England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Merthyr Tydfil
HHJ Morton
T970183

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/11/2007

Lord Justice Hooper:

1. The appellant now aged 63 appeals against conviction upon a reference by the Criminal Cases Review Commission ("CCRC") under s9 of the Criminal Appeal Act 1995. In addition to the two grounds of appeal based upon that reference the appellant seeks leave to appeal on six other grounds, one of which, ground 8, was sensibly abandoned during the course of the hearing.
2. The appellant who was 53 years old at the time of the offence (late November 1997) and was the editor of a local newspaper. Since 1984 had run an Aikido marshal arts club. The appellant was well known in his local community.
3. His counsel at trial, Mr Christie, described him as "very intelligent and articulate". In response to questions raised by the CCRC, Mr Christie wrote that in the pre-trial and trial conferences: "[Mr R] certainly was very talkative and my recollection is that he left no stone unturned". An examination of the voluminous material before us offers support for that assessment. Mr Robotham paid for his own defence. No complaint is made about the time which the appellant's legal team devoted to his case; for example there was a very lengthy conference with him on 5^th June 1997, some 6 weeks before the trial.
4. In late November 1996, the complainant H was 16 years old. He had joined the club when he was approximately 5 years old. At the time of the offence the complainant was about 5' 8" and was strongly built. The complainant lived with his grandfather who was his legal guardian. The grandfather, called Alan Hughes, gave evidence at the trial. According to the social services files now disclosed to the appellant, the complainant was in a special class for learning difficulties at the time.
5. In the summer of 1996 the complainant began to do Shiatsu with the appellant. Shiatsu involves applying pressure on different parts of the body to relieve pain and tension. On Wednesday 27 November 1996 some time after 10:00pm the appellant performed Shiatsu on the complainant at the appellant's home. It was the prosecution's case that the appellant played with the naked complainant's penis and he ejaculated. There was no dispute that the appellant had performed Shiatsu on the complainant but the appellant denied that the complainant was naked and denied masturbating him.
6. The issues for the jury were whether they were sure that the appellant had masturbated the complainant and, if so, whether it was without his consent.
7. We turn to the facts in more detail. The complainant said in evidence that when he and the appellant had first done Shiatsu he wore his underpants. However, according to the complainant the appellant then suggested that "now we know each other's body we should take our pants off" and that is what happened. The complainant's evidence was that thereafter in his Shiatsu sessions with the appellant, whoever was performing the Shiatsu would be clothed and whoever was receiving it would be naked. According to the complainant, about a week before the incident after an Aikido session at the club the appellant came up to him and remarked that he had a big penis. The complainant said he replied "alright".
8. On 27 November 1996 he called at the appellant's house on the way to the Aikido club. The appellant asked him to return to the house after the Aikido as he, (the appellant), needed some Shiatsu on his back. After the session at the club they went back to the appellant's house. At the material time there was, according to the complainant, no one in the house. According to the complainant the appellant took off his clothes and said "let's get on with it" and lay naked on the floor in front of the fire. The complainant did Shiatsu on the appellant's back and then on his front. According to the complainant the appellant then asked him to take his clothes off which, so he said, he did reluctantly as he was tired and wanted to go home. The complainant lay naked on the rug. The appellant did Shiatsu on the complainant's back and his front and "then he started going to my penis". The complainant's evidence was that the appellant had touched his penis before during Shiatsu if it was on the same side that he was massaging. The appellant would push it to one side. The complainant's evidence was that, on this occasion, he rubbed the top of his penis up and down and put his finger into his anus at the same time. The complainant said he got an erection and the appellant played with his penis for at least 20 minutes. As the complainant ejaculated or just before he jumped up and said "wow I'm coming". The appellant told him to relax and pulled him back on the rug. The appellant pulled a handkerchief out of his pocket and wiped the semen off of the complainant's stomach and penis, the put the handkerchief down and then continued to rub down the complainant generally. He then tapped him and said "right, all done".
9. The complainant said he was embarrassed and the appellant told him that his "power" or "key energy" had to come out somewhere and it had decided to come out there. He was offered a tea or coffee and an egg yolk drink for weight lifting. The complainant drank these and the appellant then unlocked the inner and outer doors to let him out. The wooden door was bolted and chained and a key was used to unlock the pvc door. As he left the appellant told him that his back was better.
10. The complainant and his grandfather were interviewed by the police on 27 January 1997 and each made a statement.
11. Given the appellant's links with the local police force, a nearby force took over the investigation. The officer in the case was DC Roper.
12. The appellant's account was very different.
13. Following his arrest two months later on 29 January 1997 he answered all questions put to him in interview and vehemently denied the indecent assault. He said that Alan Hughes must have put the complainant under great pressure to make a false complaint.
14. We do not have a full transcript of the appellant's interview. Nor do have a transcript of his evidence at the trial in July 1997. However it is clear that there were a few significant differences between what he told the police in interview and what he was to say in evidence.
15. First, the appellant, having said that it was the complainant who asked him to go back to the appellant's house, was told that the complainant had said that the appellant asked him to go back to his house to do Shiatsu on him because of a problem with his back. The appellant's reply was: "Yes, he did that I had forgotten about that sorry". In evidence the appellant reverted to his original account: it was the complainant who had asked to come back to the appellant's house.
16. Secondly, in his interview the appellant agreed with the complainant's account that the complainant had done Shiatsu on him first, both on his back and on his front; then the appellant had dressed and he had done Shiatsu on the complainant. In evidence the appellant said that the only Shiatsu that had been performed was by the appellant on the complainant.
17. Thirdly, in interview, having been told that the complainant said that he was naked when Shiatsu was performed on him, the appellant replied that he could not remember if the complainant had kept his pants on or not, "but it was no big deal". He aired: "It was what happened to dozens of other men" and that he couldn't do Shiatsu through clothing. In evidence the appellant gave a different account. The complainant had kept his pants on whilst the appellant performed Shiatsu on him in his house.
18. Fourthly, the appellant told the police in interview that he had touched the complainant's penis on the 27 November 1996, when he had moved it out of the way. He said: "Well, that's what happened on this occasion. That's what happened. That's what I do with everybody". A little later he said that sometimes you had to push the penis out of the way "because it was flopping forwards"". "This was done to make sure that you didn't touch it". He added that the groin "was an important part of the body for Shiatsu". In evidence he denied touching the complainant's penis. He also denied that the complainant had a "hard on" - "that's not true". He later said that he didn't really think that the complainant had had an erection, but he didn't look for these things.
19. The fact that in interview the appellant had said that he could not remember whether the appellant had kept his pants on and his admission that he had touched the complainant's penis, coupled with the fact that in evidence he was denying the truth of these answers may well have been seen by the jury as tending to support the allegation made by the complainant. Unfortunately as we have said, we do not have a transcript of the evidence of the appellant. Such a transcript might have assisted us in evaluating his evidence and the answers he gave to what must have been difficult questions.
20. At the trial the appellant said he had known the complainant since he was approximately six or seven years old. On 27 November 1996 he had done Shiatsu massage on the complainant in the appellant's house, but that was the only time that this had occurred there. He started doing Shiatsu massages with the complainant in the summer of 1996 in the male changing rooms. The complainant only ever undressed to his underpants and was never naked. On the night in question the appellant agreed to give the complainant a massage at his home because the club was cold and they could not get a lift if they stayed on there. He said that at his home the complainant undressed to his underwear. The ten o'clock news was on the television and he started to massage the complainant's back and front. The complainant wore his pants throughout. He did not touch his penis either deliberately or accidentally and did not put his hand inside the complainant's pants. He did not see any erection. After the massage the complainant stayed in the house. The appellant's son Christopher was in the house and at some point looked downstairs to check the time and left about 10:30. He gave the complainant a watch and an egg drink. They talked. The complainant left the house in good spirits.
21. The appellant's 18 year old son gave evidence that he could recall that night of the incident, as it was the only time he had seen the complainant at the house. He recalled that he looked down the stairs at 10:15 to check the time and saw the complainant having a massage with his pants on. When he left the house at 10:30 the Shiatsu was over and the complainant and his father were looking in a drawer.
22. There was much evidence given about what had happened after the evening of 27 November 1996.
23. The complainant said that he went home and as his grandfather was in bed he did not then tell him what had happened. The first person he told was a Mr John Lewis who he described as a friend. According to the complainant's, evidence, he went round to the home of Mr Lewis and eventually got round to telling Mr Lewis in front of his wife that the appellant had played with his penis and he had "come". Mr Horton points out in a note to the Court following disclosure of the social services files that the complainant is recorded as having said: "I thought that I said to Mr Lewis that 'I came'" We do not share Mr Horton's view that this is a significant matter. The complainant said that he asked John Lewis whether he should tell his grandfather and that the advice that he was given by Mr Lewis was that he should. He went home and told his grandfather.
24. After the complainant had been to the police on 27 January 1996, and having regard to what the complainant said about his conversation with John Lewis, a police officer went to the home of John Lewis and took a statement from him on 27 January. It appears that the statement made by John Lewis was included within the statements served as part of the prosecution's case upon the appellant. We cannot however be sure of that because the CPS file no longer exists and when the CCRC started investigating the matter in 2002 a copy of the committal documents, if they existed, was not taken. Mr John Lewis was called as a defence witness at the trial. A look at the cross-examination by Mr Thomas, for the prosecution, of Mr Lewis does not reveal any cross-examination about a previous inconsistent statement made to the police officer who came to his house on 27 January.
25. On 26 June 1997 Mr Lewis made a further statement in the presence of DC Roper, the statement being taken down by an enquiry agent instructed by the solicitors for the appellant. We do not have that statement in its "section 9" form but we do have what appears to be the content of the statement. On this appeal we have also heard the evidence of Mr Lewis himself. According to Mr Lewis the complainant spoke about getting a "hard-on" during Shiatsu. The complainant felt embarrassed about it and was reluctant to carry on with Shiatsu. Mr Lewis advised him to speak to the appellant and to his grandfather. It therefore appears that Mr Lewis has throughout given a consistent account of what the complainant said to him shortly after the alleged assault.
26. There was thus an important conflict of evidence between what the complainant was saying he had told Mr Lewis and what Mr Lewis was saying the complainant had told him.
27. Having spoken to Mr Lewis, the complainant, on his account, spoke to his grandfather, Mr Alan Hughes. When being examined in chief he was not asked what he had said to him. In cross-examination he said that he had told his grandfather what he had told Mr Lewis.
28. The grandfather gave evidence at the trial. He was not asked in chief about what his grandson had told him. In cross-examination he said that he first knew about what had happened when John Lewis phoned him to say that his grandson had something serious to tell him about the appellant, who had "wanked him off". Mr Lewis denied that he had made such a call. There was no reference to such a call in the grandfather's witness statement nor, as Mr Horton points out in his submissions about the disclosed social services files, in the account which he gave to social services. In cross-examination the grandfather told the jury that when his grandson had come in shortly after the phone call from Mr Lewis, he had told him that the appellant had both masturbated him and "wanked him off and he had come".
29. At the trial there was much evidence from the complainant's grandfather and from the appellant and Mr John Lewis about various conversations. There is no doubt that the complaint's grandfather was extremely angry at what he believed had happened. According to the complainant's grandfather some ten days after the incident he went to see the appellant at his house and put the allegation to the appellant in strong language. According to the grandfather the appellant denied it but when he went into more detail he said that "it was very naïve of me, I am sorry".
30. When asked about this meeting during his interview the appellant said that was shocked by what he was told by Alan Hughes and didn't know what to say. He said that the grandfather had not mentioned anything about masturbation. He said that "the incident was a small part of the conversation". On three occasions he accepted that he had spoken about Shiatsu. He said that the grandfather, Mr Alan Hughes, Alan had not made the allegation of masturbation and ejaculation. In evidence, the appellant said that they had not spoken about Shiatsu. He said the whole conversation was quiet and low key and no allegations of a sexual nature were made. One feature of the meeting came out in cross-examination of Alan Hughes, although it had been mentioned by the appellant in interview. It was put to Alan Hughes (presumably on instructions) and accepted by him that he had accused the appellant "of having had a divorce because his wife had found him in a situation with another man". That, the jury might have thought, suggested that the meeting was not low key.
31. There was a very clear conflict between the evidence of Alan Hughes and the appellant concerning this meeting. The jury may well have had difficulty in accepting the appellant's account of the meeting as "low key" and his account that no sexual allegations were made. There was evidence to suggest that the grandfather was, for whatever reason, very angry at this time. On the other hand Alan Hughes gave evidence that he did not know exactly what the appellant had done until his grandson made the statement to the police which was some two months later at the end of January 1997. It was not until then that he knew that, according to his grandson, the appellant had put his finger on the complainant's anus although he knew, so he said, about the masturbation and ejaculation. On this appeal, Mr Horton also points out that at first Alan Hughes did not believe his grandson- "I couldn't believe John [Robotham] would do such a thing".
32. So far as John Lewis is concerned Alan Hughes was alleging that when he had made his statement to the police officer, he had not told the true story of what the complainant had told him.
33. Following his conviction and sentence to three months imprisonment the appellant did not appeal. According to the note provided to the CCRC by Mr Christie, he saw the appellant in the cells after conviction and sentence and "he agreed with me that he had had a fair trial". Mr Christie states that he did not thereafter receive a request to advise on the merits of an appeal (notwithstanding, we add, that the appellant had funded the case privately). Indeed the appellant was anxious that both Mr Christie and Miss Port represent his son at forthcoming criminal proceedings for witness intimidation, the witness being the complainant in this case. They did so and the son was acquitted.
34. The fact that the appellant did not appeal at the time of his conviction is some indication that, at the time, it was thought that there were no grounds to contest the fairness of the trial and the safety of the conviction.
35. According to a report prepared within the Office for the Supervision of Solicitors dated 24 November 2004, the appellant, having obtained fresh evidence from the NSPCC and other sources between October 1997 and April 1998, wrote seven letters to his solicitors requesting steps be taken to progress his appeal. According to the CCRC report: "In January 2005 a Law Society Adjudicator upheld a complaint made by Mr Robotham that his trial solicitors… failed to take his appeal forward." For that and another reason the CCRC decided to refer the case directly to this court notwithstanding that there had been no appeal.
36. The appellant made his first application to the CCRC on 28 May 1998 and the CCRC began a review the case in January 2002. On 8 January 2003 the CCRC decided not to refer the case. The appellant then made a second application, which was received by the CCRCon 6 May 2003. Having considered further representations the CCRC took a final decision not to refer the case to this court on 11 January 2005.
37. There was then further correspondence and the appellant provided the CCRC with information about the outcome of his complaint to the Law Society about the conduct of his trial solicitor. The CCRC decided to stand by its decision not to refer. There followed a notification from the appellant that he intended to challenge the decision not to refer by way of judicial review. The CCRC agreed to consider the case for a third time. According to the Report:

Mr Robotham's case was re-opened and given a new reference number (00323/2005). It was allocated for a third review on 26 April 2005. After correspondence with Mr Robotham, it was agreed that the Commission would re-examine only the following issues in respect of his case:

(i) Matters relating to the NSPCC including:

The extent of the investigations made by the police and defence solicitors prior to trial with regard to the contact by Alan and Aaron Hughes with the NSPCC.

What these investigations, if they were made, revealed or could have revealed.

The extent to which the result of these investigations could have assisted Mr Robotham's defence.

(ii) Previous allegations of a sexual nature made by Aaron Hughes against others, including:

What these allegations were.

When they were made and to whom.

When Mr Robotham's solicitors became aware that previous allegations had been made and any action they took in respect of this issue.

Whether or not there is any evidence to suggest that the previous allegations made by Aaron Hughes were false.

Whether or not there was a legal basis for cross-examining Aaron Hughes with regard to these previous allegations at the trial and, if so, whether this would have significantly undermined his credibility.

(iii) New evidence regarding a financial motive:

Whether or not the fact that, by the time of the trial, Alan Hughes had already made an application to the Criminal Injuries Compensation Authority on Aaron Hughes' behalf, might have been used in cross-examination to undermine the credibility of Aaron or Alan Hughes and lend weight to the defence case that the allegation had been financially motivated.

(iv) The relationship between the person charged with preparing Mr Robotham's defence, Ms Port, and the officer in the case, DC Neil Roper, including:

Whether there is any evidence that this relationship gave rise to a conflict of interest that directly or indirectly undermines the safety of Mr Robotham's conviction.

(v) The cumulative effect of all the above factors in raising a real possibility that the Court of Appeal would consider Mr Robotham's conviction to be unsafe.

38. Having conducted the review and considered further representations from Mr Robotham, the CCRC referred the conviction to this Court on the grounds that there is new evidence as regards the practice and procedures of the NSPCC and a previous allegation of sexual impropriety made by the complainant. That allegation related to an incident when the complainant was about 14 years old, the incident involving an 18 year old boy staying at the complainant's home. The CCRC declined to refer on the other grounds. Leave to appeal on those other grounds, as well as on fresh grounds, is now sought.
39. The appellant has made complaints to the CPS, the PCA/IPCC, the Bar Council and the Law Society, to some of which we shall refer later.
40. We turn to ground one, which concerns the NSPCC. In his statement dated 27 January 1997 the complainant wrote:

I have contacted the NSPCC with my granddad and this was in December. I have now contacted the police because it is upsetting my granddad."

41. Nothing was said by the grandfather in his statement about contacting the NSPCC. The CCRC have examined the local authority social services files. We have now received the permission of the local authority to disclose the relevant parts to the parties. On 28 January 1997 Mr Alan Hughes was reported as saying:

[He] was very angry about this [that is, what his son had told him]. He telephoned the NSPCC (unsure which branch as he had it out of Yellow Pages) who told him to put it down to experience. He told me that it was playing on his mind and Aaron would not return to the club as it had upset him.

42. In his October 2003 statement to the CCRC Alan Hughes describes obtaining the telephone number from a Linda Edwards, who, in a statement to the CCRC, says that she did not give the number. Mr Horton relies on this inconsistency as part of ground 1. We see no merit in this point. What matters is whether the call was made, not the source of the telephone number.
43. The Social Services notes for 29 January 1997 read:

Mr Hughes' discussion (Tony [Aaron] was present during the conversation).

He spoke with both Aaron/Tony and Mr Hughes. In conclusion it was thought by the NSPCC worker that because it was one persons' view against another and that Aaron had told the worker that he felt alright/OK about the assault – (He was asked – "is it bothering you" – Aaron said "no"). "Even though he wasn't OK" said Mr Hughes. That it would be best not to continue, as the child may not be believed.

44. DC Roper wrote a letter dated 16 April 2002 to the CCRC in which he stated that on February 5 1997 he obtained, apparently from Alan Hughes, further details about the NSPCC phone call. In an interview with the CCRC on 20 May 2002 he said that he was 90% sure that he was told by Mr Hughes that the call was anonymous but he (Mr Roper) had hoped that there might be a log of anonymous calls. He wrote in his letter of April 16 2002 to the CCRC, Mr Roper said that he had contacted the NSPCC but was told that no details could be given without the consent of those who had made the call. DC Roper said on 20 May 2002 to Mr Goodwin of the CCRC that he wanted to obtain any details from the NSPCC because a phone call to them in December 1997 could provide evidence of a an "early complaint". We add that it would also have been useful to rebut any suggestion (now made by Mr Horton) that the complainant and his grandfather decided to fabricate the complaint and decided at some time shortly before the trial to invent a call to the NSPCC to explain the delay between the incident in November 1996 and the report to the police in late January 1997.
45. Consent statements from the complainant and his grandfather were obtained on 7 February 1997 and later served on the defence. The statements gave consent to the police having access regarding any information or documents "held by your Agency". The agency was not named. DC Roper on 20 May 2002 said that the only purpose of the statements was to obtain information from the NSPCC; social services had already told him that they would not disclose without a court order. That, in our view, rings true. The only agency which apparently could provide evidence of an early complaint was the NSPCC.
46. According to Mr Roper's letter in May 2002 these consent statements were faxed to the NSPCC along with a covering report "with regards to the telephone call". DC Roper said that he had not retained a copy of this report. According to DC Roper "Unfortunately no details were available as the call was anonymous". This information was, according to DC Roper, forwarded to the CPS as a handwritten "Officer Report". He also forwarded another handwritten report covering his enquiries with the social services department. They were handed over to the CPS lawyer on 24th June 1997.
47. Mr Horton challenges DC Roper's account. He relies, in particular, on the fact that on August 27 2003 the CPS, in answer to a complaint from the appellant, wrote that they could find no such report on the file and that the lawyer in charge of the case rejected any suggestion that he had received a copy of the report at all or on 24 June 1997, the day on which DC Roper said he had handed over the report to the (unnamed) lawyer in the case. The writer of the letter rejected a comment made by DC Roper on 22 May 2002 that the CPS often had problems tracing papers. Mr Horton points out that although there is a reference in the officer's notebook to obtaining the consent statements there is no reference to any contact with the NSPCC, or to the results of such a contact. There is however reference to contacting the CPS on three occasions including 24 June 1997, the entry for that day reading: "To CPS Merthyr Tydfil disclosure docs re J Robotham".
48. In our view it is impossible now to resolve whether DC Roper reported to the CPS about what he had discovered. However, we find it unlikely that DC Roper would have omitted to make enquiries of the NSPCC having obtained the consent statements given what he saw, rightly, as the importance of finding evidence of "early complaint". We return later to the fresh NSPCC evidence.
49. The CPS letter to the appellant also states that neither the case lawyer nor the "the very experienced barrister", Mr Thomas, thought it necessary to institute further enquiries about the call.
50. On 6 June 1997, following the lengthy conference the day before, Miss Port, who was employed by the appellant's solicitors and who had immediate supervision of the case, wrote to the CPS asking what agency "is being referred to" in the "consent" statements and to disclose any information obtained from the NSPCC. No reply to that letter has been traced- although a further request made in the letter was, so it appears, acted upon. Miss Port and the solicitor in charge of the case, Mr Keith Thomas (a friend at the time of the appellant) are described in glowing terms by Mr Christie in a letter dated 10 June 2002 which he wrote to the CCRC.
51. Miss Port had also written to the local authority asking if they could confirm that there was any report from the NSPCC on their files. According to Miss Port "Mr Christie only wants those files ... if there is any information on there from the NSPCC in relation to the original complaint that was made." A witness summons was served on the local authority to produce their files, which were produced on 30th June 1997.
52. On 18 June 1997 Miss Port phoned Mr Christie about "the reply that we had from the Social Services Department in relation to the report from the NSPCC." We do not know what Miss Port had been told by the Social Services and therefore do not know precisely what she told Mr Christie. Did Mr Christie then conclude that the complainant and his grandfather had contacted the NSPCC?
53. Given the absence of documentation, we do not know what happened at the Plea and Directions hearing which it appears had taken place a few days earlier. Was there any reference to the unanswered letter from Miss Port? Had the matter been resolved?
54. Just before the start of the trial there was a hearing in chambers with the judge (with both counsel present) about the social services file, over which the local authority was claiming PII. The judge was told that the defence wanted to know whether there was anything in the social services files which was inconsistent with the accounts given in the statements of the complainant and Mr Alan Hughes. The judge decided that there was not and that the file was entirely consistent with the fact that the complainant and his grandfather had spoken to the NSPCC. Having now seen the file, we can say that he was right to do so.
55. At no point during the trial was the fact that there had been contact with the NSPCC ever challenged by the defence. No question was asked of DC Roper about any enquiries that he may have made of the NSPCC. No reference to the unanswered letter from Miss Port was made. Mr Christie knew, as the judge told him, that the judge did not have the NSPCC file. However, Mr Christie may have thought (and this is speculation) that the NSPCC had forwarded a report of the contact with the complainant and his grandfather and that the report did not help the defence given that the judge's statement that he had seen saw no inconsistencies in the social services file.
56. Mr Horton is critical of Mr Christie's handling of this part of the case. He submits that the defence should have made enquiries to confirm that there had been contact with the NSPCC and to discover what had been said, if there was a record of it. Mr Christie states in his letter to the CCRC that he was unaware that DC Roper had made enquiries of the NSPCC as he claims to have done.
57. What seems clear to us is that the experienced prosecution and defence lawyers did not see fit to doubt that there had been some contact with the NSPCC. For some reason or another they did not ask for any details of such contact, even though the details might have helped the prosecution (recent complaint) or the defence (prior inconsistent statement). Putting aside the fresh evidence, what would have happened if the defence had followed up the matter, by, for example, another letter to the CPS or by direct contact with the NSPCC? If DC Roper is truthful and accurate then they would have been told that there was no record of any contact because the call was anonymous. Yet neither the CPS case lawyer nor Mr Christie recollects being given such information. One can only wonder whether in fact the information was given, but the fact that it was given had been forgotten by the time the CCRC were investigating the matter with the NSPCC.
58. In cross-examination at the trial, the complainant was asked why it had taken so long to complain to the police. The complainant said that his grandfather had phoned some help line not long after the incident. The man on the phone had said "Put it down to experience"; the complainant had replied "Okay" and his grandfather had said "All right, fair enough". The complainant accepted the suggestion from Mr Christie that within a few days the complainant had rung some help line and "they weren't very helpful". When asked again why there had been the delay of two months before going to the police, the complainant said:

Q. Well how did you come to go to the police nearly two months later then?

A. Because my father was getting a bit worried, he was thinking of not so much myself now, and he was thinking of the kids he was teaching and he couldn't sleep at night, he was getting a bit worried, so he-

Q. Your father was?

A. Yes.

Q. Not you?

A. I was worrying but I wanted to leave everything, I didn't want to go through everything.

Q. You were worried about what had happened to you?

A. Yes.

Q. And your grandfather was worried about other things?

A. Well he was worried, obviously, about what happened to me, but it is just that he was also thinking of the other kids doing Aikido.

Q. I see. Was he getting annoyed and het up, your father?

A. He weren't annoyed, he was calmer… he was… neither of us could sleep and we sat down and we discussed it and we said, okay, we'll take it further and that is why he got in contact with the police.

Q. On the 22^nd January?

A. Yes.

Q. Did you do that because your grandfather was pressurising you into doing it?

A. No we sat down and we did discuss it and I thought then, after realising, that it was best, so we did.

Q. I see. Some two months later?

A. Two months later.

59. We now know that the social services files show that Alan Hughes said to them that the NSPCC had told them to put it down to experience. Mr Christie was not challenging that there had been such contact. To do so might have led, (so Mr Christie could well have thought) to the introduction of evidence to rebut recent fabrication. He was also not asking what the complainant had said to the NSPCC to evoke the response "put it down to experience". To do so could have been very dangerous.
60. In his examination in chief Alan Hughes was asked what he did after his grandson had told him what the appellant had done. He replied that he had spoken to somebody at the NSPCC and also to the Samaritans, Child Line, the police and social services. (Later he gave a more detailed account of the chronology of his calls to Child Line and Social Services just before the police came to see them. We note that according to the account given by Alan Hughes to Social Services on 29 January 1997 it was the social services who actually called the police.)
61. We turn to the cross-examination of Alan Hughes.

Q. Why did it take two months for you to go to the police…?

A. Well first of all, just after the incident, I phoned the NSPCC.

Q. How long after?

A. It might have been the next day, you know, it was very soon after I phoned the NSPCC.

Q. Why didn't you go to the police?

A. Well I was afraid, right, to be honest with you, now Mr Robotham is always mentioned PC Paul Cannon, Inspector Paul Cannon… Plus Mr Keith Phillips, who is a Magistrate…I was afraid if I went to the police….I thought I could lose my home, right, he could sue me, you know, for making allegations against him.

...

Q. So are you suggesting that the reason you didn't go to the police was that because you thought that compared with John Robotham – are you suggesting that the police wouldn't do anything about it, or what, because they knew Mr Robotham, or you didn't trust the police…

A. I was afraid in the case they wouldn't believe me, believe us, because of Mr Robotham's standing in the locality.

...

Q. …you contacted the NSPCC because you say you didn't think the police would do much about it…?

A. I wanted advice Sir; I didn't know what to do.

Q. You got through to them in a couple of days?

A. Yes Yes

Q. And then you contacted someone else?

A. Aaron had gone down my daughters, he do baby sit. I phoned the NSPCC and explained the situation to the gentleman, right, and he wanted to speak to Aaron. I said, "Well Aaron will be home on Sunday evening" and he said, "Well phone me back". We phoned him back, he spoke to Aaron, and the words he said to Aaron was "I suggest because of Mr. Robotham's standing" as in, you know, he knows the police, he knows the Magistrates and everything, he said, "I suggest you put it down to experience and leave it there"

Q. Who said that?

A. I cannot remember his name

Q. Someone on the phone?

A. Yes from the NSPCC, Sir.

Q. From the NSPCC?

A. Yes Sir

Q. Telling you to turn a blind eye to an allegation of a gross indecent act on your son and you accepted that advice?

A. Yes Sir

Q. So you were prepared to do that?

A. Well the people, the NSPCC, and you know, I went for help, advice and that's what the gentleman told the both of us.

Q. I see, on the phone?

A Yes Sir

62. Alan Hughes later said when asked again why it had taken two months before the complaint was made:

Between what the NSPCC told me, I was going back and forth with John Lewis [who] was keeping on about "I'd leave it there if I was you because ... [the boys] would take the mickey out of him ... and I didn't know what to do and I was mixed up."

63. In his ground one of appeal Mr Horton writes "The key excuse provided by the complainant and his [grandfather] to explain the delay of two months ... was that the NSPCC had been contacted on two occasions and that organisation had dissuaded them from complaining to the police". An examination of the passages in the transcript does not suggest that it was a "key" excuse. It was one of a number of explanations for the delay.
64. Mr Horton submitted that the complainant and his grandfather just before the trial put their heads together and decided to invent a call to the NSPCC to explain the delay. We have considerable difficulty with that submission. If they had put their heads together before going to the police, then one would have expected to find details of the NSPCC call in the complainant's statement and a reference to the call and the details of the call in the grandfather's statement. The fact that the social services were told about NSPCC calls in some detail at the time of the statements does not support an allegation of fabrication at any point after that. It also seems very unlikely that the complainant and his grandfather would have invented a call to the NSPCC and signed the consent statements in the knowledge that they had made no such call.
65. Mr Horton relies on the fact that the evidence on cross-examination of Alan Hughes, who appears to have been an excitable witness, suggests that he gave the appellant's name to the NSPCC. Alan Hughes denies that he ever did in a subsequent statement to the CCRC and cannot explain why he mentioned the name. He described it as a "typing error". Absent any clarifying questions at the time as to what Alan Hughes meant (if he used these words), we do not accept that this shows that the appellant's name was disclosed to the NSPCC. Additionally the complainant in a statement to the CCRC denied that any identifying details of those involved were given. There is no indication in the social services file that the appellant was identified to the NSPCC in the social services file.
66. We turn now to the fresh evidence from the NSPCC. We start with paragraph 62 of the report by the CCRC:

In a letter to the Commission (dated 1^st May 2002), Anne Stoker, the Service Manager of the NSPCC Child Protection Helpline, confirmed that a search of their computer database had found no record of any calls relating to an Aaron Hughes. However, she also stated that this did not mean that the calls had not been made. This was because records of anonymous calls (i.e. calls that did not reveal any identifying details) were only retained for one year. About 90% of the calls to the helpline were anonymous. In addition, it was not possible to trace the members of staff on duty at the time the telephone calls were allegedly made by Alan Hughes. This was because staff rotas were not retained for more than one year and there had also been a high turnover of staff since 1996. Ms Stoker further commented that, although it was hoped that helpline staff would never dismiss a caller's concerns in the manner described by the Hughes family members, there had been occasions where the counselling and advice offered by helpline staff had "fallen below standard". The NSPCC were therefore unable to confirm one way or the other whether the calls had been made.

67. This letter came into existence as part of the first of the reviews carried out by the CCRC. During the review the CPS files were examined and no trace of an Officer's Report about the NSPCC was found. (We note, however, that other documents appear to have been missing from the CPS file, a file which has now been destroyed). At the conclusion of the review in January 2003 the CCRC declined to refer the conviction.
68. The CCRC wrote (see paragraph 74 of the report prepared in connection with the present appeal):

There was evidence that confirmed DC Roper's account of obtaining signed authorities from both Alan and Aaron Hughes authorising the release of third-party information. The Commission considered it unlikely that he would have obtained these authorities and then failed to make the enquiries.

69. We agree.
70. In the course of the second review the August 2003 CPS letter to the appellant was examined and a statement was taken from a Mr John Cameron. According to the report prepared in connection with the present appeal:

80. Mr John Cameron, head of the Helpline Service at the NSPCC, provided a witness statement to the Commission (received on 19 March 2004) outlining the recording procedures for telephone calls received by the helpline – at both that time and in late 1996 when the calls by Alan Hughes were allegedly made. The salient points of his statement were as follows:

i. The helpline took between 250 and 500 calls per day. Staff levels were co-ordinated depending on demand but there were never fewer than two advisors on duty and at busy times there may be 10. There was also a duty manager there between 8am and 8pm.

ii. At the time that Alan and Aaron Hughes state they talked to an adviser on the NSPCC helpline (November-December 1996), notes of all calls were made by members of helpline staff in rough notebooks that were retained for six months. However, the NSPCC dealt with anonymous and non-anonymous calls differently.

iii. Calls that identified a child at risk or any other party were classified as "Form 18" reports. The details were taken down by hand by the helpline advisers and passed first to the duty manager for checking and then to an administration team to be entered onto a computerised database. Prior to 2002 these reports were retained for one year. The relevant authorities (police, social services) would also have been informed.

iv. Anonymous calls or calls where it was not possible to identify a child at risk or other parties were classified as "Form 19" reports. Very brief details were handwritten on a paper running sheet and retained for six months before being destroyed. They were not entered onto the computerised database.

v. After mid-1997, all calls were added to the computerised database. There was no record anywhere on the database that made any reference to Mr Robotham, Alan Hughes or Aaron Hughes.

vi. The NSPCC "would never be influenced by the status of an alleged perpetrator". It was "unlikely in the extreme" that, in 1996, a report identifying Mr Robotham would not have been recorded on the computerised database under the "Form 18" procedure. It was also "unlikely in the extreme" that advice would have been given by a member of the helpline staff to "put it down to experience". Such behaviour would be regarded by the NSPCC as high level misconduct. Mr Cameron was unaware of there ever having been an allegation as serious as an adviser dismissing a caller's report in such a way.

vii. There was "no logical reason" why an adviser would ask a caller to call them back at a specified time or date. Although they might know when they were next on duty, there was no guarantee that they would be available to take the call.

vii. Any police enquiry made with the NSPCC would normally be made in writing. The NSPCC had no record of any enquiry being made by DC Roper or any copies of statements from Alan and Aaron Hughes authorising disclosure or any record held by the NSPCC about them. It was usual practice for the NSPCC to provide a written response to any police enquiry. The absence of any record of an enquiry made by DC Roper in respect of Alan or Aaron Hughes, or Mr Robotham, suggested that it was "unlikely that such an enquiry was made".

viii. It was not possible to state in unequivocal terms that Alan Hughes did not make the calls he says he made to the NSPCC. "However it is highly unlikely that such a report would not have been documented…and referred to the appropriate agency for investigation."

71. Mr Cameron said that if the complainant and his grandfather had not identified themselves or the appellant then the call would have been recorded on Form 19, a paper running sheet, showing time and length of call, the gender of the caller and the category of call. These records were kept to provide information about general call demand and, at the time, not added to any computer database.
72. It is of note that Mr Cameron understood that the claim which was reported to the NSPCC was an allegation of sexual abuse and his statement must be read accordingly. We do not know with any precision what details were given to the NSPCC (if the call was made). But it may well be that the complainant, who was aged 16 at the time (whether that was known to the NSPCC worker or not we do not know) was alleging no more than that he had been masturbated by another person whilst being consensually massaged. That would not have been an offence unless the complainant did not consent to the masturbation.
73. The CCRC concluded, amongst other things, that:

102. In the view of the Commission, it is likely that, had it been known at the time of the trial, the evidence now available from the NSPCC, while not determinative of the issue, could usefully have been relied on by the defence as providing strong support for the proposition that it was highly unlikely that the calls described by Alan and Aaron Hughes had actually been made. If the jury had been satisfied that that proposition was, or might be, correct, this could, in the Commission's view, have had a significant impact not just on the jury's assessment of the credibility of the explanation given by Aaron and Alan Hughes for their delay in reporting the alleged assault to the police, but also on their assessment of their credibility more generally.

74. Mr Horton relies on the evidence of Mr Cameron and on this conclusion.
75. On 26 March 2003 Mary Marsh of the NSPCC wrote to the appellant. She refers to a letter written by Mr Cameron in 1997. We do not believe that we have seen that letter and it is not referred to in the Annex C to the CCRC report. Mary Marsh searched the records and could find no reference to a call in relation to the appellant. Miss Marsh's letter states that only very limited information would have been recorded in 1996 of calls in which no individuals were identified- which accounts for 90% of all calls. She wrote: "These forms of recording do not lead to retrospective identification of a specific call." In other words, retrospective identification of a call is not possible. If a call identifies a child at risk and the individuals involved, then details would be recorded and a report sent to the police or social services within 24 hours. A high volume of calls are made. She cast doubt on some of the assertions made by Ms Stoker.
76. As part of ground 4 complaint is made that the alleged failure on the part of DC Roper to call the NSPCC having received the consent statements was linked to his relationship with Miss Port, a relationship to which we turn briefly below. We fail to see the relevance of the relationship to this alleged failure.
77. Against this background we now give our conclusions on ground 1. In our view the fresh evidence, particularly from Mr Cameron, does not afford any ground for allowing the appeal. If it had been suggested at trial that the complainant and his grandfather had lied about making the calls to the NSPCC in early December 1996 and if all the material evidence now before us (including material helpful to the respondent's case) had been available to the jury, the jury would have rejected this allegation. The briefest mention of the NSPCC in the complainant's statement and the absence of any mention in the grandfather's statement points strongly if not overwhelmingly against a conclusion that the alleged decision to fabricate the calls in order to explain the delay had been made before going to the police. The suggestion that the decision to fabricate had occurred after going to the police but shortly before the trial (the suggestion made by Mr Horton to us) is quite inconsistent with the contents of the social service files. We have no doubt that the jury would have concluded that the calls were made. If DC Roper had been asked about the enquiries he made, then we think that it is very likely that the jury would have accepted his statement that he made the call and "Unfortunately no details were available as the call was anonymous". It is the (fresh) evidence of the complainant that no details were given. The NSPCC evidence taken as a whole supports the contention that it would not have been possible to trace an anonymous call made in early December 1996 against the background of a huge volume of daily calls. The jury might have wondered whether, in the light of the evidence of Mr Cameron, an NSPCC worker would have said words to the effect "put it down to experience". But that would depend on a closer analysis of what had been said to the worker. It would not in our view have undermined the credibility of the complainant to the extent that the jury would have disbelieved him, given, in particular, the appellant's answers in interview which we have identified above. Whatever doubts the jury may have had about what precisely was said by the complainant to John Lewis, nonetheless something had apparently happened at the appellant's house sufficient to make the complainant want to talk to John Lewis. On the appellant's account in evidence nothing had happened which could have led to the complainant being embarrassed or concerned by what had happened. If nothing had happened and if the meeting with Alan Hughes was "low key" why was the appellant "shocked by what he was told" by Alan Hughes and "didn't know what to say".
78. The fresh evidence read as a whole does not, in our view, undermine the safety of the conviction on this ground. We dismiss ground 1 and refuse leave to appeal on that part of ground 4 which touches on ground 1.
79. We turn to the second ground, which is also a ground on which the CCRC referred the conviction. At the trial the complainant was not cross-examined about two earlier incidents which he had described to others, including the appellant, at the Aikido club. One incident concerned the son of one of Alan Hughes' girlfriends and the other occurred in a toilet while the complainant was on holiday at a campsite in Porthcawl. At the time of the incidents, so the complainant told us, he was about 13-14 years old.
80. The appellant wrote a post conviction letter to his trial solicitors on 15 December 1997 headed "Additional Points To Those Already Made Concerning The Trial Of John Robotham" (underlining added) which included the following:

He [the complainant] told me, and on a separate occasion Mr and Mrs John Lewis, that he had awoken one night to find the 18 year old son of Mr Hughes' Snr's girlfriend in Aberdare having anal sex with him. (He actually said "he had his cock up my arse"). He said he told his grandfather who said not to mention it in case it affected his relationship with the mother of the youth.

On another occasion he told me, Mr and Mrs Lewis and others that while he was on holiday in Porthcawl he went into a toilet where a man was looking at him through a hole in the cubicle partition wall. He said he chased the man out of the toilet which was near the funfair and told the police. He said they checked buses to see if he could identify the man.

81. In a statement made to the Commission (dated 22nd May 2002), the appellant stated that he was "totally positive" that he had informed his solicitors prior to the trial, either orally or in writing, about other allegations made by Aaron Hughes. The first written record which the CCRC could find was the post conviction letter of December 15 1997.
82. In a letter to the Commission (dated 10 June 2002), defence counsel, Mr Christie, was adamant that he was not made aware of these previous allegations and that Mr Robotham himself did not mention them to him during any of the pre-trial conferences.
83. John Lewis told us that when his statement was taken on June 26 1997 by the enquiry agent in the presence of DC Roper, John Lewis said that the complainant had made other allegations. To which, according to John Lewis, the enquiry agent said words to the effect that that it would only complicate things. He therefore recorded no details, as we could see from the typed up notes in the CCRC file prepared for this reference.
84. The CCRC wrote at the conclusion of the first review:

... there was no real possibility that the Court of Appeal would conclude that Mr Robotham's representatives had acted incompetently so as to render his conviction unsafe.

85. It is now submitted that the accounts of what John Lewis, David Lewis (a teacher at the complainant's school, no relation) and the appellant say that the complainant had said about these two incidents is in conflict with the appellant's account of the two incidents to the CCRC in November 2003. It is also submitted that that account differs, in some respects, from the account given by the appellant to us. It is said that in the accounts given to the appellant and others the complainant is exaggerating what on his account in November 2003 and to us, actually happened.
86. The CCRC concluded in its report referring the conviction to this court:

139. As at the date of the trial, the potential significance of the evidence about the 'buggery' incident which could have been given by Mr Robotham and/or Mr Lewis was, on the face of things, very limited indeed. On the information which was then available that evidence could, at most, have established that Aaron had given slightly different accounts of that incident to Messrs Robotham and Lewis in that:

he had told Mr Lewis that he had been the victim of an attempted buggery and that, when he had reported the incident to his grandfather, the latter had thrown the woman and boy out of the house;

whereas

he had told Mr Robotham that he had actually been buggered and that, when he had reported the incident to his grandfather, the latter had told him not to mention it lest it affect the grandfather's relationship with the woman.

Even if those points had been established, it is, in the Commission's view, unlikely that they would have been of any real benefit to the defence.

140. Since the date of the trial, however, matters have developed considerably in that:

Aaron has provided the Commission with an account of that incident which is wholly inconsistent with either of the accounts which he had previously given;

and

there would in consequence appear to be sensible reasons to suspect that Aaron had by the date of the trial a history of exaggerating to a substantial degree the seriousness of sexual incidents in which he had been involved.

In those circumstances (and whatever may be the position as regards the defence's failure at trial to cross-examine Aaron about the 'buggery' incident or to obtain or call evidence about it from Mr Robotham and/or Mr Lewis), the Commission considers that there is now a real possibility that the Court of Appeal could be persuaded to receive new evidence as regards this incident, that new evidence being in the form of the post-trial statements which have in that connection been made to the Commission by Aaron and by Messrs Robotham and Lewis.

141. The Commission does not consider that a referral to the Court of Appeal would have been justified if this new evidence as regards the 'buggery' incident had stood alone. Rather, the Commission has decided to include this matter in its reasons for referring this conviction because it takes the view that there is a real possibility that the Court of Appeal will consider that, when seen together with the new evidence as regards the NSPCC issue, the cumulative effect is to give rise to a real doubt as to the credibility of the complainant in this case and the safety of Mr Robotham's conviction.

87. In his statement to the Commission in November 2003 the complainant described the "buggery" incident in the following way:

Another incident concerned a friendship my father formed with a woman called Averil who lived in Aberdare. Averil had a son called Stephen, who was aged about 18 years. I think Stephen had some form of learning difficulties. Stephen stayed overnight in my bedroom on one or possibly more occasions and I recall that he sent me a note of an improper nature. I told my father and Stephen's mother of this incident. This occurred about 1994/95 and it is something I no doubt mentioned at the Aikido Club.

88. The complainant said in evidence to us that it occurred before the Porthcawl incident. He told us that Stephen had made advances to him, touching his leg. In cross-examination he said that Stephen touched his leg and that the note read "Can I suck your cock", a note in similar words to that, so the complainant told us, used by the man in the Porthcawl lavatory. He denied that he told people in the club that Stephen had tried to commit an act of buggery and he denied saying that his grandfather had thrown Stephen and his mother out of the house. He denied saying that he had told people in the club that the man in the Porthcawl lavatory had grabbed his penis.
89. Mr Horton pointed out that the complainant had not given the contents of the note to the CCRC investigator - another example of exaggeration, so Mr Horton claimed. Mr Horton also relied on the fact that, to the investigator, the complainant had merely said that the man in the Porthcawl lavatory had made "an improper approach of a homosexual nature", whereas in evidence before us he gave more detail about the contents of a note which he said that he had received. The fact that the complainant gave more detail to us is, in our view, of little or no relevance. Mr Horton invited us to conclude that the investigator would have asked for details of the "improper approach" and of the "note of an improper nature". We do not agree. The statement is clearly written in the investigator's words and not the complainant's (as the complainant told us) and if the complainant had declined to give details that would, so it seems to us, have been recorded.
90. Do the inconsistencies between the evidence of John Lewis (and of others) of what he was told by the complainant and the complainants' account of the incidents and of what he said to persons in the club make the conviction unsafe? If the appellant had told his counsel that the complainant had told him and others about the two earlier incidents, counsel, it is submitted, would/should have cross-examined him about the incidents. If counsel had done so and if the complainant had given the account which he gave to the CCRC some eight years after the incidents, then the appellant and others would have been called to say that the account which they received was different. The jury would then, so it is said, have been invited to conclude that the complainant had exaggerated what had happened with the appellant in the same way as, so it would be said, he had exaggerated the earlier incidents when describing them in the club. Given that the appellant did not tell his counsel about the earlier incidents and given that he is an intelligent and articulate man, we doubt whether there is a reasonable explanation for the failure to adduce the evidence from the complainant and others at the trial. It would be a most unfortunate development in our system of criminal justice if, not having adduced evidence at the trial about some comparatively peripheral matter, years later a convicted person could adduce evidence about that matter in an attempt to show that the conviction was unsafe. Assuming that there is a reasonable explanation and assuming that the evidence to contradict the complainant would have been admissible, there remains a fatal flaw in the appellant's argument. It was the appellant's case at trial (although not during his interview) that nothing had happened- the complainant remained dressed in his pants, his penis was not touched and it did not become erect. It was and is the appellant's case that the complainant and his grandfather had invented the whole allegation, not that they had exaggerated an incident which had occurred. Even if the appellant's counsel had adduced evidence from the complainant about the earlier incidents and even if he had been able to demonstrate that there were inconsistencies between the complainant's account and the account given by the appellant and others, that in our view would not have resulted in a realistic possibility of a different verdict.
91. We reject ground 2.
92. We turn to grounds for which the appellant needs leave, starting with ground 3. It is submitted that fresh evidence shows that Alan Hughes was present at a time before the complaint was made to the police when a Desmond Hughes (Mr John Lewis' father in law) completed an application for compensation to the CICA and Mr Alan Hughes' "eyes lit up". It is also submitted that an answer Mr Alan Hughes gave in cross-examination would have led the jury to believe that no application to the CICA had been made by the complainant, whereas one was in fact made shortly before the trial. It is submitted that this evidence "combined logically and relevantly" with the NSPCC evidence. It supports the case that the complainant and his grandfather had fabricated the complaint.
93. The CCRC wrote

142. The defence case at trial was that the allegation had been made against Mr Robotham almost immediately after the Hugheses had become aware that it was possible for victims of crime to claim financial compensation. This was an issue that Mr Robotham expanded upon in his first application to the Commission. In particular, Mr Robotham asserted that a new witness, Desmond Hughes (no relation to Alan and Aaron Hughes but the father-in-law of John Lewis), could provide new information regarding the Hugheses' financial motive. In particular, Mr Robotham asserted that Desmond Hughes was able to state that he was present when Alan Hughes first became aware of the possibility of making an application to the Criminal Injuries Compensation Authority (CICA) and that this was a matter of a few days before the formal complaint was made against Mr Robotham. During the two previous reviews, the Commission undertook a number of investigations into this issue, including taking a statement from Desmond Hughes, examining the defence files, corresponding with Alan Hughes' solicitor and making enquiries of the CICA. The outcome of the Commission's enquires is summarised below.

143. Desmond Hughes had been identified by Mr Robotham, prior to the trial, as a potential witness. However, when he was approached by Mr Robotham's solicitors, he declined to provide a statement and expressed a reluctance to become involved. In his statement to the Commission (dated 21 May 2002), Desmond Hughes stated that he was a friend of Alan Hughes between 1995 and 1997, but had since become a good friend of Mr Robotham. In 1995 he had been the victim of an assault and the police had made him aware of the availability of compensation. One Thursday in January 1997, Alan Hughes had accompanied him to the local police station to discuss making an application to the CICA. While at the police station an officer made a comment regarding the amount of money that was available in compensation. According to Desmond Hughes, Alan Hughes' eyes "lit up" and he commented that he had not been aware that compensation was available to victims. According to his statement, Desmond Hughes next saw Alan Hughes on the following Sunday (26^th January 1997) when he told him that he had contacted a telephone helpline and had been advised to "take on John Robotham". This was the first time that Desmond Hughes had been aware of any allegation made by Aaron Hughes against John Robotham.

144. Even though Desmond Hughes was not proofed by the defence, questions were put to Alan Hughes about his trip to the police station with Desmond Hughes and his apparent interest in compensation - the clear suggestion being that he had been motivated to make a complaint to the police against Mr Robotham as a result of what he had learned on that occasion about the availability of compensation. During cross-examination, Alan Hughes accepted that he had accompanied Desmond Hughes to the police station but denied that he had any interest in compensation. The relevant extract of the cross-examination is reproduced below:

Mr Christie: Do you know a man called Des Hughes?

Alan Hughes: Yes, I was friendly with him, very friendly, yes ….

Mr Christie… At about this time, before.., the end of January, were you with Des Hughes when he filled in his claim for a Criminal Injury Compensation Board claim?

Alan Hughes: Yes Sir….

Mr Christie: Did you help him fill in his form?

Alan Hughes: No, nothing at all….

Mr Christie: I don't want you to go too far off the point if we can, but the point I am trying to make is this, that not long before you went to see the police, you became very interested when Des Hughes was making out a claim form for criminal injury compensation?

Alan Hughes: No Sir I'm not interested at all, not at all.

Mr Christie: Very interested.

Alan Hughes: Not at all Sir, no.

145. During its first review of Mr Robotham's case, the Commission conducted enquiries with the CICA and obtained a copy of an application made by Alan Hughes, on behalf of Aaron, on 20^th May 1997 – some four months after the official complaint had been made but two months before the start of Mr Robotham's trial.

146. The Commission supplied defence counsel, Mr Christie, with a copy of the statement of Desmond Hughes and asked him if he had any comment to make in relation to this issue. In his letter (dated 10 June 2002) Mr Christie commented that he considered that the point relating to financial motivation was put very strongly during his cross-examination of Mr Hughes. He also noted that Desmond Hughes could not have been called as a witness at the time because, by his own account, he would have refused to attend.

Outcome of the first review

147. In light of the fact that Alan Hughes had already made an application for compensation by the time of the trial, the Commission considered whether or not his answers in cross-examination (i.e. that he was not interested in compensation) could be interpreted as misleading. The Commission noted that Aaron Hughes, rather than Alan Hughes, would have been the beneficiary of any award and that he was fully entitled to make an application for compensation. The Commission also noted that there was nothing in the content of the application made to the CICA which could impact upon the safety of Mr Robotham's conviction. Furthermore, Desmond Hughes had not given evidence at the trial because he had refused to become involved. Nevertheless, his account of the visit to the police station with Alan Hughes was put to Alan Hughes during cross-examination. The jury could therefore not have failed to appreciate the point that was being made with regard to financial motivation and were able to take this into account in coming to their verdict. The Commission was not persuaded that, in these circumstances, the account being given by Desmond Hughes would now be accepted by the Court of Appeal as fresh evidence capable of rendering Mr Robotham's conviction unsafe.

Second review

148. During the second review of Mr Robotham's conviction, Alan Hughes contacted the Commission with regard to the suggestion that the complaint against Mr Robotham had only been made after he discovered that financial compensation was available. Alan Hughes told the Commission that he had only become aware of the possibility of compensation after Mr Robotham had been charged. He had been made aware of its availability by his solicitor, Mr Griffiths.

149. Mr Hughes gave his consent for the Commission to contact Mr Griffiths, who supported Mr Hughes' account that it was he (Mr Griffiths) who had initiated the claim for compensation. Although no attendance note was available in relation to the meeting where the matter of compensation was discussed with Mr Hughes, the Commission were able to obtain a copy of a letter (dated 3^rd April 1997), sent by Mr Griffiths to Mr Hughes and copied to Social Services, in which Mr Griffiths informed them that he had advised Alan Hughes with regard to making a claim for compensation.

Current Review

150. During the current review, the Commission has not sought to revisit the issue of when and how Alan Hughes became aware that compensation was available. The Commission considers that this issue was investigated as far as possible during the previous two reviews and that it is not possible to determine this with any certainty. Furthermore, the Commission remains of the view that the 'new' evidence of Desmond Hughes would not now be admitted by the Court of Appeal under section 23 of the Criminal Appeal Act 1968 (as amended). The Commission is therefore satisfied that there is no new evidence available, which would be accepted by the Court of Appeal, to support the contention that the complaint against Mr Robotham was made shortly after Alan Hughes' became aware that financial compensation was available for victims of crime.

151. The Commission has, however, given further consideration to whether the fact that an application for compensation was made by the Hugheses prior to trial, is new evidence capable of raising a real possibility that the Court of Appeal would consider Mr Robotham's conviction to be unsafe.

152. It is clear that the application form to the CICA, which gives the date of application as 20th May 1997, would be accepted by the Court of Appeal as capable of belief. The Commission also considers that evidence that an application for compensation had already been made would have been admissible and that that point could have been put to Alan Hughes and, indeed, Aaron Hughes, in cross-examination.

153 The Commission has made enquiries of defence counsel in this connection. In a letter to the Commission (dated 27^th March 2006), Mr Christie stated that he was not aware at any time during preparation for the trial (and had not been made aware since) that an application to the CICA had already been made by the Hugheses prior to the start of the trial. Mr Christie stated:

"I asked him [Alan Hughes] about Des Hughes and he agreed he had witnessed him filling in a Criminal Injury Compensation Claim (in about January l997) and having Des Hughes talk of being assaulted. He denied this had "made him very interested in compensation" (P41) and was followed up, within a short time with his complaint to the police (27/1/97). Mr Hughes said he wasn't interested at all in Des Hughes' claim. So the inference was made for the jury to consider. I could really go no further. We had no evidence or instructions to push the matter further.

I was not aware at the time of the trial that an application for C.I. Compensation had "already" been made…. My Solicitor was not aware either.

Had I been aware of the fact that an application had already been made, and then of course this would have been put to Mr Hughes in cross-examination. Also, we (my Solicitor) would have obtained disclosure of the relevant document from the police.

We had made a 3rd party application for disclosure from the Department of Social Services; we were aware that NSPCC had been mentioned. The senior resident Judge at the time, at a P.I. I. Hearing on 30.6.97 said there was nothing in the files to disclose.

… if the fact that an application had been made was known at the trial, then would it have affected the outcome? Very difficult to say. It would depend on Alan Hughes answers to the questions. He when confronted with evidence may well have admitted to it. On the other hand depending on what evidence was available to establish the fact that a claim was made by him pre-trial and that Mr Alan Hughes had not been alerted to the Defence discovery, then he could have been trapped and his credibility questioned. But, as I've said many times, it's the victim's credibility, the 16 year old Aaron that was the issue in this case not his grandfather. So the question I have posed to myself is almost impossible to answer; there are too many hypothetical situations that could have arisen."

154. It seems clear, therefore, that the fact that an application for compensation had already been made at the time of the trial would have been put to Alan Hughes in cross-examination had the defence known about it. However, the Commission concurs with the view of Mr Christie that it is impossible to assess what the likely effect that any such cross-examination would have been. Although the revelation that an application for compensation had already been made might have been seen as undermining Alan Hughes' claim that he was "not interested at all, not at all", much would have depended upon his other answers in this connection. The mere fact that an application for compensation had already been made by the time of the trial could have provided only limited support for the proposition that there was a financial motive behind the allegations against Mr Robotham if it could not also be shown that Alan Hughes was aware of the availability of compensation before the complaint to the police was made.

155. With regard to whether or not there is a reasonable explanation for this evidence not being adduced at the time of the trial, the Commission notes that Mr Robotham's solicitors applied for third-party disclosure and that the Social Services files were perused by two judges who concluded that there was nothing in them that would assist the defence. The Commission observes that the letter from Mr Griffiths to Social Services which is referred to at paragraph 148 above (and which mentioned that he had discussed the possibility of claiming compensation with Alan Hughes) was among the Social Services papers at this time. Clearly, however, neither of the judges who read that file considered this to be of relevance to the defence case.

156. The Commission has considered whether the police or CPS were aware of the fact that an application for compensation had been made. Unfortunately, however, the relevant police and CPS files have now been destroyed. The Commission notes that, in line with the procedures of the CICA, a letter was sent to the South Wales Police in June 1997 (prior to the start of Mr Robotham's trial) informing them that an application had been received by Aaron Hughes and asking them to confirm the details of the complaint as outlined on the application form. The CICA did not receive a response from South Wales Police until November 1997, and that response appears to have come from an administrative manager rather than from any of the officers directly involved in the investigation of the case. At this remove of time and given the destruction of the relevant files, the Commission has been unable to establish, with any degree of certainty, whether the application to the CICA was, before the trial, within the knowledge of the investigating police officers or the CPS.

Conclusion

157. The Commission is not satisfied that there is a real possibility that the Court of Appeal could be persuaded to admit the 'new' evidence of Desmond Hughes and/or that that evidence undermines the safety of Mr Robotham's conviction.  The Commission acknowledges that, had the defence been aware that an application for compensation had already been made by the time of the trial, they might have been able to make some use of that point when cross-examining Alan Hughes.  In all the circumstances, however, (and bearing in mind the absence of any new evidence which lends weight to the suggestion that the complaint to the police was prompted by the discovery that compensation was available) the Commission is likewise not satisfied that anything as regards the making or timing of that application raises a real possibility that the Court of Appeal would quash Mr Robotham's conviction.

94. We agree with the CCRC's admirable exposition and adopt it. We refuse leave to appeal on this ground. The jury had to decide whether they were sure that the complainant was telling the truth and whether they were sure that the appellant was lying when he gave evidence. The issue of compensation was, at the most, a very peripheral matter and even if the jury had known that a claim for compensation had been made, that would, in our view, have made no difference to the verdict.
95. We turn to ground 4. It is submitted that the appellant did not have a fair trial because of an intimate relationship between Miss Port and DC Roper and that justice was not manifestly seen to be done because of the relationship. The CCRC has this to say about this complaint:

158. The final issue that the Commission agreed to reconsider during this third review was the fact that the legal executive who had the day-to-day responsibility for the preparation of Mr Robotham's defence case was, at that time, involved in a relationship with DC Roper – the police officer charged with investigating the offence and who apparently dealt with the disclosure of material.

159. Over the two previous reviews Mr Robotham has made extensive submissions with regard to this issue. He has also made additional points in relation to it during this third review. The central facts and the outcome of the various investigations carried out into this issue by the Commission and by other bodies (i.e. The Law Society and Bar Council) are summarised below.

Previous Reviews

160. Mr Robotham's initial submissions to the Commission on this issue stated that he became aware of the relationship between Ms Port and DC Roper during his trial. The judge was made aware of the situation and, following a hearing in chambers, he allowed the trial to proceed.

161. Enquiries made by the Commission established that the hearing in chambers was held on the morning of 15^th July 1997 (the trial had begun on 14^th July 1997). The Commission obtained a transcript of the hearing. The transcript revealed that the relationship had come to the attention of the CPS which had concerns about it and they had therefore instructed Crown counsel to bring it to the attention of the judge. During the hearing, Crown counsel informed the judge that Ms Port was currently living with DC Roper but that, as far as he [Crown counsel] was concerned, the relationship caused no difficulties in terms of the case. Defence counsel, Mr Christie, told the judge that he became aware of the relationship (and of the fact that Ms Port and DC Roper were living together) at some point after the committal proceedings and that Mr Robotham had been aware of the relationship before he [Mr Christie] had been instructed. DC Roper's evidence was not contentious and Mr Christie stated that Mr Robotham had told him that it caused him no concern and Mr Christie himself was satisfied that it caused no problems for Mr Robotham and none for the defence.

162. Having seen the transcript, Mr Robotham submitted that the hearing in chambers had taken place before he had been made aware of the relationship. According to Mr Robotham he had not discussed the matter with his legal representatives until 17^th July 1997 and then only at his own instigation after he was told by a friend (Inspector Cannon) of the relationship on the evening of the 16^th July. When he had raised the matter with his counsel on 17^th July, Mr Christie had told him that the judge had been informed and Mr Robotham understood this to mean that the judge had been informed that morning. Mr Robotham contended that his counsel had seriously misled the judge during the hearing when he had said that he [Mr Robotham] was aware of the relationship and had no concerns about it. Mr Robotham told the Commission that, having discussed the matter with his defence team, he decided to carry on with the trial. However this was a decision that he regretted because he now believed that the relationship might have prejudiced his defence.

163. In response to enquiries from the Commission, Mr Christie maintained that the account he had given to the judge on 15^th July 1997 was accurate. Mr Robotham continued to insist that this was not the case.

164. At the conclusion of the first review, the Commission took the view that the issue of when and how Mr Robotham came to be aware of the relationship was clearly a matter of dispute between him and his representatives. However, it was largely a matter of professional ethics and there was no evidence to suggest that the relationship had impacted upon the safety of Mr Robotham's conviction.

The Bar Council

165. As a result of seeing the transcript of the in-chambers hearing, Mr Robotham made a complaint to the Bar Council in Spring 2002. Mr Robotham made the Commission aware of the involvement of the Bar Council during the course of the second review of his case.

166. On 15^th October 2003 the Bar Council decided that Mr Christie should face two charges of professional misconduct and passed the file to an investigations officer. The two charges were:

Failing to inform Mr Robotham of the relationship between Ms Port and DC Roper.

Misleading the judge as to Mr Robotham's knowledge of the relationship.

167. The tribunal hearing took place on 8^th and 9^th of June 2004. Mr Robotham called several witnesses. Mr Christie and Ms Port also gave evidence. At the conclusion of the hearing, the charges against Mr Christie were dismissed. The reasons for this decision were published on 21^st September 2004. The Commission obtained a copy of the report, the main points of which were as follows:

i. The tribunal was satisfied that the relationship between Ms Port and DC Roper was discussed at the first pre-trial conference held at Mr Christie's chambers.

ii. It was only briefly discussed because there was no challenge to it. It was not considered important.

iii. The relationship was mentioned by prosecuting counsel to Mr Christie on the morning of Tuesday 15^th July. The Crown wanted to bring it to the attention of the judge. Mr Robotham was informed of that conversation and instructed that he had no objection to the judge being told. Counsel then went into chambers from within the court where Mr Robotham was sitting.

iv. During the in-chambers meeting, Mr Christie accurately recounted Mr Robotham's views.

v. Mr Robotham was subsequently told of the judge's view and raised no objection to the trial continuing.

vi. Mr Robotham may well have received a call from Inspector Cannon the next night (Wednesday 16^th July).

vii. From then to the end of the trial Mr Robotham did not mention the relationship again.

168. Having considered the report and the comments and criticisms made by Mr Robotham in respect of it, the Commission remained of the view that this issue did not raise a real possibility that the Court of Appeal would quash Mr Robotham's conviction.

Office for the Supervision of Solicitors/Law Society Adjudicator

169. The complaint made by Mr Robotham to the OSS in January 2004 (see paragraphs 83–84 above) included a complaint of Professional Misconduct in that there was a conflict of interest and the firm should not have taken instructions from him when Keith Thomas was aware of the relationship between Ms Port and DC Roper.

170. In his report (dated 26^th January 2005), the Law Society Adjudicator concluded the following:

i. Mr Keith Thomas acted in breach of The Guide to the Professional Conduct of Solicitors by accepting and continuing to accept instructions or act for Mr Robotham when he was aware that there was an ongoing personal relationship between the arresting officer and Ms Port, to whom he had delegated day-to-day conduct of Mr Robotham's case.

ii. Mr Robotham was adamant that he was not aware of the relationship until 16th July 1997 – during his trial. The solicitors state, on the other hand, that they made him aware of it at a conference with counsel and that Mr Robotham indicated that he already knew of it and was happy to continue.

iii. The adjudicator noted that there was a lot of conflicting evidence. However, he referred to the findings of the Bar Council that Mr Robotham had been told of the relationship at the first of two pre-trial conferences. The adjudicator thought it likely that this was the case. However, Mr Thomas had still made an error of judgment by allowing the case to continue in Ms Port's hands.

iv. The adjudicator noted that the Bar Council Tribunal found it highly significant that DC Roper's evidence was not contentious and therefore found there to be no misconduct on the part of Mr Christie for allowing the trial to continue. However, the adjudicator noted that "As has transpired after the case, it is likely that, if there were some sort of re-trial DC Roper's evidence would be highly contentious, as there is some doubt about the truth of his assertion that he either contacted the NSPCC or made a report of it to the CPS…"

v. The adjudicator noted that even if Mr Robotham had been aware of the relationship he would have been guided by legal advice as to whether it was significant or not. According to the adjudicator there was always the possibility that DC Roper's evidence would need to be challenged - this made Ms Port's position "untenable".

171. The Commission received the report of the Law Society Adjudicator from Mr Robotham on 17^th March 2005, which was after his second application to the Commission had been closed. Mr Robotham also informed the Commission at this stage that he had referred the decision of the Bar Council Tribunal to the Legal Services Ombudsman. The Commission considered the findings of the adjudicator but informed Mr Robotham on 1^st April 2005 that they did not alter the Commission's decision not to refer his case to the Court of Appeal.

Current Review

172. Since the Commission agreed to consider Mr Robotham's case for a third time, he has raised further points in respect of the relationship between Ms Port and DC Roper. These are summarised below:

i. In a letter (dated 10^th May 2005) Mr Robotham drew the Commission's attention to the case of R v Morris (David George) [2005] EWCA Crim 1246. This was a case where a murder conviction had been quashed by the Court of Appeal on the basis that the appellant's solicitor had a conflict of interest that had adversely influenced the preparation and presentation of the case at trial. Mr Robotham asserted that this case was significant in the context of the conflict of interest in his own case.

ii. In three letters (dated 24^th April 2006, 25^th April 2006 and 14^th June 2006) Mr Robotham provided a detailed analysis of the text of the transcript of the hearing in chambers and submitted that what this analysis revealed lent support to his contention that his counsel misled the judge deliberately during that hearing.

173. The Commission has re-considered all the previous submissions made by Mr Robotham in relation to this issue and has re-considered the findings of the Bar Council and the Law Society Adjudicator. The Commission has also considered the submissions made by Mr Robotham more recently and the case of Morris.

174. The Commission remains of the view that the fact of the relationship between Ms Port and DC Roper cannot, of itself, raise a real possibility that the Court of Appeal would quash Mr Robotham's conviction. The Commission has seen nothing to suggest that the relationship between Ms Port and DC Roper influenced in any way the manner in which Mr Robotham's case was prepared or presented In this regard, the circumstances which arose in Morris were in the Commission's view wholly different from those in Mr Robotham's case.

96. Mr Horton submitted that the evidence of Mr Christie before the tribunal did not "fit comfortably" with what he had said to the judge in chambers at the start of the trial. The matter has been fully ventilated before the tribunal, which had heard from the appellant, whose account of the events was not accepted. We see no reason for going behind the conclusion of the tribunal.
97. Mr Horton submits that justice was not seen to be done. We disagree. The appellant knew about the relationship from an early stage and had no objections to being represented by Miss Port. It was not until some time after his conviction that the appellant decided to ventilate this matter. If he had thought that he was not receiving a fair trial or, when he saw Mr Christie after the conviction, that he had not received a fair trial because of the relationship, we are satisfied that the appellant would have mentioned it. He did not. We are very grateful to the CCRC for the full analysis of this ground and we reject the application for leave to appeal.
98. Ground 5 consists of a complaint that David Lewis, Desmond Hughes and the wife of John Lewis should have been called as witnesses. David Lewis could have given character evidence, could have said that the appellant had not complained to him about the alleged indecent assault when they met on 17 December 1996 at a school pantomime. Mr Horton accepted that the weight and effect of this evidence is limited. David Lewis could also have given evidence that the complainant had made a comment about what we have called "the Porthcawl incident". All that the complainant had said about the latter was that a man had approached him and made a sexual suggestion. That was consistent with, but less detailed than, the account given by the complainant to the CCRC. The fact that David Lewis was not called to give this evidence cannot possible result in the conviction being unsafe.
99. It is submitted that Desmond Hughes should have been summoned to give evidence, he having expressed a reluctance, so he told the CCRC, to become involved at the time of the trial. At that time Desmond Hughes was a friend of Alan Hughes and only later had become a good friend of Mr Robotham. Mr Horton submits that witnesses summoned to court "often prove rather more helpful than otherwise." There is no suggestion that the appellant wanted him called and the suggestion that he should have been summoned comes, so it appears to us, very late in the day. We see no merit in this submission.
100. As far as Mrs John Lewis is concerned, whereas the complainant was saying that he told them both about what the appellant had done to him, John Lewis, on the other hand, said in evidence to us that his wife was not present when the complainant spoke about the incident - "she was in the kitchen". She had told him later that she had not heard anything. In those circumstances there would have been no point in calling her.
101. We refuse the application for leave to appeal on this ground.
102. In grounds 6 and 7 it is alleged that counsel for the appellant should not have put to the complainant's grandfather that when he came round to the house (on the grandfather's account to complain about the appellant's conduct) that he was saying that the appellant's wife had divorced him because she had found him in bed with a man (a matter foreshadowed in the appellant's interview). The question having been asked, Alan Hughes accepted that he had said it but it was "hearsay". It is submitted that the judge should have warned the jury to ignore the question and answers. It seems clear to us that the question was put to Alan Hughes to show that he was acting irrationally and it is inconceivable that the jury would have attached to this any weight adverse to the appellant. Leave is also refused on these grounds.
103. For these reasons we dismiss the appeal and the application for leave to appeal.