England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM STAFFORD CROWN COURT
(HIS HONOUR JUDGE SHAND)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 July 2005

Lord Justice Maurice Kay :

1. This is the appeal of Colin Jeneson against conviction by a jury in the Crown Court at Stafford on the 25h November 2004 on five counts of indecent assault on a male (counts 1, 2, 3, 6, and 9); two counts of buggery (counts 4 and 5); and one count of assault with intent to commit buggery (count 10). On the same day the appellant was sentenced by the trial judge, HHJ Shand to the following terms of imprisonment, all of which were concurrent: count 1 – three years; count 2 – four years; count 3 – four years; count 4 -- eight years; count 5 -- eight years; count 6 -- six months; count 9 -- four years; and count 10 – seven years.
2. The appellant was acquitted by the jury on one count of indecent assault (count 7). The prosecution offered no evidence and the jury were ordered to find the appellant not guilty one count of indecent assault on a male. In relation to a further count of indecent assault the judge directed that the jury find the defendant not guilty. A further count of buggery was allowed to remain on file, only to be proceeded with by leave of the court. Three counts of buggery and four counts of indecent assault on a male were stayed as no pleas had been taken.
3. The charges the appellant faced were founded on allegations by a number of men who many years before had been pupils in children's homes where the appellant had been a teacher. The homes in question (and the relevant periods of time) were: Kingswood Assessment Centre in Bristol ("Kingswood") (July 1967 – July 1969); the Druids Approved School in Staffordshire ("Druids Heath") (July 1969 – July 1972); and the Tennal Assessment Centre, Harbourne in Birmingham ("Tennal") (August 1972 – 1977).
4. It was the prosecution case that the appellant deliberately targeted boys in his care at work. He often befriended them at the start and then moved on to stroking or touching their legs and then their genitals. He would then indecently assault them (masturbation and oral sex) or bugger them. In some cases the incidents were isolated and in others they became part of a long-term abusive relationship. Aside from counts 6 to 10, which represented individual incidents, the other counts were samples of lengthier courses of conduct. Consent was never an issue as the victims were all under sixteen years of age.
5. None of the complainants came forward spontaneously or at the time. They were all contacted by police during widespread investigations into a range of children homes. The first allegations were made in 1999. The appellant was arrested by DC Potts, in early 2003 when he visited England from Norway as a result of these investigations. He had gone to live in Norway in 1977 having married a Norwegian woman whom he met whilst on a one year sabbatical at Newcastle University. In Norway the appellant had had twin daughters and had taught for nine years before joining a major computer company where he worked for the last 18 years.
6. Counts 1 to 7 involved allegations of sexual abuse whilst the appellant was teaching at Druids Heath. The complainants were Raymond Greenfield (counts 1, 2 and 3 -- indecent assault), Ricky Hoare (counts 4 and 5 – buggery); John Budgeon (count 6 – indecent assault) and Tommy Cadman (count 7 – indecent assault).
7. Raymond Greenfield admitted that he had psychiatric problems. He testified that when he was a pupil at Druids Heath a man whom he knew as "Colin" would take him to his (Colin's) bedroom and touch his penis. On one occasion he was made to masturbate the appellant; on other occasions he gave the appellant oral sex; and on another occasion the appellant touched his penis in the boot room.
8. The witness Ronald Rowland said that on one occasion he saw Raymond Greenfield giving oral sex to the appellant in the kitchen area in the Annex. Rowland then started "acting the goat" and asked another boy who was nearby, Dicky Harrison, "Do you want to suck my cock?" The appellant walked in and caught him saying this and took him before the headmaster, Mr. Bright, saying that Rowland had made sexual allegations against him. Bright said that nothing like this happened in his school and Rowland did not know what he was letting himself in for. This scared Rowland and Harrison and they withdrew their allegations.
9. Since his time at Druids Heath, Ricky Hoare had changed his name to Ricky Ford. Ricky Ford alleged that the appellant indecently assaulted and buggered him on frequent occasions in the science classroom (count 4) and in the appellant's bedroom that was situated in the annex (count 5). Ricky Ford had had a bad record since the age of ten. At the time of the trial he was 45 years old and was serving a seven-year prison sentence for burglary. The records from Druids Heath reveal that Ford left in 1973, a year after the appellant. He had absconded form Druids Heath on a number of occasions; he insisted that this happened on more than the four occasions documented. He did not accept the results of a psychological assessment completed in 1973 which concluded that he suffered from a gross personality disorder and fantasies. In 1999, in the course of an investigation into offences at children's homes, the police visited Ford when he was a serving prisoner. At this point he said that it was another member of the staff, Mr. Greensill, who had sexually abused him. It was only in 2003 that he first implicated the appellant. In evidence he stated that Greensill had started sexually to abuse him two months before the appellant had started to abuse him. Since leaving Druids Heath, he had not discussed the sexual abuse he had suffered as he wanted to put it behind him; he felt that no one would believe him.
10. He described his science teacher as being in his mid twenties to early thirties and approximately six foot two inches tall, light hair – possibly light brown, with a slim build. He also noted that the appellant usually wore jeans and a t-shirt. He recalled the appellant driving a flash sports car – an Interceptor-- and moving from the main building to live in the annex. He clearly remembered that it was the science teacher who was the abuser.
11. In respect of count 4 Ford testified that the first occasion on which the appellant abused him was on a school open day and summer fete. He was at the front of the school when the appellant asked him to go to the science classroom as he wanted to speak to him. The blinds to the classroom were partly down and the appellant closed them completely and then locked the classroom door. As Ford stood in front of the desk, the appellant placed his hands all over his body on the outside of his clothes. He started at the top and then worked his way down before placing his hands into his short-trousers, feeling Ford's penis and asking, "Is it nice?" Ford did not resist as he feared repercussions. The appellant continued to touch Ford's penis and then bent him over the desk and buggered him. He told Ford to say nothing or there would be repercussions. This conduct was often repeated on subsequent occasions.
12. In respect of count 5 it was Ford's evidence that his dormitory was located in the annex where the appellant lived and the appellant would approach him at about 6.00pm, sometimes with Greensill and other times alone. Once in the appellant's bedroom, the door was locked, and the appellant would remove Ford's clothes, touch his penis and then bend him over the bed and bugger him. This would last anywhere between thirty minutes and one hour. When the appellant had finished he would send Ford downstairs and say, "Did you enjoy yourself? Don't say anything." The appellant would give Ford jelly tots sweets which he loved. On the first occasion that he went to the appellant's bedroom nothing occurred; the abuse only started on the second visit. Ford described the appellants' bedroom as containing one double bed, two wardrobes and two chests of drawers. There were lots of boxes with clothes in them that made the room look like an Oxfam shop. The sexual abuse in the bedroom lasted for between one year and eighteen months and occurred once a week. Ford testified that he told Greensill he was being abused by the appellant but was informed that, " Mr. Jeneson wouldn't do a thing like that, he's my friend,' and so he kept it bottled up. The abuse ended when he left Druids Heath; he thought that when he left the appellant was still there.
13. A former Druids Heath pupil called Keith Price also gave evidence in respect of counts 4 and 5. He said that he had a wonderful time at Druids Heath. Neither the appellant nor Greensill ever bothered him. He slept in the annex and remembered that the appellant had a room at the top of the annex which had a sloping ceiling. On four occasions he visited the appellant's room to watch "Match of the Day" on television on a Saturday. There were no other boys there; sometimes the appellant was there and other times not. He also saw several boys including Ford and John Manley go up to the appellant's room. In cross-examination he conceded that he had only seen the boys go to the top floor of the annex, but he insisted that he saw them going into Greensill's flat.
14. Count 6 relates to a single incident that occurred in Wales when the appellant took a group camping. The complainant, John Budgeon, had a criminal record dating back to 1967 and ending in 1997. He described himself as "a kid off the rails" and as an adult "a man who had done a lot of bad things in the past." He confessed that he now had a drink problem and admitted that he could not remember the names of the other teachers. Before speaking to the police in 1999 he had only told his partner of the sexual abuse that he had experienced at Druids Heath. In 1999 he made a statement to the police in which he said that the name of his assailant was Jennings or Jenkinson but he stated that they did not use staff surnames; instead he referred to his assailant by his nickname which was Jelly Tots. In his statement he remembered that his assailant had a nice sports car, possibly a red Triumph.
15. Budgeon testified that the appellant felt his penis during some horseplay on a beach at Lland, in Wales where the boys from Druids Heath were taken on holiday every year. Budgeon admitted to not having any recollection of the context. He also remembered being approached by the appellant, after being with him in his car and the appellant telling him, "Do to me what you do to Mr. Larkin." He added that Mr. Larkin was a member of staff and everyone new that Mr. Larkin had singled him out for special treatment, although Mr. Larkin did not sexually abuse him and there was no suggestion that he did.
16. The complainant in respect of count 7 (indecent assault) was Tommy Cadman. Cadman had a history of offending as a juvenile and as an adult; however his last conviction was in 1983. He attended Druids Heath and slept in the annex for approximately six months. He accepted that he was weak willed and attention seeking; however he would not accept that he was manipulative. He was first interviewed by the police in 2004. In evidence, he said that when the appellant transferred from Tennal to Druids Heath he took him with him. He described the appellant as then being about 30 years old, near six foot, of medium build with jet black hair and a local West Midlands accent. He also remembered a red sports car, possibly a Jaguar or an MGB. He said that the appellant's nickname was Concorde due to his big nose. He remembered being taken to swimming with three other boys in the appellant's red sports car when he was approximately 9 ½ years old and in his first year at Druids Heath. The appellant would stop along the way and take each boy alone into the woods, whilst the others waited by the car. On this occasion the appellant took Cadman approximately 100 to 150 yards away from the car and attempted to fondle his penis without warning. Although it was over his jeans and lasted for only a couple of seconds he described it as not being accidental. Cadman broke free from the appellant's grasp and fell to the floor. The appellant chased him and hit him on the back of the legs with some twigs. This was painful and lasted for about five minutes. The appellant told Cadman that if he said anything he would be in trouble.
17. Count 8 was stayed by the judge as an abuse of process.
18. Counts 9 and 10 relate to incidents that occurred whilst the appellant was employed at Tennal. The complainant, Carl Greenaway, was a prolific offender as a juvenile, but had no convictions as an adult. Previous reports on Greenaway describe him as a pathological liar without conscience or compassion although he denied that this was a fair assessment of him. He did not tell his parents about the sexual abuse as he did not want them to be upset and he felt that no one would believe him.
19. He described the appellant as being about 5 feet 9 inches with darkish hair, in his twenties and a smoker. He was a gentleman when he first met him. He remembered that the appellant lived on site. He described him as often wearing a suit and tie.
20. In respect of count 9 (which was a specimen count) Greenway testified that the first occasion the appellant asked him to masturbate him occurred in the appellant's flat. The appellant put his arm around him, took his penis out and asked Greenway to masturbate him, which he did, albeit reluctantly. Greenaway was forced to perform this activity on the appellant on about ten further occasions and often the appellant would ejaculate and use tissue or a handkerchief to clean up. On half of these occasions the appellant would remove his clothes and the clothes of Greenaway. On about four occasions the appellant would wake Greenway from his sleep in the dormitory and take him back to his room.
21. Greenway said that the appellant would visit Greenaway's parents at their home. He remembered that the appellant drove a camper van (a green A40 van and on another occasion he had borrowed an orange DAF). On one occasion he remembered seeing the appellant putting his arms around his two younger brothers. At that point he asked the appellant to take him for a ride in his van to take him away from his brothers. He preferred that he suffered rather than his brothers. On six or seven occasions the appellant took Greenaway down country lanes in his van. On a few of these occasions they were both naked and Greenaway would have to masturbate the appellant on the double pull-out bed in the camper van. Even after Greenaway left Tennal, the appellant continued to visit him for a month afterwards.
22. In cross-examination Greenaway denied initiating any sexual activity or pushing the appellant onto the bed. He also denied ever telling the appellant that he had been a gay prostitute in London. He had never been a prostitute and had only ever been to London on one occasion on which he had been arrested by the police.
23. In respect of count 10, Greenaway testified that on one occasion the appellant told him to pull his legs up towards his chest as he lay on his side on the bed in the camper van. The appellant then held Greenaway's hips and tried to put his penis into Greenaway's anus. Greenaway said that it hurt and told the appellant to stop, which he did.
24. Greenway stated that the abuse only stopped after he saw the appellant in a blue Volvo which he had told Greenaway his wife had brought. He told him that his wife lived in Sweden or Norway.
25. Count 12 was withdrawn from the jury after the close of the prosecution case on the ground that it was not clear on the evidence that the complainant, Paul Boardman, had been under 16 years at the time of the alleged indecent assaults.
26. The appellant submitted that there was no case to answer on counts 4 and 5 because of the unreliable nature of Ford's evidence. The judge ruled, however, that counts 4 and 5 could go to the jury. The correctness of that ruling is one of the grounds of appeal that has been argued before us.
27. In giving evidence in his defence, the appellant said that he had never abused any boy. He had never had any sexual activity with any of the complainants. In 1977 he finished work at Tennal and went to live in Norway with his wife. It was only in 2003 when he voluntarily returned to the UK that he was arrested. When he was interviewed he was tired and confused. He insisted that he only had one room in the annex, up the winding wooden stairs on the second floor. His window faced the neighbours' garden. When he was interviewed he told the police that could not recall the names Ronald Rowland and Dicky Harrison. He denied Greenfield's allegations and denied Rowland's allegations that he had seen Greenfield giving the appellant oral sex and had been taken before the headmaster, Bright, by the appellant.
28. However, despite what he said to the police in interview, and despite challenging Rowland's account through his counsel in cross-examination, in evidence the appellant admitted to taking Rowland to the headmaster, Mr. Bright, regarding a sexual matter. He said he had seen Rowland taunting another boy in the washing up area saying "Go on, do it to me like Jeneson did it to me," and this had led him to believe that Rowland had been trying to make out that he had been sexually assaulted by the appellant. He described Rowland as a troublesome character. When asked why he had denied taking Rowland to the headmaster he replied that he had only recalled the incident in the last twenty-four hours.
29. The appellant described Ford as the most deceitful liar and manipulator that he had ever come across. The appellant lived in the same flat throughout his time at Druids Heath. He did not have any keys to the education block as such. He would have to obtain them from another member of staff, although he admitted that he would not need a reason to obtain them but the fact would be noted. The venetian blinds in the science block were only on the road side and the doors had panels of glass, half the way up and they faced the fields. If he had been away from the fete for 45 minutes that fact would have been noted and Ford would have reported as an absconder.
30. He never had a double bed in his room and he did not have chests of clothes like an Oxfam shop He had never taken pupils to his bedroom. If Keith Price had watched Match of the Day in his room it would have been in a group, but he did not remember it happening. Neither Greenfield nor Price ever came to his room on their own.
31. The appellant denied any sexual activity between himself and John Budgeon. There was frequent physical contact between staff and the boys in a good natured way and if there had been some horseplay there may have been some accidental contact, but he could not remember that occurring.
32. The appellant did not agree with Cadman's description of him. He did not have a West-Midlands accent or black hair; nor did he smoke. He confirmed that he was the science specialist and that his nickname was Jelly Tots as he handed out sweets at Bingo. He denied giving the boys sweets on any other occasions. At the weekends he took a maximum of three people in his car to swim. His MGB sports car would not have been able to accommodate more than three boys and himself. He would only be the lone member of staff if there were staff shortages. He denied all of Cadman's allegations against him. He could not remember a single occasion on which the boys were split up as described by Cadman.
33. The appellant admitted to meeting Greenaway's parents and socialising with them. Even though he drove a VW camper van at the time he was never alone with Greenaway, as another boy, Salisbury, who lived close by, was always present. He would take both of them out and their trips would not last more than one hour. He denied putting his arm around the younger brothers of Greenaway. He never had any sexual interest in Greenaway; there was never any sexual activity in the camper van. He never owned or borrowed a DAF or A40 van. He only acquired a navy blue Volvo in January – June 1977, after he married his wife. They took it to Norway in August 1977. The appellant stated that he never saw Greenaway again after the summer of 1974 and certainly never told him that he was married or that he drove a Volvo.
34. In cross-examination he said that he was shocked to be approached sexually by Greenaway, but he did not report it. At the time he was very naïve and did not realise the gravity of the situation; he had a close pastoral relationship with Greenaway, even after he left. He admitted that he did not visit the home of any other boy.
35. The appellant called as a witness Brian Keith Greensill who had taught at Druids Heath from 1965 to 1973 and was the warden of the annex in his last three years there. It was Greensill who Ford said was his abuser when he was first interviewed by the police in 1999. In the course of the trial it was discovered that Greensill was living in Turkey and he arranged to return to England to give evidence. Before giving evidence he had been arrested and interviewed by the police about allegations made against him by a number of complainants, some of who were not witnesses at the appellant's trial.
36. Greensill testified that in the last two to three years before he left they introduced a night watchman scheme in the annex. If a child's bed was empty, a senior member of staff was informed. He recalled that the appellant moved straight into the annexe accommodation on the top floor. He also recalled that the appellant's nickname was Jelly Tots. He said that the appellant was hard working and got on well with the boys. He described Ford as being a very attention-seeking boy who was dishonest. He remembered Raymond Greenfield as being a lad of low intelligence. He got to know Greenfield's mother well and there was never a complaint by Greenfield about sexual behaviour against the appellant. If Rowland had made an allegation against the appellant, Greensill, as warden, would have wanted to know about it; it would almost certainly come out at a staff meeting. He did not recall ever hearing of such an incident involving the appellant. There were frequent trips for boys who stayed at the school at weekends. When a minibus was not available the staff would use their own vehicles. "Wide games" such as hide-and-seek were often played with children going into the woodland of a limited certain area to hide their movements.
37. Greensill was cross-examined about numerous allegations of sexual abuse being made against him by former boys at Druids Heath. He denied all the allegations. He also denied coming to give evidence for Jeneson to protect his own back. The manner of the cross-examination of Greensill is a further ground of appeal that was advanced on behalf of the appellant.
38. At the conclusion of the case for the defence, the appellant submitted to the learned judge that none of the surviving allegations was capable of supporting any of the other allegations and as such the standard similar fact direction would not be sufficient: accordingly, the learned Judge would have specifically to identify for the jury which evidence was capable of supporting a particular allegation. The learned judge rejected this submission, being of the view that the proposed direction would be to invade the function of the jury. He was prepared, however, to make it plain to the jury that certain matters were so tenuous in their similarity that they should not be regarded as similar fact evidence or supportive of any of the allegations. This ruling by the judge and the way in which he directed the jury on similar fact have also been the subject of attack in this appeal.
39. We propose to deal with the grounds of appeal in the order in which they relate to the sequence of events at trial.

Submission of No Case to Answer

40. As we have said, at the conclusion of the case for the prosecution, Mr Tedd QC submitted to the judge that there was no case to answer in relation to the counts in the indictment where Ricky Ford was the alleged victim. These counts, 4 and 5, were the only ones charging buggery. The submission was made by reference to the second limb of Galbraith, 73 Crim App R 124 at page 127 on the basis that there was some evidence

"… but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence."

41. In such a case, Lord Lane CJ stated:

"(a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

42. Mr Tedd also refers to Smolenski, The Times, 28 May 2004, in which Lord Woolf CJ observed that in cases of historic sexual abuse the trial judge should exercise careful scrutiny to see whether the case is safe to be left to the jury.
43. Mr Tedd draws attention to the following features of Ford's evidence. (1) The alleged offences occurred about 32 years before the trial. (2) The first complaint made by Ford was on 12 November 1999. It was that he had been sexually abused at Druids Heath not by the appellant but by Greensill "who was the only member of staff who did these things to me". (3) He did not make any allegation about the appellant until 2003. (4) There were significant inconsistencies between the 1999 complaint, the 2003 complaint and Ford's evidence at trial. (5) Ford has a bad criminal record much of which relates to deceptions of the elderly and vulnerable. At the time of giving evidence he was serving a sentence of seven years or more. (6) Ford suffered a serious brain injury in 1997. (7) He stated in evidence that the abuse at the hands of the appellant continued until he (Ford) left Druids Heath. In fact it was common ground that the appellant left Druids Heath about a year before Ford did. (8) Ford's allegations of violent buggery went considerably beyond the nature of any allegation by any other complainant. (9) Apart from the possible impact of similar fact evidence, there was no supporting evidence in relation to Ford's allegations. The evidence of Keith Price cannot be said to support Ford to any significant extent.
44. Having referred to these shortcomings in Ford's evidence, Mr Tedd submits that a perusal of the transcript suggests that the judge did not exercise the "very careful scrutiny" required by Smolenski. At the conclusion of Mr Tedd's detailed submissions to the trial judge Mr Drew said:

"… in general terms, my response to my learned friend's submissions is simply this: these are all matters for the jury. Would your Honour like me to take it any further than that?"

45. The response of the judge was:

"Not at the moment, unless there is something else up Mr Tedd's sleeve … Well, I will say it: it is a matter for the jury, isn't it?"

46. The judge indicated that he would direct the jury in a way which drew attention to the good character of the appellant and would juxtapose it with the bad character of Ford and others. The judge was faithful to this in his summing-up. He referred to Ford as having been described in his youth as a person "with a scant recognition of the difference between right and wrong". He referred to Ford's life of dishonesty and to the brain damage sustained in 1997. He added:

"You may think as a matter of common sense and common fairness you would approach [his] evidence with the utmost care and circumspection and you may think that, in the absence of any supporting evidence for his allegations, it would be dangerous to convict Mr Jeneson upon the basis of his evidence."

47. He referred to the evidence of Keith Price in that context and summarised it fully at a later point.
48. Ford was a witness with obvious shortcomings. The criticisms of his evidence made by Mr Tedd are – and are conceded by Mr Drew to be – valid. However, in our judgment it cannot be said that the judge was wrong to leave counts 4 and 5 to the jury. He had of course seen Ford give evidence. It is implicit in his response to the submission that, notwithstanding the identified shortcomings in his evidence, the judge did not consider Ford to be beyond credibility on essential matters in the eyes of a properly directed jury. It is true that the ruling of the judge was informal and extremely brief. However, we do not consider it possible that this very experienced judge did not have the Galbraith test fully in mind. We have the clearest impression from the transcript that this was a case in which counsel and the judge knew each other well and had complete trust in each others' knowledge of basic principles without the need for them to be spelt out. Whilst we do not commend this as a blueprint for articulating important rulings, in this particular case and on this particular issue we do not have any concern that the judge may not have applied the correct test. Mr Tedd seeks to derive support from the recent case of Gallo [2005] EWCA Crim 242 in which an appeal was allowed on the ground that the judge had not properly dealt with a submission of no case to answer. Kennedy LJ said (at page 23):

"We recognise that, in giving a ruling against a submission of no case, a judge will want to avoid appearing to have formed a view in relation to contentious issues. But we do believe that, in this case, the submission merited a more analytical response than it received. We are inclined to the view that, if the judge had undertaken that analysis, he might well have been driven to the same conclusion as this Court."

49. However, the significant feature of that case is that the inconsistencies and inadequacies of the complainant's evidence related to the very matters that formed the subject of the indictment and the immediately surrounding circumstances. Moreover, on a close analysis of the brief ruling by the trial judge, there was at least a danger that the judge had misdirected himself as to the appropriate test. We are satisfied that Gallo is readily distinguishable. We find ourselves unable to say that the judge in the present case erred when he rejected the submission of no case to answer.

The Cross-examination of Greensill

50. This ground of appeal was not included in the grounds of appeal which were submitted to the single judge. Mr Tedd has explained that this was an error on his part. Mr Tedd now describes Greensill as "the principal defence witness". His importance was that he denied the allegation of Ford that he (Greensill) had sexually abused Ford. Greensill also gave evidence the thrust of which was to discredit some of the other complainants. In addition he attested to the good character of the appellant. His very appearance as a witness at the trial was unusual. It was only after the trial had started that the defence (with the assistance of the prosecution) traced Greensill to Turkey where he was living and working. He voluntarily returned to England and surrendered to the police who arrested and interviewed him. He was not charged although at the time he gave evidence he was on police bail pending further enquiries and a decision. We are told that since the appellant's trial a decision has been taken not to prosecute Greensill.
51. The cross-examination of Greensill occupies some 20 pages of transcript. It began with questions of background matters including the layout of the premises at Druids Heath and some of the practices and procedures. The controversial part of the cross-examination occurred when Mr Drew questioned him about his arrest and the allegations that had been made against him. In an initial short passage, Greensill confirmed an allegation of buggery which had been made by Ford, a similar allegation by Manley and allegations of indecent assault by Cadman and Cave. Neither Manley nor Cave had been witnesses in the prosecution of the appellant. The cross-examination did not stop there. The judge gave Greensill a second warning that he was not obliged to answer any questions if to do so might incriminate him. Mr Drew proceeded to question him about the details of the allegations made by the persons who had made statements. It is apparent from the transcript that Mr Drew had those statements at the time. In the event, Greensill denied all the allegations. He denied further allegations in relation to one or two other named but absent persons. At the end of the cross-examination, Mr Drew put to Greensill that the allegations were serious, a proposition with which Greensill agreed. In a passage which lacks clarity Mr Drew was suggesting to Greensill that he had an interest in giving evidence in support of the appellant, namely that if the appellant were to be acquitted that would be advantageous to Greensill in relation to any decision to prosecute or any prosecution of himself. That appears to have been the import of the questions. They certainly did not attract assent to the proposition.
52. Immediately after Greensill withdrew, Mr Tedd made some submissions to the judge in the absence of the jury. He sought to persuade the judge that, in view of Greensill's denials, there was no evidence that had emerged which was adverse to his credit and, in the circumstances, the jury ought immediately to be told to disregard the allegations. Mr Drew did not accept that the cross-examination went simply to credit. He explained the reason why he had asked the questions, namely in order to provide a basis upon which to assert the partiality of Greensill. Mr Tedd then said:

"The jury are no doubt perfectly entitled to have in mind that there are untested allegations made against Greensill and that, because of that, that's a matter that he may have in mind when he is considering the tack that he takes in his evidence before them. That's a perfectly fair point. I don't seek to shut my friend out from that. But that, in my submission, is the limit of it."

53. The judge came to the conclusion that a consensus had emerged between counsel and, when the jury returned to court, he immediately spoke to them about the cross-examination of Greensill. He observed that Greensill was not on trial; that he had been called as a witness and, as with any other witness, opposing counsel was entitled to test his evidence in cross-examination so as to question his credibility. The judge then observed that Greensill had denied all the allegations. He added:

"That really is an end of the matter as far as the truth of those allegations is concerned. The prosecution cannot … start calling all these people whose names have been bandied around … to set up a mini trial of Greensill."

54. He added that the allegations had been put in as a means of challenging credibility. He then referred to the approach of Mr Drew at the conclusion of the cross-examination and represented the view of the prosecution in this way:

"They are saying 'Look, Mr Greensill, you have come here with a motive to give evidence in support of Mr Jeneson and to discredit these various people who are making allegations against you and you have a motive for doing that in order to spike their guns in any possible trial in the future of Mr Greensill.' Whether there will be such a trial or not we don't know. He has not even been fully interviewed yet. But that may or may not be a good point made by the prosecution. Its certainly a point they're entitled to make. Whether it's a good point or not … will be a matter for you in due course."

55. The judge then said that it was a matter for the jury whether they believed his evidence, adding

"Is he a witness of truth? Has he a motive for coming to give evidence in support of Mr Jeneson, which might not be true? That's the issue. That's the only issue."

56. In the course of his summing-up the judge returned to the matter, saying:

"The prosecution … are perfectly entitled to put those matters to him and to attack his credibility but they are bound by his answers of denial. The prosecution … put it in this way … : the prosecution say to Mr Greensill 'Look if these allegations are being made against you by people like [Ford], you have an agenda to ensure that Mr Jeneson is acquitted to protect your own back.' … He says 'That is not so. I have come of my own free will to give evidence.' He gave evidence, of course, having been warned that he could refuse to answer any question that might incriminate him. You will have to make of his evidence what you will."

57. Mr Tedd now makes the following submissions about the cross-examination of Greensill. First, he submits that, as a matter of principle, unproven allegations of criminal conduct should not be put in cross-examination to either a defendant or to a witness. Secondly, there was nothing which the judge could have said in his summing-up which could have remedied the destructive impact of such material. Thirdly, what the judge did say to the jury did not go anywhere near far enough. Fourthly, the unfairness was exacerbated by the fact that, unknown to the jury, the absent complainants had substantial criminal records which undermined their credibility. For example, Manley is a convicted killer who is presently confined to a special hospital.
58. There is a long line of authority justifying the proposition that, at common law, a defendant ought not to be asked about unproven allegations. In Maxwell v DPP [1935] AC 309, at page 320, Viscount Sankey LC said:

"The mere fact that a man has been charged with an offence is no proof that he committed the offence. Such a fact is, therefore, irrelevant; it neither goes to show that the prisoner did the acts for which he is actually being tried nor does it go to his credibility as a witness. Such questions must, therefore, be excluded on the principle which is fundamental in the law of evidence as conceived in this country, especially in criminal cases, because, if allowed, they are likely to lead the minds of the jury astray into false issues; not merely do they tend to introduce suspicion as if it were evidence, but they tend to distract the jury from the true issue – namely, whether the prisoner in fact committed the offence on which he is actually standing his trial. It is of the utmost importance for a fair trial that the evidence should be prima facie limited to matters relating to the transaction which forms the subject of the indictment and that any departure from these matters should be strictly confined."

59. The speech of Viscount Simon LC in Stirland v DPP [1944] AC 315, 324, is to like effect. In the exceptional circumstances governed by section 1(F) of the Criminal Evidence Act 1898, circumstances may arise in which a defendant can be cross-examined about unproven allegations. However, that is nothing to the point in the present case. Mr Tedd rightly observes that the principle illuminated by Maxwell is one which, at common law, applies not only to defendants but also witnesses. This is best illustrated by the case of Edwards [1991] 1WLR 207 where the question was whether police officers could be cross-examined about outstanding disciplinary matters. Lord Lane CJ said (at page 216B-D):

"This is an area where it is impossible and would be unwise to lay down hard and fast rules as to how the court should exercise its discretion. The objective must be to present to the jury as far as possible a fair, balanced picture of the witnesses' reliability, bearing in mind on the one hand the importance of eliciting facts which may show, if it be the case, that the police officer is not the truthful person he represents himself to be, but bearing in mind on the other hand the fact that a multiplicity of complaints may indicate no more than what was described before us as the 'bandwagon' effect. We do not consider that it would have been proper to suggest to the officer in the present case that he had committed perjury or any other criminal offence by putting to him that he had been charged but not yet tried. Nor do we think that complaints to the Police Complaints Authority which have not been adjudicated upon would properly be the subject of cross-examination."

60. Mr Drew accepts that these authorities establish that it is impermissible to cross-examine a witness about unproven allegations simply in order to discredit him. However, he submits that that is not what occurred in the present case. Although the judge appears to have treated the cross-examination as going simply to credit, in fact Mr Drew had made clear that its purpose was to establish partiality on the part of Greensill. It mattered not whether the allegations were true or false. What was being suggested was that the very existence of the allegations provided a motive for Greensill to give untruthful evidence in the trial of the appellant so as to assist his own cause which was still under investigation and might be expected to result in prosecution. Mr Drew accepts that credibility and partiality may be inextricably linked. However, he submits that it would have been wrong and unfair to the prosecution if he had not been permitted to explore the possibility of partiality on the part of Greensill. To all outward appearances, Greensill was a respectable witness with no axe to grind. If the matter had been left there the jury would not have been able to consider his evidence from a realistic perspective.
61. In our judgment, these submissions of Mr Drew are well founded. It was made clear to the jury at the conclusion of the cross-examination and again in the summing-up what the purpose of the cross-examination had been. That purpose did not depend upon whether the allegations against Greensill were true or false. As to that, the judge directed the jury that the prosecution were bound by the denials. We take the view that it was no less appropriate for Mr Drew to cross-examine Greensill with a view to establishing that he had an ulterior motive for giving evidence supportive of the appellant than it would be for counsel to cross-examine any witness about the possibility of any ulterior motive, whether it be personal animosity, pecuniary interest or anything else. Thus, provided that it is made clear that the denied allegations must not be assumed to be true, there was a proper basis for the cross-examination.
62. The question then becomes one of whether the judge gave the jury sufficient direction as to how they should approach the cross-examination. To the extent that the judge seemed to consider that the cross-examination went only to credit, he was not entirely correct. However, that did lead him to direct the jury that the prosecution was bound by the denial of the allegations. Ultimately, both in the aftermath of the cross-examination and again in summing-up, the judge made it clear what the proper purpose of the cross-examination had been. To leave the matter on the basis of "You will have to make of his evidence what you will" may not have been enlightening. However, we are satisfied that the directions as a whole would have not have caused the jury to misuse the cross-examination and what it yielded. Moreover, we regard it as not insignificant that, at the time, Mr Tedd conceded that cross-examination of the type that occurred in order to explore partiality was permissible.
63. In our judgment, the cross-examination was not inappropriate, given its objective. Its objective was sufficiently explained by counsel and by the judge and, in the circumstances, it cannot give rise to any sustainable ground of appeal. The situation was an unusual one and, as it unfolded, it undoubtedly gave rise to difficulties for both counsel and for the judge. We do not consider that the responses of any of them gave rise to anything which affects the safety of the convictions.

Similar Fact Evidence

64. In a nutshell, the third main ground of appeal contends that in his summing-up the judge adopted an oversimplified approach to the question of similar fact evidence. In a case of this sort, it is inevitable that issues would arise as to the extent to which the evidence of the individual complainants might support the evidence of others. The mere fact that several counts were being tried together and were founded on the evidence of a number of different witnesses did not by itself determine whether evidence on any one Count was admissible upon any other: see Ludlow v Metropolitan Police Commissioner [1971] AC 29. Essentially, Mr Tedd's submission is that the judge abdicated his responsibility and left to the jury not only the question of what was supportive as between Counts but also the prior question of what was capable of being so supportive, the latter being within the sole province of the judge. The classic statement of the modern law is that of Lord Mackay of Clashfern LC in DPP v P [1991] 2AC 447, at page 462D-E:

"When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence."

65. In the present case, having directed the jury that each count in the indictment must be considered separately, the judge said:

"Now, in a case such as this, having said that, it is not always possible or indeed always right to consider each count in watertight isolation from every other count. The prosecution in this case say to you that you should not look at these charges in watertight isolation and that some sort of pattern emerges. Now, sometimes such patterns – lawyers call them similar fact evidence – can be of assistance to the jury. Sometimes what witness A says about himself may be capable of giving support to similar allegations made by witness B about himself. But approach it with great care, members of the jury, and this is my direction of law to you.

Firstly, do not be tempted to use the evidence of witness A, whoever it may be, in support of witness B unless you are sure in the first place of the evidence of witness A being truthful and accurate.

Secondly, you should only use the evidence of witness A in support of allegations made by witness B if the evidence of witness A is genuinely independent from the evidence of witness B and, therefore, you must ask yourselves are you sure that A and B haven't put their heads together to make false allegations against the defendant. If you are not sure of that, the mutual support of A and B is of no value whatsoever and you must ignore it. You've got to be sure that there was no collusion, no collaboration of that kind before you consider whether the evidence of witness A may indicate that witness B was telling the truth or indeed vice versa.

Thirdly you've got to ask yourselves this. If there are similarities, is it reasonably possible that the two people independently making the similar allegations that you've heard could be independently lying or mistaken? If you think that's incredible, then you may well be satisfied that B was speaking the truth if he is talking of matters similar to the allegations made by A.

In considering that question you must consider two important aspects of the evidence. Firstly, the degree of similarity between the accusations. The greater the degree of similarity, the more likely it is that independent witnesses are speaking the truth. You may think it would be a remarkable coincidence if they hit upon the same lies or made the same mistakes as to matters of detail. On the other hand, the less the degree of similarity, the less weight should be given to their evidence.

Secondly, quite apart from that deliberate putting heads together to concoct a false story, that I have already talked about, you've got to ask yourselves whether A and B may have been consciously or unconsciously influenced in their evidence through hearing of the complaints made by others and, if you think it's possible that they or any of them may have been influenced in making the accusation at all or in the detail of their evidence in that way, you must take that into account in assessing what weight, if any, you give to the evidence."

66. The judge then went on to give some illustrations. For example, he instructed the jury that if they were not sure as to the truthfulness of Ford's evidence,

"There is no way you should contemplate using [Ford's] evidence in support, for instance, of the allegations by Greenaway of an assault with intent to commit buggery, even if there are similarities."

As to the possibility of collusion, the judge provided a specific example.

67. Turning to the question of the degree of similarity, the judge said:

"I've talked about it in general terms but let's look how it relates to this case. Please, members of the jury, don't just throw all the evidence into a great big melting pot and say 'Well, there you are, its all very similar, we can convict across the board.' That would not be appropriate at all. If you are sure of the evidence of witness A as to certain facts, consider carefully and individually specific aspects of A's evidence that may support the evidence of B as part of a pattern over and beyond the possibility of mere coincidence.

Let me direct you as to this as a matter of law, members of the jury. What is not capable of being corroborative cross-supporting evidence in that way is a general propensity to homosexual conduct. If you're sure that Mr Jeneson did have a homosexual relationship of some sort with one of the boys, that of itself should not be used against him in respect of any other boys."

68. The judge then reminded the jury of aspects of the evidence which the prosecution contended bore the hallmark of similarity. He added:

"Now analyse carefully to what extent there is sufficient similarity for you to adopt this cross-fertilisation … You're not entitled to rely on similarities if they are very vague and tenuous; it must be fairly specific. Then, members of the jury, as an example of that, one has Budgeon being touched on the beach, allegedly. If you are sure of that, that would not be supportive of allegations of [Ford] or Greenaway as to buggery or attempted buggery."

69. Finally, on this issue, the judge took the example of the allegations of Ford and Greenaway. He said:

"What if you are sure about Greenaway's evidence? Can that be used as indirect evidence in support of the allegations of [Ford]? Well, apply the tests I've indicated. Ask yourselves whether you're sure of Greenaway's evidence. Are you sure that there was no collusion between them? Are you sure that the similarities are sufficiently clear to go over and beyond the possibility even of mere coincidence? There are differences of course; Greenaway says 'It happened in the camper van when I was at Tennel', [Ford] says it happened in the science room and in private accommodation at Druids Heath. But there are similarities. Its for you to decide whether they are sufficient to say there is at least indirect evidence to support the allegations made, for instance by [Ford]."

70. Mr Tedd complains that this approach omits the crucial stage of the judicial filter. He submits that, in relation to each complainant and each count, it was incumbent upon the judge to decide as a matter of law what was capable of being supportive evidence and to direct the jury accordingly before leaving them to decide whether it was in fact supportive. Mr Drew submits that there was a great deal of similarity as between the allegations of the different complainants. They were all young boys at the time, they were under the care of the appellant and resident in his school house. The allegations relate to a relatively short period of time. There was a discernible pattern of grooming leading to a form of special friendship and then to touching, followed by greater intimacy and more intensive sexual activity. Whilst there were differences in location that was neither surprising nor significant. Read as a whole, the directions amounted to instruction that the evidence of Budgeon was not capable of being supportive in relation to the evidence of Ford but that, in relation to all other complainants, the evidence was capable of cross support. Alternatively, to the extent that some complainants, particularly Ford and Greenaway, were making allegations of a graver kind, that in itself did not mean that there could be no cross support as between the evidence of them or either of them and the evidence of the complainants who were making less serious allegations.
71. We have given the rival submissions careful consideration. From a purist point of view, it may be that the judge ought to have carried out a "capability" exercise in relation to each complainant and each allegation. However, one has to assess the usefulness of that in the context of the particular case. The directions, much of which we have quoted, formed a substantial part of the summing-up. We take the view that it would have been unhelpful to the jury if the judge had proceeded with the purist exercise which Mr Tedd submits was essential. It would have taken up a disproportionate part of the summing-up. What was essential was that the directions assisted the jury sufficiently to ensure that they did not make inappropriate use of the evidence of any one witness to support the evidence of another. He gave clear directions on the need to be sure as to the truthfulness and accuracy of a supporting witness and of the absence of collusion. He gave an appropriate direction on similarity. He illustrated his directions with examples from the evidence. One of them was to contrast the evidence of Budgeon with that of Ford and Greenaway.
72. In our judgment the approach of the judge was pragmatic, fair and helpful. We do not consider that the convictions are unsafe as a result of his decision not to embark on the minute dissection which Mr Tedd advocates. We apprehend no danger that the jury treated as similar fact evidence that which was unproven, significantly dissimilar or the result of collusion or collaboration. We reject this ground of appeal.

Other Matters

73. In the original grounds of appeal, Mr Tedd sought to advance other matters which, in the event, the single judge did not give leave to argue or Mr Tedd himself concluded that, standing alone, they could not affect the safety of the convictions. These included, in particular, the suggestion that the judge ought to have acceded to an application to discharge the jury after the Counts in relation to two complainants had been withdrawn from the jury, together with a submission that, looking at the case in the round, the convictions are unsafe. We are wholly unimpressed by these further submissions, whether looked at individually or cumulatively with each other and with the three main grounds of appeal.

Conclusion

74. It follows from what we have said that, in our judgment, these convictions are safe and the appeal must be dismissed. We thank and pay tribute to both counsel for their able and helpful submissions.