Appeal Court
recognises dangers of police trawling

IT MAY WELL BE the case that the Government response to the Home Affairs Committee report rejected its findings and took exception to its use of the term 'trawling'. However a recent Appeal Court judgment, which appears to have been completely unreported*, takes a quite different approach.

The judgment in question (which is not available on the Court Service Website) was handed down on Friday 6 March, a week before the Williams-Rigby/Lawson appeal  was decided, but nobody, apart from one or two alert barristers, appears to have noticed. Given that the judgment makes judicial history by providing the first occasion on which the existence and dangers of police trawling have been explicitly recognised by the Court of Appeal, it is clearly a cause for celebration for all those who have campaigned steadfastly for justice and fairness in these cases.

The case of R v Maybery concerns one John Maybery, who was employed at Forde Park school in Devon. The Forde Park investigation, as David Rose made clear in his written submission to the Home Affairs Committee, and in an Observer article on the case of Brian Ely, was not launched until pressure had been placed on the police by a campaigning group of Forde Park 'survivors'. They in turn had been primed on the prospects of compensation in a series of meetings held in Devon hotels by the solicitors Woolcombe Beer Watts. A number of cases have already been brought to trial including one which was reported at the time in the local press (1)  (2).

The Appeal Court do not register the part of the story which concerns the pressure group and the compensation-seeking solicitors. But they do make the following observations about the dangers of trawling:

The evidence that was put before the jury in this case was the result of investigations over a significant period of time and was produced in large part from the results of questionnaires which had been sent to former children at the school.

The case therefore presented what is now unhappily a common problem for the courts, namely, a case of sexual abuse which of itself is always a potentially difficult offence for a jury to consider because of the usually private nature of the events surrounding the allegations, which is made the more difficult because of the very substantial delay which has occurred, in this case some thirty years. There is no doubt that much concern has been expressed about the ability of the courts to deal fairly with allegations which are of such antiquity. The Home Affairs Committee has produced a report in which it identifies a number of features which cause concern and those are features which have caused concern to the courts over the years and have been the subject matter of directions to the jury to seek to obviate the particular difficulties which old offences such as these create. The particular problems that were identified by the Home Affairs Committee, quite apart from the problems created by delay itself, relate to the fact that in many cases the evidence is produced by trawling for witnesses which carries with it the risk of instilling into those who are providing the information, in effect, the indication that certain answers may be expected by those who are making the inquiries. The fact is that it is not easy to be able to make a proper inquiry into the way in which the evidence has ultimately emerged in a way which enables a court to evaluate the quality of the evidence satisfactorily. There are also problems that arise as a result of the fact that in many such cases a number of allegations are tried together with the inevitable consequence that there is the prejudice to a defendant of what may appear to be the coincidence of similar allegations. Those particular problems the courts, as we have already indicated, are familiar with and have developed techniques to deal with. The three sets of control mechanisms are: first, by way of controlling the number of allegations which can properly be included in an indictment – in other words, by exercising the power to sever; the second sanction, if there is nonetheless such unfairness that a fair trial cannot take place the court can, of course, stay the proceedings as an abuse of process; the third is by ensuring that the jury is directed adequately as to the way in which the defendant may be prejudiced generally, and how he may be prejudiced in relation to particular allegations, ensuring that the defendant’s case in respect of individual complainants is adequately presented to the jury. This requires the judge to be scrupulous about putting the defendant’s case in his summing up [italics added].

(Regina v John Maybery [2003] EWCA Crim 782,  No: 200204076 X3, before Lord Justice Latham, Mrs Justice Cox, Mr Justice Gross; John Maybery was represented by David Batcup.)

Notwithstanding the claim made here that the courts have long been familiar with all these problems, this is the first time that any Appeal Court in any jurisdiction has explicitly recognised the dangers of trawling. The suggestion made that the courts should exercise particular vigilance when dealing with allegations produced in this manner will be warmly welcomed by many.

In the case in question the Court quashed John Maybery's conviction, principally on the grounds that the judge in his summing-up had failed to give any real account of the manner in which the Defence had sought to rebut the various allegations made by the complainants:

It can therefore be seen that the judge, having given general warnings in relation to the consequences of delay and the potential prejudice to the appellant in that regard, did not carry through any of those matters to his directions to the jury in relation to the evidence of the individual complainants.  But more important, he did not seek to put to the jury the general nature of the appellant's case in relation to each of those complainants in so far as it related to the evidence that they had given.

Through such omissions the judge had, in the view of the Court, failed to exercise 'the third of the controlling mechanisms which we have identified as the appropriate means of ensuring that a defendant facing such old allegations has a fair trial'. Because of this failure, the verdict returned by the jury was deemed to be unsafe.

It was quite clear from the terms in which the judgment was delivered that the fact that the case in question concerned allegations which had been collected by trawling many years after the alleged events was of crucial importance to the eventual decision.

How, then, did the Home Office, in their recent response to the Home Affairs Committee, deal with this historic judgment? The answer, of course, is that they made no reference to it at all, and appeared to be unaware that it had even been delivered.

* [note added 15 May] The case was eventually reported by Butterworth's (with no reference to the dangers of police trawling or the Home Affairs Committee) at almost the same time that this article was originally posted.

13 May 2003; revised 15 May       

                                                     

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© Richard Webster, 2003

www.richardwebster.net

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