R v W (Paul Michael)

JurisdictionEngland & Wales
JudgeLORD JUSTICE PILL
Judgment Date15 October 2003
Neutral Citation[2003] EWCA Crim 3024
CourtCourt of Appeal (Criminal Division)
Docket NumberNo: 200207407/C2
Date15 October 2003
Regina
and
Paul Michael West

[2003] EWCA Crim 3024

Before:

Lord Justice Pill

Mr Justice Royce

The Recorder Of Chester

(His Honour Judge Elgan Edwards)

(Sitting as a Judge of the Court of Appeal Criminal Division)

No: 200207407/C2

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

Strand London, WC2

MR P SHEARS QC appeared on behalf of the APPELLANT

MISS C BRADLEY appeared on behalf of the CROWN

15

th October 2003

LORD JUSTICE PILL
1

On 19th November 2002 in the Crown Court at Lincoln before His Honour Judge Inglis, Paul Michael West was convicted of an offence of indecent assault and an offence of buggery, counts 1 and 2. On 10th January 2003 West was sentenced to 12 months' imprisonment on each count, the sentence suspended for two years. Registration under the Sex Offenders Acts 1997 was ordered for a period of ten years. The judge made a recovery of defence costs order in the sum of £2,500.

2

On count 3 charging buggery West was found not guilty by the jury. Not guilty verdicts were directed by the judge on counts 4 and 5 alleging indecent assault. Those counts related to a time when the complainant had become 16 years of age and there was evidence of consent which by then he was capable of giving and which would have rendered unsafe convictions on those counts.

3

West appeals against conviction by leave of the single judge.

4

The indictment originally contained many more counts than those to which we have referred. All counts alleged sexual abuse by the appellant on the complainant, W. The Crown originally sought trial on a nine count indictment covering allegations of indecent assault and buggery, beginning when the complainant was aged six and continuing until the summer following his 16th birthday. The appellant was born on 27th June 1973 and the complainant on 29th April 1977, so that the complainant was four years younger.

5

The counts upon which the trial proceeded covered a period when the appellant was from 14 to 20 years old. The complainant gave evidence that he met the appellant in 1983 at a judo club held at premises in Lincoln. The club was run by the appellant's parents. The complainant's evidence was that he was first abused by the appellant late in 1983. It began as touching and fondling and thereafter escalated through masturbation and oral sex to buggery. We will later refer in more detail to that earlier conduct. Evidence was given of it and it commenced, according to the complainant, when he was six years old.

6

Count 1 referred to an occasion in April 1988 when the complainant was 10 years old and the appellant 14. The appellant had been masturbating him and had pulled his foreskin back in such a way as to cause a tear underneath. The complainant told his mother about the injury. She took him to the doctor. The complainant said that he had caught his penis in the zip of his trousers. In cross—examination he said he did not tell his parents the real reason because he was so ashamed and he did not think they would believe him.

7

By the time the complainant was 14 years old the alleged sexual incidents had increased to as much as an episode per week. The complainant's evidence was that he did not enjoy them, but he did not tell anyone about them, or tell the appellant to stop as he had been told from a young age that this conduct was normal and he never questioned it. It usually happened in his bedroom or in an alleyway outside his house.

8

Count 2 alleged an occasion of buggery between April 1988 and 1990. The complainant's evidence was that the longest interval between acts of buggery at that time was a couple of months.

9

Following the final episode charged, the two men saw each other occasionally in the street, or at the appellant's garage.

10

Eventually, in March of 1998, that is when he was 21 years old, the complainant told his wife that he had been abused by the appellant. At that time he was going through a difficult period in his life and blurted it out. He also saw his general practitioner and told him about the abuse which the doctor recorded in his notes as:

"Was sexually abused at 8 to 14 years of age."

11

The complainant was fully cross—examined. In cross—examination he did not accept that he had given three different accounts of when the alleged abuse began and ended. He denied that the allegations had been made in the context of his confessing to his wife that he had had an affair.

12

When the appellant was arrested in October 2001 he denied that any sexual activity had taken place. The appellant gave evidence to the same effect. No sexual activity had taken place at any time. He did not see a great deal of the complainant outside the judo training periods. He did sometimes go to the complainant's house, but it would not be after judo but before while they were waiting to attend the session. Visits were infrequent. He, the appellant, had a lot of friends. It all revolved around judo. The complainant was a colleague and a friend. There was no sexual activity at all.

13

Several parents of those attending the judo sessions gave evidence that they had never seen anything improper at the club and all the children respected the appellant, and, indeed, he was treated as something of a role model. It was suggested that the complainant was a neurotic and had fabricated his allegations to deflect from the fact that he had confessed to his wife about having an affair.

14

The judge permitted in evidence a detailed account by the complainant of the events which occurred during the years before the appellant was 14 years of age. The judge admitted that evidence, not under the similar fact principle, but as background to the counts charged in the indictment.

15

On behalf of the appellant Mr Shears QC submits that the evidence should not have been admitted. To consider that submission we refer to it in a little more detail. Giving a general direction to the jury, the judge stated this:

"I'll just mention events before the indictment starts in 1988. That offence, in 1988 alleged, is 14 and a half years ago now but the prosecution account, as given by W, goes back a further four years when he says that the course of conduct started when he was six and the defendant about ten, and you know that the evidence has concentrated on four incidents during that period; at the defendant's parents' house the night before a competition; upstairs in a lavatory at the YMCA [that is where the judo sessions were at one time held], what's been called the Fox and Hounds incident, and in the attic at the Croft Road Community Centre [another place were sessions were held]. Those incidents are not charges on the indictment. You will obviously have to make up your mind about them because if you find that they did not take place or may not have done, as described, that would undermine the Crown's case on the three counts that you have to concentrate on. But those incidents aren't charges. You hear of them because W's account would be incomplete without them, to the point of being incomprehensible. But also, and more particularly, because it is the prosecution's case that Mr W was conditioned from an early age to submit to sexual acts from Mr West and that explains what might otherwise be difficult to explain, namely his submission to such acts right through his teens and up to the age of 16. Those are the reasons why you hear about these earlier alleged incidents. They're relevant to the Crown's case that this was a coercive and manipulative relationship between these two young people, but they do not themselves prove or go towards proving the specific charges in the indictment.

Because of this wider background that you've heard in this case, both of the earlier incidents and also, as it happens, of the incidents that were the subject of counts 4 and 5, which you've also got to consider, when W was 16 years old, I must give you a particular warning when you're considering the particular three counts in the indictment and the ingredients of those counts and whether they're proved. If, at the end of the case, you were to be of the view, and I'm certainly not suggesting that you will or should be, but if you were to be of the view that at some stage there was sexual activity between these two young people, but you did not know to what extent or in what circumstances or at what period, then you must acquit. It's only if, concentrating on each of the counts at a time, you're sure, counts 1, 2 and 3, that you convict."

16

Having given further directions, to which we will refer, the judge did then summarise fully the evidence from the complainant about the four incidents which he mentioned in that part of his summing—up. He repeated what Mr Shears submits was a misdirection in the circumstances:

"The...

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