(Court of Appeal; Thorpe, Wilson and Collins LJJ; 2 October 2008)
In care proceedings the local authority initially sought findings of inappropriate and abusive sexual conduct by the man in respect of three young girls. At a relatively early stage the allegations in respect of one of the girls were dropped. The local authority was ultimately unable to obtain evidence in relation to the second girl, and the allegations in respect of her also had to be dropped. By the hearing the local authority was seeking only one finding in relation to the remaining girl, who was prepared to give evidence. The counsel for the local authority referred the judge to the other allegations, suggesting that these were evidence of propensity. The judge went on to make a finding that the man had a propensity to commit acts of sexual touching against young girls and that, on the balance of probabilities, the man had touched both the girl who had given evidence and the second girl. In discussion following judgment the judge made it clear that he had treated the allegations in respect of the two girls who had not given evidence as effectively corroborative of case against man, but that he would have been satisfied, on the balance of probabilities, that the man had touched the girl who had given evidence even without this 'corroboration'.
The appeal was allowed to the extent that the judge should never had made a finding of propensity and a finding that man had behaved inappropriately with the second girl when that was no longer part of local authority case. However, this judicial error had not tainted the primary finding, which would stand.