Case No: 99/4891/Y5

IN THE COURT OF APPEAL
 (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 3 February 2000
B e f o r e :

LORD JUSTICE OTTON
MR JUSTICE OWEN
and 
RECORDER OF MANCHESTER
HHJ SIR RHYS DAVIES QC

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	REGINA		
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	Roger Wykeham BARLOW		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Mr Karim Khalil 353 3728 (instructed by  CPS, Cambridge, Solicitors for the Prosecution)
Mr John Farmer 353 3728 (instructed by Silver, Fitzgerald, Cambridge, Solicitors for the Defence)
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Otton:

In the Crown Court at Norwich before HHJ Downes the appellant was convicted of 15 counts of indecent assault on a male.  He was acquitted in respect of eight further counts alleging the same offence (Count 1, 2, 12, 13, 19, 21, 22 and 24) and one count of indecency with a child (3).
He appeals against conviction by leave of the single Judge and renews his application for leave to appeal in respect of those grounds upon which the single Judge refused leave.  
All the complainants were between the ages of 11 and 14 when the offences were alleged to have been committed.  Counts 4, to 9 and 14 were specimen counts of indecent assault upon M between 1st September 1972 and 31st July 1973.  Counts 10 and 13 concerned specific offences of indecent assault on him between 1st July 1973 and 31st July 1974.  Counts 15 to 19 concerned offences upon K between 1st June 1974 and 30th April 1975.  Count 20 concerned an offence of indecent assault upon R between 1st September 1975 and 31st December 1975.  Counts 21 to 23 related to three offences upon J between 1st September 1973 and 30th September 1975.
 The background can be briefly stated.  In 1970 the appellant took up a post as an English teacher at the Cambridgeshire High School for Boys (latterly the Hills Road Sixth Form College).  He took early retirement in 1993.  In July 1997 the first of a number of pupils, M, made a complaint to the police alleging during his time as a pupil at school he had been indecently assaulted by the appellant on a regular basis.  The police wrote at random to seventy pupils who attended the school at the relevant time and in addition made newspaper and radio appeals for witnesses.  None of the communications identified the appellant, although as Mr Farmer on behalf of the appellant suggested (and we accept) the facts that were published were such that, to anyone who knew him, they “uniquely pointed to the appellant.”  In response to the letters K and another former pupil S came forward.  Both alleged that the appellant had indecently assaulted them.  Following the first report of the enquiry in the press R and J came forward in June and August 1998, both of whom made further allegations.  As time progressed further complainants and witnesses came forward including P and H in November and December 1998, by which time the newspaper reports had referred to the appellant by name.  The Defendant was arrested and interviewed.  He denied all the allegations put to him.
In evidence, M, stated that during English lessons it was common place for pupils to be called to the front for their homework to be reviewed.  He was called up regularly.  The appellant would manoeuvre him by holding his thigh so that he stood close to the appellant’s side behind his desk.  The appellant would then caress and stroke his thigh before moving his hand up and caressing his genitals from behind and between his legs.  The style of the desk prevented anyone else in the class from seeing what was going on.  This would happen almost every time he went to the appellant’s desk; certainly at least twice each term, and more often in the first and second year (Counts 4 to 9 and 14).  
He was too scared to complain because the appellant was his teacher.  He became anxious about what was happening to the point where in his third year he took a whole term off.  He described how the appellant told him that there might be a medical reason for his school work difficulties and that he was going to examine him.  He invited the complainant to his home, took him to the bedroom undressed him and told him to lie face down on the bed.  He proceeded to massage the complainants prostate area and fondle his genitals.  He then photographed him (Count 10).  Count 11 related to a similar assault.  It is to be noted that Counts 12 and 13, in respect of which the appellant was acquitted concerned occasions when the appellant visited his home and in the school book store.  
He said that before he contacted the police he had no contact with the other complainants.  T stated that on one occasion he was in the school sick room and lying on the couch.  The appellant visited him and proceeded to carry out a medical examination in the course of which the appellant put his hand down the boys underpants and fondled his genitals.  (Count 15)  On another occasion the complainant was asked by the appellant to help him carry costumes to the school’s theatre dressing room.  He then assaulted him in a similar fashion (Count 16).  The incident was repeated on other occasions during the same term (Counts 17 and 18).  He confirmed that in his class room the appellant would often pull pupils towards him by holding the inside of their thigh, or back of the calf and that he would frequently squat down by the complainants side in class and squeeze the back of his calf.  He could not see what happened to pupils who stood behind the appellant’s desk.  Count 19 in respect of which the appellant was acquitted, concerned an incident at a rugby match and in the teacher’s changing room after the game.
R confirmed that he had seen the appellant call the boys up to his desk to check their homework and had pulled them closer by grabbing and pulling their legs, but agreed that he could not see through or behind the desk.  On one occasion he had done this to the complainant but, there was no Count in respect of this incident.  He recalled an occasion when he was in the sick room.  He showed the appellant that he had pain to the right side of his lower stomach.  After initially touching the area indicated the appellant pushed his hand into his underpants and onto his testicles.  The complainant shouted at which point the appellant withdrew his hand and left (Count 20).  He stated that when he contacted the police he had no knowledge of any of the other complaints and had not discussed the matter with anyone involved.  	
J visited the appellant’s home on two occasions on the second, the appellant led him into the bedroom and while he was on the bed the appellant came into the room and proceeded to fondle his body.  He did not visit the appellant’s home again (Count 23).  He also gave evidence of similar assaults on other occasions which were not the subject of any Count in the indictment.  He contacted the police after reading an article in the local newspaper.  Before that he had told no one about what had happened.  
Three other witnesses testified about behaviour which was not the subject of any Count.  S described an incident while the class were watching a slide show and the classroom windows had been blacked out when the appellant rubbed the underside of his leg for approximately 20 to 30 seconds.  He had forgotten about the incident until he had received the letter from the police.  He contacted them.  P described an occasion when he had been called to the front of the class when the appellant squeezed his leg.  He added that it appeared to him that the appellant was doing similar things to other boys but the style of the desk made it impossible to see.  He had not told his father, because he was a headmaster also.  He had first heard about the investigation on the radio and contacted the police.  H described how the appellant had touched his leg when he called him up to the front of the class.  The incident lasted for up to five minutes.  He had seen other boys being called up and stand next to the appellant in apparent discomfort, but added that he could not see what was going on behind the desk.  

The appellant gave evidence that he had married in 1969 and was the father of two boys.  He confirmed that he would call pupils to the desk.  If a pupil became distracted he would pull him in by the arm or leg in order to make him concentrate.  He denied indecently assaulting them.  Throughout the alleged incidents at his home his wife had been present downstairs.  He denied all the other incidents.  The appellant called 18 witnesses, many of whom were ex pupils and colleagues.  All gave evidence as to the appellant’s character and demeanour and some were able to give evidence about prosecution witnesses and comment upon aspects of the prosecution case.  
As already indicated, the jury convicted of some counts and acquitted of the rest.  

The Appeal
Mr John Farmer on behalf of the appellant submitted that all the convictions were unsafe, principally, on account of the trial Judge’s direction on similar fact evidence.  The single Judge gave leave to argue this ground.  The critical passage was as follows (relevant parts):-

	“You will be considering, when you come to look at the charges, in each group where there is more than one in relation to any particular boy, you will be considering his testimony about what he said occurred.  How do you treat the evidence of the other boys in relation to that witness?  That is the next question.  It is quite clear, I think, that there is no case in this particular set of circumstances where one boy says something happened to me but I also saw something happen to somebody else, except the standing at the desk where they say that people were looking slightly uncomfortable but nobody pretends that they actually saw anything happen to anybody else.  So there is no direct support, in that sense, from one witness to another.  But you can, in certain circumstances, use the evidence of the other boys in supporting the one that you are considering.  So let us assume for the moment that you are considering say (“M”) and you want to know how to treat or how you can treat the evidence of the other boys in certain circumstances.  Well the first point is this, that you have to outlaw completely the suggestion of any collusion.  In other words, them putting their heads together to make false accusations against the defendant.  If there is any prospect that there might have been and if you are not sure that there was no collusion then the evidence really of the others and indeed the one you are considering is of no value and you would ignore it.

	If you are sure that there is no collaboration or collusion between the various witnesses then you are entitled to look at the evidence of the other boys when deciding whether it supports the evidence of the one that you are considering in that particular charge.
	You have to ask questions.  You have to say, if there is no collusion between these various boys, no collaboration, is it reasonably possible that each of these boys, I think there were 7 in the charges and 3 others so 10 altogether, each of the 10 independently making similar accusations, if you think they are similar accusations, could they all be either lying or mistaken?  That is the first question.  Is it reasonably possible that all of them independently making similar accusations, if they are independent and if they are not colluding, making similar accusations and could all be either lying or mistaken?  If you think, and this is what in Crown say in this case, if you think that that is incredible that they would all make up the same lies or make the same mistakes in similar matters.  If you think that is incredible then it may well assist you to use that other evidence to decide whether the one you are considering was speaking the truth.  But you have to look at two particular questions.
	The first is the degree of similarity; how similar are the accusations?  Because the greater the degree of similarity the more likely it is that independent witnesses are speaking the truth if they make up very similar accusations or if they make very similar accusations.  You may think it would be a remarkable coincidence if they all hit on the same lies or made the same mistakes in the detail that they give you.  On the other hand the less similar they are the less weight that you can give to that evidence.  So that is the first question:  Are we sure there is no collusion?  If we are sure there is no collusion or collaboration how similar are the accusations?  If we think they are very similar would it be a remarkable coincidence if they all hit on the same lies or made the same mistakes on matters of detail? 
	But the second matter you have to consider is this:  Might any of the witnesses have been consciously or unconsciously influenced in their evidence through hearing of complainants made by other people?  If you think it is possible that they or any of the boys might have been influenced in making the accusations or in the details of what they say you have to take that into account in deciding how much weight to give to it.  That is the reason, you may think, why the police in this case say that they went about this particular enquiry in the way that they did.  It is a matter for you to say, not for me, how they went about it.  But their account is that they were careful not to name anybody and not to feed any lines, if I can put it that way, to the people who were making the complaints, for that reason, so that there would be no cross contamination.  The point that Mr Farmer makes, of course, is that what is not known is what might have been said much nearer the time in the 70’s or the 60’s.  That, if course, also applies to not only the boys in the 7 counts, or the 7 boys rather in the counts in this indictment but it applies to the other 3 as well are not the subject of counts.  The point is also relevant to negative the idea of a misunderstanding or an accident.  Because again if people who are not colluding are making the same allegations it is remarkable if they would make the same mistakes and tell the same lies about a mistake or a misunderstanding.”.

Counsel  contends that this direction was flawed in that it failed to identify the nature of the similarity required, to identify the evidence capable of qualifying under the principle and, a failure to caution the jury as to the evidence not capable of qualifying.  He should have directed the jury simply to consider each count separately.  He further failed to direct the jury specifically as to the evidence which suggested that collusion may have occurred.  
Counsel referred to authority, notably Boardman v. DPP [1974] 60 CAR 165 where the law on the application of similar fact evidence was established by the House of Lords.  It was said that the basic “principle must be that the admission of similar fact evidence … is exceptional and requires a strong degree of probative force.”  The position was extensively reviewed in DPP v. P [19991] 93 CAR 267.  The principles were retained but the qualifying phrase from Boardman of “striking similarity” was disapproved Lord MacKay of Clashfern stated:

	“The evidence referred to is admissible if the similarity is sufficiently strong, or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abused charged, that the evidence if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect.”

The matter was reviewed by this Court in R v. Musquera [1999] CLR 897 (15th December 1998).  Potter LJ, giving the decision of the Court, stated at page 11F:  

“The application of the rule in DPP v. P depends upon a judicial balance to be struck between probative force (which depends on relevance and cogency) and prejudicial effect, both of which vary according to the nature of the issue to which the evidence is directed.  It is certainly the case that when the issue is mistake, accident, or that a particular witness is lying, a lesser degree of similarity between two allegations is likely to suffice to make them cross-admissible than when the issue is, for example, the identity of the defendant as the perpetrator of various offences. …

While the decision in DPP v. P has eliminated the necessity to identify a “striking” similarity, it is still necessary to invoke some identifiable common feature or features constituting a significant connection and going beyond mere propensity or coincidence. …

While, as a general rule it is plain that the judge, having heard the evidence, is in the best position to decide whether the jury might properly regard such a relationship as having been established, it seems to us that, in doubtful cases, the judge has two options.  Either he should lean in favour of the defendant by telling the jury to treat the charges separately, or he should be particularly careful to identify the similarity or other relationship relied upon by the prosecution, giving some guidance in respect of it in the light of the defence advanced, coupled with the warning (which was appropriate in the circumstances of this case) against relying upon mere propensity itself.”

It was concluded that in the particular circumstances of that case, there was an insignificant similarity between the offences against two sisters on the one hand and a third complainant on the other, save that they were sexual offences which was not sufficient alone.  

Counsel submits that the circumstances in the instant case called for the Judge to distinguish between the evidence capable and that which was incapable of amounting to similar fact evidence which the jury could and could not take into account.  This was particularly so in view of the passage of time between the alleged incidents and the complaints at trial.  The possibility of collusion when the boys were at school or afterwards was obvious and, a fuller direction should have been given.  Finally, relying upon the passage cited from Lord Justice Potter Counsel contends that the direction was further defective in that it made no reference to propensity.  

In assessing these submissions we have paid particular attention to the summing-up as a whole.  It was meticulously prepared, the rest of the directions on the law were impeccable.  The Judge concentrated the jury’s attention on those parts of the complainants’ evidence which was relevant to the counts in the indictment.  He seldom referred to any of the peripheral evidence.  Earlier in the summing-up he had given a very clear direction on the need to consider each case separately:

	“In this case there are a lot of separate charges and they are all quite separate except that they, some of them, are groups in relation to particular boys, but they are nevertheless separate charges and they require  separate consideration by you.  …  That is not to say of course that when you are look at each charge separately that you cannot look at all the evidence because some of the evidence may relate to more than one charge.  But you do have to come to a separate conclusion on each of the charges.”

In theory, at least, the Judge might have emphasised those parts of the evidence which tended to support the evidence given by a complainant in a specific Count.  For example that the evidence of P as to what had occurred to him at the desk, although not the subject of Count, was capable of supporting the evidence of M on Counts 4 to 9 and Count 14.  He might also have referred to the so-called medical examinations in the sick room of K and described in similar terms by R.  Similarly, in theory, the Judge might have directed the jury that the evidence of P of what allegedly occurred at an airfield and in a tent with the appellant (Counts 2 and 3, where there was an acquittal) did not amount to a similar fact evidence.  

We have come to the conclusion that it was not incumbent upon the Judge to embark upon such elaboration.  To have done so might well have resulted in prejudice to the appellant.  If the Judge had identified and directed the jury on the undoubted similar fact evidence this would only have strengthened the case on some of the individual counts.  He would also have been obliged to say, for example, that if they were sure and convicted of any count relating to M then they could take that evidence into account when considering, for example, L’s allegation of fondling at the desk where the jury acquitted (Count 24).  In the course of argument, Mr Farmer alluded to the old law on corroboration in support of his argument.  The need for corroborative evidence is no longer required.  When it was it was necessary for a Judge to identify the evidence capable of amounting to corroboration and, that which was not.  We do not think the law requires such distinctions to be drawn or such directions to be given in every case where similar fact evidence is adduced.  We agree with the approach of Lord Justice Potter that the trial Judge, having heard the evidence, is in the best position to decide whether the jury might properly regard such a relationship as having been established.  This was not a doubtful case where the Judge had to elect between one of two options.  He chose to take a sensible middle course by giving general directions on similar fact evidence and leaving it to the jury to determine properly, as a question of fact, whether such similarity arose.  He said in terms:-

“You are entitled to look at the evidence of the other boys when deciding whether it supports the evidence of the one that you are considering in that particular charge”.

And later:

	“.. You have to look at two particular questions.  The first is the degree of similarity; how similar are the accusations?  Because the greater the degree of similarity the more likely it is that independent witnesses are speaking the truth if they make up very similar accusations or if they make very similar accusations.”

And later:

	“But the second (question) that you have to consider is this: might any of the witnesses have been consciously or unconsciously influenced in their evidence through hearing of complaints made by other people?  If you think it is possible that they or any of the boys might have been influenced in making the accusations or in the details of what they say you have to take that into account in deciding how much weight to give to it.”.

We have come to the conclusion that the Judge’s approach and careful directions on this matter cannot be faulted.  Similarly, given the way the matter was left to the jury we do not think there was any requirement to give any specific direction on propensity.  In reaching this latter conclusion, we take into account the fact that in the three model directions published by the Judicial Studies Board there is no reference to propensity.  

Finally, we reject the argument that the Judge failed to give adequate directions in the issue of collusion/collaboration between the complainants.  He said in terms:

“You have to outlaw completely the suggestion of any collusion.  In other words, them putting their heads together to make false accusations against the defendant.  If there is any prospect that there might have been and if you are not sure that there was no collusion then the evidence really of the others and indeed the one you are considering is of no value and you would ignore it.”

This direction cannot be faulted and completely answers the criticism.  Moreover in a later passage he said:

	“So that is the first question:  are we sure there is no collusion?  If we are sure there is no collusion or collaboration how similar are the accusations.”

Finally he gave a comprehensive summary which, to our mind, meets all the criticisms levelled by Mr Farmer:

	“So you have to look at the degree of similarity between them.  Whether there might have been a conscious or unconscious influence and whether you are sure that they were not collaborating.  If you are satisfied of all those things; that there was no collaboration, that the similarity between the allegations was considerable and there was no conscious or unconscious influence, then you can use the evidence of the others to support the evidence of the one that you are considering at any particular point in your deliberations.”

Thus we are satisfied that on the primary ground of appeal there is no basis for doubting the safety of any of these convictions.  

Mr Farmer sought leave to argue the grounds where the single Judge refused leave.  They fall into two categories.  First, it is said that there is an inconsistency in the verdicts.  The convictions in respect of M on Counts 4 to 11 were inconsistent with the acquittals on Counts 12 and 13.  The convictions in respect of K on Counts 15 to 18 were inconsistent with the acquittal on Count 19.  The conviction in respect of J on Count 23 was inconsistent with the acquittals on Counts 21 and 22.  We were not persuaded in respect of any of these alleged inconsistencies.  On close analysis it is clear that the Judge gave clear directions in respect of each of the counts and indicated that if they were not sure they should acquit.  It is equally clear that the jury addressed these matter conscientiously and, were prepared to acquit on those counts where the burden of proof had not been discharged.  We do not consider that a prima facie case has been made out on this line of argument.  

Second, Mr Farmer contends that the verdict on Count 20 was unsafe.  Only collusion could explain the coincidence that the two witnesses K and R who acknowledged knowing each other as boys 25 years previously, suffered identical assaults.  Moreover, K was an unreliable witness.  As already indicated we consider the Judge’s directions on collusion and collaboration were more than sufficient to meet the point.  It was open to the jury to consider Counsel’s argument of the possibility of collusion between these two complainants and still to be satisfied that there was none and it was safe to convict.  We see no basis upon which to impugn the integrity of the jury’s verdict on this count.

Accordingly, we refuse leave to renew the application.

It follows that the appeal against conviction must be dismissed.