Robson & Ors v R

In appeals concerning historic allegations, a trial judge must carefully assess the quality of the evidence and the significance of inconsistencies before leaving a count to the jury. It is insufficient simply to say that discrepancies are matters for the jury. No rigid rule governs that assessment; it depends on the nature of the case and evidence.

A jury may accept reliable parts of a witness’s evidence while rejecting or doubting other parts. However, convictions based on long-delayed and unclear identification evidence are unsafe where significant inconsistencies are compounded by an inaccurate direction. In a multi-count trial, the summing-up should focus separately on the evidence and disputes relevant to each count.

The appellants were members of staff at a boarding school for children with special needs. They were tried at Norwich Crown Court on allegations of cruelty occurring between 1976 and 1988, contrary to section 1(1) of the Children and Young Persons Act 1933.

Following a lengthy trial, George Robson and Thomas Robson were convicted on Counts 1 and 2. George Robson and Robert Wilson were convicted on Counts 7 to 9. George Robson also sought permission to appeal against his conviction on Count 6.

The appeals concerned whether the historical witness evidence, including discrepancies about the alleged incidents and the staff present, could safely support the verdicts. They also raised whether the judge’s summing-up had accurately directed the jury to the evidence relevant to each count.

1. The appeals on Counts 7 to 9 were allowed. The convictions of George Robson and Robert Wilson on those counts were unsafe and were quashed. The evidence identifying the teacher who instigated the alleged attack was unclear, unreliable and inconsistent. The judge also inaccurately included evidence relevant to Counts 1 and 2 when summarising the evidence on Counts 7 to 9. Given the age of the allegations and the absence of clear identification evidence, that misdirection rendered the verdicts unsafe.
2. The appeals on Counts 1 and 2 were dismissed. Although witnesses gave differing accounts of the fight and of the staff present, the jury could accept parts of the evidence and reject or doubt other parts. It was open to the jury to rely on the bystanders’ identification of George Robson and Thomas Robson, while retaining doubt about Wilson’s presence. The jury had been warned about the difficulties of historical evidence and its differentiated verdicts showed a careful approach.
3. Permission to appeal on Count 6 was refused. The complainant had not withdrawn his evidence that George Robson required him to eat food he had vomited. The jury could act on that evidence.
4. In historic cases, the trial judge must independently scrutinise the evidence, including its quality and material inconsistencies, before deciding whether a count can safely remain with the jury. The judge must not merely treat discrepancies as jury matters. Applying R v Smolinski [2004] EWCA Crim 1270, no rigid formula governs the exercise.
5. The court also gave guidance that, in a multi-count historical case, a summing-up should normally address each count separately, identify the evidence bearing on it, and explain the significant factual disputes. Counsel should assist the judge in preparing that count-focused structure where appropriate.

• Court of Appeal (Criminal Division) — Allowed the appeals of George Robson and Robert Wilson on Counts 7 to 9, quashing those convictions. Dismissed the appeals on Counts 1 and 2 and refused George Robson permission to appeal on Count 6.
• Norwich Crown Court — Following a trial beginning on 7 March 2005, convicted George Robson and Thomas Robson on Counts 1 and 2, and George Robson and Robert Wilson on Counts 7 to 9, of cruelty contrary to section 1(1) of the Children and Young Persons Act 1933.