the judge should have withdrawn the case from the jury on Galbraith principles. This was a case in which the evidence of the Crown taken at its highest, if accepted by the jury, was evidence on which it could properly convict. His submission is founded upon the very lengthy passage of time between the events into which the jury was enquiring and the trial. In particular, he suggests, and it was suggested to the trial judge in plainly explicit terms, that the trial of the appellant could not be fair because there were no longer available witnesses as to key aspects of the case who might have given critical evidence. They fall into two principal categories. The first was a group of people, all now dead, who might have been in a position to give evidence as to the regime at the presbytery in the 1960s. There were five priests who at different times had been resident there; all, as far as we can see, senior to the appellant. There were, in addition, two housekeepers; one now disappeared, the other known to be dead.
15. The submission which is made is that those were people who would have been able to give the lie to the complainant’s assertion that he had been taken not once but on a number of occasions into the appellant’s room in the presbytery. The appellant’s case was that that was simply forbidden and in practice impossible.
16. The second category of witness, now deceased, related to the scout group. The principal organiser of the scout camp in Staffordshire was now dead and so were two other scout leaders who might have been able to assist in relation to the suggestion that was made by the complainant that he had shared a tent with the appellant. There were, in addition to that, a number of other people, such as school teachers, a treasurer of the youth club and the choir master, all of whom were also now known to be dead. Mr Smith does not suggest realistically that they were people who might have been in a position to give specific evidence, but he submits that they might well have been in a position to adduce evidence of the appellant’s high reputation and behaviour generally so as to assist in demonstrating on his case the unlikelihood that he had behaved in the way that was alleged.
17. We have been troubled by the absence of these witnesses. We are very conscious of the difficulties which are presented to an appellant who faces a complaint of this kind as long after the event as did this appellant. We ought to say, first, that in one respect we are entirely confident that Mr Smith’s submission goes too far. He invites us, albeit with becoming diffidence, to apply to this case the principles which the House of Lords requires of this court in a case of fresh evidence as explained in R v Pendleton  UKHL 66 . That, we are quite satisfied, it is impossible for us to do. It is one thing to say that, when evidence which was not before the jury is known, this court in making a judgment as to the safety of the conviction should check its own first impression by asking what the impact upon the jury might have been of the evidence which it did not have. That, however, is to assess known evidence. It by no means follows that it is possible to take the same course in relation to a witness in respect of whom it simply is not known what he might have said.
18. Insofar as the witnesses who are not present might have been able to support the evidence of the appellant’s high reputation and to say that in their judgment, so far as they knew him, he was most unlikely to have behaved in the way that was contended, their absence was in this case much less of a disadvantage to the appellant than might have occurred in other cases. Such evidence was given, and given by those who might otherwise have been thought likely not to give it. They included the complainant’s brother and two principal independent witnesses, all called by the Crown.
19. Mr Smith accepted, as he had to, that the only evidence which could have provided real additional assistance to the appellant was evidence which justified the conclusion that the complainant’s account of being taken by the appellant into the priest’s room in the presbytery was simply not possible. The difficulty about that is that at a late stage in the trial two witnesses called by the appellant to give evidence, otherwise of assistance to him, gave evidence that they had, for entirely innocuous reasons, visited either one room or another of one or other of the priests in the presbytery.
20. So far as concerns the evidence of the scout master, such additional evidence was not available. Two witnesses called by the Crown who had been present at the camp in Staffordshire gave evidence of their recollection that the appellant had indeed shared the tent with the complainant as the complainant said he had. One of them gave evidence to the effect that he remembered a particular occasion when he had seen the complainant emerging from the tent followed by the appellant, the appellant in a state of either complete, or almost complete, undress. Neither of them suggested that they had thought anything untoward about it at the time. One of them said that he had thought simply that the complainant was fortunate and had some kind of privilege in sharing a tent with the appellant. On the other hand, there was evidence of the appellant himself that such a thing had never occurred and he called additional evidence to support him.
21. The judge referred throughout his summing-up to the fact that the witnesses to whom Mr Smith has referred us were known to be deceased and could not as a result be called at the trial. He gave them not one but a number of repeated warnings about the care that they should adopt in approaching the case given the absence of those witnesses. We accept, of course, that whilst that is the proper approach for a judge to adopt particularly in a case of this lapse of time, if there was such unfairness to the appellant that the trial could not properly take place, such warnings cannot always cure it. In the case, however, of the deceased scouting leader the judge went so far as to remind the jury of what was said about him, namely that he was the kind of scout leader who followed the rules and who simply would not have allowed what was alleged to have taken place to occur.
22. Before we arrive at a conclusion in relation to the submission of abuse of process, we think we should look in the same way that the trial judge was able to do, having regard to the time when the submission was made, at the state of evidence generally in order to see whether it was such as to demonstrate the trial judge’s conclusion, that the trial could properly proceed, was one which was plainly wrong.
23. The complainant himself was a witness about whose reliability and character critical submissions could properly be made. He had a history of drug misuse over a period of many years since his early teens. He gave evidence that at least one of the factors in his coming forward many years after the event was the publicity that had been given to complaints made against members of the priesthood and he conceded that he had lodged a claim which might result in compensation for him if what he said had happened had truthfully occurred.
24. Against that his own explanation for his revealing something which on his case he had been hiding for many years was that he had been overcome with anger bit by bit over the years, had reached the point at which he had planned to make a very serious violent attack on the appellant and indeed had got so far as going armed to his house, but fortunately had found that he was not there. His case was that having found himself engaged in such an act, he had concluded that he ought to reveal what had happened, initially to his doctor. The jury had to cope with, and to decide about, his evidence on that topic as on others.
25. There were a number of inconsistencies in what the complainant had said. He had undoubtedly told those counselling him in the early 1990s that his childhood had been unaffected by any trauma and had been basically happy. In addition, there were some inconsistencies in the detail of what he had said by way of account, particularly in relation to events which either had or had not happened at school. Lastly, there was evidence before the jury of a continental trip embarked upon by the appellant taking the complainant with him. The complainant had undoubtedly gone on it voluntarily. In relation to that trip the appellant was in a position to call the evidence of two independent people whom they had met on the trip and who were able to say that the complainant had appeared perfectly happy as the appellant’s companion and, moreover, that the tent shared by the two of them on that occasion, as was common ground, had been placed close to the tent of the witnesses and not some distance away as it might have been if something untoward had been going on within it. So the jury had to cope with those arguable weaknesses in the case of the complainant.
26. Conversely, however, the jury had evidence, which was a matter for them, which they might properly have regarded as support for the evidence of the complainant. The complainant’s evidence that he had been induced by the appellant to use an electric home massager on the appellant to masturbate him received this support. When many, many years later the appellant’s home was searched such a piece of apparatus was found to be in his possession. He conceded that for entirely understandable health reasons he needed it to ease muscle pain. The important point was that on his evidence there was no possible way in which the complainant could have known about it. True it was that by the time of the search the model found was a different model to the one which could have been there in the 1960s and true it was that the complainant misidentified the new model, but the appellant accepted that there would have been such a piece of apparatus in his room in the 1960s and he asserted that the complainant could not have known about it. The complainant did.
27. Whether there was an innocent explanation for that, or whether perhaps the complainant had visited the room in the same way as the two defence witnesses had for entirely innocuous reasons and had seen the device, or whether there was some other reason why he knew about it was a matter for the jury to assess in the light of such explanations as the appellant might offer. But, as we understand it, no explanation was offered.
28. Secondly, the same search, or perhaps a later one, revealed a number of negative photographs which included photographs of the complainant, in one case naked. Those appear to have been photographs taken at the time of a trip on the Norfolk Broads. The evidence about that was that the complainant’s older brother and a friend had arranged such a trip. The appellant went along as well and they were joined during the course of the trip by the complainant himself. There was then an incident of horseplay when the complainant was dumped in the river and at least one of the photographs appears to have been taken immediately after that after he had been undressed.
29. Thirdly, the complainant gave evidence of the uncircumcised state of the appellant. The appellant confirmed that that is his condition. It was suggested that it was possible, though he did not say more than that, that at some stage in the course of a class the topic might have arisen and his condition might by that means have become known to the complainant, and, indeed, for that matter, to other members of the class by some kind of an example or jest or moral. The jury, once again, had to decide for itself whether the fact that the complainant knew about that was one which could properly be explained away, or whether it could not.
30. There was, as we have already indicated, independent evidence of the sharing of the tent. As to the count which related to the woods, they were woods which were not particularly close to the complainant’s home, and, as we understand it, no reason was suggested why he should have known about them. They were, however, woods which were known to the appellant, being on a route which he agreed that he frequently took. Once again what the jury had to do was to decide whether the complainant had happened upon that location to suggest a false complaint or whether his knowledge of the area gave some support to his evidence.
31. Mr Smith also invites us to take into account the fact that the appellant was acquitted upon count 6, the count of indecent assault. He rightly acknowledges the rarity with which it will be possible for this court to read into the verdict of a jury a conclusion which demonstrates that a conviction on other counts on the same indictment are unsafe. The principles are well-known. They are set out in R v Bell (unreported) 15th May 1997 and R v Rafferty  All ER 69 .
32. We agree with Mr Smith that it is not possible to demonstrate any logical inconsistency in relation to this acquittal. It is true that it follows that on that point the jury cannot have been satisfied, so that it was sure, that the complainant’s evidence was to be accepted. It was, however, a count of an isolated kind and the judge gave a particular direction about it. Of it the judge said this:
“It could be something of an isolation, you might say: ‘We don’t think things ever went that far.’ â€¦ But there is perhaps a limitation on whether this particular incident happened. Again, the date, the circumstance, seem to be unclear.”
33. We are quite satisfied that this is not one of those relatively unusual cases where an acquittal upon one count of an indictment demonstrates that the conviction on the other counts is unsafe. It is open to a jury to accept the evidence of a single complaint on some parts and not on others. There was in relation to this stand alone count no arguable support of any kind.
34. Accordingly, we return to the two questions which we were asked in this case. Was the judge plainly wrong to direct that the trial continue despite the enormous passage of time. That requires us to confront the question, could the trial be a fair trial despite the absence of the witnesses? In the circumstances, for the reasons which we have given, we are satisfied that it could and that the question of the suggested missing evidence could properly be assessed by the jury with the assistance of a summing-up which returned on a number of occasions to the difficulties which it presented.
35. We are invited, secondly, to consider, looking overall at the case, whether this is the kind of rare case within the principle of R v Selwyn B  EWCA Crim 319 . For the reason that we have given, this case differs from that one. That was a case in which many years after the event the jury simply had no assistance whatever in deciding whether the word of one witness was to be accepted or the word of the other. This was not that case. There were other witnesses, albeit not the ones to whom Mr Smith has referred us, and there were a number of features which were capable, if the jury so decided, of being seen as giving support to the evidence of the complainant.
36. In this court it is easy to be tempted to come to a conclusion one way or another on paper as to what the right decision ought to have been in a trial which has taken place over a period of days with the witnesses seen by the jury. It is a temptation which has to be resisted. We have not seen the witnesses. We have not seen the complainant. We have not heard from the appellant. Moreover, we are not the right constitutional tribunal to make a decision about where the truth of the matter lay. That was for the jury. For the reasons which we have explained we are unable to say that these convictions are unsafe.
37. Accordingly, the conviction and sentence on count 5 will be quashed and to that extent this appeal succeeds, but to that extent only.
Index of Newspaper and Journal articles on this blog 
Index of Court Appeals on this blog 
- 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]
- Fresh Start Foundation Scottish not for profit group, helping child sexual abuse victims & survivors [N]
 Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/
 Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/
[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html
Let justice be done though the heavens fall – Fiat justitia ruat cælum