Neutral Citation Number: [2008] EWCA Crim 1698
No. 2007/00601/B4

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  3  July  2008

B e f o r e:

LORD  JUSTICE  HOOPER

MRS  JUSTICE  COX  DBE

and

SIR  CHRISTOPHER  HOLLAND

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R E G I N A

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KENNETH  TOM  MACKRETH
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Mr M Barlow appeared on behalf of the Applicant

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J U D G M E N T

LORD JUSTICE HOOPER:  Mr Barlow, we will grant you leave to appeal.  But this appeal cannot go forward unless there is a waiver of privilege.  So the first thing is that there must be a waiver of privilege within fourteen days.  Absent a waiver of privilege, the appeal falls because you need such a long extension of time and the court is entitled to know what was happening at that time.  If there are any case management issues, the Vice-President will appoint a Lord Justice to case manage the case so that you have someone to come back to.  I will ask Sir Christopher Holland to give a short judgment.

SIR CHRISTOPHER HOLLAND:
1.  On 5 July 2000, in the Crown Court at Liverpool, the applicant, Kenneth Tom Mackreth, was convicted on 23 counts of indecent assault and ten counts of rape.  He was sentenced to a total of five years' imprisonment.  He was then aged 86.  He has since died at the age of 92 on 22 June 2006.  With the approval of this court the appeal which he had initiated by notice of appeal of 15 June 2006 is being conducted by his daughter Mrs Bateman.

2.  The matter has been before the single judge who refused an extension of time and leave to appeal.  The application has been renewed this morning with the aid of both written and oral submissions by Mr Barlow.  The upshot is that we propose to refer the whole matter to the full court in these circumstances.  First, in relation to the application for the extension of time, we direct that that matter can only be pursued if, within the next fourteen days, there is a waiver of privilege so as to permit enquiries to be made with defence counsel at trial as to the circumstances relating to advice (if any) on appeal.  With that material, this court will be in a position to make a decision as to whether the extensive extension can and should be granted.

3.  The further matter relates to the merits of the appeal.  That in its turn centres almost entirely upon the ruling made by the trial judge that there were no grounds to stay the proceedings as an abuse of process.  We are concerned about the merits of that decision.  Our concerns relate almost entirely to the sequence of events that gave rise to the offences.  It will be observed that the offences covered the period 1973 to 1977.  During that period of time the ten victims were respectively resident in Derwent House Care Home.  The trial was conducted without any reference to the precise history of those years.  It was also conducted without there being available any documentation contemporaneous to those years which related to the events in Derwent House.  That documentation had disappeared during the intervening period.  In those circumstances the jury were not told about the precise history which featured allegations of sexual abuse made against the applicant.  Those allegations were investigated by the police in that period twice (and possibly three times).  It further resulted in the suspension of the applicant in April 1976 and his prosecution at Liverpool Crown Court in March 1977 with respect to allegations made by six young persons presumably resident at Derwent House.  What we know from the press reports (but from no other source) is that only three of those allegations were in the event pursued and that the applicant was acquitted.  Thereafter he was re-instated and remained in that employment until about 1978.  We further gather that in that latter year there were further allegations made against him.  These were referred to the Director of Public Prosecutions, but no action was taken on them.

4.  Thus it is that there was a very involved history during the period contemporaneous with the current allegations.  That history was not adduced before the jury.  Even if it had been adduced before the jury, there would be no basis for cross-checking it with contemporaneous documentation.  In the result, the issues in the trial turned purely upon the unaided recollection of the complainants, coupled with that of a very elderly defendant (the current applicant).  Our concern is whether there could have been a fair trial of these issues absent the availability of evidence as to the full events of the 1970s, which evidence could be cross-checked with reliable contemporaneous documentation.

5.  We point out that there are anomalies that are apparent to the reader of the papers but which would not have been apparent to the jury, namely that one of the current complainants (admittedly not called to give evidence), SM, gave evidence in 1977 for the applicant.  Another anomaly is that a Mrs McAllister, who is currently identified as an accomplice to a very serious sexual assault, gave evidence in 1977 against the applicant.  There is also the curious feature of what appears to be a 1977 document which is a petition for the re-instatement of the applicant signed by many residents of Derwent House.  That document was never adduced before the court, nor could it in the circumstances that arose in 2000, having regard to the history and the lack of the contemporaneous documentation.

6.  In the view of this court there is material here which invites careful consideration, notwithstanding the care with which the trial judge plainly devoted to his ruling.

7.  We add this.  It would plainly assist the full court if the Crown renew its efforts to identify the documentation (if any) that related to any of the matters that we have identified.

8.  LORD JUSTICE HOOPER:  How long should the appeal be listed for?  A day or just short of a day?

9.  MR BARLOW:  I would say one day, my Lord.

10.  LORD JUSTICE HOOPER:  We will say a day for the estimated length of the hearing.  That is to be revisited nearer the time of the hearing.  You do not have to do anything more for the moment because you have done everything.  As the next stage we need a skeleton argument from the respondent within 28 days, with liberty to apply.

11.  MR BARLOW:  My Lord, so far as a representation order is concerned, I seek one in relation to myself but I also seek one for my instructing solicitors in relation to the work which will have to be done in relation to the waiver of privilege and also communications.

12.  LORD JUSTICE HOOPER:  I think we would need convincing that we have the power to make a representation order when the applicant has died.  Can we leave it this way?  If you have such an application, it should be made to the Registrar, no doubt pointing out to him the appropriate law on the topic.

13.  MR BARLOW:  Yes.

14.  LORD JUSTICE HOOPER:  If the Registrar refuses it, my recollection is you have a right to come to a full court.  But again I am only speculating.  Thank you very much, Mr Barlow, for your help.

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