48
At 12:45, the judge began his summing-up and directions to the jury. The
Judicial Studies Board produces a range of training materials for Crown Court
judges and the Crown Court Bench Book – Directing the Jury. In this 400+ page
document, a vast range of topics is covered to give guidance to judges acting
in the Crown Court (similar publications exist for each level of Court in the
overall judicial system). As you might expect, the publication uses legal tomes
including Archbold,
Blackstone and Smith & Hogan (books which we have referred to throughout
this account.) The Benchbook for Judges can be found at:
<www.judiciary.gov.uk/Resources/JCO/Documents/Training/benchbook_criminal_2010.pdf>
Before we reproduce a summary of the judge’s Summing-up
and Directions to the jury, we believe it necessary to reproduce the guidance
to Crown Court judges in respect of trial on ‘criminal attempts’:
“…(7) Criminal Attempts Introduction
By section 1(1) Criminal Attempts Act 1981 the actus reus of an attempt to commit an
offence is an act “more than merely preparatory to the commission of the offence”.
To constitute an attempt the act must be
accompanied by an intention to commit the full offence even if the full offence
is one which requires a lesser degree of mens
rea (e.g. attempted wounding requires an intent to wound, attempted murder
requires an intent to kill) or is an offence of strict liability. It does
not matter that the offence which the defendant is intending to commit is
impossible by reason of facts unknown to him (section 1(2); see the case of Shivpuri74). It is for the
judge to decide whether there is sufficient evidence of an attempt for the
issue to be left to the jury; if so, it is for the jury to decide whether the
acts proved do amount to an attempt.
Directions
• The judge should follow the
words of the statute.75
• It is, however, common practice
and, save in the obvious case, useful to explain and/or illustrate the
difference between an attempt to commit an offence and acts preparatory to an
offence. The jury should be told that the issue whether the act was more than
merely preparatory is for them to decide.
• Where impossibility has
featured in the evidence, the jury should be told that they must be sure of an
attempt to commit the offence intended (e.g. the fact that the victim’s pockets
were empty is no defence to attempted robbery)
Footnotes
74
[1987] AC 1 (HL)
75 R
v. Campbell [1991] 93 Cr App R 350…”
By way of a summary of the guidance to Crown Court judges in the
Benchbook, it is clear that for guilt to be established in any criminal
attempt, there has to be a crime (the actus
reus) and there also has to be the simultaneous intent (mens rea). We have shown that neither of
the two elements of the alleged crime of incitement existed in this case.
Loraine-Smith would have known this before he summed up and
gave directions to the jury.
But there is one further vital piece of information that you, as a
reader, need to be made aware of – and it is to be found in Archbold on page 554 of the 2008 edition (which you
will recall we are using because it is the edition which refers to the statutes
as they existed at the time of the alleged crimes by Brian):
“…Where the judge
issues an ultimatum or stipulates a deadline, a conviction is liable to be set
aside: see R. v McKenna [1960] 1 Q.B. 411, 44Cr.App.R. 63, CCA; R. v Rose
[1982] A.C. 822, HL.
The jury must be
free to deliberate without any form of pressure, whether by way of promise or
threat or otherwise. They must not be made to feel that it is incumbent on them
to concur with a view they do not truly hold simply because it might be
inconvenient or tiresome or expensive for the prosecution, the defendant, the victim
or the public in general if they do not do so…”
It is evident that ‘the jury must be free to deliberate without any
form of pressure.’
Loraine-Smith: “…The law is my
responsibility and you have to follow the directions that I am about to give
you, but the evidence, the facts are for you and you alone. You decide whether
Mr Pead exposed his genitals intending to alarm or distress to the females
opposite, and whether he actually tried to incite a girl he thought was just 14
to engage in sexual activity with him…”
Notice at this point how the judge has worded his opening sentences to
read as though a real girl existed
because he knows that the law of incitement refers to real people.
“…You must decide that on the evidence that you have seen and heard in
this court room. You will see and hear no more. You must not speculate on what
other evidence there might have been. A lot of questions have been thrown up by
this case. […] Your job is to apply the law as I tell you it is to the facts as
you find them to be. What are those principles? The first principle is the
burden of proof. The prosecution bring the case, the prosecution must prove it.
It is not for the defendant to prove his innocence, it is for the prosecution
to prove his guilt.
The next principle: what standard do they have to prove it to? They
have to prove it so that you are sure of his guilt. If at the end of your
deliberations you are sure of his guilt, it is your duty to convict him. If at
the end of your deliberations you are not sure of his guilt then it is your
duty to acquit him…”
At this point, Loraine-Smith is speaking as any judge would as he or she
starts their summing up of the Indictment and providing directions to the jury.
However, it is when he starts to describe the indictments and his view
of the salient points that there is extreme cause for concern. A full
transcript of the summing up runs to 83 pages and space does not permit us to
include all of it here. We propose to make it available online in due course.
For our purposes here we will provide you with quotations taken directly from
these 83 pages. We will provide our commentary too. You are free, of course, to
arrive at your own conclusions.
“…There are two counts
on this indictment. Will you look at it now and we will look at the
ingredients. The first thing I will say is that there are two separate
allegations and you must consider them separately. Certainly some of the
evidence is going to apply to both of them, but you must consider each count
separately. The verdicts do not necessarily have to be the same…”
It is true that there were two counts on the indictment – and legally
there should not have been. This was an abuse of process and caused
considerable bias and detriment to the defendant. You will recall how Judge
Charles Byers at Woolwich Crown Court in February 2009 had refused to join the two
separate indictments because of the very fact that they were separate. In our opinion, any judge allowing such an abuse of
process to proceed would have to have his or her integrity called into
question.
“…The first count
on the indictment is exposure. The allegation is that Brian Pead on 7 May last
year intentionally exposed his genitals intending that someone would see them
and would be caused alarm or distress. You have to be sure before you can
convict him on this count firstly, that he intentionally exposed his genitals,
not unwittingly, but intentionally. In fact, nobody says they actually saw his
genitals. The Crown, you will know from
count one, do not have to prove that somebody did see them, but you must be
sure on the evidence of the three young women that he had actually exposed his
genitals…”
This is an appalling comment from a Crown Court judge – “The Crown do
not have to prove that somebody did see them [his genitals]”. Archbold – as we have shown in an earlier chapter –
provides a detailed description of every crime in UK law. The Crown did have to prove that someone saw
Brian’s genitals and they did have
to prove that once they had seen his genitals that he had done it intentionally and with the aim of causing alarm or distress.
Loraine-Smith therefore misleads the jury and the Court. The
three women (you might like to ask yourself why Loraine-Smith refers to them as ‘young’ women – this appears
to be an exact mirror of the allegations against Brian at Lambeth) all stated
on oath that they had never seen his genitals – therefore Brian cannot be
guilty of the alleged offence.
Now carefully read the next passage in Loraine-Smith’s
summing up. Notice how the judge makes a statement as if it were a fact – this is common amongst those in the legal
profession and within the police. It is a dangerous practice and means that
many innocent people are wrongly convicted each year for crimes which they have
not committed:
“…The Crown say
that the defendant obviously had exposed his genitals, he was masturbating in
the window. The defence say that he was doing no such thing and the girls are completely wrong.
The next issue. The
Crown have to prove that he intended that somebody would see them. The Crown
say, ‘Well, why else stand in the window?’ The defence say ‘It never happened’.
Thirdly, they have
to prove that he intended to cause alarm or distress. That is how he gets his
pleasure. That is not the sort of person he is, say the defence. There in a
nutshell are the issues on the individual ingredients the Crown have to prove
in Count 1…”
The italicised emphasis is ours: note how Loraine-Smith changed his description of the ‘three young
women’ to ‘girls’. This sort of manipulation of language occurred in the
allegations against Brian at Lambeth.
Notice how, in this section, Loraine-Smith says that the Crown say that Brian was
masturbating at his bedroom window. Where was the proof of such an allegation?
The only ‘evidence’ came from three females who had allegedly submitted written
statements to the police (but which were unsigned and contained no unique
reference numbers), three females who failed to arrive at Court in February
2009, three females who were actually four
females, three females who had had ‘lots of male visitors to the house’, three
females who had had complaints made about them by the local community, three
females who all stated that they had not seen Brian’s genitals and three
females who had all differed greatly in their version of events.
Furthermore, the CPS would have to prove that Brian intended to
cause alarm and distress to the females living at 62 Days Lane.
It is inconceivable to us as authors that the Crown should ever have
taken this case to court. On legal grounds, it had no merits whatsoever. There
had to be another motivation on the part of the Crown.
Loraine-Smith continued his summing-up:
“…Count 2.
Attempting to cause or incite a child to engage in sexual activity. “Brian
Pead, a person over the age of 18 years” – no doubts about that – “between 27
January 2008 and 9 May 2008, attempted to intentionally cause or incite a child
to engage in sexual activity, namely the penetration of her mouth with his
penis, and the penetration of her vagina with his finger; the circumstances
being such that the activity was sexual, the child was under 16 years and that
Brian Pead did not reasonably believe that the child was over the age of 16
years.
This is charged as
an attempt. To be guilty of attempting to commit a criminal offence the
defendant must do something which is more than merely preparing to commit it.
You must be sure firstly that he intended to commit the offence complained of,
the mental element of the offence, and secondly, you must be sure that he did
something more than mere preparation for committing it, the physical element.
Here the prosecution say that the transcript of the messages speak for
themselves. That is what you can see him attempting to do. What is the offence
he is alleged to have attempted? A person is guilty of this offence if,
firstly, he intentionally incites another person to engage in an activity.
Secondly, that activity has to be sexual, and there is no issue in this case
that the activities discussed were sexual.
Thirdly, the Crown
have to prove that the other person is under 16 and the defendant does not
reasonably believe she is over 16.
Of course the other
person was not under 16 – it was a police officer impersonating somebody, that is why it is indicted as an attempt,
but that the defendant must not reasonably believe that she is over 16. Of
course he was not going to succeed in this case because Shelley was in fact a
policeman. In a nutshell on Count 2, you have to be sure that the defendant did
something more than merely preparing to commit this offence, and that he tried
to incite a girl he believed to be under 16 to indulge in sexual acts on the
indictment with him…”
We regard this summing-up as an appalling piece of legalese. Notice
how Loraine-Smith switches between a description of a real ‘girl’ and then claims that the
‘girl’ was a policeman. The law is clear as we have pointed out: Brian could
not possibly be guilty of this crime because there was no girl and the law says
there must have had to have been another
person for him to incite and that person must be under 16. He could not incite the policeman, even if the
policeman was posing as a 14-year-old. But, of course, as we have seen, Brian
always knew the person posing as a teenager was not a teenager but an adult.
You might like to ask yourself why Dominic Bell failed to provide information about Geoffrey
Bacon’s computer to the judge and
jury. You might also like to ask yourself why Bell failed to contact the Professional Standards
Department at Scotland Yard about DS Tunn, DC Godfrey and DC Robbie – whom all acted illegally.
Not, too, that the dates that Loraine-Smith provides are not the dates on the indictment.
Nor does Loraine-Smith include in his summing-up here the fact that
Brian has been conducting research into child abuse at Lambeth Council and on Faceparty. You might like to ask
yourself why.
Court adjourned at 1pm and resumed in the absence of the jury at 2pm.
At two minutes past the hour, the jury came back into court.
Loraine-Smith QC continued to sum up to the jury. During
this summing up, he recounted the comment by Elizabeth McIntyre that Brian “had watched me once or twice a
week”. Not only is this untrue, but it completely contradicts her earlier
statement that when she received the note from Brian informing her that she
could be seen undressing, she claimed to have “kept my curtains closed
thereafter.”
If she had kept her curtains closed thereafter, how on earth could she
have seen Brian “watching me once or twice a week”? Loraine-Smith failed to put this important contradiction to
the jury.
On page 24 of the summing-up transcript, Loraine-Smith recounts the testimony of Natalie Ryan:
“…On the night of 7
May 2008 the other two [tenants] were too frightened to close the curtains. I
am the more confident so I stood nearer the window. I shut the curtains…”
Clearly, then, Elizabeth McIntyre had not
kept her curtains closed since she received the note in October 2007.
Loraine-Smith failed to point this out to the court.
On page 21 of the transcript, Loraine-Smith recounts the testimony of Katie Prouse:
“…I told Liz to
call the police and she did so
immediately afterwards…”
This referred to the alleged masturbation on 7 May 2008. However, on
page 24 of the transcript, Loraine-Smith recounts the testimony of Natalie Ryan:
“…I didn’t contact
the police but I learnt that they had been contacted the next day [8 May 2008]…”
Loraine-Smith failed to point this stark contradiction out
to the court.
On page 27 of the transcript, the issue
of Brian’s personal learning journal (PLJ)
was brought up by Loraine-Smith. The judge attempted to
introduce new ‘evidence’ at this point because he sowed a seed of doubt by
claiming that Brian had written this document retrospectively – after he had
been arrested. Yet the evidence shows that compiling a PLJ had been a course requirement at the CPPD and other evidence showed that writing a PLJ was something that Brian had done at least
since 2004. A PLJ is not
a logbook; it is not a diary; it is not a book of minutes; it is merely a
record of thoughts, events and feelings that (in this case) a counsellor
chooses to record. When he mentioned on 20 May 2008 in interview that he had
not kept a logbook of the dates of Elizabeth McIntyre’s ‘shows’ from her bedroom
window, he was telling the truth. The CPS – aided and abetted by the judge – tried to
claim that Brian had written the PLJ retrospectively after 20 May otherwise he
would have mentioned it during his interview. This does not hold any credence.
His PLJ was available to his lecturers from September
2007, there was a long track record of his having written PLJs and he does not
regard it as a log in any way, shape
or form. Furthermore, he had just been arrested in his own home and transported
to Bexleyheath police station, which can be a traumatic experience for anybody.
The fact that Brian does not refer to the PLJ as a log does not, in our opinion, detract
from the notion that this document was created contemporaneously from September
2007 onwards and that it recorded details of Elizabeth McIntyre’s ‘shows’ without noting them
all down which is the purpose of a
log book, not a PLJ.
The above was an example of Loraine-Smith using ‘smoke and mirrors’ to obscure the
truth. There had been many examples of it in this trial. But nothing compared
to the confusion in the summing-up of the incitement case. You must decide
whether you believe that it was deliberate on the part of the judge or
otherwise.
“…DC Robbie told the court, “It is not an attractive job.”
The defendant suggests that Robbie has behaved disgracefully. There is no magic
in the uniform. You should treat DC Robbie like you would any other person. He told you
that he joined clubs and vice in 1997, the paedophile unit in 2001 and from
2004/5 he had been deployed as a covert officer on the internet…”
DC Robbie had been in clubs and vice. We remind you that
in chapter 7 we reproduced an article from The Independent written by John
O’Connor, a former commander of the
Flying Squad who stated on the public record that Scotland Yard was corrupt and that it controlled the adult
pornography industry. Brian Pead asserts that it also controls the child
pornography industry and there is some evidence to support his assertion.
Loraine-Smith, QC, continued:
“…DC Robbie said he would pretend to be under 16 or a
paedophile, but that he always worked within the rules and never acted as an agent provocateur…”
This has to be one of the most banal comments made by a Crown Court
judge. Of course Robbie is not going to admit to having acted as an agent provocateur because he knows that that would equate to a
prison term. Loraine-Smith knows this, too, but he fails to report
Brian’s allegations against the officer to the Professional Standards
Department at Scotland Yard and ask them to investigate. He merely takes
Robbie at his word.
“…DC Robbie told us that he joined the Faceparty website in December 2007. I gave out an email address of shellyk14@hotmail.co.uk …”
This was
exactly what Brian had stated to police on 4 June 2008 when interviewed at
Charing Cross police station.
However, as Brian pointed out, he had been contacted by a person using
the email address of ‘shelly14@hotmail.co.uk’ and also
‘shelleyk14@hotmail.co.uk’. To the eagle-eyed Brian, it seemed that someone was
using multiple email addresses (all of which were almost identical) in order to
contact him and others. In some of these email addresses, the officers would be
‘behaving’ themselves, in others they would not. Both Bell and Loraine-Smith failed to explore this in open court. Even if
Brian was wrong – which we do not believe is the case – then at least it
creates enough doubt for an acquittal.
[Authors’ note: It is also
interesting to note that in the typed transcript of the judge’s summing-up and
directions to the jury, the name ‘Shelly’ is spelt as ‘Shelley’ throughout,
with the addition of a second ‘e’. This was something that Brian – being
something of a self-confessed ‘geek’ when it comes to language and psychology –
had noted during his interactions. Yet the police transcripts always spelt the
name as ‘Shelly’. Note also the name of the female police officer who stood in
for DC Godfrey when
the transcripts were being read out in Court – DC Michelle Wilkin. We believe
this to be ‘Shelly’/ ‘Shelley’.]
“…On 14 January
2008, Robbie said he received an invite from the defendant.
The defendant told us that he had created a separate account in order to ‘smoke
out’ people who were posing as children or who were potential paedophiles or
sex offenders.
There was no
response by the defendant until 28 January 2008. The officer said he is an
experienced officer acting as a covert intelligence officer.
The defendant said
he knew from the beginning it was a fake profile and that the person was not
genuinely a teenager…”
It is interesting to note at this point that Loraine-Smith was in possession of the fact that Brian
claimed that illegal activity had taken place on the Faceparty website, yet he did nothing about reporting
these allegations. Furthermore, he would have been in possession of Brian’s
claims that he had told the fake teenager to “Fuck off! You are a fake!” on 15
May 2008 at Geoffrey Bacon’s house (which Mr Bacon has
confirmed). And the police illegally seized that computer and burnt out the
hard drive. All of this bona fide
evidence makes us believe Brian’s account and not that of the police whom one
of their own former high-ranking Scotland Yard officers has described in a
national newspaper as ‘corrupt’.
Loraine-Smith then read out vast tracts from the MSN messages, which on the face of it did not look
good for Brian. Yet, looked at with objectivity, they demonstrate that Brian was ‘smoking out’ this person. Let’s
consider for a moment the first question he asks the ‘teen’: “…Do you do
meets?”
On its face, this might be interpreted as a man asking a person he
thinks is a genuine teenager if she wants to meet up. However, it could also be
interpreted as a man asking the person claiming to be a teen if ‘she’ meets up
because he is smoking her out and just wants to find out what is really going
on in the chatroom and on MSN. Remember, too, that Brian
has a deep-rooted history of having been sexually abused in a children’s home –
we argue that this is a sufficient reason for him to want to smoke out someone whom, because of his experiences,
he instinctively felt was not
genuine. As authors we can claim that we would most probably not have continued
to converse with the person claiming to be a teenager unless we, too, had such a psychological and emotional motive and
unless we, too, were conducting research and unless we, too, had been sexually
abused in a children’s home and unless we, too, had a deep passion to expose the
perpetrators of sexual abuse and corruption.
On page 35 of the transcript, Loraine-Smith reads out another part of the MSN transcript of the conversations between Brian
and the ‘girl’: “…Your picture [on your profile] doesn’t prove it’s you…” and
we suggest that this is yet further evidence that Brian had deep suspicions
about this person from the very moment
they started conversing. We also doubt that many other people would have
had such a reaction to this alleged teenager, but the vast majority of the
population has not been sexually abused in a children’s home and the vast
majority do not possess Brian’s ‘superior intellect’ as diagnosed from the age
of five by psychologists and numerous other adults who lived or worked in close
proximity in the children’s home with Brian.
Loraine-Smith continues: “…What did you have in mind [to do
sexually]? Money is no object either. So say what you are into…”
This could be taken to mean that a man is interested in meeting and is
prepared to pay for sexual activity, or it could be taken to mean precisely
what Brian said it was: an indication of his ‘smoking her out’. Furthermore,
Brian was earning a little over £26,000 pounds per annum as a counsellor, not a
fortune, and he was spending all of his earnings and savings on a major
refurbishment of his house.
Loraine-Smith continues: “…The ‘girl’ asks the defendant for
his profile on Faceparty. The defendant replied: ‘I
didn’t tell you my profile because you are so not genuine.’…”
This was the very first MSN conversation between Brian and the ‘girl’. In
this conversation he has told her ‘you are not genuine’. He cannot be any
clearer about his perceived knowledge about the ‘girl’. At no point did he say
‘If you were genuinely 14 I would want to meet you and pay you for sex’. He has
unequivocally told ‘her’ that he knows ‘she’ is not genuine. Why, then, did
this case come to court? It is evident from
the police transcripts themselves that Brian knew from the start that this
was not a genuine teenager.
Loraine-Smith continues:
“…She asked for his
mobile phone number. He gave a number which was his own number minus one digit.
It is probably a non-existent number unless someone by chance happened to have
it, but it is a number that he would be able to remember. The defence say that
is very important because if he really wants to meet up with this girl he is
going to give a genuine number so that she can contact him on the telephone as
opposed to the internet.
I suppose the Crown’s response to that
is that ‘Well, what is happening here is that this middle-aged man contacting a
girl who is saying that she is under 14; it is all illegal. You are not going
to give your own mobile number which can be traced to you in those
circumstances…”
We regard this as a horrific passage in Loraine-Smith’s
summing-up for two reasons. The emphasis above is ours: the role of a judge is not to suppose anything, nor to
hypothesise and not to guess – his or her role is merely to stick to the facts
and to guide a jury according to the law. Loraine-Smith has broken the ethical code of conduct that
all judges – at whatever level they are working – must adhere to. The Crown
never did, in fact, offer that as an argument because it holds no water: it
follows that if you are going to meet someone, you need to provide a real
mobile number. But Brian – as has been proven here – showed that he had no intention
of meeting. Furthermore, he did not take the step of meeting ‘her’ – just as
Tony Campbell had not entered the post office in order to
rob it. As authors, we have read all five of the MSN ‘hats’ and at no point
does Brian ever ask to meet the ‘girl’.
The judge then strayed way off the course he is
supposed to take in his role when he completely misled the jury by stating:
“…On
25 February 2008, the defendant
suggested that they meet at 7pm at Southwark Tube station…”
The transcripts of the MSN conversations show that ‘the girl’ made such
arrangements, not Brian.
On page 42 of the summing-up transcript, Loraine-Smith then returns to DC Robbie’s account on the witness
stand.
“…He
told us that there are links to various chatrooms and he said, ‘We would work
in chatrooms with names like ‘older4teens’
or ‘teens4older’ and there are chatrooms
for swapping indecent images of children and specific interests. He said, ‘I
cannot say I have ever seen a chatroom for escorting.’…”
It may well be true that DC Robbie had never seen a chatroom for escorts (though
we doubt his comment given his career in vice), but even if it were true it
does not follow that such rooms did not exist as Brian claimed. Indeed, in
earlier chapters we have provided evidence of blogs and forums in which escort
chatrooms on Faceparty were discussed – Brian had not been the only
person to notice such activity.
What occurs next can be only described as incredible
– we never believed as authors that we would ever read a transcript in which such
ineptitude (or corruption, or both) would be so transparent:
“…DC
Robbie made a statement, you will recall, as a result
of enquiries when the allegation [of corruption] was put to him in terms, and rather than have him back in the witness-box,
a statement was read from him saying that he had looked at recordings of the
occasions where he was deployed as ‘Shelley’ and in both of these matters he
can state as per his notebook that no further Faceparty messages had been received from the defendant....”
This is an appalling statement made by a Crown Court
judge on many levels. ‘Rather than having him back’, Robbie was allowed to make a statement which was read
out in Court – thus avoiding cross-examination. Why would a Crown Court judge
allow such an abuse of process?
Not only was Robbie permitted not to return to Court to answer
allegations of criminal activity, but he claims in his statement that he looked
over all of his past activity when deployed as ‘Shelley”. Why did the judge
allow this abuse of process – what we have here is an example of a police
officer who has been accused of corrupt and criminal activity and the judge has
allowed that officer to conduct an investigation into himself! Not only that,
but the officer refers to his logbooks which were not produced as evidence in
court and Brian – the defendant – never received a copy of such logbooks. DC
Robbie could have – and did – say anything.
Why did the judge allow Robbie such leeway? Why did Bell?
But it now gets worse as Loraine-Smith continues his summing-up:
“…There
was a suggestion that there had been a further Faceparty message saying in effect: “Fuck off”, which
would of course be very much to the defendant’s advantage if that existed
because it would show he knew that this was false, but it has not been found. The Crown say it is because it never existed,
he has invented it…”
As we have explained in great detail previously,
this message did exist – but in a Faceparty message applet which allowed members to
communicate live, not a Faceparty message which worked in the same way as an
email.
Brian had told Bell all about this small – yet important –
difference. Bell also knew that this message had been sent by
Brian on Geoffrey Bacon’s computer and that that
computer had been illegally seized and its hard drive burnt out. Bell also knew that Mr Bacon wanted to be called as
a witness and that Brian had provided the full contact details of his friend,
but neither Bell nor Angela Shaw ever contacted Geoffrey Bacon.
Loraine-Smith continues: “…DC Robbie said, ‘By 19 May 2008, my Faceparty profile had been deleted due to it being under age…”
Loraine-Smith appears to have overlooked two vitally
important points: (i) the Faceparty management terms and conditions stated that
no-one under age could join and become a member with a profile, (ii) that the
profile was fully functional on 18 May 2008 because Brian had messaged that
profile, and (iii) Warwick Brown (the IT manager of Faceparty who had allegedly emigrated to Australia but
who was working in London) had stated that it was his responsibility to vet all profiles. Can we really believe that
the profile which was allegedly created in December 2007 by Robbie (and in which he claimed he had stated his age
as 14) would have still been online five
months later? Why had Warwick Brown not taken the profile down much sooner? It
does not make sense unless it is lies and we are suggesting that that is
precisely what DC Robbie’s statement is: a complete fabrication.
At this point in Loraine-Smith’s
summing-up and directions to the jury, prosecutor Timothy Forster turned round to sit and face the jury.
“…Let
us come to Warwick Brown, whom you have not seen,”
continued the judge. “Both parties said they wanted him, but the defence
particularly because they said they would like to ask him about chat logs and
records; the identification of others. He is the IT manager for the internet
social networking site known as Faceparty. Warwick Brown said, ‘Only the last IP address is retained on
the system’…”
Notice the appalling slackness in this part of the
summing up. Loraine-Smith describes Brown as “…He is the IT manager for
Faceparty…” Did you notice the present tense – he is, not he was. A few
days earlier in Court, Forster had told the Court that Warwick Brown had left Faceparty and emigrated to Australia. This was a lie. DC
Godfrey had told the Court that Faceparty ‘was now defunct’. The reality is
that these were lies. Why did Loraine-Smith (let alone Bell and Shaw) not investigate this?
And by referring to the last-known IP address
recorded by Faceparty, why did the judge not ask to
be given evidence of this? It would have shown that the last computer Brian
used was that belonging to his friend in Chislehurst.
And why did Loraine-Smith never challenge the veracity of Forster’s claim that Warwick Brown had emigrated to Australia? Throughout this
entire trial we have seen a large number of documents which were not signed by
the alleged witness, documents with no unique reference numbers on them and
allegations made without supporting evidence. And all of this after Brian had
uncovered child abuse at Lambeth Council.
The judge then embarked upon a discourse about
Nicola Noone, the Director of Off Centre, the Hackney charity where
Brian worked as a counsellor.
“…She
told the Court that the defendant – who claimed to be conducting research into
child sexual abuse – had not been asked to do this by Off Centre and she said, ‘We were unaware of him
undertaking any. Had he been undertaking
any such research, it would have been a disciplinary matter in itself…”
This means nothing. So what if Brian had not informed
Off Centre that he was undertaking private research into child sexual abuse? He had no obligation to
inform them whatsoever. It certainly was not a disciplinary matter. Brian had
not even been charged by the police on this matter at the time of his unlawful
dismissal by Off Centre. He was not, as we have seen,
charged with incitement for another eight months after his dismissal!
“…Ms
Noone told us she thought that five per cent of clients said they had suffered
sexual abuse. Mr Bird told us this morning that in his view it was
35 to 50 per cent…”
What a pity that the judge failed to enquire about
this wide disparity during the trial itself. What a pity that Bell failed to cross-examine Noone more deeply
about her claim that only 5% of Off Centre clients suffered child sexual abuse. It is
inconceivable to think that only 5 clients in every 100 had suffered sexual
abuse. Indeed, in his PLJ, Brian had noted in the first
clinical meeting in his first week at Off Centre that two of the clients discussed (out of 5)
had suffered such abuse and Brian was angry that nobody seemed to want to
discuss the topic. He vented his anger in his PLJ.
But read carefully what Loraine-Smith then states: “Ms Noone said, ‘I don’t know if
someone called Matt Doocey asked him to disseminate his knowledge.’”
A man’s reputation was at stake. A man’s liberty was
at stake and here is a prosecution witness claiming that she didn’t know if
Brian had taken Staff Training. She had a duty to find this
out. The prosecution had a similar duty, as had the judge. But even more
cogently, Bell had a duty. He should have called Matt Doocey as a witness. Brian had given him Doocey’s
contact details at the Tavistock in London.
On page 50 of the summing-up transcript,
Loraine-Smith mentions Marcia Weise, who represented Brian at the
police station. In an appalling oversight, he did not think of instructing her
to be called as a witness.
But Loraine-Smith’s
ineptitude – for if it was not corruption at the highest level, it must have
been ineptitude at the lowest level – did not end at his inability to seek out
the truth. Consider the following comments by him with regard to Brian’s
character:
“…When
you are considering the defendant’s evidence, you have got to ask yourself: “Is
this someone who is trying to tell me the truth as best he can or is he trying
to pull the wool over my eyes?” I am
bound to say I failed to hide my irritation this morning at his tendency to
lecture a bit from time to time…”
The emphasis is ours. We feel strongly that the
judge has inappropriately and unlawfully used the summing-up process in order
to deal the defendant a blow. In essence, he has told the jury of his opinion
of Brian. It matters not one iota what kind of person any defendant is: what
matters is the law and a person’s intent. We find this misuse of his powers
completely appalling and anathema to justice.
Loraine-Smith then mentions Brian’s PLJ:
“…Ordinarily
you would not have this document. Ordinarily a private diary in itself would be
called self-serving and not be admissible, but in this case it is really
central to the trial so of course you have it…”
But providing the jury with this private diary
infringed the rights of several third parties mentioned in it, including
Brian’s daughter and son-in-law. Brian had put in that document many private
details of these parties and we believe that each of them has a case against
the Crown for allowing their private details to be made public.
In the second paragraph on page 58 of the 83-page
summing-up transcript, the judge states: “Members of the jury, that is it. You
try the evidence which is put in front of you.”
Yet, as you may have deduced, there then followed a
further 25 pages of a re-hashing of the alleged facts, as if Loraine-Smith were lecturing the jury and forcing his
opinions on to them.
On page 65, the judge makes mention of the
conversation on 15 May 2008 at the house of Geoffrey Bacon. Loraine-Smith was keen to tell the jury that no evidence of
this conversation had been found. Yet it had. Brian had told both Angela Shaw and Dominic Bell. Neither had informed the
judge. Yet the judge failed to order Geoffrey Bacon to be called as a witness.
Given that he had mentioned Bacon, it is an appalling indictment of British
justice that Loraine-Smith failed to call Geoffrey Bacon. He knew that had the
builder been called as a witness, Brian Pead could not have possibly been found
guilty.
As the day
drew to a close, Loraine-Smith said:
“…Half
an hour, I think I will give you and I will send you away, assuming you have
not reached verdicts by then.
Two
things. I have no doubt you have heard about majority verdicts and majority
directions. Put those out of your minds. My direction to you now is to reach
verdicts on which you are all agreed, unanimous verdicts. If there comes a time
when I can accept a verdict which is not the verdict of all of you, I will have
you back into court and I will give you a direction in law, but my direction to
you now is to reach verdicts upon which you are all agreed…”
The jury retired to consider their verdicts at
3.46pm. The Authors refer once again to Archbold on Retirement of the Jury
(4-501): it is undesirable that a jury should be sent out after 3pm. Yet
another flagrant breach of protocol.
But before they went, one of their number – a female
aged about 28 – asked a question. It was a vital incident in an incredible
farce masquerading as a trial. With both John Callow and Michael Bird sitting in the public gallery, she addressed
the judge: “Are you saying that if there never was a victim, never a real girl,
then we cannot find the defendant guilty?”
And the judge’s response?
“Yes, that is what I am saying.”
There you have it. An astute juror had obviously
understood the law – that with no victim, Brian could not be guilty of
incitement or even an attempt to incite. This was said in open court with witnesses
present, one of whom was Michael Bird, whose witness statement
about this farcical trial we have included in an earlier chapter.
The court adjourned at 3.47 and resumed again at
4.12pm. Another farcical event was about to occur. Notice Loraine-Smith’s
comments:
“…The
jury have asked for two exhibits, one which they can have, the other of course
is the complete personal journal. The answer is that I am going to tell them
that I did not explain myself very well that they cannot have it because the
time for new evidence is over. I will just assure them that you have both seen
it and anything that both of you think is relevant they have, and that is it…”
Did you notice that sleight of hand? Did you notice
that Loraine-Smith failed to say on the record what the first
exhibit was that the jury asked for?
There then ensued another discussion between the
judge, the prosecutor and defence counsel about the jury being given the entire
personal learning journal, and not an abridged one with the references to the
Employment Tribunal at Lambeth removed.
It is agreed that the jury should be given access to
the complete PLJ – but at no point did anyone consult with
Brian and at no point did he give his consent to the jury being given access to
his journal. This is in itself an abuse of process.
But notwithstanding this comedy of legal errors, we
feel that you will be aggrieved to read the next entry. If you recall, we
reproduced part of the instructions to judges in directing a jury. We also saw
how Archbold states that a jury must be given all the time it needs in arriving at a
verdict. Read carefully the next passage and ask yourself, “Is this justice I
am reading about?”:
“…If
for any reason Mr Pead were delayed tomorrow morning, I would not wait before
sending the jury out, because I am going to send them out, full stop, and since they have only got a day, I
want them to have as long as possible…”
Another sleight of hand. Another misuse of language.
You may have heard the judge say “I want the jury to have as long as possible”
but he did not say that at all. He set a time limit. He gave them only a day to
reach verdicts on two criminal indictments.
Here is the law again: where the judge issues an
ultimatum or stipulates a deadline, a conviction is liable to be set aside:
refer to the case of R. v McKenna [1960] 1 Q.B. 411, 44Cr.App.R.
63, CCA; and also to that of R. v Rose [1982] A.C. 822, HL. The jury must
be free to deliberate without any form of pressure, whether by way of promise
or threat or otherwise.
The jury returned at 4.16pm, all dressed in their
overcoats and scarves against the freezing cold December night:
“…You
have asked for two exhibits; you will have them. That personal journal, I
understood, that counsel between them had agreed that everything that was
relevant had been copied, but since you have asked for it, they are both
anxious you should have the whole thing and so you will have the whole thing
tomorrow. Remember it is not all copied
so try and keep it in date order when you go through it. Do not get lost in the
detail, but bear in mind that both
parties reckoned that what really matters is to be found in the papers that
were copied in front of you…”
And that was yet another sleight of hand. Did you notice it? Did you notice
that the jury wasn’t provided with
the entire PLJ as it had asked for? Can you think what might
have been removed from that document before it was shown to the jury? Yes, the
pages about the 15 May 2008 when Brian used Geoffrey Bacon’s computer and the pages around
31 July 2008 when the computer was seized and the hard drive later burnt out.
Those pages would not have been included. Nor would the pages about
Brian’s own sexual abuse as a child been included – how could Bell have told his client not to talk about it to
the jury? Nor would his pages about his time at Lambeth and the Employment
Tribunal have been shown to the jury either.
Those pages in his journal which covered his Employment Tribunal case
against Lambeth Council, where he had exposed child grooming and racism, would
also have been removed. The farce was growing exponentially in line with the
rapid growth of corruption.
We also believe that other pages will have been omitted by the prosecution
and by Bell, but here is the critical
question: why was Brian not shown the same version of his PLJ as the jury? This is an abuse of process – a
jury cannot be shown material that the defendant has not seen, otherwise, a
jury could be shown anything.
But here was a jury under duress. It had been told to arrive at a verdict
on the following day, the 23 December 2009. It had been told that this was the
last day of what is known in the legal profession as the Michaelmas Term. However,
the <www.judiciary.gov.uk> web
site cites that the Michaelmas Term in 2009-2010 will run from 1 October 2009
through to 21 December 2009. It would appear that the jury had been deceived
once again. It was sitting beyond the ‘legal year’.
From a legal perspective, what ought to have happened is this: the
Jury ought to have been discharged at the end of that Term if it had not
reached a verdict and a new jury ought to have been engaged. However, in this
scenario, the Crown would have had to drop the exposure allegation based on the
fact that all three witnesses had claimed that Brian had not exposed himself to
them. With that allegation dropped, the case against Brian before a new jury
would have been considerably weakened. Furthermore, Brian would have had more
time in which to conduct research.
The most expedient result
to the Crown was a verdict before the end of the Michaelmas Term, no matter
that such a result was achieved unlawfully
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