Neutral Citation Number: [2006] EWCA Crim 2754

Case No: 2005/3432/D4 AND 2005/3691/D4 AND 2005/3434/D4

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/12/2006
Before :

LORD JUSTICE MOSES
MR JUSTICE McCOMBE
and
HIS HONOUR JUDGE MARTIN STEPHENS, QC
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Between :

	THOMAS ANTHONY ROBSON
ROBERT WILSON
GEORGE ROBSON	1st Appellant
2nd Appellant
3rd Appellant	
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	REGINA	Respondent	

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Mark Barlow (instructed by Jordans Solicitors) for the 1st Appellant, John Burrow and P Andrews (instructed by Andrews Angel Solicitors) for the 2nd Appellant and John Gibson (instructed by Keith Levin & Co) for the 3rd Appellant 
Stephen Spence (instructed by The Crown Prosecution Service) for the Respondent

Hearing dates : Friday 8th December, 2006
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Judgment
Lord Justice Moses :
Introduction 
1.	These appeals arise out of the conduct of the three appellants when members of staff at the Old Rectory, a boarding school for children with special needs in Banham, Norfolk.  The events to which the appeals relate took place between 1976 and 1988.  It is not possible to give precise dates.  Accordingly, the appeals raise the difficult question of the safety of verdicts which depend upon evidence given by witnesses who were young at the time, vulnerable and purport to give an account of events which may have taken place at least twenty-five years ago.  They raise the issue as to whether, either at the close of the prosecution case, or at the close of the defence case, the judge should have intervened to withdraw the allegations from the jury on the basis that no jury could safely convict.  They also raise an issue as to the proper way the judge should have directed the jury about such incidents.  
2.	These three appellants, with another co-defendant, who was acquitted on the direction of the judge at the close of the prosecution case, faced an indictment containing 27 Counts of cruelty contrary to Section 1 (1) of the Children and Young Persons Act 1933.  The gravamen of the charges against George Robson, headmaster, his brother Thomas Robson, head of child care (we shall call him, as he was called during the trial, Mr Thomas) and Wilson, who was initially employed as a teacher and later became principal was that they had been involved in deliberate acts of cruelty involving vulnerable children in their care.  The nub of the allegations relevant to this appeal were that they were involved in forcing or encouraging children to settle their differences with acts of violence which they witnessed.  Two such incidents are the subject matter of this appeal.  George Robson and Thomas Robson were convicted of Counts 1 and 2.  George Robson and Robert Wilson were convicted of Counts 7 to 9.
3.	The remaining Count relevant to this appeal, in respect of which no leave has as yet been given, related only to George Robson.  Count 6 alleged that he was guilty of an act of cruelty in forcing a boy to eat his own vomit (described in the indictment as regurgitated food, on amendment).  We should mention that George Robson was convicted of three other acts of cruelty and Thomas Robson one other act.  Robert Wilson was convicted only of the 3 Counts, 7 to 9, to which we have already referred.  We have been told that there is a further trial pending relating to other allegations.  
4.	The trial started on 7 March 2005 at Norwich Crown Court and lasted approximately 52 days.  Some Counts were stayed and the defendants were discharged in relation to others.  In particular the appellants were acquitted of some Counts.
5.	Besides the specific allegations, made there was evidence given of a general background of tolerated violence between the children as well as public beatings.
Relevant Principles
6.	Before dealing with the particular details of the Counts, the subject matter of the instant appeals, we should make some general observations to put our consideration in context.  Cases concerning events so long ago naturally give rise to great concern.  They require special consideration, not only as to whether they should be stayed on the grounds that a fair trial would be impossible but also, if they are not stayed, whether any verdicts based upon so distant a recollection are unsafe.  As this court has repeatedly emphasised, the dangers inherent in such cases require the judge carefully to scrutinise the evidence himself in order to see whether it is safe to leave the case to the jury.  (See in particular R v Smolinski [2004] EWCA Crim 1270 at paragraphs 9 and 13.)  This scrutiny requires the judge to consider not only the nature and quality of the evidence but also inconsistencies, either within the evidence of one witness or between a number of witnesses.  It is not sufficient for a judge merely to remark that inconsistencies are a matter for the jury.  So they may be in many cases.  But in cases where the complaints are of events many years ago, it is the responsibility of the judge to consider whether the inconsistencies are such that no jury, even when properly directed as to the significance of such inconsistencies, could safely convict.
7.	The Lord Chief Justice in Smolinski advised that judges should scrutinise the evidence at the close of the case.  But beyond emphasising the need for careful scrutiny, it is not possible to lay down clear principles according to which a judge should decide whether it is safe to leave a case to the jury or whether it is not.  Indeed, it would be undesirable for any principle to be established.  Any principle would be liable to provide far too rigid a process of determination.  The issue must be left to the good judgment of the judge.  His judgment will depend upon the type of case and the type of evidence.  In some cases the only real issue will be whether any criminal offence took place (sexual offences against a member of the family are an obvious example).  In other cases, even greater difficulty will be caused by the passage of time.  These appeals afford an example; not only is there an issue as to whether the events, of which complaint is made, took place, but also as to which members of staff were responsible for instigating them and were present when they occurred.  
8.	In the instant case, there were submissions made both applying to stay the prosecution and also at the close of the prosecution case.  There is no appeal against the ruling of the judge that it was fair to try these defendants.  The appeal was originally mounted on the basis that the judge should have withdrawn the cases from the jury at the close of the prosecution evidence.  But sensibly, following the lead being given by the full court, these appeals were advanced on the basis that the verdicts were unsafe.  These submissions, accordingly, subsumed any submission which could have been made as to whether the case should have been dismissed at the close of the prosecution case.  There is, however, one point we would make in relation to the ruling of the judge.  In concluding that he should not withdraw from the jury the cases against these appellants from the jury, the judge remarked that although there were discrepancies and differences between the witnesses:-
“It seems to me…that the jury will be able to consider what they make of those discrepancies and how it affects their view of those Counts.”
9.	It seems to us that such an approach is not correct in relation to evidence of events which took place many years before, of which the sources were young and vulnerable witnesses.  It is not sufficient, in giving such a ruling, for a judge merely to comment that it is for a jury to assess the impact of discrepancies.  On the contrary, as we have said, it is for the judge to assess the significance of the discrepancies and to rule whether their impact upon the quality of the evidence is such that no jury could safely convict on the Counts to which they relate.  But since the issue whether the judge was correct in declining to withdraw the Counts from the jury depends upon our view as to the safety of the verdicts, his ruling requires no separate consideration.  We note that the issue as to whether the Counts should be withdrawn from the jury was not revisited at the close of the evidence.  We readily understand why this was so in the instant case.  The appellants gave evidence and forcefully denied the allegations.  Thus, so far as the quality of the prosecution evidence is concerned, nothing had changed between the close of the prosecution case and the close of the evidence.  
10.	However, we should draw attention to one other feature of the trial, the summing-up.  No general criticism, such as to found a ground of appeal, is made of the summing-up in this case.  That approach was correct.  The judge properly directed the jury as to the impact of the fact that the events being described had occurred so long ago and were being made by young children.  He also gave correct general directions as to collusion, although criticism is made as to the inaccuracy of his account of the facts as to the opportunity for collusion.  But we wish to make a general point about summings-up in cases of this kind, which is not intended to be an ad hominem criticism of the judge in this particular case.  The summing-up lasted three mornings (the court did not sit in the afternoon).  The judge commented to the jury that he found it difficult to what he described as “fillet” the evidence because he was going to try and “tie witnesses together” when they dealt with a number of different events.  We have to comment that, reading the summing-up as a whole, he seems to have dealt with the witnesses sequentially.  In our view this is not an appropriate way in which to sum such a case up to the jury.  It is vital that the jury are directed as to the evidence relating to each Count.  The focus must be upon the different Counts which remain before the jury.  In relation to each of those Counts, it is necessary to summarise the evidence which goes to that Count and the significant disputes which arise upon that evidence.  Only in that way will the jury be properly directed as to the issues of fact which they must resolve.  That approach also has the advantage of disclosing, in relation to each Count, such significant discrepancies as arise from the different witnesses whose evidence goes to that particular Count.  This will involve returning to the evidence of different witnesses when they come to describe different events.  But, we suggest, it will only serve to confuse a jury if the judge outlines the evidence of one witness going to a number of different events and then, possibly over a day later, turns to another witness, outlining that witness’s description of the same events.  Only by a summary focussed on a particular Count can any real assistance be given to a jury faced with numbers of Counts relating to different events.
11.	We would again suggest, without intending to be prescriptive, that the best way of coping with such a task is to take time after the end of the evidence, either before or after the speeches, to consider with counsel on both sides how the evidence is to be summarised to the jury focussed on the relevant Counts and issues.  Traditionally, and with the prompting of this court, time is or should be spent with counsel discussing legal directions.  But we suggest that in cases such as this, posing complicated factual issues arising out of historical events, time would be well spent in seeking the assistance of counsel as to which pieces of evidence go to which Counts and the significant controversies which arise out of that evidence.  By such means a judge, with the assistance of counsel, can give directions as to fact to the jury which do, in reality, assist them to focus on the significant issues which arise under the separate Counts.  If this process takes time and causes delay before the jury’s consideration, it is, we suggest, time well spent.
12.	We repeat that it is not appropriate for this court to be over-prescriptive.  There will be cases where such an approach is unnecessary, for example, where only one witness is the source of a long series of historical events.  Moreover, there may be cases where it is necessary, if it is necessary at all, to describe the salient features of a witness’s evidence from start to finish, in order not to distort the picture painted by that particular witness.  But in the instant appeals that was not necessary.  The importance of the summing-up, in relation to the factual evidence, was to focus the jury upon the different issues it had to decide in relation to particular Counts.  
13.	There were criticisms of the judge’s summing-up as to the factual issues which arose in relation to collusion.  As we have said, the judge correctly directed the jury in law as to the impact of collusion.  The witnesses had been identified by a process which involved the police asking pupils to come forward and describe events at the school.  Some of the witnesses had been in contact by e-mail.  A number of admissions were made as to what those contacts were.  Plumb was an important witness who had posted a note on a website, after speaking to the local authority.  He hoped that others would read the note and contact the police.  Jarman was also, so it was said, contacted by Plumb.  The judge reminded the jury that the contacts between Plumb and Jarman were between the making of two statements by Mr Plumb.  This was inaccurate.  There had been contact before Plumb had made any statement.  But Jarman was not a victim of any of the alleged cruelty.  We should record that we have taken into account the issue of collusion, and that inaccuracy, in assessing the safety of the verdicts to which we shall shortly turn.  But we do not think that the judge’s inaccuracy in relation to collusion affords a distinct ground of appeal.  It is part of the context in which we must consider the separate Counts which are the subject matter of these appeals to which we now turn.
Counts 1 and 2
14.	These Counts related to one incident in which it was alleged that Barry Quayle and Neil Matthewson had fought each other at the instigation of Robert Wilson.  Wilson was acquitted but George and Thomas Robson were convicted.  It is against that conviction that they now appeal.  Their appeal is centered upon the discrepancies between the witnesses’ accounts as to who was present.  There were also discrepancies between accounts as to what happened during the course of the fight.  The discrepancies, so it is contended, were such as to lead to doubt as to whether the witnesses were describing the same incident.  
15.	It is, accordingly, necessary to detail some of the evidence relating to that incident.  Quayle and Matthewson were, so witnesses said, two of the biggest boys in the school at the time.  According to Quayle, the fight occurred at a weekend and was triggered by an incident during a visit to Thetford Forest.  Quayle and Matthewson had begun fighting, but were stopped by Wilson.  He suggested that they should fight when they returned to school.  
16.	Back at school, Quayle said that he had fought Matthewson to the ground where he had kicked him to the head and body.  He said Wilson and Thomas Robson were present but George Robson was not.  
17.	Matthewson gave an account of the fight in which he said that he was knocked out.  The only member of staff he identified as being present was Thomas Robson, although he called him Mr Thomson.  
18.	Julian Plumb was not involved in the fight but it had dominated his memory, so he said.  Because the boys were the most developed in the school the staff were interested and both Wilson and George Robson travelled to watch.  He was not sure that Thomas Robson was present.  Significantly, he gave a different description of the fight.  He made no mention of Matthewson being knocked out.  On the contrary, he said that George Robson had held up the hands of both boys at the end of the fight to indicate a draw.
19.	Gary Walton said that all three defendants were present, namely George and Thomas Robson and Robert Wilson.  Darren Walton said that Thomas Robson stopped the fight when both boys were exhausted, but had not indicated that Thomas Robson was present in his statement to the police.
20.	There was also evidence from a member of the staff, Pauline Cattermole, who said that she witnessed a fight in which one of the boys was the son of a man serving in the RAF.  That was likely to have been Quayle.  She named George and Thomas Robson as being present and another teacher, Holesworth.  But she described the incident as happening with other pupils around in a circle.  She was employed as a kitchen assistant only during the week, and thus cannot have been describing an incident on a Sunday, as Quayle had suggested.  There was an even greater difficulty with her evidence in that she said that she had witnessed the fight through a kitchen window.  No such window existed overlooking the playground at the relevant time.  The judge commented that some of the features of her evidence indicated that she was describing a different fight.  Furthermore, he withdrew Counts one and two against Holesworth on the basis that it would not have been safe to rely upon her evidence to convict that member of staff.  In those circumstances we do not believe it would be right to rely in any respect on her evidence in considering the safety of these two verdicts.
21.	We accept that there were discrepancies between the description of the fight given by Quayle, Plumb and Matthewson.  There was an important difference between Quayle’s identification of which members of the staff were present at the fight and that of other witnesses.  However, two bystanders not participating in the fight, namely Plumb and Garry Walton, did identify George Robson as being present at the fight, although they also described Wilson as being present.  It is, accordingly, contended that there is no logical basis upon which the jury could have believed that George Robson was present but had doubt as to whether Wilson was.  That contention must be considered in the context of the discrepancies between the descriptions of what took place and the evidence from Quayle that George Robson was not present.  
22.	We reiterate that a jury is entitled to accept part of a witness’s evidence and reject other parts.  A fortiori, it is entitled to accept part of a witness’s evidence but reach the conclusion that there is doubt about other parts.  It must be recalled that George Robson was the headmaster and, so some of the evidence showed, was a dominant figure in the school.  We think the jury was entitled to reach the conclusion that Plumb and Walton were correct when they identified George Robson as being present as they were correct in their recollection that his brother, Thomas, was also there.  Although this was a case where these were witnesses describing events possibly twenty-three years before when they were much younger, the jury was entitled to rely upon those witnesses who said that George Robson was present, even though they were not sure as to the presence of Wilson.  They had been warned as to the dangers and difficulties arising from those circumstances; the way that they approached this case, acquitting the defendants on some Counts but convicting on others, demonstrates to our satisfaction that they approached this case with care.  In those circumstances we do not find the verdicts in relation to those two Counts to be unsafe.
Count 6:  George Robson
23.	The Court referred the application for leave to appeal on this Count to the full court.  This Count related to an allegation that George Robson had forced Matthewson to eat his own vomit.  It was contended that there was insufficient evidence from the alleged victim, Neil Matthewson, to establish any more than that George Robson had required him to finish his cornflakes.
24.	In his evidence in chief Matthewson said he had been sick in his bowl of cornflakes.  He said:-
“I ate it.  I tried to get in the kitchen, but the table I was sat, they used to sit right by the kitchen door, so I’ve gone to get in the kitchen, he (George Robson) spotted me and he was said he was sick of me being sick and to go back and eat it.”
He said, in answer to the question:-
	“You did not vomit it out?”
A.	“I had swallowed it, but it wasn’t like what you’d call a night on the lash, no.”
Q.	“So you say you regurgitated food.  Is that right?”
A.	“Regurgitated, sick.”
25.	In cross-examination he said that he had taken half a dozen more spoonfuls of cornflakes and had regurgitated.  He said:-
“As I was walking into the kitchen, Robson clocked me, and told me to sit back down and finish it off.”
Q.	“That is all he said?”
A.	“Basically.”
Q.	“Right.  He told you to finish off your meal Mr Matthewson?”
A.	“If that’s the way you want to put it Sir, yes.”
26.	The particulars of offence were amended, at the close of the prosecution case, on the submission on behalf of George Robson, from an allegation that Matthewson was forced to eat his own vomit to one of an allegation that he was forced to eat regurgitated food.  There was nothing in the point.  It was unnecessary to amend the particulars of claim.  But it is plain, reading his cross-examination as a whole, that Matthewson was not withdrawing his allegation that he was required to eat his own vomit.  
27.	We do not think that the witness withdrew his allegation.  His evidence in chief was evidence that George Robson was aware of that which he was requiring the boy to do, namely, eat his own vomit.  The Jury was entitled to act upon that evidence.  In those circumstances, we refuse leave to appeal.
Counts 7, 8 and 9
28.	Both George Robson and Wilson were convicted on these three Counts.  They were the only Counts on which Wilson was convicted.  The allegation was that three pupils, Julian Plumb, David Holmes and Raymond Bloomfield were set upon by the rest of the school.  The event was said to have taken place between nineteen and twenty-six years before.  Plumb said that the incident had been instigated by Wilson after a visit to Thetford.  He was attacked by the whole school, about forty, and sustained what he described as a “hideous beating”.  He was left with seriously swollen eyes.  
29.	Plumb was the only victim of this incident who gave evidence about it.  Holmes was not called and Raymond Bloomfield, who was called, said nothing about it.
30.	Jarman appeared, in his evidence, when cross-examined, to be saying that the attack started after two pupils, Raymond Bloomfield and Julian Plumb, had been chased around the school.  Although at first he seemed to be saying that it was Mr Wilson who had instigated the attack, later in cross-examination he said:-
“I can’t specifically remember whether or not it was Mr Robson or whether or not it was Mr Wilson, but I do remember we were told to get 	them.”
31.	Mr Spence, on behalf of the prosecution, suggests that the witness’s only doubt was as to who told the school to attack the boys, not as to the presence of both of those teachers.  We cannot agree that the evidence is clear as he would suggest. 
32.	In summing up, the judge recalled Plumb’s cross-examination but in doing so inserted a passage of Plumb’s evidence which related not to Counts 7 to 9, but rather to Counts 1 and 2.
33.	The upshot of the evidence is that although Jarman had originally blamed George Robson in his evidence in chief, by the time he was cross-examined he could not say whether it was Wilson or George Robson who had instigated the attack.  Plumb did blame Wilson but the account with which the jury was left by the judge was confused and inaccurate by virtue of the insertion of a passage of his evidence relating to Counts 1 and 2.  We take the view that, in the light of the paucity of clear evidence identifying which teachers were responsible for the attack by the school and the inaccuracy of the judge in identifying which evidence went to Counts 7 to 9, the verdicts of guilty in relation to George Robson and Wilson are unsafe and should be quashed.  It must not be forgotten that the witnesses were purporting to identify teachers as being responsible for this fight, possibly some twenty-six years previously.  There was such a lack of clear, reliable and consistent evidence, coupled with a significantly inaccurate direction as to lead us to the conclusion that the verdicts on Counts 7 to 9 are unsafe.
34.	We dismiss the appeals against Counts 1 and 2, we reject the application for permission to appeal under Count 6, and allow the appeals in relation to Counts 7 to 9.