Court of Appeal in Northern Ireland Decisions

Should there be a re-trial?

Causes for concern

In the course of opening the case for the Crown it was stated that the principal witnesses were people who had been "in care" at Macedon, a large private house in an area of Newtownabbey, Co. Antrim, owned by a charitable organisation founded by Dr Barnardo, a nineteenth century philanthropist who set up homes for destitute and disadvantaged children. Barnardos' homes have cared for disadvantaged children since that time.

It was the prosecution case that these witnesses who were children in Macedon in the period between December 1977 and June 1981 were subjected to physical cruelty and sexual perversion by the two appellants. They were referred to as complainants and the first of them was WA whose allegations related to the first twelve counts (or charges) on the indictment against the appellant, Margaret Hewitt.

He was born on 11 April 1967. He and his elder sister, S, and young brother, D, were taken into care in 1973. Their family background had been very disturbed. There were grave allegations of sexual abuse in their family home. In 1976 he went to Macedon with this sister and brother and an account of the evidence that he would give to the jury (which, if true, was very damaging to Margaret Hewitt) was stated in some detail in the opening speech for the Crown. The twelve counts were "sample" counts designed to cover what were alleged to be numerous sexual offences. He was an important witness because he set the scene, so to speak, for those who made similar complaints against this appellant. Others alleged that both appellants conspired to sexually abuse them and other children.

The Crown relied on all as mutually supportive. The opening speech for the Crown commenced on 27 April 2004 and was completed on 28 April. A transcript of the speech can be found starting at p. 83 of the Transcript of Evidence and sending at p. 235 (Binder 1).

The Lord Chief Justice was originally to be the trial judge and heard applications to stay the proceedings for abuse of process brought by both appellants on 10 November 2003. He was told that the appellant, Miss Hewitt, had been interviewed about allegations of ill-treatment made by WA on 4 June 1997 and that no charges resulted from that questioning. He was not given any other information and for reasons which he gave ex tempore and subsequently set out in writing he dismissed both applications. We respectfully agree with his ruling, based on the information with which he was supplied.

At the close of the Crown case significant facts had become established. Mr Gallagher QC for Margaret Hewitt then made a submission to the trial judge that the further hearing of counts 1 to 12 of the indictment based on the allegations of WA should be stayed as an abuse of process. In his ruling at pp. 2627 – 2630 the learned judge stated:

"WA first made the allegations that give rise to these counts in 1997. A statement was taken from him by police on 6 May 1997 and it is that statement which continues to ground the impugned counts. Miss Hewitt was interviewed by police about the allegations contained in that statement on 4 June 1997 when she roundly denied the allegations, describing them in summary as 'nonsense' and 'complete lies'. She stated:

'I'm completely innocent of all that. It is dreadful anybody would dare make those allegations.'

And later:

'He has a great imagination.'

And:

'I'm not guilty'.

The papers were referred to the Department of the Director of Public Prosecutions which directed that there should be no prosecution and that decision was communicated to Miss Hewitt in October 1997. It was not until June 2000 when Miss Hewitt was re-arrested and re-interviewed in relation to exactly the same allegations in [respect of] which a direction not to prosecute had earlier been made and communicated to her. When interviewed again in relation to these same allegations, Miss Hewitt repeated her denials with words such as:

'It's absolute scum', 'good gracious' and 'dreadful, there's not a shred of truth in that.'

Against that factual background Mr Gallagher submits that nothing altered between 1997 when it was decided not to prosecute, and Miss Hewitt was so informed, and 2000 when it was decided to proceed. Mr Simpson QC [for the Crown] has not pointed to any changes of evidence or circumstances in the intervening period that explain or justify the reversal of the decision not to prosecute.

The Code for Crown Prosecutors in England and Wales at para. 10.1 provides:

'People should be able to rely on decisions taken by the Crown Prosecution Service. Normally if the CPS tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped , that is the end of the matter. And the case will not start again.'

While Mr Simpson QC informed me that there is at present no equivalent code for Northern Ireland, he understands that such a code is currently being prepared and it is anticipated that a similar provision will be incorporated. In any event, he fairly conceded that there exists in Northern Ireland what he described as an "unwritten guideline" to th4e same effect…

I have come to the conclusion that the decision to review this matter after a lapse of years following the decision that the prosecution would not proceed was unfair and that to permit the prosecution to proceed on counts 1 to 12 would be an abuse of process."

He rejected other submissions of counsel for the appellants. This ruling was given in the absence of the jury. We are of the opinion that this ruling was entirely justified.

In the course of further argument he said:

"There's no question of sweeping away the evidence of WA. He has given his evidence and whether the jury conclude that it is helpful to the defence or helpful to the prosecution or a mixture of both, will be for them in due course. All I am doing is staying the further conduct of the matters so far as counts one to twelve are concerned."

The jury was re-called and told the counts 1 to 12 were to be stayed. The issue sheet shows that these counts were "stayed by direction of the Judge."

The learned judge dealt with the evidence of WA in his summing-up at pp. 3090 – 3093. We do not consider it necessary to refer to it in view of what follows.

He was inadvertently misled as was the Lord Chief Justice about the application before the Lord Chief Justice for a stay on the grounds of abuse of process. We make no criticism of counsel whatsoever but the Department of the Director for Public Prosecutions should have informed Crown counsel of the decision not to prosecute Miss Hewitt in 1997. He would have drawn that to the attention of the Lord Chief Justice. We have no reason to suppose that the Lord Chief Justice would have differed in his ruling from the learned trial judge. The first twelve counts on the indictment would have been stayed by him. WA would not have given evidence as a complainant. It seems to us idle to speculate whether he might have given evidence on the ground that it was "similar fact" evidence. The trial would not have taken the course that it did.

Although on the face of the transcript he appears to have been severely damaged in cross-examination, it is impossible for us to say that his evidence was not taken into account by the jury in their overall assessment of the guilt of Miss Hewitt and, although he did not give direct evidence against the other appellant, Robert Anderson, other witnesses linked Mr Anderson with Miss Hewitt so that the decision to find her guilty of serious sexual offences may well have had an adverse effect on Anderson. It is relevant to bear in mind that he was the first person to make allegations against either of the appellants and was at the time facing a charge of raping his sister's daughter. In the course of cross-examination it was suggested to him that his motive for making the allegations was to evoke sympathy for himself on the grounds that he had a very troubled upbringing.

D, the young brother of WA, who also went to Macedon in `976 followed his older brother into the witness-box. He was born on 6 October 1968. He made allegations against Miss Hewitt which were similar to those of his older brother.

D gave evidence against both appellants, indicating that Mr Anderson and Miss Hewitt conspired to commit indecent acts. In cross-examination he made allegations against his brother but he also gave evidence arguably supportive of his brother's allegations in evidence against a police officer. He said that he had been a friend of his brother until his brother raped his sister's daughter. He and his brother both got compensation from Barnardo's before the trial of the appellants. He made his first allegations in June 1998. His brother made allegations in May 1997. We find it impossible to say that the jury did not seek support for his allegations from other sources in respect of counts 19 – 27 against Miss Hewitt and we certainly cannot rule out the evidence of WA as providing support for him, although we have taken into account the direction given to the jury about the evidence of WA by the learned trial judge. We made the same comment about the convictions of Margaret Hewitt based on the evidence of AD. If the proceedings based on the allegations of WA had been stayed before the trial began, we cannot tell what effect this would have had on the outcome of the trial.

But a much more serious blemish on the fairness of the trial arose as a result of events which occurred after the trial and we deal with this in the immediately following passage of this judgment.

B. R

R gave evidence immediately after WA and D and AD between 4 May and 6 May. He was born on 31 December 1967 and went to Macedon with his sister C in 1975. He left Macedon to be fostered at the age of 13 but returned from his foster placement to Sharonmore, a Barnardo's home to which children were sent from Macedon when it ceased to be available as a children's' home. He made allegations against both appellants. He was subject to severe cross-examination but the jury convicted Miss Hewitt on counts 31 to 43, based on his evidence. They acquitted Anderson on two charges based on R's evidence, for which there was no supporting evidence from others.

At the time of the trial R was awaiting sentence of a number of serious offences and was subsequently sent to prison. Whilst in prison investigations were carried out by the police about offences alleged to have been committed by him against the children of his sister, C, another complainant. From there he wrote a serious of letters to a social worker. In one of them he made a lengthy retraction of his evidence at the trial. He gave evidence before this court. In the course of cross-examination he was asked about these letters. He agreed that some of the letters would have been honest and some of them would have been dishonest. He was asked whether he had any difficulty in moving from honesty to dishonesty and replied "No, none whatsoever." He could switch to complete dishonestly without any difficulty, he agreed. He said: "When I am telling the truth I know I am telling the truth. When I am telling lies I know I am telling lies."

He was asked questions about the letter retracting his evidence. He said that it was true and that he and others who had given evidence at the trial had lied. The others included EJ, SK, DA, TM, AD and WA. He and the other six were seven out of the nine complainants who gave evidence at the trial. He was not asked about an eight who was not a resident at Barnardo's but a daughter of a member of staff. His sister C was the ninth. He agreed with counsel that when he gave evidence against Margaret Hewitt he was trying to get his own back because she had scared him very badly when he was a child. A number of the others whom he named were not frightened of her at all. He agreed with counsel that it would not surprise him if Mr Anderson was innocent as well. He had written to him apologising for the allegations he had made against him. In answer to counsel he agreed that he had told his sister what to say in court against Miss Hewitt and Mr Anderson. He later amended this concession.

He was then referred to a statement which he had made to a police officer called Detective Sergeant Brown. In that statement he said that the evidence he had given in court was true. In answer to the court he said that he did not know whether he had told lies about Miss Hewitt for revenge upon her. He also said that he did not know whether Miss Hewitt was innocent. Then he said that the letter of retraction written to the social worker was written for attention in order to get someone to come to the prison and see him and that the truth was what he had said during the trial. There is a transcript available of the entirety of his evidence.

After consultation with the Director of Public Prosecutions Mr Simpson QC indicated that the Crown did not seek to stand over any conviction based on the evidence of R at the trial. This was a proper and responsible attitude for the Crown to adopt. It led on to concessions about the reliability of convictions based partly on C's evidence and partly on his own.

So far as counts against Margaret Hewitt are concerned where they involve other complainants than R we cannot be sure that the jury did not rely on R's evidence as supporting their evidence. We are satisfied that the jury looked for mutual support from witnesses such as R when they were considering the other charges. They were invited to do so by the Crown at the trial, quite properly. Now R's evidence is accepted as not credible.

There were seventeen counts on which George Anderson was convicted by the jury. WA, as we have said, did not give evidence directly implicating him in sexual impropriety. But the case made by the Crown involved the contention that Miss Hewitt and Mr Anderson worked together and anything supporting her guilt may have helped to contaminate him by association. Moreover R made positive allegations against him which the jury may have thought were probably true but lacked support ad thus found him Not Guilty. None of the counts against him can safely stand in the circumstances.

C. Verdicts of Not Guilty

A number of verdicts of Not Guilty were found by the jury in respect of counts of rape and other sexual offences alleged by EJ and SK. Yet they convicted him of the rape of both girls at a placed called Ballylaigh which was a holiday place for children from Barnardos. We have found it difficult to understand why the jury did so. But we wish to hear further submissions as to whether convictions on these charges would be safe, if there was a re-trial on both or either of them and Mr Anderson was convicted.

D. Compensation and the conduct of the investigation

Although we did not mention these as factors in our ex tempore judgment which we have reduced to writing and annexed to this judgment, we are obliged to say that we have been concerned about them. This is not intended to reflect in any way on the probity and dedicated work shown by Detective Sergeant Boyce and by the social workers and staff of Barnardos' homes who gave evidence at the trial or before this court.

But we consider that the submissions made by Mr Creaney QC, supported by Mr Gallagher QC and set out in the written argument put in on behalf of Mr Anderson under the heading: "The Conduct of the Investigation" have considerable weight and will be borne in mind when we consider the issue of a re-trial.