Carragher, R. v

Where evidence from different complainants is before the jury, the former similar-fact admissibility rules do not govern merely because one account may support another. The evidence may be relevant as part of a body of evidence showing a propensity to commit sexual offences against children in the accused’s care.

A judge must not direct that similarity makes one witness support another unless the facts justify that course. Whether similarities reinforce credibility is ordinarily a matter for the jury. In sentencing for a prolonged campaign of sexual abuse in gross breach of trust, the court need not reserve a notional margin for worse hypothetical offending; exceptionally serious facts may justify a sentence at the highest appropriate level.

The applicant, formerly headmaster of a residential home for vulnerable boys, was convicted at Sheffield Crown Court of seven counts of buggery and thirteen counts of indecent assault. The offences, against thirteen boys under 16, spanned 1969 to 1989. He received concurrent sentences of 14 years for buggery and two years for indecent assault.

He sought leave to appeal against convictions on counts 1, 2 and 60. He contended that the trial judge wrongly directed that the accounts of two complainants could support each other because of their similarities. He also challenged the judge’s total sentence of 21 years for the combined historic offending, from which the seven-year sentence imposed in 1993 had been deducted.

1. The renewed applications for leave to appeal against conviction and sentence were refused.

2. The former similar-fact rules, discussed in DPP v Boardman [1975] AC 421 and DPP v P [1991] 2 AC 447, principally concerned the admissibility of prejudicial evidence of other misconduct. Those rules had been replaced by sections 101 to 106 of the Criminal Justice Act 2003. No admissibility issue arose here. Each complainant’s evidence was relevant as part of the evidence capable of showing a propensity to sexually abuse boys in the applicant’s care.

3. A judge must take care not to direct that one witness’s evidence supports another because of similarity unless the facts justify that direction. However, where there was no alleged collusion, the question whether the similarities reinforced the apparent truthfulness of the two accounts was essentially for the jury. The court considered that the accounts of being taken for a night swim and then forcibly buggered in the changing area were, in any event, sufficiently similar to satisfy the test in DPP v P. The 20-year interval reduced the relevance of that similarity. The brief directions could not realistically have affected the jury’s assessment of witnesses whom it had heard tested in cross-examination.

4. The sentencing judge’s totality approach was unobjectionable. The offending involved repeated forcible buggery and indecent assaults of numerous vulnerable boys over many years, committed through a grave and sustained abuse of authority and trust. The comparison authorities did not render 21 years excessive. In light of the guidance in R v Millberry [2003] 1 Cr App R 25, a starting point of 15 years and upwards for a campaign of rape did not preclude the sentence imposed for this more extensive course of abuse. There is no inevitable requirement to leave scope for an even more heinous hypothetical case.

• Court of Appeal (Criminal Division) — renewed applications for leave to appeal against conviction and sentence refused: [2006] EWCA Crim 1306.

• Sheffield Crown Court — the applicant was convicted of seven counts of buggery and 13 counts of indecent assault, and sentenced on 3 December 2004.