Case No: 2001/00804/02161/05572/B4

Neutral Citation Number:  [2003] EWCA Crim 3435
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT 
(HHJ SIMPSON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 28 November 2003

Before :

LORD JUSTICE POTTER
MR JUSTICE CRESSWELL
and 
MR JUSTICE JACK
- - - - - - - - - - - - - - - - - - - - -
Between :

	R	Respondent	
	- and -		
	PAUL FROST-SMITH
ERNEST BRYAN BOND
BARRY JOHN COOK 	Appellants	

- - - - - - - - - - - - - - - - - - - - -

Mr G Bebb QC and Mr M Selfe for the First Appellant
Mr P T Hughes QC and Mr M Bailey for the Second Appellant
Mr P T Hughes QC and Mr J O’Higgins for the Third Appellant
Miss M McGowan QC and Miss M Dineen for the Crown

Hearing date : 30.10.2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT 

Lord Justice Potter: 
1.	In these appeals, Ernest Bryan Bond appeals against his conviction on 10 July 1996 in the Crown Court at Maidstone before His Honour Judge Simpson and a jury at the end of a trial in which he was jointly indicted with Paul Frost-Smith and Barry John Cook, who also appeal against their conviction.  There were two further co-defendants namely Richard Allen McGuire, who was also convicted but does not appeal, and Jason Bond, the son of Ernest Bond who was acquitted.  The various counts of the indictment concerned a quite appalling history of sexual abuse of two young girls, J and C who were the natural children of McGuire but who, during the period of the abuse, were living with their mother Jane and her new husband Frost-Smith.  
2.	The appeal of Bond follows a referral by the Criminal Cases Review Commission (“the Commission”).  The appeals of Frost-Smith and Cook are brought pursuant to the leave of the full court given on 18 February 2000, on the basis that the reasons for reference by the Commission in respect of Bond were reasons which went to the credibility of J as the principal complainant in respect of all the defendants.
3.	Following the conviction of the appellants in 1996, Bond had made application out of time for leave to appeal against conviction, but his application was refused by the single judge and thereafter abandoned.  McGuire, Frost-Smith and Cook did not apply for leave to appeal.
4.	Bond later complained to the Kent Police about their conduct in his case and an internal inquiry was held, in the course of which J was interviewed again and she made numerous allegations of sexual abuse against a large number of other men, including Frost-Smith, but no further proceedings were taken.  On 25 September 1997 Bond applied to the Commission to review his conviction and on 7 February 2001 the Commission referred his conviction to the Court of Appeal.  In their Statement of Reasons the Commission stated, inter alia:
“There was a real possibility that the Court would find that [J]’s later allegations would have such an impact on her credibility in respect of the earlier allegations so as to cast doubt on the safety of the conviction.  It could be argued that the number of alleged offenders was so high that it was inherently improbable that all the allegations were true …  She may have included some innocent men whom she did not like, including Bond …”
5.	Following that referral, the Commission informed the other defendants of their decision.  Frost-Smith and Cook then applied for leave to appeal.  However McGuire did not do so.  
6.	It should be stated at once that there is no doubt, and at trial it was not challenged, that when the complaints of abuse first surfaced and J and C were medically examined in May 1994, J was found to have been subjected to prolonged vaginal and anal interference consistent with penile penetration and, so far as C was concerned, the state of her vagina was diagnostic of chronic abuse most likely by penile penetration and there was evidence of tears which could have been caused by an object.  At trial, as the judge made clear to the jury, the only question was whether or not any of the individual defendants had been guilty of such abuse or other sexual abuse as to which J and C testified.  
7.	J was born on 27 November 1982 and C on 21 April 1985.  They were respectively 13 and 11 at the date of the trial in July 1996.  Their father McGuire separated from their mother in 1987, but McGuire continued to have contact with the children, largely at his new home, after the mother started living with Frost-Smith in 1988 and eventually married him.  The Frost-Smiths in turn had three children born in May 1989, October 1990 and January 1992 respectively.  The Frost-Smith family lived first in Huntley Avenue, Northfleet until about April 1992, when they moved to Silver Road, Gravesend.  There was a further move to 79 Palmer Avenue, Gravesend in June 1993.  On 1 April 1994 J and C moved to live with their half-sister Sylvia Boyle and her family.  On 6 May 1994, J gave an account to Mrs Boyle of sexual abuse over the previous years which led to a video interview with J on 10 May 1994.  In that interview, J made a number of allegations against her father, McGuire, against Frost-Smith and against Bond, who was the Frost-Smith’s neighbour at Huntley Avenue.
8.	So far as McGuire was concerned, she stated that he had abused her since she was aged 5.  Her complaints against him were made the subject of Counts 5, 6 and 7 in the indictment.  Each was a specimen charge representing conduct which she said occurred on a number of occasions between 27 November 1987 and 6 May 1994.  Count 5 charged rape, Count 6 buggery and Count 7 indecent assault.  The language in which she described the conduct complained of referred to her father’s penis either as a “thing” or “ sausage”, and to her own vagina as “my middle” or on one occasion “my Mary”.  In respect of the rape charges, she referred to McGuire as  playing with her “Mary” inside and out and that his “sausage” was “out and then in and it really hurt”.  As far as buggery was concerned, she went on to say that he did the same to her bottom as he had done to her front.
9.	So far as Frost-Smith was concerned, she said that when she was 6 or 7 years’ old and living in Huntley Avenue, Frost-Smith also lived there.  He chased her upstairs, took her T-shirt off and put his legs between hers.  He undid his trousers and kept playing about with his “sausage” for sometime when he was on the bed.  He also used to touch her breasts.  He did these things all the time when her mother went out.  She had complained to her mother that he had touched her legs but her mother had just laughed and when she complained on other occasions her mother called her a liar and a bitch and once locked her in a bedroom with Frost-Smith.  However she had climbed out of the window.  
10.	When further questioned in the interview, she said he threw her on the bed, took her T-shirt and trousers off and touched her breasts.  She said the first time he had done anything to her he had smiled and said “Come here”.  His trousers were undone.  He played with his penis and held her on the bed, kneeling on her as she lay on her back.  He did not do anything else at that time.  She told him to get off and let go of her, but he refused.  She said he used to hit her and touched her “Mary” when McGuire was there.  When they moved to Silver Road “worse came to worse”.  
11.	Counts 8, 9 and 10 related to specific incidents involving Frost-Smith.  
12.	J said that Frost-Smith was playing strip poker upstairs at Silver Road.  She took him some tea and he locked the door.  She refused to play strip poker so he took her T-shirt off , touching her legs and her top.  He removed her trousers.  He took his own trousers down and played with his “thing”.  He played with her body which he rubbed up and down touching her “Mary” with his “sausage”.  It felt rough and she felt sick.  He moved his “sausage” but she did not know if it was inside or outside her.  (Count 9).
13.	She also stated that he walked up beside her with his “middle against my bum”.  He touched her bottom with his penis and his hand.  “It did not feel nice.  It was a bad thing and he should not have done it.”  He lay on top of her and put his penis in her bottom.  He did not stay still.  He threatened to kill her if she told anybody.  (Count 8).
14.	She said that, when she was about 11, Frost-Smith took her clothes off in the bedroom.  He made her play with his penis and she demonstrated what seemed to be masturbation.  
15.	She stated that Frost-Smith last touched her when she was no longer living with him and her mother, but was with Rose and Kevin her foster carers.  She had not told Rose and Kevin why she did not want to visit the Frost-Smiths.  
16.	J also said she had seen Frost-Smith make C hold his penis.
17.	So far as Bond was concerned, she said that he was a friend of her mother’s who lived in Silver Road.  Her mother had made her kiss him.  She said “He did loads of things to me”.  
18.	She said that once, in the kitchen, Bond had pulled his trousers down, pulled her against him and then sat on her on the floor.  He took off her T-shirt and played with her body, licking it and sucking her boobs.  He also put his “sausage” between her breasts and rubbed it up and down there.  She said that he behaved like this when she was aged 11 at Silver Road and aged 10 at Palmer Avenue.   (This plainly involved some confusion either as to dates or the relevant home).  He had also laid on top of her and put his “sausage” on her bum and moved it up and down.  (Count 12).  
19.	At Silver Road he had also pushed her head onto his “sausage” which he had pushed into her mouth.  She did not like it because it made her choke and feel sick.  That had happened on many occasions.  It had even continued after she had gone to live with Rose and Kevin.  She had been too scared to complain to them.  However, eventually she told Sylvia.  (Count 13).
20.	At the end of her interview, J was asked whether anybody else had abused her apart from Frost-Smith, Bond, her father and a baby-sitter whom she had mentioned.  She said no and stated that she was telling the truth.
21.	C took part in a video interview two weeks later on 1 June 1994.  She said that, at their various homes, Frost-Smith sometimes had no clothes on and they played strip poker.  He touched her “Mary” with something which stung her.  He did not touch her vagina with his own body.  However she said that on various occasions she had been touched with the object which stung her which was hard and brown and hurt her vagina both inside and out.  She said that no-one else was present.  Frost-Smith told her not to tell anyone what had happened.  He had removed her clothes before doing it.  She did not wish to tell anyone.  She had not seen him do anything to anyone else.  
22.	In July 1995, an incident occurred when J had an interchange with Cook in a shop, as a result of which she made a complaint and was interviewed again on 4 August 1995.  She said that Cook had tapped her on the shoulder in the shop and when she turned round had asked if she remembered him.  She said “How can I possibly forget you?”.  He had kept poking her in the shop and winding her up with various remarks, in particular he said “We are all after you and we are looking for you”.  She said that it had scared her.  He had said in front of a number of people “If we see you again, you won’t be standing …  You won’t be dressed”.  He had then followed her from the shop and said “I’m going to get you sometime”.
23.	In her interview she said that Cook had done rude things to her.  She went on to say that Cook, Frost-Smith, her father, a man called “Andy” and others had abused her when her mother was out of the house.  They had taken her clothes off and put her on the floor and would not leave her alone.  When her mother had got back they all started arguing and putting their clothes back on, accusing each other of doing this and that and then, as soon has her mother had walked out again, they had all stopped.  
24.	They used to be there when she went to McGuire’s house.  They would sometimes be drunk, pee on the floor and remove their clothes.  McGuire’s friends also joined in and took her clothes off.  Cook would not let her alone.  She screamed and they had blindfolded her.  She was also gagged and it hurt her.  She was then taken through the events concerned which, formed the subject matter of Counts 1-4.
25.	Count 1: The first time it happened she was 10 or 11 years old.  A rude video of naked people was on the television and the men present copied it.  They took their clothes off and removed her clothes as well as those of P, her younger half-sister.  Cook and McGuire got them on the floor and McGuire put his penis in her vagina, followed by Cook and Frost-Smith.  It was horrible and she screamed.  Frost-Smith threatened to slit her throat with a knife so she had succumbed.  They all laughed and Cook and McGuire then urinated over her face.  McGuire hit her and threatened to kill her if she told anyone and she remained silent.  
26.	Count 2: She said that after the events in Count 1 had taken place, Bond and his son Jason were invited into the house by McGuire.  They too removed their clothes and joined in.  Frost-Smith and Cook were still holding her down on the floor on her back, they then made her turn over.  Cook put another pornographic video on the television.  All those present then put their tongues in her vagina by taking it in turns.  It all stopped when her mother was seen to approach the house.  She did not say anything because they had intimidated her.
27.	Count 3:  About a week later at a weekend McGuire took her to his house where he invited Cook and “Andy” around.  They got drunk, took off their clothes and behaved towards her as before.  She was tied to the bed and blindfolded.  First Andy, then Cook and finally McGuire raped her in turn.  They also sucked her “middle” and playing with her “tops”.  They also urinated on her and made her drink something which was disgusting.  
28.	Count 4:  On another occasion at Christmas when she was about 10, she was at Cook’s house when Cook, Frost-Smith, McGuire and Andy were present.  They were having a party and took her clothes off again.  It had happened on numerous occasions.  On the occasion in Count 4, at Christmas, there had been up to 30 men in the house.  She did not know their names.  McGuire lay on top of her and made her masturbate him.  The others watched and laughed.  She was made to do the same to Frost-Smith and Cook.  They also made her take their penises in her mouth and urinated in her mouth.  It lasted all night.  She felt scared and upset.  She was upset and cried and when she returned to her mother she complained, but her mother would not listen.  
29.	She said that during incidents of this kind on at least one occasion C, her sister, was there and she had also been similarly abused.  
30.	She was cross-examined by all the defendants on the basis that there was no dispute that she had been abused but it was put to her on behalf of each defendant that he had not been involved.  She stuck to her story. 
31.	So far as Frost-Smith was concerned, she was not cross-examined at length.  However, she said that Frost-Smith owned a collection of pornographic videos which he used to show to her.  She said that some showed the kind of things which had happened to her but she denied inventing what she had said happened to her as a result of seeing such things on the video.  She was challenged on the basis that she had not told her mother about these things and was pressed as to why.  She insisted that she had told her mother more than once about the things which happened to her, but she said “she was not interested”.  “She did not believe me.  She knew what was going on and she did nothing about it.  If she believed me, she would have done something about it.”
32.	So far as Bond was concerned, she said she had got to know him and his wife well at Silver Road.  They were next-door neighbours.  At that time the Social Services were visiting her home frequently, two or three times a week in order to see her parents.  She and C visited next door frequently, Mrs Bond being very kind to her.  She said that Bond had been very kind to her but, “very bad to me as well”.  She said she had not seen a lot of the Bonds after leaving Silver Road but she still saw him when she and C went to stay with the Frost-Smiths.  She said that Bond and McGuire were good friends, despite having had a row when the police were called on one occasion.  She insisted that Bryan Bond had abused her as she described, on one occasion with his son Jason present.
33.	So far as Cook was concerned, she said she had told the truth at her first interview (in which Cook had not been mentioned).  Also at the second interview when “Barry Cook was still out on the street”.  She said that the occasion found in Counts 1 and 2 was the worst incident.  She had not told her mother about it because her mother would not believe her and she never spoke of it in the first interview because she was “too scared of people”.  She said “It is not easy telling people, you know”.  Asked whether there was any reason why she had not said that Barry Cook had done things to her when she was interviewed on the second occasion she gave no answer, but asked whether there was any word about Cook doing things to her she said that he did but that “I did not have the guts to say so ….  If you were me, and Cook had done things to you, would you own up?  Children at school took the mickey out of me.  It is hard to say what you know.  It is hard for me to sit here and speak to you.”  She said it had been harder to speak of Cook doing things to her than of her father or Frost-Smith.  She said that Cook had been at her father’s house on most occasions when she was there and that Bryan Bond was also there on occasions.  Challenged that Bond and Cook had not known each other until being charged together at trial, she insisted that they did.  She insisted that she had told the truth about Cook.  
34.	The medical evidence which has already been briefly described was unchallenged at trial.  Sylvia Boyle, J’s and C’s half-sister, who now looked after the girls and had become their foster parent in April 1994, gave evidence.  She described how J had complained to her in May 1994 and how the matter was then dealt with.  Joan Trengrove, a social worker who was involved with J, gave evidence about the family, their poor conditions, their position with the social services and the successive interviews.
35.	Each defendant gave evidence denying that he had been responsible for any of the sexual offences alleged by J and C.  Frost-Smith said that he did not get on well with McGuire and sometimes told him he could not take the girls there.  At Silver Road he was out working at weekends.  The Bonds were their neighbours there.  They all got on well and the girls visited their house.  However he did not suspect anything improper.  He described visits by social workers.  He had pornographic films at Silver Road which he sold at local markets and boot fairs.  He said that he kept them on a high shelf and told the girls not to touch them.  He had not thought they did so.  He denied that he ever played them so they could see them.  He said McGuire had been to the house to buy some and sampled them when the girls were not present.  He said he never showed them to neighbours.  He suggested that McGuire might have sexually interfered with the girls although he did not know.  McGuire had the opportunity and was very possessive.  
36.	Frost-Smith denied he had indecently touched the children.  He admitted he had been naked in the house but said it was not in their sight and denied playing strip poker with them.  He denied all the allegations, saying he was ashamed and disgusted when he heard about the medical examination.  He did not know who had abused the children; McGuire may have prompted them to make the allegations.  Maguire was obsessive and possessive, particularly with J whom he (Frost-Smith) had taken over to McGuire on her own on many occasions.  He said McGuire and Bond bought pornographic videos off him but Cook did not.  He denied showing videos to buyers in the house or to the girls and he did not know how the girls knew what was on the films.  He said he got on well with Bond and trusted him but that Bond had visited the house only twice.  He did not know Bond was a friend of McGuire.  He said he did not have many opportunities to abuse J and C and knew nothing about any vibrator or “stingy thing” to which C had referred as an object of abuse.  
37.	A witness was called on behalf of Frost-Smith, his younger sister, Sylvia Wright.  She was married with children and had lived in Huntley Avenue for 16 years.  McGuire used to visit but her brother had felt threatened by him.  She said J and C got on well with her brother.  She stated that the house in Silver Road was always filthy and sometimes the children were too, but she never had concerns about anything being wrong such as abuse.  She said she had never seen a video on, nor did she know about her brother’s pornographic collection.  
38.	Bond said he had lived in Silver Road for about 20 years and was next-door neighbour to the Frost-Smiths.  He got on well with J and C for whom he felt sorry and to whom his home was open.  He said he was never alone with them.  He had given the girls ‘childrens’ kisses’ many times but J’s mother had never made her kiss him.  But there was definitely no sexual kissing.  He did not know much about McGuire though once they had a row about how he treated J.  He was amazed about the allegation involving him and Jason (Count 2) which he denied had ever happened.  He did not know Cook and had not met him before court.  He had seen blue films being played at Silver Road with the children present.  He said he had watched such films but not in front of his wife or in anyone else’s home.  He denied ever interfering with J.  
39.	Cook said he had met McGuire in about 1988.  They were remotely related by marriage but were only distant acquaintances.  He had only met Frost-Smith once when he visited the house in Silver Road on one occasion.  He did not know the Bonds until he met them at court.  He had only met the man “Andy” (Andy Stapley) after the arrest of McGuire.  He said he was unable to work because of back problems.  He had met J in early 1992 when McGuire took her with C to see Cook’s girlfriend with whom he lived from 1988.  McGuire was very protective of J.  He denied that anything improper had ever occurred between him and J and denied there had ever been any Christmas party of the type described the subject of Count 4.  
40.	Cook gave his version of the shop incident with J, but denied that he threatened her in any way.  He said he had no reason to and knew nothing of her allegations against others.  He had left the shop before J and had not followed her.  He did not know why she had made the allegations against him.  He had never done anything of a sexual nature against her or anything which she could have misinterpreted.  He identified the only four occasions on which he had met her, and disputed that McGuire was a friend.  He said he had obtained videos from Frost-Smith but denied he ever saw a video when J was present.  He said that Frost-Smith had once showed him a disgusting one which showed a man urinating over a woman, but denied that he had done that to J.  He said that McGuire had told him Frost-Smith let the girls watch such videos at Silver Road.  
41.	McGuire gave evidence which it is unnecessary to summarise save to say that he denied that Frost-Smith was his friend or that he socialised with him.  He said that Barry Cook was married to the sister of his brother’s wife and that he did not see a lot of him.  He also said he saw very little of Bond.  He denied all the matters alleged against him and said he was never alone with J or C.  When he was at the Frost-Smith’s the mother was always there and, when the girls came to stay with him, J “mostly came with her sister”.  He knew Bond but denied that he had ever taken him into the house for sexual interference with J and said he would never let anyone touch his daughters.  He said that Cook had never been left alone with the girls.  He said he had never seen anything to account for the rape and buggery of J which the medical evidence appeared to confirm.  He said he did not prefer J; he treated J and C the same.  He would only take J on her own when C was ill.  He said that his former wife was a good mother and in his opinion, Frost-Smith had done his best for the girls also.  He used to buy pornographic films off Frost-Smith who used to play the films in his house but, when the children had come into the room, he had told Frost-Smith to take such films off.  He said he had told Frost-Smith never to put such films on in front of his girls and he had agreed.  However, it had happened several times.  He said he could not think of anything he had done to upset J except to say there would be no more money for his wife for the children when they were in foster care.  He said he had told J and C that and J had said that, if he was not going to do so, “I will say something about you”.  He agreed he had never so stated in his lengthy interview with the police.  
42.	Jason Bond also gave evidence.  He was young man of very low intelligence who was only alleged to have been involved in one incident, licking J’s vagina.  He denied doing so.  In his summing up the judge directed the jury, telling them that if, despite his evidence, they were sure he had participated with other defendants in such an activity, they should in addition consider whether he did so as a willing participant with the others or “simply as a person present, low in intelligence, acting as he did, just in effect copying what other adult persons were doing without really thinking about it at all insofar as he was able to think at all”.  If the jury thought that that was or may have been the position then they should acquit Jason Bond, whatever decision they reached on Count 2 in relation to the other defendants.  Jason Bond was acquitted.  
43.	J’s mother was called neither by the prosecution nor the defence.  We have been told by counsel for the appellants that she was in bad nervous health at the time.
The judge’s summing-up
44.	The judge gave a full and fair summing-up which is the subject of no criticism whatsoever on this appeal.  The issues were fully articulated for the jury.  The judge suggested that, in the light of the medical evidence and the absence of any challenge to it or the fact that abuse had occurred, the main issue was not whether the abuse had happened but whether the individual defendants were responsible.  In that context he directed the jury to consider whether J and C had for some reason of their own falsely accused the defendants as the persons responsible rather than naming their actual abusers.  He dealt with the question of their delay in complaining by reminding the jury of the explanation which they, and in particular J, gave, namely the fact that they were too scared to speak out earlier and their mother was unwilling to listen or believe their story.  The jury duly convicted all the defendants save Jason Bond, whose role was a minor one and who had received the benefit of a highly favourable summing-up (see paragraph 42 above).  
45.	It is important to observe that, at the time of trial, the defence had limited material to challenge those explanations.  In particular there was little inconsistency in the successive accounts of J, albeit her allegations had developed as the interviews progressed.  There was inconsistency between J and C to the extent that J asserted that C had been abused to a far greater extent than C herself stated.  C only spoke to one incident.  However, the medical evidence made clear that C had persistently been abused anally and in her vagina in a manner unaccounted for by her own evidence.  J had stated in one of her interviews that C would be reticent and would not make complaint.  There was certainly nothing to support the contention that the complainants, and in particular J as the principal witness, were capable of confabulating or making false complaints.
The post-trial interview
46.	In a lengthy post-trial interview given on 26 July 1996, some 16 days after the conviction of the appellants, J made substantial further allegations of a broadly similar nature against McGuire and Frost-Smith but, more significantly, she also made allegations against her mother as a participant and against many other persons, including two families of neighbours and other men in different houses, one being in London when she stayed with relations of Frost-Smith.  There were some 18 persons in all whom she involved.  She did not however make any further allegations against Bond or Cook.
47.	The person most prominently identified by way of fresh allegation was a neighbour of the Frost-Smiths called “Paul”, identified by police as Paul Taylor who used to live at 52 Huntley Avenue.  J stated that, when she was 5 Paul had raped her in front of her mother with Frost-Smith and C also present.  He had raped her anally.  She was then left alone and went upstairs but they returned drunk and abused her again, both Paul and Frost-Smith raping her vaginally, this time while her mother was in the house downstairs.  She said that it happened with Paul on other occasions in his house in Huntley Avenue when Frost-Smith was looking after her and her mother was out.  Frost-Smith and Paul were both postmen.  Both had sex with her and made her hold their penises and then gave her a bath.  This happened three other times with Paul at Huntley Avenue and on the beach at Southend.  Paul and Frost-Smith had raped C and really hurt her.  This happened about four times.  On one occasion C was bleeding and her mother took her to the doctor.  C was aged about 3 at the time.  
48.	Paul Taylor was interviewed by the police.  He agreed he used to live at Huntley Avenue with his partner and children and had done casual gardening work with Frost-Smith but said he had never worked as a postman.  He denied the allegations and said he had never been to Southend with Frost-Smith or members of his family.  J’s mother told the police she had been to Southend with Frost-Smith but never with Paul Taylor.  She also denied that there had ever been an occasion when C had been bleeding from the bottom and taken for medical treatment.  
49.	J said that loads of people did things to her at Huntley Avenue.  In particular some neighbours called Barnes, a father and two sons, did things to her when she was about 7.  She said she was frequently abused in the presence of her mother and McGuire, sometimes with Frost-Smith present.  In the Barnes’ home, McGuire, Barnes and his two sons had taken it in turns to rape and bugger her.  She described the sons as schoolchildren.  
50.	She also named neighbours called the “Rays or Mays”.  Frost-Smith had abused their daughter and the father of that family abused her when she was about 10 or 11.  It had happened in his back garden.  Her mother had known what was going on as she saw it happen on one occasion sitting on top of a shed in the garden.  It also happened in her home when her mother was present and the father had vaginal intercourse with her.  Interviewed by the police, J’s mother told them that Ray May was a neighbour who had threatened her and she would not go near him.  She denied the allegations.
51.	J also said that some neighbours, the Raymonds, father and son had abused her when she was 11.  The son was 14 and at Highfield School.  Her mother had watched both men having sex with her.  She said it happened quite often and McGuire was present on some occasions.  The father also buggered her, the son laughing while he did it.
52.	She also referred to an unidentified man living in Hythe who was a friend of McGuire and whose name she had forgotten.  He had had sex with her, both front and back.  Her mother and C were also present, but C was not abused.
53.	She also named some neighbours the Wayne family, father and son, whom both McGuire and Frost-Smith knew.  The Waynes had both raped and buggered her in her home and their own.  She said she hated the Waynes.  Her mother knew what was going on.  She had been abused by the Waynes and various of her mates.  She calculated that some 18 men had been involved including McGuire, Frost-Smith, Paul Taylor, Alan his son, Andy, a man from Hythe, two of the Waynes, and Ray, plus others whom she could not precisely remember.  
54.	She said that Andy had had sex with her when McGuire, Frost-Smith, Paul and her mother were present watching.  C was by the door but nothing happened to her.  Andy had raped her anally as well as vaginally while the others watched.  She said this happened several times.  At McGuire’s flat, with Frost-Smith and Andy also present, the three would put her on a rubber mat and take it in turns to have sex and would make her sit on and rub their private parts.  
55.	The police identified Andy as Andy Stapely who was interviewed and denied the allegations.  He said he had been friendly with McGuire and on one occasion had accompanied him when he had gone to Silver Road to complain to Frost-Smith about the latter having hit the children.  Frost-Smith had been in the living room watching pornographic material with children there at the same time.  
56.	Finally, J said that, when she was about 8, she had stayed with relations of Frost-Smith in London.  The mother, called Christina, had two sons older than J.  The sons had sex with her.  Nothing had happened to C.  When J had stayed in London she had gone into other flats in the same block and been abused by four other men there.  Christina’s brothers had also done things to her once in Christina’s presence.
57.	J’s mother confirmed in interview that they had been put up in a flat in London by Christina for two weeks when they were homeless.  Christina was a relation of Frost-Smith’s.  However, the only children in the household were another baby and a handicapped child suffering from spina bifida.  
58.	When J was asked why she was now making allegations which she had never told to the police or social workers before, she said “Don’t know … I honestly don’t know … I did not tell no one … because I thought they are still winning and I’d still lose, that’s why I didn’t want …”  Later, she said “I just had to tell you because that Paul who I told you about happens to be going out with Sue and my sister Kelly goes over to her house and she’s going round with them, and if Paul touches Kelly then it will be my fault for not saying anything”.
59.	Following the post-trial interview, the police asked for the advice of the Crown Prosecution Service.  Their advice was that there should be no further prosecutions because the lateness of the allegations and their content and timing threw doubt upon the credibility of J to such an extent that there was no realistic possibility of conviction.  Further, in respect of three out of the four persons contemplated as defendants, the defence might well succeed in persuading the court that prosecution was an abuse of process in the light of the earlier trial.
60.	Considering, in particular, the case of Bond which they were investigating, the Commission concluded:
“On the one hand, the new information reveals that [J’s] allegations were not that Mr Bond was one of five offenders but one of around 20.  It can be argued that the number of alleged offenders is so high that it is inherently improbable that all of the allegations are true.  Although J clearly has been abused, it cannot be said with certainty that Mr Bond was among the abusers.  Many of the people against whom she made allegations were, like Mr Bond, from the same street.  It is not possible to exclude the possibility that J was bringing in at least some innocent men whom she did not like, including, perhaps Mr Bond.  The fact that she was alleging that Mr Bond was one of as many as 20 abusers, as opposed to one of 5, calls her credibility into account in a way that was not open to the defence at trial, because the allegations had not then been made.”
61.	The Commission considered that, in these circumstances, there was a real possibility that the conviction would not be upheld if the reference were made.
62.	All three appellants have taken up and developed the theme of the Commission’s conclusions.  They argue and we accept, that by the end of her pre-trial interviews, J had stated that she had told all she knew by way of complaint.  The post-trial interview goes directly to the question of her credibility for three particular reasons.  First, it provided copious material which appeared to be inconsistent with the previous allegations.  Second, by reason of the width of the allegations and the number of persons and incidents now alleged to have been involved, it raised the possibility that J was, and had been, confabulating in relation to various of the incidents described or the identity of those involved.  Third, it transformed the role of her mother, hitherto simply said to have been someone who did not credit her complaints, into somebody who was actively involved in what went on.  If J’s accusations against others in her post-trial interview had come to light before the trial, the Crown might have prosecuted and/or joined others in the indictment who were clearly identified as alleged abusers, in which case the defence would have had greater opportunity to suggest that J had made false accusations.  Alternatively, in the event that the Crown elected not to prosecute those others named, that fact would have been highly material to the question of whether J’s accusations were reliable in the case of those prosecuted.  
63.	As already stated, in addition to those persons brought in as a matter of complaint, there were considerable inconsistencies relating to J’s account of abuse at Huntley Avenue.  Prior to trial, in addition to alleging abuse by McGuire over the whole period, she had alleged simply one occasion of abuse involving Frost-Smith at Huntley Avenue and thereafter escalation at Silver Street.  In her post-trial interview, however, she disclosed repeated abuse of herself and C (vaginal and anal rape) by Frost-Smith and many others whilst at Huntley Avenue and, over the same period, at other places.  So far as her mother was concerned, in her pre-trial interviews her account was that, when she told her mother of abuse, her mother did not believe her and called her a liar and a bitch.  However, in her post-trial interview she claimed that her mother was a frequent witness to the rape of both herself and C.  Since the mother had throughout denied that she witnessed any abuse, that position affected whether the defence would have wished to call her as a witness.
64.	In our view, the question arises most acutely in the case of Cook.  His existence and involvement had not been mentioned by J in the course of her first interview and he was only named in the August 1995 interview after a chance encounter in a shop in which he had apparently frightened and upset J; he might therefore have induced in J some motive for involving him when she had not previously done so.  
65.	All this being so, it is urged on behalf of each of the appellants that the convictions are unsafe.  It is submitted that, in circumstances where it is not in issue that J was the subject of long-term abuse at the hands of McGuire over the period involved in the charges, a serious question is raised as to which (if any) of these other persons named have been correctly identified and which may have been wrongly named as adults who were disliked or feared by a distressed and abused child, brought up in a world of sexual laxity and pornographic videos.  In particular, unmeritorious as the point is, in the apparently abusive world in which J and C lived, it is open to question which incidents the subject of which counts have been truthfully and accurately recalled or may have been the subject of confabulation and why (if there were many other persons and/or many different occasions involved as described in the post-trial interview) they were not complained of earlier.
66.	In opposing these appeals, Miss Maura McGowan QC for the Crown has not sought to distinguish between the strength of the appeals of each of the appellants.  She accepted at the outset that, if there was any merit in the points raised, then they would apply equally to the position of all three defendants at their trial.  She submits however that, the safety of the verdicts is not affected. Her point is that at trial it was plainly being alleged by J that a number of others were involved on a number of occasions.  In particular, in the incident which occurred at Christmastime, the subject of Count 4, J had stated that there had been up to 30 men in the house, whose names she did not know.  In those circumstances Miss McGowan has submitted that the jury were plainly aware that there might have been other persons involved in large-scale abuse, but that they were nonetheless satisfied as to J’s testimony concerning other occasions and the persons actually involved.
67.	We do not consider that that submission effectively meets the point that by the time of trial J had clearly asserted that she had spoken of all the matters of complaint available to her.  Nonetheless, post-trial, she clearly spoke of a number of additional and apparently vividly recalled incidents, involving not only the appellant Frost-Smith but other identified persons and occasions not previously named.  This would unquestionably have afforded to the defendants considerable opportunity for cross-examination and positive suggestion of confabulation or mistake, which opportunity was not available to them at trial.  
68.	We find ourselves in a thoroughly unsatisfactory state of mind at the conclusion of this hearing.  We have no doubt that both J and C have been the victims of widespread abuse within what is highly likely to have been a paedophile ring in which many friends and neighbours were almost certainly involved and in which McGuire was plainly a (if not the) central figure.  However, for the reasons advanced by counsel, we consider that, had the allegations made in the post-trial interview been before the jury, or at least available to the defence, at the time of trial, it is quite impossible to say what course the trial would have followed.  In particular, we suspect, the cases of Bond and Cook would have been assisted by reason of their relatively peripheral involvement.  
69.	We have hesitated long before reaching the same conclusion in respect of Frost-Smith, who as the step-father in the household where the children primarily lived and against whom they made allegations from the start, must on any view have been involved in one way or another in their abuse.  Nonetheless, in the light of the concession by prosecuting counsel as to the similar position of all three, and because it seems to us that, in any event, it would be impossible to say which, if any, of the incidents founding the charges against him would have been the subject of guilty verdicts, we consider that his convictions must also be regarded as unsafe.  
70.	In all the circumstances, we feel obliged to allow these appeals and to set aside the verdicts of guilty in respect of these appellants.  In the light of the lengthy periods of imprisonment which the appellants have already served, an order for retrial would be inappropriate.