R v Boardman
| Jurisdiction | UK Non-devolved |
| Judge | Lord Morris of Borth-y-Gest,Lord Wilberforce,Lord Hailsham of St. Marylebone,Lord Cross of Chelsea,Lord Salmon |
| Judgment Date | 13 November 1974 |
| Judgment citation (vLex) | [1974] UKHL J1113-1 |
| Date | 13 November 1974 |
| Court | House of Lords |
[1974] UKHL J1113-1
Lord Morris Borth-y-Gest
Lord Wilberforce
Lord Hailsham of St Marylebone
Lord Cross of Chelsea
Lord Salmon
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions (Respondent) against Boardman (Appellant) (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Wednesday the 24th, as on Thursday the 25th, Monday the 29th and Tuesday the 30th, days of July last, upon the Petition and Appeal of Derrick Rowland Boardman of Her Majesty's Prison, Leyhill, Bristol, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 13th of May 1974, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 13th day of May 1974, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
The Appellant was tried at the Norwich Crown Court on three counts. The offences were alleged to have been committed at a school in Cambridge of which the Appellant was headmaster. There were about 30 boys at the school which largely catered for boys (up to the age of 19) mainly from Middle Eastern countries who wished to learn English. The offences related to boys at the school and were alleged to have taken place within the period from the 1st September, 1972, to the 14th January, 1973.
The first of the three counts charged the Appellant with having, on a day between the 1st October, 1972, and the 30th November, 1972, committed buggery with Mohammed Hassan Guivehchian. He was a boy then aged 16 who was referred to throughout the trial as Said. The second count charged the Appellant with having on the 14th January, 1973, unlawfully incited Abou Rihan Hamidi to commit buggery with him. That boy, who was then aged 17, was referred to as Hamidi. The third count charged the Appellant with having, between the 1st September, 1972, and the 31st October, 1972, unlawfully incited Jemil Ali Al-Aal (who was then aged 18) to commit buggery with him.
The trial took place over a period of five days. There was no application for separate trials of the counts. Each boy gave evidence. In addition to giving evidence as to the occasion which was the subject of the charge, Said gave evidence as to several incidents which took place on various occasions prior to the mid-November occasion which was the subject of the charge. The evidence showed the course of the Appellant's conduct towards Said. In a similar way Hamidi gave evidence in regard to an occasion prior to the 14th January, 1973, in addition to giving evidence in regard to what happened on that date. I must later briefly refer to and summarise the evidence given by Said and by Hamidi. That evidence could have been the foundation for other additional specific charges. The view of the prosecution was that it was undesirable to have numerous counts. No question was raised at the trial as to the admissibility of any part of the evidence given by Said in reference to Count 1 or by Hamidi in reference to Count 2.
At the close of the case for the prosecution two submissions were made on behalf of the Appellant. The first was that Count 1 should be withdrawn from the jury. The second was that Count 3 should be withdrawn. As to Count 3, which as I will explain is not now before us, the submission was that the evidence given by the complainant Al-Aal was not sufficient to support the charge. That submission failed. As to Count 1 the first ground in support of the submission was that it was unsafe to leave the charge to the jury because Said's evidence was unsatisfactory. The learned Judge held that the quality of Said's evidence was a matter for the jury to assess. The second ground was that the evidence directed to counts other than Count 1 was not capable of being admissible to assist in proving Count 1 and that the evidence on Count 1 was itself insufficient and unsatisfactory. The learned Judge proceeded to indicate both the way in which he ruled and the way in which he would eventually direct the jury. He said that the evidence on Count 2 was admissible on Count 1 and that he so ruled on the basis of the case of R. v. Sims [1946] 1 K.B. 531. He further said that the evidence would therefore also be capable of being corroborative evidence on Count 1 and that he so ruled on the basis of the case of D.P.P. v. Kilbourne [1973] A.C. 729. Correspondingly the evidence on Count 1 would also be admissible on Count 2 and could provide corroboration. He ruled, however, that similar considerations did not apply in the case of Count 3 which would stand on its own. The evidence supporting the allegations of Count 3 was not, he said, of sufficient precision as to bring it within any principle relating to "similar facts" evidence.
For an appreciation of the matters raised on appeal it is necessary briefly to summarise the evidence given respectively by Said and by Hamidi and by the Appellant as it was presented to the Jury in the Summing-Up. Said spoke of a number of incidents. The first occurred at Tehran before the autumn term of 1972 began. Said had gone home for his holidays. The Appellant was staying in Tehran in a hotel. According to Said there was an indecent assault. As to that the Appellant said that he had merely put his arm round Said but had not put his hand on Said's private parts. The second incident was at Cambridge when Said said that the Appellant had tried to touch him in the private parts but was repulsed. That incident the Appellant denied. The third incident (which was at the end of September or beginning of October) occurred at about four or five in the morning, when Said was asleep and was awakened and felt something touch his face. Said's evidence was that the Appellant was there and said—"I love you, I love you, can you come to the sitting room for 5 minutes … 5 minutes of your time". As to this the Appellant said that he was doing the rounds in the dormitory and saw that Said was not in his own top bunk but was in the bunk of another boy: that, kneeling down, and speaking quietly so as not to waken other boys he told them both to go to the sitting room saying that he would only keep them a short time: that possibly he said 5 minutes: that the other boy pretended to be asleep and that Said refused to come: that he tried unsuccessfully three times to get Said (who was very angry) to come. The Appellant then left them. There was an interview next day. The next incident according to Said was when the Appellant asked him to go alone with him, offered him money "if you will be a very good friend of mine", knelt in front of him and made the specific request not only that buggery should take place but furthermore that Said should play the active and the Appellant the passive part. That incident the Appellant denied. The next occasion was when the Appellant said to Said that he would tell the seniors not to go to the sitting room that night and that Said should come by himself. That was denied by the Appellant. Then came the occasion when according to Said the actual act of buggery took place. Some time after 10.45 p.m. the Appellant had asked Said to go to him and had threatened him with expulsion "if tonight you don't do it on me". Said later went to the Appellant and in his evidence he described in some detail what took place. The Appellant wholly denied the occasion.
There was evidence given by a Police Officer and also by the Appellant as to what was said during an interview between them in January, 1973. This was material in regard to corroboration of Said's evidence.
Hamidi gave evidence of two incidents. The first of these began when one night the Appellant, at some time between midnight and 2.00 a.m., woke Hamidi who was asleep in a dormitory and told him to get dressed. Together they then went by taxi to a club called the Taboo Disco Club. After some drinks there they returned to the school and then sat drinking and talking in the sitting room. Then, while seated close together, the Appellant according to Hamidi started to touch his (Hamidi's) private parts through his trousers: he asked Hamidi to sleep with him and made the specific suggestion that Hamidi should play the active part and he (the Appellant) the passive part. As to all this the Appellant's evidence was that he had taken Hamidi to the Club but that that was in the hope of confronting Hamidi with a woman with whom he understood Hamidi had been associating and who was regarded by the Appellant as being undesirable as an associate. The Appellant denied that on their return to the school he had made any indecent suggestion or invitation. The second incident spoken to by Hamidi was that which was the basis of Count 2. It occurred on or about the 14th January, 1973. After an earlier discussion as to whether Hamidi should not (as the Respondent wished) return to the school after the Christmas holidays as a boarder rather than (as...
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