Michael Brizzalari and The Crown
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hedley |
| Judgment Date | 19 February 2004 |
| Neutral Citation | [2004] EWCA Crim 310 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2002/04756/B3 |
| Date | 19 February 2004 |
[2004] EWCA Crim 310
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE HEPPEL QC
SITTING AT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy
Mr Justice Penry-davey and
Mr Justice Hedley
Case No: 2002/04756/B3
Patrick Cosgrove QC & M. Barlow for the Appellant
William Harbage QC & Ms C. Sjolin for the Crown
This is the judgment of the court to which all members have contributed.
Introduction.
After a trial lasting some six weeks in June and July 2002, Michael Brizzalari was, on an Indictment containing 25 counts involving 11 separate complainants, convicted unanimously on twelve counts of indecent assault, by a majority of 11–1 on three counts of indecent assault and two of rape and by a majority of 10–2 on two counts of indecent assault, one of buggery and one of rape. He was further acquitted on one count of rape and two of indecent assault and the Jury was discharged from giving a verdict on the remaining count of indecent assault. On the 24 th July 2002 he was sentenced by the trial judge, His Honour Judge Heppel QC, to a total of 15 years' imprisonment.
Mr Brizzalari sought to appeal against both his conviction and his sentence. On his behalf Mr Patrick Cosgrove QC advanced 12 grounds of appeal against conviction. The single judge granted leave to appeal on ground 10 and also gave him leave to appeal against sentence. Mr Cosgrove renewed his application to this court but did not seek to pursue grounds 5, 6, 11 and 12. During the hearing this court further gave him leave to appeal on grounds 1, 2, 3, 8, 9 and one new additional ground and heard counsel for the respondent on all those grounds as well as on ground 10.
Background.
The events which gave rise to those charges were centred on an institution known as Scawby Grove, an Observation and Assessment Centre managed by (the now defunct) Humberside County Council. It was a place that received young people through the criminal and family justice system and from social services.
Their stay might be long or short (and, for many, repeated) dependent both on individual need and the availability of other resources. Although registered for 24 young people, it would frequently accommodate rather more. The one thing that every resident would have in common would be that he or she was a troubled and thereby vulnerable youngster.
Scawby Grove was a large and imposing building containing accommodation for both boys and girls. This was separated but there were access doors in between. The staff in each section might have been either gender and, of course, provided a round-the-clock service.
Mr Brizzalari was employed at Scawby Grove as a residential care worker from 1983 to 1992. The complaints subsequently made against him cover effectively the whole period of his employment. His superiors clearly had a high regard for him as he was twice promoted and full confidence was reposed in him.
To the outside world the appellant would have appeared as an excellent care worker. Not only was he a man of good character, he was both a foster and adoptive parent. Indeed the evidence shows that the favourable impression was initially shared by many of the young people who lived there. He seemed friendly, kind, and attentive, qualities, it sadly transpired, not shared by other senior members of staff.
In August 1991 a complaint was made by a resident against the appellant of indecent sexual behaviour. An informal enquiry was instituted in the course of which three of the ultimate complainants in this case were interviewed. The appellant was for a time moved elsewhere but was required in due course to return to his post. The police were also involved but, although the appellant was interviewed, no action was taken against him.
The following year the police were again involved following complaints from two young women (one of whom was a complainant at the trial) and once again, having interviewed the appellant, they decided to take no action. On this occasion, however, the appellant was transferred from Scawby Grove. Following a somewhat inconclusive disciplinary hearing, it was decided that he should no longer work with children and he saw out his remaining time in other departments until ill-health necessitated his retirement in 1996.
In 1997 the police re-opened enquiries on a much wider front into the running of local authority residential establishments in the Humberside area. That involved Scawby Grove and the appellant. In due course other senior workers were charged (and subsequently convicted and imprisoned) in relation to the regime run at the Grove. It appears that that regime was characterised by oppression and fear, an atmosphere in which complaint, even where possible, was futile. The trial, conviction and imprisonment of the Principal, a man called Littlewood, had occurred only a month or so before the opening of the appellant's trial. The trial judge was the same for both. That trial had been the subject of extensive local reporting.
In the course of that enquiry, known as 'Operation Juno', many former residents were seen. We were told that if anyone being interviewed named another former resident then that person would then be seen by the police but they were the only people who would be so seen. Many statements were taken and, in the event, ten former residents and one former junior member of staff became complainants and witnesses at the appellant's trial. At least two others had made complaints but did not pursue them.
The General Nature of the Case.
The trial raised all the problems so common in cases such as this. Witnesses were describing events that happened between 10 and 20 years previously. They were describing events that had happened (if they had) in the absence of any other witness. Many of the complainants had grossly unstable backgrounds and many, since leaving care, had led chaotic and sometimes criminal lifestyles. Not all documents had survived. Some complainants had made earlier statements implicating the appellant and some had made statements but not implicated him; some had made complaints of a sexual nature against others of which some were true, some were false but most were untested. These cases pose serious difficulties for all involved and not least for the trial judge. This case proved to be no exception.
The general nature of the case against the appellant was that he had taken advantage of his position of authority and the trust reposed in him to gratify himself sexually at the expense of vulnerable female residents. Moreover there were two allegations of indecent assault made against him by a junior member of staff. With the possible exception of count 25 in which misunderstanding may have featured, the appellant's case was a forthright denial of any sexual wrongdoing advanced first to the police and then consistently maintained thereafter. Although it appears he was reluctant actually to articulate it, his case had to be, as the trial judge observed, that all the complainants were deliberately falsifying allegations against him whether in pursuit of compensation or in revenge for a life in care or for whatever other reason, he could not say.
It became inevitable then that His Honour Judge Heppel QC would be called upon not only to make rulings but to give a careful and detailed summing-up. Prudently he sought the assistance of counsel on each occasion; nor did he lack for help as a number of skeleton arguments bear testimony. In the event he had to deal with substantive issues of abuse of process, the validity of the committal, severance, similar facts, adverse inferences and delay as well as a number of matters of a case management nature. It will be necessary to return to these matters in more detail in due course. All frequently arise in these cases.
The Summing-Up in this Case.
Inevitably much turns on the summing-up, some of which will have to be examined in some detail as the individual grounds of appeal are considered. However, it may be helpful if some general observations are made at this stage so that it can be seen in its proper context when matters of detail are being scrutinised.
The structure of the summing-up was essentially to start with some general observations and then deal with all matters of law. When it came to the facts, the learned judge went through the case complainant by complainant and count by count reminding the jury of the examination and cross-examination; then in respect of each the judge reminded the jury of what the appellant had to say (including cross-examination) before concluding with a review of the defence case (including witnesses) as a whole. It follows that matters mentioned in his directions were either expressly or illustratively repeated as he went through the case relating to each complainant. For a fair reading of his summing-up, it is essential to remember this.
Having sought counsel's views at some length, the judge reduced his directions in law into writing and provided the jury with copies of it as he went orally through his summing-up, incorporating into it the written directions which of course the jury continued to have available to them during their long retirement which spanned many days. The summing-up was preceded by the speeches of counsel which themselves occupied two and a half working days, something the judge was entitled to take into account as he shaped his own summing-up.
It is occasionally worth reflecting on the purpose of a summing-up. Of course it must...
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