R v Spencer

JurisdictionEngland & Wales
JudgeLORD JUSTICE MAY
Judgment Date02 November 1984
Judgment citation (vLex)[1984] EWCA Crim J1102-16
Docket NumberNo. 3921/B/83, 3922/B/83, 3923/B/83, 6294/B/83, 6303/C/83 and 6304/C/83
CourtCourt of Appeal (Criminal Division)
Regina
and
Alan Widdison Spencer
Kenneth Ball
Michael Dennis Mason
Paul White
and
George Glenville Smails

[1984] EWCA Crim J1102-16

Before:

Lord Justice May

Mr. Justice Drake

and

Mr. Justice Anthony Lincoln

No. 3921/B/83, 3922/B/83, 3923/B/83, 6294/B/83, 6303/C/83 and 6304/C/83

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

MR. W. STEER, Q.C. and MR. SOMERVILLE appeared on behalf of the Appellants.

MR. J.R. ROBERS, Q.C. and MR. R. DIXON appeared on behalf of the Crown.

LORD JUSTICE MAY
1

Mr. Justice Drake cannot be with us today. He has read the judgment which I propose to read and agrees with it. This is the judgment of the Court.

2

On 24th June 1983 in the Nottingham Crown Court before His Honour Judge Hopkin and a jury, the three applicants, Spencer, Ball and Mason, were convicted, as to Spencer, of six counts of ill-treating a patient, contrary to section 126 of the Mental Health Act 1959 and as to Ball and Mason, each on one similar count. Spencer was sentenced to twelve months' imprisonment on each count concurrent, suspended for two years. Ball and Mason were each sentenced to six months' imprisonment, suspended for eighteen months.

3

On 12th October 1983 in the same Crown Court and before the same learned Judge, the applicants White, Smails and Ball again were each convicted of one similar offence contrary to the provisions of the same section of the 1959 Act. On 19th October 1983 they were each sentenced to six months' imprisonment suspended for eighteen months.

4

We heard the applications of each of these men for leave to appeal against their convictions on 4th and 5th October 1984 and reserved our decision, which this now is. In the course of the hearing of these applications it became apparent that an important point of at least mixed law and fact arose, and we thought it right, if leave to appeal was strictly required, that this should be granted. Counsel for the five men was content that we should treat the hearing of the applications as his clients' several appeals against their convictions and we did so. We accordingly refer to them hereafter in this judgment as appellants.

5

These prosecutions were two of a series of fourteen trials which concerned a number of allegations of ill-treatment of patients at Rampton Hospital by the nursing staff, of which each of these five appellants were themselves members. The prosecutions followed upon a television programme in 1979, which made a substantial number of allegations of ill-treatment over the years at Rampton. Police inuqiries were started after the programme had been televised and led to the series of trials, of which these two were part. The allegations against the five appellants were all of some form of assault against a patient or patients at the hospital which was alleged to have occurred between September 1974 and November 1976.

6

In most of the fourteen trials, and certainly in the two with which we are concerned, the prosecution case depended wholly upon the evidence of patients or ex-patients of Rampton, who were plainly "suspect" witnesses. Each Judge who has tried any of these Rampton prosecutions has had this matter well in mind and in the course of his summing up given the jury a substantial warning about the approach that they should adopt to the evidence of such witnesses.

7

In the first of the instant cases the learned Judge's direction to the jury on this point was in these terms: "You must, ladies and gentlemen, approach the evidence of Mr. Hosein, Mr. Firth, Mr. Evan Glyn Hughes, Mr. William Hughes, Mr. Aldred, and Mr. Nugent with great caution. Why? Well for three reasons. Firstly, because they are all persons of bad character. The law, in rules which are formulated over many years, requires me to tell you even if they were merely persons of bad character and nothing else, that you must approach their evidence with great caution. It goes further than that of course in this case. The second reason is this, that at the time of these events they were all persons suffering from some form of mental disorder. Thirdly, they may of course have all conspired together to make false allegations. People make false allegations as we know for all sorts of reasons, some of which have been suggested in this case, but apart from that your own experience no doubt tells you that people do on occasions make false allegations. So therefore I must tell you that as far as all those patients are concerned you must approach their evidence with great caution. You would be wise to look for support for their evidence for those reasons. I tell you at once, Mr. Steer is right, "and Mr. Roberts does not argue to the contrary, that there is no support for their allegations at all because as far as they are concerned even where you have two or three of them giving evidence upon one particular count, one witness of this type cannot support another. But, if, ladies and gentlemen, having seen them and having heard them and borne in mind the warning which I have given to you you come to the conclusion that you are sure in all or any of their cases that they are telling the truth, then you may convict upon their evidence without there being any support at all. It is, as I say, for you to judge the facts. When I say the facts I mean also the importance which you attach to any particular witness and whether or not he is telling the truth."

8

The terms of the learned Judge's direction in the second of the instant trials were substantially the same.

9

Another of the series of trials relating to the alleged treatment of patients at Rampton Hospital was R. v. Bagshaw, Holmes and Starkey, which was tried also in the Nottingham Crown Court before Judge Hopkin and a jury on 11th May 1982, and subsequently reached the Court of Appeal (Criminal Division), whose judgment in the case is reported at (1984) 1 W.L.R. 477.

10

In his summing up in that case the learned trial Judge warned the jury about the evidence of similar witnesses in very much the same terms. The only possibly relevant difference was that his direction in the cases presently appealed from included the phrase: "You would be wise to look for support for their evidence for those reasons", whereas the direction in Bagshaw's case did not.

11

In that earlier case another Division of this Court held that the learned trial Judge's direction had been inadequate and allowed appeals against conviction. The Court held that with witnesses of the nature and having the disabilities of Rampton patients, to which the learned Judge referred, nothing short of a full warning that it is dangerous to convict on this uncorroborated evidence will suffice

12

At page 484D of the report of Bagshaw's case, Lord Justice O'Connor, giving the considered judgment of the Court, said: Patients in hospital under the Mental Health Act 1959 are not a category like accomplices or complainants in sexual cases, nor would we wish to make them into an additional category. Patients detained in a special hospital after conviction for an offence or offences, even if they are not a category, may well fulfil to a very high degree the criteria which justify the requirement of the full warning in respect of witnesses within accepted categories. It seems to us that in such cases nothing short of the full warning that it is dangerous to convict on the uncorroborated evidence of the witness will suffice.

13

"The cases recognise that there is a difference between a warning that the jury should approach the evidence of a witness with caution and a warning that it is dangerous to convict. Indeed, the difference is obvious: see R. v. Price (Herbert) (1969) 1 Q.B. 541; R. v. Riley (1979) 70 Cr. App. R. 1 and R.v. Holland (1983) Crim. L.R. 545.

14

"We are in no doubt that the three complainants in the present case were shown to be persons in respect of whom the full warning was essential."

15

Mr. Steer's first submission on behalf of the appellants in the appeals before us was therefore that we were bound by the decision in Bagshaw's case, that the former could not be distinguished from the latter and that consequently these appeals should also be allowed.

16

On behalf of the Crown Mr. Roberts submitted that the Court's decision in Bagshaw was reached per incuriam, in that it was inconsistent with earlier decisions of this Court which were not cited to it, that in such circumstances it was not only open to, but indeed the duty of, this present Court to choose between two inconsistent lines of authority, that having done so we should respectfully conclude that Bagshaw was wrongly decided, that the direction given by the learned Judge in the instant cases was wholly adequate and that accordingly these appeals should be dismissed.

17

Mr. Roberts himself appeared for the Crown in Bagshaw's case. He told us, and we accept, that the question of the adequacy of the trial Judge's direction in that case was not originally raised in the appellant's grounds of appeal. As appears from the report at page 479E, this ground was only raised by way of an amendment of the original grounds allowed by the Court in the course of the hearing of the appeal. It is quite clear that the relevant amendment was made during the opening submissions of counsel for the appellants at the suggestion of the Court, and that although Mr. Roberts sought to deal with the fresh ground as adequately as he could in his reply, he confessed that he now realises that he ought to have dealt with the point far more fully, as indeed he did in his submissions before us.

18

Counsel accepted that in general the Criminal Division of the Court of Appeal is bound to follow its own decisions in the same way as the Civil Division of the Court. He...

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