R v Holmes (Peter)
| Jurisdiction | England & Wales |
| Neutral Citation | [2023] EWCA Crim 58 |
| Year | 2023 |
| Court | Court of Appeal (Criminal Division) |
2023 Jan 24; 31
Crime - Sexual offences - Gross indecency - Gross indecency with a child - Conduct not involving physical contact - Whether offence committed if no physical contact - Whether “gross indecency” legal term of art requiring definition - Whether case to answer - Whether judge’s directions to jury adequate -
The defendant was a teacher at a boarding school for children under the age of 13. He was charged with 42 offences of sexual assault contrary to section 15(1) of the Sexual Offences Act 1956 or of gross indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960F1, relating to 18 complainants. The conduct on which the prosecution relied included directions given to pupils by the defendant to row naked, or to row in underpants with the pants pulled down to expose their buttocks, or to row in underpants on a rowing machine, or to strip to their underpants, sit astride him, and massage him; he also stood naked in front of a boy in an attempt to gauge his reaction, and he stripped naked so that he could massage a boy. Eight of the charges were withdrawn from the jury on the basis that there was no case to answer. In respect of the offences under the 1960 Act the judge directed the jury that verdicts of guilty depended on their being sure that the defendant committed the acts alleged, that he derived sexual satisfaction from the act identified, and that the acts were ones of gross indecency taking account of the context and the relevant circumstances. The defendant was convicted of 13 offences of sexual assault and 16 offences of gross indecency, with the jury unable to agree on five other counts. The defendant appealed against 11 of the convictions for gross indecency on the grounds that there was no case to answer because proof of gross indecency required some form of intercrural contact, that “gross indecency” was a term of art with a particular legal meaning, and that the judge’s directions to the jury were inadequate in that they amounted only to an invitation that they simply apply contemporary moral standards to the alleged acts and decide whether they were “indecent” and, if so, whether the level of indecency was “gross”.
On the appeal—
Held, dismissing the appeal, that it was settled law that gross indecency did not require actual physical contact between persons; that the court would not attempt to define “gross indecency”; that the term had an ordinary meaning which juries have been able to determine and apply without difficulty for many years; that it had been settled that boundaries of the offence had been set which were sufficiently certain to have regulated the behaviour of persons subject to the criminal law and section 1 of the Indecency with Children Act 1960; that, further, the defendant’s own evidence at trial had showed that he knew what were proper boundaries for his behaviour and he had merely denied acting in the grossly indecent way alleged by the complainants; that the judge had been entitled to find that there was a case to answer on the counts left to the jury in relation to the conduct on which the prosecution relied; that the judge’s directions to the jury were proper directions; and that, accordingly, the verdicts were safe and would be upheld (see paras 67, 80–85).
APPEAL against conviction
On 30 May 2022 in the Crown Court at Bradford before Judge Nadim and a jury the defendant, Peter Holmes, was convicted of 13 offences of sexual assault contrary to section 15(1) of the Sexual Offences Act 1956 and 16 offences of gross indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960. On 16 September 2022, in the same court, he was sentenced to 12 years’ imprisonment. In respect of 11 of the convictions for gross indecency with a child, the defendant appealed on the grounds that there was no case to answer because proof of gross indecency required some form of intercrural contact, that “gross indecency” was a term of art with a particular legal meaning, and that the judge’s directions to the jury were inadequate in that they amounted only to an invitation that they simply apply contemporary moral standards to the alleged acts and decide whether they were “indecent” and, if so, whether the level of indecency was “gross”.
The facts are stated in the judgment of the court, post, paras 6–52.
Edward Hetherington (assigned by the Registrar of Criminal Appeals) for the defendant.
Michael Morley (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.
The court took time for consideration.
31 January 2023. DINGEMANS LJ delivered the following judgment of the court.
Introduction1 This is the hearing of an appeal against conviction and sentence. The appeal against conviction raises issues about whether the facts relied on by the prosecution, which the jury, by their verdict, must have been sure were proved and were carried out for the defendant’s sexual satisfaction, amounted to “gross indecency” for the purposes of section 1 of the Indecency with Children Act 1960. The statement of offence for the purposes of an indictment is referred to as “indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960”, see Archbold, Criminal Pleading Evidence and Practice 2023 (“Archbold”) at 20–380a, and in the summary of the factual background we have referred to the offence as indecency with a child even though the statutory wording is “gross indecency”.
2 The defendant was a school master teaching English and coaching rugby and cricket at Malsis Preparatory School, Crosshills, North Yorkshire between 1976 and 1991, which is the period during which the offending is alleged to have taken place. Malsis school was a boarding school for children up to the age of 13 years. There were 21 complainants who gave evidence at the trial of the defendant. They have the benefit of lifelong anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. The complainants are referred to below as C followed by a number to preserve their anonymity.
3 The defendant was tried in the Crown Court at Bradford in relation to 42 counts, some of which were multi-incident counts. A submission of no case to answer was successful on eight counts of indecency with a child, being counts 2, 19, 22, 31, 35, 36, 40 and 42. On 30 May 2022 the defendant (then aged 73 years) was convicted of various counts of indecent assault on a male person, contrary to section 15(1) of the Sexual Offices Act 1956 and 17 counts of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960. The jury were unable to reach verdicts on five counts being counts 9, 10, 11, 12 and 15 which were later ordered to lie on the file. That meant that the defendant was convicted on 29 counts which comprised of at least 50 separate incidents relating to 18 separate complainants. On 16 September 2022 the defendant was sentenced to an overall sentence of 12 years’ imprisonment.
Factual circumstances of the offences4 As the appeal against conviction raises the issues of whether alleged acts were capable of amounting to “gross indecency” for the purposes of the counts of indecency with a child, it is necessary to set out the factual circumstances of the offences in some detail.
5 Complaints came to light about the defendant’s activities between 1976 and 1991 in the 1990s during an investigation into another teacher at the school. At that time the defendant was living abroad and matters were pursued only against the other teacher. In 2017 further allegations were made against the other teacher. It was then discovered that the defendant had returned to the UK and the investigation against him restarted. The defendant was interviewed about the allegations. The defendant denied any sexual abuse or improper conduct with or towards any of the pupils in his care.
6 C1 was aged between 8 and 13 years and was the subject of count 1 indecent assault on a male and count 2 indecency with a child. As far as count 1 is concerned C1 remembered an occasion when he was in the bathroom one evening wearing his pyjamas and the defendant asked him to go to his flat to discuss a piece of work he had done. He went through the front door of the defendant’s flat into his study. The defendant was sitting at the desk and had a piece of work on his desk. C1 stood to the side of the defendant. They discussed the work then C1 became conscious of the defendant’s left hand on his left buttock. The defendant’s hand touched C1 and slid down, skin-on-skin. While doing so, the defendant pulled C1 towards him. C1’s reaction was to pull away. The incident lasted 20 to 30 seconds. This was count 1. The defendant said that he remembered C1 as an under-11 cricketer but didn’t remember putting a hand in his pyjama bottoms and did not have a sexual interest in children. The defendant was convicted of count 1, indecent assault on a male.
7 C1 was invited into the defendant’s flat with three or four other boys. The defendant told them he had bought a new rowing machine. He then told the boys that to use the rowing machine they had to strip down to their underpants only. C1 recalled the defendant and two of the boys stripped down to their underpants. The defendant then demonstrated how to use the rowing machine and the two boys took it in turns to use it. C1 did not strip. This was count 2, inciting C1 to commit gross indecency. The judge found that there was no case to answer.
8 C2 was aged between 11 and 13...
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