Last month, the Court of Criminal Appeal departed from its habitual deference to jury verdicts and allowed an appeal by a 78-year old man, Derrick Cooper. The appeal concerned two charges on which a jury had convicted him last year. He had been sentenced to twenty months’ imprisonment.
The argument was somewhat technical. However, because this was not a case in which sexual offences were alleged, the names of the complainers are published.
When Mr Cooper was convicted last year, the school was dubbed “evil and twisted”. The press sought to smear him because he had previously worked at a school named Knowl View in Rochdale, where the late Cyril Smith MP was alleged to have abused boys. Guilty by association then, obviously.
So what had gone on? Mr Cooper had between 1976 and 2006 run a private school called Underley Hall School in Kirkby Lonsdale, Cumbria. According to press reports, a former pupil named Ryan had been campaigning for action because another member of staff named Mayer had been accused of sex offences as long ago as 1997, but had committed suicide.
“Problem” children – enter claimant lawyers
Guess who the pupils were? Boys aged between 7 and 16, placed there by local authorities because “by reason of their behaviour and other problems, [they] could not be educated within the mainstream educational system”.
This is a polite way of saying that they had been excluded from ordinary schools because of unmanageable, anti-social or insubordinate behaviour. Indeed, some of them had already served prison terms. Some of the complainants told the court frankly “of the extremely disruptive and disorderly behaviour of some of the pupils”.
It’s remarkable, indeed, that the state was prepared to fork out for them to have a private education, notwithstanding. Nowadays, I think that there must be very few private providers prepared to accept such pupils. As this sorry case shows, you get precious little thanks for it.
The Hall was a beautiful building: a testament to the days when people were naïve enough to think that problem children should be given a second chance in an attractive setting.
A striking feature of the case was that these very stale claims had emerged as a result of a group of ex-pupils’ civil bid for compensation. I wonder who their solicitors were – members of ACAL, perchance?
The accusers’ lawyers must have been doing their cases on a “No win, no fee” basis, hoping that a series of convictions would get their clients over the very considerable problems of limitation posed by the terms of the Limitation Act 1980 (as amended). The alleged offences happened over 40 years ago.
According to the court report, there were five defendants: the appellant; Mr Taylor, Mr Studley and Mr Farish (former teachers); and Mr Hadwin (a former school handyman).
And there were eleven counts on the indictment, as follows:
By Counts 1, 2, 4, 5, 7 and 11 the appellant was – in the case of Count 5, jointly with the co-accused Hadwin – charged with counts (not charged as multiple-incident matters) of assault occasioning actual bodily harm against former pupils respectively called Emmott, Gow, Preddy, Douglass, Hann and Aspin.
The co-accused Taylor, Studley and Farish were individually each charged with one count of assault occasioning actual bodily harm against other former pupils, respectively called Seddon, Atobatele and Kearney.
In addition, the appellant faced two counts of cruelty against a person under the age of 16. Count 6 related to a former pupil called Foster: it was alleged in the particulars of offence that the appellant had engaged in repeatedly slapping him and punching him.
The second count of cruelty, Count 8, related to a former pupil called Hann (who had also been the complainant for the purposes of Count 7). That count has loomed large in argument before us and requires setting out:
” STATEMENT OF OFFENCE
CRUELTY TO A PERSON UNDER 16 YEARS, contrary to section 1(1) of the Children and Young Persons Act 1933.
PARTICULARS OF OFFENCE
DERRICK COOPER between the 25th day of June 1984 and the 16th day of January 1987being a person who had attained the age of 16 and having the responsibility for Sean Hann, a child under that age, pursued a course of conduct in that he wilfully assaulted, ill-treated, neglected, abandoned or exposed the said Sean Hann in a manner likely to cause the said Sean Hann unnecessary suffering or injury to health by assaulting and humiliating him in the dining area of Underley Hall School.”
“No we don’t need evidence”
The prosecution had fallen for the “We Believe Them” mantra. They have been trained to do so by Sir Keir Starmer QC, now ex-DPP. It is more sophisticated, said Sir Keir, to assume that “victims” – or, more accurately, complainants – are telling the truth.
But the problem with this is that you can charge anyone with anything. It doesn’t matter about evidence: you don’t need evidence. As the Metropolitan Police Service famously said in the case of Paul Gambaccini, “we only need people who agree”.
And so the CPS opened their case in melodramatic terms. The school was described as “an abusive school”, with “a culture of concealing the truth”. You can imagine the jury thinking: slam-dunk. The accused were said to have assaulted boys deliberately “to instil fear and brutality”.
I may have missed something, but aren’t barristers supposed to observe a modicum of restraint when prosecuting? I thought that the Crown was meant to act neutrally, and not get into the arena with accusers. Perhaps I am mistaken. But after all, I am not a criminal barrister, so what do I know?
What happened? All the other defendants were acquitted.
What about Mr Cooper? Well, he had some luck, as the jury also acquitted him on Counts 5, 6, 7 and 11. As for Counts 1 and 4, they could not agree. Eventually, with the CPS’ agreement, with the consent of the prosecution, not guilty verdicts were formally entered on those counts.
But he was convicted on Counts 2 and 8. Off he went to jail – a frightening experience for anybody, but especially a man of his age. As Cooper later explained to the Sunday Times:
Many of the people I would have liked to call as witnesses were dead and records had been destroyed. After a lifetime of dedicated service to needy children, I had become a criminal. I discovered it is almost impossible to prove your innocence about events so long ago.
It is clear from the court report that both the successful accusers’ real issues were with Mayer, who had died long ago. The appeal kicked off with Count 8. A pupil named Sean Hann, who had previously absconded, claimed that when in the school dining room with others present, Mr Cooper had smashed a tray of food into his face causing injury. Hann further claimed that he had been forced to wear a towel.
Hann also claimed that prior to that incident, Mr Cooper had assaulted him in the headmaster’s study also causing injury. That was Count 7. But the jury acquitted Mr Cooper of that allegation.
So counsel for Mr Cooper told the Court of Appeal that it made no sense for the jury to reject the pupil’s account of one assault in a private place (the study), while accepting his claim of a second assault shortly afterwards (and in public view).
He also argued that the charge under Count 8 was confusing: it alleged that Mr Cooper had assaulted and humiliated Hann in the dining room. But the charge of “cruelty” under section 1(1) of the Children and Young Persons Act 1933 does not encompass an allegation of “humiliation”.
The appeal court thought that the judge had failed to explain to the jury clearly that “humiliation” on its own was not enough. They allowed the appeal, thinking that the jury may have convicted Mr Cooper of “humiliating” Hann when this was not an indictable offence. An assault is qualitatively different from humiliating someone.
What about Count 2? That involved a former pupil named Henry Gow. He claimed that Mr Cooper had head-butted him in the school dining room in front of other pupils and that when he fell, Mr Cooper “kicked him and then picked him up and gouged his eyes, leaving him with a black eye or eyes.”
Gouged his eyes? That sounds awful. A black eye or eyes sounds more consistent with a blow rather than gouging. The problem was, there was no contemporaneous evidence of this happening. Gow said that he did not complain to anyone because he counted himself as “pretty hard”:
He referred to the appellant as being “all right and quite jovial” and agreed that there was for most of the time a caring environment at the school. He maintained, however, that the assault in question had occurred. When his contemporaneous Social Service records were put to him, which recorded him being positive about the school at the time and as raising no complaints, he denied that he had ever spoken to Social Services or other professionals about the school. At one stage in his cross-examination, he said that he was not prepared to tell the whole truth but was being selective in what he was prepared to answer: albeit he had come to court to tell the truth.
It seems the trial judge had told the jury that evidence on one count was “cross-admissible” on another. But as its verdict on Count 8 was unsafe, it followed that the conviction on Count 2 should also be regarded as unsafe.
And the CPS said it would not seek a retrial.
A cruel and expensive fiasco
What a cruel and expensive fiasco this was. It is painfully obvious that the CPS only went ahead with the decision to prosecute because it thought that with a number of accusers, it was bound to win. “Throw enough mud, and some will stick”. “No smoke without fire”. But this is irrational. What, in reality, the Crown was seeking to do is to rely on an appeal to emotion and prejudice. Combining a number of weak cases does not strengthen any individual case.
The real animus in the case was, it seems, against the dead former teacher Mayer. The defendants were, effectively, being made scapegoats, because a number of disaffected ex-pupils were embittered about someone else not being convicted over twenty years previously. This was a way of settling of old scores, at others’ expense.
In my opinion, these stale cases should not be prosecuted. They are wide open to abuse, and the lack of evidence makes them a pathway to miscarriages of justice. Indeed, as the late Judge Adrian Hardiman said, sitting in the Irish Supreme Court, they are a parody of justice.