The Court of Appeal hands down judgment in R v JM [2015] EWCA Crim 1928 and R v PW [2016] EWCA Crim 745, prosecution appeals against terminatory rulings in sexual offences cases

R v JM [2015] EWCA Crim 1928

In this case, two of our sexual offence specialist practitioners (Benjamin Aina QC and Maria Karaiskos) prosecuted at trial the country's oldest defendant. Jack Mount turned 97 years old during the trial. He faced sexual allegations of a serious historic nature spanning three decades, from the 1950s-1970s. The complainants were two members of the defendant's family and numerous pupils (females and males) who attended a boarding school that was set up and run by the defendant. The boarding school was based in Shropshire and was called Brookside. It catered for girls and boys who were then classified as 'maladjusted' because of their learning difficulties or the fact that they came from broken homes. 

Various legal arguments arose pre-trial as well as during the trial. The defendant was found fit to stand trial by two different Judges: the Recorder of Bristol and then later by the Recorder of Exeter who was the trial Judge. 

The Crown intended to have a trial with 19 complainants originally but the Recorder of Exeter, following severance arguments, ruled that there should be shorter trials with a limited number of complainants. This was mainly due to the defendant's advanced years and his physical inability to manage a trial with extensive evidence. 

The defence further raised an abuse of process application arguing that the case be stayed due to missing documentation from the time of the allegations. For instance, medical records, social services and education records were sparse (although not entirely absent) in relation to three of the female pupils from the school. The Recorder of Exeter upheld this application and stayed the indictment in relation to these three complainants. 

The Crown then invoked s.58 Criminal Justice Act 2003 and obtained leave to appeal the terminatory ruling on the abuse application. The Court of Appeal heard the appeal in November 2015 and following legal arguments all day, ruled that the case was an exceptional case factually. The trial Judge had not erred in upholding the abuse application. The defendant could not have a fair trial as there was material in existence at the time of the allegations which was no longer extant. This material fundamentally included contemporaneous witness statements made by the three complainants which led to a police investigation in 1979. 

Following the above appellate ruling, the case then proceeded to two separate trials. The first trial involved two members of the defendant's family and the second trial involved four male pupils (now in their 60's). The trials were heard at Barnstaple Crown Court despite starting their life in Birmingham. This was because Barnstaple was the closest venue to the defendant. A number of 'Special Measures' were put in place to alleviate the physical obstacles facing the defendant: such as an intermediary being present each day to read material to the defendant and assist his entry/exit into the Court room as well as to provide the Judge with daily updates on the defendant's progress; enhanced microphones and hearing aids as the defendant was of limited hearing; a smaller and different layout of the Court room as the defendant was partially blind; wheelchair and separate entrance for the defendant to prevent any press intrusion; regular breaks and reduced sitting time (10am-1pm with the Court sitting for 40 minutes each session).

The defendant was acquitted in the first trial (against his family members) and the jury were largely 'hung' in the second trial (against the male pupils). In neither case was evidence ruled admissible regarding other complainants or pending trials. 

R v PW [2016] EWCA Crim 745 

In this case, Benjamin Aina QC and Maria Karaiskos were again involved in the prosecution of serious sexual offences which resulted in an appeal against a terminatory ruling to the Court of Appeal. This time the prosecution were successful on appeal.

The case involved a number of defendants (including youths) who made indecent photographs and videos of themselves and/or their friends engaging in sexual activity with a female youth aged 15 years old at the time.

Lord Justice Treacy, following a reserved judgment, ruled that the mens rea for principals making such images was one of strict liability. It was not therefore necessary for the Crown to prove that the defendant taking the photograph / image knew the youth involved in the sexual activity was under 18 years old. This was different to the mens rea of someone opening up an email on social media (such as What's App) as it would have to be proved against them that they knew the people in the indecent images were underage.

As a result of the above ruling, three defendants pleaded guilty. The remaining three defendants made applications to dismiss to the trial Judge sitting at Nottingham Crown Court on the basis that they were accessories rather than principals as they were not cameramen. The mens rea for accessories, it was argued, required knowledge of the age of the child. As the Crown could not prove that these defendants knew the female youth in the photos/videos was under the age of 18 years old, the Crown Court Judge dismissed the charges.

The Crown were left with only one option to challenge this decision: an application to the High Court for a voluntary bill of indictment. Judicial review, an appeal against a ruling at a preliminary hearing and an appeal against a terminatory ruling were not procedurally and legally available options.

The application for a voluntary bill was dismissed. Mr Justice Spencer ruled that the Crown Court Judge had not made substantial errors of law and that she had applied the law properly to the factual scenario that was before her. 

MARIA KARAISKOS © 2016

BARRISTER

33 BEDFORD ROW 

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