Ely v R.

In a delayed historic-abuse prosecution, jury directions must be tailored to the particular prejudice which delay may have caused. A clear warning will usually be desirable about fading memories, missing evidence, difficulties for the defence, and the prosecution’s continuing burden of proof. The Court of Appeal must decide for itself whether a conviction is unsafe. When fresh evidence is material, it will usually test its provisional view by asking whether the evidence might reasonably have affected the trial jury’s decision. A similar-fact direction does not automatically invalidate every remaining conviction if one conviction becomes unsafe. The effect on other counts depends on the evidence, directions and circumstances of the individual trial.

The appellant, a former housemaster and scoutmaster at two approved schools, was convicted at the Crown Court at Exeter of 18 counts of indecent assault, seven counts of buggery and one count of attempted buggery. The offences concerned former pupils and were alleged to have occurred between 1963 and 1977. He received a total sentence of 15 years’ imprisonment.

He renewed his application for leave to appeal against conviction, contending that all convictions were unsafe because of delay, the conduct of the investigation, alleged deficiencies in the summing-up, the absence of records and fresh evidence relating to particular complainants. He also appealed against sentence. The central issues were whether the trial and verdicts were unsafe, and whether the fresh material could reasonably have affected the jury’s decisions.

1. Conviction appeals dismissed. The court granted leave to appeal against conviction but held that the convictions were safe. The trial judge’s directions on similar fact evidence, good character, delay, collusion, compensation and the complainants’ convictions were accurate, balanced and suited to the case. The delay direction properly identified the risks caused by fading memories, lost records and unavailable witnesses, and linked those matters to the prosecution’s burden and standard of proof.

2. The judge was not required to give a further corroboration warning. Applying R v Makanjuola [1995] 2 Cr.App. R 469, the court held that the scope of any such warning was discretionary and that the discretion had been properly exercised. The scale of the indictment and the elapsed time did not make the trial unmanageable or the directions inadequate.

3. Under section 23 of the Criminal Appeal Act 1968, the court admitted limited material, including evidence from Mr Cooksley and football fixture cards, but refused other proposed evidence. Applying R v Pendleton [2002] 1 WLR 72, it exercised its own judgment on safety while testing whether the fresh material might reasonably have affected the jury’s verdict. The material either could have been deployed at trial, lacked a reasonable explanation for its earlier absence, did not assist the defence, or in one important respect supported the prosecution case.

4. The court rejected a general proposition that, because a similar-fact direction was given, the potential unsafety of one count necessarily rendered every other count unsafe. The consequence of any unsafe count depends upon the reason for it, the direction given, and the circumstances of the particular trial. On the findings made, no such issue arose here.

5. Sentence appeal allowed. The offending involved grave breaches of trust and some very serious sexual abuse. Nevertheless, the offences were old, the appellant was 71, he had lived for many years without conviction, and his later work did not involve boys. A total of 15 years was excessive. It was quashed and replaced with a total sentence of 12 years’ imprisonment.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 3248, the court dismissed the conviction appeals and allowed the sentence appeal, substituting a total of 12 years’ imprisonment.
• Crown Court at Exeter: On 8 June 2001, the appellant was convicted of historic sexual offences against former pupils and sentenced to a total of 15 years’ imprisonment.