The Court of Appeal has quashed B.W.’s indecent assault convictions while leaving in place the convictions of his co-accused F. McL. in a historic abuse prosecution involving two brothers.
Both men were convicted in August 2014. The complainants, identified as G.S. and K.S., alleged abuse dating from the 1960s and 1970s. F. McL. faced allegations concerning both brothers. B.W. faced five counts relating only to K.S. and to incidents at which both accused were alleged to have been present.
On appeal, both men challenged aspects of the joint trial and the judge’s directions to the jury on corroboration, delay and what was described as “system evidence” — evidence that similarities between independently made allegations may support one another.
The Court of Appeal rejected the argument that separate trials should have been ordered. It found strong similarities in the allegations against F. McL. and held that the counts were appropriately tried together.
It also upheld the trial judge’s warnings about the difficulties created by historic allegations. The jury had been reminded that long delay could make it harder for accused people to identify witnesses, establish alibis or challenge memories. The appeal court considered that warning adequate.
The decisive issue for B.W. was different. G.S. had made no allegation against him and had expressly said B.W. had never touched him. Only K.S. accused B.W.
The trial judge nevertheless discussed system evidence without clearly explaining that B.W.’s position differed from F. McL.’s, against whom both brothers had made allegations. The Court of Appeal held that this omission could have confused or misled the jury when considering corroboration.
B.W.’s convictions were therefore quashed. The court said it would hear further submissions on whether he should face a new trial.
F. McL.’s appeal was dismissed. The court found no basis for concluding that his trial had been unfair or his convictions unsafe.