Derek Lewis-Foster was a professional photographer and was a Scoutmaster and ran a Scout camera group. He was convicted of buggery, indecent assault and indecent photographs on boys aged 12-16. Unknown where the offences were committed but court was in Worthing, W.Sussex Sentence was reduced form six to four and half years.
There had been 2 codefendants tried with Derek Lewis-Foster referred to as Darby and Chase.
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]
[1987] EWCA Crim J1022-14
No. 3758/C1/87
IN THE COURT OF APPEAL
Thursday, 22nd October 1987
Lord Justice Croom-Johnson
Regina v. Derek Lewis Foster
(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., Pemberton House, East Harding Street, London EC4A 3AS. Telephone Numbers: 01-583 7635, 01-583 0889. Shorthand Writers to the Court)
MR. C. SMYTH appeared as Counsel on behalf of the Appellant.
JUDGMENT
(As approved by Judge)
MR. JUSTICE ALLIOTT: On 12th June of this year in the Crown Court at Worthing the appellant pleaded guilty and was sentenced as follows: count 1, buggery of a boy, M, two years’ imprisonment; counts 2, 4 and 6, indecent assault on a male, a boy H, three years’ imprisonment on each count concurrent inter se but consecutive to the sentence of two years; on counts 5, 7 and, taking an indecent photograph of a child, 12 months’ imprisonment on each count concurrent inter se but consecutive to the five years; a total sentence therefore of six years’ imprisonment. Count 5 related to the boy H and counts 7 and 8 to a third boy B.
The appellant was arraigned with two co-defendants. One, named Chase, pleaded guilty to counts 3, 4 and 5 Count 3 was an allegation of indecent assault on H when he was on his own, and for that he was sentenced to three months’ imprisonment. Count 4 was a joint indecent assault with the appellant, for which he was sentenced to 12 months’ imprisonment consecutive to the three months. He also pleaded guilty to taking a photograph of H jointly with the appellant and was sentenced to nine months’ imprisonment concurrent. He was therefore sent to prison for a total of 15 months.
A second co-defendant, Darby, pleaded guilty to count 6, an indecent assault upon H committed at the same time and jointly with the appellant. He was sentenced to 12 months’ imprisonment on that; and in respect of counts 7 and 8, two counts of taking indecent photographs of a boy B, he was sentenced to nine months’ on each imprisonment on each count concurrent inter se but consecutive to the 12 months, amounting to a total of 21 months’ imprisonment. The appellant now appeals against sentence by leave of the Single Judge.
Of the three boys M was 16, H 12 and B either 13 or 14, depending upon the dates alleged in the indictment. The appellant, who made his living as a professional photographer, was also a Scoutmaster and ran a Scout camera club which he started in the autumn of 1986. H was a member of the club. The appellant made initial approaches to H by asking him if he would help with lighting for his professional photography, which H did. Then in October, 1986 the appellant asked H to pose for photographs, and then invited him to pose naked, and he took a series of indecent photographs of him, represented by count 5. This developed into sessions of indecent assaults, described by the prosecution as preliminaries to buggery; but that description is one of the matters that the appellant has always denied. They took place on a number of occasions from October, 1986 to February, 1987 and are represented by counts 2, 4 and 6. There was evidence on the papers of some 20 occasions, but again Mr. Smyth has informed us that the basis of the plea that some eight occasions occurred, and that the rest were occasions on which there was totally innocent involvement with the camera club.
Those sessions usually consisted of both H and the appellant stripping naked, with mutual masturbation and fellatio, and masturbation to the point of ejaculation by the appellant. That was denied.
As already indicated in outlining the pleas of and sentences passed on the co-defendants, on some occasions Chase and Darby were present. The appellant told H not to say anything to anyone about the assaults. It was the prosecution case that the appellant procured H for the sexual gratification of his co-accused by introducing him to them at their request.
In mitigation it was contended that H was sexually precocious and a willing participant, that he had been involved in “sexual games” with M some time prior to meeting the appellant, and that H and Chase were already acquainted through their mutual interest in photography.
The appellant denied any moves towards buggery or ejaculating in H’s presence. In his submissions to us today Mr. Smyth has elaborated that and has made it plain that, while there is an element of procurement so far as Darby is concerned, H was well known to Chase and that Chase was also in a position of trust towards him.
The appellant came into contact with M in December, 1986 as a result of M’s friendship with H. The appellant asked the two boys to pose naked. They agreed, and there was a session of photography followed by a session of “sexual games”.
At the beginning of January, 1987 M went to the appellant’s house for a further photography session, which developed into sexual contact, including fellatio and then buggery, with M as the active partner. That of course is count 1.
In mitigation, and indeed before us today, it was contended that M was sexually experienced and very probably a practising homosexual by the time he met the appellant.
Counts 7 and 8 concerned the boy B. He was acquainted with Darby through a football team run by Darby. He was introduced to the appellant by Darby in December, 1985. Darby asked the appellant to take nude photographs of B because he was a professional photographer, which the appellant did. That was count 8. Nude photographs of B were taken on several subsequent occasions. On at least one occasion the appellant was naked as well and, according to B, touched his penis. That again is a matter that was denied. On another occasion the three of them, B, Darby and the appellant, went into a cornfield, where the appellant took photographs of Darby and B naked. After that occasion B was given £1 by each of the appellant and Darby and told not to say anything about it.
The appellant was arrested on 15th February, 1987 and after some prevarication admitted the offences. He is 40 years of age and married, and has three young children. He was living in his own house and running his own photographic business. He has no previous convictions. We have read the social inquiry report, a testimonial, and a prison report.
In sentencing the appellant the learned judge said: “I have to sentence you in respect of seven offences of indecency and they are but representative counts. The indecency involved a boy of 16, a boy aged 12 and a boy who is aged either 13 or 14 according to the dates of the offences. The indecency extended over a considerable period, in particular with that boy of 12, and in respect of whom you were in a position of trust. The first count to which you plead guilty relates to an offence of buggery and it is said you committed that offence with a practising homosexual; but you were 40 years of age and he 16. You committed indecency with him, short of buggery, when the boy of 12 was present. Of course I take into account in your case your pleas of guilty, the fact that you are a man with no previous convictions, your excellent references and the evidence given on your behalf; indeed, everything which has been said by your counsel in mitigation.”
At first blush there appears to be nothing whatever wrong in principle with the individual sentences imposed by the learned judge. But Mr. Smyth has addressed us on really two main fronts. First of all, he urges a number of factors in mitigation and then submits that six years is too long, and that in the last resort there is too great a disparity in respect of the counts of indecent assault between the sentences imposed on the appellant and those imposed on his co-defendents. That briefly rehearses Mr. Smyth’s submissions on the facts.
Dealing with count 1, Mr. Smyth says that the appellant met M through H. M came to a photographic session and immediately manifested that he was sexually experienced. On the second occasion on which he came buggery occurred with Mas the active partner. He has urged us that there was no element of physical injury, coercion, force, emotional or psychological pressure; that there was no element of moral corruption and no breach of trust so far as that boy was concerned. Mr. Smyth has said that the act had a profound effect upon the appellant, who never in the result saw M again.
Dealing with counts 2, 4 and 6 relating to indecent assault on H, Mr. Smyth has accepted that there was here a breach of trust because of the involvement in the camera club. He has accepted, as already narrated, that there was an element of procurement so far as Darby was concerned. But, by reference to the photographs, he says that manifestly the boy was not afraid and was enjoying what was going on. Here again he has urged us that there was no physical injury, no emotional or psychological trauma, and no corruption. He described H as a boy of considerable sexual precocity, which was the result, he suggested, of what he had learned from M.
Mr. Smyth has accepted that there was further aggravation in the fact that on occasion more than two persons were present. In urging his point about disparity of sentence, Mr. Smyth has analysed the sentencing as being 12 months on the other two defendants but three years on the appellant. He has accepted that, as far as the others were concerned, the charges were exhaustive, whereas so far as the appellant is concerned they were only sample counts. But, by reference to passages in the depositions, he has contended with some force, as this Court accepts, that as to the actual conduct there was little to choose between the respective defendants as described in the court below.
Mr. Smyth has further addressed us on the counts relating to the indecent photographs, but, accepting as he did that a consecutive sentence was entirely appropriate for that, we need not rehearse the matters that he has urged upon us in that context.
Finally, in urging us that 6 years was too long a sentence in totality. Mr. Smyth has reminded us of the appellant’s previous good character, the fact that his wife was standing by him, that his professional life had been shattered, and that his client showed true remorse, not with standing his belief that the boy had not been significantly affected.
This Court is grateful to Mr. Smyth for his submissions. We have come to the conclusion that, taking a pace back and looking at the sentence imposed as a whole, it is too long. We think that there is an argument on analysis for holding that there is disparity between the sentences of 12 months on Chase and Darby and that of three years on the appellant. We have come to the conclusion that we should quash the sentences of 3 years’ imprisonment on counts 2, 4 and 6 and substitute therefor three sentences of 18 months’ imprisonment; but those sentences will remain consecutive to the two years and the 12 months imposed on counts 1, 5, 7 and 8 respectively. The overall sentence is therefore reduced from 6 years to four and a half years.
To that extent the appeal is allowed.
Index of Newspaper and Journal articles on this blog [1]
Index of Court Appeals on this blog [2]
1978 Jan 20 [#ScoutsAbuse 6] Ernest Fred Jay Court of Appeal [257]
1984 May 10 [#ScoutsAbuse 7] John Queen Court of Appeal [258]
1987 Oct 22 [#ScoutsAbuse 5] Derek Lewis Foster Court of Appeal [256]
1988 Jun 7 [#ScoutsAbuse 8] William Henry Twigg Court of Appeal [259]
1999 Jul 29 [#ScoutsAbuse 4] John Oliver Bentley Court of Appeal [255]
2000 Jun 13 [#ScoutsAbuse 3] Andrew Lee Clark 2000 Jun 13 Court of Appeal [254]
2006 Jun 19 [#ScoutsAbuse 2] John Anthony Coghlan 2006 Jun 19 Court of Appeal [253]
2016 Mar 18 [#ScoutsAbuse 1] KCR v Scout Association High Court [252]
- 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]
Links
[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/
[2] 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/
[252] 2018 Feb 6 cathy fox blog [Scouts 1] KCR v Scout Association High Court 18th March 2016 https://cathyfox.wordpress.com/2018/02/06/scouts-1-kcr-v-scout-association-high-court-18th-march-2016/
[253] 2018 Feb 6 cathy fox blog [#ScoutsAbuse 2] John Anthony Coghlan 2006 Jun 19 Court of Appeal https://cathyfox.wordpress.com/2018/02/07/scoutsabuse-2-john-anthony-coghlan-2006-jun-19-court-of-appeal/
[254] 2018 Feb 6 cathy fox blog [#ScoutsAbuse 3] Andrew Lee Clark 2000 Jun 13 Court of Appeal https://cathyfox.wordpress.com/2018/02/07/scoutsabuse-3-andrew-lee-clark-2000-jun-13-court-of-appeal/
[255] 2018 Feb 6 cathy fox blog [#ScoutsAbuse 4] John Oliver Bentley Court of Appeal 29 Jul 1999 https://cathyfox.wordpress.com/2018/02/07/scoutsabuse-4-john-oliver-bentley-court-of-appeal-29-jul-1999/
[256] 2018 Feb cathy fox blog [#ScoutsAbuse 5] Derek Lewis Foster 22nd October 1987 Court of Appeal https://cathyfox.wordpress.com/2018/02/08/scoutsabuse-5-derek-lewis-foster-22nd-october-1987-court-of-appeal/
[257] 2018 Feb 9 cathy fox blog [#ScoutsAbuse 6] Ernest Fred Jay 1978 Jan 20 Court of Appeal https://cathyfox.wordpress.com/2018/02/09/scoutsabuse6-ernest-fred-jay-1978-jan-20-court-of-appeal/
[258] 2018 feb 10 cathy fox blog [#ScoutsAbuse 7] John ueen 1984 May 10 Court of Appeal https://cathyfox.wordpress.com/2018/02/10/scoutsabuse7-john-queen-1984-may-10-court-of-appeal/
[259] 2018 feb 10 cathy fox blog [#ScoutsAbuse 8] William Henry Twigg 1988 Jun 7 Court of Appeal https://cathyfox.wordpress.com/2018/02/10/tt-tag-check-scoutsabuse-8-william-henry-twigg-1988-jun-7-court-of-appeal/
[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html
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