[O’Dowd4] Kevin O’Dowd 12 May 2009 Supreme Court

Verdicts were not safe and appeal allowed. This case is of interest due to the Ted Heath connection. 

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 redacted by cathy fox blog

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

Index of Court Appeals on this blog [2]

[2009] EWCA Crim 905

Case No: 2007/03874/B1

IN THE SUPREME COURT OF JUDICATURE


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12 /05 /2009

Before : Lord Justice Scott Baker

Between Kevin O’dowd

v.

Regina

MR R. KOVALEVSKY QC and MR J. HODIVALA for the Appellant

MRS P. MAY and MR K. BARRY for the Respondent


(Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court)

Hearing date : 2 April 2009

Judgment

As Approved by the Court

Mr Justice Beatson:

Introduction:

1. The court has to consider the safety of the conviction of Kevin O’Dowd of a number of offences against a woman to whom we shall refer as OP committed between 15 and 18 September 2004. He was tried at the Central Criminal Court before HH Judge Hawkins QC and a jury. The trial began on 6 December 2006 and the jury returned its verdicts on 22 June 2007, so the total length was about six and a half months. For a trial involving just one defendant and the relatively simple issues that the jury had to decide to have lasted for this length of time with the consequent vast cost to the public is not only disproportionate but a serious blot on the administration of justice. There is no single reason for the trial having lasted this long. Many of the delays could be justified individually but viewed collectively it is entirely unacceptable for the case to have taken anything like this length of time.

2. A major reason for the length of the trial was the introduction of bad character evidence admitted pursuant to the Criminal Justice Act 2003 (hereafter “the CJA 2003â€) concerning three other allegations of rape, two of which related to events that occurred 22 and 17 years before the indicted charges. The first of these allegations, by AB, resulted in an acquittal, the second, by CD, in a conviction, and the third, by EF, was stayed on the ground of abuse of process. If ever there is a case to illustrate the dangers of satellite litigation through the introduction of bad character evidence this is it.

3. The overriding objective of the Criminal Procedure Rules 2005, S1 2005 No. 384 (the Criminal Procedure Rulesâ€) is that all criminal cases should be dealt with “efficiently and expeditiously.â€This we regard as of core importance in the interests of justice. Those interests include the interests of the prosecution, the defence and, not least, the jury. We shall refer later in this judgment to the Protocol for the Control and Management of Heavy Fraud and Criminal cases 22 March 2005, although we would observe that this case was not in essence a particularly complex criminal case.

4. The Crown alleged the appellant had locked OP in her flat, frightened her so that she did not dare try to escape, threatened to kill her with a knife, made her consume largactil tablets, sexually assaulted her by making her masturbate him when she did not consent, and raped her vaginally and orally. The appellant was convicted by majority verdicts of 10 to 2 of falsely imprisoning, threatening to kill, twice raping, sexually assaulting, and poisoning OP. He was sentenced to life imprisonment on counts 1, 4 and 7 with a minimum term of 9 years before his case could be considered by the Parole Board, to 7 years concurrent on each of count 3 and count 6, and to 4 years concurrent on count 5.

5. Limited leave to appeal against conviction was granted by the Full Court. The court stated that, after giving due allowance for the reasons for the time taken, “the case took a wholly exceptional period of timeâ€. Much of the hearing before us concerned the first ground. Mr Kovalesky QC, on behalf of the appellant, submitted that the trial judge was wrong to admit the bad character evidence of the three other allegations of rape because they were all disputed and to admit evidence of them was likely seriously to complicate and lengthen the trial and unfairly to divert its focus from the events charged on the indictment. These difficulties have been considered by this court on a number of occasions: see Hanson [2005] 1 WLR 3169 and Edwards and others [2006] 2 Cr. App. R. 4 , and, since the judge’s ruling in the present case, McKenzie [2008] EWCA Crim. 758 and DM [2008] EWCA Crim. 1544 . None of those cases concerned a trial of anything like this length.

6. The second ground upon which leave to appeal was granted concerned the judge’s directions as to the use the jury could make of the bad character evidence. This ground has two limbs. The first concerns the direction that the bad character allegations were capable of mutually supporting the truth of the other allegations. The second is that the judge failed to direct the jury adequately or at all as to the weaknesses the defence alleged in relation to each bad character allegation. Mr Kovalesky did not pursue the first limb. He was right not to do so. It was unarguable in the light of the decisions of this court in Wallace [2007] 2 Crim App. R. 30 ; DM [2008] EWCA Crim 1544 , and Freeman and Crawford [2008] EWCA Crim. 1863 .

7. The decision to admit the evidence of bad character was made by the judge on 15 February 2006, after a two-day pre-trial hearing. On 5 December 2006, the day before the trial was listed to start, he rejected an application to exclude the bad character evidence under section 78 of the Police and Criminal Evidence Act. On 20 February 2007 at the conclusion of the prosecution’s evidence relating directly to OP’s complaints, and before the bad character evidence was called, the defence submitted there was no case to answer and that the bad character evidence should not be admitted. The judge rejected these submissions.

The circumstances of the trial:

8. Following the ruling permitting the admission of the bad character evidence it was estimated that the trial would last four months and would end in the middle of April 2007. In the event it started on 6 December 2006 and lasted six and a half months. The defendant completed giving evidence and the defence case was closed on 23 May 2007. The judge started his summing up on 7 June. The jury retired on Thursday 14 June and returned verdicts on Friday 22 June. We have set out the chronology in an Appendix to this judgment. Before turning to the facts of the case and the rulings concerning the bad character evidence, we refer to the factors other than the bad character evidence that contributed to the length of the trial.

9. There were anticipated breaks for holidays including Christmas and New Year, and Easter. The condition of the appellant’s health meant that there had to be frequent short breaks during the trial to enable him to take medication. There were also other breaks to enable his condition to be assessed by Matron at the Central Criminal Court and for him to receive treatment. The trial was adjourned between 10 and 23 January 2007 (during OP’s cross-examination) because the appellant went into hospital for colon surgery. The Crown’s skeleton argument states that because the defendant had apparently instructed his legal team not to concede any point the Crown was required to prove matters which in many trials would have been uncontentious or admitted. The unpredictability of breaks because of the appellant’s health and his general approach undoubtedly made the judge’s task a difficult one.

10. After the judge’s ruling on 20 February 2007 (see [7] above) the appellant dispensed with the services of his counsel, Mr James Turner QC and Mr Hodivala. He was given some days to consider his position and decided to represent himself. It appears from the court record that the appellant acted on his own behalf between 23 February and 21 March 2007. Following an application by the Crown that the appellant not be allowed to cross-examine the three women whose allegations of rape were admitted as bad character evidence (see rule 31.1(2) of the Criminal Procedure Rules) the judge instructed Mr Bruce Houlder QC to cross examine them.

11. Mr Houlder and the applicant were provided with papers and given time to read and prepare. The court did not sit between 24 February and 6 March to enable Mr Houlder to prepare his cross-examination of CD. The evidence relating to CD’s allegations was heard on three days and completed on 9 March. The court did not sit between 10 and 14 March to enable Mr Houlder to prepare his cross-examination of AB. The evidence relating to AB’s allegations was heard on 6 days between 15 and 20 March.

12. During this time the jury sent a note expressing concern at the appellant’s ability to represent himself, and he chose to reinstruct counsel. Mr Hodivala was able to return to the case but professional commitments precluded Mr James Turner QC from doing so and the defendant did not wish to instruct Mr Houlder. A second leading counsel Mr Kovalevsky QC was instructed. There was a further adjournment and delay between 21 March and 17 April while Mr Kovalevsky was given time to read and prepare. The trial thus resumed at about the time the judge had told the jury it would end.

13. The defendant was admitted to hospital on various dates between 16 and 22 May, while he was being cross-examined, because of concerns about his health. Mrs. May, who led for the Crown at the trial, informed us that, after the defence case was closed on 23 May, there was a two week break in the trial to accommodate a pre-booked holiday by a juror.

The charges on the indictment; OP’s allegations

14. We return to the allegations that led to the charges concerning the index offences. OP was a registered drug addict. She said that she met the appellant on 8 September 2004 at the home of a man called QR where crack cocaine was being smoked. She agreed to rent him a room in her flat. She said she did so because she wanted a shoulder to cry on and needed a friend, and that she allowed him to cuddle her, but told him she was not interested in men because she liked women. On 15 September she allowed him to perform oral sex on her but pushed him away when he tried to have sexual intercourse with her. She said she smoked crack supplied by the appellant and, against a background of continued use of crack, remained in his company. She said she felt that he expected her to have sex with him and was threatened. She said he said he wanted to have sex with her, accused her of “sucking cocks for rocksâ€, and kept on about the fact that she slept with her dealer who was black, and could not understand why she would not sleep with him.

15. OP said the appellant continued to ask her for sex and on 16 September she told him she would have sex with him if he could get her some crack. While he was out getting the drugs, she changed her mind and, when he returned, told him she did not want to have sex with him. She said he became angry because she was blowing hot and cold and told her that, but for the children, he would have killed his wife when he found she had cheated on him, and that he burned prostitutes and made them jump out of the window. He got a large knife from a kitchen drawer and said he would make her death look like suicide, held the knife to her throat, threatened her, and told her to swallow the largactil tablets. She said he used shoe laces to tie her to the bed and, after he noticed that she had not taken the tablets, made her take them. At some stage he untied her so she could use the bathroom but then told her to jump from the window. She said she was frightened he would kill her and submitted to sexual intercourse with him from behind in order to get away. She screamed while it was occurring.

16. OP said that the following morning, Friday 17 September, she was expected to visit her sister but the appellant said he would keep her hostage until Monday and demanded that she “fuck himâ€, but she refused. She said he then made her masturbate him and perform oral sex on him and then left the flat briefly. When he returned he told OP that she could go to her sister but when she told him she did not want to see him again he locked the door, picked up the knife, and said she was staying with him all day. She said he continued to threaten her with a knife, and then pulled her out of the flat and said he was going to kill members of her family. Eventually he threw the knife away saying he did not want to hurt her. They went to where her sister lived by bus and he returned her keys.

17. OP said she told her sister about the events and that on Saturday 18 September the appellant telephoned asking where she was and made threats to kill her family. She complained to the police on Monday 20 September.

18. The appellant claimed that OP’s account was completely unreliable. He maintained that he was a client of an escort agency for which OP worked as a prostitute and that he had had a number of paid encounters with her. He told police officers that as far as he knew OP was working for an escort agency and produced an escort agency’s card from his wallet. He said he knew that OP was a drug addict, was concerned about this and wanted to help her. He thought that over the months a romantic attachment had grown between them and said he believed all the sexual relations between them were consensual. He did not admit the particular offences alleged between 15 and 17 September but said that if they did occur, there was consent or he believed there was consent. His case was that OP had been put up to making the allegation by a woman named ST with whom she had formerly been in a lesbian relationship.

19. When the appellant was arrested he had a handwritten letter in his possession which purported to be signed by OP giving him authority to remain in her flat. He claimed he wrote the body of the letter and she signed it. He said he thought he should have a letter of this sort to avoid any aggravation with neighbours who did not know him. A handwriting expert considered that there was strong evidence that OP did not write the letter but was not able to give an opinion about who wrote the signature. The owner of the escort agency gave evidence. She said the agency knew the appellant as a customer but was sure that OP had not worked for them and said that the agency avoided drug users.

20. SS denied that she was a prostitute or had been in a consensual relationship with the appellant. She admitted that she had consensual sex with her drug dealer. She was cross-examined over 4 days during which time her credibility and her character were challenged. She agreed she had not told police what had happened when she first contacted them. She said she had not told the police about the allegation of rape because she had not found it easy to speak about rape to the police and she felt she had brought it upon herself. She was cross-examined about this and other failures and about inconsistencies between her statement and her evidence. For example, she was cross-examined about the fact that her statement said that on the Wednesday night she let the appellant perform oral sex on her followed by his starting to have sexual intercourse with her until she pushed him away, but in her evidence she had insisted it was only on the Thursday that the appellant had sex with her and that it was rape.

21. There was medical evidence that OP had serious problems probably linked to drug and alcohol abuse and a history of sexual abuse. Analysis of her blood and urine detected alcohol and a number of drugs including largactil and citalopram. Professor Forrest stated that taking the largactil and then falling asleep after sexual intercourse was consistent with her account, but the findings of largactil in her system was also consistent with her taking it at other times. Accordingly, he could not exclude the possibility that the largactil had been taken at an earlier date. He said that in combination largactil and crack cocaine might result in aggressive and unpredictable behaviour.

22. The defence relied on a number of weaknesses in the prosecution’s case about OP’s allegations and in particular in her evidence. These were set out in a schedule. They included the unreliability of her evidence as to when she first met the appellant because she said that when she first met him she was “cracked out of her nutâ€. When giving evidence she said she met him at QR’s home, but also said that she had not met the appellant before she went to his flat. The defence also relied on inconsistency between her evidence that they only had sex once and the contents of her statement, and on changes in her evidence as to the date on which she was imprisoned. As well as 15 September (the commencement of the indictment period), she referred to 14 and 10 September, but a CCTV image dated 14 September shows her standing in a queue at the Post Office with the appellant.

23. The court also heard evidence from OP’s parents, her two sisters, J and K and from ST, QR, and the police officers who attended her flat in response to a request to assist in getting a person out of it. Her family gave evidence of telephone calls from the appellant asking for OP, claiming to be her partner and saying she was pregnant and was having his baby. OP’s sister J, who lived at the family home, said she opened a letter addressed to OP and found a photograph of herself inside with a message from the appellant on the back to OP to call him or else he would “come down your mum’sâ€which she took to be a threat although the appellant denied this. Her mother said his manner was angry and she took what was said as a threat and her father said he found the appellant’s tone threatening.

24. SS’s mother said that, after her she spoke to the appellant on the telephone, OP, in distress, told her that she had been held hostage but did not mention any sexual assault. OP’s father said that after OP complained about the appellant and said he had been involved with a firearms offence, he called the police. ST was a reluctant witness. She said OP told her about the events including that the appellant hit her, knocked her over, gave her different tablets and raped her. She also said she had not seen a man in OP’s house during August and September, and had never seen the appellant before although the appellant claimed he had met her.

25. QR said that OP first met the appellant when they smoked crack at his (QR’s) flat. Later the same day or within a couple of days she said she liked the appellant and wanted to go to bed with both the appellant and QR, adding that she was a lesbian. QR said that a week later she passed him a note for the appellant to the effect that the appellant was a nice man and the appellant may have misread the note as a sexual advance. He said that after that the appellant and OP visited his address on two further occasions. On the first of these he understood that the appellant was lodging with OP. On the second visit he was holding her by the arm and dragged her in. He thought that on the second visit when the appellant was holding her he was being possessive but not holding her prisoner.

26. One of the police officers who attended OP’s flat in response to a request to lend assistance in getting somebody out of it said OP said she had not asked the appellant to leave because she was scared and he had forced her to have sex with him. He said her account included threats to kill, use of a knife, making her swallow pills, and crying when he penetrated her from behind. She said that she had given in to the appellant’s demands on the Friday because she just wanted to get out of the house but that he then prevented her from leaving. The officer stated that OP was shaking and distressed while she gave her account.

The relevant legislation:

27. Before turning to the evidence of the allegations by the three other women; AB, CD and EF we set out the relevant parts of sections 101 and 103 of the CJA 2003.

“’Defendant’s Bad Character’

101.–(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if —

…

(c) it is important explanatory evidence,

(d) it is relevant to an important matter in issue between the defendant and the prosecution …

(3) The court must not admit evidence under subsection (1)(d)… if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

‘Important explanatory evidence’

102.–For the purposes of section 101(1)(c) evidence is important explanatory evidence if –

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.

‘Matter in issue between the defendant and the prosecution’

103.–(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of –

(a) an offence of the same description as the one with which he is charged, or

(b) an offence of the same category as the one with which he is charged.

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.â€

28. Section 101 requires a two-stage procedure. The first stage is to determine whether the bad character evidence meets the “gatewayâ€criteria for the admission of evidence of a defendant’s bad character contained in section 101(1). Mr Kovalesky accepted that the evidence of the allegations made by AB, CD and EFmet the criteria in section 101(1)(c) or (d) and was accordingly prima facie admissible: see Weir [2006] 1 WLR 1885 at [35]-[36]. This appeal is concerned with the second stage of the statutory procedure, which is contained in section 101(3). That requires the court to exclude bad character evidence that is prima facie admissible under section 101 if it would be unjust to admit it.

29. Section 101(3) only applies to bad character evidence relevant to an important matter in issue between the defendant and the prosecution (section 101(1)(d)) and where the defendant has made an attack on another person’s character (section 101(1)(g)). It is in mandatory terms. Its wording is more emphatic than that of section 78 of the Police and Criminal Evidence Act 1984 which uses the word “mayâ€. However, if, when considering the application of section 78, the court decides the admission of the evidence would have such an adverse effect on the fairness of the proceedings, it cannot, as Auld LJ stated ( Chalkley [1998] QB 848 , at 874), logically exercise a discretion to admit. Accordingly, this difference in the wording of section 101(3) and section 78 may in itself not be significant: see Tirvanenanu [2007] 1 WLR 3049 .

30. The bad character provisions in the CJA 2003 are based on recommendations made by the Law Commission: Evidence of Bad Character in Criminal Proceedings, Law Com. No 273, (2001). They do not, however, contain the main safeguard proposed by the Commission. The Commission’s proposal was that, subject to limited exceptions, the prosecution should only be permitted to adduce bad character evidence with the leave of the court. As we have observed, the Act provides that bad character evidence that meets one of the gateway criteria in section 101(1) is admissible. Professor John Spencer, in his Evidence of Bad Character (2006) at [1.15 ] has said that by this and other changes the Law Commission’s proposals “had been significantly ‘bent’ to make evidence of the defendant’s bad character more readily admissibleâ€. The only safeguards contained in the 2003 Act are those in section 101(3) and section 107. Section 107 only applies after the close of the case for the prosecution and requires the judge to stop the case where the evidence is contaminated in a way that would make a conviction unsafe.

31. The importance of section 101(3), to which we return later in this judgment, is that where bad character evidence qualifies under the criteria and is prima facie admissible, it is the only provision in the 2003 Act itself available to a court when considering whether in fact to admit such evidence. This court indicated in Highton [2005] 1 WLR 3472 that that section 78 of the Police and Criminal Evidence Act 1984 also applies in this context, although it did not consider the provision should have been applied to exclude the evidence in that case. In Weir [2006] 1 WLR 1885 (the appeal of Somanathan), it was said that there was “no reason to doubtâ€that section 78 should be considered where section 101(1)(f) is relied on (and section 101(3) does not apply), but again the court did not consider the provision should have been applied in that case to exclude the evidence. Although we note that in Davis [2008] EWCA Crim 1156 , it was said that the role of section 78 is “possibly controversialâ€under the CJA 2003, we agree with the indications in Highton and Weir that section 78 should be considered, as the judge did in this case.

The bad character evidence:

32. We have referred to the defence position. At the pre-trial hearing the defence submitted that admitting evidence of the bad character allegations by the three women would make a simple case complicated and would expand it out of all proportion and would be unjust. It would expand the case because the appellant denied the allegations, two of which had not resulted in a conviction, and the Crown would have to prove them. It would be unjust to admit the allegations because the defence would be handicapped in dealing with them. This was because of the age of the first two allegations, and because of the absence of some key statements and transcripts. In relation to the allegations by CD for which the appellant had been convicted it was argued the defence would be handicapped because the appellant had represented himself and absented himself from part of the trial.

33. The judge was referred to and considered the decisions of this court in Hanson [2005] 1 WLR 3169 , Edwards [2006] 2 Cr. App. R. 4 , and to the decisions of the House of Lords in O’Brien [2005] 2 AC 534 ; UKHL 26, and Z [2000] 2 AC 483 . The judge stated his task was to assess the potential significance of the evidence in the context of the case as a whole and assuming it to be true. In doing so he said, in the light of the decision in O’Brien , it was necessary for the evidence to have “enhanced evidential valueâ€, and that the lengthening of the trial by the additional evidence must not render the trial process unfair because what is required is a trial process fair to all parties. The judge had regard to the decisions in Edwards and Hanson and in particular the three questions set out in Hanson:

“1 Does the history of conviction(s) establish propensity to commit offences of the kind charged? 2 Does that propensity make it more likely that the defendant committed the offences charged? 3 Is it unjust to rely on the material and, in any event, will the proceedings be unfair if the material is admitted?â€: [2005] 2 Cr. App. R. 21 at [7].

34. We turn to the evidence of the allegations. The earliest allegation was by AB, who had lived with and entered into a bigamous form of marriage with the appellant, but they parted. She claimed that on 22 September 1982 he had smashed his way into her home, threatened her with a knife, threatened to kill her, and raped her. In his defence the appellant claimed he had gone to AB’s house to see the children and, in order to get him out of her life, AB made up the allegations with the encouragement of a Detective Inspector Wallace with whom she had had an affair. At the trial the appellant produced a photocopy of a photograph of AB with Sir Edward Heath and alleged there were photographs depicting her in compromising sexual circumstances in front of their child. AB denied that she had an affair with DI Wallace or that there were compromising photographs in front of their child.

35. On 14 March 1984 the appellant was acquitted of the charges of threatening to kill AB and of raping her. Subsequently the photocopy of the photograph produced at the trial was found to be a forgery, and the appellant was tried for perjury, making false statements and perverting the course of justice. He agreed that the photographs he had produced were forged but maintained that there were original photographs of AB, DI Wallace, Sir Edward Heath, and his children in pornographic poses. He maintained that those photographs were taken from him by the police. In October 1985 he was convicted of the forgery and perverting the course of justice.

36. In the present case the Crown submitted AB’s allegations were admissible under sections 101(1)(c) and (d) of the CJA 2003 as important explanatory evidence, and relevant to an important matter in issue between the defendant and the prosecution. The Crown submitted that AB’s evidence showed a propensity by the appellant to commit offences of the nature and with the same characteristics as those alleged by OP. It argued that AB’s allegations had the following common elements with OP’s allegations; an association that turned sour, threats to kill, use of a knife, reversion to a more normal state of mind after submission by the woman, and an attempt to discredit the complainant by calling into question her moral standards.

37. The judge did not consider the evidence was admissible under s 101(1)(c), but decided that it was admissible under s 101(1)(d). The principle in R v Z [2000] 2 AC 483 that similar fact evidence of an allegation which had led to an acquittal was in principle admissible had survived the CJA 2003 and AB’s allegation was one of reprehensible conduct by the appellant. The judge found that, because of the similar features he had identified, the evidence had the necessary enhanced probative value in relation to the allegations by OP. He took into account how long ago AB’s allegation’s were made, the fact that some statements were missing, there was only a partial transcript of AB’s evidence, and the need to ensure the trial of the charges based of OP’s allegations did not degenerate unreasonably into trial of satellite issues. He concluded that AB’s evidence showed a propensity to commit offences of the type charged, and made it more likely that the appellant committed the index offence, and that it was not unjust or unfair for it to be relied on.

38. As far as the convictions for perjury and perverting the course of justice are concerned the Crown argued the conviction was admissible to show a propensity for untruthfulness (sections 101(1)(d)) and 103(1)(b)) in that the appellant falsely sought to blacken AB’s character in defending the charge of rape by presenting her as a woman of loose morals and gross untruthfulness. The judge referred to the letter the Crown alleged the appellant had forged indicating OP had given him authority to stay in her home. Although the convictions were 20 years earlier the judge found the convictions by their nature showed a propensity for the appellant to be untruthful, and by their nature made it more likely he committed the offences charged.

39. The evidence concerning AB’s allegations came from her and three other witnesses, and took six days of court time. In his evidence the appellant maintained the account he had given at the two trials.

40. When summing up, the judge drew attention to the aspects of AB’s evidence which the defence relied on to show she had lied. These included the absence of any reference to rape in her initial complaint, which the defence said was a significant inconsistency, AB saying that her daughter had been present at the time but that the daughter was keen to go to Margate with the appellant the next day, and her admission to lying on oath at the appellant’s committal hearing. The judge told the jury that it was not very clear what AB was admitting to lying about, that it was all a long time ago, and that they should bear that in mind in assessing the appellant’s ability to defend himself on these matters. He said “that is a ground for considering [AB’s] evidence with caution. Take a special care over her evidence in those circumstancesâ€.

41. The second tranche of bad character evidence related to the allegations made by CD. She said she had a friendly non-sexual relationship with the appellant who gave her cannabis which she could not afford to buy, and that he frequently made sexual advances to her which she indicated were not welcome. She said that in December 1987 she went out with him and her three-year old son to find the boy’s father. They did not do so and, after visiting various public houses in which she drank some two pints of lager and smoked some cannabis with the appellant, they returned to the flat.

42. CD said that in the flat the appellant made sexual advances and she made it clear they were not welcome. When he tried to kiss her and she pushed him away he punched her in the face and then kept her in the flat against her will for 12 hours. She said he threatened her and she submitted to sexual intercourse through fear. She escaped with her son when he fell asleep. The appellant said that he paid for sex with CD, and that she was on the game. He said she made the allegations up after they had a row because he realised she was ripping off charities. On 9 November 1988 the appellant was convicted of raping CD and sentenced to 6 years imprisonment. In March 1989 he was also sentenced to a consecutive sentence of 8 years imprisonment for grievous bodily harm and a firearms offence, making a total of 14 years. It appears from the ruling on the bad character applications that the judge was told the appellant was released on 9 October 1997.

43. The Crown relied on section 101(1)(d) and 103(1)(a) of the CJA 2003, submitting that CD’s evidence showed the appellant has a propensity to commit offences of the same nature and with the same characteristics. Those characteristics were; befriending a victim, paying for her cannabis, and making sexual overtures which were repulsed, and then telling the victim she could not leave, threatening to kill her, and using violence against her which led to her being scared into submitting to sexual intercourse. The judge found that the similarities in the allegations were significant and cumulative and that the enhanced probative value of the evidence well exceeded the prejudicial effect of introducing it. The judge took into account the time since the conviction, but also the fact that during that time the appellant had spent a lengthy period in custody.

44. The jury heard evidence about CD’s allegations and the conviction from her, four other live witnesses, and two witnesses whose statements were read. It took three days of court time. In his evidence to the jury in this case the appellant substantially repeated his account at the earlier trial. He denied he had supplied CD with cannabis or threatened her and said she was on the game and he paid her for sex.

45. When summing up the evidence about CD’s allegations, after summarising the appellant’s account, the judge referred to the aspects of CD’s evidence which the defence submitted showed she had lied and the inconsistencies in her evidence. He also referred to the evidence of the doctor who examined her that he had found no marks on her body, and that CD had consumed more alcohol than was wise.

46. The third allegation was by EF. She, like OP, was a drug addict. In her case the addiction was to cannabis. She alleged that in 2000 the appellant raped, falsely imprisoned and indecently assaulted her. She said the appellant struck up a friendship with her and her boyfriend, supplied them with cannabis and visited their flat frequently. There was a row when they requested him to stop calling on them so much after he showed EF photographs of a person who he said he had shot in the kneecaps, and she did not want him to visit. EF said that about a week later he apologised and, after spending the day in her flat, sat on her bed and said he wanted to have sex with her and knew she felt the same. She said he behaved aggressively. Although she did not consent she submitted to intercourse through fear. She did not shout out because she was scared. She also said that he made her sit in his car and drove away with her. While they were in the car he threatened her, saying he was going to kill her and dump her body. She said he also told her that if she was pregnant he did not care if the boyfriend was the father because he would treat the baby as his, and only drove her back to her flat when she agreed to tell her boyfriend she was leaving him for the appellant. At the flat he pushed her into the bedroom, made further threats and tried to have sex with her. EF said her boyfriend banged on the door and the appellant took a knife saying he would stab the boyfriend. She said she persuaded the appellant to call the police whose arrival defused the situation. She fled to Scotland with her boyfriend a few days later and did not report the matter for a year.

47. As a result of EF’s allegations the appellant was charged and tried at Harrow Crown Court in September 2003. However, the judge in that case stayed the proceedings on the ground of abuse of process. She did so because, while being cross-examined by defence counsel, EF said, “you are trying to put a rapist back on the street for a second timeâ€and thus confirmed an earlier submission made by the defence that her evidence had been contaminated because she had been told of the appellant’s conviction for rape.

48. The Crown also relied on section 101(1)(d) and section 103(1)(a) of the CJA 2003 in respect of EF’s evidence. The similarities in her allegations and those of OP were said to be; the appellant striking up a friendship with a drug addict victim, supplying the victim with cannabis, recounting stories of violence committed against others, making sexual advances to the victim in her flat, and, after rejection of those advances, forcing her into sexual intercourse through fear.

49. The defence submitted EF’s allegations had been contaminated and should not be admitted in the present case. They relied on section 107 of the CJA 2003 which requires a case in which bad character evidence has been given to be stopped if the evidence has been contaminated and a verdict would be unsafe. The judge rejected this submission. He said he had power to keep the admission of evidence under control and did not consider the matter had so undermined EF’s credibility that she should not be regarded as reliable in relation to her allegations against the appellant. He also considered that he could deal with this issue by an appropriate direction about contamination. Again the judge found the similarities showed enhanced probative value and that the evidence should be considered by the jury. It showed a propensity by the appellant to commit offences of the kind charged and it was not unfair to admit it.

50. The evidence concerning EF’s allegations came from her and three other witnesses and took seven days of court time. In his evidence the appellant claimed EF was lying. He said he had a consensual sexual relationship with her for about two months and had paid her for sex.

51. The judge drew the attention of the jury to the discrepancies between EF’s account and doctors’ notes, and her acknowledgement that she had lied to doctors. He directed the jury that they should take special care about EF’s evidence in the light of a comparison of her account that her boyfriend was not violent and certain 999 calls which she had made. He also drew their attention to EF’s failure to complain about being sexually assaulted and falsely imprisoned in any of the large number of telephone calls she made at the material time, or to the police when they called at the appellant’s flat, and to the different reasons she had given for failing to report matters for a year.

Discussion:

52. Mr Kovalesky submitted that the judge erred in his approach to the balancing exercise required by section 101(3). Although some of what subsequently happened during the trial had not been foreseeable, the difficulties of allowing evidence of the three allegations of rape, each of which amounted to a complicated case, were foreseen. As a result he submitted the convictions are unsafe.

53. At the heart of the appellant’s case is the submission that, although the bad character material may have been admissible, it seriously diverted the focus of the trial and amounted to the sort of satellite litigation which this court in Hanson and in Edwards (which were before the judge when making his ruling) stated should not occur. In Hanson [2005] 1 WLR 3169 at [12] this court stated that “where past events are disputed the judge must take care not to permit the trial unreasonably to be diverted into an investigation of matters not charged on the indictmentâ€. In Edwards and others [2006] 2 Cr. App. R. 4 , at [1(vii)], in the context of an allegation rather than a conviction, the court stated; “this is an area in which it is important to guard against satellite litigationâ€. Similar injunctions against this danger have been given in the recent decisions of McKenzie [2008] EWCA Crim. 758 at [22]-[24] and DM [2008] EWCA Crim. 1544 at [22].

54. There were a number of difficulties with the bad character evidence the Crown wished to adduce in this case. One was the age of the incidents involving AB and CD. In the case of CD the conviction was for conduct some 17 years before the allegations made by OP. The allegations by AB were even older. They alleged conduct by the appellant 5 years before those by CD; that is 22 years before those by OP. Secondly there was only a single conviction. In the light of what this court stated in Hanson at [9] it is normally difficult to show propensity from a single conviction in itself. It is only where the conviction shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged that a single conviction may show propensity.

55. The third and, in our view, the most serious difficulty with the Crown’s application to adduce evidence of all three allegations and to call all three complainants is that so much of what the Crown wished to adduce was disputed. It was known at the time the Crown’s application to adduce the bad character evidence was first considered that all the facts of the allegations by the three women were contested. Accordingly, particularly in the case of the allegations that did not result in a conviction, proof of the previous alleged misconduct would require the trial of a three collateral or satellite issues as part of the trial of the applicant for the offences with which he was charged.

56. This was not a case like McKenzie [2008] EWCA Crim 758 , in which the allegations of prior misconduct had never been investigated by the police and the incidents had not been drawn to the defendant’s attention at the time they were said to have happened. What was said in that case about the difficulties is, however, relevant. Delivering the judgment of this court, Toulson LJ referred to three potential difficulties that need to be considered in such cases. The first is the need to consider whether admission of such evidence would result in the trial “becoming unnecessarily an undesirably complex even if not unfairâ€: [2008] EWCA Crim. 758 at [22]. The second is the danger of a trial of collateral issues not only adding to the length and cost of the trial but “complicating the issues which the jury has to decide and taking the focus away from the most important issue or issuesâ€(ibid at [23]). The third is what the court described as the dilemma that “…if allegations of previous misconduct

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are few in number, they may well fail to show propensity even if they are true, but the greater the plethora of collateral allegations, the greater the risk of the trial losing its proper focusâ€: (ibid at [22–24]).

57. In this case the Crown, perhaps mindful of the difficulties in prosecuting rape cases, considered it needed the evidence of all three bad character complainants. It did so because it considered the appellant was masterly at manipulating vulnerable women such as OP, a drug addict, and defending himself by reviling them in a way which, but for the evidence of similar allegations by others and similar defences, might well cast doubt on her allegations. Mrs May did not accept the suggestion that the bad character evidence was adduced to bolster a weak case. She submitted that in this case the evidence was vital to a fair consideration of OP’s allegations. She submitted that the judge clearly understood the test in Hanson to which we have referred and directed himself correctly in admitting the evidence. Indeed, she said the judge applied a more stringent test than was required because he required each element of the bad character evidence to possess “enhanced probative value, a requirement greater than in fact necessary for admissibility under the CJA 2003: see Weir [2006] 1 WLR 1885 , at [36].

58. It is undoubtedly the case that the feel of a trial judge for the case in hand is very important in this context and that an appellate court should hesitate before interfering with the trial judge’s conclusion on a matter of judgment: see Renda [2006] 1 Cr App R 380 at [57]; Edwards and others [2006] 2 Cr. App. R. 4 , at [1(viii)], [27] and [51], and DM [2008] EWCA Crim 1544 . The Crown submitted that in this case the judge was in a particularly good position to weigh the strength of the prosecution case and the other issues concerning the admission of the bad character evidence before that evidence was admitted. This is because, apart from the extensive pre-trial hearing at which the matter was first considered, he reviewed the position on 20 February 2007 when considering the renewed application after all the evidence directly linked to OP’s allegations had been adduced.

59. The judge approached the question of admitting each of the three categories of bad character evidence with considerable care. There were undoubted similarities between OP’s allegations and the three other allegations. There were particular similarities to the allegations made by CD and EF. Both were vulnerable young women who alleged the appellant befriended them, supplied them with their drugs, when they rejected his sexual advances because unpleasant, threatened to kill them and raped them. In both cases the appellant had sought to discredit them in the same way he sought to discredit OP; by saying that he had paid them both for sexual favours to which they consented.

60. We have referred to the importance of section 101(3) of the CJA 2003 at the stage the court first considers an application to admit bad character evidence: see [29] – [31]

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above. It is incumbent upon a judge considering the application to try to project forward to see the problems which might later arise in the trial as a result of the disputed bad character evidence being admitted before ruling on the application. This is because, once the evidence is admitted, unless it has been contaminated (and section 107 applies) the question is of its weight. The judge will then only have limited remedies open to deal with problems that arise thereafter. After a decision to admit the evidence the prosecution will, absent a direction not to do so, open the case on the basis that the bad character evidence will be adduced. If, during the trial but before the evidence is adduced, it becomes clear that admitting it will be unfair or will so complicate the trial that the jury cannot properly consider the matters before them, since they have been open to the jury, there may be difficulties in revisiting the matter and it may be necessary to discharge the jury. After the evidence has been adduced the difficulties will increase.

61. The judge’s concern to give the appellant every opportunity to put his case was evident both in conducting the balancing exercise under section 101(3) when making his ruling in February 2007, and during the course of the trial. While recognising the difficult task that the judge had in this case, we have concluded that he fell into error in his consideration of the section 101(3) matters. This is because he did not or did not adequately consider the cumulative effect of the introduction of three separate contested issues into the trial on its overall length and on the jury, or how the evidence might be timetabled or truncated. A judge has wide case management powers under the Criminal Procedure Rules. We have referred to the overriding objective, as set out in Part 1 Rule 1.1(2)(e), which requires all criminal cases to be dealt with “efficiently and expeditiouslyâ€. All participants in criminal proceedings must prepare and conduct the case in accordance with the overriding objective; see Part 1, Rule 1.2 (1)(a) and the judge’s powers under the rules include power to give directions on the court’s own initiative (rule 3.5(2)(b)), and to identify a timetable (rule 3.10 (h)).

62. The importance of controlling the length of trials and of their being conducted in a way that enables juries to retain and assess the evidence which they have heard was emphasised by Lord Woolf, then Lord Chief Justice, when handing down the Protocol for the Control and Management of Heavy Fraud and Complex Criminal Cases on 22 March 2005. We have observed that this case was in essence not even a particularly complex criminal case, but what is stated in the Protocol is of relevance. The Protocol states that if the jury cannot retain and assess the evidence which they have heard “the trial is not fair either to the prosecution or the defenceâ€. It also states that “there is a consensus that no trial should be permitted to exceed a given period, save in exceptional circumstances; some favour three months, others an outer limit of six monthsâ€. Lord Woolf favoured the three-month period and, when handing down the Protocol, stated that: “it is implicit in the Protocol that trials of six months are just not capable of satisfactory disposalâ€. The ruling that evidence of the three bad character allegations could be adduced led to an estimate that the trial would last for four months. That in itself should have rung warning bells to the judge when undertaking the balancing process under section 101(3), especially since this was a trial of a single defendant concerning a single complainant, albeit on an indictment containing seven

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counts. If as we understand to be the case when the decision to admit the bad character evidence was made it was estimated that the trial would last for four months, this indicates to us that those who subscribed to this view were in the wrong mindset. The judge should have told the parties it was not going to last for four months and taken steps accordingly, the most obvious being to limit or exclude the bad character evidence; other steps include setting a firm timetable.

63. In Hanson (at [12]) the court stated it is necessary to examine each individual conviction rather than the name of the offence or the defendant’s record as a whole. In principle the same is true of allegations. When considering the impact of the bad character evidence on the fairness of the trial where there are several convictions or allegations, it is also necessary to consider their cumulative effect on the trial. The judge considered the position of the defendant in relation to dealing with each individual conviction or allegation, but does not appear to have considered the cumulative effect of the three disputed allegations on his position. But it is not only the position of the defendant that must be considered. It is particularly important to assess the cumulative effect on the jury of receiving the evidence where it is disputed.

64. Although, as was said in McKenzie, the greater the number of collateral allegations the greater the risk of the trial losing its proper focus (see [56] above), it is not the number of allegations in itself which is problematic. For instance, in Z [2000] 2 AC 483, there were four previous complainants and the defendant had been acquitted on three occasions. As Mrs May observed, there are many trials involving charges of sexual offences by a number of complainants where the jury is able to cope. The important factor is not the number of allegations but their nature and complexity, and the time it will take to put them before the jury where they are contested.

65. In this case there were significant complications with the allegations. Only one was supported by a conviction, which this court in McKenzie (at [23]) referred to as the launch pad for establishing propensity. Without that launch pad, a trial of the collateral or satellite issues is necessary with the dangers to which we have referred. Because the evidence was disputed, significant factual issues would have to be explored in relation to all three allegations, each of which needed witnesses. As Moses LJ stated in DM at [22] the jury would need “to consider with as much detail and concentration all the factsâ€in relation to each of the three allegations as they would in relation to the offences with which the appellant was charged, before relying on it in relation to the index offence. This is because the jury would have to be sure those allegations were true before relying on them in relation to the index offence. Our summary of the bad character evidence shows that the issues that would have to be explored in relation to each of the allegations and each of the bad character complainants were not straightforward: see [32] – [33], [38], [43], [45] and [49].

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66. Additionally, because the appellant had been acquitted of the rape of AB and the proceedings arising from EF’s allegations had to be stayed, the judge had to consider and direct the jury as to the meaning of, in AB’s case, the implications of the acquittal, and in EF’s case of the stay. The position has similarities to that in DM where the Scottish proceedings resulted in a verdict of not proven and if bad character evidence were admitted the judge presiding over in DM’s trial would have to direct the jury as to what that meant. In that case Moses LJ stated this, together with the need for the detailed examination and scrutiny of the evidence to which we have referred, combined “to provide a paradigm of the satellite trial which a trial judge ought to avoid lest the focus of the jury should be diverted and deflectedâ€.

67. In this case the Crown’s response to the difficulties the defence said it would face if the bad character evidence were adduced was to offer to make admissions and to call witnesses other than AB, CD and EF, whom they wished to call. For example, in relation to the oldest set of allegations, those by AB, the defence pointed to the absence of a contemporaneous note of her original complaint or transcripts of her evidence. The Crown maintained that the difficulties said to arise could be met by a combination of admissions on some matters and the availability of transcripts prepared for the perjury trial, including transcripts of the appellant’s evidence at the earlier trial, and of the original prosecution papers. In relation to CD’s allegations, while there was no transcript of her evidence and no statement by the person to whom she first made the complaint, there was a statement by UV, to whom she went very soon afterwards and whom the Crown offered to call and who was called. The Crown also offered to call and called Dr Craig who had examined CD after she made her allegation, and a forensic scientist. The judge accepted the submission that the fairness of the proceedings would be ensured by the admissions, the additional evidence and the available transcripts. The effect of admitting the evidence was, however, significantly to increase the number of issues the jury had to consider.

68. Mrs May submitted that, although the Crown wished the three bad character complainants to give evidence, it was not that which complicated the trial. She submitted the complications that arose from this evidence were the result of the position of the defence in relation to it, including the request that other witnesses give evidence. The remaining complications and delays did not result from the bad character evidence but from the appellant’s various health problems and his dismissing his legal representatives in February.

69. The appellant’s health problems, his instructions that no point was to be conceded, and the later disruption when he sacked his counsel and subsequently sought new representation undoubtedly caused significant and unforeseeable delay and understandable difficulty for the judge. The appellant was responsible for the delays caused by sacking his counsel and some three weeks later deciding he did after all want legal representation. He cannot, however, be criticised for the delays caused by his significant health problems during the trial. We also consider that the

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complications that arose from the bad character evidence cannot be ascribed to the defence in the way suggested by Mrs May.

70. Although the Crown wished to reduce the evidence to be put before the jury in respect of each allegation, it wanted all three bad character complainants to give evidence. Since the evidence was challenged it was inevitable that more witnesses would be required and that, in particular there would be substantial cross-examination of the three bad character complainants. Delivering the judgment of this court in L [2007] EWCA Crim 1912, Latham LJ (V-P) stated at [12]:

“… the proper position in cases where the prosecution, in order to put forward evidence of bad character in these circumstances, effectively has to ask the court to evaluate the evidence at a previous trial; is that, whilst the prosecution will inevitably seek to reduce to a necessary minimum the amount of material which goes before the second jury, nonetheless it can only do so if it is prepared to be in a position to put before the jury all the evidence which was available at the previous trial if that is the only proper way to ensure fairness to the defendantâ€.

The duty that lies on all parties to prepare a criminal case in accordance with the overriding objective includes consideration of the nature and extent of any application to admit bad character evidence. Here it was clear from the outset that the allegations by the three women were disputed and that they would be subjected to detailed examination and scrutiny.

71. What should a judge do when faced with an application to admit bad character evidence which is disputed but which the Crown submits is, in the light of the position to be taken by the defence, vital to a fair consideration by the jury of a complainant’s allegations? In the light of the particular warnings about the admission of such evidence given in Hanson and Edwards , warnings reiterated in McKenzie and DM , a number of matters should be considered. These include the exercise of the judge’s wide case management powers under the Criminal Procedure Rules to impose a timetable on both the Crown and the defence, and, after ascertaining whether evidence can be truncated without unfairness, to give directions to this effect. In this case consideration should have been given to directing the Crown to pick the best of the three allegations and only to consider whether to admit that evidence. Although, in Hanson it was said that it is normally difficult to show propensity from a single conviction in itself, the court did not rule it out in an appropriate case. Consideration should also have been given to the use of section 74(3) of the Police and Criminal Evidence Act 1984 in respect of the appellant’s convictions for raping CD and for forgery and perverting the course of justice. It was common ground before us that these matters were not considered at the pre-trial hearing that considered the admission of the bad character evidence.

72. The need for the witnesses and the extent of the issues concerning the bad character matters that were contested and would have to be scrutinised in detail were, as we have noted, known at the time of the pre-trial hearing and the judge’s subsequent ruling. The approach of the defence was known then. In the light of the nature of the

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similarities of the allegations made by the three women, we accept that there was a good case for some of the evidence to be put before the jury. But what happened was that all three allegations were put forward and there was no consideration of timetabling or whether the evidence could be truncated in some way. The judge was concerned to give the appellant every opportunity to put his case.

73. Mrs May submitted that the bad character evidence lengthened the trial by only some two weeks. In fact, it was lengthened directly by 16 days; that is by three weeks and one day of court sitting time. The Crown also relied on the fact that there were no indications that the jury was not focussed whether by notes from them or in any other way. Indeed, a juror who had serious problems with his feet towards the end of the trial was keen to remain part of the jury and to return, and did so. Mrs May also relied on the fact that all the questions asked by the jury were about the allegations concerning OP and not the allegations by the three other women. This is, however, not altogether surprising. The jury were told by the judge, as they had to be, that the bad character material was only of help to the prosecution if it helped them to come to conclusions so far as OP was concerned.

74. We have referred to the number of court days taken by the bad character evidence. In total 16 out of 42 days, i.e. some 38% of the days on which evidence was heard were taken up with bad character evidence. The significance of the bad character evidence in the duration of the trial can also be seen from the proportion of the summing up concerned with it. The summing up runs to 434 pages, of which 148 pages, about one third of the summing up, deal with the bad character evidence. This is a greater proportion than the quarter of a much shorter summing up in McKenzie’s case, and about which the court (at [33]) expressed concern.

75. We have been primarily concerned with the position at the time of the original decision to admit the evidence. After the significant delays caused by the appellant’s ill health and the adjournments that resulted from his dispensing with his original representatives the consequence for the duration of the trial was manifest. As we have said, after the trial started and the Crown had referred to the bad character evidence in opening its case, the judge’s remedies were limited. But, nevertheless, after the other problems in the trial had occurred and the consequences were appreciated, the various methods by which the bad character evidence could be timetabled, truncated or otherwise controlled should have been considered or, if they had been previously considered, reconsidered. They were not. We also understand there was no consideration at that stage of longer or more flexible sitting hours, again out of concern for the defendant. It might, for example, have been possible to sit more flexible hours to accommodate the appellant’s health problems without losing sitting time.

The adequacy of the judge’s direction to the jury

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76. We have noted (at [6]) that only the second limb of the second ground upon which leave to appeal was granted was pursued. Mr Kovalesky submitted that the judge failed to direct the jury adequately or at all as to the weaknesses the defence alleged in relation to each bad character allegation.

77. The judge directed the jury that they should only take into account those items of bad character evidence of which they were sure were reliable, that if it were possible that any of the evidence was contaminated that went to its weight and, “if there is a real possibilityâ€a witness’s evidence was “contaminated in a significant wayâ€they “should ignore that witness’s evidence entirelyâ€. The remainder of his directions followed the Judicial Studies Board’s Specimen Directions. The judge said that, if the jury were sure a witness was independent and that it was not possible that the witness was lying or mistaken, they should consider how similar the allegations were, and should not take account of the evidence if they thought it was insufficiently similar. Secondly, he said bad character evidence could not be used to bolster a weak case, and it was for them to decide whether the evidence showed a tendency to behave in the way alleged by SS, to be untruthful, or to make false attacks on prosecution witnesses. Thirdly, he directed them that the bad character evidence was only one factor to be taken into account and did not mean the appellant had the tendencies alleged or had made a false attack on a witness.

78. After giving the jury his directions on bad character the judge briefly outlined the various accounts given by the complainants and the defendant’s answer to them. The judge then summarised what the prosecution said and what the defence said. The prosecution’s case was that the bad character complainants had given remarkably similar accounts of their experiences at the hands of the defendant and that their evidence demonstrated his conduct to vulnerable women who came into his sphere. He said he did not specifically set out at that stage the significant similarities relied on by the prosecution because he had seen that many members of the jury noted them when Mrs May listed them. As to the defence he said:

“[The defence say] that the witnesses are not reliable, plainly they say that the evidence of [OP] is not reliable and they say that the evidence of the three other women is likewise not reliable and counsel invited you, in effect, to look at their background in assessing their reliability. He submitted boldly that they are all liars. He included his client in that description, the defendant, he said, lies to the police, but he has admitted that he lied to the police. … The defence say there are common features between the allegations but are they significant? None are unusual in themselves, that is what the defence are saying. Indeed, they developed matters by saying there are significant differences between the accounts. So those are all matters that you will have to consider.â€

79. Mr Kovalevsky said that the direction that bad character evidence could not be used to bolster a weak case came towards the end of “complicatedâ€bad character directions and did not explain to the jury in what ways the defence suggested the case was a weak one or in what circumstances they should ignore the bad character evidence.

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Our summary of the judge’s directions shows that the second of these submissions is misconceived. The judge directed the jury as to the probative force and limits of propensity evidence, and as to the circumstances in which they should ignore the bad character evidence in this case.

80. What of the submission that the judge did not explain to the jury in what ways the defence suggested the case was a weak one? We have referred to what the judge said about the weaknesses in the bad character evidence when summarising the evidence about each of the three allegations and as part of his narrative about those allegations: see [40], [45], and [51]. He dealt with AB and CD’s evidence on 7 June, the same day as his direction on bad character. He dealt with most of EF’s evidence on 12 June, but had also referred to it, mainly in relation to the contamination issue, on 7 June.

81. As to the weakness of OP’s allegations, the judge’s summary of her cross-examination runs to 57 pages of the transcript. Individual criticisms, for example that she did not initially allege she had been raped, her drug-taking, hallucinations, mental health, previous convictions, and alleged promiscuity, are dealt with in that narrative. This part of the narrative was dealt with on 12 and 13 June, the third and fourth day of the summing up, and five and six days after the judge’s directions on the bad character evidence. All that he said on 7 June, the day he directed the jury about bad character evidence, was the passage we have set out stating the defence suggested the evidence of OP was not reliable, but giving no particulars or examples.

82. We consider that in the case of bad character evidence, save in the simplest of cases, it is ordinarily desirable not just to comment on the strengths and weaknesses of the evidence as part of a narrative summary of the evidence of a witness, but also to draw the threads together. As well as directing the jury as to the probative force and limits of propensity evidence, we consider that it is ordinarily desirable to draw those threads together by giving guidance as to the strengths and weaknesses of the bad character evidence tailored to the facts of the case. This would put the cumulative impact of bad character evidence; both its strengths and its weaknesses, directly before the jury. In the present case, although the judge did not do this, in the light of all that he did say to them when summing up the case, we do not consider that this in itself affected the safety of the conviction.

Conclusion

83. Although an appellate court should hesitate before substituting its view for that of the judge in this context, for the reasons we have given, and notwithstanding the care with which the judge approached his difficult task, we consider that this is a proper case to do so. The admission of the totality of the bad character evidence and the consequent need to scrutinise the evidence concerning the three disputed allegations, two of which concerned events 17 and 22 years before the allegations made by OP, made the trial unnecessarily and undesirably complex.

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84. In the end we have to ask ourselves whether the conviction of the appellant is safe. This trial should not have lasted for six and a half months or anything approaching that. In our view the combination of the introduction of bad character evidence that led to the intensive investigation of satellite issues combined with the numerous interruptions to the trial and its overall length made it very difficult for the jury to keep its eye on the ball. Each member of the court is regrettably driven to the conclusion that the verdicts of the jury are not safe and therefore cannot stand. The appeal is accordingly allowed.

R v O’Dowd Appendix: Chronology of trial 2006

15 February Decision to admit bad character evidence after two day pre-trial hearing. In the light of ruling the trial was estimated to last four months

5 December Application to exclude bad character evidence under section 78 of PACE rejected.

6 December Trial starts.

16 Dec. 2006 – 2 Jan 2007 Adjournment for Christmas and New Year.

2007

10–23 January Adjournment because appellant in hospital.

20 February Conclusion of prosecution evidence relating to OP

‘s complaints; rejection of submissions of no case to answer and that the bad character evidence should not be admitted. Appellant dismisses his legal representatives.

24 February– 6 March Adjournment to enable Mr Bruce Houlder QC, instructed by the court, to prepare his cross-examination of CD.

7–9 March Evidence relating to CD’s allegation heard.

10–14 March Adjournment to enable Mr Houlder to prepare cross-examination of AB.

15–20 March Evidence relating to AB’s allegations heard. Following expression of concern by jury about appellant’s ability to represent himself, he chooses to reinstruct counsel.

21 March – 17 April Adjournment to enable new leading counsel to read and prepare.

15 April Original estimated date of end of trial.

17 April Trial resumes.

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16–22 May Defendant admitted to hospital on various dates in this period because of concerns about his health.

23 May Defence case closed.

24 May – 6 June Adjournment to accommodate a pre-booked holiday by a juror.

7 June Judge starts to sum up.

14 June Jury retire.

22 June Jury return verdicts.

For a summary of O’Dowd court cases and newspaper articles see  2017 Apr 1 Cathy Fox Blog Kenneth Kevin O’Dowd and the Ted Heath Photos [3]

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

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • 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

 

Posted in cathy fox blog, Child Abuse, Court, London | Tagged , , , , , , , , , , , , , , , , | 4 Comments

[O’Dowd3] Kevin Kenneth O’Dowd 28th November 2008 Court of Appeal

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 redacted by cathy fox blog for personal and assault details.

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

Index of Court Appeals on this blog [2]

[2008] EWCA Crim 3252

No: 200703874 B1

IN THE COURT OF APPEAL CRIMINAL DIVISION

Friday, 28th November 2008

Lord Justice Hooper

Regina

v.

Kevin Kenneth O’dowd


Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Mr J Hodivala appeared on behalf of the Applicant

JUDGMENT

(As approved by the Court)

1. SIR PETER CRESSWELL: On 22nd June last year at the Central Criminal Court before His Honour Judge Hawkins QC, after a trial which took place over a period exceeding six months, the appellant was convicted by majority verdicts of 10 to 2 and sentenced to life imprisonment (less 1001 days spent on remand) as follows:

Count 1—false imprisonment, life, minimum 9 years to be served.

Count 3—threatening to kill, 7 years concurrent.

Counts 4 and 7—rape, life as for count 1.

Count 5—administering poison with intent, 4 years concurrent.

Count 6—sexual assault, 7 years concurrent.

Count 2 (which charged rape) was quashed.

2. For a period during the trial the applicant dispensed with counsel and represented himself.

3. The renewed application for leave to appeal against conviction has come before the court today after refusal by the single judge. The applicant has been represented today by Mr Hodivala, pro bono, in respect of the original grounds 2, 7 and 8.

4. We grant leave in respect of two revised grounds, 1 and 2 as follows:

1. The learned judge was wrong to admit as bad character evidence an acquittal of rape in relation to [AB] , a conviction for rape in relation to [CD] and an alleged rape (where the complainant was [EF] ) stayed as an abuse of process.

2. The learned judge misdirected the jury as to the use that could be made of this bad character evidence and/or failed to direct the jury adequately, or at all, as to weaknesses the defence alleged in relation to each bad character allegation.

For the record, those two grounds replace earlier grounds 2, 5, 6, 7 and 8.

5. The appellant seeks leave in respect of grounds 1, 3 and 4. For reasons which appear below, we refuse leave to argue those grounds.

6. The alleged offences were said to have occurred between 15th and 18th September 2004. The prosecution case was as follows. The appellant locked the complainant in her flat and frightened her so that she did not dare to try to escape. He threatened to kill her with a knife, intending that she should fear that he would carry out his threat. He [Assault redacted] without her consent. He made her consume largactil tablets. He [assault redacted]

7. The defence case was that the complainant’s account was completely unreliable. The applicant maintained that he was the client of an escort agency and had had a number of paid encounters with the complainant. It was his perception that a romantic attachment had grown between them over the months. He knew, and was concerned, that she was a drug addict and wanted to help. He believed that all the sexual relations between them were consensual. He did not admit the particular offences alleged between 15th and 17th September, but if they did occur he said there was consent or he believed there was consent.

8. In February 2006 the Crown sought to introduce the following matters under the Criminal Justice Act 2003:

1. The alleged rape of AB in 1982 by calling evidence from AB. (The appellant was acquitted of rape of AB in March 1984)

2. Convictions for perjury and perverting the course of justice in October 1985 arising out of the rape trial.

3. The conviction of rape of CD in November 1988, by calling evidence from CD.

4. The evidence which supported the allegations by EF of rape, false imprisonment and indecent assault in 2000 by calling evidence from EF. The indictment arising from these offences was stayed in September 2003.

9. The defence argued that these matters would make a simple case complicated, expanded out of all proportion and unjust.

10. The judge’s reasons for permitting the introduction of these matters is found in volume II of the transcripts.

11. In December 2006 the defence made an application under section 78 of the Police and Criminal Evidence Act 1984 to exclude the bad character evidence on the basis that the Crown’s approach to adducing such evidence was unfair, contending that there had been difficulties with disclosure and that it was unfair to rely on the evidence. No transcripts from the trials relating to the complainants AB and CD were available, so the defence argued that it was not possible to know whether their evidence had been consistent with or had contradicted their statements. The applicant defended himself in the CD trial.

12. The judge referred to the defence list of reasons for exclusion and the extent of the evidence which the Crown was prepared to call, tender or read. The judge concluded that a fair trial was possible by the introduction of the evidence of the other complainants and the allegations arising out of the AB matter.

13. Once the complainant had given her evidence, the defence repeated the submissions that the bad character evidence should not be admitted under the 2003 Act or excluded under section 78 of PACE, adding that there was no proper case to answer on the basis that what evidence there was was vague, inherently weak and inconsistent. The judge ruled that the interests of justice were such that the jury should hear the evidence and that it was not unfair to admit it.

14. Mr Hodivala, for the appellant, has drawn the court’s attention to the case of R v McKenzie [2008] EWCA Crim 758 , and in particular to passages at paragraphs 22 to 26 and 33. He submits that the decision to admit the bad character material was wrong, improperly diverted the jury’s attention from the indictment evidence, and resulted in an unfair trial. Further, he submits that the summing up was insufficient to ensure the fairness of the trial.

15. In our opinion, the substituted grounds 1 and 2 merit consideration by the Full Court. We refer to the summing up volume VI, pages 10 D to 13 E, where the judge refers to some of the principal reasons for the time taken, including the defendant’s health problems and his dispensing with his counsel. After due allowance for these matters, the case took a wholly exceptional period of time.

16. We refuse leave in respect of grounds 1, 3 and 4. Our reasons briefly are as follows.

Ground 1

17. The judge was entitled, in the exercise of his discretion, to refuse the defence application that OP be called to give live evidence at the application to dismiss. The exercise by the judge of his discretion was not perverse or open to attack on other grounds. Further, in the light of all the material before him, the judge was justified in refusing to dismiss the prosecution case.

Ground 3

18. The judge was, in our opinion, entitled on the material before him, to conclude that QR was “not desirous of telling the truth to the court at the instance of the Crownâ€. As the single judge pointed out, the difference between QR’s evidence, summarised at 3 B to E of the ruling (transcript volume IV), and the material parts of his statement was considerable. The judge’s directions to the jury in this connection at volume IX, page 95 F and following, were adequate and appropriate.

Ground 4

19. In our opinion, the judge was justified in refusing to accede to a submission of no case at (a) the conclusion of the indictment evidence, and (b) the conclusion of the prosecution case, broadly for the reasons which he gave.

20. In the result, the appellant has leave to argue the two grounds to which we have referred, which replace the earlier grounds 2, 5, 6, 7 and 8. Leave is refused in respect of grounds 1, 3 and 4.

21. LORD JUSTICE HOOPER: Just going back to your grounds of appeal, are you objecting to the conviction for rape or of the evidence relating to the conviction for rape?

22. MR HODIVALA: Both, because it would be an argument that the single conviction for rape in 1988 did not amount to a propensity.

23. LORD JUSTICE HOOPER: Thank you. Make that clear, will you, when you do your skeleton argument?

24. MR HODIVALA: Yes, indeed.

25. LORD JUSTICE HOOPER: Make it clear you are complaining about, first, the fact that the evidence was called rather than just the conviction, and secondly, in any event, the conviction.

26. MR HODIVALA: Yes. Thank you very much.

27. LORD JUSTICE HOOPER: I think it would be helpful if you did a new skeleton argument which superseded everything you have done before, all your grounds of appeal. Essentially, cut and paste from what you have done before. Will you make it clear on the front that this is the only skeleton argument, and the others are to be discarded or tell the Registrar accordingly?

28. MR HODIVALA: Yes.

29. LORD JUSTICE HOOPER: As we have said, one day for the hearing. The court should have one day for reading. Can you do your skeleton argument in 14 days or 28?

30. MR HODIVALA: I have a heavy case load at the moment.

31. LORD JUSTICE HOOPER: Tell us how long.

32. MR HODIVALA: The early part of the New Year would be very much appreciated.

33. SIR PETER CRESSWELL: January 12th?

34. MR HODIVALA: I am grateful.

35. LORD JUSTICE HOOPER: If you can liaise with the Crown so we have a joint bundle.

36. MR HODIVALA: Certainly, I will liaise with the Crown.

For a summary of O’Dowd court cases and newspaper articles see  2017 Apr 1 Cathy Fox Blog Kenneth Kevin O’Dowd and the Ted Heath Photos [3]

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

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • 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

Posted in cathy fox blog, Child Abuse, Court | Tagged , , , , , , , , , , , , | 4 Comments

[O’Dowd2] Kenneth William O’Dowd 18 May 1978 Court of Appeal

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 J0518-3

No. 4173/A/77

IN THE COURT OF APPEAL

Thursday, 18th May 1978

Lord Justice Orr

Regina

v.

Kenneth William O’Dowd


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

MR. M. KALIPETIS appeared on behalf of the Appellant.

JUDGMENT

LORD JUSTICE ORR: The appellant in these cases appeals with leave of two single Judges against two sentences imposed upon him. The first sentence of twelve months’ imprisonment was imposed by Judge Layton at the Inner London Crown Court on 29th July 1977 for the theft of a motor car, the defendant having asked for another offence of receiving a different motor car to be taken into consideration; and the second sentence of three years’ imprisonment was imposed by Judge Buzzard at the Central Criminal Court on 15th August 1977 for an offence of wounding with intent to do grievous bodily harm, which was ordered to be consecutive to the term of imprisonment which the defendant was already serving.

The facts as to the offence of stealing the motor car were that on the night of 28th/29th November 1976 the appellant stole a blue Vauxhall motor car which had been left unattended near his home and substituted its registration number with that of a white Vauxhall motor car which he agreed to buy from an acquaintance. He was arrested on 29th November 1977 when a police officer observed that the car and its registration number did not tally.

The facts as to the offence of causing grievous bodily harm were that in the early hours of the morning of 17th December 1976 two young men called Bailey and Gayton called at the house of one Jean Russell. Another visitor, the appellant, had arrived before and he was spending the evening drinking with her. He became excited at the sight of Bailey and Gayton, both of whom he knew. An argument broke out, in the course of which the appellant attacked Bailey and stabbed him with a kitchen knife in the left side of the lower chest and also hitting him over the head with an electric iron. The three men then left the flat together and called at the home of a man named Knight where there was some conversation and they then left. Knight succeeded in calming the appellant down and taking the knife from him.

The appellant made a statement under caution, in which he admitted stabbing but alleged that it had been done in self-defence. The victim received treatment for a 3 centimetre laceration as an inpatient from 17th to 19th December 1977.

The course of events following the commission of the first offence was that on 17th February 1977 the appellant pleaded guilty to it and asked for the offence of receiving to be taken into consideration. Judge Layton, after reading a probation report, deferred passing sentence until 15th July 1977. On 23rd February of that year the appellant was arrested for an alleged offence concerning the theft of a television set and also for an offence of burglary. On the following day he was remanded in custody by the Lambeth Magistrates for trial in respect of those offencee. Applications by him on two occasions for bail were subsequently refused.

On 15th July the appellant was due to appear before Judge Layton in respect of the deferred sentence, but asked that the matter should be dealt with by another Judge, since Judge Layton had tried another case of his on 8th July when he was acquitted. That request was granted. On the same day Judge Cox, after hearing counsel, postponed sentence until after the trial in the case involving the television set. The appellant was acquitted on 8th July in regard to the burglary offence and on 29th July in regard to the television set.

In passing sentence in the first of the two matters with which we are concerned, Judge Layton referred to the Court having come to the conclusion that he could only be made subject to another term of imprisonment, but the Judge went on to say that he had been in custody for some time and that within the rules he would get credit for any imprisonment that he had served in relation to this matter.

The appellant is 31 years of age and has had a number of previous convictions. He has been convicted of bigamy with a woman with whom he has been living and by whom he has two children. Most of the offences were offences of dishonesty for which he received a number of prison sentences, the longest of them in 1974 being a total of two years. Since the sentence with which we are here concerned, he has received two further prison sentences, one of fifteen months on 8th December last year at the Inner London Crown Court for taking a conveyance and another of four years’ imprisonment on 10th January this year for an attempt to pervert the course of justice, both of those being ordered to be consecutive to the total imprisonment to which he was already subject.

The ground of appeal so far as the first of the matters which are the subject of appeal is concerned, is that it was wrong, having deferred sentence and the appellant having been unable to show ###query### whether he could go straight or not by reason of his being in custody for an offence of which he was later acquitted, to impose a custodial sentence. The second ground is that the Judge was wrong in supposing that the period of time which the appellant had spent in custody awaiting trial for the burglary and the television set offences would be taken into consideration by way of reduction of the period which he would spent in serving the imprisonment for the grievous bodily harm charge.

In the view of this Court there is substance in both of those complaints. In our judgment it would be contrary to the principle laid down in Gilbey 61 Cr. App. R . that a custodial sentence should have been imposed after the deferring of sentence in this case. This Court will therefore substitute for the sentence of imprisonment imposed upon him following the deferral of sentence a nominal imprisonment of one day, that being the simplest way in which that matter can be put right.

We have also been asked to consider whether there may not be a reduction of the sentence in respect of the grievous bodily harm. There is no doubt that this appellant has a legitimate sense of grievance in regard to what has happened, in particular that he did spend a considerable period in custody awaiting trial for an offence of which he was ultimately acquitted.

Taking into consideration all the circumstances of the case, including the nature of the assault, we think that had these matters been known to Judge Buzzard when he imposed sentence in respect of the grievous bodily harm, he would have made that a lesser sentence. Recognising that the causing of grievous bodily harm was by no means a trivial matter, we think that in all the circumstances the case is one in which we can properly reduce that sentence. We will accordingly reduce it from three years to two years.

In the result both these appeals are allowed and we will substitute the orders to which I have referred.

For a summary of O’Dowd court cases and newspaper articles see  2017 Apr 1 Cathy Fox Blog Kenneth Kevin O’Dowd and the Ted Heath Photos [3]

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

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • 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

Posted in cathy fox blog, Child Abuse, Court, London | Tagged , , , , , , , , , , , , | 3 Comments

[O’Dowd1] Kenneth Vizzard 25 July 1975 Court of Appeal

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 slightly redacted by cathy fox blog

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

Index of Court Appeals on this blog [2]

[1975] EWCA Crim J0725-6

No. 5226/A/74

IN THE COURT OF APPEAL

Friday, 25thJuly1975

Lord Justice James

Regina

v.

Kenneth Vizzard


(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London, WC2R 3AT. Telephone Number: 01-583 4121. Shorthand Writers to the Court.)

MR. R. CROXON appeared on behalf of the Appellant.

MR. McDONALD appeared on behalf of the Crown.

JUDGMENT

MR. JUSTICE NIELD: On the 20th November last at the Central Criminal Court this Appellant was convicted of bigamy and was sentenced to two years’ imprisonment.

He now appeals against conviction. The learned single Judge refused an application for leave to appeal against sentence, and that is not renewed.

The facts are these. According to the Crown’s evidence, this Appellant was validly married on the 16th November, 1971 to Norma Jxxxxx, and on the 26th January, 1974, while still so married, he went through a form of marriage with MN.

The Appellant denied, as he had done throughout, that he was the man who married Norma Johnson on the 16th November, 1971, and the sole issue in effect before the jury at the trial was whether or no this was indeed the Appellant who married Norma Jxxxxx in November 1971, so that it was a question of identity.

On this aspect of the matter there was abundant evidence that it was indeed the Appellant, if it was accepted by the jury. Norma Jxxxxx herself (Norma Vizzard in her married name) said that indeed this was the man who had married her. She had lived with him before the marriage and he left her in February 1972. She picked him out on an identification parade in February 1974 without the slightest hesitation.

Her mother was called and she told the Court that her daughter and the Appellant had lived at her house from October 1971 to February 1972, and he had bought a ring for her. She herself was not present at the wedding, but identified the Appellant as the person who had lived with her daughter.

There were then a Mr. and Mrs. Robinson who had collected the Appellant and Norma from her mother’s house and taken them to the marriage ceremony where they acted as witnesses. In the case of the Robinsons however, who knew this Appellant very slightly, they were not sure that they were able to identify him again and they did not; but they gave descriptions which corresponded with the Appellant.

There was no dispute of course that the second ceremony had taken place when MN was the woman, and the Appellant was the man, although going through that ceremony in the name of O’Dowd.

The defence, as I have indicated, was a denial by the Appellant that he was the man at the first ceremony, and in his defence he said that Norma had told the police that his flat was full of stolen goods and he was arrested for receiving. She had visited him in custody and he suggested telling the probation officer that she was his fiancee in order that he could get a lighter sentence. That was what he said about it.

The grounds of the appeal against conviction have been presented with great help by Mr. Croxon on behalf of the Appellant, and the first two grounds do not appear in the grounds of appeal settled by counsel. One must of course make allowance for the fact that maybe the transcript had not then been received; but these matters are so fundamental that one would have expected them to be raised in any event, for the first is no less important a ground than that the learned Judge failed to direct the jury properly as to the burden of proof.

In that regard one must remember the very narrow issue which was before the jury, and it seems to this Court that the direction given, although departing from perhaps the normal form, was adequate in all the circumstances.

For example, at page 2 the learned Judge said: “The issue for you to decide is this, in law: are you sure, each one of you, that when that ceremony took place on that date, in accordance with that document, the man standing beside Norma, to whom she was then married, was the accused?”

At page 3B he said: “I repeat and I say for the last time that you have got to consider whether you are sure that this was the man.”

So the learned Judge used the phrase which is now required to be used in order that the burden of proof is properly discharged.

The second ground relied upon is that the learned Judge failed to point out to the jury the difference between his functions at the trial and theirs, the jury’s. He had said on page 2 “The issue for you to decide is”, and again at page 17 E he said: “I can only say that you must consider the enormous difficulties of this defence, bearing in mind all the time that the prosecution have to prove that that marriage went through. It is difficult to see how it did not on the evidence before you. If you believe Norma, the mother and the Robinsons. It is for you to say.” It is to be noticed, and I need not go into it, that when dealing with the evidence of each or almost all of the Crown’s witnesses the learned Judge interpolated the phrase “it is for you”.

Then one comes to the third ground of appeal, which is indeed covered by the notice and which can be divided into two parts. First, says Mr. Croxon, the defence was not put properly, and that is my first point on the general ground that this summing-up was unfair and the verdict unsatisfactory and unsafe.

Well, so far as the question of putting the defence is concerned, if a man’s answer is “I was not there”, it is a little difficult to know exactly how to develop it. It must be put, but a view of the whole of this summing-up appears to us to put it adequately.

The second limb of this ground is that of general unfairness, and in particular it is said that the Judge emphasised the motives for the first ceremony.

He did so, as we think, as part of the history, and indeed this Court is of the view that the tenor of the summing-up was indeed robust upon this topic. He is in effect saying “If you are satisfied that these are the facts, this man is a blackguard”, but he preceded that by giving a warning to the jury that they should not come to such a conclusion on so serious a matter easily.

Two further points arise. A letter was produced when Norma Jxxxxx was giving evidence which the defence wished to put in evidence. She was wholly unable to identify it. It was not in her writing, nor was it in her mother’s, the suggestion being it had been written on her behalf. The Judge quite properly declined to let it go in.

However that was not the end of the matter, because when the defendant came to give evidence he wished to put it in as part of his case, and the section of the Act of 1865 has been cited to us. The view of this Court is that if it had been the position that none other than Norma could have produced this document, it might have been put in, but it is clear it might have come from her or from the defendant himself. The Court therefore takes the view that the Judge was right to exclude it.

Finally there is the objection taken that a police officer when giving evidence referred at the request almost of the defence to a file of documents and in order to assist went through it obviously with care to try to find the answer to the questions which were put, the one in mind being as to the broken nose of the Appellant.

Had this of course been a notebook, then it is quite customary for counsel to be allowed to see it to see if there is anything in it, but we do not take the view in the particular circumstances of this case that the defence were entitled to a roving examination of this file, and the learned Judge was right in the course that he adopted.

In all these circumstances this Court is of the opinion that there was ample evidence here – indeed overwhelming evidence –and that there was an adequate summing-up, and that the objections to it cannot really be sustained. For those reasons the appeal must be dismissed.

For a summary of O’Dowd court cases and newspaper articles see  2017 Apr 1 Cathy Fox Blog Kenneth Kevin O’Dowd and the Ted Heath Photos [3]

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

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • 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

Posted in cathy fox blog, Child Abuse, Court | Tagged , , , , , , , , , | 4 Comments

Pine End School, Reigate

I have received information that there was sexual abuse at Pine End School, Colley Lane, Reigate, a special school for ‘maladjusted’ children in care run by the old “Inner London Education Authority” ( ILEA). Lambeth Social Services sent people there.

One head teacher was Mr Gwillam Slimm, who was investigated for sexual misconduct, sometime in the 1980s I think. He was suspended for 2 years while there was an investigation but was later reinstated.

Mr Slimm came to the school with his wife Julie who had actually been a pupil of his at a former school.  He also brought a male member of staff with him from his previous school.  It is believed that there is a  teacher with the same name in at least two other special schools in the north of England where he has been the head teacher.

There seems no information regarding the investigation into Gwillam Slimm or even if the other teacher was cited. Has anyone got any more information? You can leave comments anonymously below or email in confidence to PineEndMar17@cathyfox.33mail.com

Many of the girls had problems with a female teacher called Judy Rappaport (spelling?) who was brought in to restrain pupils when things ‘kicked off.’  Her actions were extremely heavy handed and she used unnecessary and extreme force in some cases.

Any information gratefully received.

If people were under the control of Lambeth Council or at Shirley Oaks they may be interested in this article 2007 Feb 6 Cathy Fox Blog Looking for a Place Called Home – Report of Shirley Oaks Survivors [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • 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

[1] Old Reigate .com https://www.oldreigate.com/?goto=colleylane

[2] 2007 Feb 6 Cathy Fox Blog Looking for a Place Called Home – Report of Shirley Oaks Survivors https://cathyfox.wordpress.com/2017/02/06/looking-for-a-place-called-home-report-of-shirley-oaks-survivors/

 

Posted in cathy fox blog, Child Abuse, Child sexual abuse, Childrens home, Lambeth, London, physical abuse, Schools / teachers, South East | Tagged , , , , , , , , , , , , , , , , , , | 4 Comments

CIA – DIA Mind Control and Sex Slavery of Children by Sue Arrigo MD

More from Sue Arrigo on Child Abuse and the CIA – c. <June 2007 CIA – DIA Mind Control and Sex Slavery of Children also available here Page 1 [1] Page 2 [2]

Various links are now broken.

Where there are archived links or occasionally alternative ones I have placed them in square brackets following the broken link. Usually there is a link from the approximate date of the article if available.

The other articles already published on this blog by Sue Arrigo are

Secrets of the CIA’s Global Sex Slave Industry by Dr. Sue Arrigo [8]

Secrets of the CIA’s Global Sex Slave Industry 2 by Sue Arrigo MD [9] 

Secrets of the CIA’s Global Sex Slave Industry 3 by Sue Arrigo MD [10]

CIA – DIA Mind Control & Sex Slavery of Children 
    by SUE ARRIGO, MD

“The individual is handicapped by coming face to face with a conspiracy so monstrous he cannot believe it exists.” — J. Edgar Hoover, former head of the FBI.

As a survivor of torture in the United States, I am a California physician with over forty years of recurrent torture and continuous enslavement by CIA and US military agencies.

My father was a US military advisor, a “counterinsurgency specialist,” in Korea and Taiwan. Many of the children, like myself, who were trained as child spies by the US government had fathers in the military.

As unbelievable as it sounds, the documentation that the US used American children as mind-controlled spies against their will is quite extensive (See “MKULTRA : The CIA’s Top Secret Program in Human Experimentation and Behavior Modification” by George Andrews. [ https://www.amazon.co.uk/dp/0961647582/sr=8-1-fkmr0/qid=1490195817/ref=olp_product_details?_encoding=UTF8&me=&qid=1490195817&sr=8-1-fkmr0 ]

Or see an online overview of MKULTRA at http://en.wikipedia.org/wiki/MKULTRA [ http://web.archive.org/web/20070704111747/http://en.wikipedia.org/wiki/MKULTRA or recent http://web.archive.org/web/20170320153709/https://en.wikipedia.org/wiki/Project_MKUltra%5D)

“In 1951, the CIA decided to coordinate efforts with the US Army, Navy, and Air Force, and Project Artichoke was born.

A 1952 memorandum describes its mission as follows: Can we get control of an individual to the point where he will do our bidding against his will and even against such fundamental laws of nature such as self-preservation?” (Pg 128 “Psychiatry and the CIA” by Harvey M. Weinstein, MD) [ https://www.amazon.co.uk/Psychiatry-CIA-Victims-Mind-Control/dp/0880483636/ref=sr_1_fkmr0_1?ie=UTF8&qid=1490198974&sr=8-1-fkmr0&keywords=Psychiatry+and+the+CIA%22+by+Harvey+M.+Weinstein%2C+MD ]

“In a May 13, 1968 article in the Providence Evening Bulletin 31, Estabrooks is described as a former consultant for the FBI and CIA, and is quoted as saying that, “the key to creating an effective spy or assassin rests in splitting a man’s personality, or creating multi-personality, with the aid of hypnotism.This is not science fiction. This has and is being done. I have done it. ” (pg. 162.)

The Canadian psychiatrist Colin Ross, MD had a number of mind control survivors as patients.

After he received 15,000 pages of CIA documents under a Freedom of Information Act Request he concluded that, alas, his patients were telling him the truth.

See his book “BLUEBIRD: the deliberate creation of multipersonality disorder by psychiatrists”

Therapist Valerie Wolf brought two of her patients with similar memories to mine to testify before President Clinton’s Advisory Committee on Human Radiation Experiments in Washington, D.C. to testify on Mind Control Experimentation on Children.

She wrote to that Committee “In preparation for my testimony at these hearings, I called nearly 40 therapists across the country to find out what they knew about the link between radiation and mind control and to get what other therapists were seeing in clients who had been used in mind control experiments… therapists across the country are finding clients who have been subjected to mind control techniques. The consistency of their stories about the purpose of the mind control and torture techniques, such as electric shock, use of hallucinogens, sensory deprivation, spinning, hypnosis, dislocation of limbs and sexual abuse is remarkable.

“There is almost nothing published on this aspect of mind control used with children, and these clients come from all over the country, having had no contact with each other…We need the glare of publicity to stop the continuing harassment of people who were subjects in mind control experiments. [See more of the testimony online at http://www.tulanelink.com/mind/testimony_04a.htm ]

A radio station in Toronto ran a year-long series on mind control, interviewing experts and survivors, the transcripts of which can be viewed at http://www.mindcontrolforums.com/radio/ckln-hm.htm

[ http://web.archive.org/web/20051125153037/http://www.mindcontrolforums.com/radio/ckln-hm.htm ]

[ http://web.archive.org/web/*/http://www.mindcontrolforums.com/radio/*  ]

There has been a systemic campaign of disinformation by the False Memory Syndrome Foundation to discredit people having recovered memories of trauma based mind control.

Dr. Ross in “Bluebird” shows that most of the people on that Foundation are CIA researchers engaged in mind control research. (see appendix)[?]

Project MKULTRA alone in the late 1950’s used 80 institutions of higher learning to do the research.

Dr. Ewen Cameron, a mind control researcher for the CIA, was head of the American and Canadian Psychiatry and Psychology Associations. Dr. Cameron’s experiments in causing amnesia and mind control at Allen Memorial Hospital associated with McGill University in Toronto left patients near vegetables.

It was not just that a patient could not remember who her husband was, she no longer knew what a husband was. It took one victim 2 years to figure out how to cook an egg afterwards.

When 9 Canadians brought suit the CIA settled out of court for $750.000 in order to avoid admitting responsibility for these atrocious crimes committed against innocent civilians in peacetime.

(See Psychiatrist Harvey Weinstein’s “The CIA and Psychiatry”)  [ https://www.amazon.co.uk/Psychiatry-CIA-Victims-Mind-Control/dp/0880483636/ref=sr_1_1_twi_har_1?ie=UTF8&qid=1490199165&sr=8-1&keywords=HARVEY+WEINSTEIN+-+Psychiatry+and+the+CIA%3A+Victims+of+Mind+Control ]

Addressing the issue of whether memories recovered after trauma are accurate, law professor Scheflin in “Ground Lost: The False Memory/Recovered Memory Therapy Debate” (www.psychiatrictimes.com/p991137.html) [ http://web.archive.org/web/20020819234137/http://www.psychiatrictimes.com/p991137.html ] notes that all memories are recovered and that the three relevant studies on the matter show that post traumatic memories are as accurate as regular memories; namely details may be wrong but the memories are remarkably accurate for the gist of the events.

Thus he concludes that for the purposes of the courts, all memories should be treated the same—as eye-witness testimony.

(Also see the tome Brown D, Scheflin AW, Hammond DC (1998), “Memory, Trauma Treatment, and the Law”

Scheflin is a professor of law at Santa Clara University School of Law in Santa Clara, Calif.)

Starting at age ten I was sent into the USSR as a street child to spy.

In WWI, Germany arrested parents and told their children to go into Russia as street children and report back on railway troop movement, failure to return with the required information would result in the parent’s torture or execution.

[ See http://english.pravda.ru/main/2002/11/27/40030.html ].

[ http://web.archive.org/web/20030218000603/http://english.pravda.ru/main/2002/11/27/40030.html ]

I did my assignments under the same threats and had been tortured by the CIA and DIA since I was 3 to 4 years old using electroshocks, drugs, cold, sleep deprivation, and deprivation of food and even water.

For decades all of my spare time during so-called vacations was spent on CIA assignment that I was forced into.

Later as an adult, if I had a partner, I was forced to break up with him, under the threat that he would be killed, if I refused.

None of my life was truly my own.

At a moment’s notice I would have to make excuses and go off on an espionage assignment.

My work as a doctor had to be part-time and flexible. Most of my work involved going into the Soviet Union to assess their nuclear missile arsenals, as well as to garner related documents.

It was very dangerous work and I was tortured on more than one occasion by the KGB as well. I was also tortured by the CIA in the basement of their HQs for failing to force a KGB official, Konstantinov, in New York City in 1983 to become an agent for the CIA as a “double agent”.

My memory was later confirmed by an old newspaper account of Konstantinov expelled from New York as a KGB spy in 1983.

At the time, I was an occupational medical resident at Columbia University and already extremely overworked and sleep deprived from being on-call.

The CIA was unwilling to hear any reasons for failing at an assignment. I was last tortured by the US government in August of 2004 for refusing an assignment.

I was living in Virginia within commuting distance of CIA HQs at the time. In this instance, I was approached directly by Dick Cheney of the White House who wanted the assignment to be off the record because he feared leaks within the CIA.

I was given the assignment to go to Iran as a doctor “volunteering” to treat Iranian children as a humanitarian gesture.

A TV crew would “happen by” and start filming, then in would rush a CIA agent of Iranian features announcing he knew of a secret Iranian nuclear weapons development lab in an underground bunker.

I was told that the rest of the filming with that agent and myself would occur in Hollywood with a mock up of said weapon’s lab. It would be a made for TV news propaganda piece like in the movie “Wag the Dog”.

When I refused to do the assignment on the grounds that it was immoral, he threatened my mother’s life. Since my mother had recently told me to not to give my torturers demands, even if she paid for it with her life, I held to my “no.”

Within a week I was taken hostage, drugged, raped and tortured for 4 days. I overheard the men who raped me talking about their duties guarding the same White House official who had given me the Iranian assignment.

They said that if I ever talked that I would be locked up in a mental ward, drugged, tied down and raped nightly. While being injected one of my torturers said, “With this in your blood, baby, no one will ever believe a word you say.”

The standard CIA “cocktail” is a long lasting hallucinogen, like BZ (see http://www.levity.com/aciddreams/samples/bz.html), [ http://web.archive.org/web/20070208053142/http://www.levity.com/aciddreams/samples/bz.html ] with an amphetamine to prevent sleep, and indeed I had a sudden severe problem with insomnia.

Within days I was thrown into a mental hospital against my will and told again that I might never get out to make the threat credible.

Fortunately, as a Christian Science believer I was given no medications at the hospital and managed to get out after the 5-day observation period because the medical doctor recognized my symptoms as sleep deprivation and metabolic imbalance.

The threat that I would be thrown into a mental facility for the rest of my life, drugged up and tied down still exists and could be executed.

And that is in spite of the fact that I have never attempted suicide, and never will as it is against my religious convictions. Russ Tice, an NSA analyst who blew the whistle on US domestic spying was similarly thrown in a mental hospital to give him a record of being “crazy”.

According to CIA documents quoted in Bluebird this is the standard procedure that the CIA uses to discredit people or even to “dispose” of them by throwing away the key.

Had I actually been crazy, I never could have held a stable job as a medical director in California for 14 years.

I coped with severe torture by using a skill called dissociative denial, which is the opposite of making things up. The treatment for it is not drugs, it is telling the truth about what really happened, instead of pretending that it didn’t happen.

“To sin by silence when they should protest makes cowards of men.” Abraham Lincoln

Before the American Catholic Church was exposed as being a haven for pedophilic priests, no one would have believed that priests could molest children in large numbers and not be caught for it.

We now know differently; the Catholic Church has paid out millions of dollars in settlements to the victims. That was an abuse that went uncorrected for decades until finally some of the victims were believed.

When the dust settled it turned out that there were many more victims than anyone had expected. Yet few people know that that network of priests were linked to pedophilic American politicians.

The politicians had more ability to cover up their crimes. They were in a position to halt police and FBI investigations. They had the political influence to kill major news exposes of it.

And they had the money and power to buy up and order destroyed all the copies of a TV documentary called Conspiracy of Silence hours before it was to air. Only one poor quality copy survived.

But survive it did and you can watch it and judge for yourself the facts of the matter. (See webcast video: “Conspiracy of Silence,” the Franklin cover-up video, by xx (Tuesday March 04, 2003) [RealVideo: stream with RealPlayer]

[ http://sf.indymedia.org/uploads/conspiracyofsilence56k.ram, http://sf.indymedia.org/uploads/conspiracyofsilence56k.rm ]

or RM file (33.3 megabytes, [MB]) of same video in a higher resolution format for downloading: http://sf.indymedia.org/uploads/conspiracyofsilence2.wmv .It is also available online at http://www.911busters.com/911_new_video_productions/ listed under the title “Pedophilic Politicians”. Conspiracy of Silence, a documentary listed for viewing in TV Guide Magazine was to be aired on the Discovery Channel, on May 3, 1994.

[ http://web.archive.org/web/20050504063659/http://911busters.com/911_new_video_productions/ ]

[ http://web.archive.org/web/20051126010357/http://911busters.com/911_new_video_productions/ ]

[ https://www.youtube.com/watch?v=vBSIDQt5Dwc ]

Researched and documented by a British journalistic team who came to the United States just for the story, it was censored at the last minute.

This documentary exposed a network of religious leaders and Washington politicians who flew children to Washington D.C. for sex orgies. http://www.indybay.org/news/2002/10/1538670_comment.php [ http://web.archive.org/web/20071031102919/http://www.indybay.org/newsitems/2002/10/24/15386701.php  ]

The former CIA director [Colby] acknowledged to Nebraska State Senator John DeCamp that the scenario described in the documentary, Conspiracy of Silence, is real, which tells of a sex ring that had links to political conservatives in Washington D.C.

Not long thereafter Colby turned up dead under suspicious circumstances.

John DeCamp has since authored “The Franklin Coverup.” This all came to public view on the morning of June 29, 1989, when the Washington Times headline was “Call Boys Took Midnight Tour of White House” [ http://educate-yourself.org/tg/franklincoverupexcerptwashtimesphoto.shtml ]

Dr. Dekov states that the former FBI Director Louis Freeh killed Colby.

Dr.Dekov states that he is a witness.

Dr.Dekov has alarmed President Bush, US Senators and the Supreme Court of the USA for the murder.

In 2005, Dr.Dekov presented to the International Criminal Court at The Hague a set of documents concerning the killing of Colby by the FBI Director Louis Freeh.

See * The Ames-Colby story. From: http://en.wikipedia.org/wiki/William_Colby [ http://web.archive.org/web/20070926094900/http://en.wikipedia.org/wiki/William_Colby ]

Although the story of a kidnapped 9 year-old paperboy, Johnny Gosch, is not mentioned on that video, it should be mentioned here (see http://en.wikipedia.org/wiki/Johnny_Gosch for more details). [ http://web.archive.org/web/20071128155254/http://en.wikipedia.org/wiki/Johnny_Gosch ]

Paul Bonacci later won a million dollar lawsuit against one of his abusers, a Republican National Committee go-getter, who procured children for prostitution for their after- parties.

The Washington Post carried a full front page exposé titled “Homosexual prostitution inquiry ensares VIPs with Reagan, Bush”, (June 29, 1989) (See photo of front page at http://portland.indymedia.org/en/2005/01/309481.shtml). [ http://web.archive.org/web/20170320124449/http://portland.indymedia.org/en/2005/01/309481.shtml ]

Then the story was killed. Who had the motive and the power to do that? There are several adult survivors that have written books about their being used by the White House as sex slaves, both as children or young adults.

In fact, there were so many sex slaves made for that purpose by the CIA as mind control subjects that they were given the title of “Presidential Models”.

(See Brice Taylor’s book Thank You for the Memories for one such example. A radio interview of her can be read online for free at http://www.mindcontrolforums.com/radio/ckln-hm.htm CKLN42A.tx  [Link not available nor archive, Book available http://archive.is/7Za1i  or [ pdf download Thanks for the Memories pdf  ]

Sue Arrigo, MD California Medical License G 50197

Former member of the AFIO (Association of Former Intelligence Officers)

My cover was blown within international intelligence organizations over 5 years ago.

Only the public has been kept in the dark, as per usual.

I am a non-violent activist, currently attending the UN Disarmament Conference as an indepedent observer to protest the US’s first strike pre-emptive war policy.

ORIGINALLY PUBLISHED
http://www.geocities.com/intuitivemd/  [ http://web.archive.org/web/20091026213631/http://geocities.com/intuitivemd/ ]

Let me say a little about my own background. As a native-born US child and daughter of an undercover intelligence officer, I was forced into intelligence operations.

A congressional hearing exposed a CIA interrogation experiment on the drugged clients of prostitutes, headed by George Hunter White, at the San Francisco Safe House [See MKULTRA : The CIA’s Top Secret Program in Human Experimentation and Behavior Modification by George Andrews or view the 1977 Congressional Hearings on MKULTRA online at http://www.parascope.com/ds/documentslibrary/documents/mkultrahearing/index.htm . [ http://web.archive.org/web/20090814215823/http://www.parascope.com/ds/documentslibrary/documents/mkultrahearing/index.htm ]

This is one of the places I was trained at the age of 9 in 1961.

The CIA did not the tell most of the truth at what happened at that “Safe House” that was anything but safe for children.

But it did confirm my written memories as to its location, décor, prostitution, the expensive alcoholic habits of George Hunter White, and the LSD experiments and the filming for of the johns.

Later, White would say of his job: “I was a very minor missionary, actually a heretic, but I toiled wholeheartedly in the vineyards because it was fun, fun, fun. Where else could a red-blooded American boy lie, kill, cheat, steal, rape, and pillage with the sanction and blessing of the All-Highest?”

(See http://www.everything2.com/index.pl?node_id=481520) [ http://www.everything2.com/index.pl?node_id=481520 ]

MKULTRA was a joint CIA-DIA project to train children as spies and assassins, as is documented in CIA files released under the Freedom of Information Act (FOIA).

As a child in this project, I was tortured and threatened with the death of my mother to force me to comply. The torture was extensive, with episodes lasting weeks and repeated over many years.

It included sleep deprivation, chronic cold exposure, deprivation of food, disorienting drugs, mock executions, and electroshocks to mouth and vaginal areas.

In short it was unbelievable hell.

It was done in conjunction with psychiatrists as mind control and to spilt my consciousness into a multiple personality, in which they would have control of all the personalities except the cover one.

Other survivors also report the systematic use of torture (see U.S. Government Mind-Control Experiments On Children by Jon Rappoport or (www.movingon.org/article.asp?sID=1&Cat=10&ID=1518) [ http://web.archive.org/web/20070429043451/http://www.movingon.org/article.asp?sID=1&Cat=10&ID=1518 ]

[ http://web.archive.org/web/20130311130947/http://www.druglibrary.org/schaffer/History/e1950/mkultra/Hearing05.htm ]

My torturers under this project included three military officers trained in brainwashing techniques by the Pentagon.

One of these was my father, although most of the years I was tortured he was not present.

As an adult my father told me he had been trained at the Pentagon in brainwashing, so this is not just the memory of a child here.

My father was in the Korean War as a US Army Officer (probably in the DIA), and involved in a torture scandal there.

My father also told me in detail tortures he and other military officers had done in Korea, to frighten me.

The US govt. had an officially approved project to torture US children to force them into spying – MKULTRA and related projects.

Many survivors report the same type of torture as I remember.

Since there have been so many different survivor’s accounts remembered independently, all in agreement as to the methods used, there is no longer room for reasonable doubt that the US government engaged in the sexual torture of innocent American children.

(See survivors’ accounts —
“A Nation Betrayed” by Carol Ruiz,
“Unshackled” by Kathleen Sullivan,
“Secret Weapons” by Cheryl Hersha,
“Thanks for the Memories” by Brice Taylor,
and the talks by experts and survivors at CKLN-FM Mind Control Series
(http://www.mindcontrolforums.com/radio/ckln-hm.htm) [ http://web.archive.org/web/20051124165856/http://mindcontrolforums.com/radio/ckln-hm.htm ]

For more information see the UNICEF site on children of war at
http://www.unicef.org/sowc96/ciwcont.htm , [ http://web.archive.org/web/20070630141237/http://www.unicef.org/sowc96/ciwcont.htm ]
or a radio broadcast on Children of War at http://www.warchildren.org/ , [ http://web.archive.org/web/20070701074041/http://www.warchildren.org/ ]
or Amnesty International’s site at http://www.amnestyusa.org/children/soldiers/agenda.html .

[ http://web.archive.org/web/20040803111459/http://www.amnestyusa.org/children/soldiers/agenda.html ]

ORIGINALLY PUBLISHED
http://www.geocities.com/intuitivemd/ChildSpies.html [ http://web.archive.org/web/20080626145406/http://www.geocities.com/intuitivemd/ChildSpies.html ]
1

CIA – DIA Mind Control and Sex Slavery of Children Page 1 [1] Page 2 [2]

See also

Secrets of the CIA’s Global Sex Slave Industry by Dr. Sue Arrigo [8]

Secrets of the CIA’s Global Sex Slave Industry 2 by Sue Arrigo MD [9] 

Secrets of the CIA’s Global Sex Slave Industry 3 by Sue Arrigo MD [10]

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

[1] c.< 2007 Jun 8 Conspiracy Planet Sue Arrigo MD CIA – DIA Mind Control and Sex Slavery of Children Page 1 http://web.archive.org/web/20080608092403/http://www.conspiracyplanet.com/channel.cfm?channelid=137&contentid=4450

[2] c.< 2007 Jun 8 Conspiracy Planet Sue Arrigo MD CIA – DIA Mind Control and Sex Slavery of Children Page 2 http://www.conspiracyplanet.com/channel.cfm?channelid=137&contentid=4450&page=2 [save on wayback]

[3] Full Scans of the Washington Post Story http://web.archive.org/web/20070702235121/http://www.thelawparty.org/FranklinCoverup/WashingtonTimes.htm

[4] U.S. Government-Sponsored Mind Control and Tulane http://www.tulanelink.com/tulanelink/twoviews_04a.htmhttp://web.archive.org/web/20051125153037/

[5]  CKLN-FM Mind Control Series http://www.mindcontrolforums.com/radio/ckln-hm.htm

[6] http://web.archive.org/web/20080308003852/http://www.tulanelink.com/mind/interview_04a.htm

[7] 1997 Probe Magazine A.B.H. Alexander Sex, Drugs, the CIA, MIND CONTROL and Your Children http://www.whale.to/b/alexander.html

[8] 2015 Mar 25 Cathy Fox Blog Secrets of the CIA’s Global Sex Slave Industry by Dr. Sue Arrigo https://cathyfox.wordpress.com/2015/03/25/secrets-of-the-cias-global-sex-slave-industry-by-dr-sue-arrigo-june-15-2007/

[9] 2017 Mar 17 Cathy fox Blog Secrets of the CIA’s Global Sex Slave Industry 2 by Sue Arrigo MD https://cathyfox.wordpress.com/2017/03/17/secrets-of-the-cias-global-sex-slave-industry-2-by-sue-arrigo-md/

[10] 2017 Mar 19 Cathy fox Blog Secrets of the CIA’s Global Sex Slave Industry 3 by Sue Arrigo MD https://cathyfox.wordpress.com/2017/03/19/secrets-of-the-cias-global-sex-slave-industry-3-by-sue-arrigo-md/

Posted in #OpDeathEaters, #pedogate, cathy fox blog, Child Abuse, Child sexual abuse, Child trafficking, CIA, Controlling Prostitution, Criminal Cabal of People in Power, pedophile, US of America Child Abuse | 3 Comments

Glasgow Herald 10 Oct 1989 Fifteen charged after Operation Spanner

My interest in publishing these, is not the case per se but in what the police were doing investigating it in the first place, any child sexual abuse claimed on the outskirts of the case and the legal judgement about consent not being a defence.

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

Index of Court Appeals on this blog [2]

1989 Oct 19 Glasgow Herald 15 charged after Operation Spanner [7]

FIFTEEN men, including a United Nations lawyer and a lay preacher,

appeared before magistrates yesterday on charges arising from a two-year

investigation by Scotland Yard’s Obscene Publications Squad.

They were arrested last month after an investigation called Operation

Spanner which also involved 11 provincial forces.

The men, appearing before Camberwell magistrates in south-east London,

faced a total of more than 100 charges including assault on

co-defendants, drug charges and obscene publication offences.

Eight of the accused face charges of running or aiding and abetting

the running of disorderly houses at which numerous persons resorted to

”acts of sadistic and masochistic violence and in accompanying acts of

a lewd, immoral and unnatural kind”.

New Zealand-born Donald Anderson, 60, a retired pig breeder of

Harford, Llanwdra Lampeter, Dyfed, is charged with being concerned with

the running of a disorderly house and indecent sexual acts.

John Patrick Atkinson, 48, an antiques restorer and restaurateur, of

Broadway, Hereford and Worcester, is charged with aiding and abetting

grievous bodily harm on himself.

Anthony Joseph Brown, 54, unemployed, of Yardley, Birmingham, is

charged with conspiracy to commit assault, keeping a disorderly house,

aiding and abetting the running of a disorderly house, and six assaults.

Graham William Cadman, 52, an ice cream salesman, of Horwich,

Lancashire, faces seven charges of keeping a disorderly house, aiding

and abetting the keeping of a disorderly house, conspiracy to assault,

two charges of aiding and abetting actual bodily harm, publishing two

indecent articles, and taking an indecent photograph of a child.

Paul Jason Kelly, 22, unemployed, of Horwich, is charged with aiding

and abetting the running of a disorderly house, causing actual bodily

harm and aiding and abetting actual bodily harm.

Christopher Robert Carter, 37, a fancy dress hire proprietor, of

Frankwell, Shrewsbury, is charged with aiding and abetting the keeping

of a disorderly house and two cases of aiding and abetting assault.

Peter John Grindley, 41, a care assistant in a home for the mentally

handicapped, of Prees Green, Whitchurch, Shropshire, faces 15 charges of

keeping a disorderly house, aiding and abetting the running of another

disorderly house, nine assault charges, conspiracy to assault, and three

drug offences.

Ian Wilkinson, 56, a forester, of Prees Green, also faces 15 charges

of keeping a disorderly house, aiding and abetting the running of

another disorderly house, seven actual bodily harm charges, aiding and

abetting to assault, possession of cannabis and LSD, and publishing an

obscene photograph of a child.

Roland Jaggard, 42, a missile design engineer with British Aerospace,

of Welwyn Garden City, Herts, faces six charges of conspiracy to assault

and grievous bodily harm and assault occasioning actual bodily harm on

himself and others.

Colin Laskey, 46, a computer programmer, of Macsycoed, Pontypridd,

Mid-Glamorgan, faces 17 charges of conspiring to cause actual bodily

harm, aiding and abetting the running of two disorderly houses, grievous

bodily harm, nine cases of actual bodily harm, one case of malicious

wounding, publication of indecent video tapes and articles, and having

an indecent photograph of a child.

John Henry Lofthouse, 49, of Oulton Broad, Lowestoft, Suffolk, a

station officer with Suffolk Fire Service, faces two charges of aiding

and abetting actual bodily harm on himself, assaulting a co-defendant

and stealing a gas cylinder from his employers.

Saxon Lucas, 57, a restaurateur and lay-preacher, of Evesham, Hereford

and Worcester, is charged with grievous bodily harm and actual bodily

harm.

Alan Oversby, 56, a tattooist, of Bayswater, London, faces 14 charges

of malicious wounding, causing bodily harm to two men and an unnamed

woman, grievous bodily harm with intent, having an obscene photograph

and administering illegal drugs.

Christopher Alexander Zimmerli, 51, a Swiss-born lawyer of Hampstead,

London, faces one charge of causing actual bodily harm to a co-defendant

at the Zimmerli home.

Graham Murray Sharp, 39, a photographic developer of Coalpit Heath,

Bristol, faces three charges involving the distribution of indecent

material.

Mr Oversby was remanded to reappear at Camberwell on October 18. The

others will appear before Lambeth magistrates on November 20.

A sixteenth defendant, Albert Edward Groom, 54, a hotel porter, of

Thornaby, Stockton-on-Tees, Cleveland, was remanded in his absence until

November 20 on four charges of conspiring to send and have indecent

material, and aiding and abetting an assault on himself.

Reporting restrictions were not lifted.

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

Index of Court Appeals on this blog [2]

1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner [3]

1992 Feb 21 Times Law Reports  Brown, Laskey, Jaggard, Lucas, Carter, Cadman – Court of Appeal (Spanner) [6]

1993 Mar 12 Times Law Reports Brown, Lucas, Jaggard, Laskey, Carter – House of Lords (Spanner) [7]

1997 Feb 20 Times Law Report Laskey, Jaggard and Brown v UK ECHR (Operation Spanner) [4]

1997 Times Law Report Laskey, Jaggard and Brown v UK – EHCR (Spanner) [5]

all related to this post  2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   [8]

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

[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/

[3]  2017 Mar 25 Cathy Fox Blog 1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner https://cathyfox.wordpress.com/2017/03/25/glasgow-herald-10-oct-1989-fifteen-charged-after-operation-spanner/

[4] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK ECHR Times Law Report 1997 Feb 20 (Operation Spanner) https://cathyfox.wordpress.com/2017/03/24/laskey-jaggard-and-brown-v-uk-echr-times-law-report-operation-spanner/

[5] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK – Times Law Report 1997 EHCR (Spanner) https://cathyfox.wordpress.com/2017/03/25/laskey-jaggard-and-brown-v-uk-times-law-report-1997-ehcr-spanner/

[6] 2017 Mar 24 Cathy Fox Blog Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-laskey-jaggard-lucas-carter-cadman-21-february-1992-times-law-reports-court-of-appeal-spanner/

[7] 2017 Mar 24 Cathy Fox Blog Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-lucas-jaggard-laskey-carter-12-march-1993-times-law-reports-house-of-lords/

[8] 2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   https://www.amazon.co.uk/d/cka/Dirty-Squad-Michael-Hames/0316853216/ref=sr_1_3?ie=UTF8&qid=1490120494&sr=8-3&keywords=Michael+hames

Posted in cathy fox blog, Child Abuse, Court, physical abuse | Tagged , , , , | 14 Comments

Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner)

My interest in publishing these, is not the case per se but in what the police were doing investigating it in the first place, any child sexual abuse claimed on the outskirts of the case and the legal judgement about consent not being a defence.

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

Index of Court Appeals on this blog [2]

12 March 1993 Times Law Reports

House of Lords

  • Regina v.Brown (Anthony)
  • Regina v Lucas (Saxon)
  • Regina v Jaggard
  • Regina v Laskey (Colin)
  • Regina v Carter

Before Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley

Crime – assault – sado-masochism – consent no defence

Consent is no defence to sado-masochistic assault
The consent of the willing recipient of sado-masochistic acts of violence did not constitute a defence to charges of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861 and of wounding contrary to section 20 of the Act.

The House of Lords so held, Lord Mustill and Lord Slynn dissenting, in dismissing appeals by five men from a dismissal by the Court of Appeal (Lord Lane, Lord Chief Justice, Mr Justice Rose and Mr Justice Potts) (The Times February 21, 1992) of their appeals against conviction on pleas of guilty following a ruling by Judge Rant, QC, at the Central Criminal Court on November 7, 1990.

The House answered in the negative the question certified by the Court of Appeal: “Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 and section 47 of the Offences against the Person Act 1861?”

Mr Lawrence Kershaw, QC, Mrs Pauline Hendy and Miss Eleanor Sharpston for Brown; Lady Mallalieu, QC, Mr Adrian Fulford and Miss Eleanor Sharpston for Lucas and Jaggard; Miss Anna Worrall, QC, Mr Gibson Grenfell and Miss Eleanor Sharpston for Laskey; Mr Ronald Thwaites, QC, Mr Jonathan Lurie and Miss Eleanor Sharpston for Carter; Mr Nicholas Purnell, QC and Mr David Spens for the Crown.

LORD TEMPLEMAN said that the authorities dealing with the intentional infliction of bodily harm did not establish that consent was a defence to a charge under the 1861 Act. They established that the courts had accepted that consent was a defence to the infliction of bodily harm in the course of some lawful activities.

The question was whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters.

Counsel for the appellants argued that consent should provide a defence because every person had a right to deal with his body as he pleased. That did not provide a sufficient guide to the policy decision which now had to be made. It was an offence for a person to abuse his own body by taking drugs.

In any events the appellants did not mutilate their own bodies. They inflicted bodily harm on willing victims. Suicide was no longer an offence but a person who assisted another to commit suicide was guilty of murder or manslaughter.

There was no evidence to support the assertion that sado-masochistic activities were essential to the happiness of the appellants or any other


participants but the argument would be acceptable if sado-masochism were only concerned with sex, as the appellants contended. In his Lordship’s opinion, it was not only concerned with sex it was also concerned with violence.

The evidence disclosed that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless.

Drink and drugs were employed to obtain consent and increase enthusiasm. The victim was usually manacled so that the sadist could enjoy the thrill of power and the victim could enjoy the thrill of helplessness. The victim had no control over the harm which the sadist, also stimulated by drink and drugs might inflict. In one case a victim was branded twice on the thigh and there was some doubt as to whether he consented to or protested against the second branding.

The dangers involved in administering violence must have been appreciated by the appellants because, so it was said, each victim was given a code word which he could pronounce when excessive harm or pain was caused. The efficiency of that precaution, when taken, depended on the circumstances and the personalities involved. No one could feel the pain of another.

The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples.

The victims were degraded and humiliated, sometimes beaten, sometimes wounded with instruments and sometimes branded. Bloodletting and the smearing of human blood produced excitement. There were obvious dangers of serious personal injury and blood infection.

Prosecuting counsel informed the trial judge against the protests of defence counsel that although the appellants had not contracted AIDS, two other members of the group had died from AIDS and one other had contracted an HIV infection although not necessarily from the practices of the group.

Some activities involved excrement. The assertion that the instruments employed by the sadists were clean and sterilised could not have removed the danger of infection and the assertion that care was taken demonstrated the possibility of infection. Cruelty to human beings was on occasions supplemented by cruelty to animals in the form of bestiality.

It was fortunate that there were no permanent injuries to a victim although no one knew the extent of harm inflicted in other cases.

It was not surprising that a victim did not complain to the police when the complaint would involve him in giving details of acts in which he had participated. Doctors of course were subject of a code of confidentiality.

In principle there was a difference between violence which was incidental and violence which was inflicted in the indulgence of cruelty. The violence of sado-masochistic encounters involved the indulgence of cruelty by sadists and the degradation of victims.

Such violence was injurious to the participants and unpredictably dangerous. His Lordship was not prepared to invent a defence of consent for sado-masochistic encounters which bred and glorified cruelty and resulted in offences under sections 47 and 20 of the 1861 Act.

Counsel had submitted that since gross indecency charges were time barred the police acted unfairly when they charged the appellants with offences


under the 1861 Act. But there was no reason for the police to refrain from pursuing the charges under the 1861 Act merely because other charges could not be pursued.

Indecency charges were connected with sex. Charges under the 1861 Act were concerned with violence. The violence of sadists and the degradations of the victims had sexual motives but sex was no excuse for violence.

His Lordship rejected the argument that the activities of the appellants were exercises of rights in respect of private and family life as protected by article 8 of the European Convention on Human Rights or that article 7 was of any relevance. Article 8 did not invalidate a law which forbade violence which was intentionally harmful to body and mind.

Society was entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain was an evil thing. Cruelty was uncivilised.

LORD JAUNCEY , agreeing, said that although the reasoning in  R v Donovan ([1934] 2 KB 498) and  Attorney General’s Reference  (No 6 of 1980) ([1981] QB 715) differed, the conclusion from each of them was clear: that the infliction of bodily harm without good reason was unlawful and that the consent of the victim was irrelevant.

 Wilson v Pringle  ([1987] QB 237) showed that if the appellants’ activities in relation to the victims were unlawful they were also hostile and the necessary ingredient of assault was present.

A line had to be drawn somewhere between those injuries which a person could consent to have inflicted upon himself and those which were so serious that consent was immaterial.

In his Lordship’s view, that line properly fell to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the 1861 Act with the result that the consent of the victim was no answer to anyone charged with the latter offence or with contravention of section 20 unless the circumstances fell within one of the known exceptions such as organised sport, parental chastisement or reasonable surgery.

There was nothing in either section 20 or 47 to suggest that consent was either an essential ingredient of the offence of a defence thereto.

In considering the public interest it would be wrong to look only at the activities of the appellants alone. The House had to consider the possibility that homosexual sado-masochistic activities were practised by others who might not be so controlled and responsible as the appellants were claimed to be.

Wounds could easily become septic, the free flow of blood from a person who was HIV positive or had AIDS could infect another and an inflicter who was carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented.

Furthermore, the possibility of proselytisation and corruption of young men was a real danger even in the case of the appellants and the taking of video recordings of such activities suggested that secrecy might not have been as strict as the appellants claimed.

His Lordship had no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual


sado-masochistic activities should be held to be lawful.

When Parliament passed the Sexual Offences Act 1967 which made buggery and acts of gross indecency between consenting males lawful it had available the Wolfenden Report (1957) (Cmnd 247) which was the product of an exhaustive research into the problem.

If it was to be decided that such activities as the nailing by A of B’s foreskin or scrotum to a board or the insertion of hot wax into C’s urethra followed by the burning of his penis with a candle or the incising of D’s scrotum with a scalpel to the effusion of blood were injurious to neither B, C and D nor to the public interest, it was for Parliament with its accumulated wisdom and sources of information to declare them lawful.

LORD LOWRY , agreeing, said that the question of consent was immaterial, there were prima facie offences against sections 20 and 47 and the next question was whether there was good reason to add sado-masochistic acts to the list of exceptions contemplated in  Attorney General’s Reference (No 6 of 1980) . The answer was “No”.

Sado-masochistic homosexual activities could not be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 could only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve by withdrawing the legal penalty and giving the activity a judicial imprimatur.

A proposed general exemption was to be tested by considering the proposed general effect. That had to include the possibility that some sado-masochistic activity, under the powerful influence of the sexual instinct, would get out of hand and result in serious physical damage to the participants and that some activity would involve a danger of infection.

LORD MUSTILL , dissenting, said that the case was about the criminal law of violence and in his opinion should have been a case about the criminal law of private sexual relations.

The conduct of the appellants and of other co-accused had been treated by the prosecuting authorities in three ways.

First there were those acts which fell squarely within the legislation governing sexual offences. Thus four of the men pleaded guilty to charges of keeping a disorderly house and one pleaded guilty to publishing obscene articles, namely video tapes.

The two remaining categories of conduct comprised private acts. Some were prosecuted and were now before the House. Others were not. If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite was the case.

Why was that so? Obviously because the prosecuting authorities could find no statutory provision apt to cover that conduct, whereas the sexual conduct which underlay the present appeals, although less extreme, could at least arguably be brought within sections 20 and 47 of the 1861 Act because it involved the breaking of skin and the infliction of more than trifling hurt.

That distribution of charges against the appellants at once sounded a note of warning. It suggested that the involvement of the 1861 Act was


adventitious. That impression was reinforced when one considered the title of the statute.

Of course the House had to give effect to the statute if its words captured what the appellants had done, but in deciding whether that was really so it was legitimate to assume that the choice of the 1861 Act as the basis for the relevant counts in the indictment was made only because no other statute was found which could conceivably be brought to bear upon them.

His Lordship therefore approached the appeal on the basis that the convictions on charges which seemed so inapposite could not be upheld unless the language of the statute or the logic of the decided cases positively so demanded. Unfortunately the language of the statute was opaque and the cases few and unhelpful.

His Lordship concluded, upon consideration of the case law, that the House was free, as the Court of Appeal had not been, being bound by  Attorney General’s Reference (No 6 of 1980) , to consider entirely afresh whether the public interest demanded the interpretation of the 1861 Act in such a way as to render criminal under section 47 the acts done by the appellants.

It had to be emphasised that the issue before the House was not whether the appellant’s conduct was morally right but whether it was properly charged under the 1861 Act.

Thus while many people if asked whether the appellants conduct was wrong would reply “Yes, repulsively wrong” that did not of itself mean that the prosecution of the appellants under the 1861 Act was well founded.

The question to be asked was whether there was a good reason to impress upon section 47 an interpretation which penalised the relevant level of harm irrespective of consent. That formulation of the question was very important for if it were differently stated it might yield a different answer.

In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault was incapable of being legitimised by consent, except in special circumstances, then it would be necessary to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category.

That would be an altogether more difficult question and one which his Lordship would not be prepared to answer in favour of the appellants because it was a task which the courts were not suited to perform and which should be carried out, if at all, by Parliament after a thorough review of all the issues.

In the event, the question was not whether as a result of the decision of the instant appeal activities such as those of the appellants should cease to be criminal but rather whether the 1861 Act, a statute which was clearly intended to penalise conduct of a different nature, should in this new situation be interpreted so as to make it criminal.

His Lordship did not advocate the decriminalisation of conduct which had hitherto been a crime. The only question was whether those consensual private acts were offences against the existing law of violence. To that he returned a negative response.

LORD SLYNN , dissenting, said that he did not consider that any of the existing cases was conclusive in resolving the instant question. Those decisions were not in any event binding upon the House so the matter had to


be considered as one of principle.

Consent could not be said simply to be a defence to any act which one person did to another. A line had to be drawn as to what could and could not be the subject of consent. That line had to be workable. It could not be allowed to fluctuate within particular charges and, in the interests of legal certainty, it had to be accepted that consent could be given to acts which were said to constitute actual bodily harm and wounding.

Accordingly, other than for offences of grievous bodily harm or death, consent could be a defence. That in no way meant that the acts done were approved of or encouraged. It meant no more than that they did not constitute an assault within the meaning of those two specific sections of the 1861 Act.

In the present case there was no doubt that there was consent; indeed there was more than mere consent. Astonishing though it might seem, the persons involved positively wanted, asked for, the acts to be done to them. All the accused were old enough to know what they were doing. The acts were done in private.

No one complained as to what was done. The matter came to the attention of the police coincidentally. The acts did not result in any permanent or serious injury or disability or any infection and no medical assistance was required even though there may have been some risk of infection, even injury.

The onus was on the prosecution to prove that there was no consent on the part of the person said to have been assaulted.

His Lordship concluded that as the law stood, adults could consent to acts done in private which did not result in serious bodily harm, so that such acts did not constitute criminal assaults for the purposes of the 1861 Act.

In the end it was a matter of policy in an area where social and moral factors were extremely important and where attitudes could change. It was a matter of policy for the legislature to decide.

It was not for the courts in the interests of paternalism or in order to protect people from themselves to introduce into existing statutory crimes relating to offences against the person, concepts which did not properly fit there.

Solicitors: Geffens, Walsall; J P Malnick & Co, Islington; Hughmans; Shakespeares, Birmingham; CPS, HQ.

12/03/1993 Times Law Reports

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

Index of Court Appeals on this blog [2]

1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner [3]

1992 Feb 21 Times Law Reports  Brown, Laskey, Jaggard, Lucas, Carter, Cadman – Court of Appeal (Spanner) [6]

1993 Mar 12 Times Law Reports Brown, Lucas, Jaggard, Laskey, Carter – House of Lords (Spanner) [7]

1997 Feb 20 Times Law Report Laskey, Jaggard and Brown v UK ECHR (Operation Spanner) [4]

1997 Times Law Report Laskey, Jaggard and Brown v UK – EHCR (Spanner) [5]

all related to this post  2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   [8]

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

[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/

[3]  2017 Mar 25 Cathy Fox Blog 1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner https://cathyfox.wordpress.com/2017/03/25/glasgow-herald-10-oct-1989-fifteen-charged-after-operation-spanner/

[4] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK ECHR Times Law Report 1997 Feb 20 (Operation Spanner) https://cathyfox.wordpress.com/2017/03/24/laskey-jaggard-and-brown-v-uk-echr-times-law-report-operation-spanner/

[5] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK – Times Law Report 1997 EHCR (Spanner) https://cathyfox.wordpress.com/2017/03/25/laskey-jaggard-and-brown-v-uk-times-law-report-1997-ehcr-spanner/

[6] 2017 Mar 24 Cathy Fox Blog Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-laskey-jaggard-lucas-carter-cadman-21-february-1992-times-law-reports-court-of-appeal-spanner/

[7] 2017 Mar 24 Cathy Fox Blog Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-lucas-jaggard-laskey-carter-12-march-1993-times-law-reports-house-of-lords/

[8] 2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   https://www.amazon.co.uk/d/cka/Dirty-Squad-Michael-Hames/0316853216/ref=sr_1_3?ie=UTF8&qid=1490120494&sr=8-3&keywords=Michael+hames

Cathy Fox Blog Relevant Article Posts

 

Posted in Child Abuse | 6 Comments

Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner)

My interest in publishing these, is not the case per se but in what the police were doing investigating it in the first place, any child sexual abuse claimed on the outskirts of the case and the legal judgement about consent not being a defence.

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

Index of Court Appeals on this blog [2]

21 February 1992 Times Law Reports
Court of Appeal

  • Regina v Brown (Anthony)
  • Regina v Laskey (Colin)
  • Regina v Jaggard
  • Regina v Lucas (Saxon)
  • Regina v Carter
  • Regina v Cadman

Before Lord Lane, Lord Chief Justice, Mr Justice Rose and Mr Justice Potts


Crime – assault – sado-masochism – consent no defence

Consent no defence to sado-masochistic assault
Willing and enthusiastic participation in sado-masochistic acts of violence against each other by a group of homosexuals for the sexual pleasure it engendered in the giving and receiving of pain provided no defence to charges of assault and wounding under the Offences against the Person Act 1861.

The Court of Appeal so held in a reserved judgment dismissing appeals against conviction by five men on pleas of guilty following re-arraignment on November 7, 1990 after a ruling at the Central Criminal Court by Judge Rant, QC, that, in the particular circumstances, it was unnecessary for the prosecution to prove that the victim did not consent to the infliction of bodily harm or wounding on him.

The appeals were also against sentences passed totalling on Brown of two years nine months, reduced on appeal to three months; on Laskey of four and a half years reduced on appeal to two years; on Jaggard of three years, reduced on appeal to six months; on Lucas of three years reduced to six months; and on Cadman, who appealed only against sentence of four and a half years, reduced to three years.

The court certified that a point of law of general public importance was involved, namely: “When A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before it can establish A’s guilt under section 20 or section 47 of the Offences against the Person Act 1861?” Leave to appeal to the House of Lords was granted.

Mr Lawrence Kershen for Brown; Miss Anna Worrall, QC and Mr Gibson Grenfell for Laskey; Lady Mallalieu, QC and Mr Adrian Fulford for Jaggard; Mr Adrian Fulford for Lucas; Mr Jonathan Lurie for Carter; Mr Russell Davies for Cadman; all assigned by the Registrar of Criminal Appeals; Mr Michael Worsley, QC and Mr David Spens for the Crown.

THE LORD CHIEF JUSTICE , giving the judgment of the court, said that the basis of the appeals against conviction was the contention that the judge was wrong in ruling as he did.

The appellants belonged to a group of sado-masochistic homosexuals who willingly and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure which it engendered in the giving and receiving of pain. Some who had been convicted had not appealed.

The activities took place at a number of different locations including rooms equipped as torture chambers at the homes of co-defendants Ian Wilkinson and Peter John Grindley, who had abandoned their appeals, and the appellant Cadman. Video cameras were used to record the activities and the resulting tapes were then copied and distributed among members of the group.

The prosecution case was based largely on the contents of the video tapes. There was no suggestion that the tapes had been sold or used other than for the delectation of members of the group. The group activities extended over a 10-year period from 1978.

His Lordship reviewed details of some 19 counts. Included among them was count 7, involving Laskey. It charged assault occasioning actual bodily harm. Stinging nettles were applied around the genital area and buttocks of the victim. He was hit with a cat of nine tails and the inside of his thighs was caned.

Count 17 alleged unlawful wounding against Lucas and Jaggard. A co-defendant named Atkinson had his penis nailed to a bench; he was caned, hit and rubbed with a spiked strap, then cut with a scalpel by Lucas. There were five lateral cuts together with further cuts to the victim’s scrotum and there was a free flow of blood.

It was common ground that all the actions to which the appellants pleaded guilty were done with the consent of the passive partner or victim.

There was no permanent injury; no infection of the wounds; no evidence of any medical attention being sought. There was no complaint to the police. The facts came to light by chance during investigation of other matters. The actions were carried out in private. There was no profit motive and no sale of the video tapes.

It was submitted that there could be no assault unless the prosecution proved that there was a “hostile” act by the defendant. That submission was based on dicta in  Fairclough v Whipp  ([1951] 2 All ER 834), where it was held that an invitation to a child to commit an indecent act, even if the invitation was accepted was not an assault, indecent or otherwise.

His Lordship said that, if hostile meant aggressive or intentional, then that definition was satisfied in the instant case. If it meant without the consent of the other party, then it added nothing to the arguments about consent which were at the heart of the appeal.

At the lowest, the intention in the present case to inflict pain and suffering was in the circumstances a sufficient degree of hostility to constitute an assault, subject to the question of consent.

Another submission was that it was inappropriate to lay charges under the 1861 Act which, it was said, was not intended to apply to consensual actions in private not causing serious injury, particularly where such actions were merely incidents of private sexual behaviour.

His Lordship said that if the events had been merely incidents in the course of private activities, whether homo- or heterosexual, then doubtless different considerations would have been applied.

Where, however, as in this case, there had admittedly been inflicted either wounding or actual bodily harm, it was in their Lordships’ judgment both permissible and correct to lay charges under the 1861 Act.

References had been made to Report of the Committee on Homosexual Offences and Prostitution, the Wolfenden Report ((1957) Cmnd 247) and to the decision of the European Court of Human Rights in  Dudgeon v United Kingdom ((1982) 4 EHRR 149), but they did not seem to be relevant, as they did not apply when wounds or actual bodily harm were actually suffered.

The real nub of the appeal was the contention that the consent of the victim in the circumstances prevented the prosecution from proving an essential element of the offences, whether charged under section 20 or section 47 of the 1861 Act.

Section 47 provided for liability to imprisonment for five years for conviction on indictment of any assault occasioning actual bodily harm. Such harm was defined in  R v Miller  ([1954] 2 QB 282, 292) as any hurt or injury calculated to interfere with health or comfort.

Section 20 provided “Whosoever shall unlawfully and maliciously by any means whatsoever wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument shall be liable … to imprisonment … for not more than five years.”

By their pleas to various counts, therefore, Laskey, Jaggard and Lucas, so far as the section 20 allegations were concerned, admitted that they had wounded the victim and, so far as section 47 was concerned, all the appellants admitted to having caused hurt or injury calculated to interfere with the health or comfort of the other party.

Generally speaking, for the prosecution to bring home a charge of assault, they had to prove that the victim did not consent to the defendant’s actions, an assault being any unlawful touching of another without that other’s consent.

In certain circumstances the law did not permit a defendant to rely, so to speak, on the victim’s consent. Consent to being killed would provide no excuse for the killer. Where the assault involved permanent injury or maiming, for example, severing of a limb, there was no dispute that the victim’s consent was immaterial.

It was contended that the same considerations did not apply where there was no permanent injury, even though the assault might have amounted to grievous bodily harm or wounding.

His Lordship reviewed the classic authority  R v Coney  ((1882) 8 QBD 534), the prize fight case,  R v Donovan  ([1934] 2 KB 498), in which the reasoning of the court seemed to have been tautologous, as was pointed out in  Attorney General’s Reference (No 6 of 1980)  ([1981] QB 715), referred to Kenny’s Outlines of Criminal Law (19th edition (1966) p209) and Archbold, Criminal Pleading, Evidence and Practice (43rd edition (1988) paragraph 20/124).

That brought their Lordships to the  Reference , where two youths met in a public street and decided to fight each other, as a result one sustained a bleeding nose and bruising to his face. The other was charged with assault occasioning actual bodily harm and was acquitted by the jury.

The question posed by the Attorney General to the court was “Whether, where two persons fight (otherwise than in the course of sport) in a public place, can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?”

The court’s answer was that it was not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles were another matter. So, it was immaterial whether the act occurred in private or in public. It was an assault if actual bodily harm was intended and/or caused. That meant that most fights would be unlawful regardless of consent.

What might be good reason was unnecessary for their Lordships to decide. It was sufficient to say, so far as the instant case was concerned, that they agreed with the trial judge that the satisfying of sado-masochistic libido did not come within the category of good reason nor could the injuries be described as merely transient or trifling.

In their Lordships’ judgment, the principle as expressed in the Reference  did apply to the instant case.

Consequently, for those reasons the question of consent was immaterial. The judge’s ruling was correct.

Any attempt to distinguish between offences coming within section 18 of the 1861 Act and those coming within section 20 or 47 would, it seemed, be almost impossible to draw. Many of the section 47 charges could equally well have been laid under section 20 and the only distincition between section 20 and section 18 was the intent of the defendant and not the degree of violence.

For those reasons the several appeals against conviction were dismissed.

As to sentences: their Lordships took the view that the function of the court was to mark its disapproval of those activities by imposing short terms of immediate imprisonment. They were prepared to accept that the appellants did not appreciate that their actions in inflicting injuries were criminal and that the sentences upon them therefore should be comparatively lenient.

In future, however, that argument would not be open to a defendant in circumstances such as those obtaining in the instant case.

Solicitors: CPS, Central Courts.

21/02/1992 Times Law Reports

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

Index of Court Appeals on this blog [2]

1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner [3]

1992 Feb 21 Times Law Reports  Brown, Laskey, Jaggard, Lucas, Carter, Cadman – Court of Appeal (Spanner) [6]

1993 Mar 12 Times Law Reports Brown, Lucas, Jaggard, Laskey, Carter – House of Lords (Spanner) [7]

1997 Feb 20 Times Law Report Laskey, Jaggard and Brown v UK ECHR (Operation Spanner) [4]

1997 Times Law Report Laskey, Jaggard and Brown v UK – EHCR (Spanner) [5]

all related to this post  2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   [8]

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

[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/

[3]  2017 Mar 25 Cathy Fox Blog 1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner https://cathyfox.wordpress.com/2017/03/25/glasgow-herald-10-oct-1989-fifteen-charged-after-operation-spanner/

[4] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK ECHR Times Law Report 1997 Feb 20 (Operation Spanner) https://cathyfox.wordpress.com/2017/03/24/laskey-jaggard-and-brown-v-uk-echr-times-law-report-operation-spanner/

[5] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK – Times Law Report 1997 EHCR (Spanner) https://cathyfox.wordpress.com/2017/03/25/laskey-jaggard-and-brown-v-uk-times-law-report-1997-ehcr-spanner/

[6] 2017 Mar 24 Cathy Fox Blog Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-laskey-jaggard-lucas-carter-cadman-21-february-1992-times-law-reports-court-of-appeal-spanner/

[7] 2017 Mar 24 Cathy Fox Blog Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-lucas-jaggard-laskey-carter-12-march-1993-times-law-reports-house-of-lords/

[8] 2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   https://www.amazon.co.uk/d/cka/Dirty-Squad-Michael-Hames/0316853216/ref=sr_1_3?ie=UTF8&qid=1490120494&sr=8-3&keywords=Michael+hames

Posted in Court, physical abuse | Tagged , , , , , , , | 10 Comments

Laskey, Jaggard and Brown v UK – Times Law Report 1997 EHCR (Spanner)

My interest in publishing these, is not the case per se but in what the police were doing investigating it in the first place, any child sexual abuse claimed on the outskirts of the case and the legal judgement about consent not being a defence.

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

Index of Court Appeals on this blog [2]

Laskey, Jaggard and Brown v. the United Kingdom Reports 1997-I p. 120
EUROPEAN COURT OF HUMAN RIGHTS

In the case of Laskey, Jaggard and Brown v the United Kingdom

The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A as a Chamber composed of the following judges:

  • Mr R. Bernhardt, President,
  • Mr L.-E. Pettiti,
  • Mr C. Russo,
  • Mr A. Spielmann,
  • Sir John Freeland,
  • Mr M.A. Lopes Rocha,
  • Mr L. Wildhaber,
  • Mr P. Kuris,
  • Mr E. Levits,
  • and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 28 October 1996 and 20 January 1997,

Delivers the following judgment, which was adopted on the last-mentioned date:

Notes by the Registrar

  1. The case is numbered 109/1995/615/703-705. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
  2.  Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

3.PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 11 December 1995, within the three-month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in three applications (nos. 21627/93, 21826/93 and 21974/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art. 25) on 14 December 1992 by three British nationals, Mr Colin Laskey, Mr Roland Jaggard and Mr Anthony Brown.The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 of the Convention (art. 8)
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the late Mr Laskey’s father and the two other applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 30).
3. The Chamber to be constituted included ex officioSir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr L.-E. Pettiti, Mr C. Russo, Mr A. Spielmann, Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr P. Kuris and Mr E. Levits (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the orders made in consequence, the Registrar received the Government’s and the applicants’ memorials on 2 and 15 July 1996 respectively.
5. On 17 July 1996, the President granted leave to Rights International, a New York-based non-governmental human rights organisation, to submit written comments on specified aspects of the case (Rule 37 para. 2). The comments were received on 16 August 1996.
6. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 October 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:
(a) for the Government

Mr I. Christie, Assistant Legal Adviser, Foreign and Commonwealth Office, Agent,

Mr D. Pannick QC,  Mr M. Shaw, Counsel,

Mr S. Bramley, Ms B. Moxon, Advisers;

(b) for the Commission

Mr G. Ress, Delegate;

(c) for the applicants 

Lord Lester of Herne Hill QC, Ms A. Worrall QC, Counsel,

Mr D. Jonas, Mr A. Hamilton, Mr I. Geffen, Solicitors,

Mr J. Wadham, Adviser.

The Court heard addresses by Mr Ress, Lord Lester of Herne Hill, Ms Worrall and Mr Pannick.

AS TO THE FACTS

I. The circumstances of the case

7. Mr Laskey, Mr Jaggard and Mr Brown, all British citizens, were born in 1943, 1947 and 1935 respectively. Mr Laskey died on 14 May 1996.

8. In 1987, in the course of routine investigations into other matters, the police came into possession of a number of video films which were made during sado-masochistic encounters involving the applicants and as many as forty-four other homosexual men. As a result the applicants, with several other men, were charged with a series of offences, including assault and wounding, relating to sado-masochistic activities that had taken place over a ten-year period. One of the charges involved a defendant who was not yet 21 years old – the age of consent to male homosexual practices at the time. Although the instances of assault were very numerous, the prosecution limited the counts to a small number of exemplary charges.

The acts consisted in the main of maltreatment of the genitalia (with, for example, hot wax, sandpaper, fish hooks and needles) and ritualistic beatings either with the assailant’s bare hands or a variety of implements, including stinging nettles, spiked belts and a cat-o’-nine tails. There were instances of branding and infliction of injuries which resulted in the flow of blood and which left scarring.

These activities were consensual and were conducted in private for no apparent purpose other than the achievement of sexual gratification. The infliction of pain was subject to certain rules including the provision of a code word to be used by any “victim” to stop an “assault”, and did not lead to any instances of infection, permanent injury or the need for medical attention.

9. The activities took place at a number of locations, including rooms equipped as torture chambers. Video cameras were used to record events and the tapes copied and distributed amongst members of the group. The prosecution was largely based on the contents of those videotapes. There was no suggestion that the tapes had been sold or used other than by members of the group.

10. The applicants pleaded guilty to the assault charges after the trial judge ruled that they could not rely on the consent of the “victims” as an answer to the prosecution case.

11. On 19 December 1990, the defendants were convicted and sentenced to terms of imprisonment. On passing sentence, the trial judge commented: “… the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them. The homosexuality of the defendants is only the background against which the case must be viewed.”

Mr Laskey was sentenced to imprisonment for four years and six months. This included a sentence of four years’ imprisonment for aiding and abetting keeping a disorderly house (see paragraph 31 below) and a consecutive term of six months’ imprisonment for possession of an indecent photograph of a child. Under section 47 of the Offences against the Person Act 1861 (“the 1861 Act” – see paragraph 27 below), Mr Laskey also received concurrent sentences of twelve months’ imprisonment in respect of various counts of assault occasioning actual bodily harm and aiding and abetting assault occasioning actual bodily harm.

12. Mr Jaggard was sentenced to imprisonment for three years. He received two years’ imprisonment for aiding and abetting unlawful wounding – contrary to section 20 of the 1861 Act (see paragraph 25 below) -, and a further twelve months’ imprisonment for assault occasioning actual bodily harm, aiding and abetting the same offence, and unlawful wounding.

13. Mr Brown was sentenced to imprisonment for two years and nine months. He received twelve months’ imprisonment for aiding and abetting assault occasioning actual bodily harm, a further nine months’ imprisonment for assault occasioning actual bodily harm, and a further twelve months’ imprisonment for further assaults occasioning actual bodily harm.

14. The applicants appealed against conviction and sentence.

15. On 19 February 1992, the Court of Appeal, Criminal Division, dismissed the appeals against conviction. Since, however, the court found that the applicants did not appreciate that their actions in inflicting injuries were criminal, reduced sentences were imposed.

16. Mr Laskey’s sentence was thus reduced to eighteen months’ imprisonment as regards the charge of aiding and abetting keeping a disorderly house. This sentence was to run concurrently with another three months’ sentence in respect of the various counts of assault and consecutively with six months’ imprisonment for the possession of an indecent photograph of a child, totalling two years’ imprisonment.

17. Mr Jaggard’s and Mr Brown’s sentences were reduced to six months’ and three months’ imprisonment respectively.

18. The applicants appealed to the House of Lords on the following certified point of law of public importance:

“Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the 1861 Act?”

19. On 11 March 1993, the appeal, known as the case of R. v. Brown ([1993] 2 All England Law Reports 75), was dismissed by a majority of the House of Lords, two of the five law lords dissenting.

20. Lord Templeman, in the majority, held after reviewing the case-law that:

“… the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the Act of 1861. They establish that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters …

Counsel for the appellants argued that consent should provide a defence … because it was said every person has a right to deal with his own body as he chooses. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be taken. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They inflicted harm on willing victims …

In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty …

Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”

21. Lord Jauncey of Tullichettle found that:

“In my view the line falls properly to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence … unless the circumstances fall within one of the well known exceptions such as organised sporting contests or games, parental chastisement or reasonable surgery … the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.

… Notwithstanding the views which I have come to, I think it right to say something about the submissions that consent to the activity of the appellants would not be injurious to the public interest.

Considerable emphasis was placed by the appellants on the well-ordered and secret manner in which their activities were conducted and upon the fact that these activities had resulted in no injuries which required medical attention. There was, it was said, no question of proselytising by the appellants. This latter submission sits ill with the following passage in the judgment of the Lord Chief Justice:

‘They [Laskey and Cadman] recruited new participants; they jointly organised proceedings at the house where much of this activity took place; where much of the pain inflicting equipment was stored.

Cadman was a voyeur rather than a sado-masochist, but both he and Laskey through their operations at the Horwich premises were responsible in part for the corruption of a youth “K” who is now it seems settled into a normal heterosexual relationship.’

Be that as it may, in considering the public interest it would be wrong to look only at the activities of the appellants alone, there being no suggestion that they and their associates are the only practitioners of homosexual sado-masochism in England and Wales. This House must therefore consider the possibility that these activities are practised by others and by others who are not so controlled or responsible as the appellants are claiming to be. Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented serious injury from occurring. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is HIV-positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented. Your Lordships have no information as to whether such situations have occurred in relation to other sado-masochistic practitioners. It was no doubt these dangers which caused Lady Mallalieu to restrict her propositions in relation to the public interest to the actual rather than the potential result of the activity. In my view such a restriction is quite unjustified. When considering the public interest potential for harm is just as relevant as actual harm. As Mathew J. said in Coney 8 Queen’s Bench 534, 547:

‘There is however abundant authority for saying that no consent can render that innocent which is in fact dangerous.’

Furthermore, the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants and the taking of video recordings of such activities suggests that secrecy may not be as strict as the appellants claimed to your Lordships.”

22. Lord Mustill and Lord Slynn of Hadley dissented. The first considered that the case should not be treated as falling within the criminal law of violence but rather within the criminal law of private sexual relations. He gave weight to the arguments of the appellants concerning Article 8 of the Convention (art. 8), finding that the decisions of the European authorities clearly favoured the right of the appellants to conduct their private life undisturbed by the criminal law. He considered after an examination of the relevant case-law that it was appropriate for the House of Lords to tackle afresh the question whether public interest required penalising the infliction of this degree of harm in private on a consenting recipient, where the purpose was not profit but gratification of sexual desire. He found no convincing argument on grounds of health (alleged risk of infections or spread of AIDS), the alleged risk of the activities getting out of hand or any possible risk of corruption of youth which might require the offences under the 1861 Act to be interpreted as applying to this conduct.

23. Lord Slynn of Hadley found that as the law stood adults were able to consent to acts done in private which did not result in serious bodily harm. He agreed that it was in the end a matter of policy in an area where social and moral factors were extremely important and where attitudes could change. It was however for the legislature to decide whether such conduct should be brought within the criminal law and not for the courts in the interests of “paternalism” to introduce into existing statutory crimes relating to offences against the person concepts which did not properly fit there.

24. The proceedings were given widespread press coverage. All the applicants lost their jobs and Mr Jaggard required extensive psychiatric treatment.

II. Relevant domestic law and practice

A. Offences against the persons

1. The Offences against the Person Act 1861

25. Section 20 of the Offences against the Person Act 1861 (“the 1861 Act”) provides:

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, … shall be liable … to [imprisonment] … for not more than five years.”

26. According to the case-law, to constitute a wound for the purposes of the section, the whole skin must be broken, not merely the outer layer or epidermis.

27. By section 47 of the 1861 Act:

“Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable … to imprisonment for not more than five years.”

Actual bodily harm is defined as “any hurt or injury calculated to interfere with health or comfort” (Liksey J, in R. v. Miller [1954] 2 Queen’s Bench Reports 282, at 292).

2. Case-law prior to R. v. Brown

28. In the case of R. v. Donovan ([1934] 2 King’s Bench Reports, at 498), the accused had beaten with a cane a girl for the purposes of sexual gratification, with her consent. Swift J held:

“It is an unlawful act to beat another person with such a degree of violence that the infliction of actual bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.”

29. In Attorney-General’s Reference (No. 6 of 1980) ([1980] Queen’s Bench Reports, at 715) where two men quarrelled and decided to fight each other, Lord Lane CJ in the Court of Appeal had held:

“It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.”

3. Case-law subsequent to R. v. Brown

30. In R. v. Wilson ([1996] 3 Weekly Law Reports, at 125), where a man had been convicted of assault occasioning actual bodily harm for having branded his initials with a hot knife on his wife’s buttocks with her consent, the Court of Appeal, Criminal Division, allowed the appeal. In the course of the court’s judgment, Lord Justice Russell stated:

“… there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown: Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant …

We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing …

Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution.”

B. Offences against public decency

31. Keeping a “disorderly house” is a common law offence. A disorderly house is defined as

“one which is not regulated by the restraints of morality and which is so conducted as to violate law and good order. There must be an element of ‘open house’, but it does not need to be open for the public at large … Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house, it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort (a) amounts to an outrage of public decency, or (b) tends to corrupt or deprave, or (c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment” ([1996] Archbold’s Criminal Pleading, Evidence and Practice 20, at 224).

PROCEEDINGS BEFORE THE COMMISSION

32. Mr Laskey, Mr Jaggard and Mr Brown applied to the Commission on 14 December 1992. They relied on Articles 7 and 8 of the Convention (art. 7, art. 8), complaining that their convictions were the result of an unforeseeable application of a provision of the criminal law which, in any event, amounted to an unlawful and unjustifiable interference with their right to respect for their private life.

33. On 18 January 1995, the Commission declared the applications (nos. 21627/93, 21826/93 and 21974/93) admissible as to the complaint under Article 8 of the Convention (art. 8). In its report of 26 October 1995 (Article 31) (art. 31), it expressed the opinion, by eleven votes to seven, that there had been no violation of that provision (art. 8).

The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment (1).

Note by the Registrar

  1. 1. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-I), but a copy of the Commission’s report is obtainable from the registry.

FINAL SUBMISSIONS TO THE COURT

34. At the hearing, the Government invited the Court to agree with the majority of the Commission that there had been no breach of the Convention in this case.

The applicants, for their part, asked the Court to consider the position of each individual applicant upon the basis of the agreed facts and the charges which were pertinent to them and to find a violation of their right to respect for their private lives through the expression of their sexual personality, as guaranteed by Article 8 of the Convention (art. 8).

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)

35. The applicants contended that their prosecution and convictions for assault and wounding in the course of consensual sado-masochistic activities between adults was in breach of Article 8 of the Convention (art. 8), which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It was common ground among those appearing before the Court that the criminal proceedings against the applicants which resulted in their conviction constituted an “interference by a public authority” with the applicants’ right to respect for their private life. It was similarly undisputed that the interference had been “in accordance with the law”. Furthermore, the Commission and the applicants accepted the Government’s assertion that the interference pursued the legitimate aim of the “protection of health or morals”, within the meaning of the second paragraph of Article 8 (art. 8-2).

36. The Court observes that not every sexual activity carried out behind closed doors necessarily falls within the scope of Article 8 (art. 8). In the present case, the applicants were involved in consensual sado-masochistic activities for purposes of sexual gratification. There can be no doubt that sexual orientation and activity concern an intimate aspect of private life (see, mutatis mutandis, the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 21, para. 52). However, a considerable number of people were involved in the activities in question which included, inter alia, the recruitment of new “members”, the provision of several specially equipped “chambers”, and the shooting of many videotapes which were distributed among the “members” (see paragraphs 8 and 9 above). It may thus be open to question whether the sexual activities of the applicants fell entirely within the notion of “private life” in the particular circumstances of the case.

However, since this point has not been disputed by those appearing before it, the Court sees no reason to examine it of its own motion in the present case. Assuming, therefore, that the prosecution and conviction of the applicants amounted to an interference with their private life, the question arises whether such an interference was “necessary in a democratic society” within the meaning of the second paragraph of Article 8 (art. 8-2).

“Necessary in a democratic society”

37. The applicants maintained that the interference in issue could not be regarded as “necessary in a democratic society”. This submission was contested by the Government and by a majority of the Commission.

38. In support of their submission, the applicants alleged that all those involved in the sado-masochistic encounters were willing adult participants; that participation in the acts complained of was carefully restricted and controlled and was limited to persons with like-minded sado-masochistic proclivities; that the acts were not witnessed by the public at large and that there was no danger or likelihood that they would ever be so witnessed; that no serious or permanent injury had been sustained, no infection had been caused to the wounds, and that no medical treatment had been required. Furthermore, no complaint was ever made to the police – who learnt about the applicants’ activities by chance (see paragraph 8 above).

The potential for severe injury or for moral corruption was regarded by the applicants as a matter of speculation. To the extent that issues of public morality had arisen – with reference to Mr Laskey’s conviction for keeping a disorderly house and for the possession of an indecent photograph of a child (see paragraph 11 above) – these had been dealt with under the relevant sexual offences provisions and appropriately punished. In any event, such issues fell outside the scope of the case as presented before the Court.

39. The applicants submitted that their case should be viewed as one involving matters of sexual expression, rather than violence. With due regard to this consideration, the line beyond which consent is no defence to physical injury should only be drawn at the level of intentional or reckless causing of serious disabling injury.

40. For the Government, the State was entitled to punish acts of violence, such as those for which the applicants were convicted, that could not be considered of a trifling or transient nature, irrespective of the consent of the victim. In fact, in the present case, some of these acts could well be compared to “genital torture” and a Contracting State could not be said to have an obligation to tolerate acts of torture because they are committed in the context of a consenting sexual relationship. The State was moreover entitled to prohibit activities because of their potential danger.

The Government further contended that the criminal law should seek to deter certain forms of behaviour on public-health grounds but also for broader moral reasons. In this respect, acts of torture – such as those in issue in the present case – may be banned also on the ground that they undermine the respect which human beings should confer upon each other. In any event, the whole issue of the role of consent in the criminal law is of great complexity and the Contracting States should enjoy a wide margin of appreciation to consider all the public-policy options.

41. The Commission noted that the injuries that were or could be caused by the applicants’ activities were of a significant nature and degree, and that the conduct in question was, on any view, of an extreme character. The State authorities therefore acted within their margin of appreciation in order to protect its citizens from real risk of serious physical harm or injury.

42. According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the national authorities (see, inter alia, the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 31-32, para. 67), whose decision remains subject to review by the Court for conformity with the requirements of the Convention.

The scope of this margin of appreciation is not identical in each case but will vary according to the context. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned (see the Buckley v. the United Kingdom judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1291-92, para. 74).

43. The Court considers that one of the roles which the State is unquestionably entitled to undertake is to seek to regulate, through the operation of the criminal law, activities which involve the infliction of physical harm. This is so whether the activities in question occur in the course of sexual conduct or otherwise.

44. The determination of the level of harm that should be tolerated by the law in situations where the victim consents is in the first instance a matter for the State concerned since what is at stake is related, on the one hand, to public health considerations and to the general deterrent effect of the criminal law, and, on the other, to the personal autonomy of the individual.

45. The applicants have contended that, in the circumstances of the case, the behaviour in question formed part of private morality which is not the State’s business to regulate. In their submission the matters for which they were prosecuted and convicted concerned only private sexual behaviour.

The Court is not persuaded by this submission. It is evident from the facts established by the national courts that the applicants’ sado-masochistic activities involved a significant degree of injury or wounding which could not be characterised as trifling or transient. This, in itself, suffices to distinguish the present case from those applications which have previously been examined by the Court concerning consensual homosexual behaviour in private between adults where no such feature was present (see the Dudgeon judgment cited above, the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, and the Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259).

46. Nor does the Court accept the applicants’ submission that no prosecution should have been brought against them since their injuries were not severe and since no medical treatment had been required.

In deciding whether or not to prosecute, the State authorities were entitled to have regard not only to the actual seriousness of the harm caused – which as noted above was considered to be significant – but also, as stated by Lord Jauncey of Tullichettle (see paragraph 21 above), to the potential for harm inherent in the acts in question. In this respect it is recalled that the activities were considered by Lord Templeman to be “unpredictably dangerous” (see paragraph 20 above).

47. The applicants have further submitted that they were singled out partly because of the authorities’ bias against homosexuals. They referred to the recent judgment in the Wilson case (see paragraph 30 above), where, in their view, similar behaviour in the context of a heterosexual couple was not considered to deserve criminal punishment.

The Court finds no evidence in support of the applicants’ allegations in either the conduct of the proceedings against them or the judgment of the House of Lords. In this respect it recalls the remark of the trial judge when passing sentence that “the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them” (see paragraph 11 above).

Moreover, it is clear from the judgment of the House of Lords that the opinions of the majority were based on the extreme nature of the practices involved and not the sexual proclivities of the applicants (see paragraphs 20 and 21 above).

In any event, like the Court of Appeal, the Court does not consider that the facts in the Wilson case were at all comparable in seriousness to those in the present case (see paragraph 30 above).

48. Accordingly, the Court considers that the reasons given by the national authorities for the measures taken in respect of the applicants were relevant and sufficient for the purposes of Article 8 para. 2 (art. 8-2).

49. It remains to be ascertained whether these measures were proportionate to the legitimate aim or aims pursued.

The Court notes that the charges of assault were numerous and referred to illegal activities which had taken place over more than ten years. However, only a few charges were selected for inclusion in the prosecution case. It further notes that, in recognition of the fact that the applicants did not appreciate their actions to be criminal, reduced sentences were imposed on appeal (see paragraphs 15-17 above). In these circumstances, bearing in mind the degree of organisation involved in the offences, the measures taken against the applicants cannot be regarded as disproportionate.

50. In sum, the Court finds that the national authorities were entitled to consider that the prosecution and conviction of the applicants were necessary in a democratic society for the protection of health within the meaning of Article 8 para. 2 of the Convention (art. 8-2).

51. In view of this conclusion the Court, like the Commission, does not find it necessary to determine whether the interference with the applicants’ right to respect for private life could also be justified on the ground of the protection of morals. This finding, however, should not be understood as calling into question the prerogative of the State on moral grounds to seek to deter acts of the kind in question.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 8 of the Convention (art. 8).

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 February 1997.

Signed: Rudolf BERNHARDT President

Signed: Herbert PETZOLD Registrar

In accordance with Article 51 para. 2 of the Convention (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the concurring opinion of Mr Pettiti is annexed to this judgment.

Initialled: R. B.

Initialled: H. P.

CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I concurred with all my colleagues in finding that there had been no violation of Article 8 of the Convention (art. 8). However, my reasoning differs from theirs in some respects.

Firstly, the Court implicitly accepted that Article 8 (art. 8) was applicable since it assumed there had been an interference, and the application referred to State interference under Article 8 (art. 8): “the institution of criminal proceedings infringed that Article (art. 8).”

In my view, that Article (art. 8) was not even applicable in the instant case. The concept of private life cannot be stretched indefinitely.

Not every aspect of private life automatically qualifies for protection under the Convention. The fact that the behaviour concerned takes place on private premises does not suffice to ensure complete immunity and impunity. Not everything that happens behind closed doors is necessarily acceptable. It is already the case in criminal law that the “rape” of a spouse where there is doubt whether consent was given may lead to prosecution. Other types of behaviour may give rise to civil proceedings (internal telephone tapping for example). Sexual acts and abuse, even when not criminal, give rise to liability.

The case could have been looked at differently, both in domestic law and subsequently under the Convention. Can one consider that adolescents taking part in sado-masochistic activities have given their free and informed consent where their elders have used various means of enticement, including financial reward?

In domestic law, sado-masochistic activities could be made the subject of a specific criminal offence without that being contrary to Article 8 (art. 8) of the European Convention on Human Rights.

It seems to me that the wording used by the Court in paragraph 42 is too vague. The margin of appreciation has been used by the Court mainly in dealing with issues of morals or problems of civil society, but above all so as to afford better protection to others; consequently, a reference to the Müller and Others v. Switzerland judgment would have been preferable to the reference to the Buckley v. the United Kingdom judgment (see Olivier de Schutter’s commentary on that judgment in Revue trimestrielle des droits de l’homme, Brussels, 1997, pp. 64-93).

It seemed to me necessary to expand paragraph 43 by noting “to regulate and punish practices of sexual abuse that are demeaning even if they do not involve the infliction of physical harm”.

The dangers of unrestrained permissiveness, which can lead to debauchery, paedophilia (see paragraph 11 of the judgment) or the torture of others, were highlighted at the Stockholm World Conference. The protection of private life means the protection of a person’s intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism.

Reports 1997-I p. 120

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

Index of Court Appeals on this blog [2]

1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner [3]

1992 Feb 21 Times Law Reports  Brown, Laskey, Jaggard, Lucas, Carter, Cadman – Court of Appeal (Spanner) [6]

1993 Mar 12 Times Law Reports Brown, Lucas, Jaggard, Laskey, Carter – House of Lords (Spanner) [7]

1997 Feb 20 Times Law Report Laskey, Jaggard and Brown v UK ECHR (Operation Spanner) [4]

1997 Times Law Report Laskey, Jaggard and Brown v UK – EHCR (Spanner) [5]

all related to this post  2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   [8]

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

[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/

[3]  2017 Mar 25 Cathy Fox Blog 1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner https://cathyfox.wordpress.com/2017/03/25/glasgow-herald-10-oct-1989-fifteen-charged-after-operation-spanner/

[4] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK ECHR Times Law Report 1997 Feb 20 (Operation Spanner) https://cathyfox.wordpress.com/2017/03/24/laskey-jaggard-and-brown-v-uk-echr-times-law-report-operation-spanner/

[5] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK – Times Law Report 1997 EHCR (Spanner) https://cathyfox.wordpress.com/2017/03/25/laskey-jaggard-and-brown-v-uk-times-law-report-1997-ehcr-spanner/

[6] 2017 Mar 24 Cathy Fox Blog Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-laskey-jaggard-lucas-carter-cadman-21-february-1992-times-law-reports-court-of-appeal-spanner/

[7] 2017 Mar 24 Cathy Fox Blog Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-lucas-jaggard-laskey-carter-12-march-1993-times-law-reports-house-of-lords/

[8] 2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   https://www.amazon.co.uk/d/cka/Dirty-Squad-Michael-Hames/0316853216/ref=sr_1_3?ie=UTF8&qid=1490120494&sr=8-3&keywords=Michael+hames

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