R v Kilbourne

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Hailsham of St. Marylebone, L.C.,Lord Reid,Lord Morris of Borth-y-Gest,Lord Simon of Glaisdale,Lord Cross of Chelsea
Judgment Date31 January 1973
Judgment citation (vLex)[1973] UKHL J0131-1
Date31 January 1973

[1973] UKHL J0131-1

House of Lords

Lord Chancellor

Lord Reid

Lord Morris of Borth-y-Gest

Lord Simon of Glaisdale

Lord Cross of Chelsea

Director of Public Prosecutions
and
Kilbourne

Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Kilbourne (on Appeal from the Court of Appeal (Criminal Division)), That the Committee had heard Counsel, as well on Monday the 13th, as on Tuesday the 14th and Wednesday the 15th, days of November last, upon the Petition and Appeal of the Director of Public Prosecutions of 12 Buckingham Gate, London, S.W.1, 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 31st of July 1972, might be reviewed before Her Majesty The Queen, in Her Court of Parliament, and that the said Order 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 John Kilbourne, 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 31st day of July 1972, complained of in the said Appeal, be, and the same is hereby, Varied, and that, with the exception of the conviction imposed on the third Count, namely attempted Buggery, the Convictions imposed on the Respondent John Kilbourne be, and the same are hereby Restored: And it is also further Ordered That the Cause be, and the same is hereby, remitted back to Her Majesty's Court of Appeal (Criminal Division), to do therein as shall be just and consistent with this Judgment.

Lord Hailsham of St. Marylebone, L.C.

My Lords,

1

This is an appeal by the Director of Public Prosecutions from a decision of the Court of Appeal, Criminal Division (Lawton, LJ. MacKenna, and Swanwick JJ.) quashing convictions on seven counts of an indictment on which the Respondent was convictcd at the Leeds Crown Court (Lawson J. and a jury) on 19th April, 1972.

2

One of these convictions (count 3 of the original indictment) no longer falls to be considered. It was quashed by the Court of Appeal on grounds extraneous to any important question of law, and the Appellant does not now seek to sustain it.

3

The remaining six convictions consisted, as to one count of buggery, as to the remainder of indecent assault, one of which had originally been presented as a charge of buggery. The charges all related to offences alleged to have been committed against young boys. All the boys gave evidence and were sworn. The first 3 convictions still in question related to dates between October and November, 1970, and the boys concerned were John, Paul, and Simon (the brother of Paul). These convictions are referred to in the judgment of the Court of Appeal, and hereafter, as the first group". The third count relating to a boy, Mark, no longer falling to be considered, also belonged to this group. The fourth, fifth and sixth convictions still outstanding (counts 5, 6 and 7 of the original indictment) related to two boys, Gary and Kevin, and to offences alleged to have been committed against them in October and November, 1971, approximately one year after the first group. These three counts are referred to hereafter as "the second group" Count five related to an offence alleged to have been committed on 3rd October, 1971. The remaining two convictions in the second group related to offences alleged to have been committed on 7th November, 1971, one against each of the two boys, and led directly to the police investigations which appear to have begun at least as early as the following day. On conviction, the Respondent was sentenced to periods of imprisonment amounting to fifteen years in all. These were described by the trial judge (Lawson J.) as having been extended by virtue of s.37 of the Criminal Justice Act, 1967, in view of a formidable list of previous convictions for similar offences and one of attempted murder, committed against the victim of a sexual offence. Pending his appeal to this House, the Respondent was ordered by the Court of Appeal to be detained under s.37 of the Criminal Appeal Act, 1968. If this appeal is allowed, the Respondent's appeals against these sentences still fall to be adjudicated upon by the Court of Appeal (Criminal Division).

4

The appeal relates to corroboration, and is the second of two appeals dealing with this subject which have reached this House in a matter of weeks. The other appeal was D.P.P. v. Hester (now reported in [1972] 3 W.L.R. 910). The decision of this House in Hester had not been given at the time when the present appeal was argued, but I have had the advantage of reading the opinions delivered in that case when they were in draft. There are two manifest distinctions to be drawn between the facts in Hester and the present case. Hester's case was concerned with the alleged mutual corroboration of two witnesses, one of whom (the victim of the alleged offence) was sworn, and one of whom was an unsworn child who gave her evidence pursuant to s.38 of the Children and Young Persons Act, 1933. In the present case all the witnesses were sworn. Secondly, in Hester's case, both the witnesses whose evidence was in question gave evidence purporting to deal with the same incident, which each claimed to have witnessed. In the present case, of the five boys in question, only two pairs claimed actually to have seen the same incident, and in the way in which the trial judge's summing-up was framed, the corroboration in fact placed before the jury related to incidents similar in character to one another, but in respect of each of which the evidence alleged to be mutually corroborative was supported by witnesses from the other group.

5

Both the offences of the first and the second group were alleged to have been committed by the Respondent at his home, where the Respondent resided with a young man called "Vic" who gave evidence on his behalf. It was conceded that all the boys concerned with the charges visited the Respondent there, and partook there of various refreshments or amusements, comics, cards, a puppy to take on a walk and so forth. The reason why they visited the Respondent's home was in dispute. The prosecution alleged that what was set up was a "baited trap The Respondent's case, to which he testified in the box, was that the association was innocent. The boys' presence in his house served, he claimed, to help him in his business as a painter and decorator as they helped to make him known in the neighbourhood. Although a certain amount of physical contact was admitted, it was only "sky larking", and the detailed and unequivocal acts of misconduct which were specifically alleged the accused denied in the witness box. What he admitted, he alleged to have been innocent in intention and entirely devoid of any sexual character. In short, the Respondent's defence was innocent association coupled with a denial of those features of the evidence which were wholly incapable of such a construction.

6

It has been common ground throughout the case that the evidence of the boys was of the class demanding the customary warning to the jury about corroboration. In the event the judge gave such a warning. There was indeed evidence which, if believed, was corroboration of the strongest possible kind. The police officers concerned in the case testified that, in relation to each group, the accused had admitted to "playing with the private parts" or "playing with the penises" (sic) of all the boys of each group, and the Court of Appeal said that, if they could have satisfied themselves that this evidence had been believed, they would have had no hesitation in applying the proviso to s.2(1) of the Criminal Appeal Act, 1968.

7

Happily, or unhappily. Counsel for the prosecution felt unable to rest on the evidence of the police officers as corroboration of the boys, and "by way of safe-guarding his case against the possibility that the jury might reject the police evidence, he submitted to the trial judge … that there was other evidence which was capable of corroborating some of the evidence of the boys". If he had not taken this course the case would certainly never have reached the House of Lords, and, possibly, never have been the subject of a reported judgment in the Court of Appeal. On such small chances, legal history depends. Counsel's submission as to corroboration was in substance accepted by the trial judge, who, as the Court of Appeal held, although the construction of the summing-up is not quite clear, directed the jury that they could regard the evidence of either of the two boys of the second group, Gary and Kevin, as corroboration of the evidence of any of the boys of the first group, John, Paul, Simon and Mark, (whose evidence related to the quashed count three) and conversely the evidence of any of the boys of the first group as corroboration of Gary or Kevin. On the other hand, the trial judge directed the jury that they must not use the evidence of any of the boys of either group to reinforce the evidence of any boy of the same group as that to which the witness belonged. He evidently had in mind that the boys of each group were respectively well known to one another and wished thereby to exclude the possibility that they might have put up within each group, but not between groups, a concocted tale.

8

The Court of Appeal whose judgment was given by Lawton L.J. approached the matter in three stages.

9

Lawton L.J. said:

"We have had to decide whether the evidence of one group of boys was admissible at all on the counts...

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11 books & journal articles
  • Subject Index
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    • International Journal of Evidence & Proof, The Nbr. 7-4, December 2003
    • 1 December 2003
    ...2002 ..............................67DPP v Ara [2001] 4 All ER 559 ..........129DPP v Boardman [1975] AC 421 . 89, 91DPP v Kilbourne [1973] AC 729 .........89DPP v P [1991] 2 AC 447, HL ... 90, 96, 174DPP v S [2002] All ER (D) 200(December) .................................... 104DPP v Wils......
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    • International Journal of Evidence & Proof, The Nbr. 15-4, October 2011
    • 1 October 2011
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    • International Journal of Evidence & Proof, The Nbr. 10-2, May 2006
    • 1 May 2006
    ...SIMILAR FACT EVIDENCE, AND A DIVIDED LAW OF EVIDENCE15 [2003] EWCA Civ 1085, [2004] CP Rep 5 at [80].16 Quoting DPP vKilbourne [1973] AC 729, 756, per Lord Simon of Glaisdale.17 [2005] UKHL 26, [2005] 2 WLR 1038 at [4].18 Although the case management judge may have to anticipate matters, ma......
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    • 1 October 2018
    ...value.9. RvBlastland, above n 7. See extensive criticism of the decision by Roberts and Zuckerman (2010: 105–107).10. DPP vKilbourne [1973] AC 729 (HL).11. Ibid. at 756 (Lord Simon).12. Which was explicitly cited and endorsed by the Court of Appeal in 2002; RvNethercott [2002] EWCA Crim 353......
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