As part of our research into Operation Stranger, we have been trying to track down this particularly elusive Court of Appeal Judgment for some time. We publish it here for the public record.
Both Cooke and Barrell profited from this, with reductions to their sentences and leaving the police – who believed it was a distortion to cast Leslie Bailey as the real villain in the piece – flabbergasted by the outcome. Roger Stoodley voiced his squad’s disbelief saying “for Cooke to get a reduction is obscene”.
Note on errors in the document: ‘Bell’ should read ‘Barrell’, ‘Stephen’ Cooke should read ‘Sidney’ Cooke and the “B” referred to is Leslie Bailey.
(1992) 13 Cr.App.R..(S.) 646
STEVEN EDWARD CHARLES BARRELL AND OTHERS
COURT OF APPEAL (Lord Justice Watkins, Mr. Justice Swinton Thomas and Mr. Justice Garland): February 21, 1992
Manslaughter—manslaughter of young boy following buggery by several men—length of sentence.
Sentences for manslaughter of a boy of 14 by a number of men following acts of buggery considered.
The appellants were convicted of conspiring to commit buggery, and manslaughter; one was additionally convicted of doing acts tending to pervert the course of justice. They had been concerned in a sexual orgy in the course of which the boy had died. One of the appellants removed the boy’s body from his flat and dumped it in a copse. Sentenced to 19 years’ imprisonment, 15 years’ imprisonment and 13 and-a-half years’ imprisonment respectively.
Held: punishment for manslaughter should reflect the kind of act which brought about death. Sentences in excess of 10 years were unusual, but sentences of that kind were passed when appropriate, having regard to the extreme seriousness of the conduct causing death. In the light of further information about the involvement of another defendant, the sentence of 19 years would be reduced to 16; the sentence of 13 and-a-half years would be reduced to 10 years. The sentence of 15 years would stand.
References: manslaughter. Current Sentencing Practice B1-3.3.
D. E. Spens, E. Geekie, and C. Conway for the appellants; J. Nutting for the Crown.
WATKINS L.J.: On November 30, 1985. the body of Jason Swift, a 14-year old boy was found in a copse by a farm manager on the east side of what is called Shonks Mill Road near Ongar in Essex. The undergrowth was cut back soon after police arrived. The jury who tried the matter, which I am about to describe, visited the scene and must have come to the conclusion that whoever put that boy’s body there before the undergrowth was cut hoped that it would never be discovered.
This boy had been missing from his home from July 6, 1985. His home temporarily had been with his sister in a flat at Edwy House on the Kingsmead Estate at Hackney. A number of the participants, in what became a very wicked crime indeed, also lived upon that estate.
After he had had been living with his sister for about four weeks he disappeared. A fortnight after he, so to speak, ran away, he sent a postcard to his mother saying that he was working in a fair at Southend and that he was going north. On September 11, of that year he sent her another postcard. The post mark was Croydon. Between then and the discovery of his body he had been seen in London by a number of people who knew him. All of them thought that he was still living either with his sister or with his mother. He was seen about Hackney too during that time. What was not known by his family was that by the time he had sent the second postcard to his mother he had become a rent boy, that is to say, a boy selling his body to men for money.
After the discovery of his body it was examined by, as one would expect, a pathologist. This was Dr. Jerreat, who reported that the condition of this boy left no room for doubt of the kind of life he had been leading. His anus was extensively dilated. The doctor had never seen an anus as wide, although he had examined more than a hundred cases of this kind. The diameter of the objects, which obviously had been inserted in the anus, was quite extensive. The widening of this part of the body had been caused. he said, over a long period and things had been put into the anus on many different occasions. There had been penetration of him by human beings and by articles which caused tears and which damaged the anus irretrievably. There was evidence of quite recent interference of that kind. The body was wrinkled as though it had been immersed in water in recent days, as it undoubtedly had been.
In the doctor’s opinion death was caused by asphyxia. The brain had been starved of oxygen by some means, which may have included a hand being put across the mouth of the boy, his head being forced against a pillow or something like that. Any number of ways could have been responsible for the suffocation because that is what happened.
Much publicity was given to the discovery of Jason. The grim homosexual under world of London was combed by detectives. But the cause of his killing, the manner of it, where the killing had taken place and by whom, remained a mystery for some time. But come the summer of 1987, after intensive inquiries, the police learned
that Jason had died at the hands of men who had made him the victim of a sexual orgy in which they cruelly indulged and in the course of which they unlawfully destroyed his life.
Thereafter they bathed his bloodied body before it was taken from the scene of this awful crime.
The scene was a flat occupied by one Donald Smith. After the body had been cleansed it was put in the boot of a motor car owned by Stephen [sic] Cooke, now aged 64 years. That car was driven away from the Kingsmead Estate, where this flat is, and, as has already been said, literally dumped in that place outside Ongar where it was found. It had been there four or five days before the farm manager came across it.
Gradually the story of what had happened was pieced together in extensive interviews of Cooke and the other men, including Oliver who nowadays prefers himself to be known as Cooke. He is 37 years of age. B., who is not before us, is 30 years of age. Then there is Donald Smith, who has already been referred to, and Stephen Barrell who is 31 years of age.
All those men came to trial at the Central Criminal Court in the summer of 1989 and on May 12, 1989, before McCullough J. and after a 51-day trial, a jury convicted these men. Their sentences are as follows: Cooke for conspiring to commit buggery. for manslaughter, for doing acts tending and intended to pervert the course of public justice, was sentenced to concurrent terms of 19 years’ imprisonment; Oliver for conspiring to commit buggery and manslaughter, concurrent terms of 15 years’ imprisonment; Bell [sic] for conspiring to commit buggery and for manslaughter, concurrent terms of 13-and-a-half years’ imprisonment; B., who has not applied to appeal against anything, was convicted of conspiring to commit buggery, attempting to choke, manslaughter and doing acts tending and intending to pervert the course of public justice and sentenced to concurrent terms of 15 years imprisonment; Smith was at the end of the Crown’s case discharged, verdicts of not guilty were directed by the learned judge.
Cooke now applies for leave to appeal against sentence; Oliver, who until this morning was applying for leave to appeal against conviction, that application has been abandoned, applies for leave to appeal against sentence; Barrell applies for leave to appeal against both conviction and sentence.
All the applications for leave to appeal against sentence are granted on the basis that we shall consider whether or not they are in the whole of the circumstances, as known to this Court, appropriate.
(The Court refused the application for leave to appeal against conviction.)
We now turn to sentence. As has been said already, the rather dramatic information about B. is something which the trial judge of course knew nothing about. It has been said that that information should cause us to consider whether or not that information can play a role in determining whether or not the sentences which were passed upon one or more of these appellants can stand.
Mr. Spens for Cooke has made a number of clear submissions in the course of which he argued that Jason had already been corrupted as a willing participant initially to what went on. Cooke had never used him before. The sentence of 19 years is almost a life sentence in effect. Cooke has no previous convctions for violence. There were other people present at this orgy who have not been brought to book.
We looked at his invitation at a number of cases relating to sentences for manslaughter. Punishment for manslaughter, as we have said many times in this Court, should reflect the kind of act which brought about death. Hence the sentences for manslaughter vary infinitely. It is true to say, unless there are outstandingly serious features in the offence of manslaughter, that sentences beyond 10 years are not usual. Sentences of that kind are sometimes passed when appropriate, having regard to the extreme seriousness of the conduct causing death.
So much for Cooke and the submissions made about him. Of course we bear in mind that he is now 64 years of age and 19 years’ imprisonment is a very long time in relation to a man of that age. But, on the other hand, his conduct was absolutely deplorable and wicked. He disposed of the body, apart from anything else. The B. factor I shall return to.
I come to Oliver. It is said of him that there is no evidence of violence having been used by him. Medical reports show that he is susceptible to pressure. He has a subservient personality. He took no part in disposing of the body and his role in the whole affair was not so serious as that adopted by others. Barrell was a man of clean character unlike the others. He had been on bail at the time he was sentenced and he had been no problem to anyone during that time. There was no evidence to support any suggestion that might have been made that he played an active physical part in what went on. He may be put into the category of being an encourager by his presence and otherwise at the scene, although it has to be said that there was blood upon him, as I have already pointed out. There was blood upon his pullover, the part of the clothing that was disposed of by Mrs. Patterson.
What impresses us most, with great respect to counsel, is what I here called the B factor. B. really is an ogre. The judge upon the information before him came to the conclusion that Cooke was the ring leader, hence the leading sentence of 19 years’ imprisonment. That, in our judgment, is a finding which can no longer stand. B. quite clearly was at least equal to Cooke in every way. He may even have been a dominant personality in what went on. Certain it is that he with Cooke disposed of the body and he disposed of the body of at least another boy as we now know—a boy killed in an orgy.
But we have to look at the situation as it is now presented to us. If it were not for the B. factor, we should have taken a lot of persuading to alter the sentence passed upon Cooke by the judge, but having regard to it we have come to the conclusion that the proper sentence here upon Cooke is one of 16 years’ imprisonment. That being so, we quash the sentence of 19 years ad substitute for it one of 16 years.
But the B. factor does not affect Oliver and so we have to look at his activity just as the judge did. We see no reason why we should disturb the very careful decision of the judge and accordingly Oliver’s appeal against sentence fails and is dismissed.
Finally there is Barrell. The B. factor does affect him; Bailey took him to this orgy. Barrell is not a homosexual. He seems to have gone along there for the curious excitement of the affair. It seems an astonishing thing to do. There is no evidence that he has ever done such a thing before or since.
Accordingly, having regard to that undoubted influence, as we see it (the judge could not), of B. we have come to the conclusion that a sentence of 13-and-a-half years’ imprisonment was too severe. We will quash that and substitute for it a sentence of 10 years’ imprisonment. To that extent his appeal is allowed.