England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION S9 CAA 95
His Honour Judge Hopkin
T19990880

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/03/2014

Lady Justice Rafferty:

1. John Dent (64) in a reference by the CCRC under S9 Criminal Appeal Act 1995 challenges the safety of his conviction for sexual offences. On 13^th December 2001 following a retrial in the Crown Court at Nottingham he was convicted of nine counts of indecent assault and two of attempted buggery and on 25^th January 2002 sentenced to a total of seven years imprisonment. An application for leave to appeal against conviction was refused by the Full Court on 14^th March 2003.
2. He argues that the convictions are unsafe in that:

a) Count 1: There was non-disclosure of material relating to the truthfulness of the complainant CF.

b) Counts 2 – 3: It is impermissible to prosecute for indecent assault outside the 12 months time limit for unlawful sexual intercourse with a girl under 16 years. The Crown concedes this Ground.

c) Count 4: Missing contemporaneous documents might have resolved whether the offence alleged could have taken place during a weekend in August 1976.

d) Count 5: The evidence and arguments in relation to count 4 affect the safety of the conviction on count 5.

e) Counts 5 – 11: Had the evidence and arguments been adduced at trial in relation to counts 1 – 4 this would have affected the safety of the convictions on the remaining counts.

3. The appellant was born on 9^th March 1949. From 10^th March 1975 to 12^th June 1977 he was deputy house warden at Enderleigh children's home. CF (count 1), HE (counts 2 – 3) and LL (counts 3-4) alleged that he sexually abused them whilst they were residents. At Hillcrest children's home he was officer in charge from 13^th June 1977 to 23^rd August 1978. SG, the only male complainant, (counts 6 – 11) alleged sexual abuse whilst a resident.
4. At the first trial, in 2001, Dent was acquitted of four counts of rape and eight of indecent assault but the jury could not agree in respect of the remaining counts, some of which founded the retrial.
5. The Court of Appeal office has helpfully distilled the allegations dates and complainants and, with gratitude, we reproduce it.

Count	Offence	Complainant	Period	Brief description of allegation
Enderleigh children's home	Enderleigh children's home	Enderleigh children's home	Enderleigh children's home	Enderleigh children's home
Count 1	Indecent assault	CF	24th July 1975 – 1st April 1976	Whilst in the treatment room, the appellant kissed CF (aged 15) and touched her vagina, and asked her to touch his penis
Counts 2 – 3	Indecent assault	HE	30th October 1975 – 11th November 1975	The appellant and HE (aged 15) had consensual sexual intercourse.
Count 4	Indecent assault	LL	12th April 1976 – 14th September 1976	On a weekend in August 1976 the appellant took LL (aged 14 – 15) into his bedroom and kissed her and touched her vagina.
Count 5	Indecent assault	LL	LL	LL (aged 14 – 15) then moved to another children's home. She met the appellant and went out in his car. The appellant placed his hand into her knickers.
Hillcrest children's home	Hillcrest children's home	Hillcrest children's home	Hillcrest children's home	Hillcrest children's home
Counts 6 – 8	Indecent assault	SG	21st October 1976 – 23rd August 1978	Specimen counts. The appellant asked SG (aged 14 – 16 years old) to come to his room at night. The appellant then masturbated SG's penis and made SG touch his erect penis.
Count 9	Indecent assault	SG	SG	Specimen count. The appellant masturbated SG (aged 14 – 16 years old) in his car.
Counts 10 – 11	Attempted buggery	SG	SG	The appellant attempted to penetrate SG (aged 14 – 16 years old)'s anus with his penis on two separate occasions.

6. The Crown relied upon other witnesses to support the complainants and upon his alleged lies. His case was complete denial. The complainants might have been motivated by desire for compensation. SG had explored it and there were inconsistencies in his accounts. The appellant was at a great disadvantage due to the passage of time and loss of records.

Evidence of general practice

7. Patricia McDonnell worked at Enderleigh when the Appellant was the only male member of staff, save the gardener. He introduced relaxation of harsh rules and had been advised that it would not be appropriate for him to be in the dormitories unaccompanied by a female member of staff because of the possibility of allegations. Margaret Pollard, in charge of Enderleigh, described him as a young man of 27 who whilst he tried very hard was not fully aware of the problems his position might cause. She was concerned, knowing how manipulative the girls could be, about what might happen were he left alone with then.
8. Elizabeth Reid-Morrison said that in her second spell at Enderleigh as a resident she was there for 18 months. During her time the appellant was in charge of discipline and very strict. To her evidence we shall return.

Evidence supporting the counts

9. Count 1. CF (dob 15^th July 1960) consequent on a Care Order had been sent to Enderleigh because of a relationship with an older man, her truancy and her parents' inability to control her. The Appellant was third in command. She told a member of staff he had put her in the cell room because she would not skip. She said he could be nasty, or nice and give her cigarettes and sweets. On one occasion he brought his hand down as if to touch hers. After that she was wary.
10. She said he would hand out medicines from the treatment room. She once went to get hers and he said "You know the rules," so she put on her nightclothes, returned to the treatment room, he closed the door, kissed her on the arms and neck and said "It's either here or the [cell] room." He started 'playing with her down below, both on the outside and inside'. He wanted her to touch his penis but she refused. He said he was 'going to have her properly'. She did not tell anyone because she had to live in the Home. She ran away and on return did not explain why she had left because the appellant was in the room.
11. Carol Lievesley, resident at the same time as CF, confirmed that the appellant handed out medicines without other staff present. Maureen Guest a member of staff could not remember the appellant giving out medicines but whoever was on duty did that job.
12. Counts 4 – 5 LL (dob 28^th May 1961) was at Enderleigh from April 1976 to September 1976. She said the appellant made things more bearable by bending the rules slightly. One weekend in August when the others had gone home she went to bed and the appellant came into her room, put a pillow lengthways in her bed and took her into his bedroom. He kissed her and touched her between her legs so that she became aroused. He rubbed his erection against her genitals. She stopped things, fearful of pregnancy. After her move to St Joseph's she went out with him in his car. They got out and began kissing. He lowered her on to the ground and put his hand into her pants. She stopped him.
13. The second incident made her wary of him. She continued to see him but quite often his girlfriend was present and nothing happened.
14. She said telling anyone at Enderleigh would have been pointless as naughty girls were there to be punished. As a joke he once put a light on top of his car. At a gay club he knocked on the door and shouted "Police". She remained friendly with him and in 1984 he was very kind to her after a personal difficulty. After a gap she contacted him and they met when she was 19. He began kissing her and fondling her breasts. She admitted she did not tell her therapist about the matters raised because he had helped her in the past.
15. Counts 6 – 11 SG (dob 3^rd February 1962) was at Hillcrest from October 1976 to August 1978. After evening staff changeover the appellant would come through the door in the loft space to SG's door and ask him to come to his room. Naked, he would get into bed with SG then mess about and play with him. He would masturbate SG, get on top, go up and down, ejaculate and put SG's hand on his erect penis. SG was very worried about saying no because the appellant had said social workers wanted to send him to borstal or a detention centre. SG did not think he would be believed. The appellant indecently assaulted him on at least twelve occasions, trying to kiss his face, lips and neck. SG had no choice but to let him. The appellant attempted to penetrate SG's anus on more than one occasion.
16. On two occasions when they were disturbed SG went back to his room through the loft space or the hatch. SG was also taken to visit the appellant's parents and once or twice a week to public houses or a gay club. The appellant on eight to ten occasions indecently assaulted SG in the car.
17. SG went to see a solicitor to see if he could obtain compensation but was advised that he could not. SG denied that he was motivated by a desire for compensation.

Interview and trial.

18. The appellant was on 29^th October 1999 interviewed about the allegations by LL and SG and gave an account consistent with his evidence.
19. He told the jury that at Enderleigh he was never the only member of staff present with residents. At Hillcrest he was occasionally on his own but it was easy for others to hear what was going on. Astute to the risk of allegations he had only once been into the girls' dormitory. There was no incident in the medical room as described by CF. Nothing sexual occurred. To the best of his recollection he did not give out the medicines at any time.
20. Counts 4 – 5 LL would have gone on various trips. When he and his wife later saw her she told Mrs Dent how much he had helped her. He had not put a blue light on his car.
21. Counts 6 – 11 SG never came into the appellant's room by the roof space nor had the appellant ever been in the roof space. There was never any sexual activity and he never said people wanted to send SG elsewhere. In any event SG had quarterly meetings with his social worker whom he was free to telephone at any time. In December 1978 SG said he was looking for accommodation, asked the appellant if he could move in with him and, after speaking to SG's family, the appellant agreed. There was never any sexual activity in his flat or car.
22. Later, SG said he was still having problems so the appellant let him stay again. He went with SG to gay bars, but so did many heterosexuals.

Grounds of Appeal

23. Ground 1 Non-disclosure. Counsel for the Local Authority considered the social services department ("SSD") records but highlighted only material relating to sexual activities, not to untruthfulness, which latter was not disclosed though it was known to the Crown.
24. For the Crown Mr Auty QC whilst not conceding it sensibly advanced argument as though there had been non-disclosure. We adopt that stance with like caveat. We add simply that we would have been cautious to avoid firm conclusions on non-disclosure. Even after the work of the CCRC it is impossible confidently or with precision to identify what material was disclosed in respect of CF. It is for example plausible that counsel representing the Appellant knew of what is now labelled "undisclosed" but chose not to use it. In the light of the Crown's pragmatic approach it is unnecessary for us to reach a conclusion on the point so we say no more.
25. This trial was in 2002 when practice in the courts was not as now. It was long before the hearsay provisions in Ss. 114 et seq. of the Criminal Justice Act 2003 came into force so that the extent to which material might properly be utilised was, to modern eyes, considerably restricted. Documents designed or sought merely for cross-examination were not admissible. Questions put on behalf of the Appellant if they went only to credit meant that answers would be final unless the defence could demonstrate that the questions fell within a recognised exception. None such is suggested.
26. We have whenever possible tested whether what is presented to us as newly emerged is in part repetitive of evidence already before the court or of relevance so marginal as not realistically capable of having made a material difference to the verdict. Against that backdrop we return to the submissions of the Appellant.
27. As to CF, documents record that a report dated 23^rd May 1975 made by a school tutor refers to an incident relating to "pupils victimising" and refers to 'complete fabrication." A report for a case conference at Enderleigh on 14^th August 1975, although presenting CF in a favourable light read 'it is doubtful whether she has been constantly truthful.' The author of a psychiatric report of 29^th July 1975 doubted the veracity of some of her statements.
28. There are difficulties in the way of this submission that reliance could have been placed on this material to the advantage of the Appellant. The material appears to reflect no more than opinion and as such would have been inadmissible. Even were some of it factual, in context it is of little relevance, and since it goes only to credit CF's answers would have been final. At its highest it adds so little, if it adds at all, to CF's evidence about how she came to be in care that its relevance to the jury's verdict is difficult to identify.
29. SSD records reveal "The records refer to C as being a 'go – go' dancer prior to going to Enderleigh" and portray her as quite promiscuous, although reports made during her stay at Enderleigh reflect her in a positive light. There is also reference to doubt as to the veracity of some of her statements, though comment made at a review at Enderleigh on 29/1/76 refers to her conduct there as 'excellent' and CF as 'one of the most reliable and trustworthy girls in the home…..medical records [hold] no specific reference to her taking medication whilst at Enderleigh, although she was being treated for bladder problems and vaginal problems."
30. This material is said to have been admissible relevant and capable of undermining the Crown's case, going to the reliability and honesty of a complainant in a historic sexual abuse case featuring a Children's Home.
31. Once again there are difficulties in the way of this submission. Any reference to alleged promiscuity would have been inadmissible given the unforgiving terms of S.41 Youth Justice and Criminal Evidence Act 1999 and CF's evidence of how she came to be in care. We note too that the Appellant called his own witness Maureen Brown as to this so that the jury had the opportunity to reflect upon competing accounts supported by evidence.
32. Nothing was identified to us which had it been available and admissible was capable of significantly undermining CF's credibility on this aspect of the case.
33. Documents are also said to reveal that at the time of the trial Carol Lievesley suffered poor memory possibly as a result of medication, argued as going to the reliability of her recollection on an important matter - that the Appellant gave out medicines - and to her evidence about the Home. The Crown relied upon what it suggested was the Appellant's lie about handing out medicines and the judge gave a Lucas Direction.
34. The records are said not to support CF receiving medication at Enderleigh, thus bearing on whether Ct 1 could have happened at all and whether the Appellant lied when he denied handing out medicines and that he was ever in the medicines room with her.
35. We can take this shortly. Not only CF but also Carol Lievesley said the Appellant would give out medicines. He would do it from the treatment room. CF said that he would do so with the door closed. That was the sole issue to which the records are said to be capable of going.
36. Whilst it is true that the material now disclosed does not directly confirm CF's account, common sense suggests that had the Appellant behaved as alleged he would hardly himself document where he was. That would be to support an allegation a girl could later make against him. Even if a missing record suggested he did hand out medicine, it is difficult to see what advantage that afforded him. He was entitled to hand it out. To the narrow issue of the closed door therefore the potential evidence from Carol Lievesley did not directly go. Taking together the emerged material as to CF and as to Carol Lievesley there is nothing in this ground.
37. As to other witnesses, Elizabeth Morrison's evidence was that she had been at Enderleigh for two periods over some eighteen months whereas SSD records are advanced as showing she was there for just four weeks. Like much of the argument advanced in this appeal, Occam's razor operates to show the simplest solution is generally the answer. The document relied upon by the Appellant suggests those two periods were between 9^th May and 2^nd September 1975, and 16^th November and 14^th December 1976. Added, they total some five months but some eighteen months (the term she mentioned) separate 9^th May 1975 from 14^th December 1976. In any event, though common sense suggests she made a mistake, her evidence, of marginal relevance, comes nowhere near threatening the safety of the conviction on this count.
38. Julie Swindell's evidence was that the Appellant physically abused her and that she saw him do the same to other female residents. She said she feared sexual advances from him because of his behaviour. SSD material is said (a) to undermine her honesty, (b) in a report by the Appellant on her to show a relationship different from that she portrayed and (c) to suggest that when she initiated contact with the SSD she ruled out abuse, in contrast to her evidence, a substantial inconsistency capable of affecting the jury's view of her credibility and reliability.
39. It is worth reviewing the exact wording of the July 2000 report recorded by SSD which where relevant reads:

"Call to Julie. She…..had heard about Dent being prosecuted for abusing children in care at the time she was in Enderleigh and he was OIC. She knew his reports had been significant in "shaping " her care career and wanted to know what he had said about her. She would like a copy………She doesn't have any recollection of abuse herself. Julie having psychiatric help at present and able to see now how her relationship with her father affected many aspects of her life…….""

40. As to both these women the material upon which the Appellant seeks to rely is said to show a different general picture of his behaviour from that led by the Crown. Maybe so. But context is important. Elizabeth Reid, for example, was called as the final witness on the second day of trial and dealt with within minutes. Her evidence was not mentioned in the Judge's summary of the evidence during his summing-up. The Appellant made no reference to her during his unsuccessful appeal against conviction. The sole suggestion is that the Social Services material "could" have affected her credibility in the minds of the jury.
41. As to Julie Swindells we make the obvious point that the Appellant, the author of a report upon her, was hardly likely there to record matters adverse to himself if, as the Crown suggested, he were a knowing abuser. We attach no importance to that aspect of the argument. As to the balance of the SSD material, "She doesn't have any recollection of abuse herself" would, we accept, have prompted the Crown carefully to reflect upon its implications but we repeat: this trial was in 2002 when practice in the courts was not as now. We are unconvinced that even assuming admissibility this material was capable of affecting the evidence so as to make us doubt the safety of the conviction.

Count 4

42. LL dated a specific indecent assault as on a Saturday in August 1976 when she said she was the only girl at Enderleigh after a three week stay with foster parents in June or July 1976. There was no dispute that she said she was transferred to Enderleigh following a weekend at a local Home.
43. Counsel led the dates of her arrival and departure and that in June or July she went to foster parents for three weeks. As to the incident founding Count 4 he asked:

"How did this incident begin to come about? Where was it, can you remember?"

"LL – "It was about August time. I was – at that point a lot of girls had gone off to different places and the remaining ones that were there like went home on weekend leave and I had to stay this particular weekend because my parents were away, there was nobody at home and I couldn't go home. So I ended up staying the weekend at Enderleigh on my own and John (Dent) was there as the officer on duty in charge and a member of night staff……..""

44. A police document of 19^th December 2000 now available reads:

"LL was a resident at Enderleigh between 12/4/76 and 12/7/76. She then went into a foster home for the holiday period and subsequently returned to Enderleigh until 14/9/76 [a later date than thought at trial] when she was transferred to St. Joseph's Wiltshire."

45. Another police document suggests she remained in foster care until 14^th September. The agreed fact at trial was that she left Enderleigh on 15^th September 1976. Were all these documents accurate as to dates it left but one day on which the abuse could have occurred.
46. Records from the Home for this period were no longer in existence. The Appellant suggests that they would have shown whether, on duty, he had the opportunity to commit this offence. He advances it as "a classic Sheikh/Joynson point": R. v Sheikh [2006] EWCA Crim 2625 and R. v Joynson [2008] EWCA Crim 3049.
47. We can deal with that point immediately. In Sheikh and in Joynson missing evidence was capable of having been determinative. This appeal is founded on material far short of that potential power.
48. The Appellant accepts that in relation to Ct 5 the absence of records is not relevant to the safety of the conviction but argues that the impact of Ct 4 would have affected LL's credibility and reliability and the jury's assessment of her. He argues that Ct 5 is consequently unsafe: R v Noyle [2011] EWCA Crim 650.
49. We cannot know the provenance of the founding information which is reflected in these documents nor whether it were accurately recorded in the source material let alone by the compiler of the document. Even assuming it were, unless it is being suggested that August is excluded because of the reference to "holiday period," it does not undermine LL's account.
50. If we looked for support for our conclusion we might find it in Misc doc 207 which consistently with LL's evidence includes:

"Into voluntary care for weekend and then to Enderleigh April '76 to September '76 with three weeks June/July at Foster care."

51. Police Action 150 upon which the Appellant relies reads:

"LL at Enderleigh from 12/4/76 – 12/7/76 (to Foster care) at Enderleigh again 14/9/76 to date NK."

52. However, it is and was agreed that she did not return to but left Enderleigh on 14^th September 1976. One plausible explanation for Action 150 is that the compiling officer misread her departure date as the start date of a second period there and recorded the end date as "NK", presumably "Not Known."
53. If on the other hand LL and Misc Doc 207 are correct and she spent three weeks in foster care, she would have returned to Enderleigh on or about the 2^nd August leaving 7^th, 14^th, 21^st and 28^th available for abuse on a Saturday. Enderleigh logs might have shed light on dates but even so are unlikely to have proved determinative. There would have been any number of unknowns, beginning with authorship. The Appellant's case was not even that he did not work during August still less that he had no opportunity to do what was alleged.
54. For the reasons clear from the route we have set out above, we are not persuaded that the conviction on Count 4 is unsafe.
55. Count 5, said to have taken place after LL had left Enderleigh, is unsurprisingly unspecific. With commendable realism the challenge was advanced as dependent upon the success of that as to Count 4. Consequently the complaint as to Count 5 falls away.

Counts 6 to 11: Indecent Assault on and Attempted Buggery of SG

56. The important distinction between SG and the other complainants is not only that he was the sole male but also that the abuse of which he complained is said to have taken place not at Enderleigh but at Hillcrest.
57. The Appellant conceded a close friendship with SG who had shared a flat with him after discharge from care. SG described their consensual sexual relationship after he had reached the age of consent. Beyond the common factor of alleged sexual misconduct this was in every other respect different from the evidence of the other three complainants.
58. Judge Hopkin could have directed the jury that the counts could be mutually corroborative: DPP v P [1991] 2AC 447. The same would be the case today: R. v Chopra [2007] 1 Cr App R 16. The Appellant however enjoyed the benefit of a generous direction to consider each count and the evidence upon it quite separately. The Judge's directions can only have reinforced the natural separation between Enderleigh counts and Hillcrest counts.
59. Even against that backdrop, all of it advantageous to the Appellant, the background and nature of the allegations by SG required distinct consideration irrespective of any direction. We are not persuaded that the jury's path to verdicts was dependent upon or influenced by evidence supporting verdicts on the balance of the indictment.
60. There is nothing in this final ground.
61. Consequently, for all the reasons given, this appeal is dismissed save to the extent that as conceded we quash the convictions on Counts 2 and 3.