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Appeal 2 Niven James Sinclair 6 Feb 1973 Court of Appeal


Sinclair applied for leave to appeal against those convictions of May 14 1971, which was granted.

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]

[1973] EWCA Crim J0206-3

No. 2397/B/71

IN THE COURT OF APPEAL

Tuesday, 6th February 1973

Lord Justice Orr

Regina v James Niven Sinclair

(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London, WC2R 3AT. Telephone No: 01-583 4121. Shorthand Writers to the Court.)

THE APPLICANT was not present and was not represented.

JUDGMENT

LORD JUSTICE ORR: On the 14th May, 1971 at the Central Criminal Court, after a trial lasting twelve working days, this Applicant was convicted of the following offences: four offences of buggery – two with a boy of fourteen and two with a boy of thirteen – for which he was sentenced on each to ten years’ imprisonment; four offences of indecent assault – two on a boy of fourteen and one on another boy of fourteen and one on a boy, [A], of fifteen – for each of which he was sentenced to eight years’ imprisonment concurrent; and finally to an offence of attempting to procure the boy A to commit an act of gross indecency for which he was sentenced to five years’ imprisonment concurrent.

He had previously pleaded guilty on the 22nd April to three offences, one of possessing a Beretta automatic pistol without a firearm certificate, another of having that pistol in a public place and a third of possessing that pistol after a sentence of imprisonment, and on the 14th May at the conclusion of the trial he was sentenced for each of those offences to two years’ imprisonment concurrent and concurrent with the other sentences to which I have referred, making a total period of imprisonment of ten years.

He now, after refusal by the single Judge, applies to this Court for leave to appeal against those convictions, that is on the sexual charges, and the sentences, to call fresh evidence, to be present at the hearing and also for certain transcripts of submissions, applications and portions of the evidence given at the trial.

He had been given Legal Aid for his defence at the trial, embracing Leading as well as Junior Counsel, but shortly before the commencement of the trial he decided to defend himself and the Legal Aid Order was discharged, but it was later renewed so as to enable Leading Counsel to address the Court in mitigation on his behalf.

At the trial he cross-examined witnesses for the Prosecution but elected, instead of giving sworn evidence, to make an unsworn statement which occupied the whole of one day and substantial parts of two others. In the Court of trial he complained to the Judge that the boy [B], the brother of the alleged victim of two of the charges of buggery, was not on the list of witnesses and he was then told that the boy would be brought to the Court, but he then declined that offer and said that he had intended to call witnesses but no longer proposed to do so.

There was considerable delay after he had given notice of appeal in the obtaining of the short transcript due to illness of the shorthand writer and his subsequent giving up of his employment. The transcript, when obtained, was sent on loan to the Applicant’s former solicitors so that they might advise him as to grounds of appeal, but they were unable to act at that time and the Applicant dispensed with their services. In the result directions were sought from the single Judge and he decided to deal with the applications on the short transcript and on a letter from the Applicant setting out in general terms his complaints about conviction, and having considered those documents the single Judge refused leave. Thereafter the Applicant delivered his own detailed grounds of appeal comprising of 620 type-written pages and a further 36 pages subsequently supplied in which he sets out and elaborates 36 legal reasons and further factual reasons for acquittal, and he has sent further material to us up to and including yesterday.

Because he had submitted his grounds of appeal in so much detail, we did not give him leave to be present at this hearing, and in view of the trouble that he has taken over the preparation of these grounds and the fact that we have before us very much more lengthy grounds of appeal than were before the single Judge we propose to deal with this application at greater length than we would otherwise have thought appropriate.

The background of all the sexual offences charged is that the Applicant, aged forty-six at the time, single, and who lived alone in a maisonette in Stanmore, was on friendly terms with a number of boys, some of whom he met on Stanmore Common, others he found as a result of enquiries at the local newsagents and some were introduced by others. To these boys he offered Jobs such as exercising his Boxer dog or cleaning his flat, the standard rate of pay being £1.50 per week, supplemented by occasional visits to restaurants or the cinema and gifts of clothing or cash.

The first Count in point of time, Count 12, alleged an indecent assault on [C] , who was introduced to him by another boy who worked for the newsagent. C, at that time fourteen-years of age, was taken on by the Applicant at the end of March 1970 to exercise his dog. His evidence was that two months later the Applicant [assault redacted] and asked him to be his friend and keep it secret. C, however, told another boy, A, and his parents and wrote saying he would not work for the Applicant any longer.

Counts 13 and 14 related to the boy A, then aged fifteen, who was introduced to the Applicant by C and was taken on over about the same period to clean the flat during the holidays and exercise the dog. His evidence was that one evening when they were alone in the flat the Applicant said that he would like to [assault redacted], and he, A, refused. That is the subject of Count 14 of attempting to procure A to commit an act of gross indecency.

On a subsequent Sunday morning, according to A’s evidence, the Applicant [assault redacted] . He later gave him money. Shortly after that A left the Applicant’s employment because his parents moved away. The Judge told the jury that these two boys “had certainly put their heads together”, but that it did not necessarily follow that their stories were false.

Counts 1 and 2 alleged buggery of [D], fourteen years of age, and Counts 5 and 6 buggery of [E], thirteen years of age, in July and August of 1970. With these two boys the Applicant got into conversation on Stanmore Common and he offered them jobs cleaning the flat and exercising the dog. The mothers of these boys gave evidence of their receiving letters and telephone calls saying that the Applicant’s wife was in Scotland and asking their consent to his engagement of the boys. But that evidence, to which the learned Judge invited the jury to give considerable weight, the Applicant disputed.

Both these boys gave evidence that the Applicant had [assault redacted] them on more than one occasion but there were certain discrepancies between their evidence and in the case of each of them between his evidence and his written statement, of which discrepancies the learned Judge carefully reminded the jury. There was also, in relation to these charges, important medical and scientific evidence given by Dr. Martin that in his opinion each boy had been [assault redacted] gave it to Miss Howard, a scientific officer [details redacted]

This is a matter much relied upon by the Applicant in his grounds and it appears to this Court that at one stage in the summing-up the learned Judge wrongly suggested that Miss Howard had said in evidence that [details redacted] there for a week, whereas it was, in fact, Dr. Martin who had referred to that period, but the jury, after retiring, asked to be reminded of the medical and scientific evidence and the Judge then accurately reminded them of what Miss Howard had said both at the trial in evidence and previously at the Magistrates’ Court. At the trial she said that she could not say how long [details redacted] and at the Magistrates’ Court she had thought for a maximum of three days.

The Applicant, in relation to the evidence of Dr. Martin and Miss Howard, sought to show that the latest date on which he could have [assault redacted] with Parish was outside the limit adopted on the medical evidence. As to this issue in the case we are satisfied that the learned Judge fully and fairly reminded the jury of the evidence and properly directed them.

Counts 9 and 10 charged two indecent assaults in August of 1970 on a boy, [F], aged fourteen years. According to his evidence he went to the Applicant’s flat as a result of a telephone call from B and subsequently two indecent assaults took place, the Applicant [assault redacted].

The remaining Count, Count 11, concerned a boy [G] , aged fifteen, whose evidence was that he was followed in the street by the Applicant in his car, who offered him a job and invited him to call at the flat. He, G, told his father about this, who took him to the Police Station, but no immediate action was taken. Shortly after that the boy’s evidence was that he was picked up by the Applicant in his car and taken to his flat and there, according to him, the Applicant [assault redacted]. He then told his father about this matter, who took him to the Police Station again with the result that the Applicant was interviewed by Police Officers on the 3rd September and reliance was placed by the Prosecution on certain answers which he was then alleged to have given.

The Applicant, in the view of the learned Judge, had, not challenged these answers, that is the Police evidence as to these answers, in cross-examination of those Officers, but he made it clear during the summing-up that he was, in fact, challenging that evidence.

In addition to the boys who were the alleged victims of offences, three other boys were called for the Prosecution [H] aged fourteen, [J] and [K] – as to whom no charges were made in the indictment but whose evidence, in our judgment, was properly adduced under the principle referred to in R. v. Sims , reported in 1946 King’s Bench, p. 531 and R. v. Campbell , reported in 1956 2 Queen’s Bench, p. 432 . Devine said that on one occasion he was left alone in the flat with the Applicant, who took him into the bedroom, undressed to his underwear and pointed to the bed. H then went and locked himself in the” lavatory. J and K gave less specific evidence, but it was evidence which was capable of being considered by the jury as pointing away from an innocent association.

The Applicant in his unsworn statement denied that he had committed any of these acts that were alleged against him and his case was summarized by the Judge as being that the Prosecution evidence consisted of nothing more than surmise, innuendo and a pack of well-rehearsed lies. The learned Judge in summing-up warned the jury as to the possibility of some of the boys, having concocted a story to incriminate the Applicant, but rightly reminded them that on the evidence some of the boys did not know others.

As to corroboration it may well be, in the light of the decision of the House of Lords in the Director of Public Prosecutions v. Kilbourne reported in Monday’s Times and of which we have had a transcript, that the learned Judge’s direction based on the older authorities may have been more favourable than it ought to have been to the Accused when he told the jury that evidence of one boy that the Applicant had indecently assaulted him was no corroboration of the evidence of another that he had been indecently assaulted on another occasion. But the Judge correctly directed the jury in the terms of Campbell’s case that a series of incidents might help them to determine where the truth lay provided they were satisfied that there had been no collaboration between the boys to put up a false story.

It is impossible to refer in this judgment to all the grounds of appeal put forward by the Applicant. Many of his legal grounds proceed, and it is not a matter for which he can be blamed in any way, upon a misunderstanding of passages from Archbold, of which he cites a great number. Other of his grounds, both legal and factual, have been answered in the review that I made of the facts, in particular, for example, his complaint about the boy B not having been called when an opportunity had been given to him to have him called and others of these are contradicted by the transcript before us.

His grounds in relation to the medical evidence have, in our view, no merit, the Judge having fully and fairly reviewed the evidence as I have earlier stated. Having considered all these grounds, along with the further documents he has sent to us, we find no substance in any of them and we refuse leave to appeal on any of those grounds.

We have, however, come to the conclusion that there is a matter of law on which he is entitled to appeal as of right. The learned Judge, in what appears to us to have been an otherwise quite impeccable summing-up, used the formula in directing the jury that it would be safer and wiser to look for corroboration.

In the case of R. v. Henry and Manning , reported in 53 Criminal Appeal Reports, page 150 , it was laid down by this Court that: “What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone.” In our view it is arguable that the use of the words “safer” and “wiser” did not satisfy that requirement.

On that point we would give leave to appeal if it were necessary to do so, but the point appears to us to be one of law. We consider that the Applicant should have Legal Aid, if he is willing to accept it, and we strongly advise him to do so, more especially since if the directions were held to be insufficient the question of the appropriateness of applying the proviso would inevitably arise. The subject matter of the appeal being law, we do not grant the Applicant leave to be present at the hearing. He also asks for leave to call further evidence and for certain transcripts, but we reject both these applications. E, whom he seeks to call for further cross-examination, was called and cross-examined at the trial. As to [L] , we have not been satisfied that he could give any relevant evidence. Further, if the Applicant wanted him to be there he should have made an application, as it seems to us, at the trial, as he did in the case of B.

Finally, there are no provisions which enable a medical export to be nominated by the Court in such circumstances as these. We refer the application for leave to appeal against sentence to the full Court.

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-2-niven-james-sinclair-6-feb-1973-court-of-appeal/

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Editors Notes:

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