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Appeal 1 Niven James Sinclair 16 Oct 1967 Court of Appeal


Application for leave to appeal against sentence when convicted on 10th March 1966 was dismissed

Redaction

Some reports have had victims names and personal details redacted and some assault details redacted.

This is a difficult balance – normally I would think that I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims, there may also be “assault redacted” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual.

Some redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, instituions where assaults occurred, the actual charges the perpetrators faced – on whichcorporate newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct any inevitable errors, the text should not be regarded as definitive. Alias letters are not transferable between appeals.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

Cathy Fox Blog Index and Timeline of Court Appeals and Documentation [2]

[C}[1967] EWCA Crim J1016-2

No. 1258/67

IN THE COURT OF APPEAL

Monday, 16th October 1967

Lord Justice Edmund Davies

Regina v Niven James Sinclair

(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London, W.C.2. Telephone Number: 01-583 4121. Shorthand Writers to the Court.)

MR. W. HOWARD, Q.C. and MR. BEVAN appeared on behalf of the Appellant.

MR. LEONARD appeared on behalf of the Crown.

JUDGMENT

LORD JUSTICE EDMUND DAVIES: On the 10th March last at the Central Criminal Court before Judge Rogers this appellant was convicted on two counts of buggery and one of indecent assault upon a 12-year old boy, whom we shall refer to as [A] He was further convicted of attempted indecent assault and on one count of actually indecently assaulting another 12-year old, whom we shall refer to as [B]. He was acquitted of indecently assaulting yet a third youth, [C], the 15-year old brother of A. He was sentenced to terms of five years’ imprisonment on the buggery counts, to two years’ imprisonment for the indecent assault on A and to six and twelve months’ imprisonment in respect of the offences on B, all to be served concurrently, totalling five years. With the leave of this Court he now appeals against those convictions and he also applies to this Court for leave to appeal against the sentences.

The facts of this most unhappy case may be summarised in this way. The appellant is a Company Director of 43 [years old]. A said he first met the appellant in October of 1965, the boy having gone to the appellant’s flat to deliver some cable for his father. Thereafter he became a regular visitor there, going two to three evenings a week, according to the appellant’s own evidence. The boy when called for the Crown at first said that nothing improper had happened between him and the appellant. Then leave was granted to the Crown to treat the boy A as a hostile witness, and when he was thereupon cross-examined he came out with evidence of a type extremely damaging to this appellant. The appellant used to give him sherry, and he was given money to buy food, which he then proceeded to cook in the flat. According to the boy, on his first or second visit the appellant [assault redacted] he was given money from time to time. There were other features of the case as admitted by the appellant to which we will shortly refer. According to the boy, he had been [assault redacted] about nine times by the appellant, the last occasion being about a week before the arrest of the appellant.

On the 14th June A took his 12-year old friend B to that flat. There the appellant gave the boys wine and a meal and, according to B, he tried to [assault redacted], and asked the boy if he was coming back the next night and said he would pay him well for a bit of fun. That was B’s evidence. The boys went back the next night when a schoolmaster friend of the appellant’s was also there. They were again given wine and, according to B the appellant in the presence of the schoolmaster tried to [assault redacted], and the appellant gave this boy B £1, the appellant apparently being under the influence of drink. A and the schoolmaster (A was called for the Crown and the schoolmaster for the defence) both said that they themselves saw nothing improper occur between the appellant and the boy B. When A was medically examined on the 16th June it was clear that he had been [assault redacted] on a number of occasions and that the last occasion was recent.

In the course of his evidence the appellant said that he first met the 15-year old C when that boy delivered the milk for the flat. Shortly afterwards he met the boy’s father and then the 12-year old A, who used to visit the flat two or three times a week. C used to clean his car for him, and another brother [D] used to drive for the appellant when he himself was disqualified from driving. A had a key to the flat and cooked and shared his meals frequently. He agreed B had been in the flat on the two occasions in June but denied he had ever indecently assaulted or buggered any of the boys of any occasion.

The schoolmaster said he had frequently seen A at the flat. He was there when A and B came in June but never saw anything improper between the appellant and either of the boys; and this grammar school master went so far as to say that, quite apart from observing nothing of an indecent character, he saw nothing at all unusual in the set-up. Speaking for my part, I regard that as remarkable evidence coming from a schoolmaster.

The learned Judge who dealt with this case was clearly troubled about the aspect of corroboration. In the absence of the jury he said (and this appears at page 11 of the transcript): “I have given this matter careful consideration, but the intervention of a short adjournment has assisted me to consult colleagues as to matters to reinforce my own opinion or otherwise on this matter. Unless I am persuaded to the contrary, I propose to direct the jury that the circumstances of this man’s association with the boy B and possibly the others are such as to enable them to regard that as being capable of being corroboration. I shall not, of course, tell them it is corroboration: but I propose to tell them that if they think it right they can regard it as corroboration of the boy’s story.” I should have prefaced that quotation by saying that when the Crown opened the case they did so on the basis that there was no corroboration. But, of course, frequently, as in the present case, the complexion presented by the evidence alters the attitude of the Crown.

When the learned Judge came to sum-up to the jury he, dealing with the case of A only, there is no doubt gave the jury a perfectly fair and adequate warning about the desirability of corroboration. He said: “Even if the boy’s story does seem to you to have the ring of truth, it is very dangerous to convict on that evidence alone”, and then developed the matter in a manner which has not been attacked and clearly is not open to criticism. Then lie said this: “the only evidence which I can suggest you might think corroborates the boy’s story is the whole circumstances of this particular man’s association with this small boy. I am not saying that does amount to corroboration of the boy’s story. I am going no further than saying it is a matter you may think does corroborate the boy’s story. This is an association of a 43-year-old company director with a boy of 12 when it started, whom he first met when running an errand, and he was then a boy on a milk round.” Then he developed certain other features of the case. “He is very shortly allowed to have a key to the older man’s flat where, on the older man’s own story, the boy visited regularly for something like a year, two or three times a week: that would be 100 or 150 times, perhaps. He is dined by the older man, and wined by the older man, and allowed to help himself to wine, and the boy had the run of the house even to the extent of bringing a friend along and letting the pair of them in – himself and his friend – with his own key. Now, what do you make of all that? Do you think it tends to support the boy’s story that this was not merely an innocent association but he was being treated in this way, and given money from time to time, as he says he was? Well, it is a question for you to consider whether this was innocent, or whether that may support the boy’s account. That is all I am going to say for the moment about A”

We have, of course, been reminded by Mr. William Howard of the essential ingredients of evidence which are properly to be regarded as corroborative and the well-known passage of Lord Reading in Baskerville , (1916) 12 Criminal Appeal Reports at page 91 , which has been once more and not without useful result brought to your attention. It is true that contrary to the decision of the Court of Criminal Appeal in R. v. Gammon ( 43 Criminal Appeal Reports at page 155 ) the learned Judge here did not base his warning as to the desirability of corroboration on the three-fold ground (1) that the charges were of a sexual nature (2) that the complainant was of tender years and (3) that the evidence of A was that of an accomplice, but restricted himself to dealing with the first aspect of the matter only. Nevertheless, the warning was expressed in such clear terms that we consider that no injustice can possibly have resulted from that deficiency.

It is clear that proof of mere opportunity to commit the homosexual acts charged cannot amount to corroboration Burbury v. Jackson , 1917 1 King’s Bench at page 16 – neither can proof of the repetition of opportunities afforded by association over a period; nor can the mere proof that the association was between people of disparate years, otherwise men of mature age would (however exalted their motives) take an interest in the young only at their peril. Even suspicion that homosexual attraction was the mainspring of the association is insufficient, for what is required is evidence capable of corroborating the complainant that the accused is not only homosexual by inclination but that he committed the homosexual acts charged.

Nevertheless, while association per se does not afford evidence capable of amounting to corroboration, it may well be that, when all the features of the particular association are considered, their totality is such that a Judge can properly hold that in conjunction they afford evidence capable of amouting to corroboration, and the jury in its turn will be entitled to find that it does, in fact, corroborate the complainant.

In the present case, therefore, the Judge was entitled (indeed, he was compelled) to have regard not only to the fact of the association over a substantial period (indeed, roughly a twelve month) between this man of 42 and a boy of 12, but also to all the other features of that association. Despite the decision in Harvey v. Anning (1903 67 J.P. page 73) a decision on the bastardy laws that a difference in the social standing of the parties might afford material capable of amounting to corroboration, we do not in this case adopt the same attitude, and this Court has in this case ignored the fact that on the one hand here you have a company director and on the other hand a boy who ran errands for him. Let us recapitulate those salient features of the association over this long period that mere dealt with by the learned Judge. The boy was given the run of the accused’s flat; he held a key and could come and go as he pleased; he could apparently take with him anyone he chose; and in relation to the boy B when the appellant was asked about A bringing B there without as much as a by-your-leave, he used what, speaking for myself, I regard as the very curious expression: “It is not for me to stop his association with that pal”. The 12-year old boy was dispensed wine by the appellant and was apparently also free to help himself to it, although it is said that the glass in which the wine was dispensed was of minute proportions. It emerges also from the evidence that the accused usually, though not invariably, was in his ###query### and dressing-gown when the boy visited the flat. When all these unusual features, as we regard. them, of the association between this man and that boy A are borne in mind, we feel it cannot be said that they did not constitute material capable of amounting to corroboration of the complaint A’s story. There was, accordingly, no misdirection in that respect.

The jury so directed having convicted on those counts, there nevertheless remains the question of whether their verdict was (in the words of Section 4 (1) of the Criminal Appeal Act, 1966) “under all the circumstances of the case unsafe or unsatisfactory”. In this context it is not without materiality to observe that A was a most reluctant witness for the Crown, that he went back on his statement, and that lie eventually testified, as we have already said, against the accused only when cross-examined as a hostile witness. This was a matter to which the jury were entitled to have regard in assessing the weight of his testimony, and, in particular, whether he might have any animus against the accused. When that testimony is considered in conjunction with the damaging evidence which the accused himself gave, we are quite unable to say that the verdict in relation to A was either unsafe or unsatisfactory, and his appeal against conviction upon those counts is accordingly dismissed.

But the position in relation to the other 12-year old B is different. Not only was there no corroboration of the alleged acts of indecency on the 14th and 15th July in relation to him, but that fact was not brought out unfortunately by the learned Judge. The Court of Criminal Appeal in Goddard (1962, 46 Criminal Appeal Reports, 456) said (at page 461) dealing with the warning as to corroboration:

“Quite clearly, it is idle to give that direction simpliciter in a case where in fact there is no evidence capable of amounting to corroboration because the very fact that the direction is given would leave the jury to infer that there was some evidence capable of amounting to corroboration if they looked for it”.

This Court desires again to stress the desirability in cases where it is said that corroboration should be looked for that if no such corroboration exists the Judge should in express terms tell the jury and should employ some such words as ‘I direct you, Members of the Jury, that in this matter there is no corroboration’. In the absence of any warning of that kind the jury may be confused and misled into thinking that some corroboration does exist, the warning as to its desirability having been given.

No such warning having been given in relation to the counts involving B, this Court thinks it would be quite wrong to let the convictions on those two counts stand, and accordingly the appeal against those two convictions is allowed.

As to the application for leave to appeal against sentence, the appellant, now 43, is a single man. He worked in Tanganyika and he received 3 sentences there for assault occasioning actual bodily harm, but there is no suggestion of any sexual element at all. He came to London in 1957, and has held posts with commercial concerns at salaries exceeding £2,000 per annum. In June of 1961 at the London Sessions for indecent assault upon two boys of 12 and 13 he was sentenced to concurrent terms of six months’ imprisonment.

It was said in mitigation in the Court below, and it has been urged upon us here, that this man unhappily is afflicted by homosexual inclinations and has been so afflicted for many years, but he wishes to be cured and accepted recently has voluntarily accepted psychiatric help, It is said, further, that the boy A had been corrupted before he ever met the appellant.

Be that as it may, and accepting submissions which may be firmly based and what has been said on behalf of this appellant in this Court, in view of this long period of degrading association between this man of 43 and a boy of 12, this Court thinks it would be quite wrong in the discharge of its public duty that for offences of this kind inflicted on a boy of 12 to say that the sentence is too long, The application for leave to appeal against sentence is accordingly refused.

2016 Cathy Fox Blog Index / Timeline of Court Appeals and Documentation [2]

Other articles relevant to child sexual abuse see [constantly updated] Index Timeline of Newspaper Articles on Cathy Fox Blog [4]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • Other useful sites are One in Four [C]
  • and Havoca [D].
  • Useful post on Triggers [E] from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G] and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area

Links

[2] 2016 Cathy Fox Blog Index / Timeline of Court Appeals and Documentation https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

[G] Jim Hopper Mindfulness http://www.jimhopper.com/mindfulness/

[H] Jim Hopper Meditation http://www.jimhopper.com/mindfulness/#cultivate

[J] 2016 Jan 5 Hwaairfan blog An Indigenous Australian Approach to Healing Trauma https://hwaairfan.wordpress.com/2016/01/05/an-indigenous-australian-approach-to-healing-trauma/

[K] Survivors UK website for victims and survivors of male rape or the sexual abuse of men https://www.survivorsuk.org/ and twitter https://twitter.com/SurvivorsUK

[L] Voicing CSA website – http://voicingcsa.uk/ helps arrange survivors meetings in your area. Voicing CSA supports the IICSA and VSCP and works to help adult survivors of child sexual abuse find their voice

This is all written in good faith but if there is anything that needs to be corrected please email sinclair

cathyfox

the truth will out, the truth will shout, the truth will set us free

“The only thing necessary for the triumph of evil is that good men do nothing” – Edmund Burke

“He who does not bellow the truth when he knows the truth makes himself the accomplice of liars and forgers.” Charles Peguy

To sin by silence when we should protest makes cowards out of men – Ella Wheeler Wilcox

Original Article: https://cathyfox.wordpress.com/2016/07/09/appeal-1niven-james-sinclair-16-oct-1967-court-of-appeal/

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Editors Notes:

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