s.8 Sexual Offences Act 1967: Sir Norman Skelhorn’s Consent to Prosecute v. Police Powers of Prosecution

While police retained powers of arrest, custody and bail over people suspected of having committed offences (a) and/or (b) below only the Director of Public Prosecutions (‘DPP’) could either lay charges or give consent to charging/prosecuting:

(a) buggery/ gross indecency or attempted between man over 21 and a male under 21

(b) procuring or commanding buggery/gross indecency between man over 21 and a male under 21 In 1972 s.48 of the Criminal Justice Act disapplied requirement of DPP consent to prosecute where charges had been made under the Indecency with Children Act 1960. However since the ICA 1960 only defines ‘children’ as those under 14 it would still have meant that while police had powers to prosecute where children had been abused, abuse of male children over the aged of 14 could still only be prosecuted with consent of the DPP even after the tempering of s.48. The current CPS guidance is here: http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/ But I couldn’t find an equivalent restriction on prosecution /consent to prosecute for heterosexual offences where one person is under the age of consent. Why?

Recently the Needle Blog put me out of my misery by publishing an answer as to why s.8 came to exist backed up with the illuminating find of a press report on how an early 1968 case [ R v Angel] with representation from solicitors’ firm Kingsley, Napley & Co, a case which served to drive home the message to police of the consequences of prosecuting sexual offences with boys without DPP consent. The court had no choice but to quash the conviction of a 58 year old man for raping a 9 year old boy, declaring the trial and committal proceedings null and void with the defendant being released from prison immediately.

It turns out Leo Abse MP had introduced the s.8 amendment at close to 4 in the morning of 4th July [ HC Deb 03 July 1967 vol 749 cc1491-525 ]

“The only amendments to be carried were those moved by Mr Abse to meet concern expressed by some members that the consent of the Director of Public Prosecutions would not be required to prosecute where there was a long-standing relationship between a homosexual over 21 years and one under 21; or where an older man had been seduced or blackmailed into a homosexual act by a man under 21.”

“The Bill, unamended, said Mr Abse would leave the police free to prosecute the older man, even though this might not do justice between the offenders. Under the amendment, where the parties to the alleged offence were an adult and a minor, the case would be referred to the director to be looked at as a whole.” [Needle Blog, The Times 4 July 1967]

In July last year allegations surfaced that Abse’s good friend, Welsh Labour MP George Thomas (Speaker of the House of Commons and later raised to the House of Lords as Viscount Tonypandy in 1983 under Thatcher) had raped a 9 year old boy, the son of Labour party activists he was friendly with, and who currently resides in Australia. The blog Liberal England brings press reports of those allegations together here quoting from Abse’s book as per below (read the post to appreciate the point about timing and difference between the American and English editions of Abse’s book) and raises an important point about Australia being the location of choice to which George Thomas liked to consider dispatching potential ‘scandals’.

But there were times when my advice had gone unheeded. While still a backbench MP, he asked me for a loan. The specificity and size of the loan, £800, aroused my suspicions.

He poured out the story. I urged him to let me deal with this extortioner. But to no avail. That sum – the ticket and resettlement money which was to take the man to Australia – would, George insisted, mark the end of the affair.

I had profound misgivings but I could see George was near breaking point. I gave him the money. [Liberal England, Leo Abse, ‘Tony Blair: The Man Behind the Smile]

The date of the allegation of rape of a 9 year old would be closer to 1968 and the passage of the Sexual Offences Bill through Parliament which Abse so ably steered, as evidenced by his early morning amendment to Clause 8, particularly concerned as he was with protecting men over 21 from seduction and ‘blackmail’ by those under 21.

Abse does say that this incident took place when Thomas was still a backbencher, whereas the supposed rape seems to have taken place in the late 1960s or early 1970s, which makes the dates hard to reconcile. [Liberal England, Viscount Tonypandy & Leo Abse ]

Without s.8 the police would have retained power of prosecution, and if for example, there was corruption within a force (as was discovered in the Flying Squad/ Obscene Publications force with the help of Lord Longford and Piers Morgan’s grandfather Major Matt Oliver in 1971-72) the police would have effectively held the reigns of blackmail if faced with decisions whether to prosecute prominent public figures.

Oz trial lifted lid on porn squad bribery

Secret home office papers show how prosecution of hippy magazine helped unearth a web of corruption that landed Yard men in jail

Alan Travis, Home Affairs Editor, The Guardian
Saturday November 13, 1999

The outcry over the 1971 Schoolkids Oz censorship trial sparked a major corruption inquiry in Whitehall which ended in the jailing of the senior officer responsible for the magazine’s prosecution, newly released confidential Whitehall documents reveal.

The secret home office papers published today show the public backlash to the savage sentencing of Richard Neville and the editors of the hippie magazine helped precipitate Scotland Yard’s biggest ever anti-corruption drive in which 400 officers, including a deputy assistant commissioner, were imprisoned or left the force.

The head of the Metropolitan police’s obscene publications squad, who targeted the capital’s burgeoning samizdat, also ended up behind bars as had Neville and the magazine’s other two editors, Felix Dennis and Jim Anderson.

The papers were not due to be made public until 2003 but have been released early under the open government initiative. They show that the then home secretary, Reginald Maudling, was so stung by the accusation that the police were singling out hippie publications such as Oz and the Little Red Schoolbook for prosecution while Soho pornographers were being let off the hook that he ordered a major inquiry.

Detective Chief Inspector George Fenwick, then in charge of the “dirty” squad, told Mr Maudling that pornography could not be stamped out because it had existed for centuries, and justified his targeting of Oz and the Little Red Schoolbook as indecent publications which were aimed at children and advocated “the alternative society”.

Fenwick disputed the home office’s claim that the Soho bookshops were operating with impunity. “I would rather question the assertion that pornography was on ‘open sale’ in Soho or indeed anywhere else in London on a large scale. I would, however, agree that it can be found in various bookshops when it is particularly asked for.”

Home office civil servants said this weasel explanation “left a good deal to be desired”.

Detailed allegations were made of police corruption soon after the Oz inquiry. Fenwick was eventually jailed for 10 years as the “chief architect” of the biggest ever Met corruption ring in which the Soho porn merchants had some of the most senior police officers in Britain on their weekly payroll.

The Oz case at the Old Bailey was the longest obscenity trial in British legal history. The original sentences of up to 15 months for Neville and the others sparked a wave of protest from Beatle John Lennon, a young John Birt and many others.

The convictions were quashed on appeal only after, it is alleged by Geoffrey Robertson, one of the defence counsels, the lord chief justice, Lord Widgery, sent his clerk, a former merchant seaman, to Soho one lunchtime to buy £20 worth of the hardest porn he could find. The contents of Oz paled in comparison.

After the trial Fenwick had to explain to Maudling why he had targeted Oz. In his confidential report dated August 13, 1971, he said: “In this country at the minute there are somewhere in the region of 80 publications which advocate what in the current idiom is called the alternative society. Of these about 25 can be termed ‘underground’ press and a number of them contain articles which can be described as indecent.

“However, by far the worst of these are Oz, Frendz and IT, in that order. These in fact are the only ones against whom action has been taken or indeed contemplated in the last 12 months.”

He said that alongside these “underground” publications so-called sex instructional literature had emerged, including the Little Red Schoolbook, Curious, In Depth, New Directions and Forum – later to feature articles by Alastair Campbell, Tony Blair’s press secretary. “All have been the subjects of inquiry or prosecution by this department during the past year. It is an unfortunate fact of life that pornography has existed for centuries and it is unlikely that it can ever be stamped out.”

He disputed that pornography was on open sale and complained that the way the law was drafted made his task impossible: “The police cannot act as ‘buyers’ and so lay themselves open to allegations of ‘agent provocateur’. It must therefore be left to the purveyors of filth to make a mistake or the odd genuine complaint to come to hand.”

Fenwick blamed the director of public prosecutions for lack of action and the press for giving massive publicity to the hippie cases and leaving the impression the police were doing nothing about Soho.

Fenwick’s explanation set alarm bells ringing in the home office. Anxieties were reinforced when an anonymous “senior Yard man” was quoted in the London Evening News saying the Oz trial would not herald a new crackdown on porn as it would take too much manpower: “One can go into Soho today and see far worse pornography than was in the Oz magazines. Any child can buy it.”

So when Matthew Oliver, an investigator for Lord Longford’s unofficial inquiry into pornography, later that year produced allegations against seven named porn merchants who were bribing police officers, the home secretary demanded a full report.

The inquiries initially came up against a wall of silence.

But in February 1972 the head of the Scotland Yard flying squad, Commander Kenneth Drury, was revealed to have just spent a two-week holiday in Cyprus with James Humphreys, one of seven named porn barons. Drury claimed they were looking for Ronnie Biggs, the escaped train robber.

But investigations ordered by the new Met commissioner, Robert Mark, finally unveiled the systemic corruption at the heart of the police. Four years later Mr Justice Mars-Jones named Fenwick as the “chief architect” and sentenced him to 10 years’ imprisonment.

Those members of the Flying Squad who might have known names of high profile clientele buying under the counter stock of child abuse images from shops across the backstreets of Piccadilly Circus were already facing prosecution themselves by the time the s.48 Criminal Justice Act 1972 amendment came into force, unable to use s.48 to reassert police powers of prosecution where boys under the age of 14 were involved, without the consent of DPP Sir Norman Skelhorn.

“In theory, if the ‘right’ man had the job, the DPP could become the paedophile’s gatekeeper.” [ Needle Blog – The Consequence of Leo Abse MP’s amendment to the Sexual Offences Act 1967 ]

March 1970: Decision Not to Prosecute Cyril Smith (not yet even an MP but wishing to stand in election)

In March 1970, prior to Cyril Smith becoming an MP in 1972, a file of evidence was submitted to the then DPP’s Office – Sir Norman Skelhorn.

The file, from Lancashire Constabulary, contained allegations made by eight men that they had been subjected to indecent assaults by Cyril Smith as teenagers. The allegations were very similar in nature, and were allegedly conducted on the pretexts of either a medical examination or punishment for misbehaviour. All the boys were either living at Cambridge House Children’s Home in Rochdale (six of them), or were dependent on Cyril Smith for either employment, financial support or some sort of guardianship. It is noted that 80 pages of evidence was supplied to the then DPP’s office with a covering note dated 11 March 1970.[ CPS Statement in relation to Cyril Smith]

Taking just over a week to reply the DPP’s response was as follows:

“I have considered your file and I observe that eight young men, whose ages range from nineteen to twenty-four years, allege that between 1961 and 1966 Smith subjected them to various forms of indecency and I also observe that Smith denies their allegations. Any charges of indecent assault founded on these allegations, as well as being somewhat stale, would be, in my view, completely without corroboration. Further, the characters of some of these young men would be likely to render their evidence suspect.

“In the circumstances, I do not consider that if proceedings for indecent assault were to be taken against Smith, there would be a reasonable prospect of a conviction. I do not, therefore, advise his prosecution.”

Dec 1970 – 26 June 1972: Prichodsky, O’Neill and the ‘missing’ Indecency with Children charges that Mr J Clarke wished to sentence for

Times 11th Aug 1971- Andrew Prichodsky and Kenneth Edward O’Neill in Court

Please click above to read full report on http://www.cathyfox.wordpress.com

On 14 October 1970 two police officers with a search warrant went to Elm Court, Harrowby Street, in the West End, where Mr Prichodsky had a room.

On a table they found a blue envelope containing obscene photographs of a 14-year-old boy. Mr Prichodsky said: ” Yes, I took them. You may think it funny, but I like pictures of young boys and there are a lot of influential people of the same mind. You would be surprised if I told you some of their names.”

In total police found 1,800 photos and 13 cans of 35mm black and white film of boys, “some of whom were extremely young” in 3 searches of different locations related to Andrew Prichodsky and Kenneth O’Neill.

• 14 October 1970: Police search flat at 19 Elm Court Harrowby Street & seized a number of films and other articles – search warrant under the Obscene Publications Act 1959
• 9 December 1970: Second search, this time of a flat in Ealing occupied at the time by Prichodsky and O’Neill, one found in bed with a boy of 14 – search warrant executed for stolen goods
• 20 January 1971: A third search ‘not necessary to allude in detail.’ as per Lord Justice Roskill in Court of Appeal judgment

Prosecuting counsel was Mr Kenneth Richardson and defence counsel for Prichodsky was Mr McHale. What became clear during McHale’s plea in mitigation for his client was that Mr Justice Clarke couldn’t understand why the two defendants had only been charged with a single offence each of [       ]. No charges were laid in relation to the 6 sacks of material the police had seized as outlined above.

Prichodsky and O’Neill were sentenced to 3 years’ imprisonment each. An appeal was lodged which took just over 10 months to reach the Court of Appeal.

In the transcript of the Court of Appeal judgment [click below for full report] Lord Justice Roskill

“When one looks at page 25 of the transcript, one finds that at D the learned Judge said:

“When he was taking pictures of boys between the ages of 9 and 16, are you saying that your client did not appreciate that that was a wrong thing to do, that he was doing it not realising that it was wrong?”

to which counsel replied: “My Lord, I have obviously failed to convey that which I was attempting to convey. I sought to draw a distinction between the photographs which were taken at the flat which were intended to be marketed, and those which were seized at an earlier date, and are, therefore, not eligible for consideration for the offence which was committed in December. Your Lordship may think it is undesirable that such photographs should be taken, but they are not the subject matter of photographs which were in his possession on the date in question in this charge, for the purpose of publication“.

The learned Judge then went on: “Is this not right: that on the 8th of December, 9th of December 1970, were not photographs found in his possession of boys between the ages of 9 and 16, which he had taken himself?” to which Counsel replied: “Yes, my Lord, there were some such photographs”.

It is right to say that from beginning to end of the case there was never any evidence that any boy involved was of such tender years as 9 years of age; one boy was of the age of about 14. The learned Judge went on: “That is all I am concerned with here. That is what I have to deal with, and the evidence of the other photographs is evidence which shows that he has been doing the same thing on previous occasions”, to which counsel replied “Not marketing”. The learned Judge then said “But having for the purpose possibly, in the future, of gain, and that is a habit that he has been doing”.”

COURT OF APPEAL 26th June 1972 Kenneth Edward O’Neill and Andrew Michael Joseph Prichodsky

At p. 6 of the Court of Appeal judgment Lord Justice Roskill couldn’t say explicitly why prosecutions of indecency with children hadn’t been made against Prichodsky and O’Neill only that they hadn’t and Mr Kenneth Richardson “has given the reason”. Richardson had also appeared as prosecuting counsel in first trial and was of assistance to the appeal court due to the loss of the first transcript.

Although Lord Justice Roskill does say ‘the prosecution may have felt that that evidence though available was not sufficiently reliable to justify the making of such charges’ which on the face of reading the committal papers and statements Mr Justice Clarke had clearly felt strongly were made out by the evidence contained within.

This starts to present a clearer view of why Mr Justice Clarke persisted in his incredulous questioning of Prichodsky’s defence counsel McHale at the initial trial ten months or so previously. On the basis of what Mr Justice Clarke had read in the committal papers he was obviously not of the same opinion as Sir Norman Skelhorn DPP who under s.8 SOA 1967 (and note timing of this appeal is a few months before the s.48 amendment of CJA 1972 allowing for police to prosecute sexual abuse of children under 14 as offences under the Indecency with Children Act 1960 which raises the question of who pushed for s.48 amendment in Hansard?) at this point retained sole control over whether to prosecute for the sexual abuse of children.

“It is right to say that there were in the committal papers a number of statements of young men who had been allegedly involved in unlawful homosexual acts with one or other or both of the Appellants.

There was also evidence how at least one if not two boys had been persuaded, to use a neutral word, to go to the flat where these photographs were taken.

It is also right to say on that material there was evidence on which charges might have been laid either of indecent assault or procuring acts of gross indecency or of acts of gross indecency or possibly even of buggery or attempted buggery.

There was also evidence which might have been the subject of charges of incitement to unlawful homosexual offences.

But not a single charge of that kind was made.

Mr. Richardson has given the reason and one can readily understand the prosecution may have felt that that evidence though available was not sufficiently reliable to justify the making of such charges.”

Nov 1972: Decision Not to Prosecute – Victor Montagu MP

In November 1972 Sir Skelhorn’s office declined to prosecute Victor Montagu MP (who like Tony Benn had disclaimed his peerage as 10th Earl of Sandwich in 1964 to remain in the House of Commons as Tory MP for Dorset) for the abuse of a boy for 2 years, instead giving a caution.

Montagu’s youngest son had been abused by him between the ages of 7 – 11, while his father was Conservative MP for South Dorset approximately between the years 1956 – 1961. The allegation ten years later was that Montagu had been abusing the another boy during a two year period from December 1970 – November 1972.

The files show the boy was interviewed on 10 November 1972 after rumours that he was being sexually abused. Two officers visited Montagu at his home in Mapperton, Dorset, and interviewed him under caution. He was later charged by police with two counts of indecently assaulting a male under 16 on a number of occasions between 31 December 1970 and January 1972 and of indecently assaulted the same boy between 31 December 1971 and November 1972. He was remanded to appear at Bridport magistrates court.

But when the then chief constable of Dorset and Bournemouth, Arthur Hambleton, wrote to Skelhorn for advice on the case, prosecutors chose to give Montagu a caution instead of proceeding with a criminal trial in public.

A note, from the DPP’s office endorsing the decision, said the case was “borderline” but because Montagu was of “previous good character” and there was “no fear of repetition with this boy … we could caution”. [Tory MP Victor Montagu escaped child sex abuse trial in 1970s, Sandra Laville, The Guardian, 15 May 2015]

April 1974: Decision not to Prosecute – Bishop of Stepney

BBC’s Tom Bateman has posted the police papers from an April 1974 decision by the department of the Director of Public Prosecutions in the case of Suffragan Bishop of Stepney, Father Trevor Huddleston [see below]. Despite 4 charges made out under s.1(1) of the Indecency with Children Act 1960 (and therefore not requiring consent under s.8?) the DPP’s office is asked for their opinion and it is given by Assistant DPP Michael Evelyn (also known as prolific crime writer Michael Underwood – wonder what he did during the war having just been called to the Bar?) Evelyn had been on the staff of the Office of the DPP since 1946 (aged 30) and in 1969 had been promoted to Assistant DPP before retiring in 1976.

More on Father Trevor Huddleston and Labour’s Attorney-General Sam Silkin’s disclosures in 1979