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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202102970/B3 & 202102971/B3 [2022] EWCA CRIM 1475 Royal Courts of Justice Strand London WC2A 2LL Friday 21 October 2022 Before: LADY JUSTICE SIMLER DBE MRS JUSTICE FOSTER DBE MRS JUSTICE TIPPLES DBE REX V DANIEL BURDETT RICHARD BURDETT __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR J NUTTER appeared on behalf of Daniel Burdett MR J SMITH appeared on behalf of Richard Burdett _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. Daniel and Richard Burdett are brothers. On 19 August 2021, in the Crown Court at Manchester before Her Honour Judge Goddard QC and a jury, both were convicted of offences of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to section 170 Customs and Excise Management Act 1979 . Richard Burdett was convicted of two such offences and had earlier pleaded guilty to fraud on 21 July 2020. He was sentenced by the judge to a term of 18 years' imprisonment, less the days spent in a foreign prison which were calculated and accounted for. Daniel Burdett was convicted of five such offences. He was sentenced to a total of 25 years' imprisonment, less the calculated foreign prison days. 2. Both applicants renew their applications for leave to appeal against conviction and for representation orders following refusal by the single judge. Both are represented by defence trial counsel who acted on their behalf below. Mr Nutter appears for Daniel Burdett. Mr Smith appears for Richard Burdett. Their essential case is that the trial judge erred in rejecting submissions of no case to answer in both cases. We are grateful to both counsel for their comprehensive written and concise oral submissions on these applications. The facts 3. There were two illegal importations in this case. On 20 April 2018 a heavy goods vehicle was stopped and searched entering the Port of Dover. Firearms, ammunition and silencers were found concealed within the vehicle. The driver was arrested, and the items were forensically analysed. DNA was discovered on both the packaging and on one of the firearms. Analysis of DNA recovered from a knotted clear plastic bag which contained rounds of ammunition revealed a mixed DNA result which indicated the presence of DNA from at least three individuals, including at least one man. Based on that finding it was possible to say that DNA from the mixed DNA profile was 370 million times more likely to have originated from Daniel Burdett and two other men than from three unknown men. The expert who analysed the DNA concluded that the results provided extremely strong support for the suggestion that the mixed profile contained Daniel Burdett's DNA. There was also analysis of DNA recovered from a handle of a revolver. That too revealed a mixed DNA profile, this time made up from four contributors. A complete major profile matching that of Daniel Burdett was found. Based on that finding it was possible to say that DNA in that mixed DNA profile was one billion times more likely to have originated from Daniel Burdett and three unknown people, than from four unknown people. The expert who analysed the DNA concluded that the results provided extremely strong support for the suggestion that the mixed profile contained Daniel Burdett's DNA. 4. On 1 September 2018 another heavy goods vehicle was stopped and searched at the Port of Killingholme. Firearms and ammunition were found concealed in plastic boxes. Again the driver was arrested and the weapons and other items were forensically analysed. DNA and fingerprints matching Richard Burdett was found on the packaging. DNA from Daniel Burdett was also found on packaging and on one firearm. The firearms comprised ten Heckler and Koch brand P2000 self-loading pistols. The serial numbers had been mostly removed. Pistols 1-4 and 6-10 were packaged with 25 live 9 x 19mm calibre bulleted cartridges. Pistol 5 was packaged with 26 9 x 19mm calibre bulleted cartridges. In each case the ammunition was suitable for use with the firearm with which it was packaged. 5. DNA matching Daniel Burdett was found on firearm 6 and on packaging from firearms 3, 4, 6 and 7. DNA matching Richard Burdett was found on packaging from firearms 6 and 9. Fingerprints matching Richard Burdett were identified at 16 locations on a black bin bag from which firearm 10 was recovered. 6. At the same time as the lorry driver of the second heavy goods vehicle was in Amsterdam, Richard Burdett's telephone was in the same district of Amsterdam. This is where the weapons were assumed to have been placed onto the vehicle. There was an unknown mobile phone user using a number ending 518 and it was the prosecution's case that this user was responsible for the provision of the weapons. There was, however, no telephonic link between Richard Burdett and the lorry driver or the unknown 518 mobile phone user. 7. The prosecution relied on Richard Burdett's movements to and from Amsterdam and Dublin during the period before and after importation. These were encapsulated in a sequence of events chart. The prosecution also relied on Richard Burdett's use of several mobile phones, one of which ceased use several days after the second importation was stopped. Richard Burdett was found with two encrypted phones on his arrest at Manchester Airport in April 2019. He refused to provide PIN numbers to the police in respect of those phones. He breached his bail and returned to the Netherlands where he was stopped by the police in July 2019. He produced a false passport to Dutch police on that occasion and ultimately was extradited to the UK in October 2019 to face these criminal proceedings. He gave a no comment police interview. Daniel Burdett was never interviewed by police. 8. The applicants both denied involvement in the importation of firearms. They accepted that whilst they could be linked to the firearms and/or to the packaging by forensic evidence, that by itself did not prove their participation in any importation, still less importation to this country. Neither gave evidence in his defence at trial. 9. The prosecution relied at trial on the DNA evidence as the principal evidence in the case. The DNA of Daniel Burdett was found, in summary, in the first importation on the bag of ammunition and the handle of the firearm. In the second importation, it was found on the clear clingfilm surrounding firearm 3, the heat sealed plastic around firearm 4, the clingfilm pouch surrounding firearm 6 and the creased edge of the packaging surrounding firearm 7. The prosecution also relied on circumstantial evidence and inferences in his case. 10. The case against Richard Burdett also rested principally on DNA and fingerprint evidence. In summary, this was found on the outside surface of the clingfilm pouch of firearm 6; on the outside surface of the clingfilm pouch of firearm 9, and the fingerprints on the black bin bag containing firearm 10. Then prosecution also relied on the sequence of events chart to which we have referred, his attempt to conceal his travel between the UK and Holland by the use of a false passport and his use of mobile phones and changes in use of mobile phones and numbers around the time of the importation. The submission of no case to answer 11. The applicants made a submission of no case to answer at the end of the prosecution case. That submission was essentially founded on the contention that DNA evidence on its own was insufficient in both cases. The judge rejected those submissions. In her careful ruling the judge summarised the fact that there were two separate illegal importations of firearms and ammunition into this country from the Netherlands and that Daniel Burdett was alleged to have been involved in both importations and was charged jointly with his brother in relation to the second importation. 12. The judge directed herself in accordance with the well-known principles set out in Galbraith (1981) 73 Cr.App.R 125. She said that she would have to decide if the prosecution case taken at its highest was such that a reasonable jury properly directed could convict each defendant. She was referred to Tsekiri [2017] EWCA Crim 40 , Jones [2020] EWCA Crim 1021 and Bech [2018] EWCA Crim 448 . We too were referred to those cases and have read them. The judge acknowledged that in Daniel Burdett's case, the prosecution largely, if not solely, depended on the DNA evidence. Nonetheless, as she recognised, a case can be left to a jury solely on the basis of the presence of a defendant's DNA profile on an article left at the scene in an appropriate case (see the Tsekiri factors). 13. So far as Daniel Burdett was concerned, Mr Nutter conceded that the DNA evidence was sufficient to establish a case of criminal possession within the Netherlands but not sufficient to found a case of importation into the UK. That is an argument he repeated before us. The judge however concluded that it was highly significant that his DNA was found, not only on the firearms, but on the packaging itself, which was a foundation for importation. The photographs showed the careful way items were packaged, with guns being wrapped in clingfilm, in plastic which was heat sealed and then brown plastic tape. It followed, she concluded, that the significance of the presence of Daniel Burdett’s DNA was enhanced by the way the items were packaged. She accepted, as the prosecution contended, that it was a reasonable inference for the jury to draw that the packaging of the firearms was for the purpose of the importation into the UK and not simply for possession within Holland. The absence of evidence of Daniel Burdett's presence in Holland or Amsterdam at the time of either importation, notwithstanding his arrest in the Hague in December 2019 and the absence of evidence of telephone links were not, she concluded, relevant to the half time submission which depended on the sufficiency or otherwise of the actual evidence. 14. The judge acknowledged that the jury would have to consider the evidence against each defendant separately but concluded that they would be entitled to consider all of the evidence in the case and would be entitled to take into account the fact that Daniel Burdett's brother was implicated in the placement of the firearms and ammunition onto the trailer in the Europaplein district of Amsterdam in September. Ultimately she concluded that the DNA evidence alone, bearing in mind that there were two separate importations where Daniel Burdett's DNA was found, together with the way the goods were packaged and in the absence of any innocent explanation for the presence of all the DNA, was sufficient evidence on which a reasonable jury properly directed could convict Daniel Burdett of being knowingly concerned in the fraudulent importation of the items on all counts. 15. For Richard Burdett, Mr Smith submitted, again as he did before us, that the evidence relied on by the prosecution based on the DNA evidence was so inherently weak and unsafe that the case should not proceed beyond the halfway point. On its own he submitted that the DNA evidence was insufficient. He suggested that the evidence pointed to RB residing in Amsterdam. The evidence about his phone usage in the same district and time as the lorry driver and the supplier were in contact was not so surprising given RB’s links to Amsterdam. The fact RB’s phone was contacting his partner at the same time as those engaged in the importation pointed away from guilt. Moreover, there was no DNA from Richard Burnett on the weapons themselves and his DNA was found only on the packaging. It was a mixed profile and that showed others had also had contact with those items. Richard Burdett did not immediately change his mobile phone after the importation, that was only done some six days later, and the fact he used a false name was of little assistance to the prosecution given his criminal past. 16. The judge once again accepted the prosecution contention that it was a reasonable inference that the packaging of the firearms in clingfilm, heat sealed plastic and brown tape was for the purpose of importation. She regarded that as significant in relation to the counts charged and to knowledge that the goods were to be illegally imported into the UK. She placed reliance on the evidence of Richard Burdett's presence in Holland as demonstrated by the sequence of events. In her sound ruling, she referred to the fact that there was no telephone evidence to connect Richard Burdett with the driver or with anyone else who might have been involved in the importation in September; nor was there evidence of meetings that could show his participation. Those were all valid points about the strength or weakness of the prosecution case that could be raised with the jury, but her task was to consider the sufficiency of the actual evidence. There was no evidence that Richard Burdett resided in Amsterdam and no explanation why he would travel via Dublin. No explanation had been provided to the police in interview for the presence of his DNA on the items seized. The judge looked at the evidence available by way of DNA; she looked at the presence in the same district of Amsterdam at the time the goods were handed over to the driver; she looked at the change in mobile phone usage a few days later, together with Richard Burdett's travel arrangements and the encrypted phones found on him. She concluded that the evidence as a whole could properly lead to the inference that he was knowingly concerned in the importation of the items and therefore there was a case to answer on which a reasonable jury properly directed could convict Richard Burdett on the counts that he faced. The application 17. Mr Nutter on behalf of Daniel Burdett repeats the submissions made before the judge. He referred to the joint expert report which could not say when or how the DNA came to be deposited. The DNA proved contact and might be said to have proved possession in Holland, but it went no further, and certainly did not make the leap to proving a case that Daniel Burdett was knowingly involved in the importations concerned. This is the crux of the case. The prosecution had to prove knowing involvement in importations and the evidence was simply not capable of doing that. He emphasised the inability to identify when the DNA was deposited and that it can persist for a considerable period of time. The earlier the deposit the less likely the connection with the importation is to have been and in all the circumstances the DNA evidence by itself came nowhere near to proving knowing importation. There was nothing in the sequence of events that supported the inferences relied upon by the prosecution either. 18. We have considered those submissions with care but have concluded that the application is not arguable. In considering and rejecting the submissions made in the court below, HHJ Goddard QC recognised correctly that the prosecution case was largely, if not solely, founded on DNA evidence. She applied the relevant law correctly and considered the factors relevant to cases resting solely or mainly on DNA evidence. She made no arguable error in doing so. 19. It is significant that the DNA on which the prosecution relied against Daniel Burdett was not only present in two unconnected importations from Holland to the UK, but also on the layered, carefully organised items of packaging. It was a reasonable inference that the packaging of the firearms in this way was for the purpose of the importation. All of the features to which the judge referred, and we have identified briefly, called for an explanation and were features the jury was entitled to rely on. In all those circumstances we are in no doubt that there was sufficient evidence on which a reasonable jury properly directed could convict Daniel Burdett of being knowingly concerned in the fraudulent importation charged. There was unarguably enough evidence for the case to continue and, notwithstanding the clear submissions advanced by Mr Nutter on this application, it is refused. 20. So far as Richard Burdett is concerned, Mr Smith submitted, as he did below, that the judge was in error in rejecting his submission of no case to answer. The prosecution case was inherently weak. 21. Mr Smith amplified that overarching submission, both in writing and orally. He submitted that the DNA evidence alone was insufficient for the reasons advanced by Mr Nutter. Moreover, the judge placed too much reliance on Richard Burdett's presence in Amsterdam as being supportive of the prosecution case in circumstances where there was clear evidence that he resided in Amsterdam in any event. She placed too much reliance on his silence in interview and her error in her first ruling was an error that reduces confidence in her ruling overall. There was simply insufficient evidence for a jury properly directed to convict and the case should not have proceeded. 22. Once again, and forcefully as those submissions were advanced, we do not regard them as arguable. Here too we can see no basis on which to conclude that the judge made any arguable error in her summary of the principles of law and in the factors on which she relied. As we have said, there was DNA from Richard Burdett on the outside surface of the clingfilm pouch wrapped around firearms 6 and 9 and there was fingerprint evidence on the black bin bag containing firearm 10. Again, it was open to the jury to conclude that the careful packaging of the firearms in this way was for the purposes of importation. In addition, Richard Burdett was in the same district of Amsterdam, namely Europaplein, at the same time as the user of the 518 number and at a time when that number was in contact with the lorry driver who was to drive the prohibited items into the UK. That was significant evidence (as the judge explained) in describing the movements of the user of the 518 number and the circuitous route that had been taken to Europaplein via Huizen, Alkmaar, Europaplein and then Hilversum, Utrecht and Lekkerkerk. There was evidence of the lorry driver's phone also using a mast in Lekkerkerk at the same time as the 518 user and being in contact with that 518 number. Even if Richard Burdett had an innocent reason to be in Amsterdam, or indeed Europaplein, it was the arrival of the unknown 518 user at the same time and in the same area of Amsterdam as Richard Burdett that was highly significant, both as the prosecution contended and as the judge concluded. In any event, the evidence did not show that he resided in Amsterdam. It simply indicated that he was there on numerous occasions. Evidence in the sequence of events showed his phone being used to call an Amsterdam taxi firm on various dates between 14 August and 7 September 2018. There was no evidence as to the location of the phones at that time. The restaurant card did not support the submission that he resided in Amsterdam, still less Europaplein. Indeed there was no evidence as to the location of his residence. As we have said, the significance of the location evidence was not so much that Richard Burdett was present in Amsterdam, but that he was in the particular district of Amsterdam when the unknown user of the 518 number travelled to the same district. Accordingly, it seems to us that it was an entirely proper and by no means too tenuous an inference, that the user of the 518 number travelled to Europaplein to meet Richard Burdett. 23. We acknowledge the factual error made by the judge in her first ruling. However, the judge corrected that factual error having heard further submissions, and her second ruling made no reference to it. 24. Finally, so far as Richard Burdett's silence in interview is concerned, it seems to us that the judge was entitled to rely on his silence in interview when considering the submission of no case to answer. R v Jones [2020] EWCA Crim 1021 is not authority for the proposition advanced by Mr Smith in writing. That case turned on its own facts as the court was at pains to emphasise. 25. These are all fact specific cases and ultimately this application, like Daniel Burdett's application, boils down to the question whether the evidence was sufficient to enable a reasonable jury properly directed to conclude that Richard Burdett was knowingly involved in the importation of the items concerned. We are in no doubt that is was, and there was no error or unfairness in the rejection of the half time submission in his case either. 26. For all those reasons, the application for permission to appeal is refused in Richard Burdett's case also. Accordingly, all applications are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Manchester"],"ConvictPleaDate":["2021-08-19","2020-07-21"],"ConvictOffence":["Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to section 170 Customs and Excise Management Act 1979","Fraud"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Manchester"],"Sentence":["Daniel Burdett: 25 years' imprisonment, less days spent in a foreign prison","Richard Burdett: 18 years' imprisonment, less days spent in a foreign prison"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["DNA match","Fingerprint evidence","Circumstantial evidence","Sequence of events chart","Mobile phone evidence"],"DefEvidTypeTrial":["No comment police interview (Richard Burdett)","No evidence of presence in Holland/Amsterdam (Daniel Burdett)","No evidence of meetings or telephone links (Richard Burdett)","No evidence of when/how DNA was deposited"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction"],"AppealGround":["Trial judge erred in rejecting submissions of no case to answer","DNA evidence alone insufficient to prove importation","Judge placed too much reliance on presence in Amsterdam and silence in interview"],"SentGuideWhich":[],"AppealOutcome":["Dismissed","Application for permission to appeal refused"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge applied the law correctly","Sufficient evidence for a reasonable jury to convict","No arguable error in judge's ruling","DNA and circumstantial evidence sufficient","No error or unfairness in rejection of half time submission"]}
Case No: 2016 00318 & 00758 C2 Neutral Citation Number: [2017] EWCA Crim 34 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT SOUTHWARK HH JUDGE GOYMER T20127350 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10.2.2017 Before: LORD JUSTICE SIMON MR JUSTICE NICOL and HH JUDGE MOSS QC - - - - - - - - - - - - - - - - - - - - - Between: The Queen and Respondent Christopher Lunn Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Geoffrey Cox QC and Christopher Harding for the Appellant Carey Johnston QC and Valerie Charbit for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Simon: 1. On 3 December 2015 in the Crown Court at Southwark (before HHJ Goymer and a Jury), the appellant was convicted by unanimous verdicts of four counts of cheating the Revenue (counts 1-4). This was a retrial. At the first trial, which had concluded in January 2014, the Jury had been unable to reach verdicts on counts 1-4 and acquitted the appellant on two further counts of cheating the Revenue (counts 5 and 6). 2. On 11 January 2016, the appellant was sentenced to 4 years’ imprisonment on count 1, and 12 months on counts 2-4, concurrent to each other but consecutive to the 4-year term on count 1. The total term was 5 years’ imprisonment. 3. He appeals against conviction and sentence by leave of the Single Judge. An outline of the case 4. The appellant ran an accountancy business, both as a self-employed sole trader ‘(trading as Christopher Lunn & Company) and as the sole director and shareholder of a limited company (Christopher Lunn & Company Limited). The two firms were run as one business. For most of the period covered by the indictment the appellant was the only qualified accountant in the business. He hired a number of people with limited or no previous experience in preparing accounts and tax returns; and training was generally given to these people either by the appellant or by someone he had trained. 5. The prosecution case was that he had acted dishonestly with the result that the Revenue was deprived of tax to which it was entitled. 6. Count 1 related to accountancy fees charged by the firms to its clients. The accountancy fees were tax-deductible expenses; and the prosecution contended that the firms adopted the dishonest practice of entering standard and non-standard accountancy fees in the accounts and tax returns of clients that were higher than those charged to the clients, so that the figure for accountancy fees presented to the Revenue was falsely overstated and the tax payable by the clients was reduced, with a loss to the Revenue. Although the individual amounts were relatively small, it was a system that was applied over a number of years, across a large client base (which included members of staff) and the overall loss was significant. 7. The defence was that the appellant was not aware that false invoices representing inflated charges were being produced by his staff; and that in any event he had not been dishonest. It was also contended that he only acted as agent for the clients and it was they who benefitted from the overstatement of accountancy charges and not the appellant or his business. Furthermore, to the extent that figures for accountancy fees were inaccurate, there was no net loss to the Revenue because the full allowance which was available to the clients for the use of their home as an office had not been claimed. If the appropriate allowance had been claimed, it would have offset any overstatement of accountancy fees. These matters were set out in appellant’s defence statement dated 11 February 2013. It will be necessary to return later in this judgment to the last point, referred to in argument as the ‘no loss’ point and also (as we prefer to describe it) as the ‘home as office point’. 8. Counts 2 and 3 concerned what was said to be the dishonest manipulation of the accounts of two companies: Sno White Ltd (count 2) and Rain White Ltd (count 3). These were originally owned by clients. The appellant took control of the companies at a point where they had ceased to trade, with accumulated trading losses. The prosecution alleged that these trading losses were offset against fictional profits arising from fictional trades carried out with his own business which supposedly purchased services from these companies. The nature of the cheat was that the appellant included the costs of these services in his accounts as tax-deductible expenses, thereby reducing his firms’ tax bills. On count 2 the total loss to the Revenue was said to be £20,200 income tax and £10,100 corporation tax; and on count 3, approximately £39,850 in corporation tax. 9. The defence in relation to counts 2 and 3 was that the appellant acquired these companies because they had losses that could properly be used to reduce the profits and tax liabilities of his own and other associated businesses. As far as he was concerned, they were legitimate tax-saving schemes. The trade on each was similar to that of the previous businesses and, in any event, he did not act dishonestly. 10. Count 4 related to what was said to be the dishonest manipulation by the appellant of his firms’ accounts and those of a company called Carte Blanche Design Ltd, a company owned by his wife, by including false entries in his firms’ tax returns relating to services provided by Carte Blanche Design Ltd in order to reduce their tax liability. The total loss was said to be approximately £30,278.80. 11. The defence in relation to count 4 was that Carte Blanche Design Ltd was paid a reasonable sum for work that was legitimately done. There was no dishonesty and no cheat. Count 1 12. Count 1 was in the following terms. Statement of Offence Cheating Her Majesty, the Queen and the Public Revenue, contrary to Common Law. Particulars of Offence [The appellant] between 24 March 2003 and 31 December 2011 in connection with Christopher Lunn & Company and Christopher Lunn & Company Ltd cheated Her Majesty the Queen and the Public Revenue of income tax and corporation tax by dishonestly submitting or causing to be submitted tax returns and accounts on behalf of clients which were misleading in that they falsely overstated the amount charged for the accountancy services provided. 13. A number of issues were raised both at trial and on appeal in relation to the way in which count 1 was framed. First, it was said to be duplicitous. Secondly, because of the long period and the number of clients covered by the indictment, it was said to be contrary to the Criminal Procedure Rules (‘CPR’) and the Criminal Practice Direction (‘CPD’) relating to the drafting of indictments. Thirdly, and for similar reasons, it was contended to give rise to a trial process that was unmanageable and unfair. 14. The period covered by the count was 8 years and 9 months; and it was on this basis that the defence challenged the indictment at the retrial as it had at the first trial. 15. On 15 September 2015, the defence made an application that count 1 should either be quashed, or alternatively stayed as an abuse of process. 16. The Judge noted that it was similar to an application made in the first trial, and refused the application for the reasons he had given then. However, he noted that he had required the prosecution in the first trial to select specific transactions on which it relied, so that the trial would be manageable and the Jury could focus on the issues, and would keep the matter under review. Ruling in the first trial 17. In his ruling in the first trial the Judge had voiced justifiable displeasure that the application had been made on the first day of the trial, rather than at an earlier case management hearing, but recognised that it was a matter he had to deal with. 18. The Judge summarised the arguments on each side. The defence argued that count 1 was defective either for duplicity or for lack of particularity, and that it was faced with an impossible position because there were so many transactions relied on and so many different issues that arose. It would be difficult for the Judge to sum up; and if there were a conviction it would be impossible to know on what basis the Jury had convicted. The lack of particularity made it unfair for the defence and constituted an abuse of the Court’s process. 19. The prosecution contended that the framing of count 1 did not give rise to difficulty. The prosecution was alleging a course of conduct by the appellant when acting on behalf of his clients. It was a form of systemic dishonesty which had operated throughout the indictment period whose effect was to defraud the Revenue. 20. In his ruling the Judge identified three types of ‘duplicity’. First, where, on the face of the count, more than one offence was charged. Second, where, although the count appeared good on its face, the evidence established that more than one offence was committed, sometimes referred to as ‘divergence or departure’. Third, where the Judge, in the interests of justice, requires the prosecution to amend a count or elect on which, among many, counts to proceed. 21. The Judge identified the complaint as being about lack of particularity (the third category) and referred to rule 14.2 of the 2010 Criminal Procedure Rules and the relevant Practice Direction. He reminded himself that, even where the framing of a count was consistent with the Rules and the Practice Direction, the Court must be vigilant to ensure a fair trial. The defendant would have to know the case he had to meet, and the Court would have to understand from the Jury’s verdict, at least in general terms, the basis on which they had convicted. 22. The Judge considered that of the four elements set out in the CPD (which we set out below). Three of these applied. He referred to the case of Litanzios (1999) Crim LR 667 as support for the proposition that a count charging a cheat ‘over a substantial period of time’ was not objectionable where it related to a course of conduct, providing the details of the cheat were made clear. The longer the period, the more essential that the conduct was particularised. In the Judge’s view the real issue on the application was whether count 1 was so lacking in particularity that the defendant could not properly and fairly answer the allegations. The Judge expressed himself ‘wholly unpersuaded’ that there was any injustice to the defendant or an abuse of the Court’s process in the form of the count. Nevertheless, the prosecution would not be permitted to broaden the evidential scope and the matter would be kept under review. Grounds relating to count 1 23. The offence of Cheating the Public Revenue derives from the common law misdemeanour of cheating. Historically, the offence was broadly defined by reference to ‘deceitful practices’ which either defrauded, or endeavoured to defraud, another by dishonest means. For a history and analysis of the offence, see Hudson [1956] 2 QB 252 , Archbold 2017 §25-409 and Smith and Hogan Criminal Law 14th ed. §24.5. 24. Two linked points may be noted. First, to the extent that the distinction is relevant to identifying the actus reus , the offence of Cheating the Revenue can be either a ‘conduct offence’ or a ‘result offence’. Secondly, in the former case the prosecution does not need to prove an actual loss, see for example Hunt [1994] STC 819 at 826-827 and Attorney-General’s Ref No.8 of 2012 [2012] EWCA Crim 1730 at [46]. In the present case the prosecution took on the burden of proving a net loss to the Revenue and it is not clear why it did so. It may be that it felt that a loss to the Revenue would support its case on intent and dishonesty, or that it would inform the sentencing process if there were a conviction. In any event, the Judge directed the Jury that the prosecution bore the burden of proving a net loss to the Revenue in the light of ‘the home as office’ point. 25. So far as the arguments on duplicity and abuse of process are concerned, we consider that Judge’s ruling was correct and that Mr Cox QC was right not to pursue the points as such. 26. Duplicity is directed to the form of the indictment and count 1 did not charge more than one offence: it charged a continuing and systemic cheat. A stay of proceedings is generally directed to where it is necessary to protect the integrity of the criminal justice system or where it is impossible for the defendant to have a fair trial, see Archbold 2017 §4-75. In the present case the Judge exercised his case management powers with a view to ensuring that the appellant was not prejudiced in his defence and that his trial was fair. We consider below the criticisms of his trial management decisions. 27. Mr Cox was on firmer ground in his criticism of the period (8 years and 9 months) and the practical effect of the number of transactions covered by count 1. He submitted that the count was objectionable because the appellant did not know the case he had to meet and the period covered by the charge, and was, in any event, contrary to principles of elementary fairness, see for example, Archbold 2017 §1-237. 28. For the prosecution, Ms Johnston QC submitted that the number of routine overstatements of accountancy fees could not properly be reflected in counts reflecting the cheats in respect of individual clients. Such an indictment would have run to many hundreds of counts and would have resulted in the overloading of the indictment contrary to good practice. 29. Charging and the case management issues that arise from allegations of multiple offending have given rise to much discussion since the decision of this court in Canavan, Kidd & Shaw [1998] 1 Cr App R 79 . 30. In Barton v. DPP [2001] EWHC Admin 223 , a defendant had been charged on an information alleging the theft of £1,338.23 over a period of years. The Divisional Court (Kennedy LJ and Astill J) reviewed the authorities on ‘continuous offences’; and concluded that, although the individual appropriations were each capable of being separately identified, it was permissible to charge the whole course of conduct as a continuous offence because the defendant put forward the same defence in relation to all the takings. 31. The issues were the subject of a Law Commission Report: ‘Effective Prosecution of Multiple Offending’, Law Commission No.277 CM 5609, presented to Parliament in October 2002. The Report highlighted the problems of repeat offending with too many individual offences to be accommodated in a single trial, and referred to the ‘pragmatic arrangement’ of charging offences treated as specimens of a wider range of offending that was ‘thrown into disarray’ by the decision in Canavan, Kidd and Shaw . Paragraph 4 of the Report’s executive summary identified two fundamental principles: first, that a defendant should only be sentenced for that which he has admitted, or which has been proved following a trial in which the evidence can be examined; and secondly, that it should be possible to sentence for the totality of an individual’s offending; and a defendant should not escape appropriate punishment because the procedure cannot accommodate it. 32. The subject has continued to give rise to difficulty, see for example Tovey [2005] EWCA Crim 530 , Grout [2011] 1 Cr. App R 38, and the discussion in Archbold 2017 §5-91/94. 33. At this stage of the analysis the issue is primarily one of practicality and fairness, rather than sentencing, and this is addressed in the Criminal Procedure Rules. 34. The rule which applied at the material time was CPR rule 14.2 (2). It is now rule 10.2(2) and, for convenience we shall refer to the most recent version of the rules and practice direction. Rule 10.2(2) provides: More than one incident of the commission of an offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission. 35. CPD II §10A.11 (previously PD §14.A.10) is in the following terms. Crim PR 10.2(2) allows a single count to allege more than one incident of the commission of an offence in certain circumstances. Each incident must be of the same offence. The circumstances in which such a count may be appropriate include, but are not limited to, the following: (a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or money laundering; (b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both; (c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year; (d) in any event, the defence is such as to apply to every alleged incident. Where what is in issue differs in relation to different issues, a single ‘multiple incidents’ counts will not be appropriate (though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence). 36. Further guidance is provided by the observations of this Court in Hartley [2012] 1 Cr App R 7 , Hughes LJ (Vice President) at [22]. Where specific incidents are capable of identification … then ordinarily we would expect the indictment to contain a count referable and identifiably referable to that event so that the jury can determine it. That is subject to not, if there are hundreds of them, overloading the indictment with more counts than the jury can be expected to determine. Generally, it is necessary for those who are framing indictments to pay attention to any issues flagged up by what the defendant has said either in interview with the police or later in a defence statement. Ordinarily we would suggest where there is simply a complaint of a course of conduct over a period of months, often years, more than a single count for each period is usually appropriate, although one per year may well suffice if the alleged period is extended. But the overall principle is simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive and to the position of the judge in due course should there be convictions. If thought is given to those questions we have little doubt that it will normally be possible to frame an indictment in a manner which enables the sentencing to be realistic and complies with the strict rules of law as set out in R v Canavan . 37. In the present case, the prosecution case was summarised in draft spread sheets which were said to show either (a) the charging of no fee for accountancy services and a claim for the costs of those services in the relevant accounts or claims presented to the Revenue, or (b) a claim for the costs of the services which was significantly higher than the amount actually charged and paid for those services. The draft spreadsheets identified the clients or members of staff and the relevant figures (including the arithmetical differences) in a readily comprehensible form. This was neither an uncommon nor an objectionable way of dealing with a charge of fraud or cheat. 38. The alleged transactions taken together plainly amounted to a course of conduct within the meaning of CPR Rule 10.2 (2) and was compliant with that rule. The victim was the Revenue and the transactions involved a marked degree of repetition in the method used. It would have been wholly impractical to reflect the alleged criminality by charging individual cheats based on individual clients and their accounts and tax returns over the number of years, since such an indictment would have run to many hundreds of counts. Nevertheless, we accept that a long period and large number of transactions covered by a single count may give rise to particular trial management and sentencing issues. We address these below. 39. So far as trial management was concerned, we cannot see that there would have been any great advantage in fragmenting the indicted period into counts covering a single year. The trial management issues in this type of case (and in this particular case) would be as likely to occur if there had been nine counts, divided up into what might have been arbitrary periods, as they would in a single count, see for example, Litanzios (above). We are fortified in this conclusion by the qualifying words in the practice direction, ‘not limited to’, to the further qualification in (c) ‘not necessarily’ and to the word ‘ordinarily’ in the ante-penultimate sentence in [22] of Hartley (above). 40. Nor are we persuaded that defences advanced at trial should necessarily determine the form of the indictment, although they plainly may, depending on the circumstances. 41. As to the periods covered by counts for this type of continuing offence, we do not think that it is either possible or desirable to set out any general statement of principle, beyond the observation that it is plainly sensible for consideration to be given as to the form of the indictment in good time before the trial begins so that the case can be properly managed in accordance with the principles that we have described above. 42. We will return later in this judgment to the sentencing issues, simply noting at this stage what was said by this Court in Dosanjh [2014] 2 Cr App R (S) 25 at [33] about the charge of Cheating the Public Revenue. It is recognised as the appropriate charge for the small number of most serious revenue frauds, where the statutory offences will not adequately reflect the criminality involved and where a sentence at large is more appropriate to one subject to statutory restrictions. These are not ‘ordinary’ cases. 43. It follows from the above, that we have concluded that the Judge was right to reject the appellant’s initial application as to the form and particularity of count 1; and that he was also right to make clear that the prosecution should not be permitted to broaden the evidential scope of the count and that the whole issue would be kept under review. The Judge was bound to apply the overriding objective set out in CPR Part 1 , and in this ruling he plainly did so. 44. The next procedural development occurred on the first day of the trial (17 September 2015), in relation to spreadsheets which were served by the prosecution. The Judge ruled that these could be placed in the Jury bundles as working documents that had not been agreed; and directed that the prosecution would have to prove the matters summarised in the schedules and, if it did not, the material would be removed. There is no current complaint about that ruling. In fraud cases, schedules summarising parts of the evidence are properly deployed so as to reduce the burden of the Jury in dealing with what would otherwise be a large number of documents. The trial was an EPE (electronic presentation of evidence) trial and the prosecution illustrated many of the underlying documents on screen. As the defence did not agree any of the entries on any of the schedules, it was necessary to show the jury that the entries were accurate and the Jury was shown the underlying evidence on screen. In fact, none of the figures were disputed. 45. Following this, the prosecution called a large number of witnesses (both clients of the firms and members of staff). 46. On 30 October 2014, the defence applied for further clarification of the charge in count 1 and, in particular, what was described as ‘the focus of the Crown’s case’. 47. Mr Cox pointed out that there were 400 potential transactions in the schedules and argued that this was an unmanageable number for the defence and the Jury to deal with. He applied for the prosecution to identify which transactions it relied on and a ruling that it be bound by that selection. His arguments were essentially directed at sensible case management and fairness. 48. The Judge indicated that, if the indictment had charged 400 or even 40 counts, he would have directed the prosecution to limit the charges in the interest of trial management. However, he declined to rule on the defence application because the prosecution had accepted that it would have to limit the number of transactions to a dozen or so, and give voluntary particulars in relation to these. 49. On 4 November, the defence made further submissions in relation to count 1. At this point the prosecution had confined its case to transactions relating to 15 particular individuals (11 clients and 4 members of staff). The defence complained that this number of transactions was itself unmanageable. Due to the long period covered by the indictment the jury would have to consider 99 transactions and even this reduced number was unmanageable. 50. The Judge rejected the complaint, ruling that the prosecution’s proposal to rely on any transactions associated with the 15 named individuals was a fair and reasonable balance that did justice to both sides. He declined to direct that the prosecution should further confine the number of transactions that the defence would have to deal with. The Jury would be directed that it was not necessary for the prosecution to prove that the appellant took part in every transaction and that it would be sufficient if the Jury was sure that he took part in three, provided it was sure of all the other elements of the offence and was agreed on the same three. 51. When it came to the summing-up the Judge directed the jury in line with this indication (at p.19B). Now in order to assist you, as far as Count 1 is concerned, in your task, the prosecution has focused on a relatively small number of transactions involving 15 clients or staff members, as listed in the particulars annexed to Count 1. You are entitled to look at the whole of the evidence; not just these in isolation, when you decide if the prosecution has proved the case. You can use the other transactions that involve others in order to reach your conclusions on whether the prosecution has proved knowledge, participation, dishonesty and all the other things that must be proved. What you cannot do is to convict him only on the other transactions that go outside the 15. You must be sure that the prosecution has proved its case on transactions within the list of 15 named clients or staff members, and because of the large number of transactions involved it is impossible to deal with each and every one. It would be unfair to convict the defendant by relying on any about which he was not specifically asked when he was in the witness box and this is the reason for this direction. If it is not necessary to prove that the defendant took part in all of the transactions relied upon by the prosecution, how many will amount to a system? It is sufficient that he took part in just three transactions involving any of the 15 individuals named. Of course, you must also be sure that in doing so he intended to cause loss to the Revenue, that he did cause loss to the Revenue and was acting dishonestly. But where it is that number of three you must all agree that it is the same three at least. It will not do if each of you thinks it was a different combination of three. In other words, it must be at least three and the same three. That is what we might call the bottom line. There must be a hard core of the same three which are common ground. 52. Mr Cox did not specifically criticise this direction, which was supplemented by a written summary for the assistance of the Jury. His complaint was directed to the prior decision to allow the prosecution to rely on so many transactions. He submitted that even reducing the transactions to 15 individuals and 99 transactions imposed too great a burden on the defence and the jury. 53. We do not accept this criticism. We have looked at the two-page spreadsheet and the appellant’s evidence in relation to the particular transactions; and we can see no real basis for saying that the appellant was unfairly disadvantaged by the number of transactions relied on. The defence knew from the first trial that the prosecution might be confined to reliance on transactions involving a limited number of clients and staff, and the appellant had sufficient time to prepare what he would say in respect of this evidence. 54. The prosecution case was relatively straightforward. In relation to each transaction there was a figure for the amount charged for accountancy fees in a particular accounting period and a higher figure representing the same work in the accounts or tax returns. 55. The figures set out in the schedules were not substantially in issue. 56. The defence case was of general effect. The appellant gave evidence that he had no interest in administrative matters, and was unaware that false invoices were being produced. He explained that he was away from the office much of the time and that, where a standard fee was charged, there would be a subsequent year adjustment to take into account the work actually done. In relation to those accounts which he dealt with personally, he told the Jury that there was nothing wrong or dishonest about the way in which the accountancy fees were dealt with, because there was no intent to cheat the Revenue, and in fact no loss had been caused to the Revenue. His evidence was that any over-claim of accountancy fees was always matched by and in many cases exceeded by what could have been claimed for use of the clients’ use of their home as their office. 57. In fact, the schedules showed that, contrary to the appellant’s assertion, there were no subsequent year adjustments of what was said to be a standard fee. We note that, if the counts had been confined to a single year, this point might have been more difficult for the Jury to identify. 58. The next ground of appeal relates to, first, the Judge’s direction on the appellant’s participation in, and knowledge of, the cheat; and secondly, to his direction on loss. Mr Cox submitted that the directions in both these respects were insufficient and inadequate. 59. As to the first point, the Judge gave written directions to the Jury, setting out the four elements of cheating the Revenue of which it had to be sure, namely: that the appellant, (1) was personally involved in the activity, either taking part himself or actively directing or encouraging others with the intention that the cheat be committed, (2) intended to cause loss to the Revenue, (3) caused loss to the Revenue by his actions, and (4) was acting dishonestly. 60. We should note that the prosecution accepted that the appellant had not personally prepared all the accounts and tax returns submitted to the Revenue. However, it adduced evidence from which it invited the Jury to conclude that, even in those cases where the appellant did not personally prepare accounts and tax returns, he knew of the approach adopted by the business, including the routine inclusion of overstated accountancy fee deductions. 61. In evidence the appellant explained how the routine overstating of accountancy fees had developed since about early 2006 and that he had adopted it himself. This was evidence from which the Jury could conclude that he not only knew of the practice but that he endorsed it. His defence necessarily involved him having knowledge of this practice because he had known that some staff were not adjusting the fees in subsequent years and that he had thought there was no cheat or loss to the Revenue because of the under-claim implicit in the home as office point. 62. The prosecution case went rather further, but it could at least point out that on the appellant’s own case the home as office point was only credible if he knew of the routine overstating of accountancy fees at the time. 63. Part of the Judge’s development of the direction (at p.18H) was in the following terms: Now the prosecution’s case on Count 1 is that the defendant was involved in a system. The prosecution does not have to prove that he was involved in every single act, or even in the majority of them. What the prosecution does have to prove is that he was involved in a sufficient number to amount to a system, and when I say involved or take part I will tell you exactly what that means. 64. The Judge directed the Jury that in those transactions in which he was not personally involved, the prosecution had to show that he knew of what was going on, encouraged and approved of it, and took part in it, intending that the Revenue should be cheated. 65. He returned later to this aspect of the case (at p.86F). You are, of course, concerned … with what the defendant himself knew. So whether the staff knew or didn’t know doesn’t really matter, because what you must be sure about is that the defendant knew about this, he intended to be part of it, to encourage it and to encourage the commission of the offence. 66. In our view, the summing up viewed overall, taken with written directions and his summary of the evidence of the 15 selected clients and staff in which he indicated where the appellant had been directly involved and where his staff had been involved (p.90-128), clearly conveyed to the Jury the importance of the prosecution having to make it sure of the appellant’s personal involvement in the cheat, with the requisite intent and dishonesty. 67. We would add that it was not necessary to go through each tax return for each tax year since this information was set out in the schedules and the defence was effectively the same for each tax year involved. Nor was it necessary to remind the Jury of each specific item in the schedules on which the appellant had been cross-examined. It was a matter for the Jury to decide in the light of what they had heard and the Judge’s summing up whether the prosecution had disproved the defence. Accordingly, we reject this ground of appeal. 68. So far as the second point is concerned, there appear to have been two elements to the defence argument. First, it was said that the fact that clients had subsequently settled enquiries into their tax affairs, and made additional payments of tax properly owed to the Revenue, was not evidence of loss. This matter was left to the Jury in terms which we consider generous to the appellant (at p.24D-25H, 60E-G and 87C-88B); with the Judge making it clear that it was for the prosecution to disprove the appellant’s assertion that there had been no loss. Secondly, there was reliance on the ‘home as office point’. This defence was also left to the Jury (at p.139B-134F), with the Judge directing the Jury that the issue was important because it affected three of the matters of which they had to be sure: whether loss was intended to be caused, whether loss was in fact caused and whether the appellant was acting dishonestly. In our view this direction does not give rise to proper grounds of complaint. 69. The appellant faced the forensic difficulty that, on the prosecution case the home as office point had only been raised some time after his arrest and his first interview under caution. The prosecution was able to make the point that it was a retrospective justification for his dishonesty. Issues relating to counts 2 and 3 70. Count 2 was drafted in terms which give rise to the same grounds of challenge to the conviction on counts 2 and 3, and it is convenient to focus on this count. Statement of Offence Cheating Her Majesty, the Queen and the Public Revenue, contrary to Common Law. Particulars of Offence [The appellant] between 1 January 2006 and 31 December 2011 in connection with Christopher Lunn & Company, Christopher Lunn & Company Ltd and Sno White Ltd cheated Her Majesty the Queen and the Public Revenue of income tax and corporation tax by dishonestly submitting or causing to be submitted tax returns and accounts: (i) for Sno White Ltd which were misleading in that they falsely brought forward losses of £37,764 to reduce taxable profits which were of a different trade; (ii) for Sno White Ltd which were misleading in that they falsely overstated the turnover by showing sales of £50,500 which had not taken place; (iii) for Christopher Lunn & Company which were misleading in that they falsely claimed as costs an amount of £50,500; (iv) for Christopher Lunn & Company Ltd which were misleading in that they falsely claimed as costs an amount of £50,500. 71. Mr Cox submitted first, that the count was duplicitous and uncertain, in that it was unclear whether the prosecution was relying on an accumulation of the enumerated particulars, or whether these were relied on as alternative ways in which it was said that the offence had been committed. His second point was that, when it came to the summing-up the Judge’s directions on law and fact were inadequate. 72. So far as the first point is concerned, the counts charged a fraudulent course of conduct: particulars (i) and (ii) dealing with the tax returns and accounts of Sno White Ltd, and particulars (iii) and (iv) dealing with the tax returns and accounts of the appellant’s firms. They were, as Ms Johnston put it, ‘two sides of the same coin’. On the prosecution case the appellant had (i) impermissibly applied the legitimate losses of Sno White Ltd to relieve future profits of a different trade, and (ii) reported false sales and turnover figures purporting to reflect sales and services to the appellant’s firms. Particulars (iii) and (iv) described the way in which the ‘fictitious’ sales were accounted for in the accounts and tax returns of the appellant’s firms. The figures for the expenses claimed were based on equivalent false figures in the accounts of Sno White Ltd; but the same costs had been claimed in the firm’s accounts for 2007 (iii) and the company’s accounts for 2008 (iv). The prosecution case was that this was all part of the same cheat. 73. The primary defence was that this was all part of a legitimate tax saving scheme which could have been properly argued if the Revenue taken issue with it. 74. In our judgment count 2 was sufficiently clear in its terms. Subject to Mr Cox’s second point, the issue for the Jury was whether they were sure that it was not a legitimate and honest scheme viewed overall. 75. We have already summarised the Judge’s general direction on the offence of Cheating the Revenue. In relation to the specific charge under count 2, Mr Cox submitted that the summing-up was perfunctory and confusing. One of the matters of specific complaint was what is said to be the Judge’s failure to direct the Jury, in relation to Sno White Ltd and the appellant’s firms, as to ‘whether there was continuity of trading’ and ‘whether it was the same business’. 76. We do not accept this criticism. The Jury had a large number of Agreed Facts (running to 34 pages). These included (at §4.1-5) the circumstances in which the trading losses of one trade can legitimately be carried forward and applied to relieve profits of the same trade, but not those of a different trade. Although there were a number of further issues relating (for example) to work which may or may not have been done by or through Sno White Ltd and the double counting issues addressed by particulars (iii) and (iv), the relevant issue so far as this ground is concerned, was whether the nature of Sno White’s trade under its previous ownership (about which the Jury had heard evidence) was the same as that said to have been conducted under the appellant’s stewardship. In our view there was nothing perfunctory or confusing about the Judge’s direction. His task was to explain the issue to the Jury in terms which they would understand, and he did so. He made clear that it was for the prosecution to disprove the appellant’s case that there was continuity of trade: the appellant having accepted in evidence that he knew it was wrong to carry forward and use losses in respect of different trades. 77. Accordingly, we reject the challenge to the conviction on counts 2 and 3. Issues relating to count 4 78. Count 4 was a further charge of Cheating the Revenue which related to a graphic design business named Carte Blanche, later incorporated as Carte Blanche Design Ltd. The business was run by the appellant’s wife, and it was accepted that it provided some services to the appellant’s firms. The prosecution case was that the tax returns and accounts of Carte Blanche Design and the appellant’s firms were misleading in that they exaggerated and thereby falsely stated the costs of providing work in relation to the appellant’s firms’ website. 79. At the close of the prosecution case, the defence made submissions of no case to answer in relation to each of counts 2-4. On this appeal, Mr Cox submitted that the Judge should (at least) have acceded to the submission in relation to count 4. His argument was that the prosecution had accepted that Carte Blanche Design Ltd had done some work for the firms. The defence submitted that, in the absence of expert evidence as to the value of that work, there was no basis on which the Jury could properly conclude that the amount attributed to it in the accounts of the firm (some £129,840) was not a reasonable reflection of the work. If the case were to proceed it would have the effect of reversing the burden of proof and requiring the defence to justify the sums claimed as costs, which was contrary to principle. 80. The prosecution submitted that it was not a suitable issue for expert evidence, since there was insufficient underlying material (contracts, instructions, invoices, evidence of payments) and no indication of what had been done by Carte Blanche Design Ltd and when it had been done. The prosecution relied on inferences that could properly be drawn by the Jury from the lack of this material evidence, the positive evidence of two witnesses who had been involved in designing and building the website, other evidence of the limited services which had been provided and the very close involvement of the appellant in preparing the accounts of Carte Blanche Design Ltd. The prosecution case was that the value was very considerably less than the purported cost (£129,840) of the Carte Blanche Design Ltd services on ‘website design and computer consultancy’. 81. In our view the prosecution submission was well-founded, and the Judge was right to reject the submission of no case to answer. There was plainly evidence upon which a reasonable jury properly directed could conclude, on the basis of the prosecution evidence, that the appellant had cheated the Revenue as charged in count 4. 82. There is a further complaint that the summing-up was perfunctory, inadequate and misleading. We do not agree. 83. The Judge had already provided a written direction on the law and dealt with the facts in relation to count 4 on the second day of the summing-up. He described the factual issues as being the nature and value of the services provided by Carte Blanche and whether the appellant had acted dishonestly. He then reminded the Jury of the evidence in relation to these matters over the following 9 pages of the transcript. 84. Accordingly, we also reject the challenge to the conviction on count 4. 85. It follows that the appellant’s appeal against his conviction on counts 1-4 is dismissed. The appeal against sentence 86. The appellant was aged 70 at the date of sentence and was of previous good character. 87. The Judge found that throughout the relevant period he was the sole principal of the firm, the most highly qualified person within it and the sole driving force behind it. It was a relatively small business with less than 100 staff; and the Judge was satisfied from the evidence in the trial that there was little if anything that escaped his notice. 88. In terms of placing the offences within the Sentencing Council’s Definitive Guideline for Revenue Fraud, the defence acknowledged that the offences came within the high culpability category (category A). In the Judge’s view there were a number of aggravating features which increased the culpability within that category: the appellant had played a leading role, involving others in the operation of the cheat through pressure or influence; he had abused a position of responsibility; the offending had been carried out over a sustained period of time; and he had attempted to conceal evidence and blame others. The mitigating features were his age, the state of his health, and his previous good character. These features, however, were far outweighed by the aggravating features. 89. The Judge identified the real issue between the prosecution and the defence on count 1 as being the extent to which it was right to draw inferences about the extent and duration of the offending and the scale of the loss to the Revenue. He noted that the appellant was responsible for instituting and directing a scheme to overstate accountancy fees and, in doing so, he had boosted his firms’ reputation to his personal benefit. This should be reflected in the sentence. 90. The Judge accepted the prosecution’s contention that counts 2 and 3 fell together into harm category 6 (loss or intended loss of £20,000-£100,000). These two offences represented a blatant misuse of provisions in the tax legislation that enabled trading losses to be carried over if the businesses were the same. Count 4 came within harm category 7 (less than £20,000). 91. The Judge then addressed the argument that has been repeated on behalf of the appellant in relation to count 1 on this appeal, namely: that since the Jury had been directed that it need only be satisfied that the appellant took part in three transactions, the Judge was bound to pass a sentence based on the average loss to the Revenue from three transactions. The defence calculated that the average loss on each transaction was £237.87, and on 3 transactions was £713.62. On this basis the offence fell within harm category 7. The starting point for category 7A was 18 months’ imprisonment (based on a loss of £12,500) and a range of 36 weeks to 3 years. In view of the small amount of the loss, the defence submitted that the sentence should be measured in terms of no more than a few weeks. 92. The Judge noted that the prosecution had argued that the loss ran into millions of pounds on the basis of the figures set out in the initial schedules, but considered that this approach would be unfair to the defendant. His task was to interpret the Jury’s verdict. As a matter of principle, sentences should be passed on the basis that was most favourable to a defendant if the evidence allowed such a possibility, but judges were not obliged to do so if satisfied beyond reasonable doubt about the extent of the offending. 93. On this basis the Judge concluded that the offence charge in count 1 should be sentenced on the basis of harm category 5: loss to the Revenue of £100,000-£500,000, with a starting point based on £300,000. The starting point for category 5A was a term of 5 years custody, with a range of 3 to 6 years. As we have noted above, the Judge sentenced the appellant to a term of 4 years on count 1; and to 12 months on each of counts 2, 3 and 4, concurrent to each other but consecutive to the sentence on count 1. 94. In the grounds of appeal, a number of points were directed to the sentence on count 1, which Mr Cox developed in his oral submissions. 95. First, he submitted that the starting point on count 1 was wrong in principle. The Judge had failed to adopt the appropriate basis for sentence as set in R v Canavan, Kidd & Shaw (above). Due to the way count 1 was framed and the nature of the Judge’s direction to the Jury, the verdict had to be interpreted as a finding that the appellant was guilty of 3 of the many transactions relied on by the prosecution. Beyond this, it was impossible to determine the extent of the offending for the purpose of sentence. The Judge should therefore have sentenced on the basis of 3 transactions, and passed a sentence at the lowest end of the range in category 7A. 96. Secondly, he argued that the Judge had erred in principle by adopting as the basis for his sentence, a schedule entitled ‘Prosecution Response to Approach on Sentencing’, produced on the day before the sentencing hearing, which had been advanced without either proper notice or any rational foundation. As we have already noted, the previous approach of the prosecution had been that the losses ran into millions of pounds. The new document advanced an alternative approach based on a loss of £186,000. 97. Thirdly, Mr Cox submitted that the Judge had misled himself as to the position of the appellant and the suitability of category 5 of the Guidelines. 98. It has been clear at least since Canavan, Kidd & Shaw (above) that a defendant cannot be sentenced for conduct which has not formed, expressly or by necessary implication, the subject of charges laid and proved against him. Where a defendant is convicted on an indictment charging him with offences said to be representative of other similar criminal offences committed by him, it is inconsistent with principle that the court should take into account such other offences so as to increase the sentence if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration. Nor does [Statute] legitimate the practice for unindicted, unadmitted offences. 99. In the case of A [2015] 2 Cr App R (S) p.115 the prosecution had charged a number of ‘multiple incident’ counts of rape and assault by penetration. The jury were directed that they had to be sure that the incidents complained of had happened more than once. In the Court of Appeal, Fulford LJ set out three distinct possible approaches, of which two are relevant here: (1) to include a count or counts in the indictment pursuant CPR r.14.2(2) where the incidents taken together form a course of conduct having regard to time, place or purpose of commission, or (2) to include sufficient counts to enable the judge to impose a sentence which sufficiently represents what happened, but without overloading the indictment. The difficulty in the case of A was that there was no means of interpreting the jury’s verdict. At [47] the Court said this: In our judgment, the central answer to this problem is to be identified in the purpose underpinning multiple counts: it is to enable the prosecution to reflect the defendant’s alleged criminality when the offences are so similar and numerous that it is inappropriate to indict each occasions, or a large number of different occasions in separate charges. This provision allows the prosecution to reflect the offending in these circumstances to a single count rather than a number of specimen counts. 100. For the reasons we have already given, we consider that it was appropriate in the circumstances of this case to charge the offence of cheating as a single count alleging a course of criminal conduct. It was neither a sample count nor a specimen count. The Jury’s verdict was that the appellant was guilty of Cheating the Revenue, not that he had cheated the Revenue in relation to 3 transactions. Once that verdict had been returned, it was for the Judge to sentence on a conventional assessment of the culpability and harm of the offending; and, in doing so, he was not confined to sentence on the basis of 3 transactions. In our view the Judge’s approach to sentencing, including his approach to making assumptions in favour of the defendant, was plainly correct, see for example, Efionayi (1995) 16 Cr App R (S) 380. 101. Although we have considered Mr Cox’s second and third complaint about the sentence on count 1, we are not persuaded that there was any error of approach by the Judge nor any underlying unfairness in the way the prosecution characterised the offence. The prosecution had submitted that the harm was category 3 (loss to the Revenue of £2 to £10 million, with a starting point of £5 million). It subsequently advanced an alternative calculation based on basic rate tax of 20% applied to the amount by which the accountancy fees were overstated. This figure for tax was based solely on the schedules produced during the evidence which had been called or read. If the defence had been placed in real difficulty by the timing of the prosecution alternative case, and we are not persuaded that they were, they should have asked for an adjournment to deal with the matter. 102. Since we reject the appellant’s criticism of the sentence on count 1, it follows that the appeal against sentence must also be dismissed.	{"ConvCourtName":["Crown Court at Southwark"],"ConvictPleaDate":["2015-12-03"],"ConvictOffence":["Cheating the Revenue (count 1)","Cheating the Revenue (count 2)","Cheating the Revenue (count 3)","Cheating the Revenue (count 4)"],"AcquitOffence":["Cheating the Revenue (count 5)","Cheating the Revenue (count 6)"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southwark"],"Sentence":["4 years’ imprisonment (count 1)","12 months’ imprisonment (counts 2-4, concurrent to each other, consecutive to count 1)","Total: 5 years’ imprisonment"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Spreadsheets/schedules of transactions","Witness testimony (clients and staff)","Underlying documents (accounts, tax returns)"],"DefEvidTypeTrial":["Offender denies offence","Alternative explanation for transactions (home as office point)"],"PreSentReport":[],"AggFactSent":["Leading role","Abuse of position of responsibility","Offending over a sustained period","Attempted to conceal evidence and blame others"],"MitFactSent":["Age (70 at sentence)","State of health","Previous good character"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Appeal against sentence"],"AppealGround":["Count 1 was duplicitous and lacked particularity","Judge's directions on law and fact were inadequate","Sentence based on wrong assessment of loss/culpability"],"SentGuideWhich":["Sentencing Council’s Definitive Guideline for Revenue Fraud"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's rulings on indictment and trial management were correct","Directions to jury were adequate","Sentence was based on correct assessment of harm and culpability","No error of approach by the judge"]}
Case No: 2009/5024/B5 Neutral Citation Number: [2010] EWCA Crim 97 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT HHJ Steiger QC T20080389 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/02/2010 Before : LORD JUSTICE PITCHFORD MR JUSTICE PENRY-DAVEY and THE RECORDER OF LONDON - - - - - - - - - - - - - - - - - - - - - Between : RCPO Applicant - and - C Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Raymond Wigglesworth QC and Mr P Dockery (instructed by HMRC ) for the Applicant Mr. Alistair Webster QC and Mr P Lawton (instructed by Pannone LLP ) for the Respondent Hearing dates : 26 th January 2010 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE PITCHFORD : 1. On 14 th September 2009 at Manchester Crown Court the respondent, whom we shall call “C”, faced an indictment containing six counts. The trial Judge, HHJ Steiger QC, upheld an application made on C’s behalf that the indictment should be stayed as to proceed would be an abuse of the process of the Court. This is an application by the prosecution for leave to appeal the Judge’s ruling under section 58 Criminal Justice Act 2003 and rule 67.4 of the Criminal Procedure Rules. 2. It is first necessary to consider the background to the prosecution. C is a solicitor and equity partner in a firm of solicitors. At the relevant times he was the firm’s nominated anti-money laundering officer. An effect of that position was that each month the firm’s client account reconciliation reports would be submitted to him for approval. C’s professional obligation was to report to the National Criminal Intelligence Service or other appropriate authority any transactions through the firm’s client account which gave rise to suspicion that the use to which the account was being put was money laundering. No such reports were made by C during the period 2001 to 2004. 3. The prosecution case is that a client of the firm, Amer Munir, committed a VAT acquisition tax fraud using a company called Talkland Telecom Limited. In November 2001 the company purported to buy and sell £40m pounds worth of mobile telephones. The VAT payable was some £6.5m. No VAT was ever paid. 4. Munir’s brother-in-law was C’s partner in the firm. C had introduced him. Munir’s sister, Shamaila, was employed as a conveyancing clerk. The prosecution asserts that the firm was used by Munir to launder money fraudulently obtained from the VAT fraud through the firm’s client account for the purpose both of acquiring property and of transferring money between companies in which Munir had an interest. The indictment was framed as follows: Count 1 is an allegation that, contrary to section 93A(1)(b) CJA 1988, between September 2001 and 19 March 2004 C entered into or was concerned in an arrangement by which money fraudulently obtained should be used by Munir to acquire and develop a housing and development site at Botham Hall Road, Huddlesfield. Count 2 is a similar allegation in respect of a development site at Rappax Road, Hale. Count 3 is an allegation that, contrary to section 328 POCA 2002 (the successor to section 39A of the 1988 Act), between 24 February 2003 and 19 March 2004 C enabled Munir to retain control of or to use criminal property by making representations on his behalf to a firm of solicitors, Jens Hill and Company, acting for Vista Assistance SL, a Spanish registered company. Count 4 is an allegation that, contrary to section 328 , C enabled Munir to maintain control of or to use criminal property by allowing the firm’s client account to be used to move money to and from accounts held by Danish Electronic and Buss Merton LLP. Count 5 is a similar allegation that C between 15 December 2003 and 20 December 2003, enabled Munir to maintain or control the use of criminal property by allowing £110,000 to be transferred from the firm’s client account to the credit of Saeed Ahmed at UBS Bank, Switzerland. Count 6 is a similar allegation that C, between 15 December 2003 and 20 December 2003 enabled Munir to maintain or to control the use of criminal property by allowing £47, 000 to be transferred from the firm’s client account to the credit of Mohammed Munir, Amer Munir’s father. 5. In any trial of C upon these counts it would be necessary for the prosecution to prove that the sums passing through the firm’s client account were in fact Munir’s proceeds of crime; secondly, that C was concerned in the arrangements or transactions alleged; thirdly, that at the time of the arrangements or transactions in which he was concerned, C knew or suspected that their purpose was to acquire, retain, use or control criminal property by or on behalf of Munir. 6. In March 2004 Amer Munir was arrested and interviewed. He made no comment to the allegations put to him. He and his wife were tried on a 19 count indictment by HHJ Gee QC and a jury between 23 November 2006 and 21 December 2006. Mr Munir was convicted on six counts and acquitted on five. Formal verdicts of not guilty were entered on three counts at the end of the prosecution case. The jury disagreed on three counts. Mr Munir’s wife was acquitted on all counts in which she was concerned. The effect of these verdicts upon the indictment in C’s case is as follows: i) The Munir jury disagreed upon the allegations underlying counts 1 and 2 faced by C. ii) The Munir jury convicted Amer Munir in respect of the allegations now reflected against C in counts 4 and 5. iii) The Munir jury found Amer Munir not guilty of the criminal conduct in respect of which C is now charged in count 6. It follows that the prosecution would need to prove Munir’s criminal conduct and Munir’s receipt of criminal proceeds in respect of all counts except that, in the case of counts 4 and 5, the prosecution would be able to rely upon his convictions under section 74 Police and Criminal Evidence Act 1984 . 7. C was arrested and interviewed on 29 th April 2004. He gave full answers to the questions put based upon documentary evidence obtained in the course of the enquiry. The second interview took place on 18 January 2005 following which C was released without charge. No further step was taken in the prosecution of C until January 2008 when he was summonsed for alleged offences of money laundering. Following preliminary proceedings, C’s trial was listed for 20 October 2008. On 10 September 2008 the prosecution served 79 pages of witness statements and 555 pages of exhibits. A week later 30 further pages of witness statements were served together with 3400 pages of exhibits. Although the prosecution subsequently argued that only 40 pages of the additional material were relevant, it was apparent to Mr Webster QC that the defence expert would need to consider all of the documents. It had been noted that contemporaneous documents completed by managers of banks who had dealt with Munir referred to him in terms which recommended him as a client. That material was relevant to the issue whether C himself had been misled by Munir or was complicit in his scheme. An application to vacate the trial date, made on 2 October 2008, was granted and the trial re-listed for 23 March 2009. 8. On 23 rd March 2009 the parties appeared before HHJ Steiger QC for trial. A few days before trial the prosecution had served on the defence a request to make formal admissions to the effect that Munir had been convicted at his trial. Surprisingly, the defence team was unaware that Munir had also been acquitted of several charges and the jury had failed to agree on others. The defence argued that they were taken by surprise and it was unfair to C to proceed. The Judge ordered severance of the indictment because the defence were placed at a disadvantage, and that the trial should continue upon count 3 alone. He ruled that notwithstanding severance the prosecution should be entitled to rely upon the evidence which they would have produced to prove the other counts in the original indictment. On the following day the procedural situation was reviewed by the Judge. The prosecution had disclosed transcripts of evidence from the Munir trial which alerted the defence to the possibility that they could challenge the assertion that C’s client account had been used to launder the proceeds of crime. The defence made an application for an adjournment which was successful. The trial was fixed for 14 September 2009. On that day, Mr Webster QC made a successful application to stay the indictment. 9. Before HHJ Steiger QC the defence application centred upon the period of delay between C’s interviews, concluded in January 2005, and the date of trial, 14 September 2009. In short, the Judge concluded that, contrary to the submissions of Mr Wigglesworth QC on behalf of the prosecution, this was not a trial whose outcome would depend upon the jury’s analysis of documents. The principal issues were (1) C’s knowledge of the purpose behind admitted transactions and (2) whether C knew or suspected that he and his firm were assisting a money laundering exercise. 10. The first issue for the trial Judge was the date from which time ran for the purposes of the judgement of delay. He was referred to the decision of the House of Lords in Attorney General’s Reference No. 2 of 2001 (2003) UKHL 68 . It was contended on behalf of the prosecution that time did not begin to run until the respondent was notified of the intention to prosecute by service of the summonses in January 2008. The respondent submitted that the start date should be taken to be April 2004 or January 2005. The prosecution had made a deliberate decision not to join C in the prosecution of Munir. That decision was confirmed in writing by Mr Wigglesworth QC on 6 October 2006. The Judge concluded at paragraph 16(c) of the note of his ruling that: “Although there was disagreement at the Bar about when precisely time in the present case should run for the purpose of Article 6, I consider that the relevant moment is when a clear decision has been made to prosecute a defendant who is available to be charged. I therefore see June 2006 as the latest moment to “start the clock” rather than the interview (as Mr Webster suggests) or the summons (according to Mr Wigglesworth)”. 11. Lord Bingham said at paragraph 27 of his opinion, in Attorney General’s Reference 2 of 2001 : “27. As a general rule the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this Country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for an inordinate period. The Court of Appeal correctly held…. that the period would ordinarily begin when a defendant is formally charged or served with a summons but it wisely forbore…. to lay down any inflexible rules.” There is, accordingly, no hard and fast rule as to the assessment of the relevant period for the purposes of Article 6. In Burns v HM Advocate, Advocate/General for Scotland Intervening Times Law Reports 26 December 2008, the Privy Council advised that the assessment of the relevant period should be made in such a way as to give effect to article 6.1 if to do otherwise would deprive the accused of its effect. There was, it seems to us, a respectable argument available to the respondent to the effect that where the prosecution deliberately withholds from a suspect the information that they intend to proceed but wish to await the outcome of other proceedings, it would be artificial to judge the period of delay only from the moment when the summons is eventually served and that, in those circumstances, time begins to run from the date of interview. Mr Wigglesworth QC, on behalf of the applicant, was not disposed to challenge the Judge’s decision upon the issue in argument before us since, as he recognised, the real issue was the effect of admitted delay upon the prospects for a fair trial. We do not propose to interfere with the Judge’s assessment that he should examine the period since June 2006. 12. There was little dispute before the Judge and none before this Court that the prosecution had been guilty of undue delay if only because, while Mr Wigglesworth QC had advised that summonses should be issued immediately following the trial of Munir, no summons was issued until January 2008. It was not disputed that the trial Judge was entitled to examine the whole of the period since June 2006 for the purpose of judging whether delay had been causative of relevant prejudice to the accused. 13. Mr Wigglesworth QC repeated to us the submissions he had made to the trial Judge to the effect that this was in essence a prosecution upon the documents. In response, Mr Webster emphasised the significance of the oral evidence of witnesses. The oral witnesses fell into four categories. The first comprised the experts. An attempt was made by the expert for the Crown to reconstruct Law Society guidance to practising solicitors as to their responsibilities for reporting suspected money laundering activities. It was no longer possible to be precise since changes had been made on dates which the experts were no longer able to ascertain. Secondly, members and employees of C’s firm would give evidence about the transactions documented. Their recollection of the purpose behind those transactions, as they were understood at the time, was material to C’s defence. In some cases, recollection of the fact and degree of C’s participation was at issue. The third category of witnesses comprised the other professional men, in particular a solicitor in a distant firm who also enabled transactions for which Munir was responsible. Since those transactions were linked to those in respect of which C was charged, his recollection both of the nature of the transactions and of his impression of Munir and his substance would be important. There were, in addition, several bank employees in respect of whom contemporaneous records provided the defence with material for cross examination should they give evidence for the prosecution or be tendered. Lastly, the defendant’s own recollection was in issue. While C had been interviewed at length about the transactions in which he was implicated, he was, or said he was, in several respects, unsure of the detail. 14. In his conclusions the Judge summarised the principles of law to be applied as follows; “(a) the persuasive burden in an application to stay proceedings on the grounds of delay rests with the defence and not the prosecution; (b) The trial should only be stayed if a fair trial is impossible and no other less draconian techniques are available to moderate the unfairness such as severance, exclusion of evidence or directions in summing up; (c) [start date for delay] ...; (d) Cases dependant upon documents rather than recollection are less prone to being stayed.” No criticism is made of the Judge’s identification of the principles which guided his analysis. The Judge identified knowledge or suspicion that Munir had been engaged in some form of criminal conduct as one of the principal issues for the jury. He continued: “18. If it is a correct analysis to see the case against [C] as depending in the main on his state of mind the case cannot in my judgement depend wholly on documents since no single document referred to deals conclusively with that topic. Of course, inferences may be drawn from documents if the circumstances merit but this is not a case to my mind where the inference of guilty knowledge is inevitable. Even the apparently incriminating attendance notes following the Jens Hill letter are explicable by Mans Uddin seeking to avoid tax in Spain given the evidence of Mr Main. A further factor which undermines the strength of any document-based inference against [C] is that Munir’s sister worked for Megson Ponsonby from home and her husband was a member of the firm. There were thus at least two other actors within the firm with connections to Munir quite apart from the defendant or any other employee such as Ian Hannam who dealt with conveyancing and with Golbourn who dealt with accounts. 19. I therefore accept the submission of Mr Webster that despite the documents the case really depends on the recollection of individual witnesses about events up to eight years ago and in dealing with the defendant’s knowledge or suspicion such a delay undoubtedly places the defendant at a disadvantage… 23. I recognise that to stay proceedings is an exceptional course but I am persuaded by Mr Webster that a fair trial is not now possible and nothing short of a stay can achieve fairness to the defendant. For these reasons the application succeeds.” 15. We have been troubled by the absence in the Judge’s ruling of an explanation for his conclusion that the process of trial would not itself have rendered C’s trial fair. There were a number of procedural and evidential steps which the trial Judge could have taken to minimise any disadvantage under which the respondent may have laboured. First, unless the respondent was able to discharge the burden of demonstrating obvious prejudice, the Judge was entitled to reject the application and, if the circumstances warranted, revisit his decision either at the close of the prosecutions case or at the close of all the evidence. As Hooper LJ observed in Burke (2005) EWCA Crim 29 at paragraph 32: “Prior to the start of the case it will often be difficult, if not impossible, to determine whether a defendant can have a fair trial because of the delay coupled with the destruction of documents and the unavailability of witnesses. Issues which might seem very important before the trial may become unimportant or of less importance as a result of developments during the trial, including the evidence of the complaint and other witnesses including the defendant should he choose to give evidence.” The facts of the present case were very different but the same observation applies. Second, the Judge had wide powers to seek formal admissions from the parties and to admit, in the interests of justice hearsay evidence. Thirdly, the Judge was required to assess the impact of delay upon the issues in the trial upon which he was directing the jury. In a case in which the jury’s judgement of an accused’s state of mind may depend upon an imperfect recollection of events and impressions, he would be required to remind the jury that the burden of establishing guilt rested with the prosecution and that, if they considered it was reasonably possible that the defendant had been placed at a disadvantage upon the issue by reason of the lapse of time and imperfect memory, they should apply the burden and standard of proof to the issue in the defendant’s favour. 16. We have considered whether the absence of such an analysis from the Judge’s ruling should cause us to interfere. We are conscious that the question for us is not whether any member of the Court would have reached the same decision as the trial Judge but whether his decision could not reasonably have been reached. As Sir Igor Judge, then President of the Queens Bench Division, put it in Regina v B (2008) EWCA Crim 1144 : “No trial Judge should exercise his discretion in a way in which he personally believes may be unreasonable. That is not to say that he will necessarily find every such decision easy. But the mere fact that the Judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments that might have caused him to do so, does not begin to provide a basis for a successful appeal….” HHJ Steiger QC provided, in his ruling, a comprehensive analysis of the prosecution and its background, summarised the position of the parties, accurately stated the principles upon which he should act and explained the basis for his decision. We do not conclude that the absence of the “process of trial” analysis deprives the Judge’s ruling of its essential reasoning. This experienced trial Judge was well aware both of the issue to be considered and the matters relevant to it. We are unwilling to interfere with his conclusion that a fair trial was not possible on the ground that undue delay had created incurable prejudice in an examination of the respondent’s case. 17. While the Judge was critical of the prosecution’s election to proceed against the accused sequentially, we have read Mr Wigglesworth’s opinion dated 6 th October 2006, and we are quite satisfied that his advice was, in the context of the time, sustainable. We do not consider that it could be argued that the prosecution had manipulated the process for its own advantage and we note that no such finding was made by the Judge. 18. We refuse the applicant leave to appeal and verdicts of acquittal will be entered on each count.	{"ConvCourtName":["Manchester Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Contrary to section 93A(1)(b) CJA 1988: arrangement for use of fraudulently obtained money (Botham Hall Road, Huddersfield)","Contrary to section 93A(1)(b) CJA 1988: arrangement for use of fraudulently obtained money (Rappax Road, Hale)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (Jens Hill and Company/Vista Assistance SL)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (Danish Electronic and Buss Merton LLP)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (£110,000 to Saeed Ahmed at UBS Bank, Switzerland)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (£47,000 to Mohammed Munir)"],"AcquitOffence":[""],"ConfessPleadGuilty":[],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Documentary evidence","Oral witness evidence","Expert evidence","Transcripts from previous trial"],"DefEvidTypeTrial":["Defendant's interview answers","Cross-examination of bank employees","Challenge to assertion of money laundering"],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Stay of proceedings (abuse of process)"],"AppealGround":["Trial judge erred in staying proceedings for abuse of process due to delay"],"SentGuideWhich":["section 58 Criminal Justice Act 2003","rule 67.4 of the Criminal Procedure Rules"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Trial judge's decision to stay proceedings was reasonable; fair trial not possible due to undue delay and incurable prejudice"]}
No. 2007/04068/B1 Neutral Citation Number: [2008] EWCA Crim 541 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 29 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - R E G I N A - v - AMAR KHATAB - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr J Dunstan appeared on behalf of the Appellant - - - - - - - - - - - - - - - Judgment Friday 29 February 2008 LORD JUSTICE DYSON: 1. On 5 July 2007, at Birmingham Crown Court, the appellant was convicted on count 2 of the indictment which charged him with the offence of assisting an offender, contrary to section 4(1) of the Criminal Law Act 1967 . The particulars of the offence were that Mehtab Laqab having committed a relevant offence, namely the murder of Abed Hussain, the appellant, knowing or believing that Mehtab Laqab had committed the said offence or some other relevant offence, without lawful authority or reasonable excuse disposed of a stone pestle, with intent to impede the apprehension or prosecution of Mehtab Laqab. The appellant was sentenced on 6 July to four years' imprisonment. He appeals against sentence by leave of the single judge. 2. The co-accused Mehtab Laqab and Ateek Laqab were convicted on count 1 which charged them with murder. 3. The facts are these. The appellant was a drug dealer. On the evening of 19 December 2006 he spent some time with the deceased, Hussain, who was the father of three children, and two others, Farni and Arsen. The men travelled back to the appellant's home address. On the way Hussain quarrelled with the appellant. He claimed that the appellant had told Hussain's wife that he was back on drink and drugs and he demanded the payment of £10,000 with threats of violence. During the journey Hussain bullied the appellant and slapped him. The appellant arrived home and went in doors. He was in tears. Hussain grabbed hold of Farni and made him go close to the house before all three men left and walked away up the road. The appellant told his two brothers (the co-accused) what had happened. They decided to do something about it. Their mother tried to persuade them to stay in the house, but they ignored her. Ateek armed himself with a screwdriver and Mehtab with a stone pestle about six inches long. All three brothers left the house. By this time Hussain was about 80 yards away. Ateek and Mehtab caught up with him and attacked him, using their weapons to strike him on the head. Hussain fell to the ground and was struck at least one further blow before Arsen and Farni intervened to try to stop the violence. 4. Arsen contacted the emergency service. The police and an ambulance arrived just before 1am. They found Hussain lying on his back with an obvious serious injury to his head. He was still alive, but died on the way to hospital from his head injuries. 5. After the attack the appellant took the pestle off Mehtab and drove away. He disposed of it in a bin liner. About two days later he went to the police. When interviewed he told them that he was a drug dealer and that he had disposed of the pestle after the attack because it had blood on it. 6. The appellant is 23 years of age. He has a number of previous convictions, mainly for road traffic offences, but he also has a conviction on 2 May 2006 for perverting the course of justice for which he was sentenced to three months' imprisonment, consecutive to a sentence of two months' imprisonment for possession of a bladed article, and another conviction for obstructing the police for which he was sentenced to a 12 month community order on 5 April 2006. 7. There were four character references before the sentencing judge. 8. In passing sentence the judge said that in one sense the appellant was a lucky man because the whole tragedy was his fault. He had chosen to live the flash life of a drug dealer but when the going got tough, he ran crying to his younger brothers for help. He had got them into terrible trouble and had set in train events which led to the death of a close friend. He was brave with words but was not violent, unless women were concerned. He had taken care to stay out of the fight but had assisted one of his brothers by disposing of the weapon he had used. The jury's verdict meant that when he disposed of the stone pestle, he believed Hussain was doomed to die and that his brother was responsible for the death. 9. Counsel had argued before the sentencing judge, and has made the same point to this court, that the appellant should receive credit against what would have been the normal sentence after a trial because he had never disputed that he had taken and disposed of the weapon. Counsel had argued that it was a prerequisite to the appellant's guilt that his brother should be found guilty and that he could not have pleaded guilty until the jury found his brother guilty. The judge said, however, that the appellant had maintained that he had no reason to believe Hussain had been left in the condition in which he was, and the jury had rejected that argument. He went on: "It is difficult to apply credit on the basis I am invited to, as if this were a plea of guilty, but I do take into account the fact that you showed elements of responsibility in your candour in interview and the conduct of your defence in this trial." The appellant's previous conviction for perverting the course of justice showed that he had a fine disregard for the rule of law. 10. It is submitted by Mr Dunstan that the sentence of four years' imprisonment was too long. Two particular points are made. First, it is submitted that the judge should have given the appellant full credit as if he had pleaded guilty to the offence. Secondly, and in any event, having regard to other authorities, in particular R v Lee Manning [2004] 2 Cr App R(S) 74 and Attorney General's Reference No 19 of 1993 ( R v Connor Edward Downey ) (1994) 15 Cr App R(S) 760, the sentence of four years was too long. 11. In developing the first of these points counsel submits that the appellant always accepted that he believed that his brother Mehtab had committed a relevant offence and that he was therefore guilty of the offence charged, provided that the prosecution could prove Mehtab's guilt of the primary offence. The appellant's trial was conducted on that basis; there was virtually no cross-examination of any witness. At the close of the evidence, the prosecution decided that the case should be left to the jury on the basis that the appellant knew or believed that Mehtab had committed the offence of murder or manslaughter rather than any other relevant offence such as assault occasioning actual bodily harm at the time when he disposed of the pestle. During submissions in the absence of the jury counsel made it clear that this would afford the appellant a potential defence which he had not previously anticipated having. This arose from the account given by the appellant in his police interviews which was relied on by the prosecution as truthful. In those interviews he had said that he only found out the next day that Hussain had died and that when he left the scene of the murder he had only thought that there had been a fight. Counsel submits that it was entirely reasonable for the appellant to put the Crown to proof that Mehtab had committed the offence of murder. Proof of that was a prerequisite to the appellant's guilt on the basis on which the Crown were now putting their case. Taking that into account and the fact that the appellant had gone to the police within two days of committing the offence and told them exactly what he had done, it is submitted that the judge should have given a discount equivalent to that which would have been given if he had pleaded guilty at the outset. 12. As regards the two authorities to which we have referred, we note that in Attorney General's Reference No 19 of 1993 the offender had pleaded guilty to manslaughter and to perverting the course of public justice. When the deceased woman had rejected the offender's sexual advances, he had put his hand over her mouth to stop her from shouting and killed her. He then dismembered her body and put the parts into plastic bags which he disposed of in various places around the City. The offender did not disclose what he had done to the police for about five years. Following the Attorney General's reference, this court increased the sentence, stating that at first instance it would have been inappropriate to pass a sentence of less than two years, and three would not have been excessive for the offence of perverting the course of public justice. 13. Mr Dunstan submits that that was a more serious offence than the present case. Taking account of both matters, it is submitted that the judge erred in passing a sentence as long as one of four years' imprisonment. 14. We are persuaded that there is force in those submissions. We are not persuaded that the judge was wrong not to treat the appellant as if he had indicated a plea of guilty at the earliest opportunity, but clearly having regard to the way in which the appellant conducted his defence, he was entitled to a significant discount from the sentence which would have been appropriate had he maintained a steadfast plea of not guilty all along. We also think that there is force in the submission that the present case is somewhat less serious than Attorney General's Reference No 19 of 1993 . Nevertheless, although the appellant was not charged with the offence of murder as if party to a joint enterprise, the fact is that he assisted an offender who was convicted of the charge of murder. 15. Taking account of all these circumstances it is our view that the correct sentence in this case was one of three years' imprisonment. Accordingly, we quash the sentence passed and substitute one of three years' imprisonment. To that extent the appeal is allowed.	{"ConvCourtName":["Birmingham Crown Court"],"ConvictPleaDate":["2007-07-05"],"ConvictOffence":["Assisting an offender contrary to section 4(1) of the Criminal Law Act 1967"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Birmingham Crown Court"],"Sentence":["4 years' imprisonment"],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[23],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":["Previous conviction for perverting the course of justice","Offence involved assisting an offender convicted of murder"],"MitFactSent":["Showed candour in police interview","Conducted defence with elements of responsibility","Went to police within two days and told them what he had done","Virtually no cross-examination of any witness"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge should have given full credit as if pleaded guilty","Sentence too long compared to authorities"],"SentGuideWhich":["Attorney General's Reference No 19 of 1993 (R v Connor Edward Downey) (1994) 15 Cr App R(S) 760","R v Lee Manning [2004] 2 Cr App R(S) 74"],"AppealOutcome":["Allowed and sentence reduced to three years' imprisonment"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Judge did not give sufficient discount for the way the appellant conducted his defence and admissions","Case less serious than Attorney General's Reference No 19 of 1993"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Neutral Citation Number: [2017] EWCA Crim 482 Case No: 201604816 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11th April 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE GREEN MR JUSTICE PICKEN - - - - - - - - - - - - - - - - - - - - - R E G I N A v SAMAH NAZ - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr T Qureshi appeared on behalf of the Appellant Ms R Kodikara appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LORD JUSTICE TREACY : This is an application for leave to appeal against conviction referred to the court by the Registrar. We give leave. 2. The Appellant was convicted after a retrial on 22 September 2016 at Snaresbrook Crown Court of racially aggravated intentional harassment, alarm or distress. She was fined £1,500, ordered to pay £3,500 prosecution costs and subjected to a £150 surcharge order. 3. The grounds of appeal in brief are that the conviction was unsafe since the trial was conducted unfairly. Criticism is made of the judge's interventions during the trial. On a number of occasions in the presence of the jury he is said to have intervened inappropriately and in a manner akin to a second prosecutor. Moreover, there are complaints about comments made in the absence of the jury. 4. The Appellant was a woman of previous good character who had had a successful career in retail. She was to be a candidate on the behalf of UKIP in the 2015 general election. Since she was of Pakistani and Mongolian origin, her candidature had caused some controversy within the Pakistani community. 5. On 22 March 2015 she drove to a Tesco superstore in Walthamstow, the area in which she was to be a candidate. Shortly after entering the car park, she became embroiled in a heated confrontation with a man of North African appearance. 6. The complainant, Mohammed Wafta, was an employee of Tesco and of Syrian origin. He was engaged in moving trolleys in the car park and went to intervene in the dispute between the Appellant and the other man. He interposed himself between them. The Appellant was claiming that she had been punched in the face. The man was accusing her of swearing at him. 7. The man involved in the dispute drove off in his car, whereupon Mr Wafta said that he was subjected to repeated verbal abuse by the Appellant, including numerous references to him as "a fucking foreigner". He had tried to walk back into the store, but had been followed by the Appellant who repeatedly abused him so that he became very upset. At one point, he had said: "Well, madam, you are too pretty to say these words. Maybe you deserved a punch because you have a very rude mouth." 8. Mr Wafta's account was supported by a Mr Farooq, who was a Tesco customer, and also by the evidence of Mr Sanders, the store manager, who witnessed the later stages of the incident after the Appellant had followed Mr Wafta back into the store. He said that the Appellant kept repeating abuse, including adding that Mr Wafta was "a fucking foreigner". 9. When the Appellant was subsequently told that she would charged with a public order offence, she reacted angrily and claimed that there was a Muslim plot against her involving both Islamic State and the local Asian community. She said that the CPS had chosen to believe "a bunch of terrorists". 10. The Appellant gave evidence. She said that she had been assaulted by the male in the car park and that although Mr Wafta come in between them, there was nothing to suggest that he had done so with the intention of helping her. She believed that he knew the male with whom she had the dispute and said that Mr Wafta had said to her, "You fucking deserved that". She believed that Mr Wafta was in league with the male in the car park. Those matters had been denied by Mr Wafta. 11. The Appellant admitted that she was upset in the car park and had used abusive language, but denied an intention to cause alarm or distress and denied calling Mr Wafta "a fucking foreigner" at any stage. She suggested that the prosecution witnessed had colluded to give false evidence against her. 12. There is no complaint about the judge's summary of the legal issues in the summing-up. They were (1) whether the Appellant had the necessary intent, (2) whether Mr Wafta was caused alarm or distress, and (3) whether the Appellant had derogatorily referred to him as "a fucking foreigner". 13. Mr Qureshi on behalf of the Appellant has raised a series of matters in support of the grounds of appeal. The first complaint relates to the cross-examination of Mr Wafta. Defence counsel was putting that he was not an innocent bystander and put the question: "You would have this jury believe you intervened like a knight in shining armour." The judge interrupted, saying: "I don't think this witness has claimed he was a knight in shining armour, so please do not diminish what happened and his conduct on the day... He went there, as any right thinking person is concerned, in order to prevent a situation from becoming very worrying indeed. It's not a question of knight in shining armour." 14. Objection is taken to the judge's comments on the basis that whilst the judge may have been justified in criticising the reference to a knight in shining armour, he went further and indicated a favourable view of Mr Wafta's role in the incident when that was a matter in issue before the jury. 15. A little later, after counsel had put to Mr Wafta that he was the first person to use abusive language, the judge intervened again. The relevant passage is as follows: "MR QURESHI: And now I am putting to him that he didn't say it as a result of my lay client making any derogatory remarks, he did it himself by his own initiative. JUDGE DEL FABBRO: Why? MR QURESHI: Because -- JUDGE DEL FABBRO: Why would he say that? MR QURESHI: Sorry, your Honour? JUDGE DEL FABBRO: He works at Tesco's, pushing trolleys around, why would he use such language to a woman who he doesn't know. MR QURESHI: Your Honour, may I raise a matter of law, please. JUDGE DEL FABBRO: No, just answer that question and then we'll get on with the cross-examination. MR QURESHI: The reason he used that language is because he was protecting his friend. JUDGE DEL FABBRO: His friend, which he has denied. A. He is not my friend. JUDGE DEL FABBRO: He has denied it repeatedly. MR QURESHI: Your Honour, yes, and your Honour has asked me what the defence case is and whatever your Honour's view is about the position, the jury will obviously determine the matter. JUDGE DEL FABBRO: Let's move on. Let's move on. It was put to you that this man is a friend, you were trying to protect him in some way. A. He is not my friend. JUDGE DEL FABBRO: He is not your friend, you don't know him. A. I don't know him, Sir. JUDGE DEL FABBRO: Right, let's move on then." 16. This passage is criticised on the basis that the judge wrongly intervened in a way suggesting that he had formed a sceptical or unfavourable view of the case being advanced for the Appellant. These were not of a type and nature tending to clarify the evidence. They were inappropriate challenges to the defence case. 17. The next matter concerns comments made in the absence of the jury. Shortly after the matters referred to, defence counsel raised with the judge that his comments were giving the impression that Mr Wafta was a witness who should not be believed and that the judge was entering into the arena. There then followed discussion between judge and counsel in which the judge said he had intervened in order that the witness' voice should not be lost amongst a series of allegations which had been coming thick and fast. 18. There were then exchanges about the nature of the defence being advanced. The following passage is relevant: "MR QURESHI: May I just please use this opportunity just to crystallise the defence case. I want to do that, your Honour, because I don't want your Honour to feel that I am chasing irrelevant points. The defence case is this, your Honour, the suggestion that she was using any racial element is a complete pack of lies and it's a lie, it's a conspiracy, that has been supported by this witness and all the other prosecution witnesses, non-police witnesses, who are coming to court to give evidence. And so the reason why I am making these allegations and asking these questions is all designed to support the defence case that there is a hidden agenda here. JUDGE DEL FABBRO: What is that? MR QURESHI: The hidden agenda is, first of all, Mr Wafta helping his friend and avoiding the accusation that he was helping his friend get away from an assault; and secondly, to protect his job. And the other witnesses supporting Mr Wafta -- JUDGE DEL FABBRO: So are you going to allege there was collusion between these witnesses, that in the time that it took for police to arrive, they put their heads together and colluded. MR QURESHI: Well, I hope to show this jury, it didn't all unravel when the police arrived, it unravelled over a period of time. JUDGE DEL FABBRO: I hear what you are saying, Mr Qureshi, but quite frankly it's far-fetched. MR QURESHI: It may well be, but those are my -- JUDGE DEL FABBRO: The proper defence here is what I suggested earlier and perhaps people ought to be thinking about that. The proper defence here is that, I was so shocked and I was so upset at what had happened to me that I may have used foul language, I probably did use foul language against this poor, hapless man, but the one thing I didn't say was that he was a "fucking foreigner". That is what the defence should be. All the rest of it is nonsense. MR QURESHI: But the witnesses are maintaining she did use that language. JUDGE DEL FABBRO: Yes, so you put it to him and then in your speech for the jury, you say, can you be sure that she used foreigner. MR QURESHI: Your Honour, I understand that. JUDGE DEL FABBRO: Instead we are going to spend time looking at collusions, conspiracies... MR QURESHI: Well that is unfortunately the defence case, your Honour. JUDGE DEL FABBRO: Well, it's bunkum. I'm not going to decide this case obviously, the jury do. Anyway let's move on. Let's move on and do the best we can to keep going." 19. The references to "far-fetched" and "bunkum" together with the judge's observation as to what "the proper defence" was are criticised. It is said that by the end of the first day of the trial the judge had clearly given the impression both in the presence and the absence of the jury that he did not believe the Appellant's version of events and that the defence being advanced was a waste of time. 20. In addition, it is said that the judge had in the absence of the jury made repeated critical references to the Appellant's decision to elect Crown Court trial. 21. The next area of criticism relates to what occurred during the Appellant's evidence-in-chief. Complaint is initially made about an intervention by the judge after the Appellant had been giving evidence for about 7 minutes or so when the judge intervened to curtail questions about the Appellant's good character and background. Since we consider that the judge was doing no more than seeking to prevent the evidence becoming unnecessarily detailed on matters which were not in dispute, it is not necessary for us to go into further detail. 22. However, there came a point after the Appellant had given evidence that she was angry with Mr Wafta, whom she perceived as not having assisted her in the confrontation with the male, when the judge intervened again: "JUDGE DEL FABBRO: Can we just pause here. I just need to understand, why were you so angry at him? A. Because I felt like at the time he knew the person, so I just felt he was assisting him back into the car; that was what was going through my head. JUDGE DEL FABBRO: Yes, but you must have appreciated that he had taken somebody off you. A. No, that's how he has made it out, but he -- JUDGE DEL FABBRO: Just pause here, Ms Naz, you have just told us that a complete stranger. A. He didn't -- JUDGE DEL FABBRO: Ms Naz, I'm just trying to recap what you've told us, just to remind you. You just told us that a complete stranger, a male, has grabbed you by the neck and pushed you up against a car and this Mr Wafta has come and pulled him off you. That's what you told us. Is that right? Is that what happened? A. But after he pulled him off me, he then -- JUDGE DEL FABBRO: Never mind what happened afterwards, but he pulled him off you, didn't he, on your account. A. No, but he wasn't helping me, that's why I felt at the scene, he was not-- JUDGE DEL FABBRO: Pause there, just pause and think about this. MR QURESHI: Your Honour, that's the way she -- JUDGE DEL FABBRO: Just pause and think about it, because you may not be explaining yourself. A man has his hand around your throat, around your neck -- A. That's correct. JUDGE DEL FABBRO: -- holding you up there. A. Then I walk back and he tells me I deserved it, so how would I -- JUDGE DEL FABBRO: You are conflating issues. Take it in steps, please. A. Right, okay. But I felt -- JUDGE DEL FABBRO: Listen to what I'm saying, take it in steps. The man has you around your neck. A. That's correct. JUDGE DEL FABBRO: That is your evidence. Yes. JUDGE DEL FABBRO: Another man, who you don't know, comes up and grabs this man and pulls him off you. A. Puts him back into the car -- JUDGE DEL FABBRO: Leaving that aside, he pulled him off you, so that the man releases his grip on your throat; is that right? Is that what happened? A. That's what happened. JUDGE DEL FABBRO: Right. A. He then told him -- JUDGE DEL FABBRO: Pausing there -- A. -- the police are on their way -- JUDGE DEL FABBRO: Pausing there, Ms Naz, why were you angry at this man who had saved you from being throttled? A. Because he then repeats to the person, "The police are on their way, go, go, go." JUDGE DEL FABBRO: Right, so you were angry at him, because he had helped this man leave. A. I felt he knew the person, yes, that attacked me. JUDGE DEL FABBRO: The fact that he saved you from further injury obviously didn't feature in your view at that point. A. It wasn't like that at the scene, it wasn't as if he was helping me, it was more the attack had happened, he just came, split him away from me, but then he was telling him to go from the scene, so he was saving his friend in my mind." 23. It is said that the judge clearly entered the arena by questioning the Appellant in this way and that what took place was in effect a type of cross-examination in the middle of examination-in-chief with the judge challenging the Appellant's assertions that Mr Wafta had failed to help her. 24. Shortly afterwards, there was a further passage of judicial intervention: "JUDGE DEL FABBRO: In your upset, Ms Naz, before you entered the store, did you remonstrate with him and say to him, "You fucking foreigner." A. No. My own mother is an immigrant, I would never -- JUDGE DEL FABBRO: Never mind your mother, never mind -- A. -- I would never use those words. JUDGE DEL FABBRO: Leave your mother out of it. MR QURESHI: Your Honour, please can she -- A. I would never use those words. JUDGE DEL FABBRO: Will you please listen when I am talking. A. I am listening, but -- JUDGE DEL FABBRO: Please stop. A. -- I wouldn't say that. JUDGE DEL FABBRO: Right. The question was very simple, did you use that language, and you said no. And you were going to say something about your mother, which I would like to record, please. "I did not say to Mr Wafta, 'you fucking foreigner'. My mother is an immigrant and I would not use that language towards anyone"." 25. A similar criticism was made about this passage and a further lengthy interruption in which the judge appeared to challenge the Appellant's evidence that the first time she had become aware of an allegation of having used racially abusive language was at the police station in the course of an interview several months after the event. That was not a controversial issue between Crown and defence, yet the Appellant's account was called into question by an extended series of questions put by the judge. 26. There was a further episode during examination-in-chief as Mr Qureshi was seeking to elicit her evidence about the use of racially abusive language: "MR QURESHI: Did you at any time use any racial abusive language to Mr Wafta? A. Never. JUDGE DEL FABBRO: Did you use abusive language? Take it in stages, because the jury have to consider this in stages. Do you accept that you used abusive language towards him? A. There was the F word used at one point. JUDGE DEL FABBRO: And presumably you would categorise that as abusive? A. Sort of, yes, if you are trying, yes, if you are swearing at some point; yes, that's abusive. JUDGE DEL FABBRO: That's abusive language. I mean, there may be a reason behind it. A. But it wasn't towards him in that way. I was explaining things. I was attacked. I might have said I was fucking attacked in that way -- JUDGE DEL FABBRO: "I did use abusive language." But didn't you say something to him personal? What kind of fucking man are you? A. Yes, I added that -- JUDGE DEL FABBRO: So that is towards him. A. Yes. JUDGE DEL FABBRO: And you would accept that that is abusive towards somebody. A. Well, at the time of -- if a woman's hurt in that way, it's just the way I expressed myself, it's not -- JUDGE DEL FABBRO: Yes, but it is abusive language; you accept that? A. Yes, swearing is abusive; isn't it. JUDGE DEL FABBRO: Right. So you did use abusive language. Now when you used that abusive language against him, did you intend to hurt him, insult him -- A. Not in any kind of way; no. JUDGE DEL FABBRO: -- harass him, alarm him? A. No. JUDGE DEL FABBRO: You were just expressing yourself? A. I was expressing myself. JUDGE DEL FABBRO: "I did not intend to alarm him or harass him." And then the final question is, in that abusive language that you accept you used, did you refer to him, and that is all that has been alleged here, that he is a… foreigner? A. No. I would never use those words. JUDGE DEL FABBRO: "I did not refer to him as a foreigner at all." Does that cover all the steps, Mr Qureshi?" 27. Again, the complaint is made that the Appellant's examination by her counsel had been interrupted and taken over by the judge, who had then repeatedly cross-examined the Appellant on what was a central issue in the case. 28. A little later, while the Appellant was being cross-examined by prosecuting counsel, the issue was raised by the prosecutor of UKIP's policy in relation to immigrants. The judge permitted the question after objection on the basis that it was relevant to the use of words which formed the subject matter of the case. At that, the Appellant made an observation and the judge then had the following exchanges with the Appellant: "A. Can I just say our policy is fairer immigration if that's what you're referring to or how you're putting -- JUDGE DEL FABBRO: Yes but the general -- A. -- the party into the frame of being against anyone, it's wrong. It's not right. JUDGE DEL FABBRO: Yes, yes. A. Because there's many, many people from many different backgrounds that support UKIP. It's nothing to do with this. JUDGE DEL FABBRO: I know. Absolutely right and perfectly entitled to do so. People are perfectly entitled to support UKIP but going back to the policies, the policy is focused primarily, not exclusively but primarily on immigration and the basis of focusing on that immigration, the party that is, is because it is considered by the party that the current immigration policies allow too many immigrants into the UK. That is the basis. A. I wouldn't -- I've never -- I wouldn't put it in that context. I don't -- I just -- I don't agree with that. Sorry, as a daughter of immigrants I wouldn't represent them if that's what they stood for. JUDGE DEL FABBRO: I mean, that's the question that Ms Kodikara is asking you. In fact it is an open question. A. It's wrong. I mean, you know, previously in the last trial she had said UKIP has controversial views against immigrants. It's wrong, you know. These are -- JUDGE DEL FABBRO: All right, let's see where we are then for that -- A. It's very wrong what she is saying. It's not true at all. Nothing against anyone. Everyone is entitled or anyone is entitled to join. JUDGE DEL FABBRO: But the reason why UKIP are so concerned, UKIP as a party -- of course individuals within are different -- A. No. I think they highlight many, sorry, other, you know, policies. JUDGE DEL FABBRO: Yes but the reason why they are so concerned about immigration is because they believe that immigration is out of control. That is a stated -- A. Not out of control in that way where they are stopping people from coming here. They want people here but they want the skilled. JUDGE DEL FABBRO: Yes, it's out of control. It's not being controlled. A. Fairer. JUDGE DEL FABBRO: Yes. A. A points based system. Nothing to do with stopping anyone from entering here." 29. Once more, it was submitted that the judge had intervened inappropriately. 30. There was some further criticism of a remark made by the judge in summing-up in reminding the jury about Mr Wafta's admitted comments that the Appellant had perhaps deserved a punch because she had a very rude mouth. We do not develop this criticism further as we do not think it makes any material difference. 31. On behalf of the Crown it was submitted that the evidence against the Appellant was overwhelming and that it was not the interventions of the judge which led the jury to disbelieve the Appellant. 32. We can dispense with that line of response straight away. If the matters complained of rendered the trial unfair, then the strength of the case against the Appellant is totally irrelevant. Every defendant, including a defendant faced with a strong prosecution case, is entitled to a fair trial. That is an absolute right irrespective of the strength of the evidence: see Randall v The Queen [2002] 2 Cr App R 17 at paragraph 28 per Lord Bingham. 33. More pertinently, perhaps, the Crown also contended that the judge's inventions had not led to an unfair trial because (a) some of the matters complained of took place in the absence of the jury, (b) the judge was seeking to ensure that there was no unfairness caused to Mr Wafta in cross-examination and (c) where the judge had questioned the Appellant, he was seeking to clarify her evidence. 34. It was additionally submitted that the summing-up was fair and that it had contained appropriate directions about ignoring any views expressed by the judge. Insofar as the judge had expressed an opinion on the nature of the defence, it was justified and in any event did not impact on the fairness of the proceedings since the jury was not present. The judge had not prevented defence counsel from putting the Appellant's defence so that the course of the trial was unaffected. Overall, it was submitted that the interventions were not such as to render the conviction unsafe. 35. We begin our consideration of the issues by commenting that the summing-up was full, balanced and fair. There has been no criticism of it made on behalf of the Appellant save as to one comment which we do not consider materially effects the position. Not only were the legal issues accurately stated to the jury, but a balanced summary of the evidence was provided, including clear exposition of challenges to the prosecution case and appropriate putting of the defence case. 36. As we were rightly reminded by the Crown, the judge had given proper directions that the assessment of matters of fact was for the jury irrespective of the judge's views or indeed those of counsel. The fact that such a direction was given cannot necessarily and of itself rectify unfairness in a trial prior to the point of summing-up. What is required is an assessment of what occurred in any particular case. 37. We have to say that we have been much concerned about the passages to which we have referred earlier in this judgment. In relation to the complainant Mr Wafta, we think there is force in the complaint made that the judge intervened in such a way in the presence of the jury and whilst defence counsel was seeking to put his case as to give the impression that the judge had formed a positive view of Mr Wafta's account. This was particularly so in a passage where the judge posed a series of questions to defence counsel which appeared to challenge the basis of the questions being put to the witness. We also consider the fact that there was more than one such intervention to be important. 38. We turn next to those passages which arose whilst the Appellant was giving her evidence. We note that the judge on more than one occasion asked a series of questions which went beyond clarification of the Appellant's evidence and which took on the character of cross-examination rather than the neutral eliciting of material. The clear tenor of the passages had the capacity to demonstrate a degree of disbelief in what the Appellant was saying and the posing of a challenge to it. 39. This process occurred on several occasions during the course of the Appellant's evidence-in-chief. In our view, it deprived her of the opportunity of presenting her case in a way of her choosing and without premature challenge to her account. It deprived her counsel, who it can be seen attempted to intervene only to be ignored by the judge, of the ability to present her case in a manner of his choosing. 40. A particular example of this arose in the last of the passages cited from the examination-in-chief where on the crucial issue of abusive language used, the judge completely took over the questioning of the Appellant for a significant period of time and did so in a manner very different from the way in which defence counsel would have elicited the evidence. 41. We also consider that the excursion by the judge into the policies of UKIP in which he purported to state what their position on immigration was despite the Appellant's attempts to qualify what the judge was saying had the vice of introducing into the arena matters of no or marginal relevance to the trial. Once that issue had been raised, it had the effect of handicapping the Appellant's ability to deal with the matter on her own terms because of the way in which the judge handled it. 42. We also have considered the observations made in the absence of the jury and in particular those suggesting that the line of defence being advanced was "far-fetched" or "bunkum" as well as statements of what the Appellant's defence should have been. 43. Comments of this sort should never have been made. However, insofar as the jury was concerned, those comments were made in their absence and the defence was not prevented from later advancing those aspects which the judge clearly regarded as ill-founded. In due course, the judge, as he was bound to, put the full defence as advanced before the jury. Accordingly, we do not consider that unfairness arises in that respect. 44. In this context, we have gone on to consider whether the Appellant was denied a fair trial in the sense that the judge's attitude, particularly in the absence of the jury, may have affected the quality of her own evidence. 45. An assertion was made in the written grounds that the combination of the judge's remarks and his criticism of the Appellant's decision to elect trial had intimidated the Appellant and prejudiced the way in which she gave evidence. That matter, however, has been put on the basis of mere assertion without support from any evidence or other material. Mr Qureshi has not maintained the assertion before us this morning. 46. Whilst we deprecate the judge's observations in the passage cited, we are not persuaded that of themselves they lead to a finding of unfairness for the reasons given above. 47. We return, therefore, to those passages which took place in the presence of the jury. We have come to the conclusion that interventions which were likely to have had the effect of giving approval to the complainant's evidence or cast doubt upon the voracity of the Appellant's account combined to create unfairness. 48. We consider also that the judge on occasions wrongly descended into the arena and abandoned the neutral role of a judge. What he did went beyond the bounds of permitted judicial intervention designed to control counsel and manage the case effectively. What occurred had the unfortunate effect of depriving the Appellant of the opportunity to present her case, unlikely or not, in its best light when she came to give her evidence. 49. The excursion into UKIP policies on immigration introduced an irrelevant and potentially prejudicial element to the case, particularly where the judge's assertions appeared to have overridden the Appellant's attempts to explain the position. 50. Looking at these matters cumulatively and in the round, we find that there was serious unfairness. 51. A reader of the summing-up alone would be surprised to have seen what occurred earlier in the trial in the sense that it showed a fair and proper balance in which the judge did not enter the arena. We have considered carefully whether that can cure the earlier unfairness. We have come to the conclusion that the unfairnesses which we have identified and which accumulated over the course of the evidence cannot be nullified by the summing-up so as to render the verdict safe. 52. Although in the summing-up the judge said that the facts were a matter for the jury to resolve and that they should ignore the views of the judge or counsel, that conventional direction in this case was wholly insufficient to dislodge the harm or potential harm done by the flaws which we have identified. 53. We have come to the conclusion that because of what occurred during the taking of evidence, this verdict was rendered unsafe through the unfairness of the process. Accordingly, this conviction must be quashed. 54. MR QURESHI: My Lord, thank you for that ruling. May I just make one observation about a potential retrial, please? 55. LORD JUSTICE TREACY: Yes. 56. MR QURESHI: This matter has been going on since March 2015. The incident happened on 22 March 2015. Thereafter, there was a full trial which resulted in the jury being discharged earlier in 2016. 57. LORD JUSTICE TREACY: Was that discharged through disagreement? 58. MR QURESHI: Yes, discharged through disagreement. 59. LORD JUSTICE TREACY: Yes, right. 60. MR QURESHI: Then the retrial, of course, then occurred in September. 61. She is a lady of previous good character. This has been going on for a very, very long time. I would respectively request whether or not it is in the public interest to have a retrial in the circumstances of this case, given that there has already been two previous trials now. 62. LORD JUSTICE TREACY: All right. We will bear that in mind. 63. What is the Crown's position, please? 64. MS KODIKARA: My Lord, we would seek a retrial in this matter, given, as I have indicated, the evidence in this case. Therefore, we would seek a retrial. 65. LORD JUSTICE TREACY: All right. We will consider that. Thank you. (A short adjournment) 66. LORD JUSTICE TREACY: We consider that the public interest demands a retrial in this case, notwithstanding the fact that there has already been a trial and a retrial. Accordingly, we make such an order. 67. We make the following orders. We allow the appeal. We quash the conviction. We order a retrial to take place on the count of which a conviction was initially recorded. We direct that a fresh indictment be served. We order that the Appellant be re-arraigned on that fresh indictment within two months. We hope in the circumstances that can take place sooner. We direct that the venue for retrial be determined by the presiding judge for the South Eastern circuit. 68. The Appellant is not in custody. We will come back to the question of bail in a moment. 69. We also think it right to make an order under section 4(2) of the Contempt of Court Act 1981 restricting reporting of the proceedings until after the delivery of verdict in the retrial. We make that order so as to avoid the possibility of prejudice being caused to the retrial by reporting of matters which have been aired in the judgment. 70. Can we just come back to the question of bail? 71. MR QURESHI: Yes. My Lord, she has always been on unconditional bail, so there is no reason, in my respectful submission, why that should not continue. 72. MS KODIKARA: My Lord, I have no representations. 73. LORD JUSTICE TREACY: No. 74. Well, we order that the Appellant is on unconditional bail pending the retrial. 75. Right. Are there any other matters? 76. MR QURESHI: No. Thank you. 77. LORD JUSTICE TREACY: No. Thank you very much	{"ConvCourtName":["Snaresbrook Crown Court"],"ConvictPleaDate":["2016-09-22"],"ConvictOffence":["Racially aggravated intentional harassment, alarm or distress"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Snaresbrook Crown Court"],"Sentence":["£1,500 fine","£3,500 prosecution costs","£150 surcharge order"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Eyewitness testimony (Mr Farooq, customer)","Eyewitness testimony (Mr Sanders, store manager)"],"DefEvidTypeTrial":["Offender denies offence","Allegation of witness collusion"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no relevant previous convictions","Offender showed genuine remorse (implied by previous good character)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Trial judge intervened inappropriately and unfairly","Judge's interventions gave impression of bias","Judge's comments in absence of jury undermined defence","Judge's questioning deprived appellant of opportunity to present case"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed","Retrial ordered"],"ReasonQuashConv":["Serious unfairness due to judge's interventions during evidence","Judge abandoned neutral role and entered the arena","Appellant deprived of opportunity to present case","Cumulative effect of interventions rendered trial unfair and conviction unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 201605391/A3 Neutral Citation Number: [2016] EWCA Crim 2217 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 13th December 2016 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE WYN WILLIAMS MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - R E G I N A v NAOMI DONNA REYNOLDS - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Ms P Ahluwalia appeared on behalf of the Appellant The Crown was not present and was unrepresented - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE BURNETT: The default position for those who are convicted of taking contraband items into a prison is an immediate custodial sentence, the length of which generally depends upon matters which include the nature of the items smuggled in, the use to which the prisoner provided with them will put them and the accused's own character including previous convictions and personal mitigation. 2. Many cases concerning smuggling contraband into prisons have come before this court. Ms Ahluwalia, who appears on behalf of the applicant this morning, has produced an extremely helpful bundle of those authorities. They include R v Cluskey [2016] EWCA Crim 1534 , R v Boyton [2009] EWCA Crim 1773 , R v Nathan Watson [2013] EWCA Crim 271 , R v Hamilton [2016] EWCA Crim 78 , R v Smak [2012] EWCA Crim 1280 and R v Ormiston [2016] EWCA Crim 363 . Those authorities identify the real vice of smuggling contraband into prisons, which is well-known. The smuggling of such contraband can lead to disorder and also to criminality within those prisons. 3. The question before us is whether the circumstances of the applicant in this case are such that unusually the sentence of imprisonment should have been suspended. The application for leave to appeal against sentence has been referred to the Full Court by the Registrar. We grant leave. 4. At the Crown Court at Isleworth, on 24th November 2016, the appellant was sentenced by His Honour Judge McDowall to a total of 4 months' imprisonment in respect of three offences to which she had pleaded guilty. The first was conveying a list A article, namely cannabis, into a prison, contrary to section 40 B of the Prison Act 1952 . The second was conveying list B articles, namely SIM cards into a prison, contrary to section 40 C of the Prison Act 1952 and the third was simple possession of the cannabis. 5. The facts were these. On 2nd July 2016 the appellant went to Wormwood Scrubs to visit her boyfriend. When she saw him the appellant passed to him a package wrapped in a condom which contained compressed herbal cannabis and 11 SIM cards. The items were later retrieved from her boyfriend during a search and the appellant was detained before she left the prison. She knew very well that the items were prohibited. The prison bristles with signs warning against taking in contraband, including drugs and SIM cards. Lockers are provided to enable visitors to deposit any unsuitable items they have on them. Visitors are required to sign a declaration confirming that they have nothing on them which is prohibited. The appellant signed such a declaration knowing it to be untrue. 6. Police were called and the appellant said that she had been forced into doing this by her boyfriend and the people in the cell next to him. The appellant's telephone was seized and its content looked at. It became apparent that she had arranged to collect the items from someone who was called "Gini's girl". 7. When interviewed by the police the appellant provided no further information because, as she explained, she was concerned about reprisals, not only against herself but against members of her family. 8. The appellant pleaded guilty on a written basis which was not challenged by the prosecution. There was no Newton hearing because the prosecution indicated that the circumstances in which the appellant smuggled in the contraband were "not within their knowledge". That has echos of the old formulae that the prosecution "cannot gainsay" the basis of plea which may be thought unfortunate. Whilst in this case there has been no suggestion that the basis of plea is other than accurate, a prosecutor should not be shy of submitting in an appropriate case that an accused should confirm on oath the basis of plea and thereby subject him or herself to cross-examination. That said the basis of plea was as follows: "1. I received threats from my then partner... about bringing into prison what he said was weed. 2. [He] made indirect and repeated threats about my brother, references to his school and specifically stating that 'the only person who could keep my brother safe was me, so make sure I turn up'. 3. I deeply regret my actions that day, but seek to plead guilty as I accept that I could have reported these matters to the police or tried contacting third parties. I also accept that the threats stated over the phone were not imminent ones on reflection." 9. The judge proceeded to sentence without the benefit of a pre-sentence report. In the circumstances of this case that was an appropriate course. Neither do we need a report on the appellant to assist us in the appeal. 10. Ms Ahluwalia, who represented the appellant then as now, with her instructing solicitors put together a comprehensive bundle of materials to assist the judge, in support of the mitigation advanced on behalf of the appellant. It was directed towards persuading the judge to suspend any custodial term which was considered appropriate in this case. 11. A forensic clinical psychologist, Dr Sanya Krljes, provided a detailed report explaining the background to the appellant's offending and of the appellant herself. There was an impressive bundle of testimonials and references and a letter from the appellant explaining the circumstances. 12. A number of previous decisions of this court were referred to in the course of the hearing before the judge. Copies of the relevant Sentencing Guidelines Council Definitive Guideline on Seriousness and the Sentencing Council's Definitive Guideline on Community and Custodial Sentences were also helpfully produced by Ms Ahluwalia. She referred in addition to the resolution of the General Assembly of the United Nations of 16th March 2011 on the treatment of women prisoners and non-custodial measures for women prisoners. These are known as the Bangkok Rules although it does not form part of the law of the jurisdictions of the United Kingdom. 13. The judge concluded that the matters referred to in the medical report, the references and the letter from the appellant herself were matters which properly could mitigate the length of the sentence but that they did not carry sufficient weight to lead to the conclusion the sentence should be suspended. We note that a full discount was given for the appellant's guilty plea. 14. The appellant was born on 29th September 1988. She has no previous convictions. In the normal language of the criminal courts she was of good character. That said, the material in the references demonstrates that this appellant is of positive good character beyond the fact of having no previous convictions. She was a long-term volunteer with a community youth project in Hackney, having gained valuable insight when she did a degree focusing on Youth Justice matters. It is an unfortunate irony that the appellant has spent much of her own adult life trying to keep others out of trouble. She has also been a long-term volunteer with St Andrews Football Club where her younger brothers play. They are respectively 15 years old and 9 years old. Until these events engulfed her, she worked as a support worker at a school looking after children with special needs. She had shown herself extremely able in providing support not only to the children at that school but also their parents. She had progressed to the stage of beginning to teach maths to the children. 15. Her own letter and the report from the psychologist provide considerable insight into the circumstances of the offending. Her boyfriend had threatened to harm her brothers if she failed to do as he asked. 16. The psychological report explains this appellant's history of falling in with men who she trusts but who are abusive and violent. The man she visited in prison was not the first such person. Dr Krljes paints a vivid picture of a vulnerable, weak and impressionable woman. She was experiencing a range of psychological difficulties which included low mood, low self-esteem, hopelessness and anxiety. She manifested with a number of symptoms of post traumatic stress disorder. Dr Krljes considered her socially isolated and hyper vigilant. 17. The appellant reported a history of physical and emotional abuse in the context of intimate relationships which appeared to have led her to develop Battered Woman Syndrome. These events had resulted in what Dr Krljes describes as "learned helplessness" and amongst the features redolent of PTSD are episodes of re-experiencing the violence, numbing of responsiveness, hyper arousal, disruptive interpersonal relationships and difficulties with body image. Dr Krljes opines that the appellant's traumatic life experiences had left her vulnerable to further abuse. 18. The history recounted in the psychological report, which we should say goes into more detail than is necessary to summarise in this judgment, indicated that she was more vulnerable in giving into and complying with her partner's request to bring the prohibited items to prison than would have been the case in someone with anything approaching normal resilience. 19. The material before us also includes a detailed statement from the appellant's mother which explains her own considerable physical difficulties. The appellant is thus responsible not only for caring for her mother from time to time when she is unwell but also when those events occur effectively becoming the primary carer of her two young brothers to whom she is devoted. 20. It should not be thought that the fact that someone who takes contraband into a prison has been put under pressure by a relative, partner, or friend, will carry much weight in the generality of these cases. It is relatively rare for people who carry such contraband to do so entirely at their own initiative and pressure of some sort is regularly brought to bear. 21. Ms Ahluwalia realistically recognises that the circumstances of the coercion, particularly where, as here, the appellant explicitly recognised that the pressure was not immediate and could have been reported, provides little support for the submission that the sentence should have been suspended. 22. The features that Ms Ahluwalia in particular relies upon are the constellation of psychological problems to which we have adverted, the positive good character of this appellant and the unusual circumstances which lead her to assume caring responsibilities for both her mother and younger siblings from time to time. 23. We are persuaded that this very unusual combination of circumstances justifies the quite exceptional course of imposing a suspended sentence in this case. 24. At the heart of the appellant's problems is her tendency to associate with men who treat her badly. They become violent and abusive. But she is unable to distance herself from them. They have ended up in prison. For that reason, whilst we are prepared to suspend this sentence, in considering the operational period, we conclude that it should be a long one, namely 2 years. Had the sentence been imposed at the Crown Court on 24th November, it very likely that an unpaid work requirement might have been appropriate. But the appellant has been in custody now for 3 weeks. In those circumstances, we shall do no more than suspend the sentences imposed by the judge which, as we have indicated, totalled 4 months' imprisonment, for a period of 2 years. The ancillary orders made by the judge are unaffected. To that extent this appeal is allowed.	{"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":["2016-11-24"],"ConvictOffence":["conveying a list A article, namely cannabis, into a prison, contrary to section 40B of the Prison Act 1952","conveying list B articles, namely SIM cards into a prison, contrary to section 40C of the Prison Act 1952","simple possession of the cannabis"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[21],"SentCourtName":["Crown Court at Isleworth"],"Sentence":["4 months' imprisonment"],"SentServe":["Single"],"WhatAncillary":["ancillary orders made by the judge are unaffected"],"OffSex":["All Female"],"OffAgeOffence":[27],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["offence committed in prison context","knew items were prohibited"],"MitFactSent":["offender showed genuine remorse","offender was of positive good character","offender had caring responsibilities","offender had psychological difficulties including PTSD and Battered Woman Syndrome","offender was coerced by threats from partner"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence should have been suspended due to exceptional mitigation"],"SentGuideWhich":["Sentencing Guidelines Council Definitive Guideline on Seriousness","Sentencing Council's Definitive Guideline on Community and Custodial Sentences"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2009] EWCA Crim 1612 Case No: 200900866/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 6th July 2009 B e f o r e : LORD JUSTICE KEENE MR JUSTICE HOLMAN THE RECORDER OF NOTTINGHAM (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID EDWARD LEEKS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr R Bryan appeared on behalf of the Applicant Mr A McGee appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE HOLMAN: This is an application for leave to appeal against conviction which has been referred to the Full Court by the Registrar of this court. 2. The fundamental issue on this application is as to the validity of a count which was added to an indictment without the court making an order for amendment as required by section 5(1) of the Indictments Act 1915. On the facts and in the circumstances of this case, the point might be regarded as technical in the extreme. However, as Lord Bingham of Cornhill said at paragraph 17 of his speech in the case of R v Clarke and McDaid , to which we will refer more fully later: "Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place." 3. The essential background facts to this application are as follows. On 18th September 2006 this applicant was driving his car in Basildon in Essex. A pedestrian began to cross the road from the applicant's left-hand side. The car struck the pedestrian, who died shortly afterwards in hospital. 4. It has never been in issue that the applicant had shortly beforehand been drinking alcohol at a pub. He said as much to witnesses at the scene. Moreover, when police arrived he was asked to, and did, supply a specimen of breath at the roadside which was positive. He was arrested and taken to the police station. Here, however, he refused to provide any further specimen for testing for the volume of alcohol in his blood. Initially the applicant was charged on an indictment which was, and is, a completely valid indictment, properly signed by an officer of the court. It charged a single count, namely causing death by careless driving and refusing to provide a specimen of breath contrary to section 3A(1)(c) of the Road Traffic Act 1988. The particulars of the offence were that the applicant: "... on the 18th day of September 2006 caused the death of [the victim] by driving a mechanically propelled vehicle on a road... without due care and attention and within 18 hours after that time was required to provide a specimen of breath, pursuant to section 7 of the Road Traffic Act 1988 but without reasonable excuse failed to do so." 5. This indictment was fixed for trial in the Basildon Crown Court, due to start on Monday 8th October 2007. The indications were that the applicant proposed to plead not guilty. Although we do not know all the details, it seems that at one stage a serious issue was being raised with regard to causation of the accident itself. 6. It appears that the victim also had a considerable quantity of alcohol in his blood, and the suggestion was that he had, in effect, darted into the road at so late a stage that it would have been impossible for the applicant to avoid the collision, even if he had driven with complete care and attention. 7. The case was listed "for mention" on Friday 5th October 2007 before His Honour Judge Clegg who sits regularly at the Basildon Crown Court and who seems to have been identified by then as the trial judge. As we understand it, part of the reason for that "mention", which had been listed on the application of the defence, was due to certain issues as to outstanding disclosure, to which we need not refer. 8. However, it is plain that as the date for trial drew close, the prosecution and in particular their intended trial counsel, Mr Caudle, had become increasingly concerned as to whether they could properly prove the case that was alleged in the indictment. The reason for that was that there had, or may have, been certain irregularities at the police station, such that the police were not lawfully and regularly requiring the applicant to provide a further specimen. Thus they might not have been able to prove that he had failed to do so "without reasonable excuse". The way in which the prosecution inclined to face up to that problem was to seek to add a second count to the indictment, namely one of causing death by careless driving when unfit through drink, contrary to section 3A(1)(a) of the Road Traffic Act 1988. 9. As regrettably some times happens, different counsel were actually present at court on 5th October 2007, from the intended trial counsel. Mr Caudle was not present and instead Mr Wyatt appeared on behalf of the prosecution. It is quite plain that before they went into court that day Mr Wyatt, on behalf of the prosecution, and Mr Paxton, who was appearing that day on behalf of the defence, had some discussion about this proposed added and alternative count. The applicant himself was not present at court at all that day which, as we have said, was simply listed "for mention". From transcript Volume I, one sees following taking place: "MR PAXTON: In terms of the indictment, your Honour will have seen---- JUDGE CLEGG: I do not have an indictment. I have a piece of paper that says indictment and there is absolutely nothing on it. MR WYATT: Your Honour, I can pass up what is, unfortunately, a provisional indictment. I spoke to Mr Caudle this morning, who was instructed in this case.... JUDGE CLEGG: Right. Just let me have a look at this [viz plainly referring to what was handed up and described as a provisional indictment]. Causing death by careless driving and refusing to provide a specimen. MR WYATT: If I can interrupt your Honour, it is Count 2 that will form the subject matter of the final indictment. Mr Caudle has advised that Count 2 be added in substitute of Count 1, but something has been lost in the translation and it has been added as an alternative, which is not correct. The final indictment, which will be ready on Monday, your Honour, will be Count... JUDGE CLEGG: I do not know why the Crown are making difficulties for themselves. MR PAXTON: Your Honour, in fairness, I will not go through all the factual history or the history of Mr Caudle's and my conversation recently, but actually when one examines the procedure in detail at the station Mr Caudle has, in my view rightly, observed that there are difficulties. JUDGE CLEGG: I see. MR PAXTON: He has come to a conclusion -- in fact I have seen different difficulties but come to the same conclusion -- and he indicated to me about two weeks ago that the Crown were going to amend the indictment and proceed on that second count. So there has been some discussion. I do not have my client here today, that was our request, and so I cannot say that I formally agree to the amendment, but that is a matter that can be resolved on Monday. JUDGE CLEGG: Yes ..." The discussion in court on the Friday then passed to other matters. Pausing there, one can plainly see that nowhere in the passage that we have quoted was Judge Clegg actually asked to make a ruling or decision, or to make an order for the amendment of the indictment, and quite plainly he did not do so. In that passage Mr Wyatt had referred to "a provisional indictment". He had said that the "final indictment ... will be ready on Monday" and Mr Paxton had referred to the issue of amendment being "a matter that can be resolved on Monday". 10. Monday 8th October was, as we have said, the date fixed for trial. On this occasion, however, different counsel appeared for the prosecution, namely, Mr G King. Before a jury was empanelled, the defence sought from the judge a ruling on the question whether or not the prosecution could adduce in evidence before the jury, on the proposed new count, the readout obtained when the breath test was administered at the roadside. The Crown plainly wished to rely on the actual readout and the actual volume of alcohol in the applicant's blood that that readout indicated. The defence, on the other hand, contended that the essence of the charge was that he was "unfit to drive through drink"; and that although it was open to the prosecution to adduce evidence that he had drunk alcohol and was unfit to drive, they could not, on that count, adduce the actual readout itself. There was very considerable argument on this point extending to some 37 pages in transcript. 11. It is right to say, and Mr McGee on behalf of the Crown presses this point very strongly upon us today, that the whole of that argument is plainly predicated on an assumption that the court either has made, or will make, an order under section 5(1) of the Indictments Act 1915, permitting an amendment to add the count. However, at no stage at all during the transcript of the argument itself was the court formally asked to make that amendment, and at no stage did the judge do so. His ruling appears at page 37F of the transcript. Judge Clegg began by saying: "In this case the defendant is charged with an offence contrary to section 3A of the Road Traffic Act 1988..." Pausing there, in that opening sentence the judge was not identifying whether the offence was one arising under paragraph (c), or paragraph (a) of subsection (1), but referring only generically to section 3A of the Act. At page 38B to E, he said: "I need not go into a great deal of detail, but it would appear that mistakes were made at the police station, as a result of which counsel for the Crown has decided not to proceed for an offence under section 3A(1)(b)[sic] - which is causing death by careless driving having consumed so much alcohol that it exceeds the prescribed limit of alcohol in breath - but for an offence under 3A(1)(a), namely that the defendant at the time was unfit to drive through drink or drugs. Because there is no Lion intoximeter reading, because there is no blood alcohol analysis, the Crown now seek to rely on the readout from the roadside breath device. It is to be noted they say that they are entitled to do that by any admissible means available to them." 12. Pausing there, Mr McGee on behalf of the Crown today very strongly relies on that passage and submits that it is implicit within it that Judge Clegg either has already made an order permitting the amendment, or is proposing to do so; or even implicitly by that very passage is doing so. 13. Plainly, however, there is no express reference to the judge exercising any such power in that paragraph. The passage is merely a recitation of the decision of the Crown not to proceed under one paragraph but, rather, under another. In our view it is a more accurate description of that passage that the judge makes an assumption that leave has been given, rather than that he actually implicitly grants leave. The judge then continued with his ruling and at the end of it simply ruled as follows: "Accordingly I rule that it would be inadmissible for the Crown to seek to adduce the readout from the roadside breath test device. However, it would be perfectly proper - and indeed Mr Paxton concedes this - for them to adduce evidence that a roadside test was administered, that the defendant failed it, and that that constitutes an indication that the proportion of alcohol was likely to exceed the prescribed limit, but it cannot actually be determinative of that issue. That is my ruling." 14. It might have been expected that following on that ruling the trial would then have got underway on 8th or 9th October 2007. However, other events had also taken place outside the courtroom on the morning of Monday 8th October 2007, which led the defence to seek to argue that the whole trial was now tainted by an abuse of process. 15. It is not necessary for us to say much about that, for it is not germane to what we have to decide today, but explains the subsequent chronology. In essence, it seems that there was a period, perhaps only of minutes, during the morning of 8th October 2007 when the representative of the Crown Prosecution Service had said that the prosecution would accept a plea to a lesser offence, simply of driving without due care and attention. That intimation was rapidly withdrawn, but it led the defence to submit that it was now an abuse of process to proceed on the proposed more serious count. This in turn led to decisions that the abuse of process argument would have to be heard on an altogether different occasion; a different advocate would have to represent the prosecution; statements would have to be made as to what was said by the various actors that morning; and that it was preferable that the abuse of process ruling should be made by a different judge and therefore at a different court. So it came about that the abuse of process argument was only heard and ruled upon about a year later in the Chelmsford Crown Court by His Honour Judge Ball QC. He ruled against the defence abuse of process submission and the case was fixed for trial in the Chelmsford Crown Court on 4th November 2008. As we understand it, it was still the intention of the applicant at the start of that day to plead not guilty in reliance on the issue as to causation that we have indicated. Apparently, when he arrived at court, or went into the courtroom, and saw relatives of the deceased, the applicant was so struck that he decided at the very last minute to change his plea to one of guilty. 16. By now, there was what we will call a piece of paper in circulation that was headed "indictment". It has all the appearance of an indictment and contains upon it two counts. The first count is a repeat of the count that was in the original indictment that we have already quoted in full. Count 2 charged: "CAUSING DEATH BY CARELESS DRIVING WHEN UNFIT THROUGH DRINK contrary to section 3A(1)(a) of the Road Traffic Act 1988. PARTICULARS OF OFFENCE. [The applicant] on the 18th day of June [sic, but it should have said September] 2006 caused the death of [the victim] by driving a mechanically propelled vehicle... on a road... without due care and attention and at a time when he was unfit to drive through drink." That piece of paper is nowhere signed by an officer of the court and does not contain anywhere upon it any endorsement pursuant to section 5(2) of the Indictments Act 1915 that the original indictment had been amended. 17. We have now at Volume VI a transcript of the arraignment itself. It proceeded as follows: "THE CLERK OF THE COURT: Would you stand up, please? David Edward Leeks, you are charged with causing death by careless driving and refusing to supply a specimen of breath ---- MR CAUDLE: No, that is the wrong indictment. JUDGE BALL: No, it is the wrong indictment. There should be an indictment dealing with 'whilst unfit'. A copy is coming. THE CLERK OF THE COURT: David Edward Leeks, on this indictment you are charged with causing death by careless driving when unfit, contrary to section 3A(1)(a) of the Road Traffic Act 1988, in that on the 18th day June 2006 you caused the death of [the victim] by driving a mechanically propelled vehicle, on a road... without due care and attention at a time when you were unfit to drive through drink. Do you plead guilty or not guilty?" THE DEFENDANT: Guilty. THE CLERK OF THE COURT: You plead guilty. Please sit down." Mr Caudle then referred to the error in the date, which should have specified September rather than June and that, in effect, was corrected. Following the plea of guilty the judge proceeded to sentence this applicant to 2 years' imprisonment and disqualified him from driving for 7 years. There has never been any subsequent attempt to seek to appeal from that sentence. So it might have seemed that this matter ended. 18. However, on 14th January 2009 His Honour Judge Ball QC, who had presided on 4th November 2008 and who is the resident judge of the Chelmsford Crown Court, wrote a letter or memorandum which he circulated to all relevant people and bodies including the Registrar of this court. It begins: "When court staff were dealing with the paperwork connected with the final disposal of this case it came to their attention that no form of a signed amendment to the indictment existed. I have conducted a detailed research of the court files and the various hearings, and I have obtained transcripts of the hearings at Basildon Crown Court when the issue of the amendment was raised and formed part of the discussion about the progress of the case. Whilst it is apparent that from a very early stage all parties agreed that the indictment would be amended by the addition of a second count alleging 'death by careless when unfit' [section 3A(1)(a) Road Traffic Act 1988] it appears that no formal application was ever made to add this count, either at Basildon or Chelmsford Crown Court, nor was it ever formally endorsed as having been added. It was to this count that the defendant entered his plea of guilty on 4th November 2008. Although there may be arguably significant distinctions between this case and the leading authority of R v Clarke and McDaid ... it seems right that we bring this state of affairs to the notice of the parties as soon as possible ..." So it is that this application now comes before us today. 19. Section 5 of the Indictments Act 1915 (as amended) provides as follows: "5(1)Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice ... (2)Where an indictment is so amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment shall be treated for the purposes of the trial and for the purposes of all proceedings in connection therewith as having been signed by the proper officer in the amended form." 20. We have set out at length all the relevant passages in the various relevant hearings that took place in this case. It is plain that in none of them did the court, whether Judge Clegg in Basildon or Judge Ball in Chelmsford, expressly make any order at all for the amendment of the indictment. Perhaps for that very reason, no note was ever endorsed on the indictment of any order for amendment having been made. 21. On behalf of the applicant, Mr Bryan, who appeared for him at the final hearing on 4th November 2008, makes the short submission that what took place in this case became simply a nullity. His client was arraigned and pleaded guilty to an imaginary indictment, with a supposed count upon it which in reality never lawfully existed because no court had ever made an order for the amendment. He relies in particular on the authority of the House of Lords in R v Clarke and McDaid [2008] UKHL 8 . There is, undoubtedly, a factual and analytical distinction between that authority and the facts and circumstances of the present case. In the case of R v Clarke and McDaid a full trial on pleas of not guilty took place upon an indictment which turned out never to have been signed at all until a late stage of the trial. The House of Lords held that in those circumstances the indictment itself and all that subsequently followed had to be treated as a nullity. After an examination of the statutory provisions relevant to that case and considerable authority, Lord Bingham of Cornhill said at paragraph 19: "It is necessary to ask a second question. What did Parliament intend the consequence to be if there were a bill of indictment but no indictment? The answer, based on the language of the legislation and reflected in 70 years of consistent judicial interpretation, is again inescapable: Parliament intended that there could be no valid trial on indictment if there were no indictment...." In this case there plainly was, and remains, a valid indictment, namely the original indictment signed by an officer of the court and containing the single count that we have quoted and described. Mr Bryan submits, however, that the essential proposition to be drawn from Clarke and McDaid must apply with equal force when a count has purportedly been added without any judge or court exercising a discretion under section 5(1) of the Indictments Act 1915, and actually making an order for the amendment as that subsection requires. He submits that the piece of paper which was in circulation at the hearing on 4th November 2008 and which was handed to the clerk, from which she put a charge to this applicant, was ultimately speaking no more than simply a piece of paper. 22. On behalf of the prosecution, Mr McGee stresses, first, that there is the factual and analytical distinction between Clarke and McDaid and the present case. In that case, the whole proceedings were never founded on any indictment at all, whereas in the present case the proceedings were, and remained, founded on a valid indictment, namely the original indictment. He says, and we do not demur, that there is a spectrum of errors and irregularities that may occur in relation to indictments and the contents of indictments. They range from the fundamental, such as an indictment not being signed at all, which render the proceedings a nullity, to minor procedural errors which may readily be corrected. He submits that the facts and circumstances of the present case fall towards the minor rather than the fundamental end of that spectrum. 23. In regard to the fact that there was no endorsement of any order for amendment on the indictment, as section 5(2) requires, he refers to the case of R v Ismail (1991) 92 Cr App R 92 . In that case it appears that a judge had made an order under section 5(1) for amendment of the indictment, but a note of that order was never endorsed on the indictment itself, as section 5(2) requires. As to that, this court said at page 95 of the report: "It is true that that step [viz endorsement] was not taken as it should have been. It is suggested by counsel for the appellants that that indicates this was not an amendment but was a fresh indictment. We do not take that view. We take the view that was an oversight on the part of the staff. It certainly is not an oversight which in itself invalidates the amendment which we find to have been made." 24. We, for our part, completely accept that approach in relation to the matter of endorsement, as required by section 5(2). Endorsement is a purely administrative act which is required to be done by staff of the court, pursuant, and indeed in obedience, to an order by the court made pursuant to subsection (1). There is no element of discretion and it seems entirely appropriate and correct that a mere administrative failure to carry out that mechanical step should not render the amendment and subsequent proceedings on it a nullity. So, in the present case, the fact of itself that there was no endorsement on the indictment is not, in our view, in any way fatal to what subsequently occurred. 25. However, the requirements of subsection (1) are entirely different. That subsection requires the court itself to exercise a discretion and positively to make an order. Mr McGee submits that there is "a wealth of inferential material that the court gave implied leave to amend." He bases that, in particular, on the events of Monday 8th October 2007. He submits that the whole argument that took place that day about reliance upon the readout from the roadside breath test can only have had any sense or purpose if Judge Clegg already had made, or at any rate intended to make, an order for amendment of the indictment. He says, correctly, that all parties expected and intended an amendment to be made; that all parties acted as if the amendment had been made; and that the applicant voluntarily pleaded guilty to the intended count 2 on 4th November 2008. 26. It appears that the researches of counsel have not been able to identify any authority on the question of what is the effect when all parties, including the judge, anticipated that an order would be made for amendment but, by oversight, one never was made. We have to make a decision ourselves on the matter. We are clearly of the view that such an error falls at the fundamental rather than the minor end of the spectrum referred to by Mr McGee. It is true that there is a factual and analytical distinction between the situation in this case and that in Clarke and McDaid ; but ultimately, in our view, the principle and approach has to be the same. Amendment of an indictment is a serious matter and not a mere matter of formality. Section 5(1) clearly requires the court itself to exercise a discretion, and positively requires the court to "... make such order... as the court thinks necessary..." In our view, even if this may be described on the facts of this case as a technicality, it is a technicality of the kind referred to by Lord Bingham of Cornhill in the quotation with which we began this judgment. Further, as Lord Brown of Eaton-under-Heywood said in his speech in R v Clarke and McDaid at paragraph 40: "But the problem is easily enough avoided and will only occur if the Crown is at fault. In any event Parliament can always alter the position if it chooses." 27. There is little doubt that what happened in this case would not have happened if there had been continuity of counsel between the 5th and 8th October 2007, or between those occasions and 4th November 2008. If Mr Caudle or Mr Bryan or His Honour Judge Ball on 4th November 2008 had not thought that there had already been an order for amendment of the indictment, such an order could plainly have been made by Judge Ball himself on 4th November 2008. But neither he nor Judge Clegg ever made such an order. 28. In our view, this plea of guilty and the subsequent conviction on the plea and the sentence are all founded on a nullity. We accordingly grant leave to appeal and quash the conviction and sentence. We stress that that leaves in place the original valid indictment upon which the prosecution may now seek to proceed with or without further application for amendment. 29. MR BRYAN: May I mention one thing in relation to that? My recollection is that although there was that valid indictment, I think no evidence has been offered on that, so there is nothing really left of that. 30. MR MCGEE: That is entirely right my Lords. In light of that, in light of your Lordships having quashed this conviction on the basis that it is a nullity, the Crown makes an application for a write of venire de novo in this case? 31. LORD JUSTICE KEENE: The appellant has, of course, served I think about 8 months so far, has he not? 32. MR MCGEE: He has. 33. LORD JUSTICE KEENE: But on the other hand also disqualified for 7 years. That will fall as well if there is no retrial. What do you want to say about a retrial? 34. MR BRYAN: This case is now coming up for 3 years old, the facts of it. There has been a lot of difficulties, none of which emanated from the appellant himself and as your Lordship observed he has been in custody since 4th November 2008 and it has substantially... 35. LORD JUSTICE KEENE: It is a serious case though where somebody died as a result where your client, clearly as a result of his plea, was acknowledging his unfitness through drink to be driving at the time. 36. MR BRYAN: I cannot dispute that. It just seems a little unfair and again to put him through the process. 37. MR JUSTICE HOLMAN: You anticipated he would be. We have seen either an advice from you or a letter from your instructing solicitor. I cannot put my fingers on it, I think I find it now. 38. MR BRYAN: Your Lordship is quite right. 39. MR JUSTICE HOLMAN: Which plainly says the only effect is that the prosecution no doubt will come back again. I am just looking for it? 40. MR BRYAN: In fact my submission is that it is not for this court to make an order in that respect. The court has made the order on the conviction then it is for the prosecution to decide whether they want to recharge him or not. 41. LORD JUSTICE KEENE: The prosecution is asking us to make an order for retrial. We need not go into that. We will make an order for retrial. The indictment must be preferred by the Crown. We give leave for that fresh indictment to be preferred. The appellant, as he now is, must be arraigned on that fresh indictment within 2 months of today. Venue to be determined by the presiding judge of the south eastern circuit? (Pause) Venue to be determined by the presiding judge of the south eastern circuit or one of the presiding judges. Is there anything further anyone wants to raise? 42. MR BRYAN: My Lord yes the procedure now will take again many, many, many months. May I ask for-- 43. LORD JUSTICE KEENE: I do not see why it should take many, many months. This matter is clear in everyone's mind I would hope. Are you asking for bail? 44. MR BRYAN: Yes. I know there has been an application. Anything on bail? 45. MR MCGEE: In the circumstances... 46. LORD JUSTICE KEENE: He had bail until he pleaded. (Pause) Yes, we will grant bail. Was it unconditional below? 47. MR BRYAN: I believe it was. 48. LORD JUSTICE KEENE: That is right. Unconditional bail. Thank you both very much indeed. (Pause) Did you hear that, Mr Bryan, raising the question of reporting restrictions pending the retrial. Are you making any application in that respect? 49. MR BRYAN: I am not making-- 50. LORD JUSTICE KEENE: We have had a highly technical argument today, not one which is likely to cause any potential prejudice. 51. MR BRYAN: I have no submissions. 52. LORD JUSTICE KEENE: Very well. Thank you for raising it.	{"ConvCourtName":["Chelmsford Crown Court"],"ConvictPleaDate":["2008-11-04"],"ConvictOffence":["Causing death by careless driving when unfit through drink"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at trial (on day of trial, after seeing relatives of deceased)"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[240],"SentCourtName":["Chelmsford Crown Court"],"Sentence":["2 years' imprisonment","7 years' disqualification from driving"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Roadside breath test (positive)","Witness testimony (defendant admitted drinking)"],"DefEvidTypeTrial":["Causation argument (victim darted into road, could not be avoided)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["pleaded guilty"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["No order for amendment of indictment as required by section 5(1) of the Indictments Act 1915; conviction based on a nullity"],"SentGuideWhich":["section 5(1) of the Indictments Act 1915"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["No court order was made for amendment of the indictment as required by law; conviction and sentence founded on a nullity"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 201403840 C3 Neutral Citation Number: [2016] EWCA Crim 1712 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH HER HONOUR JUDGE ZOE SMITH Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/11/2016 Before: LORD JUSTICE BEAN MR JUSTICE SPENCER and THE RECORDER OF LEEDS (HIS HONOUR JUDGE PETER COLLIER QC) - - - - - - - - - - - - - - - - - - - - - Between: EDYTA ZAWADZKA Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Saille Bennett-Jenkins QC (instructed by Registrar of Criminal Appeals ) for the Appellant Philip Bennetts QC and Philip McGhee (instructed by CPS ) for the Respondent Hearing date: 03 November 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Bean : 1. On 30 th November 2013 police officers entered Flat 1, The Towers, Lower Mortlake Road, Richmond where they found the body of Julia Anders, formerly known as Bernadeta Nawracaj. She had been dead for about two weeks and had clearly been violently killed. The appellant was charged with her murder. Following a trial in the Crown Court at Isleworth before Her Honour Judge Zoe Smith and a jury the appellant was convicted on 15 th July 2014. She appeals against conviction by leave of the single judge. 2. The victim was a 43 year old woman who supplemented her income as a driving instructor by providing sexual services. Her body was found on the bed in one of the bedrooms in Flat 1. There was no sign of forced entry. She had suffered a severe injury to the head and the sheets and mattress were saturated with blood. The head injury was consistent with blows from a hammer. Pathology suggested that she had survived for about 48 hours following the attack. The state of the body was consistent with the attack having occurred on or around the night of 16 th -17 th November 2013. No keys fitting the front door locks were found in Flat 1. Mugs and wine glasses in the kitchen had fingerprints matching either the victim or the appellant. 3. On 1 st December police searched Flat 39, The Towers, where the appellant had been staying. They found a hammer that had been placed (when wet with blood) in a black handbag in a bedroom shared by the Appellant’s brother Pawel Zawadzki and his partner Klaudia Muszynska. The black handbag also contained the victim’s personal phone. Two sets of keys fitting the door to Flat 1 were found, one under newly laundered clothing in a laundry basket in the same bedroom in Flat 39, the other in the appellant’s baby changing bag. Also seized was a pair of black leggings with a small bloodstain. A Louis Vuitton handbag belonging to the appellant was also found in Flat 39, containing documents and bank cards in the name of the deceased and the keys to her car. 4. The prosecution case relied on circumstantial evidence. The most significant aspects included the following:- i) The head of the hammer found in Flat 39 contained a complete DNA match with the deceased while the handle had a complete and partial DNA profile for the appellant. The handbag in which the hammer was found had the appellant’s DNA on the handles. ii) The black leggings also found in Flat 39 which DNA evidence showed had been worn by the appellant were stained with the victim’s blood. iii) A witness called David Curnliffe had visited the deceased’s flat on the afternoon of 16 th November. He found both the deceased and the appellant in the flat, contradicting the appellant’s account that she had not been there that afternoon. iv) The telephone cell site evidence was consistent with both women being in the flat on 16 th November for much of the day. v) At around 19:30 on 16 th November the telephone evidence demonstrated that the appellant went to Nigel Pinnock’s flat before returning to the deceased’s flat. vi) The appellant sent a text at 01:36 on 17 th November saying she was popping into Flat 1 (the deceased’s flat). She would then have been alone with the deceased who was probably asleep. vii) The deceased was found with fatal injuries in bed in her pyjamas with no defensive injuries. viii) For 20 minutes between 01:48 and 02:08 the appellant, unusually, did not use her phone. ix) The flat door had not been forced; both sets of keys to the flat were subsequently found in Nigel Pinnock’s flat (No 39) where the appellant was living, and one set of keys was in the appellant’s baby changing bag. x) When she arrived at Nigel Pinnock’s flat in the early hours of 16 th November the appellant was wearing black leggings. Subsequently a pair of black leggings were found with the deceased’s blood on them (see (2) above). xi) Within hours of the fatal attack the appellant gave the deceased’s handset (LAD/1) to her brother’s partner Klaudia who had just arrived from Poland. xii) The SIM card from the deceased’s phone was found in the appellant’s handbag.; it was used to send a number of text messages suggesting that the deceased was still alive. It was used both in the appellant’s handset and in another one which the appellant bought using the deceased’s credit card. xiii) After 17 th November the appellant went on a spending spree using the deceased’s bank cards to their limits. xiv) The appellant also used the deceased’s car in the same period. xv) The appellant repeatedly sought to blame others for the deceased’s disappearance and death. At first, to the family, she blamed George Willis; then “Matteusz” a long haired drug addict; then an unnamed client with whom she had gone on an outcall; then a woman called Rochelle; finally, and only after the trial was underway, she sought to blame her brother Pawel. xvi) On 28 th November at 00:49 the deceased’s sister Alicja Antoniou, who had reported her missing to the police, received a text message purportedly from the deceased’s mobile phone saying “I am OK, I’ll call when I’m back. Bye”. At 01:34 her other sister Mariola received a telephone call from the deceased’s phone number in which she could hear screaming and crying and then a male voice (or at any rate, a deep voice). Later that day the appellant made a number of comments to the two sisters suggesting that Julia was still alive, for example that she had checked Julia’s credit card which had been used on Sunday in central London, so Julia must be OK. 5. On 30 th November police officers began to investigate Julia’s disappearance. PC Leach telephoned the appellant who said she had last heard from Julia on Thursday 28 th November when she had stated she was safe and well and she would be returning on Monday. The appellant told the police she had not been in the flat since Friday 22 nd November when Julia had taken the flat keys from her, stating that she had wanted to get another copy cut. After that she had not returned the keys and had disappeared. 6. That afternoon the officers entered the flat and found Julia’s body. The appellant was arrested later that day and charged with the murder. 7. The trial was listed to start on 2 nd June 2014. On 20 th May 2014, the appellant served a defence case statement to the effect that she had last seen the deceased on 15 th November 2013. 8. A jury was empanelled on Monday 2 nd June 2014. The trial did not begin until the following Monday, 9 th June. The prosecution began calling witnesses on 11 th June. Pawel Zawadzki began giving evidence on 16 th June and continued on 19 th June. 9. On 19 th June the appellant served a second defence case statement which departed very substantially from the first. She said that she had returned to Flat 1 on the night of 16 th /17 th November 2013 to find the door ajar and Julia lying on the bed obviously injured. 10. The report of an expert on telephone evidence, Mr Sexton, had been served by the prosecution on 1 st May 2014. The defence served an expert report of a Mr Banks in response on 27 th June. Mr Sexton gave oral evidence on 1 st July 2014. Mr Banks was not called and his report of 27 th June was not placed before the jury. 11. The appellant gave evidence on 3 rd and 7 th July 2014. There were no other witnesses called by the defence. 12. The judge summed up the case in considerable detail and in the course of the summing-up gave directions of law to the jury. We are told that the only such direction of law given in writing was one setting out the elements of the crime of murder. Immediately after the jury retired on the afternoon of Friday 11 th July Ms Bennett-Jenkins QC for the defendant submitted that the judge should give the jury a written text of all her directions of law, including (but not limited to) her direction on circumstantial evidence. Judge Smith said that she would consider the matter over the weekend. The submission was repeated before the jury were brought into court on the Monday morning. The judge did not give further directions in writing. At 12:20pm on Tuesday 15 th July the jury returned a unanimous verdict of guilty. 13. The single judge granted leave to appeal against conviction on 28 th January 2015. That appeal was originally listed before Laws LJ, Spencer J and the Recorder of Stafford (Judge Tonking) on 21 st April 2015. It did not proceed, however, because the defence wished to commission a second report from Mr Banks on a different aspect of the telephone evidence. Such a report, dated 11 th August 2015, was served on the prosecution in early October 2015. The gist of it was that the call number 1804 in the prosecution schedule, made on a telephone using the deceased’s SIM card to the victim’s sister Mariola at 01:34 on 28 th November 2013, could not have been made by the appellant. The Grounds of Appeal 14. There were originally five grounds of appeal against conviction. Grounds 3 and 4 have rightly not been pursued before us. The remaining grounds are that: (1) The judge erred in allowing certain hearsay statements made by the deceased to be admitted in evidence. (2) The judge erred in allowing evidence of the appellant’s bad character to be admitted in evidence; and did not give a proper direction to the jury on how that evidence should be approached. (5) The evidence contained in Mr Banks’ second report about telephone call number 1804 is capable of destroying any inference of guilt from the circumstantial evidence. Ground 1: Hearsay (a) Statements by the deceased to her sister, Mrs Antoniou that she was frightened of the defendant and that the defendant would one day kill her. 15. Ms Bennett-Jenkins accepts that hearsay statements by a deceased witness on a relevant matter are admissible under s 116(2)(a) of the Criminal Justice Act 2003 but submits that the judge should have exercised her discretion under s 78 of the Police and Criminal Evidence Act 1984 to exclude such statements on the grounds that their prejudicial effect outweighed their probative value. She emphasises, rightly, that hearsay statements by the deceased in a murder trial have to be treated with some caution because the maker of the statement is no longer available for cross-examination. She submits further that where, as in this case, the recipient of the statement is a family member or close friend of the deceased, that witness may be motivated by antipathy towards the defendant; and argues that in this case the victim’s sisters each had “a high degree of animosity” towards the appellant. 16. The judge gave a warning early in the summing up in appropriate terms (pages 12F to 14B) warning them that they must first decide whether the hearsay witness was making a report of what was said to her truthfully and accurately; and adding that, for obvious reasons, the defence could not cross-examine the deceased as to the truthfulness of what she said, nor put it to her that she was being overdramatic or exaggerating and that she had in reality no grounds for such fear, nor that the statement had been taken out of context. The judge also emphasised that the alleged conversations had taken place some time earlier, apparently in 2011 and 2012. 17. In our judgment this evidence was plainly admissible and relevant and, with such warnings being given, it was well within the discretion of the judge to allow the jury to hear it and evaluate it for themselves. The question of whether the sisters’ evidence was coloured by animosity towards the defendant was a matter for the jury. We do not think that the direction to the jury on this hearsay issue was inadequate, nor that it was essential for it to be given in writing. (b) Statements of the deceased to Patricja Wojcik that the defendant was jealous of Julia/Bernadeta for being more successful as a sex worker and more popular with clients. 18. This item was referred to in the grounds of appeal but not in Ms Bennett-Jenkins’ oral argument. In our view this evidence was wholly peripheral and was, like the first category of hearsay, properly covered by the judge’s warnings. (c) Statements by the deceased that the defendant had used her bank/credit cards within her consent. 19. There was no dispute that the appellant had used the deceased’s bank and credit cards both before the presumed date of her death on 17 th November 2013 and in the fortnight afterwards. The appellant’s case was that she had the card holder’s consent to use her cards. Three witnesses gave evidence that they had been told at various times by Julia that the appellant was stealing from her by using her bank cards without her permission. Counsel submitted to us that this aspect of the prosecution evidence was hearsay which the judge should have excluded under s 78; and also that it should have been the subject of an application to the judge on prior written notice for permission to adduce it as evidence of bad character. 20. At the start of the trial the appellant’s case as set out in her first defence case statement was that she had last seen the deceased alive and well on 15 th November and only learned of her death on 30 th November; the deceased’s consent to use the cards was thus presumably to be inferred as continuing. The hearsay statements by the deceased on this issue were at that stage relevant to the issue of the appellant’s credibility and properly admitted. 21. Whether they should have been treated as evidence of bad character, or as evidence to do with the facts of the offence charged, is an issue which in our view became somewhat academic. As we have noted, the appellant’s case changed in mid-trial to an admission that she had seen Julia lying on the bed very seriously injured on the night of 16 th /17 th November. As Ms Bennett-Jenkins realistically conceded before us, it was “unattractive” that even after that the appellant continued to use Julia’s bank cards. But the undisputed fact is that she did. It is not clear to us that the judge was pressed to give a bad character direction in the summing-up about the earlier, allegedly dishonest, use of the bank cards; or that any such direction could have helped the defence. Perhaps from the appellant’s point of view the less that was said on that subject the better. Ground 2: bad character 22. The prosecution were granted leave by the judge to adduce in evidence a properly certified document showing that in 2011 the appellant had been convicted in Poland of an offence of theft of gold jewellery from a flat. The gateway through which this evidence was admitted was section 101(1)(g) of the Criminal Justice Act 2003 , namely that the appellant was accusing her brother Pawel of having killed Julia. The appellant’s evidence was that the Polish court proceedings had taken place in her absence, and that she had not committed the alleged offence of theft. 23. In summing up the judge said:- “What is the relevance, members of the jury, of this finding of guilt? This has been given in evidence because the Defendant accuses her brother, Pawel, or having killed Julia and in those circumstances, you are entitled to know something of the nature of the person making that accusation. The only relevance of evidence as to previous convictions is as to whether knowledge of the Defendant’s character assists you to judge the truthfulness of her evidence. Obviously, you will not assume that the Defendant is guilty or that she is not telling you the truth because she has a previous finding of guilt. It is not relevant at all as to the likelihood of her having committed the offence with which you are concerned. Its only relevance is as to whether you can believe her. You heard from the Defendant that she knew nothing about this allegation. The finding of guilt was made in her absence. You heard that she had communicated with the alleged victim of this theft who was a friend and she had communicated with her in 2012 but she had said nothing about it. You will also appreciate that the allegation of theft was in 2009 and therefore, some time ago. You do not have to allow this finding of guilt to affect your judgment. It is for you to decide the extent to which if any it helps you about that. What does follow from that, members of the jury, is that she has no other findings of guilty or convictions for any other matters and therefore, no convictions for any matter involving violence and you can take that into account in her favour when considering the likelihood of her having committed this offence.” 24. Not every judge would have allowed this evidence to be admitted; but we cannot agree that it was wrong in principle to have done so. The appellant was not merely making an incidental unflattering reference to the character of a minor prosecution witness. She was in effect accusing her brother of the murder. We reject the argument that this evidence of bad character had such an adverse effect on the fairness of the proceedings that the judge was bound to have used her discretion to exclude it. 25. There is more force in Ms Bennett-Jenkins’ submission that the summing-up did not include a proper direction on how the jury should approach this evidence. By virtue of s.74(3) of the Police and Criminal Evidence Act 1984 (as amended) the fact of the conviction created a rebuttable presumption that the appellant had committed the offence. After reminding the jury what the defence case was on the Polish court document the judge should have told the jury that if the appellant had proved, on the balance of probabilities, that she had not in fact committed the offence of theft in Poland (in other words that she was probably telling the truth about it) they should dismiss it from their minds; and that only if she had failed to do so could they take it into account at all on the issue of credibility. 26. However, this error by the judge comes nowhere near calling into question the safety of the conviction. By the time the evidence closed the jury had been presented not only with an overwhelming case based on circumstantial evidence, but also with evidence of persistently deceitful behaviour by the appellant in the period between 16 th and 30 th November at a time when on her own amended case she must have known or at least strongly suspected that Julia was dead. Whether she had also been guilty of an offence of theft in Poland some years ago seems to us, and must have seemed to the jury, a matter of no importance whatever. 27. We agree with Ms Bennett-Jenkins that it would have been preferable, and the error which we have identified might have been avoided, if the direction on this subject had been given in writing in the terms of a draft discussed beforehand with counsel. There are some directions of law which in our view it is usually essential to give in writing. It is not necessary in this judgment to give a definitive list: obvious examples include self-defence and diminished responsibility. But the issue of the Polish conviction in the present case was not as technical nor as significant as either of these. In any event, until and unless the Criminal Procedure Rules require directions to be given in writing this is not a free-standing ground of appeal. Ground 5: fresh evidence in relation to the call at 01:34 on 28 th November 28. One of the several calls or texts made using the deceased’s SIM card in the period after her death was at 01:34 on 28 th November to the deceased’s sister Mariola (call number 1804). This was the call (see paragraph 4 (16) above) in which she could hear a woman screaming and crying then a male voice (or at any rate a deep voice). The prosecution opened the case to the jury on the basis that the appellant and the deceased’s two sisters Mariola and Alicja had gone to an address at or near Corsellis Square, Twickenham late that night to call on the deceased’s ex-boyfriend George Willis. They rang the bell but there was no response. The appellant climbed the gate and went out of sight. It was while she was out of sight that the phone call was received by Mariola at 01:34. The prosecution case, as opened, was that this call was made by the appellant or by someone acting under her instruction, pretending to be the deceased and using her SIM card. When the appellant reappeared the sisters told her what had happened. 29. The prosecution’s telephone expert, Mr Sexton, was called and produced a schedule in the familiar form indicating the “cell” site on which each relevant call was made or received. He stressed that matching a cell to the physical location where the call was made or received was not an absolute science. The deceased’s SIM card was in the appellant’s hand set (JOH/3) at the time of this 17 second call. At the start of the call the cell used was ID 22041 and at the end cell ID 21710. Both those cells are geographically close to The Towers, the block of flats where the deceased and the appellant lived, and where the appellant’s brother Pawel and his partner were then staying. The issue was whether those cells could have been used if, for that call, the phone was not at The Towers but at Corsellis Square, where the appellant undoubtedly was at the material time. Mr Sexton’s evidence was that he could not rule it out, but it was unlikely. 30. The effect of the fresh evidence is that it is impossible, rather than merely unlikely, that the call in question on the deceased’s SIM card could have been made from Corsellis Square. The defence expert, Mr Banks has now conducted a thorough examination of the area in order to measure the “footprint” of the cells in question, something which the prosecution expert accepted at trial that he had not done. 31. The picture which emerges from Mr Banks’ report (see para 8.6) is that the cells used by the appellant’s own SIM (8459) were consistent with travel from The Towers to Corsellis Square at some point between 01:09 and 01:30. Then between 00:34 and 00:43 Pawel’s SIM (8724) was removed from the handset JOH/3 and replaced with the deceased’s SIM (0521). The SIM cards were swapped back again at some time between 01:40 and 04:28. Thus it is argued by Ms Bennett-Jenkins that the overwhelming inference is that it was Parval who switched the cards and made the call to Mariola at 01:34. By inference it would follow that the woman’s voice was probably that of his partner, Klaudia. 32. In the summing up (at page 90A) the judge reminded the jury in detail of the calls and texts around the time the appellant and the two sisters were at Corsellis Square. The judge pointed out that the call at 01:34 used cells which were among the best sites for The Towers although Mr Sexton had said it was a possibility that the phone could have been over at Corsellis Square and produced that result. He could not rule it out, but it was unlikely. The judge said the jury would have to consider carefully where that call was made from. 33. It is important to see this call at 1:34 in context. Why had the appellant taken the sisters over to Willis’s flat in Corsellis Square at all? The appellant had just learned that Alicja had reported the deceased missing earlier that night. The appellant said she should come to Willis’s place with her to look for the deceased (see summing up, at page 87B). They met at The Towers, where the appellant showed her a text she had purportedly received from the deceased at 00:44 saying “I am OK, Szmulico, thank you. You did not do well by calling the police and telling Ala.” “Szmulico” was a term of endearment which convinced Alicja that her sister was still alive and she called the police to inform them. At 00:45 the appellant had sent a text in reply to the decesased’s number expressing concern that “….nobody can get through to you, everybody is worried, the children are asking where is mummy”. On the way to Corsellis Square with the sisters the appellant went into a lot of detail about the deceased’s relationship with Willis. The inference is that the appellant took the sisters there in order to demonstrate that she believed the deceased was still alive and they might find her there. 34. That must, however, be set against the appellant’s own evidence (ibid, page 83B) that, as from the early hours of 16 th /17 th November, she knew that the deceased had been fatally injured. Her explanation to the jury for taking part in the pretence that the deceased was still alive was that she wanted to avoid any suspicion falling on her brother Pawel, who she realised must have been the killer. We observe, therefore, that when the appellant received the “Schimulkio” text from the deceased’s SIM at 00:44 and replied at 00:49, long before setting off for Corsellis Square, she must have known that she was taking part in an elaborate pretence to enable her to deceive the sisters so they would call off the police, and she willingly went along with it. 35. We have set out how the prosecution opened the evidence about the call at 01:34. It was not suggested that the call could only have been made by the appellant, but rather that it was made either by her or someone acting under her instruction. We do not have a transcript of the prosecution’s closing speech so we do not know precisely what was said in closing about this call. We noted that in Ms Bennett-Jenkins’ perfected grounds of appeal, at paragraph 102 (vii), it was suggested that one of the pieces of evidence that weakened or destroyed the inference of guilt from the circumstantial evidence was the “abandonment” by the prosecution of the 01:34 call from the deceased’s phone to Mariola. Ms Bennett-Jenkins qualified this in her oral submissions, explaining that the prosecution still left open the possibility that the appellant had made the call herself. However, it is clear to us that, as at the start of the case, the jury were not positively encouraged to conclude that the call must necessarily have been made by the appellant herself, rather than by someone with whom she was in cahoots. 36. In deciding whether to receive fresh evidence, we are required by section 23(2) of the Criminal Appeal Act 1968 to have regard in particular to: (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;(c) whether the evidence would have been admissible in the proceedings; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. 37. Plainly the evidence is capable of belief, and plainly it would have been admissible at the trial. The issues are whether there is a reasonable explanation for the failure to adduce the evidence at trial, and whether it appears that the evidence affords a ground for allowing the appeal. 38. Ms Bennett-Jenkins submits that because service of the telephone evidence was “drip fed” by the prosecution, with no full disclosure of all the material the defence requested until the trial was well underway, it was not appreciated by the defence that the prosecution expert had not checked and measured the “footprint” of the cells in question. Although he had prepared a report which was served, and we assume he was present for the evidence of the prosecution expert and available to give evidence himself, he had not addressed the issue raised in the fresh evidence. On behalf of the prosecution, it is pointed out that Mr Sexton’s report, which was served on 1 st May 2014, four weeks before the trial started, did make it clear what local survey data was relied on and made it clear that no survey measurements had been carried out. 39. We are not overly impressed by the explanation for failing to adduce this evidence at trial, despite the difficulties put forward. We strongly suspect that the main reason for not addressing the point sooner was the late change of instructions by the appellant in her amended defence statement (served mid-trial on 19 th June) that she was now blaming her brother Pawel for the murder and for the use of the deceased’s SIM card on this and other occasions. Despite our reservations on this first issue, however, we think that the more important question is whether the fresh evidence may afford any ground for allowing the appeal. 40. Ms Bennett-Jenkins pitched the argument very high. She contended in her advice in support of funding for this expert evidence that, if the point was substantiated, it would destroy the inference the prosecution asked the jury to draw from the circumstantial evidence, namely that the appellant killed the deceased. Her case was that her brother was the killer. This evidence demonstrated that her brother had made the call. The prosecution called the brother as a witness of truth. Had it been known from the outset that he had made this call, demonstrating that he was complicit in the pretence that the deceased was still alive, the prosecution would never have called him because he could not have been put forward as a witness of truth. The defence cross-examined him using cell site evidence and had shown him to be lying about where he was on the night of the murder. If it was impossible for the appellant to have made this crucial telephone call, that would provide new evidence to demonstrate that the appellant’s conviction is unsafe. 41. On behalf of the prosecution it is submitted that the call in question was a miniscule piece of evidence in an overwhelming case. It was not a crucial piece of evidence. It mattered not to the prosecution whether it was the appellant or someone acting on her instruction who made the call, and this had always been the prosecution’s stance. 42. It is submitted by the prosecution that there was other much more compelling circumstantial evidence. We have already set out that evidence at paragraph 4 above. 43. We accept the prosecution’s submissions. We do not think that this fresh evidence has the significance that is contended for. We do not think it is capable of affording a ground for allowing the appeal. The credibility of Pawel was much more effectively attacked by cross-examination about his movements on the night of the murder based upon the telephone schedule. The prosecution had never suggested that the call must have been made by the appellant herself and not by anyone else. It was perfectly open to the jury to conclude that the call had been made by her brother (or his partner) in pursuit of the common aim, with the appellant, of concealing the fact of the deceased’s murder. The fresh evidence does no more than reinforce that possibility. It does not undermine the powerful circumstantial case against her that she was the murderer. Conclusion 44. The appellant was rightly convicted of murder. The case against her, although circumstantial, was overwhelmingly strong. We are satisfied that none of the grounds advanced by Ms Bennett-Jenkins, individually or cumulatively, call into question the safety of her conviction. The appeal is dismissed.	{"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":["2014-07-15"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[43],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","DNA match","Victim testimony","Expert report/testimony","Cell site analysis","Circumstantial evidence"],"DefEvidTypeTrial":["Offender denies offence","Expert report/testimony"],"PreSentReport":[],"AggFactSent":["offence committed in victim's home","use of weapon (hammer)","attempt to conceal crime","use of victim's bank cards after death"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["admission of hearsay evidence","admission of bad character evidence","fresh evidence (telephone cell site analysis)"],"SentGuideWhich":["section 116(2)(a) of the Criminal Justice Act 2003","section 78 of the Police and Criminal Evidence Act 1984","section 101(1)(g) of the Criminal Justice Act 2003","section 23(2) of the Criminal Appeal Act 1968","section 74(3) of the Police and Criminal Evidence Act 1984"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["evidence properly admitted and directed","fresh evidence does not undermine conviction","overwhelming circumstantial case against appellant","no ground for appeal"]}
Neutral Citation Number: [2023] EWCA Crim 1477 Case No: 202301561 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BIRMINGHAM CROWN COURT JUDGE KUBIK Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/12/2023 Before : LORD JUSTICE WILLIAM DAVIS MRS JUSTICE FARBEY and HIS HONOUR JUDGE KEARL - - - - - - - - - - - - - - - - - - - - - Between : KHAN ABDUL Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Narita Bahra KC (instructed by Mi Solicitors ) for the Appellant Graham Russell (instructed by CPS Appeals and Review Unit ) for the Respondent Hearing dates : Thursday 30 November 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on 15 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. LORD JUSTICE WILLIAM DAVIS : The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act . We shall refer to the complainants in this case as C1 and C2. Introduction 1. On 13 April 2023 in the Crown Court at Birmingham (Her Honour Judge Kubik KC and a jury) Abdul Khan was convicted of assault by penetration and rape of C1 and rape of C2. His application for leave to appeal against conviction has been referred to the full Court by the Registrar. 2. Two issues have been raised by Narita Bahra KC on behalf of the applicant. First, it is said that there were failings by the prosecution in their disclosure duties, both general and particular, which mean that the trial was unfair and the convictions are unsafe. Second, when the jury were considering their verdicts, one juror sent a note to the judge complaining about the approach being taken to the evidence by the other jurors. It is argued that the judge failed properly to deal with the note. Rather than allowing the trial to continue, the jury should have been discharged. Moreover, since the trial, the juror who sent the note has written to the court setting out her concerns in greater detail. Ms Bahra submitted that the Criminal Cases Review Commission should be directed to investigate. In the first instance, that would involve the juror being asked questions to elucidate the matters set out in her letter. The factual background 3. The events involving C1 and C2 occurred in similar circumstances but approximately 3 years apart. In the early hours of 13 October 2019 C1 was in Pryzm nightclub in Broad Street in the centre of Birmingham. Her evidence was that she was very drunk. She recalled seeing the applicant in the nightclub. She then had a clear memory of being in the passenger seat of a car being driven by the applicant. The applicant had driven to an industrial estate at St Margaret’s Road in Washwood Heath which was about 4 miles away from Broad Street to the east of Birmingham city centre. He had parked the car. Once there, the applicant had put his hand under her clothing and forcefully inserted his fingers into her vagina. He then had got out of the car and walked round to the passenger side. He had opened the passenger door and forced his erect penis into C1’s mouth. C1 said that, after the oral rape, she had told the applicant that he could put his penis into her mouth again if he promised then to let her go. Her evidence was that she said this because she was afraid that the applicant was going to kill her. In the event, C1 was able to get out of the car and to seek help at a nearby house. 4. Abdul Barki lived at the house to which C1 went. His evidence was that, at around 3.20 a.m., he heard loud banging on the front door of his house. When he went to the door, he could hear a female screaming and saying “please let me in”. He opened the door to find a female who turned out to be C1. She seemed to be very scared. She was shaking. Mr Barki allowed her into the house. At her insistence he called the police. When the police arrived, they observed that C1 appeared to be very upset. She seemed to be intoxicated whether due to drugs or alcohol. C1 gave an account of events at the nightclub and in the car similar to the account she gave in evidence. 5. The applicant was arrested and interviewed on 16 November 2019. He said that he had met C1 in the nightclub on 13 October. He had never seen her before. They had danced and exchanged kisses in the nightclub. They had left together and gone to his car where there had been further kissing. The applicant explained that he then had driven to St Margaret’s Road which was a street known to him. What happened thereafter had been consensual. C1 had asked the applicant to insert his finger into her vagina. She had volunteered to perform oral sex on him. She only became upset when the consensual sexual activity was over. She said that she had a boyfriend, that she was religious and that the applicant was Asian. She then ran off. 6. The applicant was released from police custody for further investigation to take place. Whatever this investigation may have been, it did not progress to any further action against the applicant prior to September 2022. On 27 September 2022 C2 received telephone calls from the applicant. He said that they had met at Pryzm nightclub about six months earlier and that she had given him her mobile phone number. C2 had no recollection of this. She had only been to Pryzm on one occasion and did not recall meeting the applicant there. In any event the applicant asked C2 if she wanted to “hang out”. She agreed but wanted the applicant to understand that nothing sexual would happen between them at their meeting. She said that they could go to see her friend, Kayleigh. The applicant picked up C2 at around 5 p.m. in his car from the college she attended in Staffordshire. They drove into Birmingham. On the journey he offered her nitrous oxide, commonly known as laughing gas, which she inhaled. It made her forget temporarily where she was. The applicant drove into an alleyway off St Margaret’s Road in Washwood Heath. He got out of the car and went to a nearby building, telling C2 that he had to open up the place. C2 followed him because she needed to use the toilet. After she had done so, she sat on a settee in the building. The applicant offered her cannabis to smoke. She accepted. Her evidence was that he then tried to kiss C2. C2 said “no”. The applicant became angry. He suddenly stood and got undressed. His penis was erect. He got on top of C2 and tried to kiss her face and neck. She tried to push him away. She kept saying “I don’t want to do this, get off me”. The applicant ignored her. He pulled down her jogging bottoms and pants and he raped her. When she tried to struggle, the applicant put his arm around her neck causing her difficulty in breathing. Eventually the applicant withdrew his penis and ejaculated on C2’s jogging bottoms. 7. Because she felt she had no other option, C2 accepted a lift from the applicant back to where she was staying i.e. the YMCA in Birmingham. She went to the room of her friend, Kayleigh. She told her friend what had happened. The applicant had visited the YMCA later that evening. He asked to speak to C2. The person on the reception desk spoke to Kayleigh who said that C2 did not want to see or speak to the applicant. He then left the YMCA. Next day she spoke to a support worker at the YMCA and gave an account of the events in Washwood Heath which was similar to what she later was to say in evidence. 8. The applicant was arrested on 4 October 2022. He said that he had met C2 via Snapchat. They made arrangements to meet. Their purpose was to have sex. They went to the premises at St Margaret’s Road. C2 had agreed to this. The sexual activity which followed was entirely consensual. The applicant described it as rough sex. C2 had asked to be dropped at the YMCA. The applicant had done so. According to him they had agreed to meet again later in the evening. He had gone back to the YMCA later because he had been concerned for C2’s welfare. He had seen an ambulance outside and he was worried about the effects of nitrous oxide. 9. The applicant did not give evidence at his trial. He relied on the contents of his interviews with the police. His case was that all sexual activity with C1 and C2 was consensual. Their later allegations of penetrative sexual assaults were false. The prosecution relied on the fact that two young women who had no connection quite independently had complained of serious sexual assaults in the area of St Margaret’s Road. This could not reasonably be explained as being a coincidence. Disclosure 10. The trial commenced on 27 March 2023. The applicant’s solicitors had served a defence statement on 9 February 2023. In terms of the case being raised by the applicant, the defence statement mirrored what the applicant had said in his police interview. The primary issue in relation to each complainant was consent. Requests for disclosure were made in relation to the medical history of each complainant, any material relevant to the credibility of any witness and what CCTV was missing and the steps taken to find it. 11. On 10 March 2023 an application pursuant to section 8 of the Criminal Procedure and Investigation Act 1996 was served. The application referred to a wide range of material. Whether there had been a request for disclosure of this material which had been refused is not clear. In any event a request for disclosure raising a significant number of further points was served. Many of the points had no relevance to the issues in the case. Not all of the request was easy to follow. For instance, paragraphs 12 and 13 read as follows: “Confirmation of whether ? was spoken to by the police? If so, any notes of what this witness stated? Why was no statement taken from ?” 12. Three days later on 13 March 2023 another request was made. This posed questions such as “Was a witness statement taken from Kayley Sadler? If not, why not? Was Lucy Satchwell spoken to by the police? If so, provide a copy of police notes of contact with Lucy Satchwell.” Again many of the requests appeared to bear no relation to the issues raised in the defence statement. 13. The final request for disclosure was made four days before the start of the trial. This asked for details of how the two disclosure officers who had been involved at different stages of the investigation had carried out their duties and, in particular, where and how CCTV footage which had been thought to have gone missing was located. 14. Where requests were made without any reference to the issues in the case and/or in connection with the process of disclosure, no material was disclosed. The section 8 application which had been served on 10 March 2023 was never pursued before the trial judge. No other application was made to the judge in relation to disclosure. Thus, if there were any failings in disclosure, these were not put before the judge for determination. 15. Three grounds of appeal relating to disclosure are set out in the written grounds. The general ground put forward is that “the status of the disclosure exercise in this case is incomplete and there were substantial failings by the prosecution”. The specific matter relied on is that contact between the officer in the case (D.C. Powell) and the complainants/witnesses was recorded on his computer but this contact was not disclosed. It is said that this caused prejudice to the applicant’s defence. The other two grounds relate to D.C. Powell. Complaint is made that the judge refused to order him to be recalled for further cross-examination about an e-mail he had sent to the Crown Prosecution Service. It is further said that the judge failed to direct the jury about the failings of D.C. Powell in relation to disclosure and/or to sum up the evidence relating to those failings. 16. In her oral submissions Ms Bahra argued that there were clear failings on the part of the police and thereby the prosecution in relation to disclosure. Having identified the particular failings (to which we will turn shortly), she said that they were sufficient to cast doubt on the entire process of disclosure. Although she could not specify matters beyond the specific failings which emerged in the course of the trial, she submitted that the convictions had to be regarded as unsafe because there could be no confidence in the disclosure process. She said that it was wrong to put the onus on the defence which was the approach taken by the respondent when it was said that the absence of any section 8 application to the judge undermined the criticisms now being made. 17. We have no hesitation in rejecting that overarching submission. Issues relating to disclosure arose in the course of the trial. Whether they were dealt with appropriately is something to which we will turn. If they were not, they might provide the basis for an argument that the verdicts were unsafe. But, if the issues were resolved one way or the other at the trial, it cannot now be said that, because disclosure was problematic during the trial, there must be failures of disclosure which are still hidden and which would render the verdicts unsafe were they to become apparent. That proposition would be wholly speculative. There are cases where, after the trial, material emerges which, had it been known to the defence at the time of the trial, would have been deployed to undermine the prosecution case and/or to bolster the defence case. This court is then required to consider whether the existence of the material renders the verdicts unsafe. This is not such a case. We are being invited to guess at what might be in the possession of the prosecution which would affect the safety of the convictions. That is not a permissible approach. 18. We nonetheless must consider the particular issues which arose in the trial. First, it became clear that D.C. Powell had had e-mail contact with C1. This emerged when C1 was cross-examined about her level of intoxication. A urine sample had been taken from her which on analysis appeared to show that the level of alcohol was relatively modest. This was inconsistent with her evidence that she was very drunk. Ms Bahra began to cross-examine C1 about her level of intoxication. C1 interrupted the questions to say that she had taken antihistamine before going out on the evening in question, that antihistamine can react with alcohol and that this could explain why she felt drunk. On further inquiry with the witness, it emerged that D.C. Powell had e-mailed C1 at some point prior to the commencement of the trial and told her of the results of the urine analysis. There is no ground of appeal relating to what D.C. Powell told the witness. It is not said that what he did rendered the trial unfair or the verdicts unsafe. In the respondent’s notice it is argued that there is no good reason why someone in C1’s position should not be informed of toxicology results. It is not necessary for us to reach any conclusion on the issue. It has not been relied on as a basis for impugning the conduct of the police officer. Rather, it is said that the contact between D.C. Powell and C1 (and other witnesses) was not disclosed. The particular contact to which we have referred emerged by chance. None of the other e-mails or messages was disclosed. 19. When it became apparent that there had been contact between D.C. Powell and the witnesses, a fact which could not have come as a surprise given that he was the officer in the case, there was no further request for disclosure. The request on 13 March 2023 had included a request for disclosure of “logs of police officers dealings with complainants”. So far as we are aware, no such logs were disclosed at any point. Of itself, that is not of any significance. The prosecution had a continuing duty to disclose any material which might undermine their case. In the context of this prosecution, that would be anything which might affect the credibility of the complainants. After the e-mail contact became known, there was no reference by the defence to the request on 13 March. There was no application pursuant to section 8 of the 1996 Act . There is nothing in the contact about which we do know – the e-mail telling C1 about the toxicology result – which could be relevant to C1’s credibility. In the circumstances we have no reason to believe that the e-mail contact did contain undermining material. Whilst the duty to disclose lies on the prosecution, it is relevant that a request for disclosure had been made but no application was made thereafter to the judge pursuant to section 8 . That gives an indication of the view taken at the trial of the significance (or otherwise) of the contact between the police officer and the witnesses. 20. The second issue relates to a statement from a Mr Mujtaba. Until very shortly before the trial, the prosecution had not disclosed the 2019 CCTV footage from the nightclub. It had been available but the prosecution had failed to adjust the search parameters in respect of the relevant computer system. The footage eventually retrieved showed the applicant and C1 inside the nightclub and immediately outside the nightclub after they had left together. Visible on the footage was Mr Mujtaba. He was a friend of the applicant. The applicant had been aware of his presence on the night in question. The crime log kept by the police officer who was in charge of the case prior to the events relating to C2 (not D.C. Powell) had an entry which indicated that Mr Mujtaba had made a statement to the police. This statement was not disclosed. When D.C. Powell gave evidence, he was cross-examined about the statement. He refused to accept that his predecessor must have taken or caused to be taken a statement from Mr Mujtaba. In re-examination D.C. Powell accepted that the crime log showed that such a statement existed. He said that he had taken no steps to retrieve it. Once his evidence had been completed, D.C. Powell did retrieve the statement. On 4 April 2023 it was disclosed to the defence. Mr Mujtaba was summoned to give evidence the next day. His statement referred to video material he had taken on his mobile telephone. He had not retained this material which was a Snapchat video. The police had taken a copy of it. At the point at which Mr Mujtaba’s statement was disclosed, the copy of the video could not be located. 21. Mr Mujtaba was called to give evidence on behalf of the applicant. Ms Bahra was still examining him in chief when she was informed that the copy of the Snapchat video had been found. The judge permitted a break in the evidence whilst Ms Bahra watched the video material. Having viewed it, Ms Bahra continued her examination of Mr Mujtaba in the course of which she played the video material. 22. We do not know what Mr Mujtaba said in his evidence before the jury. However, we have a copy of his witness statement. In his statement he described the behaviour of the applicant with C1 which appeared to be friendly. The two of them were standing very close to each other and laughing and talking. The applicant then left with C1 holding her hand. There is no reason to suppose that he said anything to contradict that in his oral evidence. We have not seen the video material. Ms Bahra submits that, had the video material been disclosed with the witness statement, Mr Mujtaba would not have been called. This submission is put baldly. Why disclosure of the video material would have had that result is unclear. It was suggested in the course of the hearing that the material provided some ambiguity as to the nature of the interaction between C1 and the applicant. Beyond that we were not given any detail of its damaging effect. We have seen stills from the CCTV footage from the nightclub. There is nothing in that footage which shows anything adverse to the applicant. 23. If the video material was adverse to the interests of the applicant, it is not clear to us why in itself it was disclosable material. If that were the situation, what if the statement and the video material had been available to the prosecution from the outset? We cannot see that the prosecution then would have been obliged to disclose the video material. The defence would have been on notice that calling Mr Mujtaba presented a risk and a decision might have been taken not to call him. What happened was not a deliberate failure or refusal to disclose material. Rather, there was incompetence on the part of someone in failing to find the material until the very last minute. 24. In her written submissions Ms Bahra said that the late disclosure “caused prejudice to (the applicant’s) defence”. We are not persuaded that there was any such prejudice. However late the disclosure may have been, it was made eventually. The applicant was able to call the witness, a witness whose identity was always known to him. Nothing in relation to Mr Mujtaba led to unfairness of a kind which affected the safety of the convictions. We observe that no application was made to the judge following the late disclosure of the video material. The respondent submitted in the course of the hearing that there could have been an application to exclude the material pursuant to section 78 of the Police and Criminal Evidence Act 1984 . That submission was misconceived. Section 78 is concerned with evidence upon which the prosecution proposes to rely. At best the prosecution would have used the video material in the course of cross-examination of a defence witness. That would not have brought the material within section 78 . However, the judge could have been asked to prevent the prosecution from using the material pursuant to her inherent jurisdiction to maintain the fairness of the trial. Had it been thought that the effect of the material was sufficiently damaging, application could have been made to discharge the jury. In the event, the defence decided to play the material to the jury during the witness’s evidence in chief. 25. The third issue is connected to the events surrounding the disclosure of Mr Mujtaba’s statement. Before he gave evidence, Ms Bahra invited the judge to inform the jury in some way that the statement had only been disclosed the day before. The judge declined to give any direction or require the prosecution to make an admission to that effect. Once the witness had given evidence, the prosecution made admissions in relation to the witness’s statement. The jury were told that the police had taken a statement from him in about October 2021 but that the statement had not been disclosed to the defence until 4 April 2023. Further, the video material produced by the witness was not disclosed to the defence until the witness was part way through his evidence. 26. None of the foregoing provides a basis for any legitimate complaint. The ground of appeal which arises from the evidence of Mr Mujtaba is that the judge erred when she did not order D.C. Powell to be recalled for further cross-examination arising from the content of the e-mail he sent to prosecution counsel which accompanied the Mujtaba video material on the morning of 5 April 2023. D.C. Powell already had been cross-examined in relation to disclosure issues. As well as the e-mail contact he had had with the complainants, the late disclosure of 2019 CCTV footage from the nightclub and the existence of a witness statement from Mr Mujtaba, he was asked about the failure of the police to preserve CCTV footage from the YMCA which was relevant to the events concerning C2. The purpose of the cross-examination was to establish that the disclosure exercise had been conducted inadequately and without a full appreciation of the duties which lay on the prosecution. Whether that assisted the jury in determining the core issues, namely whether C1 and C2 had consented to sexual activity with the applicant, is not for us to say. What is clear is that the nature and extent of the disclosure exercise was fully ventilated before the jury. 27. The e-mail D.C. Powell sent to prosecution counsel enclosing the Mujtaba video material included this sentence: “I cannot believe there was no mention of these on the report though I believe they will assist us more than him because she does not look like she is happy”. Ms Bahra wished to cross-examine D.C. Powell about this comment. She proposed to ask whether it represented his understanding and approach throughout in relation to disclosure. The judge refused to permit the cross-examination of D.C. Powell to be re-opened. We do not have any record of her ruling. The application in writing asserted that the content of the e-mail was “astounding”. It described the highlighted words as “alarmingly concerning”. It was said that they showed that D.C. Powell had no understanding of his duty when investigating a crime alleged against a man of previous good character. We consider that this does not follow from the content of the e-mail which, it is necessary to remember, accompanied material which was being disclosed. On the face of it the police officer was commenting that the video material arguably did not assist the defence. For what it is worth his view was the same as was suggested on behalf of the applicant during the hearing. This casual comment did not provide any proper basis for an assertion that he did not understand the disclosure process. 28. In any event, the officer had been cross-examined at substantial length at an earlier point in the trial. Insofar as the jury were assisted by evidence on this question, they had ample material with which to work. Cross-examination about the e-mail accompanying the Mujtaba video material would not have provided any assistance which they did not already have. Even if there were a sustainable argument that the judge ought to have permitted such cross-examination, the judge’s decision could not be said to have rendered the trial unfair. 29. The final point raised in relation to disclosure relates to the way in which the judge summed up the disclosure issues to the jury. The judge split her summing up. She directed the jury on issues of law. We have a transcript of those directions. Thereafter counsel addressed the jury. We are told that both counsel dealt with the issue of disclosure. The prosecution acknowledged that there had been unexplained and inexcusable delays by the prosecution between the events in 2019 concerning C1 and the complaint made in 2022 by C2. They accepted that there had been errors in disclosure, in particular the loss of CCTV footage and the late disclosure of a witness statement and video material. As for the defence, to quote from the grounds of appeal “the defence closing address focused on the investigatory, disclosure failings and missing information identified during the trial process, in the case brought against a man of good character”. 30. Unfortunately we do not have any record of the second part of the judge’s summing up which dealt with the evidence. Whether because of a failure of the recording system or some other reason, no transcript is available. It is said that the judge did not deal with the evidence elicited from D.C. Powell in cross-examination. She did not summarise “the key failings” of the officer nor did she direct the jury as to the potential effect of such failings on the ability of the defence to meet the prosecution case. Because we do not have a transcript, we do not know what (if anything) the judge said about D.C. Powell’s evidence. The safest course is to assume that she said nothing. The respondent’s notice does not suggest otherwise. We do not know whether the judge was invited by the defence to add to her summary of the evidence. It is not suggested in the grounds of appeal that she was and that she declined the invitation. In those circumstances, we proceed on the basis that nothing was said to the judge drawing her attention to the lack of reference to D.C. Powell’s evidence relating to disclosure. 31. The purpose of a summing up of the evidence is to deal with the significant parts of the evidence going to the real issues in the case. The almost invariable judicial preface to that part of the summing up is an indication to the jury that the summing up will be selective in terms of the evidence to which it will refer and that they should take into account all of the evidence insofar as it assists them in reaching verdicts in accordance with the judge’s directions of law. It has not been suggested that the judge departed from such an introduction. We shall assume that the jury were directed in those terms. 32. Where a particular factual issue has been dealt with at length in closing either by the prosecution or the defence or both, this may mean that a failure by the judge to deal with the issue is of no material significance in relation to the fairness of the trial or the safety of the verdicts so long as the issue is not of central importance. In this case, it is not suggested that the judge failed to deal with any matter which went directly to the credibility of C1 and/or C2. Nor is it said that she failed to explain how the jury should approach issues such as C1’s distress as seen by Mr Barki or the complaints made by C2 to her friend, Kayleigh, and to the support worker at the YMCA. Those were matters on which directions to the jury were essential. The evidence concerning disclosure was not central to the jury’s task. In the respondent’s notice it was described as being “of nugatory value”. We consider that this is too dismissive. However, the evidence was collateral to the principal issues in the case. The evidence had been dealt with at length in counsel’s speeches. In those circumstances we are satisfied that the judge’s failure to deal with it did not cause unfairness or render the verdicts unsafe. Had it been otherwise, the judge would have been asked to remedy the position at the conclusion of her summing up. 33. For all these reasons we conclude that none of the matters relating to disclosure gives rise to any arguable ground of appeal. The jury in retirement 34. The jury retired to consider their verdicts at some point on 11 April 2023. On the morning of 13 April 2023 when they had been deliberating for over a day a juror sent a note. It read as follows: "I don't feel that the trial has been fair to Mr Khan because it seem the jury has racially profiled him without even considering the evidence. I have not felt comfortable for the last two days at all, from the moment we went into initial deliberation. All other 11 members within 15 minutes had made a decision. This did not sit right with me, nor did it did it make sense a two-week trial led to a 15-minutes decision." 35. Ms Bahra submitted that the judge should investigate the position with the individual juror whether addressing her in person in court or by seeking further details in writing from the juror. 36. The judge declined to follow that course. Adopting a sequential approach, she applied CPD Part VI 26M which was the practice direction then in force. She determined that it was not necessary or correct to seek further detail of the matters set out by the juror in the note. She said that there had been no suggestion of any inappropriate racial comment or any overt racial overtone to the jury’s deliberations. Her conclusion was that the best way forward was to ask the jury as a whole whether they considered that they could try the defendant on the evidence without any bias. She had been referred to Skeete [2022] EWCA Crim 1511 where that procedure had been adopted and approved. Although the nature of the note in Skeete was different, the court in Skeete had in mind cases where issues of racial bias had arisen. 37. The judge set out the questions which would be put to the jury in writing for each juror to consider individually. They were as follows: “Have you followed my legal directions throughout the trial? Have you throughout the trial remained faithful to your oath or affirmation to try this case fairly and come to a verdict based only on the evidence and without any racial bias? Do you feel able to continue and remain faithful to your oath or affirmation without racial bias? If the answer to any question is no, you must say so. If the answer to those questions is yes, would any verdict you may come to be based solely on the evidence without racial bias?" 38. Ms Bahra said that she did not consider that the jury, given what they know the consequences would be, would answer those questions truthfully. She foreshadowed an application to discharge the entire jury. However, she accepted that, if a series of questions was to be posed, the judge’s formulation was appropriate. 39. The judge decided that it would not be appropriate to read out the note in full. The issue which required elucidation was whether racial profiling could be excluded as playing a part in the jury’s deliberations. Reference to jurors having reached a quick decision would not assist in that task. Thus, when the jury were brought into court, the judge explained the delay by saying “…The reason why there's been a delay is because I've received a note from one of you raising concerns about potential racial profiling or bias”. She went on to emphasise that the jury had to consider the case without reference to any prejudice or bias. Rather, their verdicts had to be based on the evidence they had heard. The jury then were given copies of the questions so that each juror could answer the questions in writing. They went to their room in order to do so. It was by now close to 1.00 p.m. The jury returned the documents setting out their answers to the questions within a few minutes. All of the jurors answered every question in the affirmative. However, one juror had added a rider to her answers, namely "I do not feel comfortable deliberating with the jury further”. 40. At Birmingham Crown Court juries routinely are released from their deliberations over the lunch adjournment. Therefore, the jury did not deliberate any further once they had answered the questions posed by the judge. By the time the court was ready to sit again after lunch, the juror who had sent the first note had sent another note. It read: “I do not want to continue my jury any further. I don't feel comfortable. It's mentally affected me. Please retire me. I simply can't do it no more.” The judge concluded that this did require an inquiry of the individual juror. The juror came into court on her own. The judge asked the juror two questions, namely “are you able to carry on and focus on the evidence and return a verdict according to your evidence without any racial or any other sort of bias? And are you able to concentrate on that task in order to reach a verdict one way or the other?” The transcript did not record the juror’s response. Presumably the juror was not close enough to a microphone. However, the juror was then asked to go behind the door leading into the jury area. The judge said that the juror had given a clear indication she could no longer adhere to her oath to return a verdict according to the evidence. Both counsel agreed that this was the effect of what the juror had said. Both counsel agreed that the juror had to be discharged. Ms Bahra submitted that the jury as a whole should be discharged. The judge disagreed. In the event the jury continued with their deliberations as a jury of 11. They reached unanimous verdicts very shortly after the discharge of the juror who had sent a note. 41. Two grounds of appeal are put forward arising from the events of 13 April. First, the judge erred in failing to make adequate enquiry of the juror who sent the first note. Second, the judge should have discharged the whole jury whether upon receipt of the first note or once it became apparent that the juror who had sent the note was not able to continue serving on the jury. It is argued that the judge ought to have enquired of the juror what was meant by “….the jury has racially profiled (the applicant) without even considering the evidence….” Ms Bahra acknowledges that any inquiry into the deliberations of the jury ordinarily would be impermissible. However, such inquiry can be undertaken when it emerges that there may have been a complete repudiation by the jurors (or some of them) of their oath to try the case according to the evidence. Given the judge’s decision not conduct that inquiry, she ought to have discharged the entire jury. The exercise conducted by the judge could not remedy the mischief revealed by the juror’s note. 42. In our view the judge dealt with the first note sent by the juror in an entirely appropriate manner. The note referred to the juror’s discomfort from the point at which the jury had begun to deliberate. Therefore, any further inquiry of the juror prima facie was bound to trespass into forbidden territory. The rationale for the bar on any such inquiry was set out recently in R v Essa [2023] EWCA Crim 608 at [32]: The reason for the common law principle to which we have referred is that it is a necessary and integral part of the jury system that the deliberations of a jury must remain confidential. Without that general rule, the jury system would be seriously undermined. Those summoned to perform jury service would do so in a state of constant anxiety as to whether anything said during their deliberations would, without more, become the subject of speculation and perhaps investigation. The exceptions to the rule are accordingly narrowly defined, and it will only be in the most exceptional circumstances that this court will direct an inquiry into how a jury's verdict was reached. 43. The thrust of the juror’s concern was the fact that the other members of the jury apparently had reached a decision very quickly which the juror felt was wrong. Her reference to “racial profiling” was equivocal. In those circumstances, the approach taken by the judge met the requirements of justice. In Gregory (1998) 25 EHRR 577 a note was received from the jury when they were deliberating in these terms: JURY SHOWING RACIAL OVERTONES. 1 MEMBER TO BE EXCUSED. The trial judge in that case dealt with the matter by giving firm directions to the jury about their duties as jurors to reach a verdict based solely on the evidence. His approach was approved by the Court of Appeal and the court in Strasbourg. The judge in this case went further than the judge in Gregory even though the note with which she was dealing arguably was less explicit than the note in Gregory . The jury here were informed that an issue had arisen in relation to possible racial bias. In that context, they were asked a series of questions designed to identify if such bias might be playing a part in their consideration of the case. We do not accept Ms Bahra’s argument that jurors would not answer the questions truthfully. If the judge had dealt with the situation simply by giving clear directions to the jury, she could not have been criticised. It could not have been argued that the jury would have ignored the directions. That would be to prejudge the jury’s views. In fact, the judge both gave such directions and administered the questions. We consider that the course she adopted met the situation fully. 44. We do not accept the submission that the whole jury should have been discharged. When the note was first received, this step would have been grossly premature. The discharge of the juror who had sent the note did not change the position. She had said that she could no longer adhere to her oath as a juror. That meant that she could not continue. The other jurors had said that they could reach verdicts being faithful to their oath to try the case on the evidence as opposed to any prejudice or bias. The discharge of the single juror did not affect their position. 45. We conclude that no arguable ground of appeal arises from the events of 13 April 2023. Post conviction letter from the juror 46. After the trial the Crown Court at Birmingham received a letter from the juror who had sent the first note and who subsequently was discharged from the jury. The letter inter alia stated: 47. “….some members of the jury had racially profiled Mr Khan and pushed others for a guilty verdict. The reason I say this is because early in the trial I heard a few jury members talking as we were leaving court and overheard them say “it’s the same kind”, “they should all be deported, it would be easier” following this comment they laughed and giggled and I was left speechless with my head hanged down. After hearing these words and the trial resuming, I was left disgusted but not sure what to do as we were not allowed to discuss the case. What shocked me even more was that before we even got into deliberation the case was being discussed by the others in the jury, making passive remarks on a daily basis.. They were discussing openly and they are going to give a guilty verdict for Mr Khan which I thought was very unjust. I did not speak to anyone about this as I did not know what to do as we are under oath. 48. On the 12 th April 2023 we went into deliberation and within 15 minutes the jury found Mr Khan guilty. There was a lot of pressure from certain jury members who were stronger and I felt like others just felt forced to follow suit. I was the only person who said I did not agree with the decision I was being forcefully persuaded by other more stronger members very aggressively….in my opinion he (the applicant) deserved another trial on the basis that all the evidence was not considered and that the judge/jury was biased & racist & that it wasn’t fair.” 49. Ms Bahra submits that this letter requires investigation by the Criminal Cases Review Commission. In the first instance the juror should be asked a series of questions designed to elaborate on what she has said in her letter and thereafter should be invited to make a witness statement encompassing the contents of her letter together with any additional information. In the course of the hearing we asked Ms Bahra what the next step thereafter would be assuming that her witness statement was in line with the contents of her letter. She said that the other jurors would have to be interviewed by the CCRC and that the court thereafter would have to consider what evidence, if any, should be called at a further hearing. 50. This approach inevitably would lead to an investigation into the deliberations of the jury. We repeat the reasoning for such an investigation being forbidden save in exceptional circumstances. The two examples given in Thompson [2010] 2 Cr App R 27 of where this might be permissible are where there is evidence of a complete repudiation by the jury of their oath to reach verdicts based on the evidence and where there is evidence that the jury considered extraneous material from the internet or the like. The former situation will arise for example where the jury has tossed a coin to decide on the verdict or used a Ouija board. The events described in the juror’s letter do not come near either of the situations in which an investigation into the jury’s deliberations might be permitted. The gathering of evidence by the CCRC inevitably would be a fruitless task. 51. The high point of the juror’s allegations of racial bias was her overhearing members of the jury making comments that appeared to have a racial connotation as they were leaving court at an early stage of the trial. Whether these comments were directed at the applicant in particular or were merely more generally derogatory is impossible to say. The juror’s letter does not allege any further reference to race. She speaks of jurors discussing what the verdict would be prior to their retirement. She refers to some jury members being stronger in character than others who placed pressure on other members of the jury. Her core complaint – just as in the note she sent on the morning of 13 April – was that the other members of the jury reached a verdict very quickly in a case where she thought that there was some merit in the defence. This does not require any further investigation by the CCRC. The letter does not provide any basis for a conclusion that the jurors who convicted the applicant were or might have been biased. Conclusion 52. In October 2019 C1 was taken to a quiet area in Washwood Heath after she had met the applicant for the first time in her life at a nightclub in Birmingham. After sexual activity between them, she ran to a nearby house of a complete stranger in a distressed state. She demanded that he call the police. As soon as the police arrived she said that the sexual activity had been non-consensual. In September 2022 C2 was taken to the same area in Washwood Heath. She had never met the applicant before so far as she was aware. After sexual activity she very quickly told a friend that she had been raped. C2 made her allegation wholly unaware of C1’s allegation. C1 and C2 did not know each other. The applicant did not give evidence at his trial. Given those circumstances it would not be surprising for a jury to reach a conclusion adverse to the applicant within a relatively short time. 53. For all the reasons we have given, we are satisfied that there are no arguable grounds of appeal. We refuse the application for leave to appeal against conviction.	{"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2023-04-13"],"ConvictOffence":["assault by penetration (C1)","rape (C1)","rape (C2)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking&drugs"],"ProsEvidTypeTrial":["Victim testimony","CCTV","Toxicology report","Witness testimony (Mr Barki, Kayleigh, support worker)"],"DefEvidTypeTrial":["Offender denies offence","Police interview (defendant's account)","Defence witness (Mr Mujtaba)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no relevant previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Failings by prosecution in disclosure duties rendered trial unfair","Jury deliberations: alleged racial bias and inadequate judicial response"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No material disclosure failings affecting safety of conviction","Judge dealt appropriately with jury note and allegations of bias","No basis for further investigation into jury deliberations","No arguable grounds of appeal"]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 201902422/B5 NCN: [2021] EWCA Crim 318 Royal Courts of Justice Strand London WC2A 2LL Thursday 25 February 2021 LORD JUSTICE DAVIS MR JUSTICE SPENCER MR JUSTICE BOURNE REGINA V “T” Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) MS S SHOTTON appeared on behalf of the Appellant. MS R KARMY-JONES QC & MS B CRIPPS appeared on behalf of the Crown. J U D G M E N T NOTE: the original version of this judgment has been revised to ensure anonymity of the complainant, and in compliance with the provisions of the Sexual Offences (Amendment) Act 1992 . Introduction 1. LORD JUSTICE DAVIS: After a trial at the Lewes Crown Court (sitting at the Hove trial centre) the appellant was convicted on 31 May 2019 of two counts of rape. The complainant was a woman to whom at the time he had been married. The issue on this appeal, for which leave was granted by the Full Court, is whether he, by his counsel, was wrongly precluded from putting certain questions to the complainant in cross-examination. That issue in turn involves, amongst other things, consideration of whether sexual orientation or sexual identification could, in the circumstances of this case, constitute "sexual behaviour" for the purposes of section 41 of the Youth Justice and Criminal Evidence Act 1999 (to which we will refer as " the 1999 Act "). Background facts 2. The background facts, in summary, are these. 3. The complainant had been the appellant's second wife. They had met in 1999 when they were members of the same church in the North of England. He was a significant number of years older than her. They subsequently moved to live in Sussex. They married in July 2002 but were divorced in November 2010 after separating in 2009. 4. Following the divorce the appellant had continued to contact the complainant by text message. During the course of 2016 and 2017 he sent her a large number of text messages, many of which were explicitly of a sexual nature and many being sent late at night or in the early hours of the morning. She asked him to stop but he continued to contact her. At all events, on 6 June 2017 the complainant made a formal complaint to the police about the abuse which she alleged she had suffered during the course of the marriage. The appellant was interviewed on 22 September 2017. He denied all the allegations of abuse which had been made although he admitted having sent the text messages. 5. The prosecution was to say at the trial that the appellant had had sexual intercourse with the complainant during their marriage on three occasions when he was drunk and when she had not consented. This was said to have occurred in the context of a marriage alleged to have been one in which the appellant had been controlling and in many ways otherwise abusive towards the complainant. 6. The defence, on the other hand, in a nutshell, was that all sexual activity in the marriage had been consensual and was part of a loving relationship. Furthermore, it was said that in so far as alcohol had played its part, if he did drink too much on occasion then that would simply make him sleepy. As to the text messages, he said that they were in the context of seeking to maintain a friendship with the complainant after the marriage ended. In short, the allegations of rape were said to be simply false. 7. So far as the first alleged rape was concerned (count 2 on the indictment) the complainant was to say in evidence at trial that the appellant had been drinking and had become aggressive and verbally insulting. At one stage he fell onto a printer, after which he agreed to go to bed. She waited a bit before going to bed herself. According to her, the appellant then tried to kiss her and climb on top of her and carried on and ignored her when she said that she did not want to do it. She tried to keep her legs close together but he forced them apart, pulled off her underwear and then penetrated her whilst holding her arms back. She was unable to stop him. After he ejaculated he then rolled off and went to sleep. According to her, when she raised it with him the next morning he told her that nobody would believe her and she was to be careful about what she was implying. 8. So far as the second alleged incident of rape was concerned, on the complainant's evidence the background was broadly similar. Again the appellant had been drinking heavily during the course of the evening, became aggressive, domineering and insulting and then tried to kiss her when they were in bed. When she said "no" he continued, he forced her legs apart and penetrated her and then after ejaculating fell asleep. The third alleged incident of rape, which seems to have been altogether more briefly covered in evidence, took a broadly similar course according to the complainant. 9. She was also to say in her evidence that there had been other occasions when she had said "no" but she had not resisted as she became resigned to what was going to happen. She further accepted in the course of her evidence that she frequently had consensual sex with the appellant during this period, both before and after the alleged rapes, and indeed, she had wanted to have a baby with him. 10. The prosecution also adduced evidence of complaints, some relatively recent, others not. For example, one witness had been a chaplain at Liverpool Airport who said that she had met the complainant in 2007. According to that chaplain the complainant disclosed to her that she was being sexually assaulted. The chaplain was sure that this was before the end of the marriage and before the complainant had left the appellant. Further, in a letter of 22 July 2009 from the complainant to her doctor, details were given of the incident which were said to form the subject matter of the first count of rape. Further, a Mr X, a Church Minister and in effect the complainant's mentor, who had married the appellant and the complainant, said that the complainant had contacted him in 2010, in a state of distress and had subsequently disclosed to him in 2011 that she had been raped by the appellant. 11. Another witness said that she had known the complainant for many years through the church in the North of England. Her evidence was that she noticed a total change in the complainant's character when she returned there in May 2007 and appeared withdrawn and cowed. Later, in around 2014 or 2015, according to this witness, the complainant began to disclose that her marriage had not been good and she later told her that she had been raped. There was also evidence from a domestic violence adviser who met the complainant in January 2017. She was to say that the complainant disclosed to her that the abuse started gradually after the marriage in 2002. 12. The appellant gave evidence himself. He was a man of ostensibly impressive good character, leaving aside the text messages. He had been, amongst other things, a magistrate and a head teacher as well as being closely involved in church matters. He was to say that he had supported the complainant during the marriage and he denied being controlling or abusive. He said that he had never had sexual intercourse with her without her consent; he had never pinned her arms down during sex; she had never said "no"; and he had never forced her legs apart. He said that he was ashamed by his sexually explicit text messages sent in 2016 and 2017, which he said were completely unlike him. He said that he did not have a problem with alcohol but, on those occasions where he did drink too much, it would simply make him sleepy. In short, the allegations of the rape made by the complainant simply did not happen. 13. The appellant's current wife also gave evidence for the defence. She described the appellant as being "kind and generous", they had a normal and loving sex life and he had never been physically or verbally aggressive towards her. She further said that on those occasions when he drank alcohol he would simply become lethargic and fall asleep. Application and Ruling at trial 14. During the course of the trial before HHJ Henson QC and a jury the defence made a written application seeking leave to put certain questions to the complainant in the course of cross-examination. The application was made specifically under section 41(3) (a) of the 1999 Act . Reliance to some extent was also placed on section 41(5) , although that in due course rather fell away. 15. Section 41 of the 1999 Act provides as follows: i. " Restriction on evidence or questions about complainant’s sexual history. ii. 41. (1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court— (b) no evidence may be adduced, and (c) no question may be asked in cross-examination i. by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. ii. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied— (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. iii. (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either— (a) that issue is not an issue of consent; or (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or (c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar— (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or iv. (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event v. that the similarity cannot reasonably be explained as a coincidence. vi. (4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. vii. (5) This subsection applies if the evidence or question— (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and (b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused. viii. (6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate). ix. (7) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence— (a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but (b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge. x. (8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section." 16. Also highly relevant to this appeal are the interpretation provisions contained in section 42(1) of the 1999 Act . That provides as follows: i. "Interpretation and application of section 41 . ii. 42. (1) In section 41 — (a) 'relevant issue in the case' means any issue falling to be proved by the prosecution or defence in the trial of the accused; (b) 'issue of consent' means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented); (c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3) (c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused; and (d) subject to any order made under subsection (2), 'sexual offence' shall be construed in accordance with section 62." 17. The questions which counsel, Ms Shotton, appearing for the appellant at trial as before us on this appeal today, wished to put to the complainant were set out in the course of her written application submitted to the judge. In the relevant respects for the purposes of this appeal, the questions were these: 18. whether she identifies as a lesbian/bisexual woman now? 19. (ii) whether she was conflicted about her sexuality during her marriage to the defendant? 20. (iii) whether she has deep-seated anxiety about her sexual identity? 21. (iv) whether she has been rejected by her religious parents as a result of telling them about her sexual interest in women? 22. (v) whether she also fears rejection from others including work colleagues in reaction to her sexual interest in women? 23. (vi) whether she has made false allegations against the appellant as a means to justify any change in her sexual identity? 24. For the purposes of this appeal Ms Shotton has also added a further question which she says she would have wished to ask, although it was not raised before the judge, which was this: 25. (vii) whether her conflict about her sexual identity has caused her to reassess consensual acts of intercourse as non-consensual? 26. It is said of this last question, although not referred to in the original section 41 application, that it “logically followed from the thrust” of that application. We have great difficulty in seeing how it "logically follows" from the thrust of the application. 27. What, then, was the basis relied upon as justifying these questions being put to the complainant? As set out in the application the basis was this. First, the witness statement of Mr X in one passage had said: i. "With the benefit of hindsight I do wonder whether I should have challenged underlying issues before the wedding. I suspected that [the complainant] might be conflicted regarding her sexuality and therefore marrying for the wrong reason, but we never discussed this in any of our conversations." 28. (As we have said Mr X had been mentor to the complainant prior to the marriage in 2002.) Further, what was sought to be relied upon was certain material disclosed as unused material by the prosecution well in advance of trial, taken from the complainant's psychiatric records. In one of the particular letters from a community mental health practitioner based in the North of England, dated 30 December 2014, this was said: i. "It appears that [the complainant] has deep seated anxiety about her sexual identity, in particular she is fearful of the responses and possible rejection of others including work colleagues. Owing to her anxiety she has a tendency to ruminate about this and this leads to a spiral of anxiety and worrying thoughts about others perceiving her possible sexual preference." 29. Reliance also was sought to be placed on a note dated 10 August 2015 which stated: i. "...critical incidents described including bullying from children at her school in relation to her sexuality. Rejection from strictly religious parents was also described in relation to her sexuality (after writing to her parents a letter to outline her difficulties and confusion)." 30. What such letter to the parents said or what date it had is not known. It was stated to us that "bullying from children at school" related to the times when the complainant was teaching at a school, she being by profession a qualified teacher. 31. As part of the defence case, it had been proposed that a motivation for the complainant making what the defence were to say were entirely false allegations was prompted by her bitterness and jealousy at the appellant subsequently remarrying another woman and indeed having a baby with that other woman. It was suggested that that was a reason for the complainant to make what was said to be false allegations of rape. But further to that, and after this disclosure had been given by the prosecution, there was also advanced in the defence case statement of 19 March 2019, to the effect that, "I can only speculate" that the making of the allegations "may be a way of seeking validation for any change in sexual orientation". 32. This then was followed up in the written application made to the judge by Ms Shotton. It was said that a "possible reason" why the complainant would make false rape allegations was in order to help "justify any change in her sexuality". Accordingly it was said these questions were "relevant to a possible motive" that she might have in making false allegations of rape. It was further suggested that any conflict in the complainant's sexuality may have caused her not to enjoy consensual relations with the appellant, or to have caused her to have misinterpreted the consensual nature of such activities with the passage of time. It was further suggested that such matters may also explain her seemingly altered conduct during the marriage and her apparently distracted behaviour. The application was made, and in these respects opposed by the Crown, although certain other questions were not objected to. 33. So far as these particular proposed questions were concerned, the judge would have none of it. It was ruled that section 41(5) of the 1999 Act had no relevance in circumstances where that the prosecution had made clear that they would not be putting forward that particular part of Mr X's statement in any event. In any event, in these respects the judge was to find it was entirely speculative. 34. The judge also went on to observe that the notes disclosed by the prosecution postdated the marriage by several years. The judge further noted that there was no direct evidence at all of any change in sexuality on the part of the complainant. 35. The judge then went on to say this: i. "It is also relevant to note that she says that throughout the relationship... there was as well, consensual sex. She has highlighted three occasions when the defendant, intoxicated, raped her. And in terms of then suggesting that you can apply a backwards process in terms of a thought process is not based, in my judgment, on any evidential basis. It is purely speculative. And it ignores the fact that this complainant says that there was consensual sex and in fact, she wanted there to be such because she wished to have a child. It seems to me that this is very much one of the areas that section 41 and the shield has been engaged for. In my judgment, its purpose or main purpose is to pursue a line of questioning which would impugn the credibility or potentially impugn the credibility of the witness and that is why it is being sought." 36. Thus it was that she refused leave to put those questions in cross-examination. Discussion and disposal 37. It is the position of Ms Shotton that the judge was wrong in her ruling. It was the position of Ms Karmy-Jones, who had not herself appear below but appears for the prosecution today along with Ms Cripps, that the judge had been entirely right in her ruling. 38. We have to say that we are rather uneasy at the way in which this appeal comes before this Court. As we have said, the application below was based entirely on section 41 of the 1999 Act . But the principal argument Ms Shotton now seeks to deploy is that section 41 of the 1999 Act actually has no application at all in this context. So the appeal is pursuing a point which was not raised below and, indeed, is contrary to the way in which the matter was advanced before the trial judge below. But the fact remains that leave has been granted on a previous occasion by a constitution of this Court to pursue this point. That being so, we think that we are bound to deal with it. 39. The context of and purpose behind the 1999 Act are well known. They are fully discussed by the House of Lords in the case of R v A (No 2) [2001] UKHL 25 ; [2001] 2 Cr App R 21 . One purpose unquestionably was with a view to debunking the “twin myths” as they are known; that is to say, that people who have been prepared to sleep with others in the past maybe the more ready to sleep with someone else on the particular occasion in question and, in addition, may be the less capable of belief. But there clearly was another and wider purpose behind the legislation: and that was to prevent unfair harassment, humiliation and demeaning of witnesses (usually women) giving evidence in trials involving sexual offences. The point is very clearly put by Lord Hutton in the case of A (No 2) at paragraph 142. At the same time, and as the decision in A (No 2) emphasises, fairness is the underlying key; and it is important that a defendant should not be deprived of the opportunity to put relevant questions if exclusion of such questions could endanger the fairness of the trial (see paragraph 46 of the speech of Lord Steyn, for example). 40. What has to be considered in this particular case is what actually constitutes "sexual behaviour" as defined by section 42(1) of the 1999 Act . This has arisen for discussion in a number of cases. Most obviously, of course, it will refer to matters of conduct or activity, to acts or events of a sexual character (see paragraph 126 of the speech of Lord Clyde in A (No 2) and on which Ms Shotton sought to place reliance). Further, the word "experience" is apt at least to extend, among other things, to activities in which the complainant may not necessarily have voluntarily participated. 41. Various decisions of constitutions of this Court have, for example, decided that sexually provocative postings on Facebook or in the sending or viewing of pornographic images could amount to "sexual behaviour". Furthermore, as it has been said, behaviour may be "sexual" even if, for example, the complainant is incapacitated or is so young as not to realise that. We observe that in the case of R v Beedall [2007] EWCA Crim 23 , the complainant was saying that he had been the victim of a homosexual rape. The Crown had not sought to present the complainant as exclusively heterosexual. Nevertheless, the defence, and basing themselves on certain physical anal characteristics of the complainant, wished to cross-examine the complainant as to his sexual orientation, in particular as to whether he was a practising homosexual. We note that the court in that case upheld a decision of the trial judge to exclude such evidence applying section 41 of the 1999 Act . 42. Ms Shotton submitted that "sexual behaviour" as used in section 41 was confined to actions and conduct and at all events did not extend to what she called "internal conflicts about sexuality". Ms Karmy-Jones, on the other hand, submitted that sexual identity and sexual orientation may indeed constitute an "experience" and so indeed may be within the ambit of section 41 : just as, so she said, virginity or celibacy may be. She submitted (adopting the comments of Rook & Ward on the Law on Practice of Sexual Offences 5 th ed. at paragraph 26-146) that sexual orientation can be suggestive of sexual activity and, if so, is capable of being "sexual behaviour". Indeed, she submitted that if it were not so, then potentially lines of cross-examination might be opened up in such cases which would, almost inevitably, potentially be humiliating and distressing to a complainant and when it was the purpose of the 1999 Act to avoid such a situation arising. She submitted in fact that the present case was a paradigm example of that. The proposed questioning would, she said, be a humiliating intrusion into the complainant's privacy and would be an unwarranted invitation to the jury in effect to engage in what she described as prejudicial "lesbophobic" inferences without any relevant basis for that occurring. 43. It may be observed that, in contrast with the predecessor statute of the Sexual Offences (Amendment) Act 1976 , section 41 does not confine sexual experience to being with a person other than the defendant. The definition is altogether more open-ended than that. Furthermore, it may also be noted that section 41(6) confines questioning (where questioning is to be permitted) to specific instances of alleged sexual behaviour on the part of the complainant. That restriction therefore connotes that non-specific instances would also be capable of falling within the ambit of "sexual behaviour". That wide approach therefore is consistent with the broad purposive approach suggested by Ms Karmy-Jones. 44. In this particular case, the very first proposed question, which really laid the foundation for the subsequent questions, related directly to the complainant's sexual identity. It specifically in terms asked whether she was lesbian or bisexual now. As we see it, such a question is indeed suggestive of sexual activity; and the following questions, which to a greater or lesser extent followed on from or were based on that first question, likewise can have a like connotation. 45. In such circumstances, we agree with the submissions of Ms Karmy-Jones in this particular case. We do not wish to generalise about the matter; indeed we think it would be unwise to do so. We should in fact record that Ms Shotton did not seek to argue that sexual orientation can never fall within section 41 and Ms Karmy-Jones did not seek to argue that sexual orientation always will fall within section 41 : it depends, they both agreed, upon the particular circumstances of the case. What we would say is that in the circumstances of this particular case, leave under section 41 was indeed required. We think that the approach indicated in Rook and Ward (as set out above) is very helpful. Here, viewed overall, the proposed questioning as to the complainant’s sexual orientation, in our opinion, was indeed suggestive of sexual activity. It follows that Ms Shotton had been correct in the court below to base her application on the provisions of that section. 46. That being so, we are in no doubt at all that the judge was correct to refuse this application. That in fact is for quite a number of reasons. 47. First, although the judge did not specifically refer to it, section 41(6) would require the questioning to be limited to specific instances of conduct. But here the proposed questioning was wholly generalised. So it would have fallen to be excluded by reference to section 41(6) on that basis alone. 48. But second, however, section 41(4) precludes questioning where it appears reasonable to assume that the purpose, or main purpose, of asking those questions is to impugn the credibility of the complainant. Ms Shotton argued, as she had below, that that was not the purpose in this case. Rather, the defence was seeking to explore the motivation of the complainant in making, on the defence case, false complaints. It is true that in A (No 2) Lord Hope (at paragraph 79 of his speech) had said that for the purposes of section 41(3) (a) one example of where evidence may be admissible would be where the case was that the complainant had a motive to fabricate the evidence. But, as we see it, one needs to be careful here. There may indeed be situations, when such a motive is advanced, when the evidence about previous sexual behaviour can properly be admitted. That can be so even in circumstances where that may also bring into play questions of credibility: see the comments of the court at paragraph 27 of the judgment in the case of R v F [2005] EWCA Crim 493 ; [2005] 2 Cr App R 13 . On the other hand, the courts also have to be wary about the potential for assertions to the effect that the challenge is as to malicious motivation to fabricate being, in truth, an obfuscation of the real or main purpose: that is to say, to undermine a complainant's credibility. Were it otherwise, then the provisions of section 41(3) (a) could be used to "ride a coach and horses through the desirable policy reflected in section 41(4) of the 1999 Act ", as stated by Lord Woolf LCJ at paragraph 20 of his judgment in the case of R v Mokrecovas [2001] EWCA Crim 1644 ; [2002] 1 Cr App R 20 . 49. The point remains that it all depends on the circumstances of the particular case. In our view, in the circumstances of this case the judge was entirely justified in seeing this line of questioning as having the main purpose of undermining the complainant's credibility. Indeed that reflects the way in which Ms Shotton has addressed this Court in seeking to argue that the matter should be dealt with other than by section 41 , she submitting that it was crucial as to the complainant's credibility. 50. The third point is linked to that. As we see it, and as the judge saw it, the whole basis for this questioning was entirely speculative. Indeed, that had in effect been virtually admitted in the defence case statement itself. It is at all events wholly unexplained how challenging the complainant's sexual identity and her anxieties about her sexual identity could logically have any bearing on her asserted motivation for making false allegations of three incidents of rape. Moreover, as the judge had pointed out, the complainant's own evidence at trial had been throughout the marriage she had engaged in consensual sex with the appellant; and indeed had wanted a baby. Furthermore, as the judge also had pointed out, the chronology relating to the complaints indicated that she had been complaining of sexual abuse before any references about her being conflicted about her sexual identity had arisen. 51. It seems to us, overall, that even if section 41 could be brought into play here, the application simply could not have met the further requirement of section 41(2) (b) of the 1999 Act . It could not be said that refusal to permit such questioning might have had the result of rendering a conclusion of the jury unsafe. 52. For all these reasons, we are in no doubt that the judge's actual decision to exclude this questioning by reference to section 41 of the 1999 Act was correct. In particular, as we see it, and perhaps more importantly as the trial judge saw it, this line of questioning was indeed irrelevant. It should have had no part to play in the trial. As the trial judge said, the relevant part of Mr X's statement involved inadmissible speculation. As for the two notes in 2014 and 2015, they came at a much later date and indeed are very tenuous as to what, in truth, they indicate. But more specifically, and as we have said, they provide no logical connection to the motive sought to be attributed to the complainant. 53. Overall, this is, as we see it, a paradigm case of questions being sought to be asked which would have needlessly humiliated and invaded the privacy of a complainant. Giving evidence at a rape trial is stressful enough. To have had to answer questions in public about her sexuality and her alleged internal conflicts about her sexuality would only have added to the mortification and distress of the complainant (as the appellant must have appreciated). Accordingly, even if, contrary to our own view, section 41 had no application here then, in any event, this line of questioning was properly to be excluded: in effect for the reasons given by the judge herself. It was speculative and irrelevant and of no probative value. Consequently, on ordinary evidential principles it was rightly not put before the jury. 54. Ultimately, the question we have to ask is whether this trial was fair. More specifically, was material unfairness caused to the defence by these proposed questions being excluded? We are of the very clear view that no unfairness at all was caused to the defence by excluding this questioning. We thus consider that this was indeed a fair trial. The complainant gave her evidence; the appellant gave his evidence. On these two counts the jury, on the evidence, had been made sure that the rapes had occurred. There is no proper basis for this Court interfering. In the result we dismiss this appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Lewes Crown Court (sitting at the Hove trial centre)"],"ConvictPleaDate":["2019-05-31"],"ConvictOffence":["Rape (2 counts)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Complainant testimony","Text messages","Testimony of chaplain","Letter to doctor","Testimony of church minister","Testimony of friend","Testimony of domestic violence adviser"],"DefEvidTypeTrial":["Defendant testimony","Testimony of current wife"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender of good character (except for text messages)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Trial judge wrongly precluded cross-examination of complainant about sexual orientation/identity under section 41 Youth Justice and Criminal Evidence Act 1999"],"SentGuideWhich":["section 41 of the Youth Justice and Criminal Evidence Act 1999"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge was correct to exclude questioning under section 41; proposed questioning was speculative, irrelevant, and would have impugned complainant's credibility; no unfairness to the defence; trial was fair"]}
No: 2009/2210/A4 Neutral Citation Number: [2010] EWCA Crim 357 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 18 February 2010 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE MACKAY MR JUSTICE LLOYD JONES - - - - - - - - - - - - - R E G I N A v MICHAEL ROE - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr M Rickard appeared on behalf of the Appellant Mr G Curtis-Raleigh appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: This is an appeal with leave against a sentence of imprisonment for public protection with a minimum term of four years based on a notional determinate term of 12 years. The sentence was imposed for an offence of robbery committed with some violence when the defendant and a co-accused broke into the home of a single woman living on her own in the evening. 2. We have had the advantage of some general discussion. It is not necessary to analyse sentences for this kind of offence in any detail, but we do draw attention to this. When framing its definitive guideline for offences of robbery, the Sentencing Guidelines Council deliberately abstained from attempting any guideline for what it called categories 4 and 5 of robbery which included "4. Violent personal robberies in the home" - see page 3 of the definitive guideline. At page 15 of the same document the Council referred to a sub-group of offences of such a kind for which a general range of something like 13 to 16 years after trial will be appropriate involving high levels of violence. The passing reference in the footnote was to the case of R v O'Driscoll (1986) 8 Cr.App.R (S) 121. That was a very serious case in which a sentence of 15 years' imprisonment after trial was upheld as long ago as 1986. The victim was 80 years of age. He had plainly been targeted as a vulnerable and potentially profitable victim. He was attacked by two men in his home. He was tortured by having a lighted gas poker applied to his face. He was tied up and gagged and by the time he was eventually released he had injuries which included fractures to the skull and to his right leg. 3. Not all cases of robberies committed in the home approach that level of gravity or that level of sentence. It seems to us there is very good reason for the Council abstaining from any attempt to pigeon hole offences of this kind because the range of conduct which can be described as robbery in the home is so wide that any guideline would be likely to be so broad as to be of very little assistance to courts. Moreover, offences involving in due course some theft and violence in the home may sometimes involve other offences differently charged. They may involve offences of violence to the person, they may be originally burglaries or they may be the pursuit of some kind of underlying personal dispute. Those are but examples; there are many others. 4. It follows that judges must in this field be left to assess each case individually. That is after all the function of a sentencing judge and it is not to be expected that the provision of guidelines will provide in every possible situation a substitute for the essential exercise of judgment which is rightly committed to experienced trial judges. 5. It is certainly clear that the fact that a robbery takes place in the victim's home and that his home has been invaded makes the offence worse. It is undoubtedly true that the record of the defendant, if significant, will make the offence worse. It is plainly true that repetition of offending needs to be marked by increased sentencing. Beyond those very general observations it is very difficult to say more. At the lower end of offences of robbery within the home there are plainly some in relation to which a court can properly look for some kind of appropriate relationship to the prevailing level of sentencing for street robberies or other robberies. That was the approach adopted by this court in Attorney General's Reference Nos 38 to 40 of 2007 (Crummack and others ) [2007] EWCA Crim. 1692 , [2008] 1 Cr.App.R (S) 56 . That, however, was a case of very limited violence. There were punches (two), in effect pushing the householder back into a chair. Attorney General's Reference No 124 of 2008 (Doran ) [2008] EWCA Crim. 2820 , was case of targeting the elderly but also one in which the violence was negligible. At the upper end of the scale are cases such as O'Driscoll itself, cases such as Purcell [2008] EWCA Crim. 894 and, strikingly, only two days ago, cases such as Morris and Long decided by this court differently constituted on 16th February 2010. In that case there were no less than eight particularly violent robberies, four of which took place through the invasion of the victims' homes, the previous record of the defendants was considerable and in due course the appropriate starting point after trial, this court ruled, would have been as much as 20 or 22 years. That demonstrates the kind of range which these cases may demonstrate. We refer further in passing to the case of Attorney General's Reference Nos 81 and 82 of 2009 (Butler and Taylor ) decided by this court, again differently constituted but led by the Lord Chief Justice, on 10th February. That was a case of two robberies for one defendant and the single for another. A baseball bat was taken and threats were made. The background to the invasion of the house was not an attempt at theft but some kind of running dispute between the defendants and the householders, although robbery ensued. The defendants had bad records. There was no actual violence involved. The starting point after trial for the man who committed two offences was nine years and for the other a little less. 6. Whilst it is true that at the lower end the approach of the court in Crummack of looking for guidance to some kind of relationship with other offences of robbery will be appropriate, it is impossible to say that it is always helpful to look for any such relationship. In cases at the more serious end, and as we shall demonstrate in this case, any attempt to look for a sensible relationship between the facts of this kind of offence on the one hand and on the other a confrontation in the street backed up by a small degree of violence or the production of a stick in order to steal a mobile telephone is fruitless. There is no such relationship, save conceivably striking dissimilarity. 7. With that very general background we turn to the present case. 8. At about 7 o'clock in the evening on a Saturday in April 2008, the householder, who is a young woman in her mid-twenties, was in her own flat. The defendant and his partner broke in to the flat. It is to be assumed in their favour that they did not know that it was occupied. They had been knocking on doors plainly with a view to stealing and it is to be assumed that they thought they had found an empty flat. They had not. But they did not leave when they found the householder at home, they went on to commit a very serious offence of robbery. This was targeted burgling. They were drunk, they were living on the street and they had no money. It is said that they were desperate for money. 9. This defendant seized the householder, pulled her out of the living room and put her in her bedroom. He told her to get onto the bed. It is right to say that at that stage he said that he was not going to touch her but just wanted her money. If the case had stopped there it might have been at the lower end of the type of case we are considering. But it did not. He dragged her around the house from room to room, making her help him search for any items of value. In the meantime his partner and accomplice, Susan O'Brien, was also ransacking the house and becoming increasingly noisy and aggressive. She, in front of the defendant and the householder, used inflammatory language. She told the unfortunate householder: "Find the fucking bag or I'll kill you, you bitch." She threatened: "I'm going to fucking stab you." When the applicant found a bag that he had touched he forced the householder to wipe her hands all over it, apparently to remove any forensic traces. 10. All that would have been terrifying enough for any young woman in her own flat alone in the evening with increasingly excitable invaders. But she was then put into one of the bedrooms, she was tied by her hands behind her back and her feet were also tied; she was put face down on the bed, her engagement ring was forced from her finger. In the meantime she had heard the female burglar say that she ought to be made to take her clothes off. It is unsurprising that she imagined she had got the kind of couple who were going to add to theft rape or other humiliation. In fact that did not happen, but she thought it was going to. Eventually the defendant's woman partner said: "We're going. If you try to come downstairs within 15 minutes we'll be waiting for you and we'll kill you." She had been reduced to the point at which she had begun to wonder whether she could jump through the window and survive the fall. 11. It is right to say that her description of events makes it clear that the noisier and more obviously aggressive of the pair was the woman. But this was a joint burglary. It was the defendant who either alone or together tied the woman up. Any reassurance that might have been read into his original assertion that the victim was not going to be touched had long since been falsified and he must bear his share of responsibility for what was done by the two of them together. 12. It is not too much to say that the violence and the threats combined will have been literally terrifying to this woman. They took whatever they could get their hands on including, as we have said, her engagement ring. They also took a number of other items which had long been in the family and which had particular sentimental associations for her so that their replacement even by insurance is no replacement at all. They also took a laptop that had confidential work information on it, so she had the embarrassment of having to try to deal with the consequences of that. More significantly still, and unsurprisingly, the impact on her personally was clearly considerable. She became nervous and frightened. She found herself worried as she was out and about. The experience so altered her that her relationship with her boyfriend was ruined and she felt, again entirely understandably, that she could not stay at the flat and so she lost her home and had to find somewhere else. 13. Mr Rickard, who has presented the defendant's case with realism and no little care, reminds us that the defendant's personal position at the time savoured of some desperation. His parents both had cancer, he had not long arrived from Ireland where he had lived, he and his girlfriend were living on the streets, she had very recently had a miscarriage and they had no money. 14. In this country he had some old convictions from the 1990s, which however demonstrated that he was a burglar then. Rather more significantly, in Ireland he had been convicted (exactly when is not clear) of false imprisonment, aggravated burglary and robbery. That, on the information which derived from the Irish police, had involved him burgling a house, producing a kitchen knife in the course of doing so, forcing the owner to take him round the house to search for valuables and then tying him up. In addition to that it had involved waiting for the householder's wife to come back and tying her up as well when she did. All that had been done at a time when there were three children in the house, one of whom apparently would have seen what was going on. None of those facts was in dispute. 15. The defendant was an alcoholic. There was a long history from childhood onward of what began as a conduct disorder, that moved into delinquency and became habitual offending, mostly in aid of acquisitive crime. There was, according to a psychiatric report before the judge, no identifiable psychiatric condition, although we understand that the defendant himself has since asserted, possibly on the basis of something said to him by somebody (whether in authority or not we are not sure) in prison, that he may have bi-polar disorder. The court considering the application for leave did not believe that it was arguable that the judge was not entitled to take the view that the defendant was within the dangerous offender provisions of the Criminal Justice Act 2003 and we think we have said enough to indicate that there is no possible reason to depart from that view. 16. The remaining question is whether a starting point of 12 years after trial was manifestly excessive for this offence by this offender. We are unable to agree with the elegantly phrased invitation to treat this case as equivalent to Crummack or Doran . It is infinitely worse. We agree that it is not as bad as O'Driscoll or Morris and Long , but the judge did not treat it as such. As it seems to us, this offence amply merited a starting point in double figures, but short of 13 years or more which bracket is obliquely referred to in the Sentencing Guidelines Council's document. Twelve years seems to us to be at the top of the available range for this offence. When one reads the very careful sentencing remarks of His Honour Judge Hillen it is clear that what really raised the level was the very marked impact of the terrifying offence on the unfortunate victim who had no connection with these defendants whatever and was doing no more than trying to sit at home quietly on a Saturday evening on her own. 17. Our conclusion is that the judge, whilst he was at the top of the range was not outside the permissible range and was entitled to do what he did. Despite Mr Rickard's valiant efforts the result is that the appeal must be dismissed. 18. MR RICKARD: In those circumstances may I respectfully ask for seven days within which to consider drafting a certificate. 19. THE VICE PRESIDENT: No. There is no conceivable point of law of general public importance involved. It is a sentencing decision, Mr Rickard. 20. MR RICKARD: So be it.	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["Robbery"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["Imprisonment for public protection with a minimum term of four years based on a notional determinate term of 12 years"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Homeless"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony"],"DefEvidTypeTrial":[""],"PreSentReport":["High risk of harm"],"AggFactSent":["Offence committed in victim's home","Victim was alone and vulnerable","Violence and threats used","Victim tied up","Significant psychological impact on victim"],"MitFactSent":["Offender's parents had cancer","Offender recently arrived from Ireland","Offender and partner living on the streets","Partner had recently had a miscarriage","Offender was alcoholic","No identifiable psychiatric condition"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Starting point of 12 years after trial was manifestly excessive"],"SentGuideWhich":["Sentencing Guidelines Council definitive guideline for offences of robbery"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge was at the top of the range but not outside the permissible range; offence amply merited a starting point in double figures; judge entitled to do what he did"]}
Neutral Citation Number: [2007] EWCA Crim 1898 Case No: 2006/02254 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Swansea Mr Justice Roderick Evans T20050356 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 July 2007 Before: LORD JUSTICE HOOPER MR JUSTICE BURTON and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - Between: Andrew Paul Rafferty Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr G Elias QC and Mr D A Harris (instructed by Goldstones Solicitors) for the Defendant Mr R Spencer QC and Mr P Griffiths for the Crown Hearing date: 6 June 2007 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. Having quashed the appellant’s conviction for manslaughter it became necessary to sentence the appellant for the offence of robbery to which he had pleaded guilty at the PCMH and in respect of which the judge imposed no separate penalty. At the conclusion of the hearing we announced that we would impose a sentence of 10 years detention under s.228 of the Criminal Justice Act 2003 made up of a custodial term of seven years and an extension period of three years. We also ordered that the 265 days spent on remand is to count towards the sentence. 2. We now give our reasons for that decision. The facts are very fully set up in our decision to quash the decision for manslaughter [2007] EWCA Crim 1846 . We start with the judge’s sentencing remarks. He said:- Rafferty, you are, of course, in a very different position. You were convicted of manslaughter on what was referred to at trial, as the causation basis. That is the violence which you bear responsibility, made a significant contribution to the death of Ben Bellamy at the hands of Taylor and Thomas, when they drowned him. Either by rendering him unconscious, so he could not resist drowning or if he remained conscious, by reducing his ability to resist drowning at their hands. On the evidence, that I have heard, I am satisfied, so as to be sure, that you bear responsibility, not only for an element of the violence used before you went to the cash point, but also for a degree of violence used thereafter. I accept of course, that at one stage you said to the other two, ‘leave it there boys.’ But I am satisfied that you elbowed Ben Bellamy in the back, to keep him on the ground when attempts were being made by somebody else to stop the attack, by Thomas and Taylor. That evidence is your support for the attack that was being carried out. I am also satisfied that you anticipated that you would return to the scene of the robbery to meet up with Thomas and Taylor and that Ben Bellamy would have been kept there against his will, by the other two. That it seems to be followed inevitably from you three robbers agreeing to meet up, a considerable time later, at the spot where the robbery occurred. I accept, of course, in accordance with the jury’s verdict, that not only did you not intend to kill Ben Bellamy but also you did not intend that he received really serious harm. I have read the pre-sentence report, dated 17 May 2006, you were born on 6 November 1987, you are now 18 years of age and seven months. You pleaded guilty to the robbery I am told when you were 17, but you were convicted of manslaughter, when you were 18. You are one of three people who attacked a defenceless person, alone at night. Then you left the scene, intending to return, you were aware of the conduct of Thomas and Taylor. I bear in mind your guilty plea to the robbery, the fact that you, alone, of the defendants answered questions to the police and you gave an account which was, in essence, demonstrably accurate. I bear in mind your background, and your family support. In sentencing you, I have to consider the question of dangerousness, that is whether there is a significant risk to members of the public of serious harm, occasioned by the commission, by you, of furthe4r specified offences. The presumption of dangerousness, set out in s.229 of the 2003 Act , does not apply in your case, despite your previous conviction for affray. Because you were under 18 at the time that affray occurred. However, I am bound to consider all the relevant information about you in considering the question of dangerousness. In so doing, I consider your previous conviction, I considered these two offences. Also the knife incident in April 2004 and the content of the pre-sentence report. Having done so, I conclude that the risk identified in chapter five of the 2003 Act , does exist in your case. This however, is not a case which calls for a life sentence, as far as you are concerned. I intend to pass upon you a sentence of imprisonment for public protection, that is an indeterminate sentence. You will be released only when the authorities consider that you are no longer a danger. Again I am required to fix a minimum term which you just serve before you can be considered for release. When you have served that term, you will not be automatically released, you will be released on licence, only when it is safe to release and that licence is liable to remain for the rest of your life. I impose this sentence only on the offence of manslaughter, having considered, in so doing, the associated offence of robbery. The term that I would have passed upon you, had I not been passing this sentence of imprisonment for public protection is one of ten years custody. I am required by statute, to halve that, and to deduct from it, the time that you have spent in custody, which I do. Given paragraph 30 of our judgment allowing the appeal against conviction it seems to us only right not to take into account when sentencing him, any responsibility for the violence used thereafter. Mr Elias submitted that we should also not take into account the reference by the judge to the appellant returning to meet up with the co-defendants and the appellant anticipating that Ben Bellamy would have been kept there against his will. It seems to us as Mr Spencer submits, that we are entitled to take that into account because it is part and parcel of the robbery. 3. The judge refers to the previous conviction for affray. That is an important factor in this case and we have been provided with the sentencing remarks of His Honour Judge Elystan-Morgan dated 11 November 2004. The appellant Rafferty pleaded guilty to an offence of affray at the close of the prosecution case and Joel Taylor the co-defendant in the case with which we are concerned pleaded guilty to an offence of wounding contrary to s.20 of the Offences against the Person Act. There had been an altercation in which a man had been assaulted. That led to “an atmosphere of threat and of a desire for violence” and to the co-defendant Taylor going to the home of a neighbour asking for a knife. The neighbour refused but Taylor armed himself with a sharp instrument. We were told that it was likely to have been a sharpened piece of bone. With that sharpened instrument Taylor stabbed McNeil deliberately twice in the lower back. Fortunately the wounds were somewhat superficial. In the words of the judge when he sentenced Taylor in Rafferty’s presence, he said to Taylor: “But when you stabbed that man you knew not where that weapon was going; it could have gone into a vital organ and indeed the very gravest consequences could so easily have flowed from your act.” The sentence passed was a detention and training order for a period of eight months. Insofar as Rafferty was concerned he said:- “I take the view… that you were a peace maker and you did speak kindly and decently to McNeil and tried to explain to him what the situation was and tried to calm the others down. But at a late point in events you became a belligerent, in other words, you became a fighter rather than a peace maker, and I take that into account.” Taking into account that Rafferty was a peace maker for a substantial period of time he passed a supervision order for the offence of affray. 4. The importance of that conviction and those sentencing remarks is two-fold. We shall consider below the impact upon the assessment which we have to make by virtue of the provisions of Chapter IV of the Criminal Justice Act 2003 . The involvement in this offence constitutes a substantial aggravating factor for the offence of robbery. Rafferty was again involved with Joel Taylor. He participated in the offence with Joel Taylor knowing Joel Taylor’s capacity to be as violent as he had been on the earlier occasion. To help Taylor in his assault on Ben Bellamy knowing of what Taylor was capable, is, in our view, a very serious aggravating factor. 5. We now turn to the Guideline on sentencing for robbery. Rafferty was aged 17 at the time of conviction and the appropriate guideline is to be found at page 14. Mr Elias accepts that the robbery falls into either category 2 or category 3 although he asks us to find that it falls into category 2. He said that the conviction of manslaughter showed only an intent to cause some harm and that was sufficient to put it into category 2. In our view this is a category 3 robbery- serious physical injury was caused during the course of the robbery albeit that the defendant may have only intended some less serious harm. This being a category 3 robbery the starting point is seven years with a sentencing range of six to 10 years. The following aggravating features are to be found:- More than one offender was involved. The victim was restrained and detained during the course of the robbery. The offence was pre-planned and committed at night. There was an element of vulnerability insofar as the victim was concerned. 6. In so far as the pre-planning is concerned, it seems clear that the idea of robbing Bellamy had been formed earlier before the arrival on the beach. Additionally the offence of robbery continued over a considerable period of time. 7. In so far as the listed mitigating factors are concerned, there was evidence of remorse in the appellant’s admissions to the police that he had been involved in the robbery. However, even in his basis of plea to the robbery Rafferty did not disclose his true involvement in the robbery as found by the jury. 8. We take the view that given all the aggravating features and in particular the fact that he committed this offence with Taylor, the sentence following a trial would be in the region of 10 years’ detention. Allowing for the plea of guilty we reduce that to seven years. 9. We now turn to the issue of dangerousness. We must now reassess the judge’s conclusion. Having done so we have reached the same conclusion as the judge. In our view there is a significant risk to the members of the public of serious harm occasioned by the commission by Rafferty of further specified offences. We have looked at the pre-sentence report. It shows a young man who is seriously disturbed and subject to substance and alcohol abuse. In the words of the probation officer there was no evidence to suggest that the appellant will react any differently should he be faced with a “same scenario” situation. To put it the other way, there is a significant risk that he will behave in that way. It seems to us that the circumstances of the robbery against the background of the affray in themselves provide sufficient evidence that the appellant is a significant risk within the meaning of s.225. 10. Because Rafferty was only 17 at the time of the conviction we have to decide whether an extended sentence is sufficient or whether it is necessary to pass a sentence of imprisonment for public protection. We take the view applying s. 226 that an extended sentence will be adequate for the purpose of protecting the public from serious harm and it is not necessary to impose a sentence of imprisonment for public protection. 11. These are our reasons for passing the sentence which we announced at the end of the hearing,	{"ConvCourtName":["Crown Court at Swansea"],"ConvictPleaDate":[""],"ConvictOffence":["Robbery"],"AcquitOffence":["Manslaughter"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at PCMH"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[265],"SentCourtName":["Court of Appeal (Criminal Division)"],"Sentence":["10 years detention under s.228 Criminal Justice Act 2003 (7 years custodial term, 3 years extension)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":["High risk of reoffending"],"AggFactSent":["More than one offender involved","Victim was restrained and detained","Offence was pre-planned and committed at night","Victim was vulnerable","Committed with co-defendant known to be violent"],"MitFactSent":["Evidence of remorse in admissions to police","Family support","Guilty plea"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence"],"AppealGround":[""],"SentGuideWhich":["Guideline on sentencing for robbery (page 14)","s.228 Criminal Justice Act 2003","s.229 Criminal Justice Act 2003","s.225 Criminal Justice Act 2003","s.226 Criminal Justice Act 2003"],"AppealOutcome":["Sentence imposed: 10 years detention (7 years custodial, 3 years extension)"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Case No: 2000/02934/X3 Neutral Citation No: [2003] EWCA Crim 680 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM: THE HON. MR. JUSTICE JOWITT AND JURY IN THE CROWN COURT AT SHEFFIELD Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 th March 2003 Before : LORD JUSTICE AULD MR. JUSTICE GRAY and MR. JUSTICE CRANE - - - - - - - - - - - - - - - - - - - - - Between : REGINA The Crown - and - THOMAS SHANKS Defence - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T F H Cassel QC and Mr C Mendoza for the Defence Mr R Smith QC and Mr S M D Jackson for the Crown Hearing dates : Friday 7 th February 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Auld : 1. On 19 th April 2000, following a second trial before Jowitt J. and a jury in the Crown Court at Sheffield, the appellant was convicted of murder and sentenced to life imprisonment. 2. In an earlier trial before Holland J. and a jury on the same charge and on a charge arising out of the same facts of possessing a firearm with intent to endanger life, the jury could not agree on the charge of murder, but found him guilty of the firearm charge. The appellant had pleaded guilty to a third charge in the indictment of possessing a prohibited weapon, again arising out of the same facts. Jowitt J. sentenced him to 12 and 9 years imprisonment for those offences respectively, the sentences to be served concurrently. 3. The appellant, with the leave of the Full Court, appeals against the conviction of murder on two grounds, the Full Court having refused him leave to appeal on many other grounds on which he had sought to rely. 4. The brief facts giving rise to the prosecution for murder were as follows. 5. The appellant was a practising doctor and former soldier. He had had a relationship with a nurse, Victoria Fletcher, with whom he had worked in a hospital. There came a time when their relationship broke down, causing the appellant much distress. Shortly afterwards, on the evening of 7 th May 1998, the appellant cleaned and assembled a Kalashnikov AK 47 assault rifle at his home, a weapon that he had had for many years. He fed 21 rounds of ammunition into its magazine and attached the magazine to the rifle. He then put the rifle, along with an axe, a sheath knife and a baseball bat, into the boot of his car and drove to a public house to look for Miss Fletcher. She was not there. Having asked there as to her whereabouts, he drove to another public house where he found her with a new boyfriend. After a heated exchange he pushed her out into the street, and there followed a scuffle between the appellant and the boyfriend. 6. Miss Fletcher, her boyfriend and others with them moved off to the public house where the appellant had first sought her that evening. He followed them there. While he was outside Miss Fletcher went out to talk to him by his car. There was a further exchange of words and she then turned and began to walk away from him. As she did so, the appellant took the rifle from the boot of his car and fired a burst of several rounds at her, which felled her. She got up and attempted to stagger away from him. He moved forward behind her and fired another burst at her, which brought her to the ground again. He hit her in all with ten bullets, causing wounds from which she died shortly afterwards. He then drove off, taking the rifle with him. Later that evening he telephoned his former wife and told her that he had shot Miss Fletcher. At some stage he made a note in a notebook, subsequently recovered by the police, that he had shot her in “[a] moment of rage”. He also told a doctor, in response to the doctor’s comment that he had been lucky not to have hit others, that he had aimed at the middle of the target. 7. At both trials the prosecution case was that the appellant shot Miss Fletcher as she tried to flee – more particularly, that after felling her with the first burst of fire, he shot her again after she had got up and continued to move away from him. The appellant did not dispute that he shot her. His main defence at trial was that he was guilty of manslaughter, not murder, because, at the time of the killing, he had been suffering from diminished responsibility. He also advanced two other defences, neither of them in the circumstances with much force or much chance of success. They were that he had not intended to kill her or endanger her life, or even to hurt her, alternatively that if he had had any of those intents, he was guilty of manslaughter, not murder, by reason of her provocation. As to the rifle, he had admitted in the course of his examination in chief at the first trial, and again at the second trial, that he had brought it back from the Gulf many years before and had kept it with the intention of killing anyone who did him harm in the way that he had suffered in a serious stabbing attack on him in 1981. 8. The issue of diminished responsibility took up most of the trial before Jowitt J. and was the subject of a great deal of evidence. The defence case was that the appellant, at the time he killed Miss Fletcher, was suffering from an abnormality of mind contributed to by clinical depression and post-traumatic stress disorder arising from military service and exposure to neurotoxins in the Gulf War. Thus, the prime issues for the jury were the appellant’s mental state and, to a less extent, his intent at the time of the killing. 9. The only two issues for determination in this appeal arise out of directions of Jowitt J. to the jury about the appellant’s conviction in the earlier trial of possessing the rifle with intent to endanger life. The Judge had canvassed with counsel at the start of the trial whether the jury should be informed of the conviction. He took the view that, as that charge had laid the offence on the same day as of the alleged murder, it was relevant to the issue of the appellant’s intent on the latter charge and that the jury should be told about it. He added that, given the first jury’s verdict, though the appellant could not maintain that he did not have the rifle in his possession at some time on that day with intent to endanger life, it would be open to him to maintain that he had no such intent at the time he killed Miss Fletcher. 10. In the Judge’s discussion with counsel and in his ruling on this point, neither he nor they mentioned section 74 (3) of PACE, which enables previous convictions to be put in evidence in proof of guilt, nor section 78 of PACE as to the fairness of the evidence. However, it is likely that this experienced Judge had both in mind. At all events, Sir Timothy Cassel, QC, who appeared for the appellant at both trials and on this appeal, did not resist his ruling. Pursuant to it, Mr. Robert Smith, QC, counsel for the prosecution at both trials, who appears for the Crown on this appeal, informed the jury of the conviction in his opening address. Thereafter, little or no reference was made to it in the trial until the Judge mentioned it in his summing-up. 11. In his summing-up the Judge gave the jury the following directions: “Dr. Shanks was convicted in the first trial of having that gun in his possession, on the day of the killing, with the intention at some stage during the day of endangering life ; that is to say with the intention of putting someone other than himself at risk of death. Dr. Shanks denies that he ever had that intention on that day, and certainly [that] he had no intention to kill, endanger, or hurt, Vicky. “The Jury’s verdict – that is the first Jury’s verdict – does not of itself tell you whose life Dr. Shanks intended to endanger, or whether it was the life of one particular person . However, despite his denial, it is not open to him before you to challenge that verdict of the jury in the first trial. It is binding upon him, members of the jury, and it is binding upon you. Now, whether or not it assists you on the question of Dr. Shanks’ intent is for you to say, but it is part of the material that you are entitled to consider in deciding whether you are sure that when Dr. Shanks fired his gun he intended, either to kill her, or cause her serious bodily harm May I make this clear, though, in view of something that Mr. Cassel said to you this morning. The conviction was not on the basis that Dr. Shanks brought the gun back intending to use it to kill anyone who attacked him. He was convicted, as I have said, of possessing the gun with intent on the 7 th of May of endangering life .” [the Court’s emphases] 12. Sir Timothy has submitted that those directions were defective in two respects: first, that they amounted to a misdirection of the effect of the conviction at the first trial of possessing the rifle with intent to endanger life; and second, that they wrongly indicated that that conviction bound this jury. Ground 1 – suggested misdirection as to the effect of the firearm conviction on the appellant’s credibility 13. As to the first of those complaints, Sir Timothy submitted that the Judge should not have mentioned the firearms conviction to the jury. He maintained that it had no relevance to the issues of diminished responsibility or of provocation and was only marginally relevant, if at all, to the issue of intent, the weakest of the three defences as he acknowledged. And, he said, such relevance as it had on that issue was of so little probative effect that the Judge should have excluded it in the proper exercise of his discretion under section 74(3) and/or as unfair under section 78. 14. However, as Sir Timothy developed his argument, it became plain that his real concern was not about the effect of the admission of the first jury’s conviction into evidence, which he had not resisted when the Judge first raised the matter at the beginning of the trial, and which is not the subject of appeal. Nor was it about the effect of the Judge’s direction on the issue of intent, on which, as we have noted, Sir Timothy acknowledged that the defence had been weak. His complaint was that the Judge’s direction had had an unfairly prejudicial effect on the appellant’s credibility on the issue of diminished responsibility and, to a lesser extent on that of provocation. He said that the Judge wrongly told the jury that that the earlier conviction had not been on the basis that the appellant had brought the gun back from the Gulf intending to use it to kill anyone who attacked him. Sir Timothy suggested that the firearm conviction at the first trial had indeed been on that basis. 15. In so submitting, Sir Timothy relied on the fact that Holland J. had directed the first jury that, in view of the appellant’s account in that trial of why he had brought the rifle back from the Gulf and had retained it, the appellant had effectively admitted guilt of the firearm offence. As a result, Sir Timothy submitted that the only possible effect of Jowitt J’s direction that the first conviction had not been on the basis of such an admission of a continuing intent to endanger life in the event of a further similar attack was to undermine the appellant’s credibility as to his mental state on the defences of diminished responsibility and provocation. 16. We deal first with Sir Timothy’s “scene-setting” complaints as to the Judge’s admission into evidence of the previous conviction and as to his mention of it in his summing-up to the jury. Section 74(3) provides, so far as material: “(3) In any proceedings where evidence is admissible of the fact that the accused has committed an offence, in so far as that evidence is relevant to any matter in issue in the proceedings for a reason other than a tendency to show in the accused a disposition to commit the kind of offence with which he is charged, if the accused is proved to have been convicted of the offence … he shall be taken to have committed that offence unless the contrary is proved. 17. For obvious reasons, section 74(3) is not so familiar a provision as section 78. But when the prosecution resorts to it, and/or a judge considers whether such evidence should be put before a jury, he should consider under section 78 the fairness to the defence of admitting it into evidence. Section 74(3) is one of a pair of provisions in the section providing for the admissibility in similar circumstances of a previous conviction. Section 74(1) and (2) provide for the admissibility of evidence of a conviction of a person other than the accused where it is relevant to an issue in the proceedings, and provides that, if such evidence is admitted, that person shall be taken to have committed the offence unless the contrary is proved. Section 74(3) provides in similar terms for the admission of evidence of an accused’s previous conviction. 18. Most of the jurisprudence on section 74 concerns the admission into evidence of convictions of persons other than the accused under section 74(1) and (2), which was a legal innovation intended to provide in the main for charges of conspiracy and other jointly committed offences where not all the conspirators or alleged accomplices, whether charged as such or otherwise, were before the same jury. Section 74(3), on the other hand, was not, as a concept, such a newcomer to our system. The common law and individual statutes had already made provision for it, the former, for example in rules enabling the admission of proof of previous convictions where relevant to an issue in the trial under the similar fact evidence rule in Makin v. Att-Gen of New South Wales [1894] AC 57 , PC and Thompson v.R [1918] AC 221 , HL. And it is to section 74(3), rather than to section 74(1) and (2), to which the saving provisions in section 74(4) for pre-existing law are mainly directed. Section 74 provides: (4) Nothing in this section shall prejudice – (a) the admissibility in evidence of any conviction which would be admissible apart from this section; or (b) the operation of any enactment whereby a conviction or a finding of fact in any proceedings is for the purposes of any other proceedings made conclusive evidence of any fact ” 19. As Potter LJ observed, giving the judgment of the Court in R v. Harris (19 th April 2000 - unreported), at para. 21, the purpose of section 74(3) was “not to define or enlarge the circumstances in which evidence is admissible of the fact that an accused has committed an offence, but simply to assist in the mode of proof of that fact (which it does in section 75): “21. … This is made doubly clear by the words which make clear that the conviction may not be adduced simply for the purposes of proving or inferring disposition. We also consider that the requirement that the evidence should be relevant ‘to any matter in issue’ is one which falls to be read not as confined to an issue which is an essential ingredient of the offence charged, but as extending to less fundamental evidential issues arising in the course of the proceedings: cf. the decision of this court in R v. Robertson (1987) 85 Cr App R 304 in relation to the words ‘any issue in those proceedings’ as contained in s. 74(1) of PACE. ” 20. Sir Timothy submitted: first, that section 74 as a whole was a provision that should be sparingly used, as this Court said in relation to section 74(1) and (2) in R v. Roberston & Golder (1987) 85 Cr App R 304 , CA, at 312; second, that a judge, before admitting such evidence, should make a properly informed consideration of the purpose for which it is to be put before the jury; and third, that there should be a careful direction to the jury as to that purpose and its limitations, citing R v. Kempster (1990) 90 Cr App R 14 , CA, at 22; and R v. Hillier & Farrer (1993) 97 Cr App R 349 , CA, at 355-6 . 21. All of those strictures in the authorities cited by Sir Timothy clearly govern the admission into evidence of a previous conviction of someone other than the accused under section 74(1) and (2), and the second and third are logically equally applicable to the admission into evidence of an accused’s previous conviction under section 74(3). Given the pre-existing law as to the latter, there may be some scope for debate as to the applicability of the first, that it should only be sparingly used. But the scope for differentiation between the two provisions in that respect must be so narrow as to be insignificant and - since the ultimate gatekeepers are the rules as to the admissibility of similar fact evidence in R v. Clarke [1995] 2 Cr App R 425 , CA, at 433, and DPP v. P [1991] 2 AC 447 , at 460, and as to fairness in section 78 – academic. 22. Now, as we have said, Sir Timothy’s true complaint under this first ground of appeal was that Jowitt J. wrongly told the jury that the first jury’s conviction of the appellant on the firearm charge had not been on the basis that the appellant had brought the rifle back from the Gulf with the intent to use it kill anyone who attacked him. He maintained that, in so directing the jury, the Judge was wrongly attributing to the appellant something he had not said at the first or the second trial. He pointed out, as was the case, that the appellant had said just that. He suggested that the Judge’s observation was a mistake that unfairly undermined the appellant’s credibility before the second jury because it may have persuaded them that the first jury had disbelieved some of his evidence, when he had effectively admitted the firearm offence – one of a continuing nature - in evidence at the first trial. He placed much emphasis on this complaint because the appellant’s credibility was a central issue on his main defence of diminished responsibility and to a lesser extent on that of provocation. 23. As to the admissibility of the evidence of the conviction, Mr. Smith submitted, in reliance on section 74(3), that the evidence of the previous conviction was highly relevant to the issue of the appellant’s intent at the material time, an issue which, though not in the forefront of the defence case, was nevertheless a significant part of it. Indeed, the clear thrust, as Mr. Smith put it, of the appellant’s evidence was that he had no such intent on that day. He had called in support of that contention a consultant psychiatrist, Dr. Jones who had suggested that he may have been suffering from mindlessness or automatism at the time so as to deprive him of the capacity to form the requisite intent for the offence of murder. It followed, said Mr. Smith, that the facts of the conviction and that the appellant on the day of the killing had cleaned, assembled, loaded and taken the rifle in his car when he set out to find Miss Fletcher were both highly relevant to the prosecution contention that he had had the rifle at the time with intent to endanger life and to the appellant’s case that he had had no specific intent to endanger Miss Fletcher’ life. He added that, although the Judge in his initial ruling on the matter had not expressly referred to section 74(3) or, in the absence of any challenge by the defence, to section 78, the evidence was so obviously relevant and probative on the issue of intent raised by the defence, that his decision to admit it into evidence could not have been properly challenged. 24. As to Jowitt J’s. reference to the conviction in his summing-up, Mr. Smith submitted that the Judge dealt with the matter fairly, correctly identifying the precise charge of which the first jury had convicted the appellant and its relevance to the issue of the appellant’s intent when he set out to find Miss Fletcher on the day that he killed her. He also submitted that the prosecution’s case and evidence as to intent at the material time were overwhelming, instancing: the appellant’s careful and deliberate preparation of the rifle for use, his stowage of it in the boot of his car, his conduct and movements preceding his final fatal confrontation with Miss Fletcher, his deliberate and well-aimed shooting of her in two separate bursts of fire and his conduct afterwards. 25. We agree with Mr. Smith’s contentions. As Jowitt J. said, when he canvassed the matter with counsel at the start of the trial, the firearm charge of which the first jury had found the appellant guilty was not of a continuing offence. It was confined to the day of the killing of Miss Fletcher, 7 th May 1998, and clearly to the circumstances of that day leading up to and connected with the appellant’s use of the rifle to shoot her. And, as Jowitt J. pointed out at that early stage, what mattered in the context of the first jury’s conviction of that offence and of the appellant’s admission of the conviction was not what the appellant had admitted or intended to admit at the first trial. What mattered was the form of the charge, how the prosecution and Holland J. had put the case to the jury and the jury’s verdict of guilty of the offence as charged. It is plain from Holland J’s summing-up, of which the Court has a transcript that, although such an offence was capable of being charged as a continuing one, the prosecution and he focused, true to the confines of the charge in question, on the circumstances of 7 th May 1998 leading to the shooting of Miss Fletcher. 26. This is how Holland J. had dealt with the matter in his direction to the first jury, a direction that conformed with this Court’s analysis in R v. Bentham & Ors [1973] QB 357 , at 362-363, of the mischief at which that statutory offence is aimed. Having defined the offence to the jury, he said: “The Prosecution say that is the offence that Dr. Shanks committed, as it is alleged, on the 7 th of May, and they say you can be sure and satisfied about that. There are two elements to it. The first is, they say you can be sure and satisfied that he had had in his possession on that day that AK 47 rifle with a loaded magazine attached to it. And they say you can be further sure and satisfied he had the intent to endanger life with it. Now, as to that last concern, what this part of the law is aimed at has been said to be as follows, I quote, ‘The mischief at which the Section is aimed must be that of a person possessing a firearm ready for use, if and when the occasion arises, in a manner which endangers life.’ … The Prosecution say, a very clear case. First, look at the AK 47. It is, they submit, effectively a machine for killing, that is people, it has no other function. Second, on the 7 th May it was made ready for use; it was cleaned and, more importantly, the magazine with 21 rounds was attached to it. When it was in that state the only function it could conceivably have was to endanger life if and when the occasion arose. And finally they would point to certain things said by Dr. Shanks when he gave evidence to you which, they would submit, is consistent with effectively admitting the offence. …..” 27. Now, Jowitt J., in his direction to the second jury, did not misrepresent the effect of the first jury’s conviction by emphasising in the passage that we have set out that it had not been on the basis of some general admission of the appellant to a continuing offence of possessing the rifle with intent to kill anyone who might attack him. The conviction was, as he made plain to the second jury, of possession of the gun on the day he killed Miss Fletcher with intent to endanger life, whatever may have been his mental state at the time when he shot her and regardless of whatever other explanation he had given for his long-standing possession of the weapon. Nothing that Jowitt J said went to undermine the appellant’s account about the latter or could, on that account, have gone to his credibility on the issues of diminished responsibility or provocation. Accordingly, we dismiss the first ground of appeal. Ground 2 – the direction that the jury were bound by the first jury’s conviction of the firearm offence 28. Sir Timothy’s second complaint was that the second jury were not bound by the first jury’s conviction on the firearm offence as to the state of mind of the appellant at the time he killed Miss Fletcher and that the Judge should not have told them that they were. The first point to make about that submission is one that we have just made in relation to the first ground of appeal. Jowitt J. did not direct the jury that the effect of the first jury’s verdict was that at the time of the killing of Miss Fletcher he must have possessed the rifle with intent to endanger life. True to the indication that he had given when first discussing the matter with counsel, he clearly distinguished between the effect of the first jury’s verdict that, “at some stage during the day” of the killing he had had the rifle with intent to endanger life, and the issue for the jury on the charge of murder as to his intent when he shot her with it. 29. It follows, therefore, that to the extent that the Judge told the jury that they were bound by the first jury’s conviction on the firearm offence, he correctly directed them of the effect of the first jury’s verdict on the charge before them, namely that he had had the rifle at some time on the day of the killing of Miss Fletcher with intent to endanger someone’s life, not necessarily hers. Sir Timothy’s reliance on high authority, including the House of Lords’ decision in R v. Humphrys [1977] AC 1 , against importing notions of issue estoppel or res judicata into the criminal law to overcome that legal outcome, ignored the specific statutory exception to such notions introduced by section 74(3) of PACE, the provision on which Mr. Smith has relied. 30. It is true that, under that provision, the binding effect of a previous conviction properly admitted into evidence is not absolute, since section 74(3), in its concluding words, enables a defendant, if he can, to prove that he has not, despite the conviction, committed the offence. As Mr. Smith submitted, there is thus a statutory presumption of the correctness of a previous conviction unless a defendant proves to the contrary on a balance of probabilities, similar to that in the comparable provision in section 11 of the Civil Evidence Act 1968 ; see Hunter v. Chief Constable of the West Midlands [1982] AC 52 , HL, per Lord Diplock at 544. As it happens, the Judge, in giving this part of the direction about the previous conviction, did not tell the jury that it was only binding on them if the appellant did not prove to the contrary But, as we have said, that is not what the appellant sought to do here, quite the contrary. At the first trial he had effectively admitted the offence of which he was convicted, and at the second trial he admitted that conviction, whatever the basis upon which he made that admission. 31. In the result, the fact that the Judge did not inform the jury of the qualifying provision of section 74(3) is academic on the issue of intent on the charge of murder. He had correctly directed them as to the relevance and limitations of the conviction as to proof of intent to kill her, and with obvious regard to the other and more central issues of diminished responsibility and provocation. The jury clearly found against the appellant on those issues, in respect of which there is no appeal, and, on the issue of intent, in respect of which the prosecution case and evidence were, as we have said, overwhelming. Accordingly, we also dismiss the second ground of appeal. 32. The appeal against conviction of murder is, therefore, dismissed. _____________________	{"ConvCourtName":["Crown Court at Sheffield"],"ConvictPleaDate":["2000-04-19"],"ConvictOffence":["Murder","Possessing a firearm with intent to endanger life","Possessing a prohibited weapon"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Sheffield"],"Sentence":["Life imprisonment for murder","12 years imprisonment for possessing a firearm with intent to endanger life","9 years imprisonment for possessing a prohibited weapon"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Defendant's admissions","Expert psychiatric evidence","Physical evidence (firearm, ammunition)","Witness testimony"],"DefEvidTypeTrial":["Expert psychiatric evidence (diminished responsibility, PTSD, depression)","Defendant's testimony"],"PreSentReport":[],"AggFactSent":["Deliberate preparation and use of firearm","Multiple shots fired at victim"],"MitFactSent":["Mental health issues (clinical depression, PTSD)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Misdirection to jury regarding effect of previous conviction","Jury wrongly told they were bound by previous conviction"],"SentGuideWhich":["section 74(3) of PACE"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge correctly directed jury as to effect and limitations of previous conviction; no misdirection; overwhelming evidence of intent; no prejudice to appellant's credibility"]}
No. 2005/04573/D1 Neutral Citation Number: [2006] EWCA Crim 2512 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 7 September 2006 B e f o r e: LORD JUSTICE SCOTT BAKER MR JUSTICE JACK and MR JUSTICE MITTING __________________ R E G I N A - v - MARTIN TIMOTHY O'HARE __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR A J BARNES appeared on behalf of THE APPLICANT MR I WHITEHURST appeared on behalf of THE CROWN ____________________ J U D G M E N T LORD JUSTICE SCOTT BAKER: 1. On 19 November 2004, in the Crown Court at Liverpool, the applicant, Martin O'Hare, was convicted by a majority of 10:2 of a single offence of wounding with intent contrary to section 18 of the Offences against the Person Act 1861 . He was sentenced by Mr Recorder Halliwell to four years' imprisonment. His application for leave to appeal against conviction was referred to the full court by the single judge, as was his application for an extension of time. 2. On 3 May 2006, the applications came before another division of this court presided over by Hallett LJ. She adjourned the applications to a date to be fixed and gave certain directions. 3. The sole ground of appeal is that it is claimed that another man, David Bellamy, the nephew of the applicant, has confessed that he committed the offence and in consequence it is alleged that the applicant's conviction is unsafe. 4. The facts of the case can be described as follows. There was a background to the offence. On Saturday 28 February 2004, at the Tenterhook, a public house in Kirby, Mersyside, there was an incident between the complainant, Stephen Wafer, and Teddy O'Hare, a brother of the applicant. Teddy and Wafer had an argument over Wafer's conduct in the presence of Teddy's 17 year old granddaughter, after which Wafer struck Teddy, who lost two teeth as a result. Although (with Wafer's cousin, John Madden, acting as peacemaker) Wafer and Teddy sorted the matter out, Teddy was left with a sense of grievance. 5. By the following Thursday, 4 March, Teddy's brother Tommy was on notice of the incident and he informed his brother Martin (the applicant), who was the youngest and the biggest O'Hare brother, and therefore, according to Tommy O'Hare, the brother most able to sort matters out. The applicant was indignant at Wafer and John Madden and he wanted things sorted out. 6. The following evening, Friday 5 March, the applicant went to the Tenterhook for the purpose of seeing the two men whom he believed to have assaulted Teddy, but to no avail. On the following afternoon, Saturday 6 March, Wafer and Madden were in the Tenterhook where, at about 4.30pm, the applicant came in with Paul Irwin. At the applicant's invitation Wafer and Madden stepped outside, followed by Irwin. On the prosecution's case the applicant and Irwin pulled out knives and after a chase over about half a mile Wafer was hit, kicked and stabbed by at least one attacker. It was not disputed that Wafer was wounded and that the wounding was unlawful. The prosecution case was that the applicant was the perpetrator jointly with another. The issue for the jury was whether or not the applicant took part in the wounding and with the necessary intent. 7. Stephen Wafer said in evidence that after the first incident he and Teddy quickly made it up and bought each other drinks. In the afternoon of the next Saturday he was in the Tenterhook with John Madden when they were invited to come outside by the applicant, who had Irwin with him. When they were all outside the applicant accused him of having hit his brother Teddy, and Irwin produced a knife and tried to stab John Madden. When the applicant also produced what he took to be a knife, he ran off. As he ran he rang the police on his mobile telephone and said that he was being chased by two men in black, one carrying a knife. The two men caught up with him at an open space and they both punched, kicked and stabbed him. Later in hospital he described the taller attacker as skinny and shaven-headed, but in cross-examination he accepted that that was an inaccurate description but said that he was under stress at the time that he had given it. 8. On 26 March 2004 Wafer identified the applicant by video procedure as the man who had invited him outside and as one of his attackers. 9. Madden's evidence was that outside the public house both the applicant and Irwin produced knives and when Irwin lunged at him with his he escaped back into the pub. There he rang first the police and second his father, Bernard Madden, who promptly came to the pub. He and Bernard Madden went together round to Teddy's and thereafter went to look for Wafer. They found him bloodied and barely conscious. 10. Bernard Madden's evidence was that he was worried about Wafer, so he and John Madden went round to Teddy's. While he was there Teddy made two telephone calls, one apparently to the applicant, after which Teddy said to him, "They've got him". Thereafter, he (Bernard Madden) and John went to look for Wafer and found him. 11. The manager of the Tenterhook, Ian Oliver, and his wife, Susan Oliver, said that Wafer and Teddy had made up soon after the first incident. They said that the applicant was one of a group of about half a dozen men who came to the pub on the following Friday. Mrs Oliver said that the men were looking for Wafer and Madden. Mr Oliver said that he recognised the applicant as one of the men who the following day (Saturday the 6th) chased Wafer as he ran from the pub. 12. The applicant gave evidence at his trial. He said that he went to the Tenterhook on Friday 5 March in order to see and in a way sort out the two men whom he believed to have assaulted Teddy, but he went with only one companion, Francis Marr, not six as was the Crown's case. He wanted to bring Wafer and Madden down to size. When he and Irwin went into the pub the following day, the 6th, Tommy O'Hare pointed out Wafer and Madden. Once outside the pub with them he raised the question of Teddy's age (57) with Wafer, who threw a punch. There ensued a scrimmage, rather than a fight, after which Wafer ran off; so did Madden. The applicant then walked over to the shops, where he was picked up by Derreen Daley, his long-term partner, and they went home to Prescot. 13. Paul Irwin said in evidence that no one threw a punch. Wafer ran at the applicant and there was a scuffle, after which the applicant stepped back and Wafer and Madden ran off. He (Irwin) went into the pub and sat in the corner where Tommy O'Hare had been. Later the Maddens arrived at the pub with bats. 14. Teddy O'Hare said in his evidence that Madden was the peacemaker after the first incident, but he and Wafer did not then buy each other drinks. He agreed that Bernard and John Madden came round on the next Saturday afternoon, but denied ringing the applicant in their presence. He only pretended to make a call because he wanted them to leave. 15. Tommy O'Hare gave evidence, in addition to his evidence of notifying the applicant of the first incident, to the effect that about a quarter of an hour after the incident, outside the pub where there was a scuffle, the Maddens arrived at the pub with bats. 16. Derreen Daley's evidence was that she picked up the applicant as he had said. 17. We turn next to the evidence of confession by Bellamy that is sought to be admitted as fresh evidence. This can be divided into two. First, during a prison visit by Paul Bibby, Keith Taylor and David Bellamy to the applicant in prison, Bellamy confessed that he was guilty of wounding Wafer. That was said to have occurred on 1 February 2005. Second, at a family meeting on 6 February 2005, a number of members of the applicant's family, including Paul Bibby and Keith Taylor, heard the applicant again confess to the wounding. 18. Neither the applicant nor Bellamy is present at court today. On 27 June 2006, Hallett LJ gave directions on paper that the applications, with appeal to follow if the applications were successful, were to be listed with a two-day time estimate. The applicant was to be produced if he wished to be present. All witnesses the parties sought to call were to be present. Any application for a witness order was to be supported with information indicating why one was necessary. The applicant has not been present at court today. He has waived his right. We have seen the relevant documents. The prison where he is currently held say that it is too late to make arrangements to bring him here tomorrow should the court require that. The applicant's non-attendance is inconsistent with his counsel's wish to call him to give evidence about the alleged confession in the prison on 1 February 2005. We were today handed a statement of the applicant made on 14 July 2005. The court had not seen it before; nor had prosecuting counsel. Nor has any application been made to adduce fresh evidence from the applicant. The statement is brief; it says as follows: "On Tuesday 1 February at 17.45 I was visited in Walton Prison by my nephews Paul Bibby and David Bellamy, and my brother-in-law Keith Taylor. I found the visit really upsetting as I was seeing close family members for the first time since I had been put in prison. So far I had only seen my partner and my daughter. Paul and Keith seemed really upset at seeing me inside knowing that I had not committed any crime. My other nephew David seemed really on edge. He had his head down and wouldn't look me in the eye. I said to David that it was out of order what they had done to me and that he was going to have to come forward. He had previously told me to keep my head down because the police had nothing on me. David first said, 'I'm going to see a solicitor to get advice', and then said, 'I'm going to hand myself in'. Paul and Keith just sat there when they heard this. They seemed to be really shocked. I had been really upset since the start. At the end of the visit I said to David that he had to get it sorted and hand himself in." Mr Whitehurst for the prosecution, who saw this statement for the first time this morning, said that if the court was minded to proceed to hear evidence, there was a number of further enquiries that he would wish to make and questions that he would wish to ask in cross-examination. Not least was he interested in the reference that the applicant had previously been told to keep his head down because the police had nothing on him. 19. There appears to have been some confusion. It may be that the applicant waived his right to attend under a misapprehension, not appreciating that the appeal and any oral evidence would follow a successful application for an extension of time and for leave to appeal. For present purposes we have proceeded on the basis that it is not the applicant's fault that the necessary application and service has not taken place with regard to his proposed evidence. Had we granted permission to appeal, we should have adjourned the full appeal for him to be present and any necessary procedural steps to be taken. He has, however, no right to be present on a leave application and, as we have observed, he has in any event elected not to come to court. 20. Bellamy made it clear to the applicant's solicitors that he did not wish to make a statement about the case. On 1 August 2006 he responded to a letter from the applicant's solicitors of 21 July. He said that he had spoken to his solicitor; he had no information to give and no statement to make regarding the solicitor's client Mr O'Hare. Bellamy has been approached by a police officer independent of this case and has declined to be interviewed about it. However, he commented in a telephone call made to him by Detective Sergeant Ford that he was "being stitched up". That was on 7 June 2006. 21. Those advising the applicant applied at a very late stage, namely earlier this week, for a witness order requiring Bellamy to attend. A copy of that order was left at his address yesterday. It is said that he is abroad on holiday. No reason has been given why a witness order application was not served earlier. The applicant's solicitors have his address and have been aware of where he could be contacted at least since the beginning of August 2006. No application has been made for an adjournment so that Bellamy could attend. There is nothing to indicate that had he come to court he would have said anything that could have assisted the applicant. Indeed, the reverse appears to be the case. 22. Eleven witnesses have, however, attended at court today with a view to giving evidence -- some under compulsion, some voluntarily. Apart from Richard Draper, the case worker with the applicant's solicitors, who deals with the timetable and procedure of taking witness statements, all the witnesses speak of the alleged confessions of Bellamy on the 1st and 6th February 2006, and they do so in very similar terms. The applicant's proposed appeal depends entirely on the admission of the evidence of these witnesses and the applicant himself that Bellamy confessed to the crime in February 2005. 23. The admission of fresh evidence is covered by section 23 of the Criminal Appeal Act 1968 . Section 23(1) so far as relevant provides: "For the purposes of an appeal .... the Court of Appeal may, if they think it necessary or expedient in the interests of justice -- .... (c) receive any evidence which was not adduced in the proceedings from which the appeal lies." Subsection (2) requires the court, in considering whether to receive any evidence, to have regard in particular to four matters: (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. 24. This application has focused in particular on (a), whether the evidence appears to the court to be capable of belief, and to a lesser extent (c), whether the evidence would have been admissible. We observe that, although the court is required to take into consideration the four matters we have outlined, there is an over-riding power to admit fresh evidence if the court thinks it necessary or expedient in the interests of justice. If we do not think that the evidence is capable of belief, that it seems to us is effectively the end of the matter in this case because the safety of the conviction is not therefore impugned. 25. However, apart from subsection (2)(a), there is a further hurdle for the applicant to cross, namely whether the evidence would have been admissible ( section 23(2) (c)). It is common ground that the evidence of the witnesses is hearsay and not admissible at common law: see R v Myers [1965] AC 1001 and R v Blastland [1986] AC 41 . There is strong authority for the proposition that the court will never receive evidence that is inadmissible in law: see R v Lattimore (per Scarman LJ) 62 Cr App R 53, 56, and R v Wallace and Short (per Roskill LJ) 67 Cr App R 291, 294. 26. But section 114 of the Criminal Justice Act 2003 provides a new code for the admission of hearsay. It provides: " Admissibility of Hearsay Evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if -- (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible." In making an assessment under subsection (1)(d) the court is required, amongst others, to have regard to various specified factors which it is not necessary for present purposes to outline. 27. Section 114(1) (a), which refers to "any provision of this Chapter or any other statutory provision", directs the reader in the present case to section 116, which covers cases where a witness is unavailable. But it is accepted that the circumstances of Bellamy's absence at court today do not bring into play any of the provisions of section 116. The only possible avenue, therefore, open to the applicant is section 114(1) (d), the sweeping-up interests of justice provision. 28. This case was tried before section 114 came into force. We have been referred to R v Bradley [2005] 1 Cr App R 397 and also R v H [2005] EWCA Crim 2063 , Times 2 August 2005, where it was held that in the event of a retrial the new provisions would apply. It was pointed out by Longmore LJ in R v Hussain [2005] EWCA Crim 31 that, where between conviction and appeal there had been significant changes in the common law or standards of fairness, the court is required to apply modern legal rules and procedural criteria, even though they could not have been applied at the time: see paragraph 24. 29. Mr Whitehurst for the respondent very fairly takes no point on the evidence not having been admissible under the law on hearsay as it was at the time of the trial. We have in mind that the overriding consideration is the interests of justice. Had we thought that the fresh evidence in this case was or might be credible, we would not have regarded section 23(2) (c) as fatal to its admission. However, in the event that matter does not strictly arise because of the conclusion that we have reached with regard to section 23(2) (a), to which we now turn. 30. We start with the observation that the maker of the statement, David Bellamy, is not at court. What he said is not admissible by virtue of the code carefully provided by Parliament in section 116. We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory. What is sought to be admitted is secondhand evidence of what Bellamy said. The evidence of all these witnesses does not appear to us to be capable of belief for the following reasons. This is not a case where the court has felt it necessary for the witnesses to be called and cross-examined de bene esse before a decision could be made. In our view, looking at the case as a whole and the proposed evidence of the witnesses against that context, the facts speak for themselves. In reaching our conclusion that the evidence is not capable of belief we have the following matters in mind: (1) There is nothing from David Bellamy himself to indicate that he confessed to the crime. Indeed, the only observation attributable to him is that he was being set up. (2) The alleged confession is witnessed only by family members or the wider family of the applicant. Further, not everyone was prepared to co-operate. The chronology of preparation of statements is in our judgment revealing. The very first statement that is taken is from the applicant's partner, Derreen Daley; the second from his daughter. In her second statement (the first statement has not been provided to the court) she makes no reference to any prior knowledge of the confession in the prison -- a matter which, if it had occurred, we would have thought she would have been well aware of from an early stage. (3) The alleged confession was made at a meeting which was set up for the purpose of discussing ways to get the applicant out of prison. (4) There was clear evidence implicating the applicant. He was picked out on a video identification. By his own admission, the applicant went to the public house in question with Tommy O'Hare who identified the victim, Wafer, to the applicant, who then asked Wafer and Madden to step outside, which they did. Whilst it is disputed what happened outside the public house, it was common ground that there was an altercation in which both the applicant and the victim were involved. The background up to this point shows not only that the applicant had a motive for violence, but he was in fact involved in violence. The victim was then chased -- he says by two men. His identification of the man who subsequently attacked him is that it was the person who had had the altercation with him outside the public house and chased him. This is not, therefore, one of those worrying kinds of identification case. The identification of the applicant was that he was the same person who had been involved in the earlier part of the incident. In his 999 call Wafer said he was being chased by two men in black and that one was carrying a knife. This is inconsistent with the stabbing being by Bellamy following a chance meeting. If Bellamy's alleged confession was made and is true, it means that he, a nephew of the applicant, was in the area at the time and just happened to come across the victim as he was trying to get away from the applicant. Bellamy was in the company of a person unnamed, and they both proceeded to punch, kick and stab the victim -- all because the victim had his hands in his pockets. When he removed them, Bellamy and his friend launched an assault because they were unsure what Wafer was going to do next, there previously having been some trouble between Bellamy and Wafer. This is not a case where, therefore, Bellamy was completely unknown to Wafer. This points to the fact that if Bellamy's evidence is right, there is little, if any, room for error on the part of the victim. This is a case where he would deliberately have said that someone other than the attacker found guilty of attacking him had attacked him. 31. In our judgment the fresh evidence has all the hallmarks of a concocted and contrived account designed to get the applicant out of prison -- the very purpose for which the meeting on 6 January had been set up. 32. That is not entirely the end of the matter because our attention has also been drawn to a letter written by the applicant to the judge between conviction and sentence in which he asked the judge to consider his position. In this letter there appear the following two passages (amongst others): "I would like to tell you that I found myself in a situation that was beyond my control. It was not my intention to cause harm or injury to anyone and I bitterly regret that a man was injured during this incident. .... I know in my heart that I will never put myself in a position where I would be foolish enough to be a cause of trouble. I have learned a hard lesson...." It is true that this letter does not go so far as to admit specifically guilt of the offence and it is possible to construe it as relating only to the earlier part of the incident in which the applicant admits being involved. But, that said, it certainly is of no assistance to his case. 33. The bottom line in our judgment is that the confession that is alleged to have been made has not been substantiated by the confessor. If anything, the reverse is the position because he says that he was being set up. We do not think, having considered on paper the evidence of these numerous family members in relation to the circumstances of the rest of the case, that the evidence is capable of belief. In these circumstances, although we would be prepared and do grant an extension of time, we refuse the application for leave to appeal. _______________________________	{"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2004-11-19"],"ConvictOffence":["Wounding with intent contrary to section 18 of the Offences against the Person Act 1861"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Liverpool"],"Sentence":["4 years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Male"],"VicAgeOffence":[57],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Video identification","Eyewitness testimony"],"DefEvidTypeTrial":["Offender denies offence","Alibi claim"],"PreSentReport":[],"AggFactSent":["offence committed with a knife","offence involved a chase and group violence"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Fresh evidence: alleged confession by another (David Bellamy)"],"SentGuideWhich":["section 18 of the Offences against the Person Act 1861","section 23 of the Criminal Appeal Act 1968","section 114 of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Fresh evidence (alleged confession) not capable of belief","No substantiation from alleged confessor","Evidence from family members only, with signs of being contrived","Clear evidence implicating the applicant including identification","No admissible evidence from the alleged confessor"]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. I N THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 60 Case No: 2023/01498/A1 Royal Courts of Justice The Strand London WC2A 2LL Friday 19 th January 2024 B e f o r e: LORD JUSTICE COULSON MRS JUSTICE FOSTER DBE MR JUSTICE HILLIARD ____________________ R E X - v - ABDUL ROSTAMI ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Non-Counsel Application ____________________ J U D G M E N T ___________________ LORD JUSTICE COULSON: 1. The applicant is now aged 33. On 21 st February 2022, in the Crown Court at Newcastle Upon Tyne, he changed his plea to guilty to one offence of kidnapping (count 1) and one offence of robbery (count 2). On 18 th July 2022, he was sentenced by Her Honour Judge Clemitson (“the judge”) to 10 years' imprisonment. 2. The applicant now renews his applications for an extension of time (257 days) in which to apply for leave to appeal against that sentence, following refusal by the single judge. 3. The applicant had been involved in some sort of business deal with a man named Abdul Jabar, which went wrong. Jabar had a shop and a flat in Gateshead and employed two men, including Hardi Ahmadi, who lived in his flat and worked in his shop. The takings from the shop were kept in a drawer in the flat, although only the two men and Mr Jabar knew of its precise whereabouts. 4. The applicant and a man called Saeed drove in a van through the night from Ipswich to Newcastle. A co-accused, Salih, was a passenger in the van. Another car was driven in convoy with the van. That car was owned by the applicant and occupied by three men, including two co-accused, Staskauskis and Straksys. At some point a decision was made by the applicant to kidnap one of the young men who worked in Jabar’s shop. The applicant and Saeed went to Tesco in Kingston Park, from where they bought duct tape and latex gloves. The two vehicles were driven to Gateshead and Hardi Ahmadi was intercepted on his way to work. 5. He was bundled into the back of the van. His head was covered with a blanket and his hands and legs tied at the back with duct tape. Duct tape was also used to cover his eyes. The men demanded that he tell them where the money was. He was badly beaten and the men threatened to stab him in the heart. Ahmadi thought he was going to die and recited a Muslim prayer apposite for the moment before dying. 6. Ahmadi subsequently told the men where the takings were. They had taken the key to the flat and some of them, including the applicant, went to the flat and removed between £6,000 and £7,000 from the drawer. 7. During this time Ahmadi remained bound in the back of the van. He was told that if he made a noise, he would be killed. He was struggling to breathe. He said that he saw his life flash before his eyes and he thought that he was going to die. Whilst away from the van, the applicant received a call from his co-accused Staskauskis telling him that Ahmadi was praying for his life and "did not look good". Once the money had been taken, Ahmadi was dumped behind a pile of sand in a car park in County Durham. He was bleeding and was still bound, with tape still over his eyes. Ahmadi was found by members of a walking group who happened to be passing nearby. The police were called, and they identified the van from CCTV footage. 8. The van was stopped by police officers in Yorkshire on its way back to Ipswich. The applicant, Straksys and Staskauskis were in the van and immediately arrested. The best part of £9,000 was recovered from a backpack inside the van, along with the blanket, the duct tape and the gloves. The car in which Saeed, Salih and another man were travelling was not intercepted. Of those three, only Salih was later found by the police and arrested. 9. When the judge came to sentence the applicant and the co-accused, she said that she was quite sure that Saeed and the applicant were the prime movers in the venture. She said that she was sure that the applicant had travelled to the northeast “in order to relieve Abdul Jabar of a significant amount of money or other property such as cigarettes”. 10. As to the particular factors relevant to the applicant, the judge said this: "Abdul Rostami, you are 31. You have five convictions for eleven offences. They include several offences of assault for which you have previously been sent to prison and more recently you were made the subject of a suspended sentence of imprisonment for a drugs offence and evasion of duty. You sustained a significant head injury and possibly, as a consequence of that, you suffer some symptoms which are being addressed by cognitive behavioural therapy. Otherwise, you have no diagnosed mental illness or disorder. You do have some very real and significant physical health difficulties which resulted in surgery in October 2020. It is of note that that surgery took place before you committed these offences." 11. There are no sentencing guidelines in respect of kidnapping. The judge said that the appropriate way to arrive at a proper sentence in this case was to consider these offences together as a robbery, aggravated by the offence of kidnapping. The judge said that for the purposes of the robbery guidelines, this was akin to a professionally planned, commercial robbery, albeit that the lack of sophistication had to be marked by an appropriate downwards adjustment within that guideline. She found that the harm fell withing category 2; and in the case of the applicant, his leading role meant that his culpability was in category A. A category 2A offence has a starting point of nine years' custody and a recommended range of 7 to 14 years imprisonment. The judge identified the various factors to which we have already referred, and also other aggravating features, namely: the steps taken to prevent the victim from reporting the offence or obtaining assistance; the prolonged nature of the attack; the restraint and detention of the victim for a lengthy period of time; and the ongoing impact on the victim. 12. Taking all those matters into account, the judge identified a starting point of 11 years' imprisonment. In so doing, she had regard to the aggravating factors and the applicant's leading role, but also to his significant personal mitigation. She reduced the starting point of 11 years by ten per cent, being the credit for his late guilty plea, thus arriving at the term of ten years' imprisonment. 13. The single judge refused leave to appeal on the basis that there was nothing in any of the criticisms belatedly raised by the applicant. He also refused the extension of time. He said: "The reality is that you were correctly advised that your appeal has no merit. This did not justify what was then a very substantial delay in bringing your appeal." 14. In our view, the single judge was plainly right to refuse an extension of time. There was no explanation at all for the delay in making this application. 15. Furthermore, we consider that the single judge was also right to conclude that there was nothing in any of the grounds of appeal in any event. Working our way through the undated, handwritten grounds of appeal received by the Criminal Appeal Office on 16 th August 2023, our brief conclusions are as follows. 16. First, it is said that the applicant was given the maximum sentence of ten years' imprisonment because the CPS changed their minds and said that, rather than playing a lesser role, the applicant had played a leading role. 17. This complaint is misconceived. Although the applicant had put in a basis of plea that sought to minimise his role, that was not accepted by the Crown. On the basis of the material before her, the judge concluded that the applicant had played a leading role. On the material that we have seen, that was the correct categorisation. 18. Secondly, it is said that the applicant was not given credit for his guilty plea. But he plainly was. He pleaded guilty only on the day of trial, so was not entitled to more than ten per cent credit. The judge was careful to give him that credit, otherwise, as she said, "You would have been sentenced to 11 years' imprisonment". 19. Thirdly, the applicant complains that the other defendants received lesser sentences, and the applicant suggests that this was "blatantly wrong". Again, we consider that the complaint is misconceived. The co-defendants received lesser sentences because their roles were less significant and therefore their culpability was lower. Of the defendants before the court, it was only the applicant who played a leading role. It was therefore inevitable that he would receive a longer term of imprisonment. 20. Furthermore, the applicant had a worse record than any of his co-defendants, including convictions for offences of violence. The judge was correct to say that this demonstrated "a vicious side to your nature and a propensity to use gratuitous violence". In addition, the author of the pre-sentence report identified the applicant as posing a significant risk of causing serious harm, despite the fact that the author was unaware of the previous offending. There were, therefore, a number of aggravating factors in the applicant's case which simply did not apply to the other defendants. 21. Furthermore, we consider that the judge would have been entitled to consider the applicant to be a dangerous offender and to impose an extended sentence. She said that expressly at page 6E of her sentencing remarks. However, she decided, because of his age and his state of health, together with the time that he would spend in custody, that she would not impose such an order. In our view, that was a merciful conclusion and one that other judges may not have reached. The applicant can therefore count himself fortunate that he was not given a longer sentence. 22. For those reasons, therefore, we consider that there is nothing whatever in this renewed application for leave to appeal against sentence. Both the renewed application for leave to appeal and the renewed application for an extension of time are therefore refused. _________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________	{"ConvCourtName":["Crown Court at Newcastle Upon Tyne"],"ConvictPleaDate":["2022-02-21"],"ConvictOffence":["Kidnapping","Robbery"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on day of trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Newcastle Upon Tyne"],"Sentence":["10 years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[31],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Other"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony","Physical evidence (duct tape, blanket, gloves, money)"],"DefEvidTypeTrial":["Basis of plea (minimising role)"],"PreSentReport":["High risk of harm"],"AggFactSent":["steps taken to prevent the victim from reporting the offence or obtaining assistance","prolonged nature of the attack","restraint and detention of the victim for a lengthy period of time","ongoing impact on the victim","offender has previous convictions for violence","offence committed while subject to a suspended sentence"],"MitFactSent":["significant personal mitigation","significant physical health difficulties","surgery in October 2020 before the offence","age of the offender"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[5],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Applicant was given maximum sentence because CPS changed their minds about his role","Applicant was not given credit for guilty plea","Co-defendants received lesser sentences"],"SentGuideWhich":["Robbery sentencing guidelines"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["no explanation for delay in making application","applicant played a leading role","credit for guilty plea was given","co-defendants had lesser roles and lower culpability","applicant had worse record than co-defendants","aggravating factors applied to applicant","sentence within guideline range","judge was merciful in not imposing an extended sentence"]}
Case No: 201106761 A6 Neutral Citation Number: [2012] EWCA Crim 86 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE WOOLWICH CROWN COURT HIS HONOUR JUDGE CRAWFORD LINDSAY QC T20117304 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2012 Before: LADY JUSTICE HALLETT DBE MR JUSTICE IRWIN and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between: R Appellant - v - ZEPHEN ROLLINGS Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr E Garnier QC HM Solicitor General & Mr L Mably for the Attorney General (instructed by The Crown Prosecution Service ) for the Appellant Miss A Kettle-Williams (instructed by J B Wheatley Solicitors ) for the Respondent Hearing date: 25 January 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Hallett: 1. On 6 July 2011, at about 12.30 pm police officers from the Southwark Drugs and Firearms unit were preparing to execute a search warrant at a flat in Brockley, south London, the home of offender’s girlfriend when they became aware that the offender was outside in a mini-cab. The officers approached the cab, and detained the offender. 2. He was wearing a small leather bag over his shoulder. The bag was searched. Inside, the police found a handgun wrapped in a yellow dust cloth. The serial number had been removed. It was a .357 Magnum calibre Smith and Wesson revolver with a six-shooting swing out cylinder in full working order. In the cylinder were two Federal Hydra-Shok .38 special calibre cartridges and three .357 magnum calibre PMP cartridges. The ammunition was live and, on test firing, the bullets were found to mushroom on impact. They were what are commonly known as “dumdum” bullets, a particularly dangerous kind. 3. The offender was arrested and cautioned. He said: ‘Can you do me a favour? Please don’t tell my girlfriend.’ When asked whether the gun had been at her house, he replied: ‘No, well only this morning.’ Later that day he was interviewed under caution in the presence of his solicitor. The offender made no comment to all material questions. He was then charged. Subsequent DNA analysis of a swab taken from the gun produced a full DNA profile which matched that of the offender. The probability of such a match in the event that the DNA on the gun was from someone other than the offender was in the order of one in a billion. 4. The offender has a number of previous convictions, a reprimand and a warning. In 2005, he was reprimanded for a public order offence and warned for theft. In 2006, he was convicted of criminal damage, and given a referral order. In 2007, he was convicted of possessing cocaine and MDMA with intent to supply, and sentenced to 18 months’ youth detention. In 2008, he was convicted of driving without insurance and fined. In 2009, he was convicted of possessing cocaine and made the subject of a community order. 5. On 9 September 2011, he appeared at the Woolwich Crown Court at a plea and case management hearing. He pleaded guilty to one count of possessing a prohibited weapon, contrary to section 5(1)(aba) of the Firearms Act 1968 (Count 2), and one count of possessing prohibited ammunition, contrary to section 5(1A)(f) of the same Act (Count 3). He pleaded not guilty to one count of possessing a firearm with intent to endanger life or to enable another to do so, contrary to section 16 of the FA 1968 (Count 1). On the morning of the trial, 10 November 2011, he sought a ‘Goodyear indication’. Ms Kettle-Williams representing him placed the facts and proposed basis of plea before the judge His Honour Judge Crawford Lindsay QC. 6. The judge issued the necessary warnings about the possibility of a Reference by Her Majesty’s Attorney General. He then indicated that the maximum sentence he would impose was in fact the minimum sentence he was bound to impose, (pursuant to the Firearms Act 1968 as amended), absent exceptional circumstances, namely 5 years’ imprisonment. The offender was re-arraigned on Count 1, and pleaded guilty on the basis that he had possession of the firearm and the ammunition with the intention of enabling another to endanger life. 7. Prosecuting counsel opened the facts. Ms Kettle-Williams agreed with the judge that there was little she could add to what had already been said during the ‘Goodyear indication’ proceedings. She was not pressed to explain the circumstances in which the offender intended that the person to whom he supplied the gun might endanger life. With no further ado, the judge sentenced the offender to 5 years’ imprisonment on Count 1, 5 years concurrent on Count 2, and 3 years concurrent on Count 3. The total sentence was therefore 5 years’ imprisonment. A period of 125 days was ordered to count as time served as part of the sentence under section 240 of the Criminal Justice Act 2003. Her Majesty’s Solicitor General Edward Garnier QC has applied for leave to refer the sentence to this court as being unduly lenient. We give leave. 8. The Solicitor General put the following aggravating features before us for our consideration. i. The offender was found in possession of a gun and live ammunition. ii. The ammunition was loaded into the gun. iii. The ammunition was of a type which expanded on impact. iv. The offender was in possession of the prohibited items in a residential area. 9. He suggested the following mitigating features are present: v. The offender pleaded guilty. vi. The gun was not discharged. vii. The offender does not have previous convictions in relation to firearms offences viii. The offender is a man of a relatively young age. He was 23 at the time of the offences . However, Mr Garnier also observed that the plea to count 1 was entered on the day of trial and the evidence of his possession of the firearm and ammunition may properly be characterised as overwhelming. 10. A number of decisions relating to sentencing in firearms offences were put before us. We shall mention just three. We begin with Tony Avis and others 1998 2 Cr App R (S) 178 in which Lord Bingham CJ observed at page 181: “The appropriate level of sentence for a firearms offence, as for any other offence, will depend on all the facts and circumstances relevant to the offence and the offender, and it would be wrong for this court to seek to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate for the sentencing court to ask itself a series of questions: (1) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. …..Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use. (2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be. (3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence. (4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.” 11. Having reviewed the hierarchy of firearms offences he concluded at page 186: “ Where there are breaches of sections 4, 5, 16, 16A, 17(1) and (2), 18(1), 19 or 21, the custodial term is likely to be of considerable length, and where the four questions suggested above yield answers adverse to the offender, terms at or approaching the maximum may in a contested case be appropriate.” 12. In Attorney General’s Reference Nos 58-66 of 2002 [2003] EWCA Crim 636 the court conducted a review of a number of decisions (including Avis ) on the appropriate level of sentence to be imposed for possession of firearms and ammunition with intention to endanger life. At paragraph 48 of the judgment the court concluded that “in a contested case simple possession of a firearm together with ammunition with intent to endanger life merits a sentence of between seven and eight years.” 13. We turn finally to the most recent decision on this topic brought to our attention: AG ref no 43 of 2009 (Craig Bennett); R v Grant Wilkinson 2010 1 Cr App R (S) 100. Lord Judge CJ, giving the judgment of the court, observed: “2 . The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community. “3. The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre-eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed.” 14. Further, Lord Judge specifically endorsed the continued value of the series of questions posed by Lord Bingham in Avis . We shall now pose those questions in respect of this offence and this offender. The answers are mostly adverse to him. The weapon was a genuine firearm loaded and deadly. The ammunition was particularly dangerous. There was no lawful use for the gun. The offender was not simply a custodian. He intended to supply the loaded gun to a fellow criminal or criminals who required it for their criminal enterprise. The offender has not informed the court of the nature of the enterprise and we shall avoid speculation. Suffice it to say the consequences were potentially extremely grave for the victim or victims of the offence. It is fortuitous that the police stepped in when they did. He is no stranger to the courts. On the positive side, the offender is still relatively young and does not have an established record of committing firearms offences. 15. Mr Garnier provided background information to explain why it was his contention that the courts should treat those who trade in illegal firearms severely, possibly as severely as those who actually use them to commit an offence. He informed us that there is a limited supply of firearms which are moved around the criminal fraternity in such a way that several crimes may be committed with one gun. Those involved in the supply chain of weapons play a pivotal role in keeping violent criminals in business, with all the risks that this entails for the public. He also suggested that the sentencing regime as it relates to the use of firearms has moved on considerably since the decision in Attorney General’s Reference Nos 58-66 of 2002 . In addition to Lord Judge’s remarks in Wilkinson , there has been the introduction of the minimum 5 year term for possession of a firearm and the introduction of a 30 year starting point for offences of murder involving the use of a firearm. Thus, had this gun been used to kill, as was always possible given its lethal nature, the murderer would have been looking at the equivalent of a 60 year determinate term. Given the dangers to the public, the prevalence of gun crime and the need for deterrent and punitive sentencing, to which Lord Judge referred in Wilkinson , Mr Garnier submitted the sentencing range for offences of this gravity has increased significantly. We agree. 16. Given those developments, there can be no argument that the sentence of 5 years’ imprisonment imposed on Count 3 for the offence of possession with intent was unduly lenient. Arguably, terms of 5 and 3 years’ imprisonment were also unduly lenient for the offences of simple possession of the weapon and the ammunition (Counts 2 and 3). In the light of our decision on Count 1, we do not need to decide the point. Counts 2 and 3 were alternative charges to Count 1 and had the offender pleaded guilty to Count 1 at the outset, they would have been left on the file. In normal circumstances, the judge may well have imposed no separate penalty on those counts. Here the judge may have felt constrained by the fact that Count 2 was also subject to a minimum term (absent exceptional circumstances). Counsel did not address him or us on whether exceptional circumstances existed on Count 2 by virtue of the fact it was an alternative charge. We are not in a position, therefore, to take this aspect of the case further. Accordingly, we shall not disturb the sentences imposed on Counts 2 and 3. 17. To her credit Ms Kettle-Williams accepted that we would find, as we have, that the sentence of 5 years’ imprisonment is lenient, but, in her helpful and succinct submissions, she urged us not to interfere with the sentence or to limit any increase in the term. She placed reliance on and emphasised the mitigating features put before us by Mr Garnier to which she wished to add the principle of ‘ double jeopardy’. 18. Her task was always going to be an uphill one. It should be remembered that the 5 year minimum term is a minimum term not a “mandatory” term (as prosecuting counsel at one stage described it in the court below) nor is it a “starting point” (in the sense used by the Sentencing Council) as the judge described it. It certainly should not have been the finishing point. This was a case of possession of a loaded firearm with intent. The gun was loaded with particularly dangerous ammunition. The consequences of the offender’s actions, as we have endeavoured to explain, were potentially lethal. 19. The offender had little option but to plead guilty to possession of the weapon and the ammunition, given the circumstances of his arrest and the DNA evidence. Given the nature of the bullets loaded in the gun some may think he had little option but to plead guilty to the more serious offence. This he did belatedly. However, we are prepared to proceed on the basis he would be entitled to credit of 10 % for his plea of guilty to the more serious offence entered as it was on the day of trial. We bear in mind that this not the first time the offender has been sentenced on these matters, but also that he was warned by the judge of the possibility of this Reference. Balancing all the aggravating and mitigating factors of the offence and offender, in our judgment the very least sentence we can impose today is one of 10 years imprisonment. We quash the sentence of 5 years imprisonment on Count 1 and substitute for it a sentence of 10 years. Time on remand will count towards the sentence as before.	{"ConvCourtName":["Woolwich Crown Court"],"ConvictPleaDate":["2011-09-09","2011-11-10"],"ConvictOffence":["Possessing a prohibited weapon contrary to section 5(1)(aba) of the Firearms Act 1968 (Count 2)","Possessing prohibited ammunition contrary to section 5(1A)(f) of the Firearms Act 1968 (Count 3)","Possessing a firearm with intent to endanger life or to enable another to do so contrary to section 16 of the Firearms Act 1968 (Count 1)"],"AcquitOffence":["Possessing a firearm with intent to endanger life or to enable another to do so contrary to section 16 of the Firearms Act 1968 (Count 1)"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["plea and case management hearing","on day of trial (after Goodyear indication)"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[125],"SentCourtName":["Woolwich Crown Court"],"Sentence":["5 years imprisonment on Count 1 (quashed and replaced by 10 years on appeal)","5 years concurrent on Count 2","3 years concurrent on Count 3"],"SentServe":["Concurrent"],"WhatAncillary":["Time served (125 days) to count towards sentence under section 240 of the Criminal Justice Act 2003"],"OffSex":["All Male"],"OffAgeOffence":[23],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["DNA match","Physical evidence (firearm and ammunition)","Police testimony"],"DefEvidTypeTrial":["No comment interview"],"PreSentReport":["Low risk of harm"],"AggFactSent":["Offender found in possession of a gun and live ammunition","Ammunition was loaded into the gun","Ammunition was of a type which expanded on impact (dumdum bullets)","Possession in a residential area"],"MitFactSent":["Offender pleaded guilty","Gun was not discharged","No previous convictions for firearms offences","Offender was 23 at the time of the offences"],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence of 5 years was unduly lenient for possession of a loaded firearm with intent"],"SentGuideWhich":["section 5(1)(aba) of the Firearms Act 1968","section 5(1A)(f) of the Firearms Act 1968","section 16 of the Firearms Act 1968","section 240 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed","Sentence on Count 1 quashed and replaced by 10 years imprisonment"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Sentence of 5 years was the statutory minimum and should not have been the finishing point; the offence was of high gravity (loaded firearm, dangerous ammunition, intent to endanger life); public protection and deterrence required a much higher sentence"],"ReasonDismiss":[""]}
Case No: 201505383 C2 201600335 C3 201600191 C3 201600336 C3 Neutral Citation Number: [2017] EWCA Crim 2061 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HHJ TOPOLSKI QC T20157119 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRISTOL HHJ COTTLE T20157226 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/12/2017 Before : LADY JUSTICE HALLETT VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE SPENCER and MR JUSTICE LAVENDER - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - BARTOSZ REJMANSKI - and - R - and - CHARICE GASSMAN AMBERSTASIA GASSMAN Appellant Respondent Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S Whitehouse QC (instructed by Crown Prosecution Service ) for the Respondent P J Griffiths QC and S Kivdeh (instructed by Sweetman, Burke & Sinker ) for the Appellant Rejmanski L Mably QC ( instructed by the Attorney General’s office) as Advocate to the Court - and - A R Malcolm QC (instructed by Crown Prosecution Service ) for the Respondent A Vaitilingam QC (instructed by Ross Solicitors ) for the Appellant (Charice Gassman) A Daymond (Solicitor Advocate) (instructed by Ross Solicitors ) for the Appellant (Amberstasia Gassman) Hearing dates: 28 November 2017 - - - - - - - - - - - - - - - - - - - - - Judgment The Vice President : Introduction 1. Rejmanski has leave to appeal against his conviction for murder and Charice Gassman seeks leave to appeal against her conviction for murder. The cases have been listed together because they raise the same issue: the extent to which a mental disorder can be relevant to an assessment of “ the circumstances of the defendant ”, when considering the partial defence of loss of control provided by s.54(1) Coroners and Justice Act 2009 (“the CAJA 2009”). They both complain that the trial judge’s directions effectively deprived them of the defence. 2. Charice Gassman and her sister Amberstasia Gassman, her co-defendant, also apply for leave to appeal against sentence. 3. We have had the benefit of submissions from counsel for each of the parties and from an amicus curiae, Mr Louis Mably QC, appointed by Her Majesty’s Attorney General at the court’s request. We are grateful to Her Majesty’s Attorney and to all counsel, particularly Mr Mably, for their assistance. Background to the enactment of Sections 54 and 55 of the CAJA 2009 4. Sections 54 and 55 of the CAJA 2009 were enacted against a background of controversy and widespread dissatisfaction with the common law partial defence of provocation as revised by section 3 of the Homicide Act 1957. The dissatisfaction was summarised by the Law Commission in two reports: Partial Defences to Murder, Final Report (2004) Law Com No 290 and Murder, Manslaughter and Infanticide (2006) Law Com No 304 (“the 2006 Report”). 5. The components of the pre CAJA 2009 defence were that (a) the defendant lost his/her self-control as a result of something said or done, and (b) a person having ordinary powers of self-control would have reacted as s/he did. 6. In determining the second, objective component, two strands of judicial opinion arose as to the extent to which a jury could take into account the particular characteristics of the defendant, in addition to age and sex, when considering the degree of self-control which would be exercised by the hypothetical person against whose conduct the defendant’s conduct was measured. One strand was that the objective test gave rise to a flexible standard, which attributed the defendant’s characteristics to the person having ordinary powers of control; the other strand held that there was a single objective standard, and the particular characteristics of the defendant were irrelevant. This led to conflicting case law. 7. In R v Smith (Morgan) [2001] 1 AC ( “Morgan Smith” ), a majority of the House of Lords held that the defendant’s particular characteristics could be taken into account, and that the question for the jury was: what could reasonably be expected of a person with the defendant’s characteristics, including characteristics which affected his general ability to control himself? On this view, the objective standard was flexible, and not constant. 8. The minority, however, took the opposite view. They held that the objective component of the defence gave rise to a single standard, which did not vary depending on personal characteristics. Particular characteristics which affected the defendant’s general ability to control himself, such as a short temper, a mental disorder or intoxication, should not be attributed to the reasonable man. They could be taken into account, however, to the extent that they were relevant to an assessment of the gravity of the provocation (an approach that was consistent with the decision in DPP v Camplin [1978] AC 705 ). The minority also observed that where a person killed because of a mental disorder affecting his general capacity for self-control, the mitigation of the offence of murder was found in the defence of diminished responsibility. 9. In Attorney General for Jersey v Holley [2005] UKPC 23 , [2005] 2 AC 580 , a Board of nine members of the Privy Council was specially convened to consider whether Morgan Smith was correctly decided. Lord Nicholls said that Morgan Smith was in “direct conflict” with the decision of the Privy Council in Luc Thiet Thuan v The Queen [1997] AC 131 and the reasoning of the majority in Morgan Smith was “not easy to reconcile with the reasoning of the House of Lords in R v Camplin [1978] AC 705 or R v Morhall [1996] AC 90”. The Board held, by a majority, that the position in English law was as set out by the minority in Morgan Smith . The Board declared that the reasonable person test gave rise to one standard that did not vary from defendant to defendant. Personal characteristics could be taken into account to the extent that they were relevant to an assessment of the gravity of the provocation, but were not relevant if and insofar as they reduced the defendant’s capacity to exercise self-control. 10. In making a series of recommendations for reform the Law Commission expressed a clear preference for the approach of the Privy Council in Holley , of the minority in Morgan Smith and of the House of Lords in Camplin . The Commission recommended that that approach should be given statutory effect. 11. The Government did not adopt all the Law Commission’s recommendations as to the partial defences to murder in enacting the CAJA 2009, as was noted in R v Clinton [2012] EWCA Crim 2 . However, in respect of the reasonable person test with which we are concerned, it expressly accepted the recommendation of the Law Commission and the wording of subsections (1)(c) and (3) of section 54 of the CAJA 2009 is very similar to the formulation proposed in the 2006 Report. The statutory framework 12. Chapter 1 of the CAJA 2009 provides for two partial defences to murder, diminished responsibility and loss of control, and it is important to read them together. In relation to diminished responsibility, section 52 amends section 2 of the Homicide Act 1957, substituting a new statutory test to this effect: “(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which— (a) arose from a recognised medical condition, (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for D's acts and omissions in doing or being a party to the killing. (1A) Those things are— (a) to understand the nature of D's conduct; (b) to form a rational judgment; (c) to exercise self-control. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.” 13. In relation to loss of control, section 56 abolishes the common law defence of provocation, and replaces it with the new partial defence, set out in sections 54 and 55. Section 54 provides: (1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if— (a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. (2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. (3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint. (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. (5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. (7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter. 14. Section 55 defines “qualifying trigger” for the purposes of section 54: (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person. (4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which— (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged. (5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) In determining whether a loss of self-control had a qualifying trigger— (a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded. 15. The new loss of control defence therefore consists of three components: (i) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, (ii) the loss of self-control had a qualifying trigger, and (iii) a person of D’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D , might have reacted in the same or a similar way to D. 16. The focus of the argument before us has been on the effect of section 54(3), which provides that “ in the circumstances of D” is a reference to all of D’s circumstances, “other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint” . 17. Academic commentators such as Professor Ormerod (in Smith and Hogan’s Criminal Law, 14 th edition) have suggested that the effect of section 54(3) may be different from the tests set out in Camplin and Holley , in that it is less restrictive and more generous to the defendant. Whereas in Holley the Board excluded all characteristics or circumstances, unless they were relevant to the gravity of the provocation, section 54(3) includes all circumstances, unless their only relevance is that they bear on the defendant’s general capacity for tolerance or self-restraint. On this reading of section 54(3), it is no longer necessary to demonstrate a connection between the defendant’s particular circumstance and the gravity of the provocation; all that must be demonstrated is some relevance to the defendant’s conduct over and above the fact that the circumstance bears on the defendant’s general capacity for tolerance and self-restraint. 18. Three decisions of this Court have been put before us in which the relevance of mental disorder to “ the circumstances of the defendant ” in section 54(1)(c) has been considered. 19. In R v Mcgrory [2013] EWCA Crim 2336 , the Court held that the trial judge had been correct to direct the jury that evidence from a medical expert that the defendant’s depression meant that she had a “reduced ability to deal with taunting and to cope with those sorts of pressures compared to someone not suffering from depression”, was excluded from their consideration by section 54(3). 20. In R v Wilcocks [2016] EWCA Crim 2043 , [2017] 1 CrAppR 23 , the Court considered the case of an Appellant with a personality disorder which affected his ability to form a rational judgment. It was argued on his behalf that this was one of the “circumstances” which was not excluded by section 54(3). The trial judge, Holroyde J, (as he was then) had given the following direction, which distinguished between a matter affecting general capacity, and a matter affecting the gravity of the qualifying trigger: “If and in so far as you conclude a personality disorder reduced his general capacity for tolerance or self-restraint, that would not be a relevant circumstance when you are considering the defence of loss of control. But it is important to emphasise that this exclusion only relates to any feature of a personality disorder which reduced his general capacity for tolerance or self-restraint. Let me give you an illustration. If you thought that CW suffered from a personality disorder which made him unusually likely to become angry and aggressive at the slightest provocation, that would of course be relevant to diminished responsibility but it could not assist him in relation to loss of control. But if you thought that a personality disorder had caused him to attempt suicide, then you would be entitled to take into account as one of his circumstances the effect on him of being taunted that he should have killed himself.” 21. It should be noted that Holroyde J allowed the jury to consider the disorder in relation to the gravity of the trigger, but he excluded it from their consideration if and insofar as it related to the defendant’s general capacity. This Court held that the direction accorded with section 54(3). Despite the fact that it was common ground before us that Holroyde J’s directions were correct in law, Mr Griffiths QC attempted to argue a contrary position. Since section 54(3) excluded evidence whose only relevance was to general capacity, it was his contention that if the disorder was relevant to two or more issues, say general capacity and the gravity of the trigger, and was admitted into evidence, it could be used in relation to both issues. 22. In R v Meanza [2017] EWCA Crim 445 , the Appellant suffered from paranoid schizophrenia and anti social personality disorder. The court rejected an argument that the partial defence of loss of control should have been left to the jury. The court considered there were two insurmountable obstacles faced by the Appellant. First, the Appellant could have no “justifiable sense of being seriously wronged”. Second, the Appellant’s paranoid schizophrenia and anti social personality disorder were “excluded from account” in considering his circumstances under section 54(1)(c), as was conceded by his counsel. Conclusions on the effect of sections 54 and 55 23. First, we have considered whether it is necessary to analyse further the background to the enactment of sections 54 and 55. In our view, it is not. The provisions themselves and Parliament’s intent are sufficiently clear in this regard and no resort to additional material such as Hansard is necessary. Furthermore, our conclusions accord, for the most part, with the final submissions of all counsel. 24. Second, the three components of loss of control are distinct and require separate consideration. We agree with Ms Whitehouse QC and Mr Mably QC that the potential relevance of a mental disorder to each of the components is fact specific. It depends on the nature of the defendant’s disorder, the effect it has on the defendant and the facts of the case. 25. Third, the wording of s. 54(1)(c) is clear: in assessing the third component, the defendant is to be judged against the standard of a person with a normal degree, and not an abnormal degree, of tolerance and self-restraint. If, and in so far as, a personality disorder reduced the defendant’s general capacity for tolerance or self-restraint, that would not be a relevant consideration. Moreover, it would not be a relevant consideration even if the personality disorder was one of the “circumstances” of the defendant because it was relevant to the gravity of the trigger (for which, see Wilcocks). Expert evidence about the impact of the disorder would be irrelevant and inadmissible on the issue of whether it would have reduced the capacity for tolerance and self-restraint of the hypothetical “person of D’s sex and age, with a normal degree of tolerance and self-restraint”. 26. Fourth, if a mental disorder has a relevance to the defendant’s conduct other than a bearing on his general capacity for tolerance or self-restraint, it is not excluded by subsection (3), and the jury will be entitled to take it into account as one of the defendant’s circumstances under s.54(1)(c). However, it is necessary to identify with some care how the mental disorder is said to be relevant as one of the defendant’s circumstances. It must not be relied upon to undermine the principle that the conduct of the defendant is to be judged against “normal” standards, rather than the abnormal standard of an individual defendant. It follows that we reject Mr Griffiths’ argument that, if a disorder is relevant to, say, the gravity of the qualifying trigger, and evidence of the disorder is admitted in relation to the gravity of the trigger, the jury would also be entitled to take it into account in so far as it bore on the defendant’s general capacity for tolerance and self-restraint. The disorder would be a relevant circumstance of the defendant, but would not be relevant to the question of the degree of tolerance and self-restraint which would be exercised by the hypothetical person referred to in section 54(1)(c). 27. As we have indicated, the most obvious example of when evidence of a mental disorder may be relevant to the defendant’s circumstances is the one mentioned in Holley and Wilcocks , where the disorder was relevant to the gravity of the qualifying trigger. In Holley, the Board accepted that in the case of a woman suffering from ‘Battered Woman’s Syndrome’ or a personality disorder, who killed her abuser, evidence of her condition may be relevant to both the loss of self control and to the gravity of the provocation for her. In Wilcocks, the trial judge, and this Court, accepted that, if a personality disorder had caused the defendant to attempt suicide and he had been taunted by the deceased about committing suicide, then the jury was entitled to take it into account as one of his circumstances in considering the third stage of the defence. 28. We do not exclude the possibility of other circumstances where a disorder might be relevant to the third component, but none have been put before us. This suggests the question is of academic interest only. 29. Finally, the exclusionary effect of subsection (3) is consistent with, and reinforced by, the availability and scope of the partial defence of diminished responsibility in section 2 of the Homicide Act 1957, as amended by section 52 of the 2009 Act. The amended section 2 applies where a mental disorder substantially impairs the ability of the defendant to exercise self-control. The two defences may be presented together as alternatives. The law does not therefore ignore a mental disorder that, through no fault of a defendant, renders him or her unable to exercise the degree of self-control of a ‘normal’ person. 30. We shall now apply those principles to the facts of the individual cases before us. R v Rejmanski Prosecution case 31. Number 30 Compton Avenue, London E6 was home to the Appellant, a Polish national, the deceased, Grzegorz Raczek, also a Polish national, and Adrian Magiel, with whom Mr Raczek shared a room. 32. On 28 March 2015 Mr Magiel and Mr Raczek were in their room when the Appellant knocked at the door. Mr Raczek did not want to let him in because the two men disliked each other. The Appellant persisted and said that the three of them needed to talk together in the kitchen about some food that had gone missing and for which he blamed the deceased. The Appellant appeared to be a little “tipsy”. They went to the kitchen where they drank a beer and the two men seemingly resolved their differences. 33. Later Mr Magiel returned to his room. He found the deceased lying on the floor with his face swollen. The Appellant was standing over him, seemingly trying to move his upper body. Mr Magiel asked the Appellant what had happened. The Appellant replied, “He deserved it. He didn’t get a kicking for nothing.” They moved the deceased onto the bed. The Appellant said, “Let him sleep”. He appeared to be slightly under the influence of alcohol and there was a bottle of vodka, some of the contents of which had spilled onto the floor. The room was untidy. Mr Magiel went downstairs to call the emergency services. 34. When the paramedics and police arrived, they found the deceased lying on a bed. He had several head injuries and was unresponsive. He was declared dead at the scene. The floor was littered with empty alcohol bottles. 35. The Appellant was still in the room, sitting on a chair, strumming a guitar and singing or chanting words to the effect of, “I’ve killed him. He’s dead. I’m not afraid.” On arrest, the Appellant stated, “I’m not afraid. I killed him.” Thereafter he made several more admissions to the police that he was responsible for killing the deceased, although later in interview he made no comment. 36. At the police station he was examined by a doctor. The Appellant told him that he was a boxer and had previously been a soldier. He did not disclose any medical condition. He was too drunk to consent to a blood test. He had a number of injuries, in the form of bruises and grazes, mostly to his knuckles, which were consistent with punching. 37. The Appellant’s clothing was found to be heavily stained with the deceased’s blood. The marks on the deceased’s head and shoulders and on his shirt could have been made by the Appellant’s shoes and would have required forceful contact (eg kicking or stamping). 38. Dr. Ian Cumming, a psychiatrist, examined the Appellant. He was of the opinion that at the time of the killing the Appellant may have been suffering from some of the symptoms of Post Traumatic Stress Disorder (“PTSD”) but its presence was neither strong nor pervasive. He had heard nothing from the Appellant to indicate that he had PTSD before the killing. He noted that there was no evidence that he had sought help either in Poland or in the UK. The condition had had little effect on his life beyond some occasional binge drinking. There was a contrast between the symptoms recorded by the prison and the lack of anything similar beforehand. There was no suggestion that prior to March 2015 he was unpredictable or violent. The doctor therefore had no confidence in a diagnosis of PTSD. He could find no link between PTSD and what the Appellant did that night. It was pure speculation to suggest otherwise. 39. Dr. Julia Heller, a psychologist, said that the Appellant had some symptoms of PTSD but did not meet the full diagnosis. The only evidence to that effect came from the Appellant and one could not rely upon self-reporting. The Appellant reported minimal alcohol use in the three months prior to the killing but heavy use in the 24 hours leading up to the incident. He said he was highly thought of at work, related well to his colleagues and had a lot of friends. His history did not indicate or disclose any evidence of the sort of disturbance, significant distress or impairment found in the lives of those with a full PTSD diagnosis. The absence of clinical depression or a generalised anxiety disorder were further indicators that a diagnosis was not made out. 40. In summary, the prosecution case was that the Appellant had become angry with the deceased and, fuelled by drink, had lost his temper and attacked him with his fists and/or feet intending, at the very least, to cause him really serious harm. 41. Their case in respect of PTSD and loss of control was that the Appellant’s symptoms did not meet the full criteria for a complete diagnosis and, in any event, his condition was not linked to the loss of self control. All the evidence pointed to his having been drunk and disinhibited rather than having lost self-control. In any event the things said and done by the deceased were relatively minor and would not amount to the Appellant having a justifiable sense of being seriously wronged and thus did not establish a qualifying trigger. A normal, sober man would not have reacted in the way he did. The defence case 42. The Appellant was of previous good character, a decorated soldier in the Polish army and a veteran of the Afghanistan war. As a result of the horrific scenes he had witnessed in Afghanistan and the battles in which he had been directly involved, he said that he suffered symptoms which he contended were correctly diagnosed (albeit only after the killing) as PTSD. For several months after his return he experienced nightmares and flashbacks. When those memories became more intense he began to drink more to control himself. He never sought professional help because it would have caused his friends in Poland to look down upon him. His ability to work was affected and he found it hard to focus and concentrate. 43. The attack on the deceased was triggered by the deceased’s comments about the Polish army. When the Appellant tried to change the subject the deceased slapped him on the back of the head and said to him in Polish, “Pour some vodka, cat (or kitten)”, a derogatory term used to refer to fresh recruits to compare them with more established older soldiers. He asked the deceased not to talk that way and told him that he had greater knowledge because he had served in Afghanistan. The deceased flew into a rage and accused the defendant and people like him of going to Afghanistan to make money, rape women, and shoot children. 44. Dr. Kahtan, a psychiatrist, relying solely on the Appellant’s account to him and as recorded in prison records after the killing, was of the opinion that the Appellant fulfilled the criteria for a diagnosis of PTSD, which was a recognised mental health condition. His symptoms were intrusive memories, daytime flashbacks and nightmares, together with anxiety symptoms consisting of mood change, panic and jumpiness. Further symptoms were seen in his avoidance of traumatic memories and in his depressive presentation. His alcohol abuse, typically described as self-medicating, was a way of coping with the above symptoms. 45. He described the Appellant as a troubled man at the time of the killing. What the deceased had said was belittling and this provocation in combination with his intoxication led to the offence. The PTSD would have made the provocation worse because he was unwell and finding it hard to cope with stress. The Appellant had “lost it” when subject to relatively minor provocation from which, viewed objectively, most people would walk away. 46. The Appellant denied being drunk but, if he was, it would have impaired his judgment and he would have been more likely to react violently to the provocation. A sober man would have found it easier to deal with the insults but the doctor could not say whether, had the Appellant been sober, the killing would not have happened. There was no history of alcohol dependency. 47. Dr. Marc Desautels, a psychologist, used a diagnostic questionnaire as part of his examination of the Appellant. For reasons we do not understand, the questions contained indicators of how an answer might be used to lead to a diagnosis and the questionnaire was sent to him in advance. His diagnosis was entirely dependent upon what the Appellant told him in that questionnaire and in person and on a diagnosis of PTSD made after the killing by a prison doctor. Nevertheless, Dr Desautels was confident that the Appellant’s answers were accurate and the Appellant was suffering from PTSD. PTSD increased the risk of drinking problems and veterans who were diagnosed with PTSD and who misused alcohol showed an increase in violence and aggression. 48. On the night of the killing, the conversation with the deceased would have caused the Appellant stress by triggering memories and his PTSD symptoms. The symptoms would have been exacerbated by the addition of alcohol, resulting in him becoming more disinhibited and leading to him losing control. 49. In summary, the defence case relied on lack of intent and the two partial defences of loss of control and diminished responsibility. 50. The defence case specifically in respect of PTSD and loss of control was that the diagnosis had been underplayed by the prosecution. It was clear that the incident was entirely out-of-character and that the Appellant had lost control. It was also clear that there was a qualifying trigger in the things said and done by the deceased. Such things were by no means trivial to the Appellant, but were extremely grave and would have left him with a justifiable sense of being seriously wronged. Given his history, his circumstances, and his experiences in the military the jury could find that he had lost self-control. The issues for the jury 51. The issues as left to the jury were (i) whether the Appellant had the requisite intent; (ii) whether the prosecution had proved that he had not lost self-control; and (iii) whether the defence had established that his responsibility was diminished. In respect of the defence of loss of control, the specific issues were: (a) whether the Appellant might have lost his self-control rather than merely attacking the deceased in anger or frustration; (b) if so, whether that loss of self-control was attributable to something said or done by the deceased which was extremely grave in the circumstances and which caused the Appellant to have a justifiable sense of being seriously wronged; and (c) whether a person of the Appellant’s age and sex, with a normal degree of tolerance and self-restraint and in the Appellant’s circumstances (such circumstances not including any circumstances that affected his ability to keep himself under control, such as the effect of drink) might have reacted in the same or similar way. Ground of appeal 52. Mr Peter Griffiths QC complains that the judge failed to give the necessary directions as to the relevance of PTSD to the loss of control defence. Before summing up, the defence had suggested that the judge should direct the jury that the Appellant’s PTSD was relevant to the qualifying trigger and to his circumstances for the purposes of section 54(1)(b) and (c). Although the judge directed the jury to consider the second component of the defence in the context of “his history, his circumstances and his experience in Afghanistan”, the judge did not specifically direct the jury that the Appellant’s PTSD should be included as part of the defendant’s circumstances for the purposes of the third component of the defence. He directed the jury to consider what the reaction of a sober person with a normal degree of tolerance and self restraint placed in the same predicament as the defendant would have been. This was described as a serious error and one that renders the Appellant’s conviction unsafe. 53. Mr Griffiths accepted that one of the effects of PTSD (if the jury accepted the Appellant was suffering from PTSD) was to impair his general capacity for tolerance and self-restraint, but he maintained it was still admissible. It was not excluded by section 54(3) because the PTSD was relevant over and above its effect on the Appellant’s general capacity. If so, the Appellant’s mental condition, which caused him distress, anxiety, nightmares and flashbacks, should have been a circumstance or characteristic for the jury to consider in evaluating whether a person with an otherwise normal degree of tolerance and self-restraint, but suffering with PTSD, might have reacted in a similar way to the defendant. 54. Furthermore, the Appellant’s particular circumstance of PTSD fell squarely within the requirements of section 54(1)(c) of the CAJA 2009 and also met the test in Camplin and Holley , in that the taunting was about the circumstances which gave rise to the PTSD. Telling a man with a normal degree of tolerance and self-restraint, who has never served in any army and has never set foot in Afghanistan, that he had raped women and killed children in Afghanistan would sound nonsensical. However to say the same thing to a man who had served in the army in Afghanistan and suffered with PTSD as a result would be substantially different. The relevance of the PTSD to the Appellant’s conduct therefore was not only to reduce his general capacity for tolerance and self-restraint, but also to explain the gravity of the trigger for the Appellant’s conduct. Conclusions on appeal against conviction 55. Having accepted that in principle a disorder such as PTSD may be a relevant circumstance for the jury to consider when assessing each of the components of the partial defence of loss of control, we analyse its relevance on the facts of this case. 56. For present purposes we shall assume that the jury found that the Appellant was suffering from PTSD as a result of his experiences in Afghanistan, although that is by no means certain. In the years since leaving Afghanistan and before the killing, there was no record of any complaint of the symptoms of PTSD, he had held down a job, he had no history of violence and he had normal social relationships. The experts who testified he was suffering from PTSD had relied on his own reports of symptoms and on a diagnosis made after the killing and, in one case, had used a questionable methodology to reach his conclusion. 57. Accepting that the two doctors called for the defence were or may have been correct, however, there remain two hurdles in the Appellant’s path. 58. We note that, according to the Appellant’s own evidence and his account to medical professionals, the effects of PTSD on him were nightmares and flashbacks which, when they became intense, caused him to drink more alcohol. The flashbacks were set off by, for example, the sound of aeroplanes or personal radios. There was no evidence from the Appellant that he experienced any sort of flashback at the time he killed the deceased and he had never become violent in response to flashbacks. Dr Desautel’s initial observation that the insults of the deceased “would have caused the defendant to stress by triggering memories and his PTSD symptoms (….exacerbated by the addition of alcohol) resulting in the defendant becoming more disinhibited”, was qualified in cross-examination in that he conceded this was no more than a hypothesis. There was, therefore, little, if any, basis in the evidence for saying that the Appellant’s PTSD in fact affected his general capacity for tolerance and self-restraint at the time of the killing. 59. However, the first, and insurmountable, hurdle faced by the Appellant was that, if and insofar as his PTSD did affect his general capacity for tolerance and self-restraint, that was irrelevant to the third component of the defence. In effect, the defence wished the judge to direct the jury to consider whether the hypothetical person of the defendant’s age and sex, with a normal degree of tolerance and self-restraint, but who had contracted PTSD which reduced his general capacity for tolerance and self-restraint, would have acted as he did. As it seems to us, this is precisely the kind of consideration that Parliament expressly excluded at this stage. The hypothetical person is assumed to have a normal degree of tolerance and self-restraint. Accordingly, we are satisfied the judge properly resisted the defence’s efforts to dilute the objective standard laid down in section 54(1)(c). 60. There is a second hurdle. There was undoubtedly a link between the deceased’s alleged conduct and the Appellant’s military service in Afghanistan. The insults were directed at the Appellant’s military service and, if his account was true, he knew that he had suffered mentally as a result of his time in Afghanistan. His military service and its effects upon him were therefore relevant to the issue of the qualifying trigger. The judge accepted this and directed the jury to consider all of the evidence about the Appellant’s background in deciding whether the Appellant’s loss of self-control was attributable to things done or said which constituted circumstances of an extremely grave character, and caused the Appellant to have a justifiable sense of being seriously wronged. 61. He may not have used the “label” PTSD, but the judge directed the jury to assess the deceased’s words and conduct (slapping about the head, using derogatory terms and accusing those who served in Afghanistan of improper motives and appalling conduct) against the background of the relationship between the Appellant and the deceased and the Appellant’s personal circumstances. In dealing with the second component of the defence, he directed the jury in terms that in assessing the qualifying trigger they “must consider the defendant’s personal history, in particular … his experiences in Afghanistan and how they affected him and his personality.” No complaint is made about those directions. 62. When he turned to the third component, the judge directed the jury to consider “whether a man aged in his early 20s with a normal degree of tolerance and self-restraint placed in the same situation might have acted in the same or similar way as the defendant did…” At other points in the summing up the judge used the expressions “in his circumstances” and “placed in the same predicament” or “in the same situation”. He did not repeat his summary of the evidence as to the Appellant’s circumstances, but it was clear from his directions taken as a whole that the jury could take all the Appellant’s relevant circumstances into account. Finally, he did not direct the jury, as he would have been entitled to do (as in Wilcocks ), to ignore the PTSD insofar as it bore on his general capacity for tolerance and self-restraint. 63. Thus, the Appellant was given the benefit of the kind of direction he sought: the jury were directed to consider the components of the partial defence of loss of control in the context of a man who had served in Afghanistan, suffered as a result and then was taunted about his behaviour and motives. 64. In our view that was sufficient. Even if the judge had expressly directed the jury to bear in mind the condition of PTSD at every stage, as Mr Griffiths claims he should have done, we have no doubt the verdict would have been the same. The conviction is not unsafe and we dismiss the appeal. R v Charice and Amberstasia Gassman Prosecution case 65. On the morning of 12 May 2015, a heated argument took place between Charice Gassman and the deceased, Alison Connelly, about an incident the previous evening. Later Charice Gassman went into the local shop. She was followed by the deceased and one of her daughters, Kylie Heys. The deceased “flipped” and head-butted Charice. Charice said to the deceased, “You’re fucked”, before running off in the direction of her sister Amberstasia’s house. She banged on the door, shouting, “Get the machete. I am going to fucking kill her”. She took a knife and concealed it. Followed by her sister and another woman called Danielle, she headed for Kylie Heys’ flat at Evelyn House, where the deceased was staying. She was overheard issuing a variety of threats to kill or murder Ms Connelly as she made her way there including, “I am going to nank (stab) some bitch”. She did not want any witnesses for what she was about to do. Charice banged and kicked on Ms Heys’ front door. Amberstasia shouted to the deceased to “get the fuck down here” and told Charice to wait until they came out. When the deceased did leave the flat, a fight ensued and Amberstasia warned Ms Connelly, “I wouldn’t do that if I were you”. She did nothing to stop her sister. Charice took the knife from her waistband and stabbed Ms Connelly once in the chest. Amberstasia hit the deceased on the back of the head and shouted, “That’s what comes when you fuck with my family”. As the sisters left the scene, she threatened, “If my sister goes down for this I will come back and get you.” Shortly thereafter, the deceased died. 66. Both applicants were arrested and interviewed. Charice Gassman declined to answer any questions. 67. Dr. Sandford, a consultant forensic psychiatrist, interviewed Charice Gassman in October 2015. She was not suffering from any major mental illness, but she was suffering from a Cluster B personality disorder (which is similar to Emotionally Unstable Personality Disorder (“EUPD”) but is a broader category). She had anti-social and emotionally unstable personality traits and, at the time of the killing, she had an abnormal mental state, i.e. an intense anger related to her personality. Defence case 68. Charice Gassman told the jury she felt dizzy after the head-butting incident. She rang her father and asked him to take her to hospital. She then knocked hard on her sister’s front door and was let in. She said that she did not remember much after this; she did not remember getting a knife from her sister’s house or the journey back to Kylie’s flat. The next thing she remembered was the deceased shouting, “She has stabbed me.” She looked down and saw a knife in her hands. 69. She said that the day before the incident, her step-grandfather had died. He had sexually abused her between the ages of 13 and 16 and she had only ever told two people about the abuse, one of whom was Danielle, whom she had told the day before. She had been smoking cannabis daily since the age of 14 and it calmed her down and took away her angry feelings. 70. She said that she had seen medical professionals about her anger and that she had an issue with voices in her head. 71. Dr. Bradley, a consultant forensic psychiatrist, gave evidence that Charice Gassman was suffering from EUPD, which meant that she was unable to regulate her emotions and was abnormally sensitive. People who suffer from EUPD can become extremely distressed and angry, self-harm and take a long time to calm down. Sexual abuse is often a principal cause of the more extreme types of EUPD. 72. Charice also had a chronic cannabis dependency, part of which was related to the abuse she had suffered. In November 2014, she had seen a high intensity therapist who thought she was having periods of dissociation because she spoke of three different personalities. Transient psychotic symptoms and hearing voices were common with EUPD, but cannabis could also cause drug-induced psychosis. 73. In December 2014, Charice declared that she might kill if someone upset her and she was not using cannabis. She was told that she needed proper psychological treatment, but she failed to engage with the relevant bodies. 74. The doctor thought that the account given by Charice was genuine and that on 15 May 2015 she was suffering from “an abnormality of mental functioning and, in particular, a liability to outbursts of anger or violence with an inability to control the resulting behavioural explosion”. Within the definition of EUPD was an impairment of ability to exercise self-control. This diagnosis provided an explanation for the killing. Issues as left to the jury 75. The Judge handed down written directions and a route to verdict. He correctly identified that the burden of proof remained on the Crown and dealt with the elements required by section 54(1). 76. In relation to the third component considered above, the judge directed the jury to take into account all of Charice’s circumstances, such as the death of her abusive step-grandfather, the break-up of her relationship with her boyfriend and the threat of eviction, but he expressly directed them to ignore the evidence that Charice was suffering from EUPD which may have made her less able to exercise tolerance and self-restraint than a person of her age and sex. This was because “Parliament required a jury to consider whether a person with a normal degree of tolerance and restraint might have acted in the same or similar way.” The fact that she was prone to lose her temper, particularly when she had not taken cannabis, bore on her general capacity for self-control and was irrelevant on this issue. Ground of Appeal against conviction 77. There is one ground of appeal against conviction, namely that the directions of the trial judge on the issue of loss of control were wrong in law. 78. Mr Adam Vaitilingam QC invited the court to conclude that, on the facts of this case, the diagnosis of EUPD was relevant to the third component of the defence because it affected the way she reacted to the death of her abuser. For a defendant suffering from EUPD, a traumatic event may be more distressing than it would be for a normal person, because she may become disproportionately emotional. This has nothing to do with her general capacity for tolerance and self-restraint, but relates to her ability to exercise self-control on the day in question. On the day she killed Ms Connelly, she was in a greatly distressed state. The jury should have been directed to consider the hypothetical person with a normal degree of tolerance and self-restraint, but in such a state. 79. He attempted to distinguish a “general” capacity for tolerance and self-restraint from the ability to exercise self-control in the face of particular circumstances. He accepted that, had it not been for the death of the step-grandfather the day before, the evidence of EUPD would not have been admissible at the third stage. If a defendant is by nature bad-tempered and easily provoked (particularly when she has not taken cannabis), that is her general capacity and, insofar as her mental condition makes her a generally bad tempered person, it is to be disregarded. It is not a “circumstance” for the purposes of section 54(1)(c). However, he insisted that the death of the step-grandfather makes all the difference. If a defendant kills while a particularly traumatic event has placed her in a distressed condition, the consequences of that event should be left to the jury as one of her “circumstances” in the way that Mr Vaitilingam understood Holroyde J had done in Wilcocks . 80. Mr Vaitilingam proposed a direction along these lines: “Given the condition that you find Charice Gassmann was in that morning as a result of her grandfather/abuser’s death, how might a person of her age and sex in that condition have reacted to the provocation had she had normal powers of tolerance and self-restraint?” Had such a direction been given, it was his contention that the jury might have decided that Charice Gassmann was in an abnormally distressed and emotional state that morning, far beyond what one might expect of someone whose grandfather/abuser had just died and that a woman in a similar state of distress might have reacted to the provocation in a similar way, even though that woman had normal powers of tolerance and self-restraint.” Conclusions on the application for leave to appeal conviction 81. Mr Vaitilingam’s distinction was an ingenious one, but we have no doubt the judge was correct in the way he directed the jury. The only relevance of EUPD to Charice Gassmann’s circumstances for the purposes of the third component was that it bore on her general capacity for tolerance and self-restraint. By its very definition, EUPD impairs a person’s general ability to exercise self-control; as a result of her disorder, she overreacted to events, she lost her temper and she took a long time to calm down. Furthermore, the qualifying trigger was said to be the deceased’s head-butt. Nothing was said or done which was directly referable to her mental condition, the sexual abuse she had suffered, the death of her grandfather or her withdrawal from cannabis. In those circumstances, we agree with Mr Mably that it is difficult to identify how it can be said that the condition of EUPD was relevant to the third component in any way other than her general capacity to react to events. 82. The result is not unduly harsh because, if her condition was as bad as the defence claimed, and if a combination of her illness and a series of events just before the killing provided an explanation for the killing, the appropriate partial defence for her was diminished responsibility. On one view that was the only appropriate defence for her and the judge and Mr Malcolm QC for the prosecution were overly generous to her in agreeing that loss of control should be left to the jury. Having decided the defence should be left, the judge directed the jury fully and fairly to take into account at each stage all of her circumstances, such as the death of her abusive grandfather, the breakdown of her relationship with her boyfriend and the threat of eviction. He only excluded the evidence of EUPD from their consideration in so far as it bore on her general capacity for tolerance and self-restraint. He thereby fully complied with the requirements of section 54(1)(a) to (c) and section 54(3). There is nothing unsafe about the conviction. We refuse leave. Appeal against sentence Sentencing hearing 83. Charice Gassman was aged 19 at the time of the sentencing hearing. She had three previous court appearances between 2011 and 2013 for three offences: common assault, inflicting grievous bodily harm and criminal damage. She had not previously served a custodial sentence. 84. Amberstasia Gassman was aged 23 at sentence. She had three previous court appearances between 2008 and 2014 for three offences: common assault, assaulting a police constable and resisting or obstructing a police constable. She had not previously served a custodial sentence. 85. The trial judge had a number of victim personal statements from members of Ms Connelly’s family, setting out the devastating consequences of her death to them all, especially to the youngest of her eight children, her son aged 12. 86. He also had the benefit of a number of medical reports. We have already referred to those on Charice. There was a psychiatric report on Amberstasia setting out her history, which suggested that she too had experienced symptoms consistent with a diagnosis of EUPD. She was not suffering from a severe or enduring mental illness. 87. The judge described the applicants as involved in a joint enterprise that left Ms Connelly bleeding to death outside her daughter’s home. Charice was intent on revenge and really serious harm when she armed herself with a knife and then headed off uttering threats to kill or murder. When confronted by Ms Connelly she killed her. At some point in their journey to Evelyn House, at the latest, Amberstasia realised that Charice had a knife and, having heard the threats, realised she might use it. She herself was intent on using violence towards the deceased as well as encouraging and backing up her sister. In the aftermath of the stabbing, when she may not have known that Ms Connelly was dying, Amberstasia was heard to shout, “That’s what happens when you mess with my family.” 88. Although Charice had written to the court to express her remorse, he had seen few signs of genuine remorse when giving evidence and he had detected a sense of anger and irritation. She was prone to act violently and unable to control her emotions. Her EUPD acted as some impairment but not a substantial impairment. 89. In relation to Charice, the judge took the normal starting point in paragraph 5A of schedule 21 to the Criminal Justice Act 2003 of 25 years’ custody for the minimum term because she took a knife to the scene. He noted, as he did so, that had she been under 18 the starting point would have been 12 years. He decided not to add to the starting point to reflect the aggravating factors of premeditation and her previous convictions for offences of violence, but he did make a downward adjustment of 6 years to reflect her age and mitigation, namely her disorder, her cannabis dependence and the effects of withdrawal. She was sentenced to custody for life with a minimum term of 19 years. 90. In relation to Amberstasia Gassman, the judge bore in mind the contents of the psychiatric report and the fact that she too may have suffered from EUPD. He acknowledged she was still relatively young and her convictions for violence were limited. Balancing all the aggravating and mitigating factors and her role as he found it to be, he concluded that a sentence of 12 years’ imprisonment was appropriate. Ground of appeal against sentence for Charice Gassman 91. There is one ground of appeal for Charice Gassman, i.e. that the minimum term of 19 years was manifestly excessive. Mr Vaitilingam invited the court to find that in the light of her age, a degree of provocation (in the head-butt) and her mental disorder, the judge should have made a greater downward adjustment from the starting point of 25 years. Ground of appeal against sentence for Amberstasia Gassman 92. Similarly, Amberstasia Gassman argues that her sentence of 12 years’ imprisonment was manifestly excessive. 93. Mr Daymond for the applicant criticised the judge for failing to adjourn sentence for the preparation of a pre-sentence report (“PSR”). Such a report would have dealt with matters relevant to sentence other than the facts of the offence. It was his contention that a psychiatric report was not a substitute for a PSR; in effect it dealt only with the applicant having some traits of EUPD. In the light of this diagnosis a PSR was more important, rather than less so. 94. Mr Daymond also criticised the judge’s approach to the factual basis for sentence. The judge was accused of going behind the jury’s verdict based on his directions in the route to verdict. The judge suggested that “the jury had given (Amberstasia) the benefit of the doubt” as to her intent, but went on to sentence as if she did have the necessary intent for murder. He declared himself satisfied that by the time she reached Evelyn House she was aware that her sister had a knife and intended to cause at least really serious bodily harm to Ms Connelly. There was no proper evidential basis for the finding that Amberstasia knew her sister had a knife at any stage before the stabbing. Had the jury been satisfied she knew of the knife and of her sister’s intent, they would have convicted of murder. 95. Finally, complaint was made that the judge placed insufficient weight on i) the Appellant’s age (23), ii) the fact that she had no more than minor previous convictions, iii) the fact that she had played no active physical or verbal part in the stabbing, and iv) her mental disorder. Conclusions on the applications for leave to appeal against sentence Charice Gassman 96. We understand why Mr Vaitilingam applied for leave to appeal against sentence. A term of 19 years to serve before being considered for parole is a very long time for a young woman of nineteen. 97. However, the judge was obliged to take the starting point of 25 years for the minimum term, as Mr Vaitilingam conceded. There was here no reason to depart from the norm. The judge could have made an upward adjustment to reflect the aggravating factors but decided not to do so, rightly in our view. 98. There was some slight mitigation in the fact she had been head-butted by the deceased that morning, but we note, as the judge noted, she had plenty of time to calm down. There was a gap of over ten minutes between the incident in the shop and the stabbing, during which time she went to her sister’s home, armed herself and then set off with the intent to kill or, at the very least, cause really serious bodily harm. Given the nature of her threats the judge would have been entitled to conclude she intended to kill. 99. Part of the reason she did not calm down was her EUPD and that too is a mitigating factor, but Charice Gassman knew full well the effect upon her of the disorder and that she may kill and refused to engage with the help offered to her. Had she done so, she may not have reacted to the head-butt in the way that she did. 100. We agree that a significant downward adjustment from the starting point was required for that mitigation, in particular her age. However, a reduction of 6 years (the equivalent of a 12 year determinate sentence) is a very significant reduction and, despite Mr Vaitilingam’s eloquence, we remain unpersuaded that a 19 year minimum term was excessive. We give leave but dismiss the appeal. Amberstasia Gassman 101. A full and careful Pre-Appeal Report including a risk assessment has been prepared for us. If there was an omission on the judge’s part, it has been remedied. We have considered the contents with care and conclude that it does not assist the applicant in the way Mr Daymond had hoped. She is making progress in prison and is motivated to address her problems, but there have been two adjudications for violent behaviour. She is currently assessed as posing a high risk of serious harm to members of the public, especially to those she perceives as a threat to her family. She now regrets her actions, but still attempts to minimise and justify her past violent behaviour. The author of the report concluded that her involvement in the death of Ms Connelly was triggered by a combination of factors: by the fact her sister had been “disrespected and wronged”, by her inability to control her anger generally (her EUPD) and by her heavy drug abuse at the time. She still disputes the extent of that involvement. 102. That brings us to the complaint about the judge’s assessment of the factual basis for sentencing. A useful summary of the proper approach is contained in the judgment in R v King [2017] EWCA Crim 128 . Sweeney J, giving the judgment of the court, said this at paragraph 31: “In our view the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass sentence, is clear. If there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant.” 103. We respectfully agree. 104. There was here more than one interpretation of the jury’s verdict and it was for the judge to form his own conclusions on the evidence as to the factual basis for sentence, if he could properly do so. In our judgment, there was ample evidence to satisfy the judge so that he was sure that the applicant knew of the knife and Charice’s intent and to reject any suggestion that Amberstasia thought they were going to Evelyn House for some innocent purpose. Charice had made her intent all too clear. It does not follow from the fact that Amberstasia was acquitted of murder that she did not know of the knife and of her sister’s intent. It means simply that the jury was not satisfied she shared her sister’s intent. Amberstasia was, therefore, a knowing party to an armed revenge mission, as the judge found, albeit not a party with the proven intent to kill or cause really serious bodily harm. 105. She is still a young woman and before this offence was relatively lightly convicted. She is also said to suffer from a personality disorder. These were all factors that the judge bore very much in mind, as reflected in his careful sentencing remarks. Bearing the aggravating and mitigating factors in mind, we are satisfied it is not arguable that the sentence of 12 years was excessive. We refuse leave.	{"ConvCourtName":["Central Criminal Court","Crown Court at Bristol"],"ConvictPleaDate":[""],"ConvictOffence":["Murder"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Central Criminal Court","Crown Court at Bristol"],"Sentence":["Custody for life with a minimum term of 19 years (Charice Gassman)","12 years' imprisonment (Amberstasia Gassman)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male","All Female"],"OffAgeOffence":[19,23],"OffJobOffence":["Employed","Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking","Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male","All Female"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical expert evidence","Witness testimony","Forensic evidence"],"DefEvidTypeTrial":["Medical expert evidence","Defendant testimony"],"PreSentReport":["High risk of harm"],"AggFactSent":["Offence committed with a weapon","Premeditation","Previous convictions for violence"],"MitFactSent":["Young age of offender","Mental disorder","Cannabis dependence","Effects of withdrawal","Some provocation (head-butt)","No previous custodial sentence"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction unsafe","Sentence manifestly excessive"],"AppealGround":["Trial judge misdirected jury on relevance of mental disorder to loss of control defence","Minimum term manifestly excessive given age, provocation, and mental disorder","Insufficient downward adjustment for mitigation","No pre-sentence report for Amberstasia Gassman"],"SentGuideWhich":["Paragraph 5A of schedule 21 to the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge correctly directed jury on law regarding loss of control and mental disorder","Jury properly considered all relevant circumstances","Minimum term reduction for mitigation was significant and appropriate","No unsafe conviction","No error in factual basis for sentence","Pre-sentence report omission remedied on appeal"]}
Neutral Citation Number: [2010] EWCA Crim 1403 Case No: 201000191/D2 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT GUILDFORD His Honour Judge Addison T20097253 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/06/2010 Before : LORD JUSTICE AIKENS MRS JUSTICE SLADE and HIS HONOUR JUDGE WADSWORTH QC - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - MARK CHRYSOSTOMOU Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Rupert Hallowes for the Appellant Mr Charles Burton for the Respondent Hearing dates : 21 st May 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : 1. On 21 May 2010 we heard the appeal against conviction of Mark Chrysostomou, who is now aged 33. Leave to appeal had been given by the single judge, although on limited grounds. We allowed the appeal on count 1 and substituted a verdict of guilty under section 2 of the Protection from Harassment Act 1997 for the conviction under section 4 of that Act. The Sentence on count 2 (as substituted) was fixed at 2 months imprisonment concurrent with the sentence on count 3, on which there was no appeal. We said that we would give our reasons for allowing the appeal at a later date. These are our reasons. 2. This appeal arises out of the conviction of the appellant before HHJ Addison and a jury in the Crown Court at Guildford on 9 December 2009 on two counts. The first was that of possessing an imitation firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968 (count 1); the second was that of putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997 : (count 2). On 7 August 2009 the appellant had pleaded guilty to destroying property contrary to section 1(1) of the Criminal Damage Act 1971 , which was count 3 on the same indictment. Nothing arises out of that guilty plea. 3. On 5 February 2010 the appellant was sentenced to 9 months imprisonment on count 1; 4 months imprisonment (concurrent) on count 2 and 1 month imprisonment on count 3, making a total of 9 months imprisonment. The judge ordered that 104 days spent on remand should count towards sentence pursuant to section 240 of the Criminal Justice Act 2003 . The Facts. 4. The events giving rise to the charges took place on 2 June 2009. The appellant had known the complainant, a young lady whom we shall call ER, for about 6 or 7 years, although not intimately. At the trial, ER accepted in cross-examination that the appellant had lent her £50 at some stage, but she said that she had repaid it before the incident on 2 June 2009. On that day ER had been in a public house with a friend. They left there at about 6pm to go home. The appellant telephoned her on his mobile and seemed aggressive because she had not given him a lift home. ER went to her house. On the way ER telephoned a friend called Dylan. In evidence she said she did this because she was frightened. At some stage either just before or just after ER got to her house, her brother also arrived there. 5. When ER got to her house the appellant telephoned her again and said “I’m nearly there”. He also left her a voicemail message. ER’s brother telephoned 999 because he was very concerned. At about the same time ER heard someone apparently kicking the door of her house. She looked out of her window and saw the appellant on the doorstep, holding what looked like a gun. It was, in fact, an imitation firearm, known as a BB gun. 6. The police arrived and seized the BB gun from the compartment of the appellant’s car. The appellant was arrested and his mobile phone was taken. The police also asked to examine the mobile phone of the complainant. She said that she could not give it to them because it was her work mobile. However, PC Charlotte Smith examined ER’s mobile phone at the house and noted down some text messages from the phone. The battery of the mobile was low, but just before it expired, PC Smith noted a text (received) which read “just going to the bog to do a line”. PC Smith’s evidence was that ER then took the phone and appeared to be deleting text messages, which she was told not to do. PC Smith’s evidence was that she could smell alcohol on ER’s breath upon arrival at the complainant’s house. 7. The prosecution case at the trial was that the appellant stood outside ER’s bedroom window and held a BB gun, intending ER to believe that he would use unlawful violence against her: count 1. This conduct, together with text messages sent to ER, also amounted to putting ER in fear of violence by harassment: count 2. 8. In the course of his police interview, the appellant alleged that ER was a cocaine user and that he had lent her £750, although he said that money was not for drugs. The appellant accepted that he went to ER’s house and that he lost his temper and broke a window, hence his guilty plea to count 3. But he denied brandishing the BB gun. He also denied sending any text messages which were intended to harass the complainant. The appellant said that he was only trying to get his money back, but he himself was threatened by ER’s brother. 9. The appellant’s mobile phone and its SIM card were analysed. The results of the analysis were contained in a report by Afzal Patel, which was served on the defence by the prosecution under a Notice of Additional Evidence dated 14 September 2009, ie. nearly three months before the trial. In the phone’s memory were five texts to the appellant which came from a person identified as “John” in the phone’s address book of contacts. Four of these texts are relevant to this appeal. They were sent on 2, 3 and 5 June 2009, ie. on the day of the incident and then on subsequent days, when the appellant was in police custody. 10. The four texts are as follows: (1) The first text is timed at 10.36.45 (GMT + 1) on 2 June 2009. It reads: “ Mate can you get me a henry in for Thursday? I will be in on wed”. (2) The second text is timed at 11.14.19 the same day. It reads: “ Can I meet you about a mid day ish tomorrow for henry? Ta mate and is it still £100?”. (3) The third relevant text is timed at 10.35.02 on 3 June, ie. when the appellant was in police custody. That reads: “ Morning mate, I need 7 g will you do it for 200”. (4) The last text is timed at 11.55.08 on 5 June and reads: “ If your about sometime today with any stuff on you can you let me know, ta”. 11. Because the analysis of the appellant’s mobile phone was not undertaken by the time of his police interview, he was not asked about those texts at that stage. The police did not, apparently, attempt to trace the person called “John”, ie. the presumed author of the texts. At the time of the trial there was no other evidence that the Crown had to suggest that the appellant might be a Class A drug dealer, as opposed to a drug user. It was not suggested by the appellant’s antecedents. ER denied that she had any knowledge of Class A drugs, either with regard to the appellant or herself. 12. On 28 October 2009 the Crown served an application to adduce the previous convictions of the appellant as “bad character” evidence. Those convictions related to harassment of another girlfriend. The ground on which the Crown sought to adduce those convictions was that they were relevant to an important issue between the Crown and the appellant, viz. that the appellant had a propensity to commit offences of the nature charged. So the “gateway” asserted was that referred to in the Criminal Justice Act 2003 (“CJA 2003”), section 101(1)(d) and s.103(1)(a). That application was not pursued by the Crown. The Trial 13. ER gave evidence first. Before she started to give evidence, counsel for the appellant had applied, pursuant to section 100(1)(a) and (b) of the CJA 2003, (the section dealing with “non-defendant’s bad character” evidence), to cross examine ER on her alleged drug use. In other words, it was said that evidence about this topic was either important explanatory evidence or it had substantial probative value in relation to a matter which was a matter in issue in the proceedings and was of substantial importance in the context of the case as a whole. In terms of the offences of which the appellant was charged, the possible relevance of the evidence about ER’s possible drug use or her debt to the appellant (if there were one) was said to be, first, as to why the appellant was at ER’s flat at all and perhaps also his conduct there in breaking the window; and secondly, as to why he had sent various texts to her demanding money. 14. The judge ruled that was the case and permitted the questions to be put. However, in cross examination ER denied that she ever used cocaine and although she accepted that she had borrowed £50 from the appellant, she said that she had repaid it and she denied that she had ever borrowed more money from him. In cross-examination ER also accepted that 5 texts to the appellant, which appeared to be consistent with her being in debt to him and that she was attempting to find the money, had come from her mobile phone. That phone had not been further examined by the police beyond the short examination by PC Smith at the scene of the incident, to which we have already referred. 15. Towards the close of its case the Crown applied to adduce the four text messages as “bad character” evidence against the appellant. We assume that the application was made on the basis of the “gateway” in section 101(1)(g) , ie. that the appellant, through his interview answers and the questions put in the cross-examination of ER, had attacked her character. The judge refused that application. But he warned counsel for the appellant that he would reconsider the matter if the appellant gave evidence in chief that attacked the character of ER. 16. The appellant then gave evidence. In doing so he said that: (a) he had lent ER money, but not for drugs; (b) by 2 June 2009 she owed him £750; (c) he had introduced ER to a man called Dylan who was a drug dealer and that the appellant knew that Dylan had supplied ER with drugs, particularly cocaine; and (d) on 2 June he had seen ER get cocaine and go to a lavatory, with the implication that this was to do a line. The second application to put in the texts as “bad character” evidence. 17. At the close of the appellant’s evidence in chief the Crown renewed its application to adduce the four texts as “bad character” evidence of the appellant. The “gateways” then relied on were section 101(1)(f) and (g) of the CJA 2003, viz. that the evidence should be adduced to correct a false impression given by the defendant (ie. that he was not a drug dealer); or because the defendant had made an attack on the character of ER. 18. Counsel for the appellant objected to the texts being put in evidence on three grounds. First, he said that they were inadmissible hearsay evidence. Secondly, even if the evidence was admissible, it should not have been admitted because it would have such an adverse effect on the fairness of the proceedings that the court should not admit it: section 101(3) . That section only applies to “bad character” evidence admitted under paragraphs (d) and (g) of section 101(1) , but not paragraph (f), ie. when it is sought to be admitted to correct a false impression. So the third ground, which was general, was that the court should exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 (“PACE 1984”) not to admit the evidence, on the basis that the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. 19. The judge held, first, that the texts were not “ statements ” within the meaning of section 115(1) of the CJA 2003 and thus not hearsay evidence to which Chapter 2 of Part 11 of the CJA 2003 applied. Therefore they were, prima facie, admissible as evidence, subject to other possible bars to admission. Secondly, the judge held that the texts could be admitted as bad character evidence through the “gateways” of section 101(1)(f) and/or (g) of the CJA 2003. Lastly, he concluded (considering section 101(3) of the CJA and section 78 of PACE 1984) that it was not unfair in the circumstances to permit the evidence to be admitted. So he ruled that they could all be admitted as “bad character” evidence. 20. The trial then continued. The jury convicted the appellant on both counts unanimously after 3 ½ hours deliberation. Leave to appeal. 21. The single judge granted leave to appeal on a limited basis. He did not grant leave on the question of whether the texts were inadmissible hearsay evidence. Agreeing with HHJ Addison, he said that the texts were questions and not statements so did not come within the “hearsay” evidence provisions of the CJA 2003. The single judge did grant leave on the questions of (a) whether the application to adduce the “bad character” evidence was made too late; and (b) whether the judge was correct to rule that it was not unfair to admit the evidence, with section 101(3) of the CJA or section 78 of PACE 1984. Mr Hallowes on behalf of the appellant has renewed his application to argue the hearsay evidence point. We granted leave on that point at the hearing. The Issues on the appeal. 22. There are four issues that arise on this appeal. First, do the four texts that the Crown sought to introduce as “bad character” evidence constitute “hearsay” evidence within the terms of Chapter 2 of Part 11 of the CJA 2003. Secondly, if they do not, do the texts come within either of the “gateways” relied on by the Crown, viz. section 101(1)(f) and (g) of the CJA 2003 so as to be prima facie admissible as “bad character” evidence? Thirdly, if the evidence is otherwise admissible, should the judge have excluded it either under section 101(3) of the CJA 2003 or by virtue of section 78 of PACE? Lastly, are the convictions safe? Are any of the texts inadmissible because they are “hearsay evidence”? 23. Sections 114(1) , 115 and section 118(1) and (2) of the CJA 2003 provide as follows: 114 Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. 115 Statements and matters stated (1) In this Chapter references to a statement or to a matter stated are to be read as follows. (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been— (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated." ………. 118 Preservation of certain common law categories of admissibility (1) The following rules of law are preserved. Public information etc ... Reputation as to character ... Reputation or family tradition ... Res gestae ... Confessions etc ... Admissions by agents etc ... Common enterprise ... Expert evidence ... (2) With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished. ……” 24. As this court re-iterated in R v Leonard [2009] EWCA Crim 1251 , it is plain from sections 114(1) and 118(2) that the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished with the exceptions of the rules preserved by section 118(1) itself. The common law rules are replaced by a statutory code which governs what is “hearsay evidence” and when such evidence can be admitted in criminal proceedings. Although there is no express definition of “hearsay” in the CJA 2003, it is clear that the opening words of section 114(1) and section 115 define hearsay evidence as any representation of fact or opinion (called a “ statement” in the sections) made by a person otherwise than in oral evidence in the proceedings in question, when such statement is tendered as evidence of the matters stated in that statement. The statutory code dictates when such a statement, which is not made in oral evidence in criminal proceedings, may be admitted of “ any matter stated”, if it is sought to adduce such a statement “ as evidence of any matter stated in that statement”: section 114(1) . 25. It must follow from this that if the purpose of adducing a “ statement” that has not been made in oral evidence in the proceedings in question is not as evidence of “ any matter stated” in the statement, but of some other fact, then the statutory code laid down in Chapter 2 of Part 11 of the CEA 2003 cannot apply. Moreover, as all the other common law rules concerning hearsay evidence have been abolished by section 118(2), save for those expressly retained by section 118(1) , any other hearsay rule that might otherwise have prevented a hearsay statement not given in oral evidence in the proceedings from being adduced for some purpose other than to prove “ any matter stated” in the statement, will no longer apply. 26. The common law rule was that a statement adduced in evidence to prove not the “ matters stated” in it, but some other fact which the evidence tended to prove by reason of an “implied assertion”, was excluded as hearsay. The leading decision on this point was that of the majority in the House of Lords in R v Kearley [1992] 2 AC 228 . The majority held that statements in telephone calls and by callers in person to the appellant’s house, all made in his absence, in which the callers asked to speak to the appellant and to be supplied with drugs, could not be admitted in evidence because they were adduced to prove, by implication, the fact that he, as an occupier of the premises, was a supplier of drugs. The majority held that the hearsay rule applied to implied as well as express assertions, so that the evidence should not have been admitted by the trial judge. But, as Sir Christopher Rose V-P stated in R v Singh [2006] 1 WLR 1564 at paragraph 14, that decision has been set aside by the CJA 2003 because the Act has abolished all the common law hearsay rules except those which it has expressly saved. 27. Therefore, whenever some evidence, which is not in the form of oral evidence in the proceedings, is now sought to be admitted in a criminal trial, there are three preliminary questions that have to be asked. First and foremost, is the proposed evidence relevant? Secondly, if so, is it a “ statement” within the meaning of section 115(2) of the CJA ? Thirdly, if so, what is the purpose for which this “ statement” is to be adduced in evidence? Is it in order to prove a “ matter stated ” (as defined by section 115(3) ), or is it in order to prove the fact that the statement was made at all or is it to prove something else? 28. In this case it was not argued by the appellant that the texts were irrelevant. We are also prepared to accept, without definitively deciding the issue, that the four texts sought to be admitted are “statements”, within the meaning of section 115(2) . However, we are clear that the purpose for which the Crown wished to adduce the texts in evidence in this case was not to prove, as fact, any matters stated in those texts. The object of adducing them was as evidence of an underlying state of affairs, which was the basis on which “John” apparently sent the texts to the appellant, viz. that the appellant dealt with drugs and so could meet John’s demands. In the language of Kearley and Singh, the texts were sought to be admitted as evidence of an “implied assertion”. Therefore, the texts are not caught by the statutory code on hearsay set out in the CJA 2003 and, subject to any other objections to admissibility, could be admitted in evidence in the proceedings. Were the texts admissible as “bad character” evidence within the gateways of section 101(1)(f) and/or (g)? 29. It is clear from the judge’s ruling on the application by the Crown to admit the texts as “bad character” evidence that the bases on which it relied for the admission of the texts were those set out in section 101(1)(f) and (g) of the CJA 2003. The first basis is therefore that the texts constituted evidence which had probative value to correct a false impression given by the appellant, namely, that he was not himself a dealer in drugs: see also section 105(1)(b). (The appellant had given evidence in chief accepting that he was himself a user of Class A drugs). The second was that the appellant had made an attack on another person’s character, namely, that ER had behaved or was disposed to behave in a reprehensible way, viz. by being a Class A drug user. (See also section 106(2)(b) of the CJA 2003). 30. It will be recalled that the Crown’s application was made after ER had given her evidence and after the appellant had given his evidence in chief. So the judge knew what most of the rival evidence was about the background to the events of 2 June when he made his ruling. He said in his ruling (page 2F) that the background to the events of 2 June 2009 and what led up to them “… may well be important matters, which the jury will wish to consider in trying to work out what on earth all of this was about”. The judge recalled that it had been put to ER in cross examination that she had been a cocaine user; that she knew of a man called Dylan who was a Class A drug dealer and also a friend of the appellant; and that the appellant gave her money to buy cocaine, which drug the appellant took with her on more than one occasion. ER had denied all of that. The judge said that he was not quite sure what the purpose of all this line of cross-examination might be, but “ …it certainly would go to disprove any suggestion that [the appellant] was some sort of stalker and was trying to force himself upon [the complainant]”: page 2G of his ruling. 31. The judge also referred to the evidence in chief that the appellant had given. That evidence included statements that he had lent ER money on many occasions, although when she had asked for money for drugs he had refused her. The appellant had said that he and ER had taken drugs together. He said that he had introduced her to Dylan who had supplied her with drugs. He also gave evidence that he saw ER take cocaine on one occasion. The judge concluded that was “…a fairly clear attack on the character of the complainant”: page 5H. 32. The judge then considered the possible effect of the putting the texts to the appellant in cross-examination. He said, at 6A-B of his ruling: “The effect of it, I suppose, is an effect upon his credibility and indeed possibly on the credibility of the complainant. It also shows, it seems to me, the background to the events and it may well be relevant to his intention, in going around to try and extract money from her and it may be relevant to his possession of an imitation firearm”. 33. The judge then dealt with the points raised on behalf of the appellant against permitting the texts to be admitted as “bad character” evidence. He dealt first with the argument that he should rule against permitting their admission, pursuant to section 78 of PACE, on the ground that to admit the texts would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. He concluded that it was fair to admit the evidence because it might explain the background to the events of 2 June and, if so, “ …then it is right it should be adduced, because criminal cases are not or not supposed to be about simply playing games with the legislation”: page 7A. 34. The judge next dealt with the “hearsay evidence” point and rejected it, as already noted. The judge then considered in more detail whether the application came within the two gateways identified, ie. section 101(1)(f) and (g) of the CJA 2003. He concluded that they did and in doing so he said that he was satisfied, so far as “gateway” (g) was concerned, that section 101(3) did not prevent the texts from being put to the appellant in cross-examination. 35. Mr Hallowes’ first argument before us was that the application to adduce the texts as “bad character” evidence was too late and not in accordance with the Criminal Procedure Rules, Pt 35.1 and 35.4. We are unimpressed with that argument. The trial developed and the judge had to deal with it as it did so. That, by itself, is not a legitimate ground of complaint. 36. There is no doubt that the appellant had, in his evidence in chief, made an attack on the character of ER by giving evidence that she was a cocaine user and purchaser from Dylan. That was evidence that ER had behaved in a “ reprehensible way” within section 106(2)(b) of the CJA 2003. Therefore, subject to section 101(3) , this “gateway” for the admission of the texts was satisfied. 37. We are not convinced by the argument that the appellant had, by his evidence in chief, given a false impression to the jury, in the sense that he was only a drug user but not a drug dealer. The only basis on which it could be said that he was a drug dealer, (in the face of denials of that fact by both the appellant and ER herself) was by the very evidence that the Crown wished to adduce, viz. the texts. There was no other evidence to suggest it and it was not a positive case being put by the Crown. The appellant had admitted he was a Class A drug user and he had admitted his past convictions. We therefore cannot see the basis on which the section 101(1)(f) “gateway” could have been properly invoked. Should the judge have excluded the texts either by virtue of section 101(3) of the CJA 2003 or section 78 of PACE 1984? 38. Mr Hallowes’ next argument is much more formidable, namely that the judge should not have permitted these texts to go before the jury because, under either section 78 of PACE or section 101(3) of the CJA 2003, the admission of the evidence would have had such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In this regard we note that the wording of section 101(3) of the CJA 2003 viz. “ must not admit ” is stronger than that of section 78 of PACE 1984, which uses the words “ may not allow ”. Thus, if there is an application to admit the same “bad character” evidence through the “gateways” of section 101(1)(d) or (g), then a defendant applies to the court under section 101(3) not to admit that “bad character” evidence and the court concludes that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, then its duty is not to do so. 39. Our conclusion above that the proper gateway in this case was only that in section 101(1)(g) means that we must focus on section 101(3) rather than section 78 of PACE 1984. The inevitable effect of admitting the texts would be that they would become evidence of an “implied assertion” that the appellant was a person capable of providing Class A drugs. Yet the evidence of both ER and the appellant was that she had never bought drugs from him and he had never supplied her with drugs. There was no further evidence on which the Crown could base a case (which it did not attempt to do anyway) that the appellant had sold ER drugs and that she owed him money for them and that “drug debts” constituted his motive for going to ER’s house on 2 June and threatening her with the BB gun. 40. Therefore, if it was not the Crown’s case that the appellant had sold drugs to ER, what probative value did the texts have? At the most, all the texts could do would be to act as evidence which was consistent with the appellant being capable of supplying drugs to others. What relevance did that have to the charges against him? In our view, the texts had no relevance other than to blacken the general character of the appellant in the eyes of the jury and, therefore, dent the credibility of his evidence generally. We think that this is made clear by what we would respectfully say was the difficulty that the judge had in putting the possible relevance of the texts in his summing up to the jury at page 9D-F. 41. The judge said: “You also heard evidence about the text messages which had been sent to the defendant, apparently from a man called John, which the prosecution say appeared to be requests for a supply of drugs. Well, you heard the defendant’s evidence about that that John was “off his head”, I think he may have said “off his trolley” and anyway that he had probably got the wrong number; but it is for you to say that those messages carry the necessary implication that the defendant must have been known to at least one person as someone who might supply drugs. The message if you think about it, cannot show anything more than that, and it is for you to decide whether those messages really have any significance as to the defendant’s previous behaviour. You heard about the messages because it is entirely a matter for you, but it may help you to understand and judge and test other evidence and other issues in the case, namely, the issues about whether Elaine took cocaine, because there was a dispute about that; whether she owed the defendant money and there was a dispute about that; and if so how much and why had she borrowed it and to what purpose and those were all issues which were in dispute”. 42. With respect, the texts do not help to understand whether ER took cocaine or whether she owed the appellant money in the absence of any prosecution case, or any evidence, that the appellant supplied ER with drugs. 43. On the other hand, if the texts were treated by the jury as evidence that the appellant was capable of supplying others with drugs, it was highly prejudicial to his case in a general sense. Of course, the jury should only have acted on the text evidence if they were sure that it proved that the appellant was capable of supplying others with drugs. The only evidence about “John” was from the appellant himself; he said that “John” was mentally unstable or “off his trolley”. The Crown adduced no evidence about “John”. We are very doubtful whether those texts could, on their own, be capable of amounting to sufficient evidence on which a reasonable jury could be sure that the appellant was capable of being a supplier of drugs to others. And, as we say, even if the jury had been sure of that fact, where did that lead them? 44. We are not convinced that it was proper to admit the text evidence, in order to attempt to prove that the appellant was capable of supplying drugs to others simply to assist the jury on the question of whether they believed the appellant’s evidence, which is the only other possible relevance that the judge assigned to the texts at page 10E-F of his summing up, where he deals generally with the issue of character and what use it is to the jury. He said: “ …… You must decide to what extent if at all his character helps you when judging whether or not you believe his evidence, and of course, bear in mind the obvious point that evidence of what he has done in the past is only part of the evidence in the case, and its importance should not be exaggerated and you may think that in this case it probably will not assist you very much.” 45. We regard that as too flimsy a basis on which to have permitted the texts to be admitted as “bad character” evidence in the circumstances of this case. 46. For these reasons, we have concluded that the judge erred in his rejection of Mr Hallowes’ application under section 101(3) of the CJA 2003 to exclude the texts. In our view the judge should have concluded, on an analysis of the issues and the existing evidence in the case, that the admission of the texts would have had such an adverse effect on the fairness of the proceedings that they ought not to be admitted. If he had reached that conclusion, then, in the words at the outset of section 101(3) , the court “ must not admit evidence under subsection (1)…(g)…”. Was the conviction safe even if the texts were wrongly admitted as evidence of “bad character”? 47. Mr Burton for the Crown submits that the case against the appellant was strong. We agree. He also points out that the judge was careful, first, to emphasise in his summing up that the jury must not convict the appellant simply because he has a bad character: page 9H. Secondly, the judge also directed the jury that although a person of bad character may be less likely to tell the truth, it does not follow that he is incapable of doing so: page 10D. 48. Despite these points, we concluded that we could not be sure that the jury would have placed so little weight on the text evidence that it would have made no material difference to their verdicts if it had not been admitted. In our view there was a great danger that the text evidence would have diverted the attention of the jury from the principal issues in the case and unduly prejudiced them against the appellant. We were therefore satisfied that the admission of the text evidence did make the verdicts unsafe. 49. For those reasons we allowed the appeals against conviction. Consequences 50. When we had announced our decision, Mr Hallowes quite properly pointed out that, in relation to count 2, ie. the allegation of of putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997 , the appellant had pleaded guilty to an offence under section 2 of that Act. However, that plea had not been accepted by the Crown at the time. Mr Hallowes also told us that he accepted that the appellant had effectively admitted to the section 2 offence during the course of his evidence. Mr Hallowes therefore conceded that, in the circumstances, having allowed the appeal on count 2, the court could and indeed should exercise its powers under section 3(2) of the Criminal Appeal Act 1968 to substitute a verdict on count 2 of guilty to an offence under section 2 of the Protection of Harassment Act 1997. We agreed with that course. 51. We considered the question of penalty for that offence and concluded that, in the circumstances, we should impose a sentence of 2 months imprisonment concurrent to that imposed for count 3. Therefore the total term of imprisonment became one of two months, less 104 days spent on remand. The restraining order made pursuant to section 5 of the Protection of Harassment Act 1997 remains in force.	{"ConvCourtName":["Crown Court at Guildford"],"ConvictPleaDate":["2009-12-09","2009-08-07"],"ConvictOffence":["Possessing an imitation firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968","Putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997","Destroying property contrary to section 1(1) of the Criminal Damage Act 1971"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[104],"SentCourtName":["Crown Court at Guildford"],"Sentence":["9 months imprisonment on count 1","4 months imprisonment (concurrent) on count 2","1 month imprisonment on count 3 (concurrent)","Total: 9 months imprisonment"],"SentServe":["Concurrent"],"WhatAncillary":["Restraining order made pursuant to section 5 of the Protection of Harassment Act 1997"],"OffSex":["All Male"],"OffAgeOffence":[33],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Victim testimony","Police testimony","Text message evidence","Physical evidence (BB gun)"],"DefEvidTypeTrial":["Offender denies offence","Alibi claim","Cross-examination of victim","Denial of intent to harass"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Admission of bad character evidence (text messages) was unfair and should have been excluded under section 101(3) of the Criminal Justice Act 2003","Texts were inadmissible hearsay evidence"],"SentGuideWhich":["section 240 of the Criminal Justice Act 2003","section 3(2) of the Criminal Appeal Act 1968","section 2 and section 4(1) of the Protection from Harassment Act 1997","section 16A of the Firearms Act 1968","section 1(1) of the Criminal Damage Act 1971"],"AppealOutcome":["Allowed & Conviction Quashed on count 1 and count 2; substituted verdict of guilty under section 2 of the Protection from Harassment Act 1997 for count 2; sentence on count 2 fixed at 2 months imprisonment concurrent with count 3"],"ReasonQuashConv":["Admission of text message evidence as bad character evidence was unfair and had an adverse effect on the fairness of the proceedings, making the conviction unsafe"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
No: 201204389 A1 Neutral Citation Number: [2012] EWCA Crim 3039 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 7 December 2012 B e f o r e : LORD JUSTICE PITCHFORD MRS JUSTICE DOBBS HIS HONOUR JUDGE GILBERT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - R E G I N A v RAHAD HUSSAIN - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Mr B Richardson appeared on behalf of the Applicant Miss S Booker appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE PITCHFORD: My Lord, HHJ Gilbert, will give the judgment of the court. 2. HIS HONOUR JUDGE GILBERT: This is an application for leave to appeal the sentences passed by Mr Recorder Nicklin at Snaresbrook Crown Court as unlawful in respect of the sentences passed for the two offences of possession with intent to supply class A drugs, those being sentences of 33 months and 33 months concurrent. We therefore grant leave to appeal. 3. The brief history is this. On 30 May 2012 at Stratford Magistrates' Court, the appellant was convicted of possession with intent to supply cocaine and possession with intent to supply heroin. On 20 June 2012, he was committed to the Snaresbrook Crown Court for sentence under Schedule 2, paragraphs 18(10) and 18(11) of the Criminal Justice and Immigration Act 2008 as he was at the time of conviction subject to a Youth Rehabilitation Order made on 10 April 2012 for an offence of violent disorder, which had been passed upon him at the Snaresbrook Crown Court. 4. On 29 June in the Crown Court at Snaresbrook the appellant was sentenced by Mr Recorder Nicklin to 33 months and 33 months concurrent in a Young Offender Institution for two offences of possession of class A drugs with intent to supply, and to 6 months concurrent in a Young Offender Institution for the offence of violent disorder, for which he had been subject to the Youth Rehabilitation Order of which he had originally been convicted by a jury at Snaresbrook on 21 October of last year, that being 4 days after the drugs offences were committed. 5. The facts of the two drugs offences may be stated very briefly. On 17 October 2011 a school teacher telephoned the police to report that she had observed a youth dealing drugs in Underwood Road in London, E1. She then saw drugs hidden underneath some trees near a bush. Police attended and arrested the appellant, who matched the description given to them by the teacher. The police recovered a cigarette box, the contents of which were analysed and found to contain 24 red and white packages, containing crack cocaine of a purity between 5 and 25 per cent, and nine blue and white packages, containing heroin with a purity of between 15 to 35 per cent. The appellant's fingerprints were found on the cigarette box. 6. In his grounds of appeal, counsel for the appellant, Mr Richardson, contends that the sentences for the drugs offences were manifestly excessive as the appellant was 17 years of age when the offences were committed, although 18 when convicted, and therefore he should have been sentenced to a maximum sentence of 2 years in a Young Offender Institution, taking into account that the maximum which the Youth Court could have passed was a Detention and Training Order for 24 months. 7. Save to say that 2 years in a Young Offender Institution was certainly not manifestly excessive for these drugs offences following conviction, notwithstanding the mitigation available to the appellant, we do not need to consider these grounds of appeal as the sentences for the drugs offences were unlawful. 8. By paragraph 19(6) of Schedule 2 of the Criminal Justice and Immigration Act 2008, which is set out in the 2013 edition of Archbold at chapter 5, paragraph 391, page 692, if an offender is brought or appears before the Crown Court by virtue of paragraph 18(11), as the appellant was, the Crown Court's powers are limited to dealing with him for the further offence or offences, that is to say the drugs offences, in any way in which the convicting court (that is the Stratford Magistrates' Court) could have dealt with him for the offences. Accordingly, the maximum sentences for those drugs offences was 6 months and 6 months consecutive in a Young Offender Institution. 9. Therefore we quash the sentences of 33 months and 33 months, and in their place we pass sentences of 6 months and 6 months in a Young Offender Institution, consecutive to each other for the two drugs offences, which in no way could be considered manifestly excessive. 10. With regard to the offence of violent disorder, by paragraph 19(3) of the Criminal Justice and Immigration Act 2008, as the Crown Court revoked the rehabilitation order, it may deal with the offender for the offence in respect of which the order is made in any way in which it could have dealt with the offender for that offence had he been before that court to be dealt with for the offence. 11. Bearing in mind that the sentences for the two drugs offences are 6 months and 6 months in a Young Offender Institution consecutive, the maximum which the Magistrates' Court could have passed upon him, we have to consider whether as a matter of law the sentence of 6 months detention in a Young Offender Institution for the offence of violent disorder must be concurrent so as to preserve the maximum 12 months, or it may be consecutive. 12. The point was dealt with in this court in the case of Nicholas Whitlock [1992] 13 Cr App R (S) 157, and it was clear in that authority, which we need not recite as it has not been contended to the contrary on behalf of the appellant, that it was open to the court when sentencing for breach of a probation order to make the sentence consecutive to any sentence where the maximum had already been allotted, so to speak, by the magistrates to the subsequent offences. 13. The sentence for the offence of violent disorder may therefore be consecutive to the other sentences. Whilst it is correct that the learned Recorder revoked the YRO and sentenced the appellant to 6 months detention in a Young Offender Institution concurrently, he did so saying that ordinarily that sentence would be ordered to be served consecutively to the drugs sentences because the offence had been committed in a separate incident. But, having regard to totality, and that he did not wish to increase the sentence beyond 33 months, he would order that the sentence of 6 months be served concurrently with the 33 months. 14. In our judgment, because we are bound by the provisions of Schedule 2 of paragraph 18 of the Criminal Justice and Immigration Act to reduce the sentences for the drugs offences to a total of 12 months in a Young Offender Institution, we consider it right to order the sentence for the violent disorder offence to be served consecutively to the 12 months for the drugs offences, having regard to the fact it relates to an offence which was totally separate from the drugs offence and totality therefore is not in issue. 15. In the result, the sentences which we pass are 12 months detention in a Young Offender Institution for the drugs offences, with 6 months detention consecutive for the violent disorder. The total which the appellant must serve is 9 months, less any days served to date. The other orders for forfeiture and destruction will stand. 16. LORD JUSTICE PITCHFORD: Mr Richardson, as we understand it, there were no days on remand that needed to be taken into account because he was committed on bail, was he not? 17. MR RICHARDSON: My Lord, that is correct, yes. 18. LORD JUSTICE PITCHFORD: Very well. Thank you very much.	{"ConvCourtName":["Stratford Magistrates' Court","Snaresbrook Crown Court"],"ConvictPleaDate":["2012-05-30","2011-10-21"],"ConvictOffence":["Possession with intent to supply cocaine","Possession with intent to supply heroin","Violent disorder"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Snaresbrook Crown Court"],"Sentence":["6 months in a Young Offender Institution (possession with intent to supply cocaine)","6 months in a Young Offender Institution (possession with intent to supply heroin)","6 months in a Young Offender Institution (violent disorder)"],"SentServe":["Consecutive"],"WhatAncillary":["Forfeiture and destruction orders"],"OffSex":[],"OffAgeOffence":[17],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Fingerprint evidence"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Mitigation available to the appellant (not specified)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive","Sentence is unlawful"],"AppealGround":["Sentences for drugs offences were manifestly excessive given age at offence","Sentences for drugs offences were unlawful as per Criminal Justice and Immigration Act 2008"],"SentGuideWhich":["Schedule 2, paragraphs 18(10), 18(11), and 19(6) of the Criminal Justice and Immigration Act 2008"],"AppealOutcome":["Allowed & Sentence Quashed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Appellant was 17 at time of offence, maximum sentence should have been 2 years in a Young Offender Institution"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 2011/03009/B4 Neutral Citation Number: [2012] EWCA Crim 539 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM GUILFORD CROWN COURT (HIS HONOUR JUDGE CRITCHLOW DL) Royal Courts of Justice Strand, London, WC2A 2LL Date: 16 March 2012 Before : LORD JUSTICE DAVIS MR JUSTICE NICOL and HIS HONOUR JUDGE KRAMER QC - - - - - - - - - - - - - - - - - - - - - Between : The Queen (Surrey Trading Standards) Respondent - and - Scottish and Southern Energy PLC Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Andrew Mitchell QC and Jonathan Goulding (instructed by SSE Services plc ) for the Appellant Nicholas Haggan QC and Timothy Moores (instructed by Surrey Trading Standards ) for the Respondent Hearing date : 16 February 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Davis : Introduction 1. On the 10 th May 2011 after a trial lasting some 5 days before HHJ Critchlow and a jury the appellant company, then called Scottish and Southern Energy plc (“PLC”), was convicted of two counts, being counts 6 and 7 on the indictment, of engaging in a misleading commercial practice contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”). They were acquitted on the five other counts on the indictment charged by reference to the 2008 Regulations – in the case of two such counts on the direction of the judge. A co-accused, Crispin Pollak, was also acquitted on those five counts. Mr Pollak was not a co-accused in respect of counts 6 and 7. 2. PLC now appeals against conviction by leave of the Single Judge. We were told that sentence has been adjourned pending the disposal of this appeal. 3. PLC was represented before us by Mr Andrew Mitchell QC and Mr Jonathan Goulding. The respondent prosecutor, Surrey Trading Standards, was represented by Mr Nicholas Haggan QC and Mr Timothy Moores. Background Facts 4. The background facts can be shortly stated and are these. 5. Mr Leonard Britton was at his home in Waterside Road in Guildford on the morning of 26th February 2009. As it happened, his daughter, Mrs Walker, was with him at his home that day. It seems that a significant number of elderly people lived in that area. At all events it had been designated by the local Council as a “no cold calling zone”. There was a sign to that effect at the end of the street. By Mr Britton’s front door there were affixed two printed notices, one provided by the Council and one provided by the police. The first stated that the area was a no cold-calling area and that “we do not buy or sell at the door. Identification is required from unknown callers. Please push all mail though the letter box.” The second was shorter but to similar effect. 6. The door-bell rang. Mr Britton answered the door. There he found a man (the co-accused Mr Pollak), with a card identifying him as being from “Southern Electric”. Mr Pollak, as was not ultimately disputed, was an employee of a company called SSE Energy Supply Limited (“LTD”), who had been trained as a door-to-door salesman by LTD. This training required him to speak from, and adhere to, a sales script (called an Energy Script) which he had learned by heart. That set out the questions and statements the salesman was required to put. These included enquiring as to the occupant’s current arrangements and bills for electricity and gas. The questions detailed what was to be asked outside the house and then, if invited in, what to say inside the house. The script even included specific instructions as to when to nod the head, when to make small talk about the weather, when to wait for answers and so on. 7. Mr Britton talked to the man for a few minutes. According to Mr Britton he said he was not interested but the man would not leave. Mrs Walker then came out to investigate and, as she was to say, told the man that it was a no cold call area and asked him to leave. The man did so. She decided to report the incident to Mr Jones, a community safety warden in the area, who had himself been noticing what appeared to be cold calling in the area that morning. Mr Jones confronted Mr Pollak who said he should speak to his supervisor Mr Drewry, which in due course he did. Mr Drewry later called to apologise to Mrs Walker. It was common ground at trial that it was not in itself illegal to engage in door-to-door selling in the area, notwithstanding that the Council had designated it a no cold-calling area and notwithstanding notices such as those affixed by Mr Britton’s door. 8. The matter was, in the event, referred to Surrey Trading Standards. They entered into communication about it with what they understood to be PLC. In due course proceedings under the 2008 Regulations were commenced against PLC and Mr Pollak. At the Plea and Case Management hearing on 1 st October 2010 the point was raised – for the first time so far as Surrey Trading Standards were concerned – that the correct corporate defendant should have been LTD (which had employed and trained Mr Pollak). If that was correct, then it was by now too late, by virtue of the time limit for prosecution stipulated by regulation 14 of the 2008 Regulations, to commence proceedings against LTD. 9. In due course, and prior to trial, PLC applied to the Judge seeking a dismissal or stay on the basis that, under the provisions of the 2008 Regulations, it had no case to answer as it was not a relevant “trader” for the purposes of the 2008 Regulations (although it was not disputed that LTD was itself capable of being a relevant trader). The judge, by reserved written decision handed down on 7 th January 2011, rejected that application. 10. The first ground of the appeal is a challenge to the correctness of that ruling. The remaining four grounds of the appeal are to the effect that the Judge failed, in various respects, to direct the jury properly as to the considerations they needed to address in deciding whether or not PLC was the relevant trader; misdirected the jury as to whether Mr Pollak could be acting as agent for PLC; misdirected the jury as to whether a “transactional decision” was caused or likely to be caused by the alleged misleading practice; and last (although by no means least in Mr Mitchell’s submissions) that the Judge had failed to remind the jury sufficiently of the defence case. The 2008 Regulations 11. To make a little more sense of these points it is convenient to turn to the 2008 Regulations at this stage. 12. The 2008 Regulations came into force on 26 th May 2008 (2008 SI No. 1277). They were made in consequence of Directive 2005/29/EC. As is customary in such Directives, there are extensive recitals explaining the purpose behind, and perceived need for, the directed regulations. It was (among other things) noted in the recitals to the Directive that there were “marked differences” in the laws of Member States relating to unfair commercial practices; and it was stated that the Directive “addresses commercial practices directly related to influencing consumers’ transactional decisions”; and so on. The Directive then, by a series of Articles, sets out what was required. Article 2 contains detailed definitions. 13. The 2008 Regulations, designed to give effect to the Directive, itself contains extensive definitions of the terms there used in language corresponding to – but by no means precisely the same as – the definitions used in the Directive. The following definitions contained in regulation 2 are particularly relevant for present purposes. “2(1) In these Regulations — …. “business” includes a trade, craft or profession; …. “commercial practice” means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product; “consumer” means any individual who in relation to a commercial practice is acting for purposes which are outside his business; …. “trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader; “transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning— (a) whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or (b) whether, how and on what terms to exercise a contractual right in relation to a product. …. (2) In determining the effect of a commercial practice on the average consumer where the practice reaches or is addressed to a consumer or consumers account shall be taken of the material characteristics of such an average consumer including his being reasonably well informed, reasonably observant and circumspect.” 14. Regulation 3 prohibits unfair commercial practices and sets out the circumstances in which a commercial practice is unfair. Regulation 5 relates to misleading actions and is in these terms in the relevant respects. “5(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3). (2) A commercial practice satisfies the conditions of this paragraph— (a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and (b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise. (3) A commercial practice satisfies the conditions of this paragraph if— (a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if— (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and (ii) the commitment is firm and capable of being verified and is not aspirational, and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances. ….” Regulation 9 is in these terms “9. A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).” Regulation 16, which is in these terms, may also be noted: “16(1) This regulation applies where a person “X”— (a) commits an offence under regulation 9, 10, 11 or 12, or (b) would have committed an offence under those regulations but for a defence under regulation 17 or 18, and the commission of the offence, or of what would have been an offence but for X being able to rely on a defence under regulation 17 or 18, is due to the act or default of some other person “Y”. (2) Where this regulation applies Y is guilty of the offence, subject to regulations 17 and 18, whether or not Y is a trader and whether or not Y’s act or default is a commercial practice. (3) Y may be charged with and convicted of the offence by virtue of paragraph (2) whether or not proceedings are taken against X.” Regulation 17 provides for a “due diligence” defence - which in fact Mr Pollak invoked. The Indictment 15. Counts 1 to 5 on the indictment contained charges under the 2008 Regulations relating to the events of the 26 th February 2009. Counts 6 and 7 on the indictment were framed by reference to regulation 9 and regulation 5. Count 6 is framed in this way: “ Statement of Offence MISLEADING COMMERCIAL PRACTICE contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008, made under section 2(2) of the European Communities Act 1972 . Particulars of Offence SCOTTISH & SOUTHERN ENERGY PLC being a trader, between the 30 th day of September 2008 and 19 th January 2009 did engage in a commercial practice which was a misleading action (by virtue of regulation 5(2) of the Consumer Protection from Unfair Trading Regulations 2008) in that its sales staff and agents were trained to deliver an “Energy Script” (version 4) for use in all doorstep sales to consumers which in its overall presentation, that is to say taken as a whole script and performance, deceived or was likely to deceive the average consumer in relation to:- (a) the motives for the commercial practice in implying that the visit by the representative of Scottish and Southern Energy Plc was simply to explain about de-regulation and get the consumer crossed off a list and not bothered in this way again. (b) The nature of the sales process by implying that the presentation was mostly about payment method and that all the consumer was committing to was getting a bill from a different office with a different logo, and applying for a discounted tariff rather than making clear they were signing a binding contract to switch energy supplier. (c) The existence of a specific price advantage by implying that the representative was in possession of a printout of information about the consumer’s current energy supply and tariff and that he could get the consumer on a lower tariff and save the consumer money, and thereby caused or was likely to cause the average consumer to take a transactional decision he would not have taken otherwise.” Count 7 is identically worded, save that it relates to a different period (January 2009 to July 2009) and to version 5 of the Energy Script. The Corporate Structure 16. In order to understand the nature of the arguments advanced below and on this appeal it is essential to understand the corporate structure of the Scottish and Southern Energy group. There was no real dispute on that at the trial. 17. PLC is a holding company. It is a quoted company, its shares being listed on the London Stock Exchange. Its registered office is at Perth in Scotland. It had at the relevant time 4 executive directors (all employees of PLC) and 6 non-executive directors. It had no other employees, and was not itself a trading company. 18. PLC had a very significant number of subsidiaries and sub-subsidiaries. As already indicated, one such subsidiary was LTD. All of the shares in LTD were owned by PLC. Another wholly owned subsidiary was a company called SSE Services plc: that employed several hundred individuals dealing, among other things, with regulatory, human resource and legal matters and providing advice and service to the companies in the Group accordingly. The evidence was that within the Group as a whole at that time there were some 21,000 employees. 19. LTD was itself a trading company. It also itself had a number of trading subsidiaries. One was a company called Southern Electric Gas Limited. Others included companies called SWALEC Gas Limited and South Wales Electricity Limited which traded principally in Wales. There were also in effect a number of brands or trading names attached to the Group – including “Scottish and Southern Energy”, “Southern Electric(ity)” and “SWALEC”. 20. As explained in evidence to the jury, and as was not disputed, the areas of operation relating to energy companies such as PLC were (and were required to be in the aftermath of the Utilities Act 2000 ) divided into distinct operations, relating to generation, transmission, distribution and supply. For present purposes, supply is the relevant operation. Under the relevant legislation, a licence is required for the supply of electricity and gas. In the present case, the relevant licence for the supply of electricity had been issued to LTD. The relevant licence for the supply of gas had been issued to Southern Electric Gas Limited (LTD’s wholly owned subsidiary). Thus, as Mr Mitchell emphasised, there was no licence issued to PLC itself. Supplying electricity or gas without a licence is unlawful and a criminal offence; and companies who hold such a licence are themselves subject to potential sanction from Ofgem if any conditions of the licence are breached. 21. In terms of corporate governance and assumption of responsibilities, there was a Schedule of Matters Reserved for the Board of PLC (a document in the Jury Bundle at trial). 22. Paragraph 1.1. of that Schedule reserved to the Board “Responsibility for the overall management of the Group”. Paragraph 1.4 reserved “Oversight of the Group’s operations ensuring: 1.4.1 Competent and prudent management 1.4.2 Sound planning 1.4.3 An adequate system of internal control 1.4.4 Compliance with statutory and regulatory obligations” Paragraph 9 (titled “Regulatory”) reserved: “9.1. Approval of tariffs and other related matters as required by the appropriate legislation 9.2. Approval of the electricity distribution and transmission price control reviews proposed by Ofgem.” Paragraph 10 reserved to the Board approval of the Group’s policies and standards. 23. The evidence was that door to door sales was an important part of the Group’s activities at that time. Further, evidence was given on behalf of PLC at trial by Mr MacDonald (Managing Director for Regulation and Strategy and employed by SSE Services plc). He explained that the day to day running of LTD and Southern Electric Gas Limited was done by the individual businesses themselves: and that those companies were responsible for compliance with the conditions of the respective licences. He also confirmed that Southern Electric Gas Limited did not have its own separate sales force to sell gas: those doing so were employees of and trained by LTD. Thus – as indeed the Energy Scripts show – individuals such as Mr Pollak were aiming, where possible, to persuade potential customers to enter into gas contracts as well as electricity contracts. It follows, as Mr Donnelly (company secretary to PLC) confirmed in evidence, that while Southern Electric Gas Limited held the licence to sell gas the sales force (employees of LTD) were authorised on behalf of Southern Electric Gas Limited to arrange contracts for the sale of gas: as well, of course, as being authorised on behalf of LTD to arrange contracts for the sale of electricity. 24. It was an obvious inference that the introduction of the 2008 Regulations would have needed careful consideration, given the extent of the Group’s then door to door sales business. It is plain that the Group took, and understandably so, the matter seriously. Indeed a version of the Energy Script was supplied to, among others, Ofgem (the relevant Regulator). In a letter to Ofgem dated 11 th July 2008, headed “Scottish and Southern Energy” and with the Perth address, Mrs Maclaren (described as Regulation Manager) stated that the script was “currently in use by all our sales agents (both directly employed and agency staff) for all of the SSE brands”. In subsequent correspondence between Ofgem and Mr Marchant, Chief Executive of PLC, Mr Marchant on 28 th August 2009 – after Mr Britton’s complaint had surfaced – wrote, on notepaper with the same heading but identifying PLC at the foot, to say that there would be a “comprehensive review of our sales script (in the context of the new licence condition and other more general consumer protection legislation) and all of our existing sales processes, as well as our internal training, monitoring and disciplinary procedures. Following this review we will implement appropriate amendments to our sales script and processes….” The letter further indicated an intention to carry out a “strategic review of our overall approach to our sales activities, taking account of the shift in focus to the customer’s experience and the revised legal and regulatory framework….” (It had, it may also be noted, initially been the Group’s position that it had previously understood Ofgem to have approved the Energy Script. It was subsequently clarified - and evidence was read out to the jury to this effect – that Ofgem had not approved the script and that it was not its practice to approve scripts: although, in fairness, there was nothing to indicate that Ofgem had commented adversely on the script.) 25. This correspondence was perhaps illustrative of a certain flexibility as to which companies in the group were addressing these matters. Certainly it can be read as consistent with PLC regarding itself as having responsibility for, and control over, training of the sales force and use of the scripts. At all events, after Mr Britton’s complaint had been made and the matter was being investigated Surrey Trading Standards interviewed, under caution and in the presence of a solicitor, Mr Ceri Morgan, National Operations Manager of “Scottish and Southern Energy”, with regard to the prospective offences. Mr Morgan in effect identified “Southern Electric” with PLC, saying that PLC traded under several names; and he indicated that he had authority to speak on behalf of PLC on this matter. He also said that all sales staff were trained in the use of the Energy Script. The transcript of the interview, which was quite lengthy, was in the Jury Bundle. 26. Further, Mr MacDonald had also corresponded with Ofgem concerning licence matters on PLC notepaper. In addition there were a number of e-mails concerning this matter sent to Surrey Trading Standards where the individuals sending the emails identified themselves, on the face of them, as doing so on behalf of PLC. On 10 th May 2007, moreover, there had been e-mail traffic circulating within the Group concerning proposed changes to the Energy Script: the footer gives the name and address of PLC. Such documents were also contained in the Jury Bundle. The first ground of appeal 27. In his pre-trial ruling to the effect that there was indeed a case to answer, and rejecting the argument that PLC had been the wrong entity to be prosecuted, the Judge carefully reviewed the prospective evidence (as briefly summarised above) and the relevant regulations. He also referred to parts of the Guidance on the 2008 Regulations issued by the Office of Fair Trading, which among other things said - in our view rightly – that whether or not a person was a trader in any particular circumstances must be assessed on a case by case basis. He also referred to a further aspect of the Guidance which indicated that there may be instances where a commercial practice could fall within the scope of the 2008 Regulations even though the trader did not himself deal directly with the consumer – again, in our view, an unobjectionable statement. He rejected the argument that the prosecution had ignored the difference between the legal entities of LTD and PLC. The Judge held that the definition of “trader” was a broad one, as contained in regulation 2. The Judge further held that a non-trading entity, such as a holding company, could be a “trader” for the purposes of the 2008 Regulations. It depended on the facts of the particular case as to whether it was; and that should be decided by the jury on the facts in the present case. 28. It is, we consider, important to emphasise one particular point. At some stages in its argument the appellant sought to identify the issue as being whether PLC, as opposed to LTD, was the “trader” for the purposes of the 2008 Regulations. That is in one sense correct but in another sense potentially misleading. The issue was whether PLC was capable of being a trader for the purposes of the 2008 Regulations. It is perfectly possible to have a prosecution of more than one person for the same alleged offence under the 2008 Regulations. The very wide definition of “trader” and of “commercial practice” demonstrates that: and that is also consistent with the provisions of regulation 16(2), which contemplates that both “X” and “Y” may be traders in relation to the same activity. Indeed Mr Pollak was, as was accepted, acting as salesman not only on behalf of LTD (who employed and trained him) but also on behalf of Southern Electric Gas Limited (who did not employ or train him). Both those companies were thus potentially amenable to prosecution within the prescribed time limits. 29. Accordingly that LTD could have been prosecuted as a trader does not of itself mean that PLC could not have been. 30. Mr Mitchell emphasised some elementary propositions of company law. Clearly PLC and LTD were distinct legal entities. Further, the acts and omissions of a subsidiary ordinarily are not, without more, deemed to be acts and omissions attributable to, or on behalf of, a holding company: that too, as a general proposition, is also clearly right. Clearly, too, PLC was indeed a holding company, not a trading company. But the fact that it was not a trading company does not, of course, necessarily mean that it could not be “trader” within the meaning of the 2008 Regulations. Nor does it mean that it could not have a “business”. 31. Mr Mitchell emphasised that PLC had no licence to supply electricity, and thus could not (lawfully) itself be in the business of supplying electricity. That is true. But to make PLC liable as a “trader” for the purposes of the 2008 Regulations, in circumstances such as the present and where the Particulars of Offence relate to training, in no way necessarily connotes that PLC will itself have acted unlawfully under the Utilities Act 2000 or Electricity Act 1989 . 32. Turning to the particulars of the offence charged, Mr Mitchell said that PLC’s sales staff and agents were not trained to deliver the Energy Script: rather, PLC had no such staff or agents and it was LTD’s staff and agents who were so trained. But there was evidence (which was for the jury ultimately to assess) that that training was done with the involvement of and under the ultimate supervision and control of PLC, even if acting in conjunction with LTD and even if details were left to the trading subsidiary. That is consistent with the Schedule of Reserved Matters: indeed, it is understandable why PLC should have reserved to itself compliance with statutory and regulatory obligations, given the potential detriment to the Group as a whole, and the potential reputational damage, of any infringement. That is also consistent with PLC writing to Ofgem with regard to the Energy Script and with other such correspondence sent in the name of PLC contained in the Jury Bundle. Mr Mitchell submitted that all this correspondence “could not change the reality of the situation”. Another way of looking at it, however, is to say that all this correspondence illustrated the reality of the situation. 33. Mr Mitchell nevertheless maintained that the “trader” here in substance was LTD; and in so far as the definition includes anyone acting in the name of or on behalf of the trader, that involved, as he put it, “trickling down, not trickling up”. But that submission impliedly takes as its starting point that LTD, as the trading entity with the licence, is the relevant “trader”, or, rather, the only relevant “trader”. That is not an assumption necessarily to be made. Given the evidence as to the measure of involvement, supervision and control here with regard to training and script PLC was itself capable of being a trader; and there is no reason why, for the purpose of the 2008 Regulations, LTD could not itself in that regard be taken as acting on behalf of PLC as well as on its own behalf. Mr Mitchell’s argument comes close to saying that a trading subsidiary can not in this context ever act “on behalf of” a non-trading holding company: which is not a viable proposition. In our view, it is too narrow an approach to the 2008 Regulations to say that because the sales force were directly employed and directly trained by LTD (which had the licence) therefore there could not be any designation of PLC as “trader” under the 2008 Regulations. 34. It is important to bear in mind that “trader”, for the purpose of the 2008 Regulations, extends to any person who in relation to a commercial practice is acting for purposes relating to his business. The words “any”, “in relation to”, “acting” and “relating to” are all words of width and elasticity. As to the definition of “commercial practice” that is likewise broadly framed. It is amply sufficient to cover involvement in or supervision or control of training, in appropriate circumstances, as being directly connected with the promotion or sale or supply of a product; and it is also to be noted that the definition of “commercial practice” carefully avoids saying that the promotion or sale or supply has to be made by the trader itself. 35. Given the circumstances of this case, and given the breadth of the definitions of “trader” and “commercial practice”, we therefore conclude that the Judge’s ruling was a justified one. The evidence was there, in the circumstances of this case, to show that PLC was capable of being a “trader” for the purpose of the 2008 Regulations. Such a conclusion does not, with all respect to Mr Mitchell’s submissions, do a disservice to the language of the 2008 Regulations or drive a coach and horses through conventional corporate structures or wrongly rend corporate veils. On the contrary, it gives effect to the broad wording of, and purposive approach required to be applied to, the 2008 Regulations. Ground 2 36. Complaint is then made as to the way in which the Judge summed up to the jury on the issue as to whether they could be sure that PLC was a relevant trader in relation to the relevant commercial practices: particularly (in the context of counts 6 and 7) the sales staff and agents being trained to deliver an energy script. It is further complained that the Judge failed to emphasise to the jury the point that PLC was a separate legal entity, and not itself a trading company; and that it was LTD which employed the sales staff and trained them, which held the electricity licence and which entered into electricity contracts with consumers. It is yet further said that the Judge did not sufficiently identify to the jury the commercial practice in which PLC was alleged to be engaged. 37. It is to be observed that the Judge had prepared a detailed written Route to Verdict document which, quite properly, he discussed with counsel before providing it to the jury. That set out the essential questions in respect of each count which the jury needed to consider. With regard to counts 6 and 7 the Route to Verdict provided as follows: “In Counts 6 and 7 answer the following questions. 1. Was the PLC a trader? If no return a NG verdict 2. If yes to Question 1 Did it engage in a commercial practice that was a misleading action as alleged in Count 6 (and/or as alleged in Count 7) in training the sales staff to deliver the Energy Script Version 4 (or Version 5 in Count 7)? If no return a NG verdict 3. If yes to Question 1 and 2 was the overall presentation of the whole script and sales performance likely to deceive the average customer in relation to either a or b or c of the Particulars of the Offence? You must all agree on any one of a, b, or c. If no, return a NG verdict. 4. If yes to Questions 1, 2 and 3 was the script and performance likely to cause the average consumer to switch energy supplier?” 38. We reject this ground of appeal. The Judge sufficiently summed up to the jury on these aspects. He specifically identified in his summing-up the point that PLC was a holding company and that other companies had “different and specific roles”. He stated that it was LTD which dealt with the supply and sale of electricity - albeit, it is true, not specifically reminding the jury that it also held the necessary licence – and organised and trained the sales force (p.5 of the summing up). He carefully went through the relevant regulations with the jury, emphasising they had to be sure: saying “It is a matter for you to decide on the facts of this case whether PLC was a trader” (p.7). He made clear that PLC denied that it was a trader or that Mr Pollak was its agent: reemphasising that, at some length (at p.13). He also specifically (at p.19 of the summing-up), by reference to the Particulars of the Offence, referred to the alleged commercial practice involving the training of the staff and agents to deliver the Energy Script. He went through the evidence and documents, suggesting to the jury that the Schedule of Reserved Matters was a “very important document in this case”. There was, in our view, an abundance of evidence to indicate that PLC was involved in and exercised ultimate supervision and control over training and was aware of (and had approved) the Energy Script: which evidence the Judge duly summarised. Mr Mitchell complained that at one stage the Judge in his summing-up indicated that PLC was saying that “in effect it had delegated responsibility for sales to another company within the group”. That was not its case; but in our view, set in the context of the rest of the summing-up, the jury would not have been misled by that statement, and there was no material error. The statement of the Judge, we think, was designed to emphasise – even if clumsily worded – that PLC was saying that it had no responsibility for sales. 39. The Judge also reminded the jury of the central aspects of the evidence called by PLC on this point. Part of that evidence (from Mr MacDonald) was to the effect that PLC “would have an interest” in the subsidiary complying with the law and that PLC was obliged to see that its subsidiaries were managed in accordance with the law. The Judge, in summing up the evidence of Mr Donnelly, included reference to his accepting that the Schedule of Reserved Matters was to ensure that the board of PLC had a reasonable level of supervision over the activities of its subsidiaries; and to his agreeing that the Board were aware of the door to door sales strategy and aware of the importance of it; and to his accepting that use of the script was fundamental to the Group. The Judge also reminded the jury that Mr Donnelly indicated his own view that it was “stretching it” to say Mr Pollak acted on behalf of PLC or that PLC was a trader. 40. We reject this ground of appeal. Ground 3 41. It is then complained that the Judge misdirected the jury on the issue of whether Mr Pollak was an agent of PLC. 42. Although references to agency are contained in the indictment and the notion of agency is familiar to lawyers, it perhaps might have been better if, before the jury, the Judge had steered clear of delving into this concept: after all, the words in regulation 2 are “in the name of or on behalf of the trader”. 43. If anything, (as the respondent submitted), any confusion in this regard would have tended to favour the appellant. In any event, the specific reference to Mr Pollak being the “agent” of PLC was contained in the Particulars of Offence for counts 1, 2, 3, 4 and 5 – all being counts on which the appellant was acquitted. To the extent that reference is made to “its sales staff and agents were trained to deliver an Energy Script” in the particulars to counts 6 and 7, the jury had elsewhere in the summing up been made aware that the issue was as to PLC’s alleged involvement concerning training and whether that connoted that LTD and its employees were acting on PLC’s behalf for the purposes of the 2008 Regulations. It was not essential that the training be of PLC’s own employees or agents (in one strict sense of that word); and overall the point was sufficiently conveyed to the jury. Ground 4 44. The complaint here is that the Judge misdirected the jury on the “transactional decision” element of the offence: the need for the commercial practice to cause or to be likely to cause the average customer to take a transactional decision he would not otherwise have taken, for the purposes of regulation 5. 45. The Judge set out the elements required to be proved in this regard, quoting almost verbatim from regulation 5(2), at p. 10 of the summing-up, and elsewhere going through the various counts. In dealing with counts 6 and 7, at a later stage in the summing-up, he again directed the jury to consider with regard to the misleading practice alleged: “did it cause or was it likely to cause the average consumer to switch suppliers?” (thereafter developing the point). The point was also made in the written Route to Verdict. 46. That was amply sufficient. Mr Mitchell complained the Judge did not direct the jury on the significance or meaning of the causation element of the offence. This is not tenable: the Judge had made the point about the (necessary) element of causation clear in a number of places in his summing-up. Moreover for the Judge to introduce a “but for” exposition – as Mr Mitchell also suggested he should – would have been an unnecessary elaboration. Ground 5 47. The final complaint is that the Judge failed to remind the jury sufficiently (or at all) regarding the defence case. 48. This was a complicated case in which to sum up and it was the Judge’s task to try and sum up not only in a way comprehensible to the jury but also, preferably, concisely in what had been a relatively short trial. At the same time the defence case did of course have to be left sufficiently to the jury in the summing up; and that remained so even where Mr Goulding had himself comprehensively addressed the jury on PLC’s case and where the Judge had in terms directed the jury to consider counsel’s speeches. 49. Mr Mitchell maintained that the summing-up was unbalanced. He raised a number of points. He complained in particular that the Judge did not sufficiently emphasise the defence point that the appropriate corporate defendant was LTD and (in effect repeating what he had said on Ground 2) did not give them adequate directions as to why, on the defence case, PLC was not a “trader”. Nor, he submitted, did he remind them of the entire Energy Script or sufficiently emphasise the further part of the defence case that the customer was not likely to be deceived. 50. Mr Haggan accepted that the Judge might have said more. But he submitted that the Judge had said enough. 51. We agree with Mr Haggan on this. The Judge had drawn attention to the position of LTD at the outset of his summing up. He reminded the jury of the salient parts of the witnesses’ evidence, including those called by PLC, and he identified the issues: supplementing his guidance with the detailed Route to Verdict document. We have considered all Mr Mitchell’s various complaints. But having read and reread the summing-up we consider that the defence case was sufficiently put to the jury; and the summing-up was not unbalanced or unfair. Conclusion 52. Mr Mitchell has presented his arguments with his usual skill and force. But, considering the grounds advanced for this appeal both individually and cumulatively we are not persuaded that this conviction was unsafe. The appeal is therefore dismissed.	{"ConvCourtName":["Guildford Crown Court"],"ConvictPleaDate":["2011-05-10"],"ConvictOffence":["Engaging in a misleading commercial practice contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008 (counts 6 and 7)"],"AcquitOffence":["Engaging in a misleading commercial practice contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008 (counts 1-5)"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Guildford Crown Court"],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["Mixed"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Witness testimony (Mr Britton, Mrs Walker, Mr Jones, Mr Drewry)","Documentary evidence (Energy Script, correspondence, company documents)","Interview transcript (Mr Morgan)"],"DefEvidTypeTrial":["Company structure evidence","Testimony of Mr MacDonald and Mr Donnelly"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":["No"],"Appellant":["Appellant"],"CoDefAccNum":[1],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge erred in ruling there was a case to answer against PLC as a 'trader'","Judge failed to direct jury properly on whether PLC was a relevant trader","Judge misdirected jury on agency","Judge misdirected jury on 'transactional decision' element","Judge failed to remind jury sufficiently of the defence case"],"SentGuideWhich":["Consumer Protection from Unfair Trading Regulations 2008"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's ruling was justified; evidence sufficient for jury to find PLC was a 'trader'; summing up and directions to jury were sufficient and fair; no material misdirection or unfairness; conviction not unsafe"]}
Neutral Citation Number: [2011] EWCA Crim 1197 Case No: 201006885 A7 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM IPSWICH CROWN COURT H.H.J HOLT T20100320 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/05/2011 Before: LORD JUSTICE MOORE-BICK MRS JUSTICE RAFFERTY DBE and MR JUSTICE EDER - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - DALE BOND Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Richard Potts (instructed by Levy & Co Solicitors) for the Appellant Mr Andrew Shaw (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 19 April 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Eder: 1. On 8 October 2010 in the Crown Court at Ipswich, the applicant was convicted after trial of making a threat to kill. 2. On 29 November 2010 he was sentenced to imprisonment for public protection. The period of 30 months was specified as the minimum term under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 less 173 days. 3. The applicant now renews his application for leave to appeal against sentence after refusal by the single judge. The hearing of that application took place on 19 April 2011 when we gave our decision with reasons to follow. These are the reasons for our decision. 4. The background to the offence is as follows. 5. On the morning of 7 June 2010, the applicant attended the A&E department at Ipswich Hospital. There he was seen by the psychiatric liaison nurse. He told her he had been hearing voices for a number of weeks which had been telling him to kill himself and hurt other people. He said he was feeling suicidal and wanted to take others with him. The applicant said the only thing stopping him from acting on his thoughts was the fact that he had two children living with his ex-partner. The nurse referred the applicant to the crisis mental health team. 6. Two members of that crisis team saw the applicant and before they could even introduce themselves he started to tell them about the thoughts he was having of killing and harming people especially a female cousin who lived in Colchester. He described her as an evil bitch. He also described killing other people who have wronged him and after that he would kill himself. 7. The crisis team could find no psychotic symptoms and at one point the applicant agreed he was having thoughts rather than hearing voices. The applicant kept saying that if he didn't get help he would kill people and went into graphic detail about the use of knives. He repeatedly talked about having thoughts of killing his cousin in Colchester. Both members of the crisis team found the applicant's manner unnerving and were of the opinion that he was not mentally ill but harboured violent thoughts. They believed he intended to act on them and so called the police. The applicant was arrested. 8. The applicant pleaded not guilty but was convicted after trial. 9. At the time of the offence, the applicant was 27 years old or thereabouts. He had 20 previous court appearances for 30 offences between 1997 and 2010 including criminal damage, burglary with intent to steal and threatening behaviour. 10. In sentencing the applicant, the judge referred to and took into account the evidence of both members of the crisis team who had seen the applicant at the hospital. The first member (Mr Barton) an experienced member of the crisis mental health team concluded that the applicant had a vendetta against his cousin and was not suffering from a major psychiatric illness. The applicant had seemed preoccupied with knives and Mr Barton had concluded that the applicant was driven by anger and not mental illness. Mr Barton had also been scared and believed the applicant's behaviour was a matter for the police and not for the mental health authorities. 11. His colleague (Miss Everett) gave similar evidence and could find no evidence of mental illness. She described how the applicant appeared to be keen to tell her and Mr Barton of the thoughts he was getting about killing his cousin. 12. The applicant was sentenced on the basis that he was not mentally ill. He had a lengthy record with a theme of violence. It was low-level violence but it was associated with intimidation and only recently he had been sentenced for assaulting prison staff. 13. In addition to the evidence of the two members of the crisis team, the Judge had available a presentence report. According to the report, the applicant accepted his conviction but argued that he had not named any specific individuals. He said he had gone to the hospital to seek assistance for his mental health problems. He said the threats he had made were an expression of the frustration he had felt and he believed the professionals who had seen him were not sufficiently qualified. There were concerns that the applicant had been trying to relocate closer to his ex-partner and children despite there being a non-molestation order in place. The applicant was in receipt of state benefits. He continued to express concerning views about women and his ex-partner in particular. He continued to minimise his abuse of her. There were also concerns for the applicant's female cousin. The applicant appeared to have very little empathy with others. Throughout supervision the applicant had exhibited rigid dysfunctional thinking. His attitudes towards women were abusive. The risk of re-conviction was assessed as high. There was a potential for high risk of harm to known adults and the public. The applicant lacked a sense of responsibility. An extended sentence was proposed. 14. Having considered the evidence given by the two members of the crisis team at the trial and the material contained in the presentence report, the Judge concluded that he was satisfied that the applicant posed a serious risk of serious harm of specified offences and that the applicant was accordingly dangerous within the relevant statutory provisions i.e. s225 of the Criminal Justice Act 2003 . On this basis, the Judge concluded that the only appropriate sentence was imprisonment for public protection pursuant to s225 of the Criminal Justice Act 2003 . He also concluded that had a determinate sentence been appropriate it would have been five years and so the minimum term for the IPP was 30 months. 15. In support of this application for leave to appeal, it is said that the sentence imposed was wrong in principle and or manifestly excessive for two main reasons. First, it is said that the court could not be satisfied upon the material before it that there was a “...significant risk to members of the public of serious harm occasioned by him of further specified offences” in accordance with s225(1)(b) of the Criminal Justice Act 2003 . Second, it is said that the five years as the notional determinate term did not represent the applicant’s criminality and was manifestly excessive. 16. As to the first main ground of appeal, reliance is placed upon a number of matters. In particular, it is said that factually there was no weapon present; no conduct which was or was perceived to be threatening in nature to anyone present at the time; the behaviour complained of was in the process of the applicant seeking help and he was at the hospital for in excess of five hours, calm and peaceful. In addition, it is said that the applicant does not have an extensive history of serious offending still less any history of seriously violent offending. The applicant is not otherwise convicted of any "specified offence" within schedule 15 of the Criminal Justice Act 2003 . He has never previously been subject to any substantial custodial sentence. There was no material before the court to suggest that any conduct amounting to breaches of non-molestation orders was violent. Neither the pre-sentence report nor the addendum prepared for these proceedings proved that any risk that exists is of serious harm. 17. We recognise the force of all these points. However, in reaching his conclusion, the judge had the benefit not only of the pre-sentence report but also the evidence at trial including the evidence of the members of the crisis team. 18. This was a very difficult sentencing exercise, even for such an experienced tribunal. The judge was confronted with the need to balance the interests of the public, entitled to protection from further foreseeable harm from the man in the dock, with those of the man in the dock, whose liberty he must deny him for no longer than is necessary. 19. As stated by this Court in R v Johnson & Others [2007] 1 WLR 585 at p590 para 11, this Court will not normally interfere with the conclusion reached by a sentencer who has accurately identified the relevant principles and applied his mind to the relevant facts. 20. In our judgment, there is nothing impugnable in the conclusion that the applicant is dangerous in the statutory sense. The judge heard evidence from two mental health professionals and was entitled to place considerable reliance on the help they offered him. He took account of all he had seen and heard and was explicit in reflecting all that information into his conclusion. We cannot see that he fell into error in so doing. 21. It follows that a sentence of imprisonment for public protection fell to be considered. 22. However, by virtue of s225(3) of the Criminal Justice Act 2003 , the Court only had power to impose such a sentence if either of the conditions in subsections (3A) or (3B) were met. Subsection (3A) is not relevant because at the time the offence was committed the applicant had not been convicted of an offence specified in Schedule 15A. 23. Subsection (3B) is, however, potentially relevant because it sets out as a condition of a sentence of imprisonment for public protection “…that the notional minimum term is at least two years…” As already stated, the Judge here determined the notional minimum term as 30 months. This was on the basis of a notional determinate sentence of 5 years arrived at by the Judge. 24. The question then arises as to whether this notional determinate sentence of 5 years was correct. This is the focus of the second main ground of appeal. 25. In reaching that 5 year notional determinate sentence, the Judge placed reliance upon the case of R v Tucknott [2001] Cr App R (S) 93 which he regarded as being “not dissimilar”. In Tucknott , this Court imposed a sentence of 5 years imprisonment. It is true that in that case as in the present case, the threats to kill were not made directly to the person(s) in question. It is also noteworthy that in Tucknott , there was no immediate danger to the two named threatened victims because the defendant in that case was serving a sentence of imprisonment at the time. However, in our judgment, there were other circumstances which were remarkably different. In particular, in Tucknott , the defendant had a record of serious violence including a conviction for manslaughter. In addition, the threats to kill in that case were made to prison officers escorting the defendant to hospital for treatment of his wounds, self-inflicted when he heard his latest girlfriend had a new boyfriend. 26. Plainly, the appropriate sentence must take proper account of the particular circumstances of the offence as shown, for example, by the decision of this Court in R v Birch [2001] EWCA Crim 2400 where a sentence of 2 ½ years was imposed in circumstances which were seemingly more serious than in the present case. If the threats to kill in the present case had been made in the presence of the cousin, the applicant would probably have received no more than 2 ½ -3 years imprisonment, so the sentence here should be less than that. 27. In our judgment, the circumstances of the present case are very different from those in Tucknott . The applicant in the present case was a man who sought help, as we have made plain in our rehearsal of the facts. He went to the hospital to seek that help. That he intended his threats to be believed is congruous with his troubled state but, crucially to our conclusions, not incongruous with what are at least arguably the beginnings of insight. 28. Bearing all these matters in mind, we have reached the conclusion that the notional determinate sentence of 5 years imprisonment identified by the Judge was manifestly excessive and that the appropriate notional determinate sentence here was 2 years’ imprisonment. On that basis, the notional minimum was less than the 2 years stipulated in s225(3A) of the Criminal Justice Act 2003 and, accordingly, the condition set out in that subsection was not satisfied. It follows, in our judgment, that the court had no power to impose a sentence of imprisonment for public protection under s225 of the Criminal Justice Act 2003 ; that leave to appeal should be granted; and that the sentence imposed should be quashed and substituted with a sentence of 2 years imprisonment. 29. In addition, in order to provide a measure of protection to the cousin, we made a restraining order preventing the appellant from making contact with her or approaching her address.	{"ConvCourtName":["Crown Court at Ipswich"],"ConvictPleaDate":["2010-10-08"],"ConvictOffence":["Making a threat to kill"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Ipswich"],"Sentence":["Imprisonment for public protection (IPP), minimum term 30 months less 173 days (quashed on appeal and substituted with 2 years imprisonment)"],"SentServe":[],"WhatAncillary":["Restraining order preventing contact with cousin or approaching her address"],"OffSex":[],"OffAgeOffence":[27],"OffJobOffence":["Unemployed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Testimony of psychiatric liaison nurse","Testimony of two crisis mental health team members"],"DefEvidTypeTrial":["Applicant's own account in pre-sentence report"],"PreSentReport":["High risk of harm","High risk of reoffending"],"AggFactSent":["Lengthy record with a theme of violence","Recent sentence for assaulting prison staff","Concerning views about women and ex-partner","Minimising abuse of ex-partner","Little empathy with others","Rigid dysfunctional thinking","Abusive attitudes towards women"],"MitFactSent":["Offender sought help for mental health problems","No weapon present","No threatening conduct to anyone present at the time","Calm and peaceful at hospital","No extensive history of serious offending","No history of seriously violent offending","Never previously subject to substantial custodial sentence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Court could not be satisfied there was a significant risk to the public of serious harm from further specified offences under s225(1)(b) Criminal Justice Act 2003","Five years as the notional determinate term did not represent the applicant’s criminality and was manifestly excessive"],"SentGuideWhich":["section 82A of the Powers of Criminal Courts (Sentencing) Act 2000","section 225 of the Criminal Justice Act 2003","schedule 15 of the Criminal Justice Act 2003","schedule 15A of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed & Sentence Quashed and Substituted with 2 years imprisonment"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Notional determinate sentence of 5 years was manifestly excessive; appropriate notional determinate sentence was 2 years’ imprisonment"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 2012/03011/C3 Neutral Citation Number: [2013] EWCA Crim 2230 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM READING CROWN COURT Her Honour Judge Smith T 20117087 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/12/2013 Before : LORD JUSTICE McCOMBE MR JUSTICE WYN WILLIAMS and MRS JUSTICE PATTERSON - - - - - - - - - - - - - - - - - - - - - Between : (1) IMRAN KHAN (2) AMJED KHAN MAHMOOD (3) JASPAL KAJLA Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Wolkind QC (instructed by G.C.Wroe & Co ) for the First Appellant Mr Dafydd Enoch QC (instructed by Janes Solicitors ) for the Second and Third Appellants Mr John Price QC (instructed by the Crown Prosecution Service ) for the Respondent. Hearing date : 8th November 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice McCombe: 1. On 11 and 12 April 2012 in the Crown Court at Reading, following a trial before the Recorder of Reading (Her Honour Judge Smith) and a jury, the appellants were convicted of the attempted murder of Mr Quadir Hussain and were sentenced by the Judge to life imprisonment, with a minimum custodial term of 10 ½ years, less 404 days spent in custody on remand. These convictions were returned at a second trial, after a first trial at which the jury were unable to agree verdicts. The appellants now appeal against conviction by leave of the Full Court granted on 19 April 2013. Applications for leave to appeal against sentence have been adjourned to await the outcome of the conviction appeals. 2. The principal issue before the court is whether the learned Judge was correct to admit into evidence recordings of conversations between the appellants Kajla and Mahmood which occurred on Saturday, 5 March 2011 when they were in a police van, in the course of transport from custody in Reading to the Magistrates Court at Slough having been charged with the present offence. The appellants contend that this evidence should not have been admitted by the Judge and that the convictions are accordingly unsafe. 3. The background circumstances of the case were as follows. Shortly before 11.30 p.m. on the evening of 27 September 2010, Mr Hussain was shot three times, from a distance of about 8 feet, as he got out of his car at the front of his home in Reading. He was struck in the chest, left shoulder and upper arm. Mercifully, Mr Hussain survived the attack. As he was shot, he was speaking to a friend on his telephone; in his plight, he asked his friend to call the police, which the friend did. Mr Hussain was later to describe the gunman as a light skinned Asian man. A possible motive for the crime was thought by Mr Hussain to be a family feud concerning land in Pakistan. The appellant Khan is Mr Hussain’s cousin. Their fathers were brothers and appear to have been at the centre of the property dispute. Shortly before the shooting Mr Hussain had been approached in the centre of Reading by Khan’s sister who, Mr Hussain said, had uttered a threat that he would be killed because of something to do with this dispute. 4. On the evening in question, witnesses reported seeing a blue MG Rover saloon car, with two occupants, parked near to Mr Hussain’s home from about 9.30 p.m. The car was observed by one of these witnesses at 11.05 p.m. (less than half an hour before the shooting) in the street where Mr Hussain lived, with its windows steamed up. However, the witness could again see the outline of two occupants. A further witness saw the car, minutes before the shooting, apparently then unoccupied; as the witness waited for his own front door to be opened by his wife, he heard three shots. Shortly after the shots another neighbour saw a blue MG Rover drive off at speed; he managed to recall some of the digits of the registration number. Four minutes after the shooting police received a report of a vehicle fire about 1 ½ miles away from the scene. It was found that the vehicle was a blue MG Rover which had been deliberately “torched”. It bore false number plates, corresponding to the short details remembered by one of the witnesses. 5. It was discovered that the car had been stolen in Coventry on the night of 23/24 September 2010, some 4 days before the shooting. On the evening of the following day, that car (with its false plates) was picked up by a police number plate recognition camera, heading south on the M40 motorway into the Thames Valley area. The false plates were traced to a Birmingham number plate manufacturing company. The owner of that business recalled three Asian men calling at his premises on the same day as the motorway sighting, ordering and collecting the plates. By the time the police began to make enquiries there, the CCTV images for 25 September were no longer available. On 18 November, however, the owner of the business telephoned the police to inform them that two of the men who had visited previously had returned to purchase a further registration plate. The police did recover the CCTV footage of that visit, which depicted two men, said to be the appellants Mahmood and Kajla. They were also seen to have travelled to the premises in a motor vehicle which was then traced to the family of the appellant Mahmood. That car, another car (hired on a credit card issued to Mahmood) and the Rover were all traced by number plate recognition to the Reading area during the period 25 to 29 September. 6. On 3 March 2011 the appellants were arrested. In interview they declined to answer questions. Khan provided a prepared statement in which he agreed that he knew Mahmood, but contacted him only occasionally. 7. In the course of the arrests mobile telephones were recovered and further connections were made between the appellants, in the relevant period, through six separate telephone numbers. 8. By the time of trial all this material began to make up a significant circumstantial case against the appellants in respect of the attempted murder of Mr Hussain. However, the direct evidence at the time of the arrests was limited. In these circumstances, on 21 February 2011 (prior to the arrests) the investigating officers had sought authorisation, under the Regulation of Investigatory Powers Act 2000 (“RIPA”), from an appropriate superior officer to conduct “directed surveillance” on those to be arrested, including the appellants. The request for authorisation was for recording equipment to be installed in two marked police vans to be used to convey the suspects to court on the occasion of what it was thought would be an application for a warrant for further detention following “no comment” interviews. 9. The authorisation documents are lengthy and we intend to refer only to certain salient features. In the request for authorisation the purpose of the exercise was stated to be “…to gather intelligence and evidence on the…subjects with a view to proving or disproving their involvement in this offence namely the attempted murder of Quadir Hussain…” The circumstantial case, as then known, was summarised. It was said that, owing to the complex nature of the investigation, warrants for further detention would be needed and that the suspects would be likely to provide “no comment” interviews. The application continued, “It is firmly believed that this application will enable the police to establish a link between Imran Khan who resides in Reading and the individuals from Coventry…The tactic will only be employed post arrest and once the…suspects have been given every opportunity to provide their version of events, having had every opportunity to utilise their rights under the PACE Codes of Practice. A Policy decision will be made by the SIO [Senior Investigating Officer] with regards to pairing the suspects together for transportation. This will be done to try to achieve the best results to progress this investigation further. Two suspects will be placed in each of the transit vans whereby they will be left for a short period of time on their own. It is believed that this engineered meeting will generate a conversation between the suspects which will greatly assist in proving or disproving their involvement in the Incident.” 10. The authorisation request was drafted by a Detective Sergeant in the Thames Valley Police. To this request, the supervising officer, an Acting Detective Inspector, added his comments which included this, “A vast amount of enquiries have been conducted regarding this investigation. However at this time the majority of the evidence is circumstantial and it is unknown as to whether CPS will provide an authority to charge. Therefore, this tactic, if successful, could identify critical evidence to assist in reaching a charging decision. This method is the least intrusive means of obtaining such evidence and is a necessary justified and proportionate tactic. Should the authority be granted, it will be kept under continual review until the day of deployment in case the intelligence or evidential picture changes. Should significant evidence come to light before then, the authority will be reviewed with the SIO to identify whether it is still a justified tactic.” 11. The authorisation was given on the following day (22 February) by a Superintendent who wrote, “I believe [this application] is necessary for preventing and/or detecting crime or of preventing disorder under section 28(3) of [RIPA] and para. 5.1 of the “Covert Surveillance and Property Interference” Codes of Practice. I believe that it is proportionate, having regard to para. 3.6 of the … Codes of Practice, as the application is material to progress an investigation into attempted murder… …I concur with the applicant that, if required, this activity could be considered to be the only reasonable means of achieving the objectives of the operation. It is anticipated that if all other investigative methods have been utilised, and conclusive evidence sufficient to charge [sic: is] still required then the use of this tactic may secure the necessary evidence of the criminal offences being investigated… The purpose of the directed surveillance is to gather intelligence and evidence of the … subjects with a view to proving or disproving their involvement in this offence…” 12. The authorisation was stated on its face to be effective for a period of three months, i.e. to 21 May 2011. However, it seems tolerably clear from the contents which we have quoted that the tactic was designed to assist a charging decision. 13. The surveillance tactic was duly employed on the morning of Saturday, 5 March as the appellants Mahmood and Kajla were being conveyed to court in Slough. However, by then, the purpose of the court hearing was not to obtain a warrant for further detention. Contrary to what the police had expected, on the evening of Friday 4 March, the Crown Prosecution Service had authorised the charging of the appellants with attempted murder and they were so charged between 6.00 and 6.30 p.m. on that evening. Therefore, they were being conveyed on the Saturday from Lodden Valley police station to the Magistrates Court at Slough not for an application for a warrant of further detention but for the first post-charge hearing in the court. 14. During the course of the recorded conversations, these two appellants made certain remarks implicating them further in the incidents at the premises where the number plate was obtained and made references to someone with a nickname “Bana”, which other evidence established as being a nickname for the appellant Khan. 15. At the first trial, the Crown did not seek to rely upon the evidence of the conversations in the van. However, they did wish to use it at the second trial. Mr Price Q.C., who has appeared for the Crown throughout, told us in his written argument that the decision at the first trial was tactical; the conversation contained no explicit admissions and the transcript as ultimately used (in an agreed version) was not obtained until after the first trial. That document made it clear that the two men recorded were aware, at the outset, of the possibility of a “bug”. The use of the tape in evidence was opposed by the defence in the second trial. 16. It has been accepted throughout that the recording made on 5 March 2011 in the police van exceeded the RIPA authority granted on 22 February, in that the request for authority, sought and given, was stated in the passages quoted above, to be for the purpose of assisting the charging decision by providing direct, as opposed to circumstantial evidence, of involvement in the offence. This concession was made by the Crown notwithstanding the wider purposes of the application and authorisation stated elsewhere in the documents. We do not revisit it. The Crown accepted at trial that if the recording tactic was also employed in bad faith, in the sense that it was done by the officers concerned knowing that it went outside the terms of the authorisation given, they would not seek to rely on the recording. 17. A “voire dire” was held as to the circumstances in which the recording was made, in the light of the terms of the authority given, to determine whether or not the recording had been carried out “in good faith” in this sense, the officers not appreciating the limits of what they were authorised to do and when. 18. The Judge found that the SIO was not aware of the terms of the authority that had been given and that the other relevant officer was content to proceed as the factual circumstances giving rise to the application had not changed. Having heard the evidence, the Judge found that the officers had not acted in bad faith, knowing that they were exceeding their authority. 19. That factual decision by the Judge was not challenged in this court by any of the appellants. However, all the defendants maintain their objection to the admission of the evidence and submit that it ought to have been excluded by the Judge in exercise of her discretion under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). 20. The Judge rejected the defence submissions. The principal reasons for her decision appear at p.7 of the Transcript of her Ruling as follows: “The defendants here were charged with one of the most serious of offences. Nothing evidentially had changed from the time the authorisation was given and, therefore, the same degree of necessity and proportionality remained. And in these circumstances, the use of the covert device in the opinion of the court did not amount to an abuse. By section 78 , the court may refuse to admit evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. The defence submissions are well set out in the skeleton arguments put before me and in their oral submissions. No coercion was practised on the defendants to make them talk. The decision to pair the second and third defendants was obvious; they were friends and it was necessary to pair at least two defendants in order that there would be a conversation. And I conclude that the recording is relevant and admissible and from which a jury would be entitled to infer that both men were present at innovate on 25 September when the false plates in the MG were required. And that they had hypothesised as to what they might say as to a reason for having visited Reading.” There followed certain other specific decisions to include or exclude certain specific passages, but we do not need to say any more about those particular points. 21. For Khan, a separate point was taken by Counsel then appearing for him. He submitted that, even if the evidence of the van conversations was admitted, the references in the transcript to the name “Bana”, and anything said in connection with that name, should be excluded on the basis that the words were hearsay or were spoken in Khan’s absence. On either basis, it was argued, those representing Khan were unable to explore how Kajla came to know him by that name or the context in which he came to speak of him. Accordingly, those passages should in any event be excluded. 22. The Judge rejected the contention that the references to “Bana” were hearsay, because, she held, they were not evidence of a matter stated and were “not being said to make another believe that they [were] true”. The Judge said that the words spoken were no different from notes, hypothetically scribbled by Kajla indicating a familiarity with Khan, that were uplifted in a search of Kajla’s property. Like such notes, the Judge held, the words spoken were admissible as relevant to the question of the disputed association between Kajla and Khan. 23. This last point has been argued somewhat differently from the manner in which it was argued at trial, by Mr Wolkind QC who now appears for Khan, but who did not appear below. We return to that point below. 24. The case duly proceeded. The evidence of the “van conversation” was placed before the jury. At the close of the Crown case, submissions of no case to answer were made on behalf of Khan and Kajla. The Judge rejected the applications, relying at least in part upon the evidence of the “van conversation”. 25. None of the accused gave evidence. The Judge summed up the case on Tuesday, 10 and Wednesday, 11 April and the jury retired to consider their verdicts at 12.46 p.m. on the Wednesday. At 4.22 p.m. they returned a unanimous verdict of “guilty” in respect of Khan, but did not agreed on verdicts for the other two appellants. The Judge then adjourned proceedings for the day. On Thursday 12 April, the jury went into retirement again at 10.30 a.m. At 2.22 p.m. after over 7 hours’ deliberation they returned to court and were given majority verdict directions. At 3.11 p.m. they returned with majority verdicts of “guilty” in respect of Mahmood (with a majority of 11 to 1) and of Kajla (with a majority of 10 to 2). 26. On the present appeal, Mr Dafydd Enoch QC appears for Mahmood and Kajla, having appeared for Kajla alone at trial. Mr Wolkind QC (as we have said) appears for Khan. Mr Price Q.C. appears for the Crown, as before. 27. For the appellants, it is submitted that the convictions are unsafe because the Judge wrongly allowed the Crown to adduce the evidence of the “van conversation”. Mr Enoch said to us that if that evidence had been correctly admitted, then the case for saying that the Judge should have acceded to the submission of “no case” was “reduced”. He did not say it was reduced to nothing, but (it has to be said) he did not advance before us any oral submissions in independent support of an appeal on that ground and we can see none. He was supported by Mr Wolkind, who contented himself with adopting Mr Enoch’s submissions on it. 28. We turn to the case on the “van conversation”. 29. Mr Enoch submitted that this was factually an important case of its kind. It was a case where it was accepted by the Crown that the police had acted unlawfully in carrying out the recording. He argued that the surveillance could no longer be seen, post-charge of these appellants, to be either “necessary or proportionate” within the meaning of RIPA and/or the Code of Practice issued under it. The breach of the authority was “serious and significant” and undermined the integrity of the appellants’ rights under the PACE Codes. By the time the recording was carried out, the CPS had given authority to charge and the appellants had been charged. Indeed, it could be seen that the evidence was quite sufficient to mount a case against the appellant without this evidence because the Crown had not sought to use it at the first trial. 30. To interpolate a factual submission by Mr Price QC for the Crown at this stage, he argued that the evidence was not as robust at the date of the recording as Mr Enoch sought to suggest. He pointed out that a very substantial amount of work was carried out later, between March 2011 (the date of the recording) and the start of the trial in the summer of that year, to analyse in particular, the evidence derived from the 100+ telephones, simcards and other materials seized at the time of the arrests. 31. Mr Enoch’s case before us was simply that this was a clear case in which the Judge should have ruled out this evidence under section 78 of PACE. He submitted that if ever there was a case for exclusion of evidence this was it, even though the Judge had absolved the police of bad faith in what they had done. 32. In support of these submissions, Mr Enoch relied in particular on the decision of this court in Plunkett & anor [2013] EWCA Crim 261 (Sir John Thomas P (as he then was), Swift and MacDuff JJ). In that case, the two accused were charged with and convicted of aggravated burglary, committed on 5 November 2010, in the most horrifying circumstances, in which three men had forced their way into the home of a family called “Butt”. Family members were tied up. The father of the family was threatened with a gun and a syringe said by the attackers to contain blood contaminated with HIV virus. He was ordered to open safes. Even after Mr Butt had done this, one of the burglars inserted the syringe needle into him, but without injecting fluid. The men made off with valuable items and about £37,000 in cash. The victims were so terrified by their experience that no report was made to the police until a time between 15 and 30 March 2011, when the men accused of the burglary had been sentenced to 6 and 7 years in custody for other offences. They were arrested for the aggravated burglary and on three occasions, while in police vans, they were recorded in conversation. 33. In support of a case that the evidence of the recordings should be excluded, it was argued, first, that the surveillance was “intrusive” rather than “directed” (within the meaning of RIPA) because it had been carried out in a “private vehicle” and thus had to be authorised not by a Superintendent (as was the case), but by the Chief Constable. Therefore, there was no valid authorisation. Secondly, it was said that the surveillance, however categorised, was neither necessary nor proportionate. Thirdly, it was argued that because they had been recorded on the first occasion before having had the opportunity of seeing their solicitor, they had not been afforded adequate time and facilities for the preparation of their defence within the meaning of Article 6(3)(b) of the European Convention on Human Rights. Thus, for all these reasons, the evidence should have been excluded by the Judge under section 78 of PACE. 34. The court held, not surprisingly, and with little difficulty, that a police van was not a “private vehicle” and thus the surveillance, authorised by a Superintendent, was “directed surveillance” and was correctly authorised under RIPA. The court went on to consider whether the surveillance was “necessary and proportionate” for the purposes of section 28(2) and (3) of RIPA, i.e. that it was necessary “for the purpose of preventing crime or of preventing disorder”. The court recited the findings of the trial Judge that the surveillance was “necessary” in view of the circumstantial nature of the evidence then available, which in that case like the present, lacked detailed computer and cell site analysis and in view of the ongoing threat to the Butt family. On this issue, this court agreed with that finding. At paragraph [39] of the judgment, Sir John Thomas said, “It was not disputed before us that the burglary of the Butt household and the terrifying attack to which they were subjected was conduct that a civilised society cannot tolerate. It must have been the case, as the judge found, that the Butt family were terrified, s they had not reported the attack for some months. Those who had carried out the attack were persons plainly prepared to resort to the most serious violence and could be regarded as exceptionally dangerous. The judge was fully entitled to find that the Detective Superintendent believed that the surveillance was necessary and that there were indeed very strong objective grounds for that belief. The judge was right. Establishing who the attackers were was, in our judgment, plainly necessary.” 35. On the question of proportionality, after reference to paragraph 3.6 of the Code of Practice, the court rejected a submission that the police should have waited until the technical analyses of the telephone and computer evidence was available. It held that the threat to the Butts was real and that it was unrealistic to await these further reports. 36. The court also rejected the contention that the police conduct infringed Article 6(3)(b) of the Convention. There had been no breach of confidentiality. There was an adequate facility for the accused to consult with lawyers before interview and, thereafter, there was proper time to prepare the defence. 37. Accordingly, the surveillance was held to be lawful and the court proceeded to consider the question of whether the surveillance evidence should nonetheless have been excluded under section 78 of PACE. The trial Judge had rejected a submission that the surveillance had been “a cynical attempt to circumvent the PACE procedures and, in particular, the right to silence” – a submission having its parallels to the argument of Mr Enoch QC in the present case. In Plunkett the Judge had held that there was no trickery or manipulation of process, no oppression, no inducement, misrepresentation or entrapment. There had been no wrongdoing or lies. The evidence had been obtained lawfully and there was no breach of Article 6. 38. After considering some of the authorities, to some of which we return below, the court concluded on this issue as follows: “58. In our judgement, even if there had been a breach of RIPA or of s.30 (1A) of PACE, the breaches would have been minor, given the immense seriousness of the crime and the need to protect the Butt family. There was nothing in what the police did that called into question the integrity of the criminal justice system. 59. Against those observations, we turn to consider the central question of the fairness of the trial. The judge rightly held that there had been no misrepresentation, entrapment or other conduct that could be characterised as misbehaviour; the police had simply afforded the opportunity to the applicants to talk together. There was nothing to suggest that what was said by the applicants during the conversations was anything other than true. They had full opportunity to test all the other evidence in the case and to provide an explanation of the conversations in the van. 60. We conclude that the judge was entitled to exercise the discretion under s.78 as he did. Not only was it within that ambit of discretion open to him, but he was correct in exercising it as he did. Even if, contrary to the views both the judge and this court has formed, there had breaches of RIPA or s.30(1A) of PACE, the evidence was properly admitted and there was no ground to exclude it under s.78 .” 39. We have spent a little time with this case because of Mr Enoch’s submission that the case demonstrated how the court should approach questions of the lawfulness of surveillance and the exercise of the discretion under section 78 of PACE to exclude evidence obtained by it in this type of case. He argued that the Judge in this case did not truly engage with this process. 40. In our judgment, on the present facts, it was not necessary for the Judge to engage at any length with the provisions of RIPA because it was accepted by the Crown that the police had exceeded the authority granted under that Act and the only question for the Judge was whether the evidence should be excluded under section 78 . As Sir John Thomas said, at paragraph [51] of the judgment in Plunkett , covertly recorded evidence is in principle admissible but can be excluded under that section. The focus of the enquiry, whether the evidence has in fact been obtained within or without the provisions of the enabling statute, must be the effect on the fairness of the proceedings. He quoted a passage from the speech of Lord Nolan in Khan [1997] AC 358 at 582, which bears repeating: “But if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or convention, common sense dictates that this is a consideration which may be taken into account for what it is worth. Its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings.” Sir John further noted that the European Court of Human Rights, in its decision in the Khan case, also made clear that despite a breach of Article 8 of the Convention, the central question was whether the proceedings as a whole were fair. 41. It is necessary to recall, in cases such as the present, that the Strasbourg cases have consistently held that issues of admissibility of evidence obtained unlawfully are for the national courts to decide based on principles of fairness. The cases on this subject were collected and reviewed by Lord Hobhouse of Woodborough in R v P [2002] 1 AC 146 , a case (along with several others) which was cited in the written materials before us but which was not referred to in argument. Lord Hobhouse said (at p. 159G): “Questions of admissibility of evidence are not governed by Article 8. The fair use of intercept evidence is not a breach of Article 6, even if the evidence was unlawfully obtained”. A little later in the speech (at p.161E), his Lordship said that it was not within the power of the criminal court at trial to provide a remedy for a breach of Article 8 of the Convention. As he put it, summarising the European Court’s view on this matter in Khan , “ Section 78 was concerned with the fairness of the trial not with providing a remedy for a breach of Article 8”. 42. It is, of course, the Article 8 rights of suspects that are potentially infringed by surveillance activities of investigating authorities and it is to that Article of the Convention that RIPA and the Code of Practice, made under section 71 of that Act , are principally directed. As is well known, Article 8 provides as follows: “ Right to respect for private and family life. 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights and freedoms of others.” 43. Interference with Article 8 rights are only permissible so far as it is “in accordance with law” and so far as it is necessary for the stated purposes indentified, including “prevention of disorder or crime”. The interference must also be “proportionate”. 44. In Malone v UK (1984) EHRR 14 the European Court held that the United Kingdom’s surveillance arrangements were not sufficiently underpinned by clear provisions of law, readily accessible to the public, in order to preclude abuse and to satisfy the requirement that relevant interference must be “in accordance with law” under Article 8. The result was the passing of the Interception of Communications Act 1985 . After the decision to similar effect, even after enactment of the 1985 Act , concerning covert surveillance planted by police on private property ( Khan (2000) 31 EHRR 45 , paragraphs 27 and 28), RIPA was enacted: see per Lord Hobhouse in R v P at pages 156B to 157E. 45. For these reasons, to meet the requirements of Article 8 (as considered in Malone and Khan ), RIPA, in section 28(2) and (3), requires that surveillance must be “necessary” (inter alia)…“for the purpose of preventing or detecting crime or preventing disorder” ( section 28 (2) (a) and(3)), essentially mirroring the requirements of Article 8. It must also be “proportionate” ( section 28(2) (b)). The Code, made under the Act (copied with Mr Enoch’s supplementary skeleton argument, but not cited at the hearing of the appeal) appears to us to be similarly directed: see Chapter 2, paragraphs 2.2 and 2.3. All these materials are designed to ensure compliance with Article 8 of the Convention. They have nothing to do with the “fair trial” provisions in Article 6. 46. In the present case, while the surveillance was carried out in good faith, it was conducted in circumstances in which the investigating officers negligently failed to have proper regard to the limits of their authorisation. Accordingly, there was a breach of the appellants’ rights under Article 8 of the Convention. Mr Price Q.C. for the Crown submits that a negligent, but brief, invasion of rights to privacy cannot conceivably amount to such unfairness as to have required the Judge to exclude potentially relevant and cogent evidence. Certainly, he submits, the Judge’s decision could not be impugned upon any application of the Wednesbury test, to the extent that that test is applicable to a review of trial Judges’ decisions under sections 78 : see the cases collected and summarised in Archbold 2013 at paragraphs 15-418 to 15-419, p. 1802. 47. Before expressing a view on that point, it is right to consider the wider submission made by Mr Enoch (and adopted by Mr Wolkind QC) that, quite apart from Article 8 considerations, what occurred here was an undermining of the integrity of the PACE codes and the “right to silence” that had been exercised by Mahmood and Kajla in the course of their police interviews. We were not directed to any specific provisions of the PACE Codes, but we have obviously borne in mind the prohibition in PACE Code C paragraph C:16.5 generally prohibiting interviews post-charge. 48. We note, however, the decision of this court in Bailey & Smith (1993) 97 Cr. App. R 365. In that case, two men charged with conspiracy to commit robberies had exercised their right to silence in interview and were remanded in police custody by the Justices for the express purpose of conducting identification parades. During that remand, the police took the opportunity to “bug” conversations between them in a police cell. It was submitted that the process “drove a coach and horses” through the PACE Codes. This court rejected that submission. Simon Brown LJ (as he then was), giving the judgment of the court, referred to the decision in Shaukat Ali (1991) The Times, 19 February, concerning the covert recording of conversation between the appellant and his family at a police station on the day after charge. In that case Tasker Watkins LJ had said, “The Code is absolutely silent as to a circumstance such as this, and it does not provide that there should be any kind of warning to an accused at a police station as to the fact that it might be possible that a police officer or police officers would in certain circumstances eavesdrop upon conversations that an accused person might be having with someone else at a police station, for example, with a fellow prisoner or with someone else with whom he was having an audible conversation about the matter in respect of which he was being kept in custody and in respect of which he may by that time have been charged. There is nothing in the Code which prohibits, so it seems to us, inferentially or directly, what was done by the police here in bugging the interview room.” …… …….that recordings of conversations taken in an interview room which the police have bugged is admissible in law in court. The remaining question is always, therefore, whether a trial judge, having regard to the provisions of section 78 of the 1984 Act , should in the exercise of his discretion, having regard to the way in which the evidence has been gathered, admit it and, therefore, allow it to be heard by the jury…. We are very firmly of the view that the police in the most serious circumstances of the investigations being conducted, whatever views some may have against eavesdropping by bugging and so on, did not act unlawfully, although the appellant by that time had been charged. There was clearly no oppression of him and no questioning at all. Even if we had formed a contrary view, we would not rule that the learned judge’s exercise of discretion was wrong. There is a very broad discretion given to the court under section 78 , even to the extent of recognising that the method used was to gather evidence contrary to the Code.” 49. In Bailey , the court recognised that Shaukat Ali was perhaps the first case in which evidence of recordings obtained post-charge had been held admissible. The court followed that decision and held that the recorded conversation in that case too had been properly admitted. Concluding the court’s judgment, Simon Brown LJ said, “We regard as mere rhetoric Mr Wood’s submission that deceitful conduct of this sort drives a coach and horses through the Code to the point where the police will in future not bother even to interview suspects. Manifestly this is not a stratagem to be used with any frequency - nothing would more obviously be self-defeating; it should be used only in grave cases. And manifestly nothing should be done oppressively or so as to render unreliable any admissions made - grounds in either case for objection under section 76 of PACE. But where, as here, very serious crimes have been committed - and committed by men who have not themselves shrunk from trickery and a good deal worse - and where there has never been the least suggestion that their covertly taped confessions were oppressively obtained or other than wholly reliable, it seems to us hardly surprising that the trial judge exercised his undoubted discretion in the manner he did.” 50. Mr Enoch invited us to note that in Bailey the court rejected any suggestion that there was any element of illegality or breach of any Code of practice and that the decision was itself 20 years old, pre-dating RIPA. 51. With regard to the first of these points, it is to be noted that in Bailey , Simon Brown LJ said that the last sentence of the passages quoted above from Watkins LJ’s judgment in Shaukat Ali indicated that even if the disputed evidence had been obtained in breach of the Code, it still fell within the Judge’s discretion to admit it. 52. In so observing, we do not forget that both Shaukat Ali and Bailey pre-date the decision of the House of Lords in Looseley [2002] 1 Cr App. R 29, in which it was decided that the House’s earlier decision in Sang [1980] AC 402 , in relation to the admissibility of evidence obtained “unfairly”, had been superseded by section 78 of PACE, as reinforced by the Human Rights Act 1998 : see per Lord Nicholls of Birkenhead in Looseley paragraphs [11] – [16]. 53. As we have sought to enunciate, “fairness” of the criminal trial process overall is now the touchstone of the law in this area, as the later cases (including those specifically directed to the provisions of the European Convention), demonstrate. On this aspect of the case, we have also borne in mind the decision of the Privy Council in Warren v A.-G. of Jersey [2011] 2 Cr. App. R 29 (p.411) to which Mr Price Q.C. for the Crown invited our particular attention. It is not necessary to say more about that case, save that a decision not to stay proceedings as an abuse, following the obtaining of surveillance evidence by means of truly egregious breaches of the law, was upheld. 54. After considering all these points, we have re-directed our minds to this central issue of fairness and have asked ourselves whether the trial Judge’s decision to admit this evidence, obtained outside the authorisation granted, rendered this trial unfair. We have no hesitation in saying that it did not. 55. It is accepted that there was a failure to observe the limits of the authorisation obtained. However, the result was a breach of two appellants’ rights of privacy, contrary to Article 8 of the Convention. In our judgment, on the facts of this case, it says nothing about the fairness of the appellants’ trial. As in Plunkett there was no misrepresentation, entrapment or trickery. The police had simply made use of the opportunity afforded to the two appellants to talk to each other. As the recordings themselves demonstrate, the two men were well aware of the possibility that their conversation might be bugged. There was no oppression or coercion. Nothing limited the appellants’ right to challenge the evidence or to explain it. We do not see that the cases of Shaukat Ali and Bailey would be decided any differently today. 56. We would add that the circumstances in which the recording was made also mirrored the circumstances of Plunkett as regards the seriousness of the crime under investigation and the potential danger to the victim. While Mr Enoch emphasised that the recordings were made long after the event and therefore the threat to Mr Hussain was perhaps reduced for that reason, this was a crime of attempted murder and the victim was still alive. As Mr Price submitted, the contract killing (by whomsoever attempted) had not worked; the dispute behind it was long-standing and accordingly the motive for it had not gone away: the conviction of the guilty remained very important to inhibit a further attempt. Moreover, the arrest of the suspects in the Plunkett case on suspicion of the offences in question occurred after they had been sentenced to substantial terms of imprisonment. 57. For these reasons, we conclude that the Judge rightly admitted the recording in the cases of Mahmood and Kajla and that their appeals must accordingly be dismissed. 58. We turn to the additional point made on behalf of Khan. 59. In the course of the conversation in the van there were references to a person named Bana. Early on in the conversation Mahmood warned Kajla of the possibility of their conversation being recorded whereupon Kajla replied “Yeah, of course. Don’t call Bana”. A little later there was a short exchange about why the two men were being taken to Sough (as opposed to Reading). Kajla provided the explanation that Bana’s family was in Reading. Towards the end of their conversation Mahmood and Kajla were talking about the searching of their homes and a search of the car. Mahmood said “Let’s see what Mr Bana’s got to say.” Kajla replied “Fuck that, I ain’t chatting to him” to which Mahmood responded “Have to, init, within the same fucking – in the dock together.” Almost immediately afterwards, apparently in the context of whether or not there was room for the accused in the cells Kajla said “They have lockouts. They’ll accept two more bastards like us, won’t they? Couple of bastards like you, me and our mate Bana.” In the transcript the phrase “our mate Bana” was bracketed so as to signify that there was a lower level of confidence in the words transcribed. 60. As we have said, there was other evidence about the name Bana before the jury. On 3 March 2011, police officers had searched Mahmood’s home, 7 May Street Coventry. During the course of that search a telephone was seized. In its memory the name Bana was stored together with a telephone number which was admitted to be the number of a phone used by Khan. There was no suggestion in the trial or before us that this evidence was not admissible as against all the appellants. 61. It was part of the case of both Khan and Kajla that they did not know of each other’s existence and had certainly never met. The Crown sought to deploy the references to Bana in the conversation in the van to assist in proving an association between Khan and Kajla. There was no dispute at trial that Khan and Mahmood were known to each other. 62. At trial Counsel then appearing for Khan sought to exclude the statements making reference to Bana from the evidence, whatever the fate of the rest of the van evidence, either on the basis that they were “hearsay” or on the basis that they were words spoken in the absence of Khan which were not admissible for that reason as against him. The Judge rejected these submissions. She said, “Dealing now with the submissions made by Mr Trimmer [Counsel then acting for Khan]. There are 4 references to Mr Khan by his nickname Bana, 3 made by Mr Kajla: (inaudible) Bana; Bana’s family are in Reading, and a reference to him as “our mate”. And there is one reference by Mr Mahmood, “Let’s see what Mr Bana has to say”. Mr Trimmer has submitted here, and in a full skeleton argument, that these references should be excluded. Put briefly, the grounds are that the words uttered are either hearsay or they are words spoken in the absence of the First Defendant. In either case, it is submitted that the First Defendant is unable, therefore, to explore how it is that Mr Kajla comes to know him by that name and therefore the context in which he comes to speak of him and that they should, therefore, be excluded. In the court’s opinion, these words are not hearsay. They are not evidence of the matter stated. They are not being said to make another believe they are true. This is a conversation between two friends in which a third party is referred to in circumstances from which it can be inferred they both knew the person that was being referred to. Had notes scribbled by Mr Kajla been uplifted in the search, notes that indicated that he was familiar with Mr Khan, there would be no proper objection to them being produced. The fact that these are oral statements should not be treated differently. There is no dispute as to the accuracy as to what was said and in the court’s opinion, the references to [Bana] are admissible as to the question whether Mr Kajla and Mr Khan are associated and as to whether that supports the Crown’s contention that they met on 22 September”. 63. Section 114(1) Criminal Justice Act 2003 provides: “(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if- (a) Any provision of this Chapter or any other statutory provision makes it admissible; (b) Any rule of law preserved by section 118 makes it admissible; (c) All parties to the proceedings agree to it being admissible, or (d) The court is satisfied that it is in the interests of justice for it to be admissible.” Section 115 defines what is meant by the word “statement” and the phrase “matters stated” within section 114 . It reads, “(1) In this Chapter references to a statement or to a matter stated are to be read as follows; (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making this statement appears to the court to have been- (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated.” In Twist & Others this court considered these provisions in detail – see paragraph 3 to 17 of the judgment. At paragraph 17 the Vice President set out the approach which was likely to be helpful in determining the question whether the hearsay provisions apply in any given case. He said, “(i) Identify what relevant fact (matter) it is sought to prove; (ii) Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters be contained in the communication); (iii) If yes, ask whether it was one of the purposes (not necessarily the only of dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not.” 64. Mr Wolkind QC, who now appears for Mr Khan, does not argue with the Judge’s conclusion that the statements in which reference to Bana were made were not “hearsay”; he agrees that they were not. However, he argues that the Judge’s analogy with scribbled notes was a bad one because such notes would have been statements made in furtherance of a conspiracy, which would have been admissible against all potential conspirators; see Archbold Op. Cit. paragraphs 33-63 et seq. pp. 3019-3021. On any view the statements relied on in the instant case were made after the conspiracy had ended. We agree with that submission but the matter does not end there. 65. The learned Judge concluded that the statements in which reference was made to Bana were not hearsay because the statements were not being said to make another believe that they were true. She characterised the statements as constituting a conversation between two friends in which a third party is referred to in circumstances from which it can be inferred that both the friends knew the person to whom reference was being made. Was that approach correct? At first blush it might be thought that each of the statements in which reference is made to Bana were either made to cause the listener to believe what was being said or to cause the listener to act as if the matter was as stated. Upon reflection, however, we do not consider that to be the proper analysis. The statement relied upon by the prosecution was not the whole of the phrase or sentence in which the word “Bana” was spoken, but, rather, the word “Bana”. The prosecution relied upon the use of that single word to demonstrate that the speaker knew the person whose nickname was Bana. The use of the word Bana was not for the purpose of causing the listener to believe that the speaker knew Bana or to cause him to act as if the speaker knew Bana. It was obvious from the conversation that both men knew Bana. We think that this analysis follows from the decision of the court in Twist [2011] EWCA Crim 1143 paragraphs 3-17. We have reached the conclusion, therefore, that the Judge was correct in her ruling that the statement relied upon by the prosecution was not hearsay. It follows, too, that the concession of Mr Wolkind QC was also correct. 66. Should the Judge have excluded the references to Bana on the alternative ground that it was a conversation between Mahmood and Kajla in the absence of Khan which was prejudicial to Khan’s defence? The Judge did not deal with this issue, in terms, in her ruling-no doubt because she was then dealing with a submission, principally, that the evidence was inadmissible because it was hearsay. We have given this issue careful consideration but we are satisfied that there was no proper basis for excluding the evidence. Since the evidence was not hearsay it was admissible in evidence generally, like any other piece of relevant evidence. The evidence was admissible in the case of all the appellants. The reason why judges are often required to tell juries that a statement made in the absence of the Defendant by one of his co-defendants cannot be evidence against him is because (usually) it is hearsay and inadmissible for that reason, unless it satisfies any of the criteria specified in section 114 of the Act and is admitted on that basis – see Cross and Tapper on evidence 11 th Edition (2010) p. 225. We have also considered whether the admission of the evidence had such an adverse effect on the fairness of the proceedings that it ought to have been excluded for that reason ( section 78 of PACE). We have reached the conclusion that there was no warrant for that course. The evidence was one strand tending to prove an association between Kajla and Khan and on any view it was admissible against Kajla. As against Khan it was of peripheral importance. The primary case advanced by the prosecution as against him was motive, his admitted association with Mahmood and the very powerful circumstantial evidence of contacts between a number of telephones (including many said to be associated with Khan) and his co-accused. Its admission did not make the trial unfair. Admirably succinct and clear as Mr Wolkind’s submission was on this point, we reject it. 67. As already mentioned, no sustained submissions were advanced in support of any contention that there was an insufficient case to go to the jury if, as we have held, the “van conversation” evidence was properly admitted. In our judgment, there is nothing in such a submission. The Judge was correct to dismiss the application before her for the reasons she gave. 68. For these reasons, the appeals against conviction are dismissed. The sentence applications must now be relisted through the usual channels.	{"ConvCourtName":["Crown Court at Reading"],"ConvictPleaDate":["2012-04-11","2012-04-12"],"ConvictOffence":["Attempted murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[404],"SentCourtName":["Crown Court at Reading"],"Sentence":["Life imprisonment with a minimum custodial term of 10.5 years, less 404 days spent in custody on remand"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Telephone evidence","Vehicle recognition","Recorded conversation (covert surveillance)","Witness testimony"],"DefEvidTypeTrial":["No comment interviews","Denial of association between co-defendants"],"PreSentReport":[],"AggFactSent":["Offence involved use of a firearm","Offence was attempted murder","Victim was shot multiple times","Offence related to a family feud"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Admission of covertly recorded conversation evidence exceeded RIPA authority and should have been excluded under section 78 of PACE","References to 'Bana' in the van conversation should have been excluded as hearsay or as prejudicial statements made in the absence of Khan"],"SentGuideWhich":["section 78 of the Police and Criminal Evidence Act 1984","Regulation of Investigatory Powers Act 2000","section 114 of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Trial judge correctly admitted the covert recording evidence under section 78 of PACE; no misrepresentation, entrapment, or trickery by police; breach of RIPA was negligent but did not render the trial unfair; references to 'Bana' were not hearsay and were admissible; evidence was relevant and did not make the trial unfair"]}
Neutral Citation Number: [2007] EWCA Crim 1846 Case No: 2006/02254 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Swansea Mr Justice Roderick Evans T20050356 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/07/2007 Before: LORD JUSTICE HOOPER MR JUSTICE BURTON and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - Between : Andrew Paul Rafferty Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr G Elias QC and Mr D A Harris (instructed by Goldstones Solicitors) for the Defendant Mr R Spencer QC and Mr P Griffiths for the Crown Hearing date : 6 June 2007 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. At the conclusion of the hearing we said that we would be allowing the appeal and quashing the appellant’s conviction for manslaughter. We now give our reasons. 2. The appeal (for which leave was given by the Full Court on a renewed application) is concerned with the liability for murder or manslaughter of a secondary party who has withdrawn from the attack on the victim prior to its conclusion. 3. The appellant Andrew Paul Rafferty (“Rafferty”) was tried for the murder (Count 1) of Ben John Bellamy along with two co-defendants, Joel Ison Taylor and Joshua Declan Thomas. We shall for the sake of convenience refer to them as the co-defendants. Both were convicted of murder and do not appeal. On the prosecution’s case, they were primarily responsible for the tragic death of 17 year old Ben Bellamy. Rafferty was acquitted of murder and convicted of the included offence of manslaughter. Given the verdict of manslaughter the jury were not required to bring in verdicts on Count 2 (causing grievous bodily harm with intent) and Count 3 (inflicting grievous bodily harm). Rafferty had earlier pleaded guilty to the robbery of Ben Bellamy’s debit card, Count 4. Ben Bellamy was also robbed of a mobile phone, but Rafferty in his basis of plea denied any knowledge of the mobile phone. 4. Ben Bellamy died during the early hours of Sunday 17 September 2005. The immediate cause of his death was drowning. He was drowned by the co-defendants. Prior to being drowned he had been stripped naked by the co-defendants. He had also suffered whilst on the beach numerous blunt force injuries, having been punched, kicked and stamped upon. The co-defendants inflicted all of the serious injuries suffered by Ben Bellamy. 5. The appellant was aged 17 at the time of the offence and the co-defendants were of a similar age. 6. For the purposes of this appeal the assaults which preceded and led to the death of Ben Bellamy can conveniently be divided into two groups: the assaults which preceded Rafferty’s departure from the beach area and the assaults which took place after he had departed. During the hearing we described them as the pre-departure assaults and the post-departure assaults. In outline, the pre-departure assaults involved the infliction by the co-defendants of serious injuries, sufficient at least to weaken the deceased considerably if not render him unconscious. Similar severe injuries were inflicted by the co-defendants in the post-departure stage. Probably unconscious by then, the deceased was dragged across the beach some 100 metres by the co-defendants, stripped naked, taken out some distance into the sea and drowned. That occurred at about 5.00 am. 7. Rafferty had departed from the scene at about 4.40 am with the deceased’s debit card, taken, on Rafferty’s case, by his co-defendants. Rafferty then tried unsuccessfully on more than one occasion to withdraw money using the card and the pin number which the deceased had revealed, on Rafferty’s case, to the co-defendants. He admitted that it was his intention to return to the beach area and his co-defendants with the cash which he hoped to have obtained. He did in fact return at about 5.20 am but by then Ben Bellamy was dead and the co-defendants had left the scene. 8. A witness called Matthew Jones (“Jones”) described what happened during the pre-departure stage. He was the only eye-witness of those events. His evidence was summarised in the following unchallenged way by the judge. We turn to deal with the evidence of Matthew Jones and the account that he gave. You should still have I think, plan C6 and 7 open or available to you. It might be helpful and entirely for you to have photograph E10 also available. You will see on plan 6 what is written there. The ‘X’ is marked as location of where Matthew Jones was when he first heard the altercation, with the arrow indicating the direction of travel of Matthew Jones back to the scene of the altercation. ‘Y’ is the location of Rafferty and ‘Z’ is the general area of the altercation with Ben Bellamy, Joel Taylor and Josh Thomas [Y and Z were separated by at the most a few yards]. “We were a bit ahead of the other group” he said “I got to the War Memorial and we walked through the War Memorial, down steps and up steps on the other side. I went to the right of the photograph [that is E10] I heard something happening just up a bit by the beach, near the track with the boys. I heard: “Oh for fuck sake” or something like that. I looked and I saw a boy in a white top being punched. I think it was Joel Taylor punching Ben Bellamy. Both had white tops. I think Ben Bellamy was punched in his face somewhere. I think he sort of fell to the floor, got up and tried to run off, but another boy hit him. I saw three or four punches before I ran across. I couldn’t tell who was punching who, until I got closer. When I got over there, Ben Bellamy had fallen off the path onto the beach. He was lying on the beach with Joel and Josh over him, kicking and punching him. [point Z]. Rafferty was still standing on the path by the beach [point Y]. Ben Bellamy was lying down two or three feet from the cycle track on the sand. The sand wasn’t very hard or very soft there. His feet were pointing towards town and his head pointing towards Mumbles. His hands were on his face and he was lying on his back looking up to the sky. He was trying to protect his face from Josh and Joel kicking and stamping on him. His legs were straight out. I heard Ben Bellamy saying: ‘ouch, ouch’ every time they kicked or hit him. ‘Take what you want, I’ll give you what you want’, he said. Josh and Joel were nearer the scene, both on the same side of him, kicking, punching and stamping. Both of them were kicking, as though they were kicking a football. The kicks were connecting to his heard, his stomach, all over really. Both of them were stamping to his head, his arms and his chest, but mostly on his head and face area. His arms were covering his chest and his hands were on his face. Both of them were punching to his face, his side and stomach. I saw the punches connecting; they were leaning over him and punching down. Joel Taylor then kicks or stamps 15 to 20 times. I don’t know how many punches. The punches were in amongst the kicks and the stamps, but there were fewer punches than kicks and stamps. The kicking and stamping and punching was as if it was not really meant to hurt. Ben Bellamy said: ‘ouch’ repeatedly. They didn’t want to hurt him, but they were hurting him” He agreed that he told the police in an interview that they did not seem to hurt him. “When I left the scene, Ben Bellamy was still conscious, talking and I hadn’t seen any blood. Joshua Thomas, I saw him kick and stamp around 15 to 20 times. They were punches amid the kicks and stamps from him as well, but again fewer punches. I was trying to get them off him. I didn’t hear them say anything. Rafferty came onto the beach and he knelt down on the beach and as Ben Bellamy got onto his back to try to get up he elbowed him in the back to keep him down and he said: ‘This is all you had to do to keep him down’. He had to step down about one foot to the beach, when he came down; I was trying to break it up. I looked at Rafferty, he stepped down and knelt down and elbowed twice. The kicking, the stamping was going on when Rafferty stepped down. I tried three or four times to break it up, but failed. When Rafferty stepped down, I thought I can’t break up two, I will not be able to break up with three of them doing it, so I decided to leave. Rafferty had knelt down on the side nearest the path and used his elbow twice in this fashion to the back of the spine. Ben Bellamy laid back onto the floor and shouted: ‘Ow’ and rolled back. When I went across first of all, I was sprinting. I tried to stop Joel and Josh because I knew Josh best I tried to stop him first. I didn’t know Joel so well. I pushed Josh off and I threw him onto the floor. He started to walk off and I then tried to stop Joel. As I did so, Josh started on Ben Bellamy again. This is before Rafferty came onto the beach. I also pushed Joel away and told him to leave it. Joel started to walk away and I turned back to Josh cos he had started again then. Joel ran back and started kicking him again. I tried to stop each of them three or four times, but I couldn’t. On the third or fourth time, Rafferty came over and elbowed him. I think Rafferty and I had left the beach the same time. We both got onto the track from the beach together. I then ran across the track through where I came and I went. I didn’t look back at all. The last image from the beach was Joel and Josh kicking Ben Bellamy”. He then referred to plan seven and he says that he showed the route that he had taken and he confirmed that in his view, the person who was seen on still D8F at 4.41am 15 seconds was him crossing the road. It had taken him, he though, about a minute or so to get to that point from where he had left the scene. So that would have him leaving the scene he thought at about 4.40am. “I went from there into Victoria Park because Ben Taylor and Michael Long were waiting in there for me. As I ran in, they were sitting on a bench inside the gate. Ben Taylor knew the path I didn’t. The last time I saw Ben Bellamy he was on the beach on his back, hands over his face. The stamping was if they were stamping on a spider to get it out of the way and these would reach around waist height and then the foot would come down, but I saw nothing being taken from him. ... ” You will recall that it was put to him on behalf of Joel Taylor that Joel Taylor had not kicked or stamped. His answer was: ‘He was kicking and stamping’. He was asked by Mr Thomas on behalf of Joshua Thomas whether he Joshua Thomas was bringing his foot down at an angle with the sole of his feet, the answer was: ‘He was kicking with the front of his shoe and stamping with the sole’. The three parts of Matthew Jones’ account which is of particular relevance to the case of Rafferty. Firstly, Matthew Jones says that Rafferty came off the prom and elbowed Ben Bellamy twice. I am just reminding you of that description of the event, however Matthew Jones agreed that when he gave the police his statement on 30 November last year, he did not mention that Rafferty elbowed Ben Bellamy as Ben Bellamy was trying to get up. When he was asked about that, he said that he had in fact told the police that at some stage, but that is not correct. If he had told the police that, you would have been pointed to the place where it is recorded. The second matter that Matthews Jones agreed that when he was first interviewed by the police on 21 September last year and gave an account of this incident, at page seven and eight of the transcript, you had that referred to you in evidence, and he did not mention at that stage that Rafferty had elbowed Ben Bellamy. That first account may have been a potted version. It is certainly right that when he was asked for greater detail by the police, he did state that Rafferty elbowed Ben Bellamy twice saying: “That’s all you had to do”. In the same transcript, it is at page 24. You do not have that transcript; I will give you the page numbers, so that you can see the broad sequence of events. The point made of course that that may cast a doubt on whether he is accurate or not in saying that Rafferty did that. The third matter is this. Although Matthew Jones did not mention it when giving evidence in front of you at first, his attention was drawn to what he told the police when he had been interviewed. That is when Rafferty got back onto the prom, he said to Taylor and Thomas: “Come on boys, leave it”. Now, that was drawn to Matthew Jones’ attention. He agreed that was in fact said by Rafferty. 9. The evidence of Jones that Rafferty himself had assaulted the deceased was challenged. Mr Spencer QC accepted that the two elbow blows described by Jones as having been administered by Rafferty would not in isolation have caused death and that any injury which they may have caused could not separately be identified. 10. Timothy Parker gave evidence of what he saw after he had parked his car and walked along the promenade towards the area of the beach where Ben Bellamy had been assaulted. In outline his evidence was as follows (we take this from the appellant’s skeleton argument, paragraph7): There was a further witness upon whom the prosecution relied when seeking to establish the events that occurred on the beach and that witness was a man by the name of Timothy Parker. Parker had arrived on the sea front shortly after Matthew Jones had run off. ... Shortly after arriving on the sea front, Parker became aware of a male person walking towards him on the sea front. That person was Rafferty. The two men passed each other on the promenade. Shortly thereafter, Parker, who had kept walking along the promenade in the direction that Rafferty had come from, saw movement on the beach some distance ahead of him. He realised that he was looking at two males (Taylor and Thomas) who appeared to be stamping on some driftwood. He then realised it was another person on the ground. He said in his evidence in chief that he saw one person stamp three times. He then saw the 2 people pick up the person on the ground, holding him under the arms, and drag him in a diagonal direction towards Swansea. He described the person being dragged as rag dollish. He was dragged about 5 yards and was then dropped. He then saw what appeared to be ‘staged’ kicking to the person on the ground. Parker thought he was witnessing some friends trying to get a drunken friend home. Parker recalled seeing about 3 kicks to the person on the ground. Parker then turned around and made his way back to his parked car. He then drove away. As he was driving along Oystermouth Road he saw Rafferty walking towards the town centre. 11. It is to be noted that there is a small gap in time in so far as what was happening on the beach between the events being described by Jones and those being described by Parker. Mr Spencer told us that if Parker was accurate, the co-defendants and Ben Bellamy were in a slightly different position when seen by Parker than they were when last seen by Jones. 12. The evidence about the finding of Ben Bellamy’s various scattered personal items (clothes, shoes) of which the co-defendants had denuded him and the medical evidence showed what happened thereafter. 13. Mr Spencer accepted that the medical evidence could not be relied upon with any degree of certainty to identify which of the many blunt force injuries identified by the pathologist had occurred before Rafferty’s departure. The evidence showed that some of the injuries had probably been inflicted by the co-defendants after they had stripped Ben Bellamy naked (and thus after Rafferty had left the scene). The experts agreed that it was possible that Ben Bellamy would have made a complete recovery from the blunt force injuries, but for the drowning. The pathologist said that although death was caused by drowning that did not mean that the blunt force injuries and, in particular, the head injuries were not implicated in the mechanism of death. 14. At the conclusion of the prosecution’s case the judge ruled that there was a case for Rafferty to answer. None of the defendants then gave evidence. 15. The trial judge directed the jury that there were two different and independent ways in which they were to consider the case against Rafferty. He called them the causation basis and the joint enterprise basis. The judge reduced all his directions on this aspect of the case into writing. 16. The prosecution’s case against Rafferty on the causation basis was described in this way by the judge: The prosecution say, that despite the fact that the pathological cause, the medical cause, of Ben Bellamy’s death was drowning, the blunt force injuries, which Ben Bellamy suffered before he died from drowning, made a significant contribution to his death, because they either rendered him unconscious, so that he was unable to resist being drowned by Taylor or Thomas or if he remained conscious, those injuries reduced his ability to resist drowning. The injuries to which Rafferty was party were inflicted with intent to cause really serious harm, one of the intents adequate for murder, and if you find that causal link between the injuries and the death, Rafferty the prosecution say will be guilty of murder. 17. In the words of the trial judge, the appellant’s case, as developed by his counsel, Mr Gerard Elias QC was: The defence on the other hand say on behalf of Rafferty firstly that Rafferty was not party to inflicting any blunt force injuries on Ben Bellamy. Secondly, if he was, he was party only to those injuries sustained by Ben Bellamy before he Rafferty withdrew from any further violence and left the scene. Thirdly, Rafferty never intended that Ben Bellamy should suffer really serious injury and therefore the necessary intent for murder is not present in any event and at worst, Rafferty would be guilty of manslaughter. Fourthly, whatever Rafferty’s responsibility might be for the blunt force injuries sustained by Ben Bellamy, the drowning of Ben Bellamy by Taylor and Thomas was such a new and different intervening event that it breaks any connection between what Rafferty did and the death of Ben Bellamy 18. In an earlier passage the judge said this about Rafferty’s case: On behalf of Rafferty, it is said that when he said to Taylor and Thomas: “Come on boys, leave it”, he was making it clear to them that he was dissociating himself and withdrawing from any further violence upon Ben Bellamy. Therefore, even if you conclude contrary to the case advanced on behalf of Rafferty, that he was party to the violence up to that point and responsible for the injuries sustained up to that point, that is the point where he left the foreshore, his case is that he was not party to or responsible for any of the injuries caused by violence to Ben Bellamy after he left. While he continued to be party to a joint enterprise to rob, as evidence by his going to get the money from the cash point, he was not party to any further violence and not party to the killing of Ben Bellamy. 19. The trial judge directed the jury that using the joint enterprise route the jury could only convict Rafferty of murder. Mr Spencer explained to us why the judge had taken this course. As far as the joint enterprise route was concerned, it was Mr Spencer’s case that, after his departure, Rafferty remained a party to the joint enterprise which encompassed the continuing use of violence by the co-defendants and that Rafferty contemplated that they might leave Ben Bellamy to drown in the incoming tide or take him into the sea to drown him. It followed, so he said, from putting the case in this way that, if the jury were sure that this is what happened, Rafferty would have to have had the mens rea necessary for a secondary party to murder. 20. The jury were also told by the judge that they could consider the causation route before or after the joint responsibility route, but that if they considered the causation route first and concluded that Rafferty was only guilty of manslaughter because of “lack of intent” then they could not find Rafferty guilty of murder on the joint enterprise route. 21. On the assumption that the jury did examine the joint responsibility route, the jury could have acquitted Rafferty either because they were not sure that Rafferty was party to the joint enterprise after he had left the beach (i.e. he had withdrawn or what happened was not within the scope of the joint enterprise) or because the act of drowning Ben Bellamy was fundamentally different from what Rafferty contemplated that the co-defendants might do. 22. In his skeleton argument Mr Spencer submitted that: It follows [from the acquittal of murder] that the jury may well have been sure that the appellant was a party to a continuing joint enterprise which went beyond the robbery, but that its scope was limited to acts of further similar violence (punching, kicking and stamping) but not drowning. 23. That may or may not be right. We do not know. 24. In summing-up the judge gave the following direction in so far as the causation route was concerned: Before you could find Rafferty guilty of murder or manslaughter, on this causation basis, the prosecution would have to make you sure of each of the following matters. Firstly, that the blunt force injuries sustained by Ben Bellamy for which Rafferty bears responsibility if any, made a significant contribution to the death of Ben Bellamy. Now I emphasise the words ‘for which Rafferty bears responsibility’ because those injuries have to be identified by you if you can identify them and their effect on Ben Bellamy considered by you separately from any blunt force injuries caused to Ben Bellamy for which Rafferty bears no responsibility. Therefore, if you were to conclude for example that Rafferty bears responsibility only for injuries caused to Ben Bellamy, before Rafferty left the scene to go to the cash point, it would only be those injuries which you could consider in this context. Do you follow that? (Underlining added) 25. The judge in this passage refers to the blunt force injuries “for which Rafferty bears responsibility”. The judge had earlier told the jury that Rafferty would bear responsibility for those blunt force injuries inflicted (by him or the other two) whilst he was party to the violence. It is clear, as Mr Spencer accepted, that the jury were being directed in this passage that they could convict the appellant on the causation basis if Rafferty was a party only to the pre-departure injuries. 26. On the evidence of Jones, the jury could have found that the appellant was a party to all of the injuries inflicted prior to his departure. That would have involved a finding by them that, before he intervened in the attack with the use of the elbow, he was actively and intentionally encouraging the attackers albeit that he was a few yards away. Such a conclusion would not have been inevitable - the evidence of the only bystander, Jones, does not directly implicate the appellant as a party to the attack before he physically involved himself in the attack. Assuming that the jury were sure that Rafferty did intervene in the course of the attack and use his elbow, then, the jury would no doubt have found that he was a party (at least) to any blunt force injuries inflicted at the time of his intervention and before his departure. 27. The judge continued: Secondly: that those injuries made a significant contribution to the death by drowning of Ben Bellamy, either by rendering him unconscious and unable to resist being drowned by Taylor and Thomas or if he remained conscious, by reducing his ability to resist drowning. The prosecution do not have to prove that the blunt force injuries for which Rafferty was responsible were the only cause of death or even the main cause of death. Nor does it matter that the injuries for which Rafferty was responsible would not themselves have caused the death of Ben Bellamy. However, it is necessary for the prosecution to prove so that you are sure that those injuries contributed significantly to Ben Bellamy’s death. Thirdly, that the drowning of Ben Bellamy by Taylor and Thomas was not such a new and intervening act in the chain of events, which was so completely different from the injuries for which Rafferty was responsible, that it overwhelmed those injuries and destroyed any causal connection between them and the death of Ben Bellamy. Now if you are sure that the prosecution have proved the causal link between any blunt force injuries for which Rafferty bears responsibility and the death of Ben Bellamy and that Rafferty intended when those blunt force injuries were inflicted that Ben Bellamy would be caused really serious harm, Rafferty would be guilty of murder. If you are not sure, that he possessed that intent, but you are sure that the causal link has been established, Rafferty would be guilty of manslaughter. 28. It is important to note that the causation route was an alternative route. The causation route was sufficient to found a verdict of guilty of murder or manslaughter even though the joint responsibility route would have led to a verdict of not guilty. 29. We must therefore, as Mr Spencer accepted, decide whether the causation route, as defined by the judge, was a sufficient basis to found the appellant’s conviction for manslaughter on the assumption that he was not a party to the post departure violence. 30. It seems to us at least likely (notwithstanding Mr Spencer’s submissions, paragraph 22 above) that the jury were not sure that he was a party to the post departure violence. If the jury reached this conclusion, how would they have done so? The prosecution were submitting that Rafferty, when he left the beach area to go to the cash point machine, had not withdrawn from the joint enterprise to cause injuries to Ben Bellamy. The continuing violence, the prosecution submitted, was within the scope of the ongoing joint enterprise to which Rafferty remained a party. Thus he was responsible for the post-departure injuries and for the later killing of Ben Bellamy. 31. The judge told the jury that if they found that Rafferty was a party to the joint enterprise to inflict injuries prior to his departure, they would then have to decide whether Rafferty may have withdrawn from the joint enterprise so that, in the judge’s words “he is not legally responsible for what happens after he has withdrawn”. To put it another way, the judge was saying that, if he had withdrawn, Rafferty was not criminally responsible for any acts committed by the principals after his departure. 32. The judge gave a standard direction about withdrawal and included these words: If it is not practicable or reasonable to communicate the withdrawal, a withdrawal might be effective depending on the circumstances of the case by for example, ceasing to attack ... or walking away from the attack. 33. It is and was Mr Spencer’s submission, with which the judge agreed, that Rafferty could be convicted on the causation basis even though he was, after his departure, no longer a party to the post departure violence. Mr Spencer referred both the trial judge and us to R v Warburton and Hubbersty [2006] EWCA Crim 627 , para. 21. 34. Both Mr Spencer and Mr Elias agreed that a secondary party who has withdrawn may be liable for the consequences of the pre-departure injuries to which he was a party. We also agree. 35. Both agreed that if the two co-defendants had left the scene or stopped the attack when Rafferty withdrew and if Ben Bellamy had died from the injuries inflicted before departure by the two co-defendants to which Rafferty was a party, then Rafferty would have been guilty of manslaughter (and the co-defendants guilty of murder if they had the requisite intent). 36. Mr Spencer and Mr Elias also agreed that if the two co-defendants had left the scene or stopped the attack when Rafferty withdrew and a third and independent party had found Ben Bellamy on the beach and (for example) drowned him, then all three defendants would not have been guilty of either murder or manslaughter, although they would have been guilty of other offences. 37. Whilst accepting the general principle, it seems to us that the question on the facts of this case is: “Was the judge right to leave the causation route as an independent route to conviction?” 38. Mr Spencer argued that the jury was entitled to find that the post-departure acts of the co-defendants would not break the chain of causation even though Rafferty ceased to be a party to their joint enterprise to inflict violence when he left the scene and even though the immediate cause of death was the drowning. The judge agreed and gave the causation direction which we have set out (paragraph 27 above). 39. Mr Spencer helpfully took us through various academic writings and in particular the work of Professor Glanville Williams. Mr Spencer relied upon a passage from the Professor’s article Finis for Novus Actus? [1989] Cambridge Law Journal 391, at page 396: If D murderously attacks a victim and leaves him for dead, when in fact he is not dead or even fatally injured, and if X then comes along and, acting quite independently from D , dispatches the victim, the killing will be X’s act, not D’s, and D would be completely innocent of it. It makes no difference that [D’s] act reduced the victim to a condition of helplessness so that he could not defend himself against [X]. (D would, however, be guilty of attempted murder). The analysis is not changed if D was aware of the possibility or even probability of X’s intervention, provided that he was not acting in complicity with X …” (emphasis supplied). 40. Mr Spencer cited the following passage from Hart and Honore, Causation in the Law (2 nd edn., 1985), Chapter 12, Criminal Law: Causing Harm at p. 326, a passage which was approved by the Court of Appeal in Pagett (1983) 76 Cr.App.R.279. The free deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him , is normally held to relieve the first actor of criminal responsibility. (Emphasis added) 41. Mr Spencer submitted that Rafferty’s co-defendants were not acting independently from Rafferty and that Rafferty was acting in complicity with or in concert with them. He submits: ... the appellant had undoubtedly been part of a joint enterprise to assault the deceased, and some degree of joint enterprise was still running … in that the appellant had agreed to meet up with the other defendants at the scene upon his return from the cash point. This can only have been with a view to sharing the proceeds, or endeavouring to obtain the correct pin number. (Emphasis added) 42. We do not agree. If Rafferty had withdrawn from the joint enterprise to assault the deceased then, it seems to us, there was no “degree of [relevant] joint enterprise ... still running”. These passages do not, in our view, therefore help Mr Spencer on the facts of this case. 43. As we have seen, the judge gave the following direction on novus actus interveniens : Thirdly, that the drowning of Ben Bellamy by Taylor and Thomas was not such a new and intervening act in the chain of events, which was so completely different from the injuries for which Rafferty was responsible, that it overwhelmed those injuries and destroyed any causal connection between them and the death of Ben Bellamy. 44. We have reached the conclusion that no jury could properly conclude that the drowning of Ben Bellamy by Taylor and Thomas was other than a new and intervening act in the chain of events. 45. Although we heard argument about the correctness of the judge’s direction on causation and reference was made to Kennedy [2005] 2 Cr.App.R.23, it is not necessary for us to consider the issue, given the way the judge directed the jury. 46. We should add that Mr Spencer did argue that Rafferty was a principal and not a secondary party. In our view that cannot be right on the facts of this case. Applying the conventional and well-established approach to be found for example in the text books (see e.g. Smith and Hogan, Criminal Law, 11 th Edition edited by Professor Ormerod, pages 168-169) the appellant was, at most, only a secondary party to the killing (albeit, if he used his elbows, he was a principal party to an assault). In our view, if the appellant was to be liable for murder/manslaughter, it must be as a secondary party and not a principal. In another passage in his article (at page 397-8) , Professor Glanville Williams explains the relationship between novus actus and complicity: The novus actus doctrine is at the root of the law of complicity. If one person instigates another to commit murder, the philosophy of autonomy teaches that the instigator does not cause the death, responsibility for causation being confined to the person who does the deed, and therefore who is the latest actor in the series. In order to bring in the instigator and helpers, bypassing this restriction on the law, the judges invented the doctrine of complicity, distinguishing between principals, and accomplices. Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result, he would be a principal, and the conceptual division between principals (or as I would prefer to call them, perpetrators) and accessories would vanish. Indeed it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed. This is the irrefragable argument for recognising the novus actus principle as one of the bases of our criminal law. The final act is done by the perpetrator, and his guilt pushes the accessories conceptually speaking, into the background. Accessorial liability is, in the traditional theory, “derivative” from that of the perpetrator. ... 47. We are fortified in our conclusion that no jury could properly conclude that the drowning of Ben Bellamy by Taylor and Thomas was other than a new and intervening act in the chain of events by asking ourselves what would have been the proper result if Rafferty had been found not to have withdrawn when he left to go to the bank. Assuming that he had not caused the death, his liability would then have depended upon the application of the principles in R. v. Powell and another and R. v English [1999] AC 1 (“ Powell and English” ) to Rafferty as a secondary party. 48. The jury would have concluded (given their verdicts in the case of the two co-defendants): The deliberate drowning caused the death. The co-defendants are guilty of murder. The appellant was not present when the drowning took place. Rafferty participated in some way in the attack on the beach prior to his departure. Even if Rafferty did elbow the deceased in the way Jones described, the elbowing was not itself a cause of death. Rafferty realised that no more than some harm would come to Ben Bellamy (in fact the law is more complicated than that, see Rahman [2007] EWCA Crim 342 , paragraph 69, sub-paragraph 2(c)). 49. Applying Powell and English , the jury would have had to ask themselves what acts the appellant realised that the co-defendants might do to cause the deceased harm (presumably kicking, punching and stamping) and ask themselves whether they were sure that these acts were not of a fundamentally different nature to the deliberate drowning (see Rahman , paragraph 69, sub-paragraphs 5 and 6). 50. Mr Elias submits that no jury could properly conclude that the drowning was other than of a fundamentally different nature. Mr Spencer disagrees. We agree, on the unusual facts of this case, with Mr Elias. 51. For these reasons we allow the appeal and quash the conviction.	{"ConvCourtName":["Crown Court at Swansea"],"ConvictPleaDate":[""],"ConvictOffence":["Manslaughter","Robbery (of debit card)"],"AcquitOffence":["Murder"],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[17],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Eyewitness testimony","Medical evidence"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of harm"],"AggFactSent":[""],"MitFactSent":["Offender has no relevant previous convictions"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Drowning was a new and intervening act breaking the chain of causation; judge misdirected jury on causation"],"SentGuideWhich":[""],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Drowning by co-defendants was a new and intervening act in the chain of events, breaking causation for manslaughter"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
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IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202200924/A4 [2022] EWCA CRIM 1074 Royal Courts of Justice Strand London WC2A 2LL Friday 15 July 2022 Before: LADY JUSTICE SIMLER DBE MRS JUSTICE CUTTS DBE HIS HONOUR JUDGE MICHAEL CHAMBERS QC RECORDER OF WOLVERHAMPTON (Sitting as a Judge of the CACD) REGINA V ALAN FRANCIS ROBERTS __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR N JOHNSON QC appeared on behalf of the Appellant. J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. On 18 January 2022 in the Crown Court at Liverpool before Martin Spencer J and a jury, the appellant was convicted of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 (count 5) and possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968 (count 6). He was acquitted of attempted murder (count 4). The judge sentenced him on 25 February 2022 to concurrent terms of imprisonment of seven years on count 5 and 12 years on count 6. There was a co-accused, James Freeman, who pleaded guilty to wounding with intent to cause grievous bodily harm and to possession of a firearm with intent to endanger life. He was sentenced to an extended determinate sentence of 18 years and six months, comprising a custodial term of 14½ years and an extension period of four years, the judge having found him to be dangerous . The appellant now appeals against sentence with leave of the single judge and has had the benefit of representation from Mr Johnson QC, to whom we are grateful. The facts 2. The offences took place on 17 May 2021 at The Old Bank public house in the Huyton area of Liverpool. The appellant was in the patio area of the pub with his partner when James Freeman approached on an electric bike. Freeman was wearing a black coat with his hood up and his face concealed. On seeing Freeman approach the appellant appeared spooked. He pulled his own hood up and ran inside the pub. Freeman was armed with a loaded semi-automatic pistol. He got off the bike and ran into the pub following the appellant. The appellant waited just inside the door and as soon as Freeman entered there was a tussle between the two men. During the tussle Freeman discharged the weapon injuring the appellant in the groin. The tussle continued and spilled out onto the patio area. Customers at the pub intervened and Freeman was overpowered. He was kicked and punched to the ground. The appellant took the firearm from Freeman and tried to shoot him with it. The weapon appeared to misfire. The appellant then pulled back the slide on the gun and ejected the misfired cartridge. He then shot Freeman twice in the chest at close range, before making off on the bike that Freeman had arrived on. In doing so he took the gun away with him and was able to dispose of it in circumstances where it has never been found. 3. Freeman having been shot managed to stagger away and an ambulance was called. Neither shot proved fatal and at hospital it was discovered that one bullet lodged near his heart and one in his lung. Neither was removed as there was no immediate risk of complication. The bullets are likely to be surrounded by dense scar tissue over time but with no further consequences likely. Freeman gave a no comment interview to police. 4. Two hours after the shooting the appellant attended hospital. He was treated for two minor injuries next to the pelvic bone which were assumed to be fragments of gunshot. The weapon, as we have said, was not recovered. He gave a no comment interview after providing a prepared statement asserting that throughout this incident he acted in lawful self-defence. That defence was maintained at trial but was rejected by the jury and the appellant was ultimately convicted of the two offences already described but acquitted of attempted murder. 5. The appellant was born on 4 February 1992. He had 12 previous convictions for 33 offences between 2005 and 2021. Those convictions included possession of class C drugs, attempted robbery, robbery, intimidation of a witness, converting criminal property, sexual assault and battery. In 2009 he had received a sentence of 78 months' detention in a young offender institution for attempted robbery, robbery and possessing an imitation firearm while committing an offence. The judge proceeded to sentence the appellant without a pre-sentence report. In the circumstances of this case a report was unnecessary then and is not now necessary. The judge had five character references for the appellant and we too have read those references. The sentence 6. The judge took the offence of possession of a firearm with intent to endanger life as the lead offence and passed a concurrent sentence for the wounding of Freeman. He accepted that the assault was incidental to the firearm offence and that it was the commission of the assault which was the evidence from which the jury had inferred the intention to endanger life. Unlike in Freeman's case, he therefore accepted that the possession of the firearm with intent to endanger life and the wounding with intent were so bound up with each other that the latter did not in fact aggravate the former. The judge went on to conclude however, and notwithstanding the submissions made on behalf of the appellant, that the firearm offence fell into category 2A with a starting point of 14 years' imprisonment. He identified the appellant's previous convictions as statutory aggravating factors increasing seriousness, noting that the appellant had no previous firearms convictions. He did not find the appellant to be dangerous. Having taken the starting point of 14 years, he increased it to reflect the aggravating factors but then reduced the sentence to reflect the mitigation and in particular, the fact that the appellant was initially the victim, had not instigated the violence and was initially fighting for his life reacting to the actions of Freeman. The appeal 7. In written submissions that were developed orally on behalf of the appellant, Mr Johnson QC submitted that this was a highly unusual case: the appellant was the target of a terrifying attack by a masked gunman, at a time when he was at a pub without any weapon, enjoying the day and certainly contemplating no violence. Having been confronted by the masked gunman he managed to disarm him, reacting coolly in the face of what must have been terrifying and having been shot in the leg. Mr Johnson submitted that the incident was different from almost any other offence of having a firearm with intent to endanger life, because in almost every other case encountered by the courts of this kind, the case involves a significant degree of mature reflection, reflected in the process inevitably undergone in order to obtain a firearm in the first place. That is a factor of significance in other cases because of the importance of deterrence in sentencing. It was absent here: there was no planning, no time for any significant reflection, and this is underscored by the shortness of time between the initial arrival of Freeman and the discharge of the gun into his chest. The firearm was available as a direct consequence of the appellant being the victim of an attack by Freeman. He was entitled to defend himself and would in all likelihood have been shot much more seriously, if not killed, had he not done so. 8. Mr Johnson submitted that this was a case of excessive self-defence, a feature reflected in the Definitive Guideline by reference to the absence of planning or time for reflection. He submitted that the judge was in error in placing this case in category A. It was a unique case and should, for all of those reasons, have been placed within category B of the Guideline. 9. Not only was the judge in error for failing to recognise the exceptionally unusual circumstances in which these offences were committed, but he failed to balance the features of culpability in category A with the lack of planning and all that went with it in category C. Had he done so, Mr Johnson submitted, he would have taken a starting point for category 2B rather than the starting point he took. In consequence, the total sentence was manifestly excessive. Discussion 10. The appellant does not challenge the judge's conclusion that harm was category 2 in this case. The Sentencing Council's Definitive Guideline effective from 1 January 2021 and applicable in this case, makes clear that to determine culpability the court should determine the offence category with reference only to the factors listed in the tables and should weigh all applicable factors set out in the relevant table. The Guideline goes on: "Where there are characteristics present which fall under different levels of culpability the court should balance these characteristics to reach a fair assessment of the offender’s culpability." 11. Here, high culpability A was evidenced by the fact that the firearm was discharged. There were no other relevant factors identified in that category. The factors identified in the Guideline reflecting lower culpability C, are, so far as relevant in this case, limited to "little or no planning or unsophisticated offending". In terms of medium culpability B, the relevant consideration here was: "Other cases that fall between categories A and C because: • Factors are present in A and C which balance each other out and/or • The offender’s culpability falls between the factors described in A and C." 12. As we have said, the judge concluded that culpability was category A because of the use of a highly dangerous weapon. He rejected the submission that this was a case of excessive self-defence though he accepted that the appellant was acting in response to extreme violence. He continued: "In the end though what I cannot get away from is that you shot James Freeman with his own gun, thus you knew, as I find, that he was no longer a danger to you because you had his gun and I do not believe for a moment your evidence at the trial that you thought or feared he was reaching for a second gun and my interpretation of the jury’s verdict is that they too were sure that this evidence was untrue." 13. We do not accept Mr Johnson's submission that the judge's sentencing remarks reflect that he ignored or lost sight of the fact that there were also characteristics which might have pointed to placing the appellant in a lower category in this case. 14. As this court has said repeatedly, application of the Guideline is not a mechanistic exercise. Nor is it a simple question of balancing the number of factors in one category against the number of factors in another. Rather, in what is an evaluative exercise the factors must be assessed in the context of the facts of the individual case in order to determine where the balance lies and to what extent a factor in one category reduces the impact of another in a different category. Here, we do not accept that the two factors balanced each other out on the facts of this case and nor did the appellant's culpability fall between higher and lesser culpability. It is clear that the judge regarded the discharge of the firearm in the circumstances he described as much the most serious determining factor in this case, with the absence of planning of very little relevance in context. We can see no error in that approach. In particular, although Freeman was initially the aggressor, the appellant defended himself and was, as Mr Johnson described it, fighting for his life and in the course of the tussle was wounded by the discharge of the gun. But the struggle continued and spilled out onto the patio area where Freeman was overpowered. Having been kicked and punched to the floor and lying on the floor, the appellant took the gun from him and from that point onwards, as the judge found, the appellant knew he was no longer in danger, knew that he no longer needed to defend himself, knew that Freeman had been disarmed and could simply have waited for the police to arrive and hand the gun over to them. Instead of doing that, as the judge observed, he took the law into his own hands, attempted to shoot Freeman and, the gun having misfired, put another bullet into the chamber shooting Freeman twice in the chest at close range as an act, as the judge found it to be, of retaliation and revenge. The judge presided over the trial and was in the best position to make an assessment of the appellant's culpability. He had ample evidence for his conclusions and we see no basis for interfering with them. Moreover, having taken the starting point of 14 years and made an upward adjustment from 14 years to reflect the statutory aggravating features that undoubtedly were present in this case, the judge made a downward adjustment to reach the ultimate sentence of 12 years. This properly and adequately reflected the unusual circumstances of this case and in particular, his express acceptance that there was no planning, no time for significant reflection, that the firearm was available as a direct consequence of Freeman's attack on the appellant and that initially, at least, the appellant acted in self-defence albeit that this changed subsequently. 15. In our judgment, the judge's approach reflected a proper and fully justified application of the Sentencing Council's Guideline. The overall sentence he imposed was condign punishment and not manifestly excessive in all the circumstances. Accordingly and notwithstanding the cogent submissions made by Mr Johnson on the appellant's behalf, this appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2022-01-18"],"ConvictOffence":["Wounding with intent (section 18 Offences Against the Person Act 1861)","Possessing a firearm with intent to endanger life (section 16 Firearms Act 1968)"],"AcquitOffence":["Attempted murder"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Liverpool"],"Sentence":["7 years imprisonment (wounding with intent)","12 years imprisonment (possessing a firearm with intent to endanger life)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[29],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":["Low risk of harm"],"AggFactSent":["Previous convictions (statutory aggravating factor)"],"MitFactSent":["Initially the victim","Did not instigate the violence","Initially fighting for his life","No planning or time for reflection"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge erred in categorising culpability; should have been category B not A; sentence manifestly excessive"],"SentGuideWhich":["Sentencing Council's Definitive Guideline (effective from 1 January 2021) for possession of a firearm with intent to endanger life"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge's approach reflected proper application of the Guideline; sentence not manifestly excessive; judge had ample evidence for conclusions; downward adjustment made for mitigation"]}
Neutral Citation Number: [2007] EWCA Crim 1119 Case No: 200606248 A8 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Honourable Mr Justice Butterfield Woolwich Crown Court Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/05/2007 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE RIGHT HONOURABLE LORD JUSTICE LATHAM and THE HONOURABLE MR JUSTICE TREACY - - - - - - - - - - - - - - - - - - - - - Between : DHIREN BAROT Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr I. Mcdonald QC and Mr A. Bajwa for the Appellant Mr E. Lawson QC and Mr E. Brown for the Respondent Hearing dates : 3rd April 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Phillips CJ : Introduction 1. On 12 October 2006 in the Crown Court at Woolwich before Butterfield J the appellant pleaded guilty, on re-arraignment, to conspiracy to murder. He was one of eight accused of this and other offences. On 7 November 2006 he was sentenced to life imprisonment, with a minimum term to be served of 40 years, less 2 years and 94 days already served on remand in custody. 12 additional counts under section 58 of the Terrorism Act 2000 and one count of conspiracy to cause a public nuisance were ordered to remain on the file. Since the hearing before us pleas of guilty to conspiring to cause explosions likely to endanger life have been accepted from six of the appellant’s co-accused. They remain to be sentenced. 2. The appellant’s application for permission to appeal against this sentence was referred to this Court by the Registrar. We granted that permission at the beginning of the hearing. We did so because this appeal raises issues of principle in relation to the sentencing of terrorists who have plotted terrorist acts but have not carried them out. 3. There are two grounds of appeal. The first is that it was wrong in principle to impose an indeterminate sentence. The second is that the minimum term of 40 years imprisonment is manifestly excessive. The facts 4. Early in 2004 the appellant visited Pakistan, returning on April 21 st . In July 2004 a computer was found by Government officials in Gujarat in Pakistan. On that computer were detailed plans for terrorist attacks in the United Kingdom. On 3 August the appellant and a number of associates were arrested in England. Further evidence was obtained upon searching premises that they had occupied. This formed the basis of the facts opened by Mr Lawson QC for the Crown at the sentencing hearing. 5. A written basis of plea was signed by Mr Lawson and by Mr Macdonald QC, counsel for the appellant. Under this the appellant accepted that he was party to the preparation of proposals for mass murder in both the United States and the United Kingdom. These proposals were prepared for the purpose of being submitted for approval and support to Al Qaida or an associated terrorist organisation. They are remarkable in form, resembling a prospectus for a business venture. 6. It was the Crown’s case was that the appellant was the principal architect and the author of these proposals and this was accepted by Mr Macdonald QC on behalf of the appellant. The facts that we now set out are based on passages in the prosecution’s opening or the judge’s sentencing remarks that have not been challenged by Mr Macdonald. 7. The appellant was born in 1971 in India. His Hindu parents brought him to England in 1972, where he became a British citizen. At the age of 20 he embraced Islamic extremism. In October 1995 he went to Kotti, an area in the Kashmir region, where he attended a terrorist training camp and received instructions in the use of weapons, explosives and other terrorist related activities. In 1999 he went to the Philippines to attend another terrorist camp for two weeks, where he was trained in the use of small arms and mortars, the handling of explosives and in jungle craft. 8. In 2000 he began to apply himself to preparing proposals for terrorist attacks in the United States. He visited the United States in the autumn of 2000 and again in the spring of 2001 to carry out research. The fruits of his labours were detailed descriptions and plans of a number of prominent buildings that might be suitable for terrorist attacks. These housed the headquarters of four key financial institutions: the New York Stock Exchange, Citigroup in New York, Prudential in Newark and the International Monetary Fund and World Bank in Washington. The proposals were illustrated by photographs and a video of the sites in question. 9. Some work was done on these proposals as late as February 2003, but the prosecution accepted that after the events of September 11 2001, plans for terrorist activities in the United States may have been ‘shelved’ in favour of proposals for such activities in the United Kingdom. Those proposals were for four different types of terrorist attack. By far the most detailed was for the ‘Gas Limos Project’. This proposed packing three stretch limousines with propane gas cylinders and explosives and detonating these in an underground car park. A summary commented: “Estimated casualties to be hundreds if the building collapses (Inshalla)” 10. There were three subsidiary proposals, that were intended for “synchronised, concurrent (back-to-back) execution, on the same day and time. The first was described as the ‘Radiation (Dirty Bomb) Proposal’. This proposed the ignition of ten thousand smoke detectors. The judge commented: “That project was, on its face, designed to achieve a number of further and collateral objectives, such as to cause injury, fear, terror and chaos. The expert evidence is that the project, if carried through, would have been unlikely of itself to cause death as opposed to causing considerable fear, panic and social disruption”. 11. The third plan was much less detailed. It was to bring about a major rail disaster by explosion or sabotage. One example suggested was an explosion in a tunnel under the Thames that would “rupture through to the river itself”. The final proposal involved the high-jacking of a petrol tanker and using it to ram a target. This was put forward only in outline. The judge’s summary of the facts 12. Dealing with the proposals that related to the United States the judge observed: “Had it not been for the terrible events of the 11 th September 2001 I have little doubt that one or more of those proposals would have become a dreadful reality. I accept that it would not have been you who carried out the attacks- that would have been the task of others. Your task was to identify the targets and the best strategy to achieve what you would have regarded as success”. ” 13. The judge then turned to an issue as to how soon the proposals in relation to the United Kingdom were liable to be implemented. The Basis of Plea recorded: “The Crown does not have evidence to contradict a defence contention that no funding had been received, nor any vehicles or bomb-making materials acquired, in furtherance of executing the conspiracy”. 14. Mr Macdonald submitted to the judge that the United Kingdom proposals were only in the early stages of preparation when the appellant was arrested. The judge took the view that the evidence was equivocal on this point, but commented: “In my judgment it does not greatly affect the situation. Even if the execution of these plans was not to take place for some time, I am satisfied that, unless you were stopped, it was only a matter of time before the grim reality of your plans took effect”. ” 15. The judge went on to deal with both the appellant’s involvement in the conspiracy and the consequences that it would have had had it been implemented. “It is impossible to convey in a few words the gravity of what you and those with whom you conspired, whoever they were, hoped to achieve. For years you dedicated yourself to planning the means by which you and those involved with you could slaughter hundreds, if not thousands, of wholly innocent men, women and children. This was no idle and impractical plot with little prospect of becoming reality. The detail of the planning; the care with which you concealed what you were doing, the elaborate lengths to which you went to avoid detection, and the steps you took to bring the plans to fruition, all point to a determined, sophisticated and deadly design. I have no doubt that, had your evil purpose not been discovered and thwarted, you and your gang of murderous cohorts would have brought about the terrible massacres you intended” 16. At the hearing before us Mr Macdonald made no challenge to this summary of the facts. He confined his submissions in respect of these to a contention that the plan was a long way from being put into effect at the time that the appellant and his associates were arrested. 17. The documents discovered by the police included one that was described as ‘the 1996 document’. This contained a survey of certain London hotels and railway stations. After the hearing we had the opportunity, which we had not had before the hearing, to read, in the voluminous documentation, statements by three prosecution expert witnesses, to which our attention had not been drawn. These were annexed to a commentary, prepared by the appellant for the purpose of discounting any suggestion that the premises to which the 1996 document referred would have been suitable targets for the Gas Limos Project. As to that Mr Lawson, in opening the facts, made it plain to the judge that the prosecution had no basis for suggesting that these premises were targets for that project. It seemed to us, however, that the expert statements raised questions as to the viability of the Gas Limos Project that were not reflected in the judge’s summary of the facts. 18. We sent a note to counsel seeking assistance with this aspect of the case. This resulted in supplementary written submissions from Mr Macdonald that based the following submissions on the experts’ evidence: “We make the following two general points: a) A degree of professionalism or sophistication in any crime is a factor making that offence more serious. Equally, any element of amateurishness or ineptitude in a crime will make it less serious; and b) We submit that if a conspiracy to commit murder (even mass murder) is doomed to fail or cannot be shown to be likely to succeed, that factor must be reflected in the sentence that is passed. 2. Linking those general points to the evidence in this case, namely the witness statements of Messrs. Halliday, ‘EU’ and Todd, whose statement is also in the Appellant’s bundle, we invite the Court to conclude that: a) The UK Projects had many elements that were amateurish and none that were professional; b) Whilst the UK Projects are viable, in the sense that there was potential for damage (possibly severe damage), they suffered from numerous defects that reduced the prospects of any of them being either approved or executed; and c) Even if the UK Projects had been taken to the point of execution, there is a substantial gap between the appellant’s intention and the likelihood that anything like his intention would ever have been achieved.” 19. No such submissions were made to the judge. Mr Lawson has provided us with some further information in relation to the expert evidence in this case. Initially the appellant’s proposed Basis of Plea included the following statement: “An assessment of the efficacy and potential of the Gas Limos and Radiation Projects is set out in the appended witness statements of three experts, David Halliday, Clifford Todd and EU. The Crown does not dispute their conclusions” Immediately before the plea of guilty was entered the appellant, by his counsel, required that paragraph to be withdrawn from the Basis of Plea, and it was. 20. Mr Lawson has observed that the appellant appeared, perhaps perversely, to wish to avoid advancing anything that detracted from the efficacy of his plans. In these circumstances Mr Lawson suggests that the points now raised in paragraphs 1 a) and 2 a) of the submissions that Mr Macdonald has submitted ‘raise concerns’. 21. We think it quite possible that the appellant would not have wished to invite a finding from the court that his terrorist plans were amateurish and technically defective. Difficult issues of professional etiquette may arise in relation to counsel’s duty to a defendant who does not wish submissions of fact to be made that might be advantageous to his case. We are in no doubt, however, that justice required that the court should sentence the defendant on the basis of the relevant expert evidence, insofar as this was relevant. 22. Mr Lawson had prepared a lengthy Opening Note, which had been disclosed to the appellant and was before the judge. This summarised at some length the evidence of the three experts in question and then suggested the conclusion that had the appellant’s plan, “or any of it been executed the consequences, particularly in terms of loss of life, would have been horrendous”. 23. In his oral submissions to the judge Mr Lawson referred in considerable detail to the Gas Limos Project as proposed. He then referred briefly to some passages from the expert evidence, followed by the following summary: “Overall, a view has been expressed as to the scientific and technical expertise employed, that whilst there are some technical points in the proposal that display only a passing familiarity with some of the principles, overall – and here I summarise – that which was proposed could work.” 24. In the absence of any challenge from the Defence to this summary, it is not surprising that the judge proceeded on the basis that the Gas Limos project was, as its author claimed, a viable project for killing hundreds, if not thousands of innocent victims – “a sophisticated and deadly design”. 25. Careful consideration of the expert evidence has led us to the conclusion that the judge was wrong to accept this hyperbole. The witness referred to as EU has a scientific doctorate and has been employed for more than 20 years working for the Ministry of Defence at Aldermaston where he has studied and worked with both conventional and nuclear armament applications. Dealing with the topic “explosive expectations” he stated: “In general, the overall project offers up what appears to be a well devised plan but is perhaps better viewed as a professional-looking attempt from amateurs who did not really know what they were doing. If pressurised cylinders of flammable gas (with or without oxygen as additional cylinders) were assembled as described and were the heat-producing ‘add-ons’ (e.g. napalm) included, then, on setting off the contraption, there would be a high likelihood that a fire source at least would be produced. An explosive event might occur particularly if explosive substances were present. However, the expectation of an explosive yield of 370kg TNT equivalent from the basic ‘main charge’ cylinders is unrealistic since the 37 propane cylinders (each of which is estimated as being able to produce a 10kg TNT equivalent yield) are distributed between three limos and it is highly improbable that they would all produce their maximum explosive effect simultaneously. That notwithstanding, the potential for severe damage, disruption and injury in the area concerned is present and is evidently intended.” 26. Mr Halliday, a forensic scientist, appears to have reached a similar conclusion. He comments at E604: “The documents that I have reviewed contain a wide-ranging selection of published and on-line data but information in them that would be relevant to NAL/6 appear, in some cases, to have been ignored or misread. This may also reflect the author(s) lack of an appropriate science or engineering background.” Dealing specifically with the gas limo device he comments: “the overall design of the gas limo device, with all its add-ons, suggests that the designer has not thought through the consequences of incorporating some of the features, but has simply put them all together on a ‘more is better’ basis. In my view simplification would greatly improve the effectiveness of the device.” 27. His conclusion was as follows: “Implementation of the plans described … to cause damage, disruption and injury through (a) the use of energy sources more easily obtainable than conventional explosives and (b) the use of radioactive materials either with or separate to a ‘main charge’ device would, in my opinion, have been to some extent successful but it is unlikely that the effects would match the expectations hoped for by the perpetrators.” 28. The final expert witness was Mr Todd. He is Principal Forensic Investigator in the Forensic Explosives Laboratory at the Defence Science and Technology Laboratory at Sevenoaks. His conclusions were as follows: “Based upon my examination of the above document, it is my opinion that it describes a credible plan to make and initiate a very large improvised explosive/incendiary device. It consists essentially of three stretch limousines or similar size vehicles, all parked together in an indoor or underground car park or similar target location. They would be filled with propane or butane cylinders, placed on petrol soaked charcoal, vented to some degree and then ignited. The aim appears to be to cause large explosion and/or fire that will cause major property damage and injury or death at the chosen target location. The particular type of explosion envisaged is a BLEVE, and various details are given as to how this will be achieved. Between the discussion of BLEVEs and the final configuration of the device, the plan is slightly muddled, suggesting that the author may not have a scientific or technical background. It is by no means certain that one or more BLEVEs would occur, for instance in domestic premises from time to time, where gas has been allowed to leak into the building and is accidentally ignited. This is not a BLEVE, but nevertheless can be equally destructive. Having said all that, such a device would pose a great risk to the property and any people present in the vicinity of the target location. At the very least a very large fire is likely to occur in the ground or basement level of the chosen target, and unless doused very quickly, would be accompanied at the very least by explosions from the pipe bombs. The outcome would range from a certain amount of fire damage, if doused very quickly, through serious fire damage to the property, to one or more large BLEVE explosions spreading debris and burning material several 10s of metres, to a large vapour cloud explosion causing complete destruction of the target building.” 29. The effect of all this evidence is as follows. The Gas Limos Project was superficially attractive, but in fact amateurish. It combined different proposed methods of creating explosions and fire that were mutually incompatible. The Gas Limos and their contents were intended to give rise to a massive cumulative explosion. This would never have occurred in practice. The greatest explosive hazard would have occurred if gas had been released into a confined space and ignited if and when it had reached a mixture with air that fell within the explosive limits. This would not have been easy to achieve, and would certainly not have been achieved had the combustible materials that were supposed to be placed around the gas cylinders been ignited at an early stage. This said, the proposed contraptions would undoubtedly have been very hazardous. Precisely what harm they might have done if attempts had been made to ignite or detonate them could not reliably be predicted. 30. In the light of this summary we do not consider that the judge was correct to proceed on the basis that, but for the arrest of the appellant and his associates, the Gas Limos Project would have been implemented, with the consequences predicted by the appellant. Surveillance showed that the group were indulging in anti-surveillance techniques and communicating in code up to the moment of their arrest. Work was done on their computers after Mr Barot returned from Pakistan on 21 April 2004. They were plainly, as Mr Lawson put it, “up to no good”. There was however no evidence that enabled the Crown to submit that Al-Quaeda had endorsed the plans – although Mr Lawson submitted that the ongoing activity led to the conclusion that they had received ‘some species of approval’. 31. In these circumstances we must review the judge’s sentence on the basis that, while his appraisal of what the appellant was intending to achieve was well founded, he was wrong to proceed on the basis that, had the appellant and his associates not been arrested, those intentions would have become reality. Because of its technical inadequacies the Gas Limos Project would not have worked as intended and there can be no certainty that it would ever have been attempted. 32. The judge summarised what it was that the appellant was seeking to achieve, and this is worth repeating, for it is not disputed: “Your plans … whether here or in the United States, would have had a devastating effect at many different levels. There would be those who died, plucked from their families and friends by happenchance, utterly blameless people. Each pointless death would bring in its train grief, bewilderment, devastation and anger in those left behind to mourn. But it would not be death alone that you would have achieved; there would have been those who survived, hideously injured, having to endure the rest of their lives with terrible disabilities, their hopes and dreams for their future destroyed at your hand, the lives of their families too would be changed forever. Beyond that, in the wider community, the impact would be disastrous. In this country there are thousands and thousands of ordinary, decent, hard-working, law-abiding Muslims, British citizens just like you, who have to live their lives every day under a cloud of deep suspicion and distrust all caused by the activities of you and those like you, and - - although of lesser importance - - the vast economic cost caused by your activities in security and otherwise cannot be ignored. This was no noble cause. Your plans were to bring indiscriminate carnage, and bloodshed, and butchery, first in Washington, New York and Newark, and thereafter in the United Kingdom, on a colossal and unprecedented scale. ” Issues of principle 33. Conspiracy to Murder carries a maximum sentence of life imprisonment – see section 3(2) of the Criminal Law Act 1977 . The first issue of principle is whether it was appropriate to impose a life sentence for this offence. Because it was committed before 4 April 2005, when the Criminal Justice Act 2003 came into effect, the relevant law is that which applied before that date. The criteria that then applied for the imposition of a discretionary life sentence are to be found in the decisions of this court in Attorney General’s Reference No. 32 of 1996 (Whittaker) [1997] 1 Cr App R (S) 261 and R v Chapman [2000] 1 Cr App R 77: (1) the offence had to be very serious; (2) there had to be good grounds for believing that the offender was likely to remain a serious danger to the public for an indeterminate time. 34. Mr Macdonald accepted that the offence to which the appellant had pleaded guilty was very serious. He submitted however that the second criterion was not satisfied. He referred us to the judgment of Lord Lane LC in R v Basra (1989) 11 Cr App R (S) 527, a case of conspiracy to murder for political motives. He was sentenced to life imprisonment. Lord Lane CJ, giving the judgment of this court which quashed that sentence said at p. 529: “In general it should be said that a life sentence, where it is other than mandatory, as was the case here, is to be reserved for cases where the defendant is someone in respect of whom there is some relevant feature which cannot be determined at the time when the judge is passing sentence. The usual example of that will be some mental condition which affects the degree of risk which the release of the defendant into the community will present.” 35. The judge justified the sentence of life imprisonment that he imposed by the following reasoning: “…you will represent a serious danger to the public for an indeterminate time. I cannot know when, if ever, you will set aside your burning desire to murder and maim and destroy and thus cannot know when, if ever, it will be safe to release you. The only appropriate sentence is one of life imprisonment…” Mr Macdonald submitted that political, religious or ideological motivation was not capable of constituting a “relevant and imponderable feature” so as to justify a discretionary life sentence. 36. We do not agree. In the case of Whittaker the Attorney-General had challenged as unduly lenient a sentence of seven years imprisonment imposed on a man who, while on home leave from imprisonment which he was serving for murder, had committed as violent assault on a young woman. The judge had ruled out the possibility of imposing a discretionary life sentence on the ground that “there is not any medical evidence of personality disorder or instability or anything like that”. The Court of Appeal held the sentence unduly lenient and substituted a life sentence with a period to be served of seven years. Giving the judgment of the Court Lord Bingham CJ held that the judge had been wrong to hold that it was not open to him to impose a life sentence. Such a sentence was justified on the ground that there was good ground for considering that the offender was likely to be a continuing danger for an indeterminate time in the future. The imposition of a life sentence was justified in the present case for precisely the same reason. 37. A terrorist who is in the grip of idealistic extremism to the extent that, over a prolonged period, he has been plotting to commit murder of innocent citizens is likely to pose a serious risk for an indefinite period if he is not confined. If he commits an offence that permits the court to impose an indeterminate sentence, this is likely to be the appropriate course. 38. We turn to the second limb of the appeal against sentence, namely that the minimum term of 40 years was manifestly excessive. This term was equivalent to a determinate sentence of 80 years. 39. The judge said that he had drawn back from imposing a whole life term for two reasons. The first was the appellant’s plea of guilty which, albeit entered at a late stage, had saved considerable time, trouble and expense. The second was that the appellant did not achieve any of his objectives, nor had he moved to the final stages of achieving them, albeit that this was only because his intentions had been frustrated by the work of the police and security officers in this country and around the world. 40. Mr Macdonald originally submitted that the 40 year term was manifestly excessive on the basis (1) that the Gas Limos Project was far from implementation and (2) that the term was out of line with sentences imposed in comparable cases. After the hearing, but before we had raised the question of the viability of the project, he submitted supplementary written submissions inviting the court to lay down guidelines in respect of sentencing for terrorist offences. His suggested starting point for a determinate sentence for a terrorist conspiracy of which murder was the primary object was between 30 and 50 years imprisonment. Mr Lawson’s written response to this submitted that, for a conspiracy to murder of this nature the appropriate starting point was a whole life term. 41. After we had raised the question of the viability of the project, Mr Macdonald submitted further written submissions. He submitted that as there was doubt about both whether the project would receive the necessary funding and the practical viability of the project the gravity of the offence was substantially lessened. Mr Lawson responded by submitting that if and to the extent that there was an “amateurish” element to the appellant’s plans, they were nevertheless designed to kill entirely innocent people and, if executed, they might well have succeeded. He further submitted that “the failure to implement the intent will not normally be course for indulgence or credit to be accorded to a defendant”, relying upon the statement of this court to that effect in R v Shevron Smith [2000] 1 Cr A R (S) 212, a case of attempted murder. 42. Terrorism of the most extreme kind is unhappily rampant in the world. It is manifested daily by carnage in Iraq. It has led to a number of trials in this country and many more are pending. Those responsible for security warn of many other terrorist plots. It is to be hoped that our security forces will continue to arrest terrorists before they succeed in committing the carnage on which they are bent. We think it desirable to give some guidance on the extent to which the fact that planned murder has not been brought to fruition should have on the sentence of terrorists convicted of attempting or conspiring to commit murder . We will start with some general propositions. 43. Section 142 of the Criminal Justice Act 2003 sets out the purposes of sentencing to which the court must have regard. There is nothing new about this provision; it is declaratory of the position as it was before. These purposes include the punishment of offenders, the reduction of crime (including its reduction by deterrence) and the protection of the public. 44. The element of protection of the public is achieved where an indeterminate sentence is imposed. It follows that this factor should not influence the length of the minimum term to be served – see R v M [1999] 1 WLR 485 at 491. 45. Terrorists who set out to murder innocent citizens are motivated by a perverted ideology. Many are unlikely to be deterred by the length of the sentence that they risk, however long this may be. Indeed some are prepared to kill themselves in order the more readily to kill others. It is, however, important that those who might be tempted to accept the role of camp followers of the more fanatic are aware that, if they yield to that temptation, they place themselves at risk of very severe punishment. Punishment is the other important element of the determination of the sentence for offences such as this. 46. The appropriate minimum term must depend upon the seriousness of the offence. Section 143 (1) of the 2003 Act provides that in considering the seriousness of any offence, ‘the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause and might foreseeably have caused’. Once again this is no more that declaratory of the elements of seriousness. There is a degree of tautology in the provision. Where there is an intention to cause harm, but no harm is in fact caused, the degree of harm that it was intended to cause is a vital element of the culpability. This is of particular relevance when considering the range of inchoate offences that are preparatory to committing a terrorist act. 47. In approaching the sentence for an inchoate offence it is appropriate to start by considering the sentence that would have been appropriate had the objective of the offender been achieved. That accords with the course recommended by this court in the judgment delivered by Lord Bingham CJ in R v Martin [1999] 1 Cr App R (S) 477, which was intended to give guidance in relation to sentencing for very serious explosion cases. In that case the appellant was a member of the provisional IRA. He had been convicted of conspiring to cause by explosive substances explosions of a nature likely to endanger life or cause serious injury to property contrary to section 3(1)(a) of the Explosive Substances Act 1883 . This carried a maximum sentence of life imprisonment. The appellant had conspired, with a number of associates, to cause explosions at six electricity sub-stations and sentenced to 35 years imprisonment on the basis that the primary objective had been to destabilise South East England but that the conspirators were reckless as to the number of people who might be killed or injured as a result of the explosions. The planning had been highly sophisticated and would have been likely to succeed but for the intervention of the security services. 48. Lord Bingham observed that the most serious type of case was that where the primary purpose of the enterprise was to endanger life. The court reviewed, with the assistance of Mr David Perry as amicus curiae, a large number of offences of attempting to cause explosions and concluded that the range of sentences for conspiracies to cause terrorist explosions then current was between 20 and 35 years imprisonment. The longest sentence had been that of 45 years imposed in R v Hindawi (1988) 10 Cr App R (S) 104, where the appellant had attempted to blow up a plane by sending his unwitting girlfriend onboard it with a bomb in her suitcase. 49. Lord Bingham observed at p. 483: “…when imposing sentences for conspiracies of this sort, the courts should remind themselves of the term actually served for murder, particularly murder in its most aggravated forms. But there can be no precise equivalence and conduct threatening democratic government and the security of the state, and the daily life and livelihood of millions of people, has a seriousness all of its own.” The court accepted that the bracket should be somewhat wider than 20 to 35 years. It had earlier observed that: “the appropriate sentence for any given offence will plainly depend on a large number of factors, which will include the likely result of any explosion or the target of any conspiracy, the role of the individual defendant, the nature, size and likely effect of any explosive device, the motivation of the defendant and, where death or injury or damage has been caused, the nature and extent of the death, injury and damage in question” The appellant’s sentence was reduced from 35 to 28 years imprisonment. 50. The determinate sentence of 45 years imposed in the case of Hindawi was equivalent, having regard to the release provisions then in force, to a 15 year minimum term, with automatic release after 30 years. It was the highest sentence imposed for an attempt at mass murder before the sentence with which we are concerned. It was imposed in relation to an attempt that came close to success and that would, had it succeeded, have resulted in the loss of 370 lives. The sentence imposed on the appellant was very much higher than that in Hindawi. Mr Lawson asserted and Mr Macdonald conceded that the level of sentencing for terrorist attempts or conspiracies to commit mass murder should rise above the level recommended by this court in Martin. They differed, however, both as to the extent of such rise and as to the reason for it. 51. Mr Macdonald submitted that there was a ceiling for inchoate offences such as that with which we are concerned so that, once that ceiling is reached, the same sentence will be appropriate for all such offences, notwithstanding that the facts of one may be more horrific than the facts of another. The possibility that there might be such a ceiling was suggested by this court in R v Taylor and Thomas [1995] 16 Cr App R (S) 873 at p. 875, when rejecting appeals against sentences of 30 years imprisonment passed on appellants who, as members of the IRA, had been responsible for a number of explosions and convicted of conspiracy to cause explosions likely to endanger life. 52. Mr Macdonald’s suggested ceiling was a determinate sentence of 50 years imprisonment and his suggested bracket for terrorist conspiracies of which murder was the primary object was between 30 years and 50 years imprisonment as a determinate sentence. This bracket puts the level of sentencing considerably higher than that considered by this court in Martin. In conceding that there should be an increase in the level of sentences for conspiracy to murder Mr Macdonald was, as we understood the position, accepting that such an increase must reflect the increase made to the lengths of minimum terms where murder sentences are imposed that has resulted from the starting points specified in schedule 21 of the Criminal Justice Act 2003 . These starting points came into force in December 2003. 53. Mr Lawson’s submission that the starting point for terrorist conspiracies to commit mass murder might well be a whole life term reflected his submission that the current wave of international terrorism was of a different dimension to the internal sectarian terrorism that was the subject of the decision in Martin and that it called for more severe sentences . 54. The fanaticism that is demonstrated by the current terrorists is undoubtedly different in degree to that shown by sectarian terrorists with which the United Kingdom had become familiar by the time of Martin. IRA terrorists were not prepared to blow themselves up for their cause. It is this fanaticism that makes it appropriate to impose indeterminate sentences on today’s terrorists, because it will often be impossible to say when, if ever, such terrorists will cease to pose a danger. 55. We consider that Mr Lawson is also correct in submitting that terrorist offences today are capable of being more serious even than the horrifying case of Hindawi. This case demonstrates the search by the terrorists for a means of causing death on an even greater scale than results from the destruction of a passenger plane and the events of 9/11 show that this can be achieved. It is not without significance that in A v Secretary of State for the Home Department [2004] UKHL 56 , [2005] 2 AC 68 the majority of the House of Lords accepted that the terrorist threat represented ‘a public emergency threatening the life of the nation’. For this reason we have concluded that the guidelines suggested by the court in Martin require review. 56. In Martin this court held that the level of sentences imposed on those who succeed in committing murder was a relevant consideration when considering the appropriate sentence for breach of section 3(1)(a) of the Explosives Substances Act 1883. It is plainly a relevant consideration when the offence is conspiracy or attempt to commit murder. Section 269 of the Criminal Justice Act 2003 requires the court to have regard to the provisions of schedule 21 of the Act when fixing a minimum term for murder. That schedule provides that where the court considers that the seriousness of the offence is ‘exceptionally high’ the appropriate starting point is a whole life order. Where the seriousness of the offence is ‘particularly high’ but not exceptionally high, the starting point is a minimum term of 30 years. 57. The effect of section 21 has been to increase significantly the minimum terms being imposed for the most serious murders. It is logical that the sentences for attempted murder or conspiracy to murder should reflect these minimum terms. In R v Kevin Ford [2005] EWCA Crim 1358 ; [2006] 1 Cr App R (S) 36 this court approved the approach of imposing a sentence that would result in the appellant serving for two offences of attempted murder half the period of imprisonment that he would have served had he succeeded in killing his victims. 58. It is not possible to adopt an arithmetical approach of that nature when dealing with terrorist attempts to commit mass murder. This is because where mass murder is committed, a whole life term will be imposed. The increase in the level of sentencing for the most serious murders is, nonetheless, a further factor that supports an increase in the level of sentences for terrorist conspiracies and attempts to commit mass murder. 59. We would emphasise at this point that we are dealing with an offence of conspiracy to commit murder. In Martin Lord Bingham remarked that the reported cases show ‘whatever the precise form of the offence the most severe sentences have been passed in cases involving a deliberate threat to human life’. The appellant pleaded guilty to conspiracy to murder. His co- defendants, bar one, have pleaded guilty to ‘conspiracy to cause an explosion or explosions likely to endanger life’ in contravention of section 3 of the 1883 Act. We have heard no argument at to whether a distinction, and if so what distinction, should be drawn between these two offences for the purpose of sentencing. Where there has been a trial and the judge has been able to conclude on the evidence in that trial that the defendants intended the explosions to kill, it is not easy to see why there should be any distinction. If there is one, then our remarks must be confined to the offences of attempted murder and conspiracy to murder. 60. We consider that a life sentence with a minimum term of forty years should, save in quite exceptional circumstances, represent the maximum sentence for a terrorist who sets out to achieve mass murder but is not successful in causing any physical harm. Such a sentence should be reserved for the terrorist who has been convicted, after trial, of a serious attempt to commit mass murder by a viable method. Where the offence is of conspiracy and the acts of the defendant fall short of an attempt, the sentence should be lower. 61. We have already explained why those who are party to a terrorist conspiracy to commit murder are likely to satisfy the criteria for an indeterminate sentence, although each case must be considered on its own facts. The length of the minimum term to be served where such a sentence is imposed will depend upon the facts of the particular conspiracy and the defendant’s involvement in it. Where the court is satisfied that the conspiracy was likely to lead to an attempt and the attempt was likely to succeed it may be right to draw little difference between a conspiracy and an attempt. Where, however, the court is unable to be certain that the conspiracy would have been put into practice, or would have lead to a successful attempt to murder, the sentence should be significantly lower than for an attempt. 62. Another relevant factor will be the nature of the involvement of the particular defendant in the attempt or the conspiracy. A leader should receive a more severe sentence than a follower. We shall not attempt to summarise aggravating and mitigating factors that are common in the case of most offences. Guidance on these has been provided by the Sentencing Guidelines Council. The Council’s Guidelines on giving credit for a guilty plea should be followed, for guilty pleas can be of particular value to the administration of criminal justice where terrorist offences are involved. 63. In the light of these comments we turn to the appellant’s sentence. He was properly given a life sentence. The minimum term falls to be determined on the basis that there is uncertainty as to (i) whether the conspiracy of which the appellant was part would have resulted in the planned attempt to commit mass murders and (ii) the consequences had it done so. That weighs in favour of a reduction in the term. 64. There is much that weighs against the appellant, however. The object of the conspiracy was mass murder of innocent citizens on a massive scale. If the Gas Limos Project had technical deficiencies, this was not through want of trying on the appellant’s part. He was the ring-leader of the conspiracy. All his energies were devoted to terrorism, and had been for the last six years. He had been for training to terrorist camps in Kashmir and the Philippines, he had twice been to the United States to research potential terrorist targets and he had been to Pakistan to enlist support for his project from Al Qaida or an associated body. It is at least possible that his project would have been put into practice. Had it been, the result would have been uncertain but at worst it might have resulted in serious loss of life and damage to property as a result of fire and explosions. 65. Having regard to all these considerations, we have reached the conclusion that the appropriate minimum term that the appellant should serve before being considered for release on licence is 30 years, (one half of a notional determinate term of 60 years; see R v Szczerba [2002] 2 Cr. App. R (s) 86), and that is after making a reduction of approximately 10% to give credit for his late plea of guilty. The 2 years and 94 days spent on remand will count towards this sentence. To that extent this appeal is allowed.	{"ConvCourtName":["Crown Court at Woolwich"],"ConvictPleaDate":["2006-10-12"],"ConvictOffence":["Conspiracy to murder"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on re-arraignment"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[824],"SentCourtName":["Crown Court at Woolwich"],"Sentence":["Life imprisonment with a minimum term of 40 years (reduced to 30 years on appeal)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[33],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["hundreds, if not thousands"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Expert report/testimony","Documentary evidence (plans, computer files)","Surveillance evidence"],"DefEvidTypeTrial":["Written basis of plea"],"PreSentReport":[],"AggFactSent":["Offence planned to cause mass murder","Offender was ringleader","Offence involved sophisticated planning","Offence motivated by extremist ideology"],"MitFactSent":["Plea of guilty (albeit late)","No actual physical harm caused","Did not move to final stages of implementation"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[7],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Wrong in principle to impose indeterminate sentence","Minimum term of 40 years is manifestly excessive"],"SentGuideWhich":["section 3(2) of the Criminal Law Act 1977","Sentencing Guidelines Council (credit for guilty plea)","schedule 21 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed in part; minimum term reduced to 30 years"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Uncertainty as to whether the conspiracy would have resulted in mass murder and the consequences had it done so; technical deficiencies in the plan; minimum term should be lower than for an attempt; credit for guilty plea"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 20113226 D3 AND 201103347 D3 Neutral Citation Number: [2013] EWCA Crim 644 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRISTOL CROWN COURT His Honour Judge Picton T20097457 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/05/2013 Before : LORD JUSTICE HUGHES MR JUSTICE FOSKETT and HIS HONOUR JUDGE DAVID RADFORD - - - - - - - - - - - - - - - - - - - - - Between : Mohid Jawad Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ivan Krolick (instructed by Central Law Practice ) for the Appellant Andrew Mitchell QC and Will Hays (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 21 March 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes: 1. This appeal against a confiscation order raises a question about the relationship between confiscation orders and compensation orders in the light of the recent decision of the Supreme Court in R v Waya [2012] UKSC 51 ; [2012] 3 WLR 1188 (‘ Waya ’). 2. The defendant and two others were convicted, on pleas of guilty, of a money laundering offence connected with frauds on Lloyds Bank. A count charging conspiracy to steal was left on the file. The details of the frauds do not matter. Very broadly the principal fraud consisted of opening bank accounts in a false name, paying in worthless cheques and then cross-firing the money from account to account so that multiple cash withdrawals could be made before it was spotted that the cheques would not be cleared. That enabled the fraudsters to obtain far more than the face value of the worthless cheques. In addition, gold bars, jewellery and the like, which were the product either of this practice or of the fraudulent use of bank cards obtained on the accounts were found in the possession of this defendant on his arrest. The money laundering offence to which the defendant pleaded guilty charged conversion of the fraudulently acquired bank balances; it did not relate to the credit card use. 3. Because this was a money laundering offence, the lifestyle provisions of the Proceeds of Crime Act 2002 (“POCA”) applied. The defendant’s benefit was therefore anything obtained from criminal conduct generally and was not limited to the proceeds of the count of which he was convicted. Before the judge the amount of benefit was agreed at £174,827.20. The loss to the bank from the frauds was put at £64,086.76. The larger agreed benefit figure was arrived at by adding together (i) that sum, directly obtained through the frauds and (ii) sums resulting from the statutory assumptions provided for by section 10 of the Act – that is to say where the defendant could not show a legitimate origin for assets passing through his hands during the relevant six year period or held by him after conviction. The defendant's available assets comfortably exceeded the agreed benefit figure and so created no lower ceiling on the confiscation order which could be made. 4. The transcript shows that the first thing which occurred was that the judge made the confiscation order in the sum of the agreed benefit (£174000 odd). There was no submission on behalf of the defendant that he should not do so. He was then asked by the Crown to make a compensation order in favour of the bank for the £64086.76 said to be its loss, and he was told that the bank had asked for that application to be made. 5. As to the latter application, counsel for the defendant invited the judge not to make a compensation order. The judge addressed two possible reasons which were advanced for not doing so. The first was that it involved an element of double counting of the £64000 odd, which was included in both orders sought. The second was that the co-accused had not been made the subject of compensation orders and it was said to be unfair to make one against this defendant, or at least unfair not to limit it to an apportioned share of the total. The judge rejected both arguments. There is no challenge to the rejection of the apportionment argument, nor could there be; after all, each of the fraudulent conspirators was jointly and severally liable to the bank for the whole of its loss. 6. Mr Krolick's challenge does rely on a complaint of double counting. But it is a challenge not to the compensation order, but to the confiscation order. He contends that because the confiscation order was based on a benefit figure which included the same £64000 for which a compensation order was made, there has been (to that extent) double counting. The result is, he submits, that the confiscation order can now be seen to have been disproportionate and thus an infringement of Article 1 of Protocol 1 to the European Convention on Human Rights (“A1P1”). That, he contends, follows from Waya , which decision of course post-dates the making of the orders in this case. 7. Mr Krolick advanced two further alternative arguments. They were these. i) Because the bank had asked the Crown to make application for a compensation order, it had “started proceedings” against the defendant in respect of its loss. Accordingly section 6(6) of POCA applied to convert the statutory duty to make a confiscation order into a mere power. The court was thus, independently of the principle in Waya , free to reduce the confiscation order by the £64000, and should have done so. ii) The confiscation order was in any event based on the wrong benefit figure (£174000 odd). That is because this was a lifestyle case. In a lifestyle case, says Mr Krolick, the relevant benefit is, by section 6(4)(b) the benefit from general criminal conduct, rather than from particular criminal conduct which is the measure under section 6(4)(c) in a non-lifestyle case. The £64000 was benefit from particular criminal conduct and therefore, he submits, should not have been included in the benefit figure in a lifestyle case. R v Waya: A1P1 8. We accept the argument that it follows from Waya that the Crown Court has a duty to avoid making a confiscation order which is an infringement of A1P1 because it is disproportionate: see paragraphs [16] and [19] of the majority judgment in Waya . The important section of this majority judgment, viz paragraphs [10] to [35], was an integral part of the ruling in that case and it followed detailed submissions on the topic; indeed the hearing had been adjourned in part for further development of such submissions. Moreover, the Supreme Court was unanimous on this section: see paragraphs [82] – [83] of the minority judgment of Lord Phillips and Lord Reed, although paragraph [84], in which the minority derived as an extension of the principle the proposition that there exists a governing concept of “real benefit”, was not agreed by the majority: see [26]. True it is that the majority concluded that the appeal in Waya fell to be resolved without the need to modify on grounds of disproportion the confiscation order calculated in accordance with POCA. That does not, as it seems to us, make obiter the important section comprising paragraphs [10] to [35], since the majority regarded it as necessary to ask itself the question whether the order was disproportionate. Even, however, if the strictly correct legal analysis of paragraphs [10] to [35] is that they are obiter , we have no doubt that that section of the judgment must be followed as the considered view of the whole court, arrived at after argument directed specifically to the point. Differently constituted, this court has proceeded on this basis since we heard argument in the present case: see R v Hursthouse [2012] EWCA Crim 610 . 9. In future application of Waya it is important that this section of the judgment, [10] to [35], be read as a whole and that no single part of it is taken out of context. It does not attempt the impossible task of defining exhaustively every possible example of disproportionate orders, but it does emphasise ( inter alia ): i) at [24] that the jurisdiction to modify a confiscation order for demonstrated disproportion does not invest the judge with a general discretion to make only such order as he thinks fair; ii) at [25] that in most lifestyle cases there will be little occasion for a separate test of disproportion to be applied to calculations of benefit resulting from the statutory assumptions in section 10 , because those assumptions are in any event not to be made if there is a risk of serious injustice arising from them; iii) at [26] that an order is not to be regarded as disproportionate simply because it removes from the defendant more than may in fact represent his net profits from crime; this is one reason why there is no governing concept of “real benefit”; examples are given, and compare R v May [2008] UKHL 28 ; [2008] AC 1028 ; and iv) at [28]-[29] that one example of an order which may be disproportionate is the case where proceeds of crime which have been restored intact to the loser are nevertheless counted as part of the benefit; it is by consideration of disproportion that this kind of case now falls to be decided rather than by resort to the jurisdiction to stay for abuse of the process of the court. 10. It is largely on the last of these parts of the decision in Waya that Mr Krolick founds his argument. Confiscation and Compensation 11. The inconvenient similarity of these two words leads us here to use the expression “POCA confiscation order” for confiscation. 12. A compensation order and a POCA confiscation order are two very different things. They derive from quite separate statutes and they serve different purposes. The power to make a compensation order is now derived from section 130 Powers of Criminal Courts (Sentencing) Act 2000 . Historically the power existed long before any proceeds of crime legislation and has not been modified as a result of it. A POCA confiscation order is designed to remove from the defendant the fruits of crime. A compensation order has a different purpose; it is designed as a limited and summary method of ordering the defendant to repay the loser and is available to short-circuit a civil action against the defendant in a straightforward case. Because the two orders serve different purposes, it has been held on several occasions in the past that there is no obstacle to making both orders in the same case. 13. Although the power to make a compensation order was not modified by the proceeds of crime legislation, POCA does contain in section 13 provisions which concern the inter-relation between the two orders. Section 13 provides, so far as material, and omitting recent amendments which do not affect this case: “13 Effect of order on court's other powers (1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned. (2) The court must take account of the confiscation order before— (a) it imposes a fine on the defendant, or (b) it makes an order falling within subsection (3). (3) These orders fall within this subsection— (a) an order involving payment by the defendant, other than an order under section 130 of the Sentencing Act (compensation orders)…; (b) …. (c) …. (d) …. (4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant. (5) Subsection (6) applies if— (a) the Crown Court makes— (i) both a confiscation order and a compensation order under section 130 of the Sentencing Act , (ii) …. (iii) …. against the same person in the same proceedings, and (b) the court believes he will not have sufficient means to satisfy both the orders … in full. (6) In such a case the court must direct that so much of the compensation … as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person's means.” This section thus creates two rules for the case where both compensation and a POCA order may be involved. i) The POCA confiscation order is generally to be taken into account when deciding whether to make any other order which requires payment by the defendant, such as a fine, (section 13(2)) but a compensation order is an exception to this rule (section 13(3)(a)). The section is easily misread because of its rather convoluted structure and it is easy to think that a compensation order is an order within section 13(2) via section 13(3)(a), but in fact the statute says the opposite. It follows that there is no mandatory duty under the Act to take the POCA confiscation order into account when deciding on a compensation order. ii) In the particular case of a defendant whose means appear to be insufficient to meet both a POCA confiscation order and a compensation order, the court is required to order the compensation which would otherwise not be paid to be met out of the sum recovered under the POCA confiscation order: section 13(5) and (6). These rules can co-exist with the general provision in section 130(11) Powers of Criminal Courts (Sentencing) Act 2000 , which requires a court to have regard to the means of the defendant when determining whether to make a compensation order and, if so, for how much. The prospect of a compensation order which is rendered unpayable by a POCA confiscation order which has taken everything the defendant has is avoided by sections 13(5) and (6). It is not clear whether a compensation order is included in the expression “sentence” in section 13(4) and we think it likely that it is not, for otherwise a specific right of appeal against it would not have to be given by sections 132(3) and (5)(b) Powers of Criminal Courts (Sentencing) Act 2000 , as it is. But it makes no difference for present purposes whether it is or is not. 14. For the Crown, the primary submission of Mr Mitchell QC is as follows: i) Section 13 means that the court must determine the POCA confiscation order first; ii) In fixing the amount of the POCA confiscation order the court must follow the mandatory terms of the Act and particularly of section 6 ; iii) It follows that any possible (and subsequent) compensation order is irrelevant to the calculation of the POCA confiscation order and the duty to make it; iv) Therefore in the present case the fact that the compensation order was made cannot mean that the POCA confiscation order was wrong, nor can the calculation of that order be impugned. 15. We do not agree that section 13 necessarily means that the court must deal with a POCA confiscation order first and in doing so must ignore any compensation order which it is also being asked to make. Section 13 says that the amount of a compensation order is not to be affected (ie is not to be reduced) by a POCA confiscation order. It says nothing about the reverse proposition, namely whether the fact that a compensation order is made, or is in prospect, is or is not relevant to the making of a POCA confiscation order. We agree that on the face of POCA, and absent the necessity established by Waya to ensure that a POCA confiscation order does not infringe A1P1, the question would be unlikely to arise, because the method of calculation of a POCA confiscation order is so tightly prescribed by the Act . But once it is clear, as it now is, that disproportion must be avoided, it follows that the question of compensation might be relevant to that issue, if compensation means that money which is restored to the loser will be counted again in the POCA confiscation order. Therefore in principle it must be possible either to consider the two issues together or to have in mind, when considering the disproportion question, any compensation order which has been or is going to be made. Nevertheless, as we show below, ordinarily the concern of the judge will be less with an order for compensation than with whether actual restoration to the loser is assured. 16. A compensation order requires the defendant to pay the specified sum to the court, for the benefit of the loser. It is not the equivalent of a civil judgment in favour of the loser. Its enforcement depends on section 41 and Schedule 9 of the Administration of Justice Act 1970 , taken together with Part III of the Magistrates Courts Act 1980 . The compensation order is, by these provisions of the Administration of Justice Act 1970 , treated for the purposes of enforcement as if it had been made by the magistrates (the particular magistrates’ court is specified in the order). It is then enforceable by the magistrates. The methods of enforcement include the following: i) (by section 76(1) of the Magistrates Courts’ Act 1980 ) commitment to prison by the magistrates; the term is in the discretion of the magistrates subject to the maximum being that specified by the Crown Court or, if none, that available to the magistrates; the term which can be specified is the same as can be specified in default of payment of a fine: section 41(8) and (8A) and Schedule 9 paragraph 10 of the Administration of Justice Act 1970 . [We are grateful to counsel for the Crown for referring us to Komsta & Murphy (1990) 12 Cr App R (S) 63 , but after a legislative oversight the position we have set out was definitively settled through section 23(3) of the Criminal Justice Act 1991 ]; the period actually served is, as with sentences of imprisonment generally, half the term imposed by the magistrates: section 258 Criminal Justice Act 2003 ; ii) a warrant of distraint: section 76(1) of the Magistrates’ Courts Act 1980 ; iii) those methods of enforcement available in respect of a judgment of the High Court or County Court, but excluding fi fa or other process against goods (no doubt because of the availability of distraint), and excluding also attachment of earnings; such right to enforce is conferred on the magistrates’ clerk and not on the loser or intended beneficiary under the compensation order: Osbourne v Kendrick [2001] EWCA Civ 690 . 17. However, these methods of enforcement are all of limited effect. Chiefly, they are limited by the availability of assets. There clearly can be no distraint or other civil enforcement action (such as a charging order) unless there are identifiable assets. More fundamentally, the magistrates may not take other enforcement action unless there has been a means enquiry and the defendant is shown to have the means available: see section 87(3) of the Magistrates’ Courts Act 1980 for enforcement via the civil courts and section 82(1)(a) for commitment to prison. Criminals may often have few assets, and/or may conceal what they have. Whilst of course a compensation order will not have been made unless the defendant appeared at the time of making to have the means, it by no means follows that he will be unable to raise later the plea that he no longer has. Unless assets can be identified at the enforcement stage, the magistrates can take no effective action to extract the money. True it is that if they can properly infer the presence of assets, albeit concealed from view, they can commit to prison, but that brings us to the next practical limitation on enforcement. 18. Importantly, if an order for commitment in default is made, the effect is to bring to an end the obligation to pay the compensation order. That follows from the fact that the compensation order is enforceable as if it were a fine, which has always been extinguished by commitment in default. It also follows from the fact that for the different case of a POCA confiscation order it was necessary to make specific statutory provision stipulating that the obligation to pay is unaffected by serving any sentence of commitment in default: such provision was first made by section 9(5) of the Drug Trafficking Act 1994 and is now to be found in section 38(5) of POCA. We do not consider that section 79(2) of the Magistrates’ Courts Act 1980 specifically provides for extinguishment by service of time in default, but its stipulation that part payment made during service of time reduces the imprisonment pro rata is clearly entirely consistent with it and is what is to be expected from treating payment and time served as alternatives to one another. 19. What these enforcement provisions mean for compensation orders is that the making of the order is not the equivalent of payment or restoration to the loser. It remains uncertain whether such restoration will be made. In particular, especially where large sums are involved, many criminals may prefer serving time in prison in default to surrendering by way of payment of compensation the sums which they have obtained from the loser by their crime. 20. Before Waya explained the application of A1P1 to POCA confiscation orders, this court had confronted in Morgan and Bygrave [2008] EWCA Crim 1323 ; [2009] 1 Cr. App. R. (S.) 60 the possible case of a defendant who had restored to his victim the whole of what he had obtained by his crime. The decision that a stay for abuse of process could be an available method of preventing a disproportionate order from being made is overtaken by Waya (see [17]-[18] in that decision). But the outcome of the case of Morgan on its facts is illustrative of what we have said above about the difference between an order for repayment by way of compensation and actual restoration to the loser. Whilst this court held that a confiscation order might be oppressive and call for a stay if it would take again a sum already repaid, or available for immediate repayment, it declined on the facts to interfere with the order made below. It did so because it appeared unlikely that the defendant would in fact repay the loser. The defendant was asserting that he was ready to repay the outstanding balance (of about £50,000) but the evidence showed that the only way he could do it was by selling his matrimonial home, which was an uncertain event made even less certain by the existence of a pending divorce and inevitable financial claims between the spouses. This court concluded that it was probable that the defendant was in no position to make the repayment he said he was willing to make. It adverted to the differences in enforcement between compensation on the one hand and POCA confiscation orders on the other. 21. Waya requires the court to consider whether a POCA confiscation order is disproportionate. We are satisfied that it generally will be disproportionate if it will require the defendant to pay for a second time money which he has fully restored to the loser. If there is no additional benefit beyond that sum, any POCA confiscation order is likely to be disproportionate. If there is additional benefit, an order which double counts the sum which has been repaid is likely, to that extent, to be disproportionate, and an order for the lesser sum which excludes the double counting ought generally to be the right order. But, for the reasons explained above, we do not agree that the mere fact that a compensation order is made for an outstanding sum due to the loser, and thus that that money may be restored, is enough to render disproportionate a POCA confiscation order which includes that sum. What will bring disproportion is the certainty of double payment. If it remains uncertain whether the loser will be repaid, a POCA confiscation order which includes the sum in question will not ordinarily be disproportionate. 22. For these reasons we reject Mr Mitchell’s primary submission that any compensation even if actually made is irrelevant to the right POCA confiscation order which ought to be made. But we also reject Mr Krolick’s primary submission, that the mere making of a compensation order ought to mean that the POCA confiscation order is reduced by that amount. 23. How should these principles be applied? It would be convenient if the statute were to provide for the court to have the power in an appropriate case to make a POCA confiscation order in the full sum and to couple with it an order that compensation in the relevant sum be paid to the loser out of it . That power is, however, not available except in the limited case of insufficient assets provided for by section 13(5) and (6). However, much the same outcome can, we think, be achieved without great difficulty. The exact circumstances of different cases may vary. But generally if the defendant has control of his assets he ought to be able to make repayment in the knowledge that, once he proves he has done so, credit will be given for it against a POCA confiscation order. Repayment made through solicitors on notice to the Crown ought readily to be provable. If repayment has not been made before the day of the confiscation hearing, proof that his solicitors are in funds and willing to give an undertaking to repay on his behalf is likely to suffice, as would the existence of a bankers’ draft in favour of the loser. There may be other methods of establishing clearly that payment is guaranteed. In those cases where the defendant does not have control of the assets in question, similar principles ought to apply. If the assets are in the hands of the Crown, after seizure, he can request realisation and repayment either direct to the loser or via an intermediary such as a solicitor who can provide a guarantee of payment. If the assets are subject to a restraint order he can apply for a variation of it on terms that sufficient of them are released to a named and safe intermediary for the purpose of realisation and repayment to the loser. In most cases steps such as these ought to be initiated by or on behalf of the defendant before the day of the confiscation hearing, but there may be some where there is justification for making them on that day, perhaps where there is a genuine dispute about the figures which needs evidence and resolution by judicial ruling. There may in a very few cases be occasion for brief adjournment of a confiscation hearing for immediate arrangements for payment to be made. What a court should not entertain, because there is no need to do so, are expressions of well-meaning intentions on behalf of a defendant which are not backed by assurance of repayment. Still less is a court likely to be receptive to pleas to adjourn the confiscation hearing for the defendant to seek ways of making repayment. Section 6(6) – “proceedings” 24. We return to Mr Krolick’s second submission, summarised at [7(i) above]. We are quite satisfied that it cannot be accepted. A loser who takes advantage of his opportunity to invite the Crown to ask the court to make a compensation order cannot in any known sense of the word be said to have started, or to be intending to start “proceedings” against the defendant in respect of the loss. A compensation order, if made, is part of the orders made by the court ancillary to sentence. The court is under a duty to consider it whether the loser seeks it or not. The ‘proceedings’ in which it is considered and, if appropriate, made, are the criminal proceedings brought by the Crown by way of indictment, not civil proceedings brought by the loser. Section 6(4) : general and particular criminal conduct 25. We are also unable to accept Mr Krolick’s third submission, summarised at [7(ii)] above. He submitted that the £64000 represented the proceeds of the defendant's particular criminal conduct, i.e. that charged in the count of which he had been convicted. In fact, this may not be true of the whole of that sum, since the only count to which the defendant pleaded guilty was the money-laundering count, and that related only to the cross-firing fraud and not to the credit card fraud, so that it looks as if not all of the £64,000 bank loss was attributable to it. We do agree, however, that clearly a part, and perhaps a substantial part, of the £64,000 represented the proceeds of particular criminal conduct. Since this was a lifestyle case, says Mr Krolick, the benefit is, by section 6(4) (b), not the proceeds of the defendant’s particular criminal conduct but the proceeds of his general criminal conduct. There we also agree. But what is plainly wrong is the last stage of the argument, which is that benefit from general and from particular criminal conduct are concepts which are mutually exclusive. In a lifestyle case, general criminal conduct plainly includes the particular conduct charged in the count of which the defendant has been convicted. There is nothing in section 6 to say otherwise and it would be nonsense if there were. Moreover, section 76(2) specifically provides that "general criminal conduct of the defendant is all his criminal conduct" (without further qualification), whilst particular criminal conduct is, by section 76(3) , the restricted sub-category of conduct constituting offences resulting in conviction or which are taken into consideration. 26. We do not think that the rules contained in section 10 about assumptions lead to any different conclusion. Mr Krolick submitted that in a case where the particular criminal conduct was more than six years old the assumptions would not apply to bring it within the umbrella of general criminal conduct. We agree, but the assumptions are only one route by which sums may be held to be the proceeds of general criminal conduct. In the case postulated by Mr Krolick, of a robbery committed seven years before the confiscation proceedings and never charged on indictment, its proceeds would be proved to be the product of general criminal conduct without recourse to the assumptions. Order in the present case 27. Since the confiscation hearing in the present case preceded Waya the defendant was not alerted to the significance of a guaranteed method of repayment to the loser, either ahead of the hearing or in the event that a compensation order were made. We were told that he has not yet paid the compensation ordered. We conclude that he should have the opportunity to do so, in guaranteed form. In the light of representations made by Mr Krolick on the appellant’s behalf after he saw the draft judgment (which mentioned a period of 14 days) and in the particular circumstances of this case, if within 28 days of the handing down of this judgment the appellant repays to Lloyds Bank the sum of £64,086.76, together with the interest properly payable upon it, then the appeal will be allowed to the extent of reducing the confiscation order by £64,086.76. If he does not, the appeal will be dismissed. Note: Change of law and extension of time 28. It was at first thought that this appellant needed a grant of an extension of time to enable him to appeal. If he had, that would have raised the question whether someone against whom a confiscation order was made entirely in accordance with the law as it was understood to be at the time ought to be granted an extension of time if he seeks to appeal on the basis of a change of law made subsequently – in this case as a result of the Supreme Court decision in Waya . As it turns out, the appellant does not need any extension of time. A very few days’ extension was granted by the single judge and we thus have before us a properly constituted appeal which must be determined according to the law as it now stands. 29. We therefore do not have to decide the question mentioned and we have had only brief submissions upon it. We nevertheless think that we should make clear the general approach of this court, over many years, to change of law cases. An extension of time will not be granted routinely in such a case simply because the law has changed. It will be granted only if substantial injustice would otherwise be done to the defendant, and the mere fact of change of law does not ordinarily create such injustice. Nor is the case where an extension will be refused limited to one where, if the law had been correctly understood at the time of the proceedings in the Crown Court, a different charge or different procedure might well have left the defendant in a similar position to that in which he now finds himself. The line of authority setting out this court’s approach culminates in R v Cottrell & Fletcher [2007] EWCA Crim 2016 ; [2008] 1 Cr App R 7 , where the judgment was given by Sir Igor Judge P, as he then was. But that line of authority includes similar pronouncements by successive Lords Chief Justice from Lord Lane CJ onwards. An early example is R v Mitchell (1977) 65 Cr App R 185 in which Lane LJ (as he then was) expressly approved the decision of this court in R v Ramsden [1972] Crim LR 547. There, a defendant who had been convicted of dangerous driving before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence was refused leave to appeal out of time after the latter decision had been published. The Court observed that alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. A similar proposition was recently adumbrated by the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] IEFC 45 where the court held that absolute retroactivity would lead to ‘dysfunctional effects in the administration of justice.’ A further clear example from the jurisprudence of the Court of Appeal Criminal Division is R v Ballinger [2005] EWCA Crim 1060 ; [2005] 2 Cr App R 29 . 30. Whilst the point does not arise in the present case, and we do not decide it, we think it important that defendants should not be encouraged to think that the effect of Waya is likely to be that confiscation orders made when no disproportionality point was taken, or was rejected, can now be re-opened. We doubt very much that, if an extension of time had been required in the present case, we should have granted it.	{"ConvCourtName":["Bristol Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Money laundering"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Bristol Crown Court"],"Sentence":[""],"SentServe":[],"WhatAncillary":["Confiscation order","Compensation order"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Confiscation order"],"AppealGround":["Confiscation order was disproportionate due to double counting with compensation order","Section 6(6) POCA: compensation proceedings convert confiscation duty to power","Benefit figure for confiscation order was wrong in a lifestyle case"],"SentGuideWhich":["Proceeds of Crime Act 2002","section 10 of the Proceeds of Crime Act 2002","section 6(6) of the Proceeds of Crime Act 2002","section 130 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Allowed to the extent that if within 28 days the appellant repays the compensation sum to Lloyds Bank, the confiscation order will be reduced by that amount; otherwise, the appeal is dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Confiscation order would be disproportionate if it required double payment of the sum already restored to the loser"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No certainty that the compensation order will be paid; mere making of a compensation order does not render the confiscation order disproportionate"]}
Neutral Citation Number: [2013] EWCA Crim 591 Case No: 201207324 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HARROW CROWN COURT HIS HONOUR JUDGE GREENWOOD T20117464 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/05/2013 Before: Lord Justice McCombe Mr Justice Saunders and Judge Collier QC (The Recorder of Leeds) (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : A J R Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - A Beharrylal (assigned by the Registrar of Criminal Appeals ) and D Revill (pro bono) for the Apellant G Connor (instructed by Crown Prosecution Service ) for the Respondent Hearing dates: 11 th April 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice McCombe: 1. On 7 September 2012 in the Crown Court at Harrow, after a trial before His Honour Judge Greenwood and a jury, the present applicant was found not guilty by reason of insanity of one charge of attempted murder, one charge of wounding with intent and one charge of unlawful wounding. The victim of each of the offences alleged was the applicant’s then 7 month old daughter, MJ. On 21 November 2012, the applicant was sentenced to a supervision order for 2 years under s.5 of the Criminal Procedure (Insanity) Act 1964 and was made the subject of a restraining order under s.5 A of the Protection from Harassment Act 1997 for a period of 5 years. The order was in terms restraining him from contacting (directly or indirectly) MJ, a further child called JJ, and his former partner and mother of the children, EJ. He was further restrained from contacting directly or indirectly any relative of the previously named persons under the age of 15 years, without prior permission from a qualified mental health supervisor, probation officer or nominated social services worker, and from attending or coming within 50 yards of an identified property in Wembley. 2. His application for leave to appeal against sentence (made in respect of the restraining order only) has been referred to the Full Court by the Registrar. We grant leave. 3. This is a tragic and disturbing case, the facts of which are as follows. There was no dispute about them at the trial, the issue being in reality as to the mental health of the appellant (as he now is) at the time of the incident. The appellant had a history of paranoid schizophrenia. In the week prior to 21 st October 2011 he suffered a marked deterioration in his mental health, hearing voices, having hallucinations and a belief that he had won the national lottery. He was also lacking sleep. He sought help from mental health services and there was evidence that he merited admission to hospital as an in-patient. On 20 th October 2011 the applicant was at the home of his partner’s mother where his partner was living. He became emotional. In the early hours of the following morning he began to act irrationally, speaking of demons, of the family being angels and going to a better place. He picked up his 7 month old daughter and carried her into the living room. He ushered all the family into the living room and required his partner’s mother to read passages from the Koran. EJ was so concerned about his mental state that she managed to leave the living room and call the police. Shortly afterwards the appellant returned with a knife. He continued to speak about going to the angels and to a better place. The police arrived and tried to reason with him but the appellant threatened to stab MJ if they did not stay back. He then stabbed her four times in the chest before making stabbing motions to his own throat and wrist causing injury. The police subdued him using CS spray. The appellant’s injuries were minor, MJ received emergency surgery for life threatening injuries. She was discharged on 2 nd November. 4. There were extensive medical reports on the appellant’s mental health before the Court, both at trial and at the disposal hearing after verdict on 21 November 2012. The reports disclosed differences between the experts as to the precise extent and nature of the appellant’s disability and as to his proper further treatment. As appears from the learned judge’s sentencing remarks, this disagreement led to significant difficulties for him in framing a suitable disposal for this appellant, having due regard to the constraints of the statutory provisions. In view of the severity of the attack upon MJ, the judge would, no doubt, have felt more comfortable if the evidence had permitted him to make a hospital order. In the end he felt himself limited to the making of the supervision order under s.5 of the 1964 Act and there is no challenge now made to that order. 5. As indicated the subject of the appeal is the restraining order. That order is challenged on three bases. First, it is argued that the judge had no statutory power to impose such an order. Secondly, it is said that, even if the power existed the facts did not justify the making of the order. Thirdly, it is submitted that the rights under Article 8 of the ECHR of the appellant and the persons named in the order were unjustifiably infringed by the making of the order. The Protection from Harassment Act 1997 6. The scheme of the 1997 Act is as follows. Section 1 contains a general provision prohibiting harassment. Section 2 provides for criminal sanctions for breach of the prohibition. Provision is made for a civil remedy in section 3. Sections 5 and 5A respectively provide for the court’s power to make a restraining order in the case of either a conviction or an acquittal. Section 7 provides limited guidance on interpretation. The material parts of the Act , for present purposes read as follows: Section 1 “(1) A person must not pursue a course of conduct- (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.” Section 7 “(2) References to harassing a person include alarming the person or causing the person distress. (3) A “course of conduct” must involve- (a) In the case of conduct in relation to a single person (see section 1(1) ) conduct on at least two occasions in relation to that person…….” It is to be noted that there is no express statutory definition of harassment. As Toulson LJ (as he then was) noted in R v Mark Smith [2012] EWCA Crim 2566 , this omission prompted criticism from commentators at the time of the legislation and he proceeded to set out some of the criticism and subsequent legislative history. Section 5 “(1) A court sentencing or otherwise dealing with a person (“the defendant”) convicted of an offence…may…make an order under this section. (2) The order may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from conduct which (a) amounts to harassment, or (b) will cause a fear of violence, prohibit the defendant from doing anything described in the order. (3) The order may have effect for a specified period or until further order. (4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order. (4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4). (5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence. (6) A person guilty of an offence under this section is liable- (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both, or (b) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both. (7) A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.” Sub section (1 ) as originally enacted provided as follows: (1) A court sentencing or otherwise dealing with a person (“the defendant”) convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section. Section 5 A “(1) A court before which a person (“the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.” It is to be noted that this section does not contain any equivalent for protection of anyone from “fear of violence”: c.f. s.5 (2) (b). The order has to be necessary to protect “from harassment”. Continuing with the contents of section 5 A, the section continues with subsection (2), “(2) Subsections (3) to (7) of section 5 apply to an order under this section as they apply to an order under that one. …… (5) A person made subject to an order under this section has the same right of appeal against the order as if- (a) he had been convicted of the offence in question before the court which made the order, and (b) the order had been made under section 5 .” The appeal grounds 7. The first point taken on the appeal is that where section 5 A of the 1997 Act (as amended) speaks of a person being “acquitted” this does not include a person who has been found “not guilty by reason of insanity”. The short point is that the special verdict returned in a case such as this is neither a “conviction” nor an “acquittal”, but something in between the two, i.e. as statute provides, a “special verdict”. It is submitted that the ordinary meaning of an acquittal does not include a verdict by which an accused person is found not guilty only by reason of insanity, i.e. where he is found by a jury to have committed the act in question but is excused from criminal responsibility for it by reason of insanity. 8. It is to be noted that this case is one where the issue of insanity was before the jury and they returned the verdict of not guilty by reason of insanity, i.e. a special verdict under section 2 of the Trial of Lunatics 1883. It is not a case where there has been a finding of unfitness to be tried and a jury has subsequently determined under section 4 A of the 1964 Act that the accused “did the act…charged against him”. In this latter case, the question of fitness to be tried is determined by the court without a jury: see section 4(5) of the 1964 Act . 9. In deciding upon the present submission, we must have regard to the potentially parallel question to the one raised here, namely whether the court would have power to make a restraining order under section 5 or section 5 A of the 1997 Act . 10. For our part, it seems clear, as a matter of ordinary language that a person found “not guilty by reason of insanity” has indeed been acquitted of the offence. That is what a finding of “not guilty” is, whatever the basis upon which that verdict is returned. 11. Mr Beharrylal for the appellant drew our attention to sections 12 and 13 of the Criminal Appeal Act 1968 in which it is provided that a defendant against whom a special verdict has been returned may appeal to this Court which can “substitute for the verdict of the jury a verdict of acquittal”. He submits that this demonstrates that the legislature perceives a difference between the two types of verdict and that the special verdict is not a true acquittal. 12. Of course, it must be recalled that there is not generally any right or need on the part of an acquitted person to bring an appeal. However, as the two sections illustrate there may well be circumstances in which a person, the subject of a special verdict, may wish to appeal. Without this particular provision the right of appeal might be said not to exist in respect of what is, in truth, a verdict of acquittal. We are not confident that these two sections of the 1968 Act do not in fact militate against the appellant’s submission as to the meaning of “acquitted” in section 5 A, rather than in favour of it. However, we do not think that they are decisive, or indeed of great assistance either way. 13. As Saunders J pointed out during argument, a person who is the subject of a verdict such as this would be able to plead autrefois acquit, if it was sought to re-indict him in respect of the same offence. By contrast, as the Recorder of Leeds retorted in the same exchange, however, if a person found unfit to plead or stand trial is found to have “done the act”, he can be re-tried if his mental health recovers. 14. This contrast would suggest that the special verdict is a true acquittal, whereas a finding that a person unfit to be tried has “done the act” is not. This may lead to the result that the restraining order jurisdiction cannot be exercised in respect of a person subject to this latter type of finding - a point which we do not decide. However, we do not think that this possible lacuna should dissuade us from holding that a special verdict of the type returned in this case is an acquittal for the purposes of section 5 A of the 1997 Act . As Toulson LJ pointed out in the Mark Smith case, the drafting history of this Act has not been a happy one and it would not be surprising, therefore, if some lacunae did not appear from time to time. 15. Further, it seems tolerably clear that for an order to be made under section 5 A the offence in respect of which the accused is acquitted does not need to have been an offence under the 1997 Act itself. Sections 5 and 5A of the Act , in their current form, are the product of the Domestic Violence, Crime and Victims Act 2004 . That Act removed from section 5 the limitation on making restraining orders only on conviction to cases of convictions under section 2 and 4 of the 1997 Act . Therefore, when the two sections in their present form speak of conviction/acquittal of an offence, there is no reason to think that either section continues to be so limited. 16. We do not agree, however, with the further submission for the appellant (to be found in paragraph 27 of the “grounds and submissions on appeal” document) that the wording indicates that the Act was not to apply in special verdict cases. That submission is based upon the contention that it was the 2004 Act which made a substitution of a new section 5 in the 1964 Act , empowering the court to deal with persons found not guilty by reason of insanity or unfit to plead. It is submitted that Parliament did not at that stage extend the application of section 5 A to special verdict cases, when (if that had been the intention) express provision could have been made. However, it seems to us that the present section 5 of the 1964 Act is merely the re-enactment with amendments of a provision that has appeared in that Act from its inception. It provides for the admission of relevant persons to hospital (the original Act), the making of guardianship, supervision or treatment orders and absolute discharges (the 1991 amendments) and hospital orders, supervision orders and absolute discharges (the 2004 amendments). The provision in section 5 A of the 1964 Act (Orders made now or by virtue of section 5 ) were with consequential matters arising out of the orders provided for in section 5 . The introduction of the further power to make restraining orders on conviction or acquittal by the 1997 and 2004 Acts did not, as it seems to us, call for further amendment to section 5 of the 1964 Act . 17. We note and accept the submission made by the appellant that the law on statutory construction imports the “principle against doubtful penalisation”: see Bennion on Statutory Interpretation 5 th Ed. P. 285 and the words of Lord Bingham of Cornhill in R v Z [2005] UKHL 35 at paragraph [16]. However, we do not see this as a case of doubtful penalisation. We consider that the wording of section 5 A of the Act is sufficiently clear to confer the relevant power to impose a restraining order in the circumstances of this case, if the facts suitably justify it. 18. Finally, as it seems to us, it is of significance that in Mark Smith (supra), while the present point does not appear to have been expressly taken, it would be odd to think that there was such a fundamental objection to the making of a restraining order in a special verdict case as is now contended, when (after a careful analysis of the provisions of the 1997 Act ) Toulson LJ saw no such objection. The appeal against the order in that case succeeded on other grounds. 19. It does appear, however, that the analysis of the 1997 Act in that case points to a different objection to the order in this case. In paragraph 29 of the judgment, the court indicated the matters of which the court must be satisfied before an order can be made. Toulson LJ said this: “There are other fundamental problems with the order. Since the purpose of such an order is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of s1 . Pursuit of a course of conduct requires intention. There was no basis for finding that there was a likelihood of intentional conduct by the defendant involving mental or physical oppression of the victim by persistent interference or intimidation. We recognise that a person might, by reason of a mental illness, set about a course of conduct amounting to harassment. If so, the fact that the underlying cause of the conduct was a mental illness would not prevent it from amounting to harassment, by reason of s1(2) : SPC [2001] EWCA Crim 1251 . But that is another matter. Mr Smith had no intention of doing anything which would amount to harassment of anyone.” 20. It seems, therefore, that the court has to be satisfied that that the defendant is likely to pursue a “course of conduct” amounting to harassment within section 1 of the Act . As already noted, there is no provision parallel to section 5 (2) conferring a power to make an order to protect a victim from conduct which “will cause fear of violence”. The statutory prohibition under section 1 is in respect of “a course of conduct…which amounts to harassment…”. Section 7 provides that a course of conduct must involve, “(a) in the case of conduct in relation to a single person…conduct on at least two occasions in relation to that person; or (b) in the case of conduct in relation to two or more persons…conduct on at least one occasion in relation to each of those persons” In the present case, terrible though the events of 20 October 2011 were, there was no relevant “course of conduct” in either sense. The incident was a single one and did not satisfy the requirements of the Act as explained by Toulson LJ. Further, the judge recognised in his sentencing remarks that the appellant was not suffering from the disability that pertained at the time of the attack on his daughter. It could not, therefore, be said that repetition, even of a single act (as opposed to a course of conduct) was “likely”. It might also be added that the judge appears to have invoked the jurisdiction “as an adjunct to the Mental Health Act”, but as explained in Mark Smith , that is not the function of this statutory power: see paragraph 34 of the judgment. 21. Mr Connor for the Crown did not advance any sustained submissions in opposition to those of Mr Beharrylal on either the construction point, as to the meaning of “acquitted” in section 5 A of the 1997 Act or as to the application of the test propounded by Toulson LJ in Mark Smith as to the need to demonstrate the likelihood of a course of conduct amounting to harassment. He confined himself to emphasising to us the appellant’s mental health history and the possible consequences if his health relapsed, as it has done in the past. 22. We have had those submissions in mind and have carefully considered the helpful reports from the local authority Social Services that were before the judge, together with the addendum report and update provided for the present hearing. However, we do not consider that that material enables us to say that the legislative test laid down in section 5 A was satisfied in this case. 23. It is clear that the learned judge was understandably concerned as to the limits of his powers in the absence of sufficient medical evidence to warrant the making of a hospital order. We share his concerns about this and about what avenues might be open for the purpose of preventing any apprehended future danger to MJ and/or JJ. In our judgment, however, the law is not powerless to deal with such dangers and we return to that below. We would add that the judge made the order without the benefit of this court’s analysis of the Act in the Mark Smith case, which we consider to be decisive of this appeal. That case was decided on 29 November 2012, some eight days after the judge’s order. 24. In view of our conclusions on the permissible ambit of the Act , it follows that the restraining order in this case must be quashed and it becomes unnecessary to consider the other grounds of the appeal. However, we would add that there would appear to be force in the appellant’s submission that the order should not have been made restraining the appellant from contact with EJ, his former partner, whatever order may have been appropriate in respect of the children. It is clear from the decision of this court in Picken [2006] EWCA Crim 2194 that an order should not be made without finding out the views of a person in EJ’s position. Indeed, the order made was very wide indeed, covering a wide class of person in respect of whom no unacceptable conduct had been demonstrated on any occasion and in respect of whom no apprehended danger was demonstrated. 25. In this regard, it is also to be noted from the decision in the Mark Smith case that the test for the imposition of a restraining order is one of necessity. At paragraph 30 of the judgment, Toulson LJ said “Further, the power to make an order under s5 A is circumscribed by the important words "necessary…to protect a person from harassment by the defendant". The word "necessary" is not to be diluted. To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful, on pain of imprisonment, is an interference with that person's freedom of action which could be justified only when it is truly necessary for the protection of some other person.” 26. It is necessary, therefore, for any order to be tailored to the precise requirements of the individual case. We recall, in this respect, the decisions in this court concerning the need for precision and careful formulation of Sexual Offences Prevention Orders – a jurisdiction in which similar considerations arise. While, not underestimating the enormity of what occurred to MJ at this appellant’s hand, the act was committed by that girl’s father while suffering from extreme ill-health and it is not to say that all relationship between father and daughter should be cut off indefinitely, without regard to the possibilities of supervised or indirect contact. The five year duration of the order in this case, given the children’s ages, might preclude any sensible resumption of a relationship between parent and child. These are matters which must be addressed where a restraining order of this type is contemplated. We accept Mr Connor’s submission to us that he endeavoured to restrain the more extreme suggestions initially advanced by the local authority as to the possible contents of the order. However, the wide order that emerged seems to us to demonstrate the difficulty of framing such an order in the context of a sentencing hearing in the Crown Court. On the other hand, Mr Beharrylal said to us on instructions that EJ had expressed willingness to enter into a suitable agreement with the local authority to ensure the safety of her children in the light of the understandable concerns. 27. These practical difficulties and possible solutions seem to us to point the way forward in this case. In so far as the position of the two identified children MJ and JJ are concerned, it seems to us on the facts of this case, that concerns as to their welfare would be more properly addressed either by suitable agreement between the mother and the local authority or, in default of agreement, by the family courts in exercise of their jurisdiction under the Children Act 1989 , including the powers in section 38 A of that Act . 28. For these reasons, this appeal is allowed and the restraining order is quashed.	{"ConvCourtName":["Crown Court at Harrow"],"ConvictPleaDate":["2012-09-07"],"ConvictOffence":["Attempted murder","Wounding with intent","Unlawful wounding"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Harrow"],"Sentence":["2 years supervision order"],"SentServe":[],"WhatAncillary":["Restraining order (5 years)"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1 (MJ, daughter)"],"VicSex":["All Female"],"VicAgeOffence":[0],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Severity of attack upon infant daughter"],"MitFactSent":["Offender suffering from paranoid schizophrenia at time of offence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence (restraining order)"],"AppealGround":["No statutory power to impose restraining order; facts did not justify order; Article 8 ECHR rights infringed"],"SentGuideWhich":["s.5 of the Criminal Procedure (Insanity) Act 1964","s.5A of the Protection from Harassment Act 1997"],"AppealOutcome":["Allowed & Restraining Order Quashed"],"ReasonQuashConv":["No relevant 'course of conduct' amounting to harassment; statutory test for restraining order not satisfied"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 2009/0998/A2 Neutral Citation Number: [2009] EWCA Crim 2355 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 30 October 2009 B e f o r e : MR JUSTICE DAVID CLARKE SIR GEOFFREY GRIGSON - - - - - - - - - - - - - - - R E G I N A v GABRIEL OMABOE - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - - J U D G M E N T 1. SIR GEOFFREY GRIGSON: On 21st April 2008 at the Crown Court at Blackfriars, this applicant pleaded guilty to one offence of possession of a false identity document with intent. He was sentenced to nine months' imprisonment which the judge described as the least sentence he could pass. The judge also recommended that the applicant be deported. 2. There were three co-defendants, each of whom faced the exact same charge and received the exact same sentence of imprisonment. Two of the three were recommended for deportation. The fourth escaped recommendation. 3. The facts briefly are these. On 3rd February 2008 immigration officers went to the Olympic Park in Stratford where the applicant and his three co-accused were all employed as security guards. The applicant had provided his employers as proof of identity with a photocopy of a forged Ghanaian passport which had been stamped to show that he had leave to stay in the United Kingdom indefinitely. In interview the only explanation offered by the applicant was that his own passport had been lost in 2003 and probably that it had been stolen. It may not be a coincidence that his permission to stay in the United Kingdom expired that same year. 4. The applicant submitted his own grounds of appeal. They were very substantially out of time. The single judge who refused the application for extension and for leave to appeal said that there was no sufficient explanation for the long delay. The explanation proffered is that the applicant was waiting for a medical report. That of course provides no reason for delaying the making of the application. A medical report could have been supplied at any time subsequent to the application being made. The single judge went on to say that he would not have given leave to challenge the deportation in any event and it is in fact only against that part of the sentence that the applicant applies for leave to appeal. 5. He has set out voluminous grounds of appeal against that order. The grounds include that the judge gave insufficient reasons; that the judge paid insufficient regard to his previous good character and the circumstances and nature of the offence, that he had insufficient notice and that the automatic deportation provisions did not apply. 6. We have read all the papers, including the various character references and medical reports supplied by the applicant. We have read what the judge said and he did give adequate reasons. He said: "Why this is felt by society to be wrong and is a criminal offence is it does destabilise society. It also prejudices those people who come to the country quite lawfully and work on proper documentation and stay appropriately on proper documentation. Those who cynically use false documents in order to maintain a presence here have to be regarded as people who do stabilise and prejudice the rest of the community." 7. It is plain from the documents that proper notice was given. The applicant is right to assert this was not an automatic deportation case; it was not. It was, as we have said, a recommendation for deportation. The words used by the learned judge echo the words used by Rix LJ in the case of Benabbas [2006] 1 Cr.App.R (S) 94 . He said that the public interest in preventing the fraudulent use of passports to support residents is of considerable importance and deserves protection. Confidence in the passport system was important. Conduct involving the use of forged passport undermined the good order of society. The test that the learned judge had to apply was whether the applicant's continued presence was to the potential detriment of this country. He properly directed himself and came to the conclusion that it was. It seems to us that the application for permission to appeal is in fact as unfounded as the application for an extension of time and both of these renewed applications are dismissed.	{"ConvCourtName":["Crown Court at Blackfriars"],"ConvictPleaDate":["2008-04-21"],"ConvictOffence":["possession of a false identity document with intent"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Blackfriars"],"Sentence":["nine months' imprisonment","recommendation for deportation"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["previous good character"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["sentence (deportation recommendation)"],"AppealGround":["insufficient reasons for deportation recommendation","insufficient regard to previous good character","insufficient regard to circumstances and nature of the offence","insufficient notice","automatic deportation provisions did not apply"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["judge gave adequate reasons","proper notice was given","not an automatic deportation case","judge properly directed himself","application for permission to appeal is unfounded"]}
Neutral Citation Number: [2012] EWCA Crim 1717 Case No: 2011/02284 2011/02232 2011/02229 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Mr Recorder Morgan T2010 1627 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2012 Before : LORD JUSTICE GROSS MR JUSTICE EADY and MR JUSTICE BLAIR - - - - - - - - - - - - - - - - - - - - - Between : Vinh van Dao Hoang Mai Muoi Thi Nguyen Appellants - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Greg Unwin (instructed by Mirza Solicitors LLP ) for the Appellants Mr David Perry QC (instructed by The Crown Prosecution Service ) for the Respondent Hearing dates : 21/01/2012 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE GROSS: INTRODUCTION 1. This appeal against conviction potentially raised interesting issues as to the scope of the defence of duress and also, as it turned out, as to “trafficking”. In the event, considerations as to trafficking caused us to delay our judgment pending the decision of another constitution of this Court presided over by Lord Judge CJ in R v N; R v Le [2012] EWCA Crim 189 . That decision has since been handed down. Subsequently, we received written submissions from the parties as to R v N . In the light of R v N and the view we take of the facts of the present matter, our judgment can be significantly shorter than it might otherwise have been. 2. On the 18 th March, 2011, in the Crown Court at Snaresbrook, before Mr. Recorder Morgan, the Third Appellant (“Nguyen”) was convicted of cultivating cannabis (count 1) and possessing criminal property (count 5). On the same day, the Second Appellant (“Mai”) was convicted of cultivating cannabis (count 1) and possessing criminal property (count 4). On the 21 st March, 2011, the First Appellant (“Dao”) was convicted of cultivating cannabis (count 1) and possessing criminal property (count 3). 3. Sentencing proceeded on the 21 st March, 2011: i) Dao was sentenced to 3 years’ imprisonment on count 1, with 6 months’ imprisonment on count 3 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant. ii) Mai was sentenced to 3 years’ imprisonment on count 1, with 6 months’ imprisonment on count 4 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant. iii) Nguyen was sentenced to 3 years 4 months’ imprisonment on count 1 with 9 months’ imprisonment on count 5 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant. 4. A further count (count 2) of possession a controlled drug with intent to supply was left on file in the usual terms against all three Appellants. 5. The Appellants appeal to this Court by leave of the single Judge, who observed: “ I would be surprised if the Court were to allow these 3 appeals. However, it may be helpful for the Court to have an opportunity of considering imprisonment short of an imprisonment which causes death or serious injury as a possible route to a duress defence. ” 6. In the event, Dao abandoned his appeal and Mai has been deported. Nguyen remains a serving prisoner. Accordingly, the appeal did not concern Dao at all. Though Nguyen and Mai remained represented by the same counsel, in practical terms the appeal was essentially concerned with Nguyen . THE FACTS 7. At 10.30 on the 25 th October, 2010, police forced entry to premises at unit 6, 61 Sutherland Road, E17. Inside they found a fully functioning cannabis factory and the three Appellants. On commencing their search, they found Nguyen in the kitchen area; she was using her mobile telephone to communicate her imminent arrest to a friend. The wholesale cost of the cannabis recovered was approximately £42,000. 8. The Appellants were all Vietnamese and were unable to speak English. They were arrested and cash was seized (reflected in the counts recorded above): £297 from Dao ; £242 from Mai ; £741 from Nguyen’s handbag. Nguyen and Mai were partners. 9. In the living area of the unit there was a satchel containing keys. One key fitted a lock on the door of the unit. A mobile telephone seized from the kitchen belonged to Nguyen and was found to contain the address of the unit and another unit; it also contained incorrect personal details of Nguyen . 10. In interview, Dao stated that he had been asked to clear a warehouse for £300. He had been approached by a woman at a bus stop. He had been taken to the unit and a “western” male had put the money in his hand. Once he got there he was locked in and realised what was inside. The same man and woman brought food and drink to the unit. He had two mobile telephones but both were without credit. His co-accused arrived a day or two after him. Once he had arrived at the unit and realising that he had been duped, he telephoned a friend who advised that as he had agreed to do it, he should get on with it and get paid. At first he was scared but then he just got on with it. He could not escape because he had been locked in by four padlocks. 11. In his interview, Mai admitted harvesting the plants. 12. In her interview, Nguyen said that she had cut the cannabis and therefore cultivated it. Her solicitor indicated that she had been advised not to answer questions but she proceeded to answer some, though not all, of the questions put to her. Her account was that she had been threatened with a knife. She had met a woman, Thuy, in the street and she had forced her to go to the premises. The cannabis was already in the unit. She had not known that there was cannabis there until she arrived. “They” (it would seem Thuy and some “western” men) had not injured her but had threatened her with a knife. They had paid her but she had been unable to leave; she had wanted to but they had locked the door. She stated that she had only been given £500 of the money found on her, believing it to be for cleaning out and dismantling a factory and that the remainder was derived from previous legitimate income. 13. When giving evidence, Nguyen added to her account in interview. She now said that she had not only been threatened with a knife but also that they had threatened to kill her. Two mobile telephones recovered from the kitchen had been hers and she had used one to telephone a friend when the police had attended. She said that she had not known of the satchel or the keys within it. 14. Both Dao and Mai , when giving evidence, expanded on their accounts in interview, in particular as to threats made to them. 15. All the Appellants had been of good character. 16. The prosecution case was that the police had caught the Appellants red handed. The Appellants were fully involved in cultivating and harvesting the cannabis. They were paid – and had provisions – in order to stay inside the premises. 17. The defence case for each Appellant was that they had been duped and had attended the unit believing that they were there to clean. Once they realised they had been duped they wanted to leave but were threatened to the extent that their will had been overcome. They were locked in to the premises with no means to escape and any assistance in the cultivation or harvest of the cannabis was under duress. 18. The issue for the jury on count 1 was whether the prosecution had made them sure that the accused whose case they were considering had cultivated cannabis plants voluntarily. On counts 3-5, the issue for the jury was whether the prosecution had made them sure that the money found on the accused whose case they were considering was criminal property from that accused’s willing participation in count 1 and that the accused in question knew or suspected that it was payment for cultivating cannabis. As posed by the Judge (summing-up, at pp. 26 and following), the questions to be asked in the light of the raising of the defence of duress, were, in essence, as follows: i) Whether the accused whose case they were considering had been threatened by someone with death or serious injury if he/she did not cultivate the cannabis plants? ii) Whether the accused in question reasonably believed that the threat would be carried out imminently if he/she did not comply? iii) Whether the threat endured throughout that accused’s participation and was it reinforced by incarceration? iv) Whether the threat was the direct cause of that accused’s decision to stay? v) Whether a reasonable person with the characteristics of the accused would have been driven to act as the accused did, considering the opportunities that the accused had to escape? In each case it was for the prosecution to disprove, to the criminal standard, the suggestion in issue. 19. As already recorded, all the Appellants were convicted. THE JUDGE’S RULING AND THE GROUND OF APPEAL 20. Very properly, there was a discussion between the Judge and counsel on the Judge’s written steps to verdict. Counsel for the Appellants submitted that the Judge should direct the jury that they should consider the threat of a continuing false imprisonment which abated only when they complied with the instructions they had been given. 21. The Judge ruled that the facts of the Appellants’ cases were that they had been compelled to go into the premises, having been duped because of a threat. The false imprisonment of which they complained had only arisen after the threat. If the jury rejected the contention that they had been threatened, the Judge questioned the relevance of the false imprisonment thereafter. There had been threats of violence but it was only after those threats that they were told “no violence will occur if you stay here”. The Judge determined that that was not a threat of false imprisonment. 22. The ground of appeal advanced on behalf of Nguyen (and Mai ) was that the Judge had misdirected the jury on the law of the defence of duress; he should have directed them that the threat could be one of unjustified imprisonment as well as death and serious injury. THE RIVAL CASES ON THE APPEAL 23. We were most grateful to Mr. Unwin, for the Appellants Nguyen and Mai and Mr. Perry QC for the Respondent, for their excellent submissions. 24. Mr. Unwin’s submissions can be summarised as follows: i) The scope of the defence of duress should extend to false imprisonment. The matter had been left open in the authorities and the Appellants had been entitled to the most favourable permissible direction. It was logical to include the threat of false imprisonment but arbitrary and anomalous to exclude it; the true cut-off was between threats to the person and threats to property. Extending the defence in this way would not open the floodgates or offend public policy; other strict limitations on the defence would remain, including, in particular, the requirement that a reasonable person would have been driven to act in the way the defendant in question had acted. ii) There was material before the jury upon which they could have concluded that the Appellants had been threatened with false imprisonment. iii) Had the Jury been so directed, they might have reached a different conclusion as to the Appellants’ guilt. Accordingly, the convictions were unsafe. iv) The position contended for by the Appellants would better ensure that domestic (English) criminal law implemented the United Kingdom’s obligations of protecting victims of trafficking contained in the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) (“the Trafficking Convention”) and, in particular, in Art. 26 thereof. 25. Mr. Perry QC’s submissions proceeded as follows. First, it was a requirement of the defence of duress that there must have been the threat of death or serious injury. False imprisonment without such a threat would not suffice. A line had to be drawn somewhere and there were good policy reasons for confining the defence within narrow bounds. The defence of duress was particularly difficult for the prosecution to investigate and disprove beyond reasonable doubt. Secondly, whatever the precise limits of the defence of duress – and even assuming that it extended to false imprisonment – on the facts of the present case, the conviction was in any event safe. Realistically, only one verdict had been open to the jury. Thirdly, there was nothing in the Trafficking Convention or in the decision of R v N (supra) which assisted the Appellants’ case; to the contrary, this Court, in both R v N and the earlier decision of R v M(L) and others [2010] EWCA Crim 2327 ; [2011] 1 Cr App R 12 had rejected the submission now advanced by the Appellants. 26. It is convenient to deal with the matter under the following broad headings: i) Issue (I): The safety of the conviction; ii) Issue (II): The scope of the defence of duress; iii) Issue (III): The Trafficking Convention. ISSUE (I): THE SAFETY OF THE CONVICTION 27. We agree with Mr. Perry QC: whatever the precise scope of the defence of duress, the Appellants’ convictions were safe. The evidence against the Appellants was overwhelming. Even assuming that the threat of false imprisonment was capable of sufficing to found the defence - without the threat of death or serious injury - and that the Judge erred in not giving the jury a direction to this effect, realistically, we are sure that the jury’s answer must have been the same. In short, on the facts of the present case and on the assumptions as to law most favourable to the Appellants, the defence of duress was fanciful. Our reasons follow. 28. First, the Appellants’ interviews were telling. Nguyen provided no details of the defence, other than to say that she had been threatened with a knife. It was only when giving evidence that Nguyen added that “they” had threatened to kill her, if she “left or tried to leave”. In interview, Mai said nothing about duress at all. 29. Secondly, the factual picture presented to the police when they forced entry to the premises, was striking indeed: i) The Appellants had some of their possessions within the premises, including clothes and mobile telephones. In particular, it may be noted that Nguyen herself was using her mobile telephone, as described earlier. ii) The kitchen area was stacked with food and drink. iii) A key to the premises was found in the living area. It is fair to say that the Appellants denied knowledge of its existence; however, it would be remarkable for a key to have been left there by the Appellants’ “captors”, had they been seeking to detain the Appellants against their will. iv) A small area within the premises had been set up as a shrine for religious worship. v) By the time of their arrest, the Appellants had been in the premises for several days and had been paid for their work – albeit they maintained that they had originally been recruited for cleaning work. 30. Thirdly, the prosecution must have made the jury sure that the Appellants’ defence of duress, based on the threat of violence, was to be rejected. This conclusion follows, inescapably, from the jury’s verdict. If the threat of violence did not suffice, we are unable to see how, realistically, a defence of duress based on subsequent false imprisonment might have succeeded; the Appellants’ assertion of false imprisonment could hardly have gained in strength as a defence if the threat of death or serious personal injury was removed from the equation. It is in any event to be appreciated that questions iii) and v) posed by the Judge (see at [18] above), raised for the jury’s consideration the (alleged) incarceration of the Appellants as reinforcing the threat of violence (summing-up, at p.27). The Judge’s written directions (or questions) contained in his “Route to Verdict” document (especially under Question 4) were to the same effect and he dealt with this topic in some detail in his summing–up, at pp. 31 and following. 31. For these simple and straightforward reasons, based entirely on the facts of the case, whatever the precise scope of the defence of duress, we entertain no doubt as to the safety of the conviction. It follows that the appeals must be dismissed. Issue (II) is necessarily academic and, as it transpires in the light of the arguments addressed to us, so too is Issue (III). We accordingly deal with those Issues briefly and, in the case of Issue (II), provisionally only. ISSUE (II): THE SCOPE OF THE DEFENCE OF DURESS 32. (1) Overview: Notwithstanding the obvious interest in the point and, if we may say so, the commendable industry of both counsel, it does not seem right to express a concluded view on this Issue in a case where it is unnecessary to do so. 33. The furthest we are prepared to go and essentially in deference to the arguments addressed to us, is to express a provisional view: namely, that we would have been strongly disinclined to accept that a threat of false imprisonment suffices for the defence of duress, without an accompanying threat of death or serious injury. We would be minded to regard any such widening of the defence as ill-advised. While accepting that the Issue has not been resolved by authority, our provisional view is supported by pointers in the more recent authorities and, more especially, by considerations of policy there highlighted. Brief amplification follows. 34. (2) Authority: Our starting point is the well-known passage in the (dissenting) speech of Lord Simon of Glaisdale in DPP v Lynch [1975] AC 653 , at p.686, referred to with approval by Lord Mackay of Clashfern in DPP v Howe [1987] AC 417 , at p.453. Lord Simon said this: “ ….it is convenient to have a working definition of duress – even though it is actually an extremely vague and elusive juristic concept. I take it for present purposes to denote such [well-grounded] fear, produced by threats, of death or grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as overbears the actor’s wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it. I am quite uncertain whether the words which I have put in square brackets should be included in any such definition.” This uncertainty has been echoed subsequently: see, R v Graham (Paul) [1982] 1 WLR 294, at p. 297; The Crown Court Benchbook (March 2010), at p.306, fn. 566 and Archbold (2012), at paras. 17-120 – 17-121. Thus, although it is settled that the threat of injury to property is not enough, the question of whether the threat of false imprisonment suffices – absent a threat of death or serious injury – remains open. 35. Mr. Unwin placed some reliance on R v Steane [1947] 1 KB 997 . That case concerned a defendant charged with doing an act likely to assist the enemy with the intent to do so, by broadcasting in Germany during World War II. The defendant admitted the broadcasting but gave evidence that this was done under the pressure of threats and of beatings up and with a view to saving his wife and children (who were in Germany) from a concentration camp. Lord Goddard CJ observed (at p.1005) that: “ Duress is a matter of defence where a prisoner is forced by fear of violence or imprisonment to do an act which in itself is criminal.” However, the conviction was quashed on grounds unconnected with duress, so that Lord Goddard’s observation was plainly obiter. Moreover, insofar as the imprisonment in question involved a concentration camp, it cannot in our view be divorced from the threat of death or serious injury. 36. For completeness, in R v Bourne (1952) 36 Cr App R 125 , at p.129, Lord Goddard CJ again referred to “threats of imprisonment or violence” but, here too, the observation was obiter . 37. On the other side of the line, in R v Abdul-Hussain and others [1998] EWCA Crim 3528, Rose LJ (Vice President), at p.11, spoke of “Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility” as an “essential element” of both duress and duress of circumstances. However, given the issues in that case, this observation too cannot be regarded as ratio. 38. More recently, in R v Z [2005] UKHL 22 ; [2005] 2 AC 467 , Lord Bingham of Cornhill considered the defence of duress in some detail, at [17] et seq . The relevant issue concerned the voluntary association of the defendant with known criminals, so Lord Bingham’s observations were obiter . That said, the tenor of those observations and the respect they command, point against the threat of false imprisonment sufficing. Lord Bingham underlined (at [18]) that duress, if established, excused what would otherwise be criminal conduct. The defence was “peculiarly difficult” (at [20]) for the prosecution to investigate and disprove beyond reasonable doubt. Against this background, Lord Bingham went on to say (at [21]): “ Having regard to these features of duress, I find it unsurprising that the law in this and other jurisdictions should have been developed so as to confine the defence of duress within narrowly defined limits….. ” Of direct relevance to the present Issue, one of those limitations was expressed as follows ( ibid ): “ To found a plea of duress the threat relied on must be to cause death or serious injury……” 39. Although not directly relevant in Z , it is noteworthy that Lord Bingham’s speech contains no mention of the threat of false imprisonment possibly sufficing. It is plain that Lord Bingham had Lord Simon’s speech in Lynch (supra ) well in mind, as he quoted other passages (than that set out above) with approval (at [22]): “ ‘your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers’ (p 688). ‘A sane system of criminal justice does not permit a subject to set up a countervailing system of sanctions or by terrorism to confer criminal immunity on his gang’ (p 696).” Lord Bingham expressed his own inclination ( ibid ): “…where policy choices are to be made, towards tightening rather than relaxing the conditions to be met before duress may be successfully relied on.” 40. Finally, Lord Bingham observed ( ibid ) that even where the strict requirements of duress were not satisfied, a Judge could “adjust his sentence” to reflect the defendant’s true culpability. 41. In M(L) (supra ), referred to in more detail below in connection with the Trafficking Convention, Hughes LJ (Vice President), when outlining the defence of duress, spoke only of a “threat of death or serious injury” (at [8]). Granted that Hughes LJ was not there concerned with the present Issue, it is nonetheless of significance that in a trafficking context, he made no mention of the possibility of a threat of false imprisonment sufficing. 42. For our part, while repeating that this Issue cannot be regarded as settled by authority, we note the trend, in the observations of Rose LJ, Lord Bingham and Hughes LJ, to speak of the relevant threats as being those of death and serious injury. There is certainly nothing in any of the judgments in Abdul-Hussain, Z or M(L) , to lend any encouragement to widening the defence by treating the threat of false imprisonment as sufficing. 43. Given the provisional nature of our judgment on this Issue, we do not think it necessary to deal with either the comparative material or the views expressed by the Law Commission, to which we were referred. 44. (3) Policy: In our judgment, even if only provisionally, policy considerations point strongly towards confining the defence of duress to threats of death or serious injury and against extending the defence to treat threats of false imprisonment as sufficing. Our reasons follow. 45. First, there are the difficulties of proof alluded to by Lord Bingham in Z (supra) , at [20]. These should not be underestimated. If once the evidence is sufficient to permit the defence to be raised, the burden is on the prosecution to disprove it to the criminal standard. In practical terms, the defence may consist of little more than assertions, only expanded upon at trial. It would be all too easy to assert a threat of false imprisonment, especially if it is unnecessary for any such assertion to be underpinned by a threat of death or serious injury. 46. Secondly, having regard to Lord Simon of Glaisdale’s words of warning as to the ramifications of the defence of duress, highlighted by Lord Bingham in Z (supra) at [22] and set out above, it must be right to hesitate before permitting a widening of the defence and thus its more ready availability. 47. Thirdly, with respect to Mr. Unwin, we are not persuaded that the other limitations of the defence would furnish a sufficient safeguard against unwarranted over-reliance on the defence, if once broadened to encompass the threat of false imprisonment without the threat of death or serious injury. 48. Fourthly, confining the defence within its present relatively narrow limits does not preclude doing justice when sentencing, to reflect a defendant’s true culpability – even if, on the facts, falling short of the requirements for reliance on duress: see Z (supra ), at [22]. 49. Accordingly, the policy considerations, foreshadowed in authority, point strongly towards confining the threats necessary to establish duress to those of death or serious injury. For completeness, we are not at all persuaded that it would be illogical to draw the line there but, however that may be, we would in this area place the requirements of practical policy ahead of those of strict logic. All that said, as already explained, our view remains provisional rather than final. ISSUE (III): THE TRAFFICKING CONVENTION 50. This Court was anxious to await the judgment in N (supra) , dealing as it did with the Trafficking Convention, before expressing any conclusion on these appeals. In the event, it has not been contended on behalf of the Appellants that anything said in N could have an impact on our conclusion under Issue (I), where we assumed in the Appellants’ favour that the scope of duress extended to false imprisonment and were nonetheless satisfied of the safety of the convictions. For the avoidance of doubt, any such submission would have been hopeless. What remains is the Appellants’ submission that the United Kingdom’s obligations under the Trafficking Convention point in favour of the Appellants’ submissions under Issue (II) as to the scope of the defence of duress. With respect, we do not agree. Although this Issue too is academic it may be helpful if we state our view: in our judgment, for the reasons which follow, the Trafficking Convention provides no assistance to the Appellants’ submissions in that regard. Put another way, the Trafficking Convention sheds no light on the true scope of duress. 51. Art. 26 of the Trafficking Convention provides as follows: “ Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.” 52. As explained by Hughes LJ in M(L) (supra) , at [7], Art. 26 is implemented in this jurisdiction through the common law defences of duress and necessity, specific rules for the guidance of prosecutors and, if need be, the Court’s power to stay proceedings as an abuse of process. With regard to duress, Hughes LJ said this (at [8]): “ The defence of duress and/or necessity (duress of circumstances) may be in question where an offence has been committed by a trafficked victim whose case that she was coerced into committing it. There is no special modification of the general law relating to these defences…. ” 53. Importantly for present purposes, Hughes LJ went on (at [13]) to invite careful attention to Art. 26: “ It is necessary to focus upon what art. 26 does and does not say. It does not say that no trafficked victim should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims. ” It followed, as Hughes LJ at once observed (at [14]), that Art. 26 was “fact-sensitive in every case”. One category of cases was the following (at [14 (iv)]): “ there is normally no reason not to prosecute, even if the defendant has previously been a trafficked victim, if the offence appears to have been committed outwith any reasonable nexus of compulsion (in the broad sense) occasioned by the trafficking, and hence is outside art. 26…” 54. We turn to N (supra) . Giving the judgment of the Court, Lord Judge CJ said this: “ 12.….. Although expressly disavowed it was difficult to avoid the impression that one of the themes implicit in the submissions…..was the proposition rejected by this court in ….[ M(L) ]….that once it is demonstrated that an individual has been or may have been trafficked, then he or she should not be prosecuted for crimes committed within that context. The logical conclusion of such elision would be to create a new form of immunity (albeit under a different name) or to extend the defence of duress by removing the limitation inherent in it. Whatever form of trafficking is under consideration, that approach to these problems….would be fallacious. 13. The language of Article 26 is directed at the sentencing decision rather than the decision to prosecute. It does not provide that penalties should not be imposed on victims of trafficking in a broad general way; the possibility of not imposing penalties is related to criminal activities in which the victims of trafficking have been compelled to participate in circumstances in which the defence of duress is not available.” 55. Having referred, approvingly, to M(L) (supra) , Lord Judge observed (at [21]) that the proper implementation of the United Kingdom’s obligation under Art. 26 “ …does not involve the creation of new principles. Rather, well established principles apply in the specific context of the Article 26 obligation, no more and no less.” 56. Pulling the threads together: i) By its nature, trafficking may give rise to a consideration of whether defences such as duress or duress of circumstances are available. We can, however, find nothing in either M(L) or N , which has any bearing whatever on the true scope of the common law defences of duress or duress of circumstances; per contra , the observations of Hughes LJ in M(L) , at [8], rejected any “special modification” of these defences. ii) As emphasised by both Hughes LJ, in M(L) and Lord Judge CJ in N , Art. 26 confers no blanket immunity and must be applied on a fact sensitive basis. Furthermore, as underlined in N , its implementation calls for no new principles but rather the application of well established principles. iii) Substantive defences aside, those well established principles relate to the application, in the context of Art. 26, of (1) the discretion to proceed or continue with a prosecution; (2) the jurisdiction to stay proceedings for abuse of process; and (3) the sentencing decision. iv) In an appropriate case, there is thus ample scope, to give effect to Art. 26 where the defence of duress is not available. So, for example, it may be inappropriate to proceed with a prosecution of a defendant who cannot raise the defence of duress but nonetheless “falls within the protective ambit of Article 26”: N, at [21]. 57. For completeness, nothing in the Guidance issued by the Crown Prosecution Service on Human Trafficking and Smuggling, to which Mr. Unwin drew our attention, dissuades us from our conclusions thus far. With respect, valuable though this Guidance is, it constitutes guidance not authority. Further, insofar as it does make mention of false imprisonment, having regard to the “wider factors” in the context of trafficking, there may well be good sense in prosecutors keeping in mind whether a victim of trafficking has been held captive; regardless of their impact on any substantive defence, such considerations may well bear on the decision to prosecute and the question of punishment. Still further, it is not to be overlooked that in the trafficking context, as elsewhere, the threat of violence may well be reinforced by incarceration.	{"ConvCourtName":["Crown Court at Snaresbrook"],"ConvictPleaDate":["2011-03-18","2011-03-21"],"ConvictOffence":["cultivating cannabis (count 1)","possessing criminal property (counts 3, 4, 5)"],"AcquitOffence":[""],"ConfessPleadGuilty":[],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Snaresbrook"],"Sentence":["Dao: 3 years’ imprisonment on count 1, 6 months’ imprisonment on count 3 concurrent, less time spent in custody on remand, forfeiture order","Mai: 3 years’ imprisonment on count 1, 6 months’ imprisonment on count 4 concurrent, less time spent in custody on remand, forfeiture order","Nguyen: 3 years 4 months’ imprisonment on count 1, 9 months’ imprisonment on count 5 concurrent, less time spent in custody on remand, forfeiture order"],"SentServe":["Concurrent"],"WhatAncillary":["forfeiture order in respect of the money seized from each appellant"],"OffSex":["Mixed"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["police found appellants at scene","cannabis factory and cash seized","mobile phone evidence","interviews with appellants"],"DefEvidTypeTrial":["defendants' interviews and testimony","assertions of duress and threats"],"PreSentReport":[],"AggFactSent":["offence involved a fully functioning cannabis factory","significant value of cannabis recovered (£42,000)"],"MitFactSent":["all appellants had been of good character"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["trial judge misdirected jury on the law of the defence of duress; should have directed that the threat could be one of unjustified imprisonment as well as death and serious injury"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["evidence against the appellants was overwhelming","defence of duress was fanciful on the facts","even if the law was as contended by appellants, the jury would have reached the same conclusion","convictions were safe"]}
Case No: 2010/4075/C5 Jagprit Randhawa 2010/4072/C5 Jaspal Singh (AKA Chahal) 2010/4241/C5 Charanjit Singh Chahal 2011/2302/C5 Harbans Singh 2011/2585/C5 Philip Mallourides 2011/2450/C5 Bhabdeep Singh Chahal Neutral Citation Number: [2012] EWCA Crim 1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM the Crown Court at Birmingham T20077898 HHJ Inman and HHJ Mayo Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/01/2012 Before : LORD JUSTICE HOOPER MR JUSTICE HOLROYDE and MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - - - - - Between : JAGPRIT RANDHAWA JASPAL SINGH CHAHAL CHARANJIT SINGH CHAHAL PHILIP MALLOURIDES BHABDEEP SINGH CHAHAL Appellants - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - Mr Michael Wood QC and Mr Geoffrey Payne for Jagprit Randhawa Mr George Carter-Stephenson QC for Jaspal Singh Chahal Mr David Spens QC for Charanjit Singh Chahal Mr Charles Bott QC and Mr Ayaz Qazi for Philip Mallourides Mr Henry Blaxland QC for Bhabdeep Singh Chahal Mr Andrew Munday QC and Miss S Ellis for the Respondent Hearing dates : 15th December 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr JUSTICE HOLROYDE: 1. There are before the court five applications for leave to appeal against sentence. Each of the applicants was convicted by a jury of a conspiracy to cheat the public revenue, the nature of that conspiracy being what is commonly referred to as a MTIC carousel fraud relating to the VAT on sales of mobile phones during 2005. Three of the applicants were convicted in June 2010 at the conclusion of a trial before HHJ Inman QC and a jury. Of the remaining two applicants, one had been severed from the first trial. In relation to the other, the jury at the first trial had been unable to agree upon a verdict. There was a second trial before HHJ Mayo, which ended in March 2011 in the conviction of those applicants. 2. The five applicants, in the order in which they were originally indicted, are as follows: a. Bhabdeep Singh Chahal (also referred to as Bobby Chahal) was born on 09.07.79 and so is now aged 32. He was convicted at the second trial and sentenced to 14 years’ imprisonment. HHJ Mayo initially ordered that he be disqualified as a director for 20 years. It was subsequently brought to the attention of the judge that by virtue of s2(3) (b) of the Company Directors Disqualification Act 1986 , the maximum permissible period of disqualification was 15 years, and in circumstances which we will consider shortly the judge varied his order by reducing the period of disqualification to one of 14 years. This application for leave to appeal against sentence was referred to the full court by the single judge solely because of a concern about the way in which that variation was made. b. Charanjit Singh Chahal (also referred to as Charlie Chahal) was born on 08.12.76 and so is now aged 35. He was convicted at the first trial and sentenced to 15 years’ imprisonment. He was initially disqualified as a director for 17 years, but that period was later varied to 14 years, and subsequently varied again to 12 years. No point arises in that regard. He renews his application for leave to appeal against sentence following refusal by the single judge. c. Jaspal Singh Chahal was born on 04.09.79, and so is now aged 32. He was convicted at the first trial and sentenced to 10 years’ imprisonment. The judge ordered that he be disqualified as a director for 12 years. He renews his application for leave to appeal against sentence following refusal by the single judge. d. Jagprit Randhawa was born on 30.04.78, and so is now aged 33. He was convicted at the first trial. He too was sentenced to 10 years’ imprisonment, and disqualified as a director for 12 years. He renews his application for leave to appeal against sentence following refusal by the single judge. e. Philip Mallourides was born on 10.03.69 and so is now aged 47. He was convicted at the second trial, and sentenced to 6 years 6 months imprisonment. The judge ordered that he be disqualified as a director for 10 years. He renews his application for leave to appeal against sentence following refusal by the single judge. 3. Bhabdeep Chahal and Charanjit Chahal are cousins. In the spring of 2004 they jointly committed offences of conspiracy to launder the proceeds of criminal conduct, and conspiracy to use false instruments. In August 2008 (after the period of this conspiracy) they were both convicted of those offences, and sentenced to terms of imprisonment. They had no other previous convictions. None of the other three applicants had ever previously been convicted of any offence. 4. We do not think it necessary to go into any detail as to the nature of the conspiracy. It has been described in an earlier judgment in respect of the applications for leave to appeal against conviction which we have considered. It was of a kind which has become unhappily familiar to the courts over a number of years, involving rapid sequences of wholly artificial transactions relating to the sale and purchase of mobile phones, the true purpose of which - as the two juries found – was to enable those involved to cheat HM Revenue out of enormous sums of money. 5. Each of the applicants submits that his sentence of imprisonment was manifestly excessive in length. Save for the issue which arises in the case of Bhabdeep Chahal, no grounds of appeal are put forward against the periods for which each applicant respectively was ordered to be disqualified from holding any directorship. 6. The grounds of appeal against the sentences of imprisonment raise a number of points which are common to all of the applicants. First, it is submitted that both the starting point which HHJ Inman adopted in respect of Charanjit Chahal, and the starting point which HHJ Mayo adopted in respect of Bhabdeep Chahal, were excessive when compared with those passed in other cases of MTIC fraud, and that as a consequence the starting points in respect of the other applicants were also too high. This issue became the subject of detailed submissions before us, in particular by Mr Blaxland QC on behalf of Bhabdeep Chahal, and we are grateful for the assistance we received from counsel. 7. Secondly, each applicant submits that his own role in the conspiracy has been overstated by the judge, with the result that his sentence is too high. 8. As we have said, the applicants Randhawa, Singh and Mallourides were of previous good character. Each of them submits that the judge failed to give sufficient weight to that and to other features of his personal mitigation. 9. It is appropriate in our view to begin with a reminder that each of the applicants was convicted on overwhelming evidence of being a party to the conspiracy charged in the indictment. It is important to remember that the judges in passing sentence had to have regard to the overall scale of the conspiracy as well as to the individual role of each applicant within that conspiracy, and to the amount which the conspirators intended to obtain as well as the amount which they actually obtained. It was rightly described by both trial judges as a conspiracy on a vast scale. 10. HHJ Inman noted that the combined sum of fraudulent outputs of the companies controlled by the applicants who were tried before him was in excess of £300 million. Although those companies were for the most part used as buffer companies in the fraudulent carousels, each of them did in addition act on occasions as the exporter of the goods concerned, and thus made a dishonest claim for repayment of VAT. The judge indicated that during the indictment period of less than a year, the three companies of which Bhabdeep and Charanjit Chahal were directors had made VAT repayment claims approaching £16m, of which about £5m had been paid by the Revenue before their arrest. The company with which Randhawa and Singh were concerned had reclaimed VAT of some £3.2m, of which they had received about £2.3m. The judge observed that those figures related only to the transactions in which the applicants’ companies acted as exporters, and did not include their sales to other fraudulent companies which made the exports. 11. Although it was not possible to calculate with precision the total losses to the revenue, HHJ Inman (in his sentencing remarks at p5B) concluded: “On the basis of that evidence, I am sure this was a vast conspiracy designed to cheat the revenue of tens of millions of pounds, and by the time of your arrest had cost the revenue tens of millions of pounds. The agreement extended throughout Europe, the Middle East and the Far East” 12. HHJ Mayo similarly referred to the fact that the invoices total for the three Chahal companies was over £258 million. He went on to say (at p2C of his sentencing remarks): “The starting point in attempting to assess the loss must of course, in my judgment, be the total VAT reclaims of those three companies … just under £19 million over the period of this indictment, namely 2005; although for reasons which all present here understand, that cannot be said to be the final figure of loss either occasioned by or intended by the parts played by [the applicants before him] in this conspiracy”. 13. It should be noted that in the period between the two trials the investigating officers had continued their efforts to quantify the loss caused to HM Revenue. At the hearing before us, it was helpfully agreed between counsel that in relation to the conspiracy as a whole the identifiable reclaims of VAT amounted in total to £18.9 million, of which HM Revenue had actually repaid £7.8 million. Although those figures differ to some extent from the corresponding figures to which each of the judges below referred, it is not suggested that the difference is of any significance to the outcome of these applications. 14. On behalf of the prosecution, Mr Munday QC pointed out that in a sophisticated carousel fraud such as this, the reclaims of VAT are not always made by any of the companies which can be associated with a defendant: artificial trade transactions may be created in order to achieve a position in which an apparently unrelated company was able to reclaim VAT. The purpose of such an arrangement, as Mr Munday explained, is to minimise the risk that HM Revenue might be able to link the reclaim to a trader suspected of fraud, and on that ground refuse to pay it. The possibility therefore arises that reclaims of VAT may successfully be made by apparently “clean” traders who are not identified as participants in a suspected fraud. Hence our reference above to the value of the identifiable reclaims, by which we mean the reclaims identifiable as being made by a trader involved in the conspiracy. 15. Submissions have been made by Mr Blaxland (and adopted by other defence counsel) to the effect that HHJ Inman was in error in his assessment of the overall scale of the conspiracy, and that his error led to an unduly high starting point for sentence which was wrongly adopted by HHJ Mayo. The criticism of HHJ Inman is that in reaching his total of over £300 million he wrongly added up all the transactions made by the conspirators, overlooking the fact that in many instances they were artificially selling to and buying from one another, and so arrived at a total figure which far exceeded both the real loss to HM Revenue and the real gain to the conspirators. 16. We see considerable force in those submissions. Those who engage in a fraud of this nature have as their dishonest aim the obtaining of public money by way of reclaims of VAT. The carousel system of artificial transactions by which that aim is achieved will inevitably generate a large number of intermediate transactions, each of which should in principle be included in the calculation of the VAT returns completed by the traders concerned. But in broad terms, many of those returns will substantially cancel one another out, and will in themselves give rise at most to a modest reclaim of VAT. The substantial loss to HM Revenue, and the substantial gain to the fraudsters, come at the end of each sequence of artificial transactions. 17. For that reason, we accept the submission that the total value of identifiable VAT reclaims made or intended to be made, and the total amount actually paid out by way of VAT reclaim, will in most cases provide the most reliable starting point for sentencing. It will also provide the most reliable basis for a comparison with sentencing decisions in other cases, though we would emphasise that sentencing decisions are inevitably fact-specific and that a “like for like” comparison between cases will often be particularly difficult in frauds of this nature. However, it should not be thought that the total value of the transactions is irrelevant: on the contrary, it will assist the court to gauge the overall size, complexity and sophistication of the conspiracy. Nor should it be thought that the total value of reclaims and repayments will always be a reliable indication of the true gain to the fraudsters or the true loss to HM Revenue: for the reasons which we have mentioned above, a sophisticated carousel fraud may involve successful VAT reclaims which HM Revenue are unable to identify as linked to the conspirators. There is, plainly, a risk that a focus on the total amount of identifiable VAT reclaims and repayments might understate the true seriousness of a particularly sophisticated conspiracy. As a matter of principle, therefore, it does not seem to us to be possible to say that the courts must invariably focus upon the amount of VAT reclaimed and repaid: there may be circumstances in which that approach will not assist the court in its assessment of the seriousness of the crime. But in general, we are persuaded that such a focus will best assist the court both to assess the seriousness of a particular case and to set it into the context of sentencing decisions in other cases. We return to this point below. 18. In their respective sentencing remarks, each of the two judges considered the individual roles of the applicants within the overall conspiracy. Each of them did so with the benefit of having heard all the evidence in a long trial. 19. In relation to Charanjit Chahal, HHJ Inman found that his involvement included taking an active role in arranging the introduction of finance to assist the fraud, and concluded that he was “…at the very heart of this fraud, along with others both here and in Europe, orchestrating it, transferring funds both to maintain the fraud and to skim part of it off and to recruit others”. The judge further concluded that on the evidence he had heard Charanjit Chahal’s level of involvement and responsibility was equal to that of his cousin and co-director Bhabdeep Chahal. 20. It is submitted on Charanjit Chahal’s behalf that the judge was wrong to take that view, because the evidence clearly demonstrated that it was Bhabdeep, not Charanjit Chahal, who was in control of the fraudulent activity. We reject that submission. We can see no basis on which there could be any challenge to the conclusion reached by the judge after weeks of listening to the evidence. It may well be that there were others, not arrested or charged, who could be said to be even higher than Charanjit Chahal in the chain of organisation; but the judge was nonetheless entitled to make the finding he did as to the importance of Charanjit Chahal’s role. 21. So far as Randhawa and Singh are concerned, HHJ Inman noted that their company Letting Solutions UK Ltd played an important role in the conspiracy, including making some of the exports. He described that role as follows: “What was revealed in the evidence is that the vast majority of fraudulent transactions you entered into were with companies other than a Chahal company – in other words, you were not simply a subservient company to those run by Charanjit Chahal: you were involved in circles of transactions which did not have to involve him or his companies” (p8C). 22. The judge pointed out that Randhawa and Singh’s company had received warnings from the Revenue about the seriousness of MTIC fraud, but they had carried on regardless. He concluded: “[You] were heavily involved in the running of this conspiracy. You were also not only well aware of its scope but each personally involved in the detailed finances of it and recipients of the overall profits … I consider, however, that your role was less overall than that of Charanjit Chahal and that you would have joined in what he and his co-director were doing rather than the other way round. I accept, therefore … that Letting Solutions UK was not set up for the purposes of fraud and that you joined in an existing conspiracy. But, as I have said, having joined it I am quite satisfied that thereafter you took a lead, not a subservient, role in it” (p10B). 23. Again, those conclusions are disputed by the applicants. Both submit the judge has overstated their respective roles. Again, however, we can see no basis on which there could be any challenge to the careful findings made by the judge at the end of a long trial. 24. HHJ Mayo concluded that Bhabdeep Chahal was an equal partner with his cousin Charanjit Chahal. They were among the controlling minds of the conspiracy. He noted that Bhabdeep Chahal had been arrested in 2004 in relation to the allegations which eventually resulted in his conviction in 2008, and was therefore on bail during the entirety of this conspiracy. As the judge observed “This makes his involvement in this fraud even more brazen”. We are not persuaded that there was any arguable error in that assessment of Bhabdeep Chahal’s role. 25. A specific point is taken on Bhabdeep Chahal’s behalf that in the course of his sentencing remarks HHJ Mayo commented that it was entirely the applicant’s fault that he was tried 12 months after his co-conspirators, because he had sought to derail the trial process by dismissing his legal representatives shortly before the first trial, and by thereafter refusing to accept service of the prosecution papers. We see force in counsel’s complaint that he had no notice that the judge was going to make such a finding, and therefore no opportunity to make submissions as to why the finding was wrong. However, we are not persuaded that any error by the judge in this regard had any significant effect on the sentence which he passed. 26. The applicant Mallourides ran a company used by other conspirators as a freight forwarder. The judge found, and was entitled to find, that his company “was certainly established for a wholly fraudulent purpose”, nearly all of its trade being in mobile phones. The judge accepted counsel’s submission that only about one-eighth of the overall corrupt trade of the conspiracy passed through Mallourides’ company; but it seems to us that that point is of little assistance to Mallourides in the light of the judge’s finding that his business was wholly fraudulent from its inception. At p5G of his sentencing remarks, the judge added that Mallourides recruited staff, set up premises, established a document handling system dedicated almost entirely to MTIC fraud, knew that the goods were circulating to and from the continent, and supplied a vital service to his co-conspirators. He observed that Mallourides hid behind his respectability and cool professionalism to play a pivotal role. 27. Again, we can see no basis on which any of those conclusions of HHJ Mayo could successfully be challenged after the judge had heard all the evidence in the course of the trial. We have considered the other points made to us by Mr Bott QC on behalf of this applicant, but we are not persuaded that there is any matter of mitigation which the judge failed properly to take into account. 28. A further ground of appeal advanced on behalf of those convicted at the first trial relates to the refusal of HHJ Inman to make any reduction in the sentences on the ground of delay. It is submitted that almost 5 years passed between the arrest of the applicants and their eventual sentence, that the delay had been largely due to the prosecution and was not the fault of any defendant, and that their sentences should have been reduced for that reason. Reliance is placed on the cases to which we refer below, because many of the offenders in those cases did have the benefit of a reduction on that ground. The judge had that point well in mind, but correctly observed that the giving of a discount on grounds of delay was a matter for the discretion of the sentencing judge. In R v Castillo [2010] EWCA Crim 658 Griffith Williams J, giving the judgment of the court, said at para 25: “Delay of itself may not justify a discount from sentence. In cases such as these it is inevitable that there will be delay. Much of that delay is the responsibility of the offender who took part in skilful and criminally-minded enterprises designed to frustrate the authorities in trying to detect the crime”. 29. In the circumstances of this case, we regard this ground of appeal as unarguable. The applicants were of course entitled to have their trial. Their sentences were not a day longer because they did so. But having contested the trial, they have no ground for asking that their sentences be reduced because the proceedings took a long time. This fraud was deliberately made as complicated as possible in order to make it as hard as possible for the prosecuting authority to obtain the necessary evidence and to prove their guilt. That was the whole purpose of the use of buffer companies. We can see no ground on which it could be argued that the applicants, having been knowing parties to that deliberate complexity, can now seek a reduction in their sentences. 30. It follows that in our judgment each judge was entitled to reach the conclusions he did as to the amount of the identifiable VAT reclaims and repayments made in the course of the conspiracy, and as to the individual roles of these applicants within that conspiracy. We turn to consider whether it can be argued that the judge nonetheless took too high a starting point, or otherwise fell into error, in determining the appropriate sentences. 31. A number of decided cases have been drawn to our attention. On behalf of Bhabdeep and Charanjit Chahal, it is submitted that their sentences of 14 and 15 years were far too high, and that a sentence of less than 10 years was appropriate in the light of AG’s Reference No 136 of 2007, R v Johnson & Others [2007] EWCA Crim 2837 , R v Glover, Cox and Issitt [2008] EWCA Crim 1782 , and R v Castillo [2010] EWCA Crim 658 . Both submit that their respective positions cannot be equated with that of the appellant Hening in R v Hening & Senatore [2008] 1 Cr App R (S) 54 , for whom a sentence of 15 years’ imprisonment was upheld in this court. On behalf of Randhawa and Singh, it is submitted that the sentences of 10 years were too high and that the appropriate range was 6 – 8 years in the light of AG’s references nos 88, 89, 90 and 91 of 2006, R v Meehan & Others [2006] EWCA Crim 3254 , [2007] 2 Cr App R (S) 28 . On behalf of Mallourides it is submitted that the starting point should not have exceeded 5 years. 32. We make the following observations. In AG’s references nos 88, 89, 90 and 91 of 2006, R v Meehan & Others , the offenders were men who were not involved in the planning, organisation or running of the conspiracy. That was the category of offender for whom the bracket of 6 – 8 years was appropriate. This court made clear that those who organise the fraudulent activity, in cases involving sums such as the £38 million in that case, must expect sentences well into double figures. 33. In R v Glover, Cox and Issitt , Castillo and Hening this court dismissed appeals against sentences for this type of fraud, or renewed applications for leave to appeal. Thus in each of those cases this court simply found that in the particular circumstances the sentence imposed below was neither wrong in principle nor manifestly excessive. There is a limit to how far any of these applicants can be assisted by decisions of that nature. 34. In Johnson , this court had to consider both an application for leave to appeal against sentence, and an application by the Attorney General for leave to refer that sentence as unduly lenient. The offender had been involved in two MTIC frauds, by which the Revenue had been cheated of very large sums of money. Having considered the several issues which arose in that case, this court neither reduced nor increased a total sentence of twelve and a half years. Hughes LJ, giving the judgment of the court, said of that total sentence (at paragraph 20) “… it could have been longer, but we are quite satisfied that it could not be said to be unduly lenient”. 35. In the course of submissions about those previous decisions of this court, a particular problem emerged. We have indicated above our view that in general, a focus on the total value of identifiable VAT reclaims made or intended to be made, and the total amount actually paid out by way of VAT reclaim, will best assist the court to assess seriousness. On reading the earlier cases, however, it was not apparent whether such a focus had been adopted, and it was therefore difficult to ascertain whether figures quoted in the judgments were the sums reclaimed or the total value of transactions. We therefore reserved our judgment to allow Mr Munday an opportunity to obtain detailed instructions as to the amounts of VAT reclaimed and repaid in earlier cases. 36. It appears from Mr Munday’s researches that in both Johnson and Henning the figures referred to by the court had been calculated by adding up the total amount of VAT which could be identified as having been paid by those who nominally purchased the mobile phones from the missing traders. Plainly, that is not the same basis of calculation as we have felt it appropriate to take as the starting point for sentencing purposes. Some indication of the difficulty of achieving a “like for like” comparison in these cases is given by the submissions made to us in the light of Mr Munday’s researches: Mr Munday submits that if the Johnson and Henning approach were adopted in this case, it would show a loss to HM Revenue of about £48 million, whereas Mr Blaxland submits that such an approach would show a loss of about £35 million. Those contrasting submissions show the difficulty of achieving a true “like for like” comparison, and strengthen us in our view that the starting point which we have suggested above should in future be adopted. 37. We therefore take as our focus the identifiable VAT reclaims totalling £18.9 million and the VAT repayments totalling £7.8 million. Having regard also to the overall scale and sophistication of the fraudulent transactions involved in this conspiracy, we have to consider whether it is arguable that sentences of 14 years and 15 years for Bhabdeep and Charanjit Chahal were manifestly excessive. 38. There are no sentencing guidelines applicable to this case. The guidelines for statutory offences of fraud (carrying a maximum of 10 years’ imprisonment) do not extend to offences of cheating, or conspiring to cheat, the public revenue, for which the penalty is at large. Such offences are reserved for the most serious cases, where a sentence in excess of the statutory maximum for other offences may be appropriate. This is, on any view, a most serious case, in which very large sums of money have been obtained by a sophisticated fraud carried on over a period of nearly a year. 39. In our judgment, the sentences of 15 years for Charanjit Chahal and 10 years for Randhawa and Singh were within the range properly open to HHJ Inman in the light of the findings he had made. Similarly, in our judgment, the sentences of 14 years for Bhabdeep Chahal, and six and a half years for Mallourides, were within the range properly open to HHJ Mayo in the light of the findings he made. It cannot be argued that any of the sentences was manifestly excessive in length. 40. That being so, can it assist Charanjit Chahal to point to the fact that at the second trial HHJ Mayo shared the view of HHJ Inman that the two cousins were equally involved but nonetheless passed a somewhat shorter sentence on Bhabdeep Chahal? It is unfortunate that HHJ Mayo did not expressly state why he did so. In our judgment, there is no necessary reason why HHJ Inman’s sentence, proper in itself, should be altered because of the sentence passed by another judge some 8 months later. We do however think that in a case in which there is every reason to treat the two Chahals in the same way, it is unsatisfactory that they should end up serving different sentences. Without in any way criticising the sentence imposed by HHJ Inman, we think that justice will be done if we reduce Charanjit Chahal’s sentence by one year so that it is the same as that imposed on his cousin. 41. With that exception, we see no reason to interfere with any of the prison sentences imposed. 42. We turn finally to the issue concerning the period of Bhabdeep Chahal’s disqualification as a director. It arose in this way. The 20-year period of disqualification originally ordered was in excess of the jurisdiction of the court. We were informed by Mr Blaxland that the error was subsequently brought to the attention of the court, and it was that which prompted HHJ Mayo to exercise his power under s155 of the Powers of Criminal Courts Act 2000 to vary his order. However, the role of the defence in raising the point was not apparent on the face of the papers considered by the single judge, who was understandably concerned that the applicant had not been given the necessary opportunity to make representations and to attend or to be represented at a hearing in open court. In the light of what Mr Blaxland has told us, that concern can to some extent be allayed. There remains however a concern that there was no opportunity for submissions to be made as to the length of the disqualification which should be imposed by way of variation. Having regard to the decision of this court in Shacklady (1987) 9 Cr App R (S) 258 , and to the provisions of rule 42.4 of the Criminal Procedure Rules 2011, we do not regard any procedural error into which the judge fell as rendering his variation a nullity. It does however give rise to a ground of appeal, and we have come to the conclusion that the period of disqualification should be the same in Bhabdeep Chahal’s case as it is in the case of his cousin. 43. In the result, our decisions are as follows: we grant leave to each of the applicants and (with the consent of their counsel) treat the hearing of the applications as the hearing of the appeals. We grant representation orders for leading and junior counsel who appeared before us. In the case of Bhabdeep Chahal, we allow his appeal only to the extent that we quash the existing period of disqualification from being a director, namely 14 years, and substitute for it a period of 12 years. In the case of Charanjit Singh, we allow his appeal only to the extent of reducing his sentence of imprisonment from 15 years to 14 years, with an order that any days on remand which counted towards his original sentence should continue to count towards our sentence. In all other respects, the appeals fail and are dismissed.	{"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2010-06-01","2011-03-01"],"ConvictOffence":["Conspiracy to cheat the public revenue"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Birmingham"],"Sentence":["Bhabdeep Singh Chahal: 14 years imprisonment (reduced to 14 years director disqualification, then to 12 years)","Charanjit Singh Chahal: 15 years imprisonment (reduced to 14 years), 17 years director disqualification (varied to 14, then 12 years)","Jaspal Singh Chahal: 10 years imprisonment, 12 years director disqualification","Jagprit Randhawa: 10 years imprisonment, 12 years director disqualification","Philip Mallourides: 6 years 6 months imprisonment, 10 years director disqualification"],"SentServe":["Single"],"WhatAncillary":["Director disqualification orders"],"OffSex":["All Male"],"OffAgeOffence":[25,28,25,26,36],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":["HM Revenue & Customs"],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Documentary evidence","Financial records","Expert testimony"],"DefEvidTypeTrial":["Submissions on role and mitigation"],"PreSentReport":["High risk of harm"],"AggFactSent":["Offence on a vast scale","Sophisticated and complex fraud","Large sums of public money involved","Offence committed while on bail (Bhabdeep Chahal)"],"MitFactSent":["Previous good character (for some applicants)","No previous convictions (for some applicants)"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[5],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Starting point for sentence was excessive","Role in conspiracy overstated","Insufficient weight to personal mitigation","No reduction for delay"],"SentGuideWhich":["Company Directors Disqualification Act 1986 s2(3)(b)","Powers of Criminal Courts (Sentencing) Act 2000 s155"],"AppealOutcome":["Allowed in part (Charanjit Singh Chahal: sentence reduced from 15 to 14 years; Bhabdeep Singh Chahal: director disqualification reduced from 14 to 12 years)","Dismissed (all other appeals)"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Sentences were within the range properly open to the sentencing judges","No manifest excess in sentence length","No error in assessment of roles or loss","No ground for reduction due to delay"]}
No. 2011/01059/D1 & 2011/01341/D1 Neutral Citation Number: [2011] EWCA Crim 1235 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 5 May 2011 B e f o r e: LORD JUSTICE PITCHFORD MR JUSTICE TREACY and THE RECORDER OF BIRMINGHAM ( His Honour Judge William Davis QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - R E G I N A - v - CHRISTOPHER MPELENDA MAXWELL ANTWI - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Mr A Wright appeared on behalf of the Appellant Mpelenda Miss T Panagiotopoulou appeared on behalf of the Appellant Antwi Mr J Lachkovic appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T Thursday 5 May 2011 LORD JUSTICE PITCHFORD: 1. This is an appeal against conviction with the leave of the full court. The sole ground of appeal raised on behalf of each of the appellants is that the verdicts of the jury are rendered unsafe by a revelation following an investigation by the Criminal Cases Review Commission that the jury's deliberations were improperly affected by internet research carried out by at least one member of the jury. 2. On Monday 24 January 2011, at Snaresbrook Crown Court, before the Recorder of Redbridge (His Honour Judge David Radford), Maxwell Antwi, Christopher Mpelenda and Robert Russell were charged in an indictment containing four counts. The appellant Antwi was charged alone in count 1 with the offence of kidnapping in that he unlawfully, and by force or fraud, took away Cedric Amoah against his will. All three defendants were charged in count 2 with false imprisonment of Cedric Amoah; in count 3 with blackmail of Cedric Amoah; and in count 4 with assaulting Cedric Amoah, thereby occasioning him actual bodily harm. 3. The jury retired to consider its verdicts at 10.26am on Friday 4 February 2011. They returned to court at 12.45pm to seek assistance from the judge on the meaning of "joint enterprise". They were released for the weekend at 4.25pm and resumed their deliberations at 10.07am on Monday 7 February. At 12.34pm the jury returned to court and delivered their unanimous verdicts of guilty in respect of Maxwell Antwi upon counts 2, 3 and 4. The jury received a direction as to majority verdicts and further retired at 12.38pm. At 2.57pm the jury returned with a verdict of guilty by a majority of 11:1 in respect of Antwi on count 1, and verdicts of guilty by a majority of 10:2 in respect of Mpelenda on counts 2, 3 and 4. The jury could not agree on verdicts in respect of Robert Russell. The jury was discharged and a retrial was ordered in his case. It will be necessary for us to return later in this judgment to other events which occurred on Monday 7 February, the day the verdicts were delivered. 4. At the outset of the trial the learned judge provided the jury with the clearest possible information about the nature of their duties, the hours of sitting, the need for punctuality, their collective responsibility, the requirement for their personal and independent view upon the evidence, and the need to report any untoward event inside or outside their retirement room. The judge could not, in our view, have been more helpful to the jury as they prepared themselves for their duties as judges. 5. As to the prohibition against seeking outside information, the judge said this: "In this world .... we all have access through the internet to various mechanisms for seeking .... information on just about everything there is in life. And we all know about social networking sites and 'Google' and all the other means by which we inform ourselves, or think we are informing ourselves, about matters that arise in the course of our lives. I must direct you in very clear terms .... that it would be wholly wrong and in breach of your oath should you attempt to seek any information about matters that may arise in this trial by any such means. The reason for that is this: It is important firstly that you do adhere to your oath. Any information that is obtained other than in the courtroom would not be known to the parties in the case; they would not therefore have an opportunity of being able to comment or deal with any such information; to correct it, if it was incorrect, or to explain it if it needed explanation. And you cannot always depend upon what is to be found on the internet or any site on the internet as being accurate and true in any event. Also you might have a completely futile and forlorn search for information which probably is not going to be there in any event. But I do emphasise, most importantly, that you must not seek to obtain information by any means whatsoever outside the evidence that will be presented to you in the course of this trial. You share a collective responsibility, all twelve of you, to reach a just verdict according to the evidence. And I should add, I am sure it will not arise, that if any of your number was known by others to have obtained any such information in the way that I have described, you would be duty bound, please, to let me know about that as soon as you become aware of any such breach of the direction that I gave you." 6. The arrest of the appellants arose following a routine and coincidental visit by a police sergeant and two community police officers to a flat in Leytonstone at 2pm on 7 September 2010. The flat was known to be frequented by youths who should not have been there. The officers went to check its security. Inside they found the complainant, Cedric Amoah, sitting in his underpants on a chair in the bedroom, calling for help. He had removed clingfilm from his mouth and had managed to untie himself from the chair. He explained that he had been set upon by a gang of males who were unknown to him, but he believed that their street names had been "Magic", "Logic", "Box" and "Hitz". He said that his friend Maxwell had managed to "escape". Later, he told the police that he did not seek police intervention and would deal with the matter himself. 7. When he arrived at hospital, however, he began to speak of Antwi as a suspect. At first, Antwi was treated by the police as a significant witness, but after he denied that he had seen Amoah on 7 September he was arrested. 8. Mpelenda was arrested on the following day, having been identified by his street name "Logic". 9. Robert Russell was arrested six weeks later after his palm print had been found on the door frame to the living room at the Leytonstone flat. 10. Amoah gave evidence that he and Antwi had been friends during their first year together at Middlesex University, which had commenced in September 2009. Antwi arrived at his address in Canning Town on the morning of 7 September 2010. Amoah assumed that Antwi intended to give him a lift to college to collect a status document which he required in order to obtain his student loan for the forthcoming year, which commenced on 11 October. Antwi was with an unknown male (identified only by the name Stefan) who was driving a VW Golf. When they set off Antwi said that he thought they were going to college, but the car was driven to Mulberry Court in Leytonstone. Antwi invited Amoah inside while he was to speak to a friend. They went to flat No 83 on the sixth floor of the block. Amoah said that almost as soon as he stepped into the flat he was attacked by a number of youths. He was then pushed into a bedroom. Inside he and Antwi each sat on chairs. Antwi demanded £6,000 as a ransom. Amoah used Antwi's mobile telephone to speak to his cousin, Joe Amissah, who might be able to provide the money. 11. Amissah gave evidence that in a single telephone conversation Antwi demanded that £6,000 be taken to a Tesco store in Leytonstone. He was to telephone Antwi when he arrived with the money. 12. Amoah said that he was held for three hours. He was bound to the chair with a belt. Clingfilm was wrapped around his mouth and face. He was repeatedly punched and also hit with a piece of wood. Bleach was poured onto his foot. His hair was singed with a lighter. A drill was used to make marks on his arm. Antwi was in charge of a gang of youths, numbering between four and nine. 13. Telephone evidence established that a number of calls were made from Antwi's telephone to Mpelenda's telephone between 8.30am and 11.20am on 7 September. One call from Antwi's phone connected with Joe Amissah's phone at 11.53am. There were a number of further return calls from Amissah to Antwi, for which no explanation was provided by Amissah. 14. At an identification procedure Amoah identified Antwi as the organiser; Mpelenda as "Logic", who had hit him with a piece of wood; and Russell as the man with the drill. 15. It was Antwi's evidence at trial that he, Amoah and another youth called Lovelock had been involved together in fraud. The scheme was to use an individual's bank account by which to launder stolen cheques to cash. According to Antwi, Amoah owed him and Lovelock £3,000 each. He could not discuss the matter at Amoah's home in the presence of Amoah's father, so he contacted Mpelenda by telephone to ask him if he could provide an alternative address. Mpelenda suggested Mulberry Court where, Antwi said, Amoah went willingly. At the flat Amoah had used Antwi's telephone to contact his cousin to arrange payment. Antwi said that he believed that Amissah had been involved in the fraud. While this was happening a group of youths arrived at the flat demanding to know what they were doing there. Amoah was from Canning Town. They objected to the strangers' presence. An argument developed which resulted in an attack on Amoah, which Antwi managed to escape by leaving the flat. 16. Mpelenda's evidence was that, having assisted Antwi and Amoah to find an address at which to discuss their differences, he had nothing further to do with the matter. He left soon after arriving at the flat. He called a witness on his behalf to support his alibi that he went straight back to his own flat. 17. At pages 14E to 17A of the transcript of his summing-up the judge provided the jury with an entirely conventional and clear direction on participation in a joint enterprise. He concluded his direction at page 16E as follows: "I make this clear, members of the jury, mere presence at or close by to the scene of a crime, observing it going on, is not enough of itself to prove guilt. But if you find that the defendant in question was at the scene of the offence you are considering, playing some role in the furtherance of a joint plan to commit the crime in question, or that he did intend by his presence along to encourage by that presence, adding to the numbers and other parties to commit the offence in his presence in question, then he would be guilty too as part of a joint enterprise." Furthermore, the judge provided the jury with written directions both upon each count in the indictment and upon several aspects of their consideration of the evidence. In particular, for present purposes, he gave them a written direction on joint enterprise in almost identical terms as those which he had given orally. 18. As we have noted, during their retirement the judge was asked by the jury: "Would you please be able to clarify the term in law covering joint enterprise?" The judge reminded the jury of his written direction and said that he wished to add nothing to it. However, he gave two examples which in our view were entirely appropriate to the circumstances. He directed the jury that deliberate presence with the intention of encouragement of others and intimidation of the victim would be sufficient participation in a joint enterprise to detain, to blackmail and to assault. Provided the jury was satisfied of the joint enterprise and of participation by the defendant whose case they were considering, it was unnecessary for the jury to identify with certainty the person carrying out the specific acts which amounted to the conduct element of the offence. 19. At the conclusion of the proceedings on Friday 4 February 2011, the judge released the jury for the weekend. Before they left he gave them the following instruction: "Well, members of the jury, you have been hard at work for many hours now, and I am going now to adjourn the case until Monday morning for you then to resume fresher from your weekend away .... But before we part it is necessary for me to do two things: firstly, to release the jury bailiffs from their oaths that they took earlier today; and secondly, to give you a direction of law which I must direct you please faithfully to heed. It is the essence of the system, proud system of trial by jury that we have in this country, that the verdicts of the jury are reached only when they are altogether in the jury room with the jury bailiffs sworn duly to ensure that the jury have complete privacy. You must decide, as I have said to you already, this case based only on the evidence and arguments which you have heard in court and it follows that you must not seek, of course, to obtain any information in any way about this case over the adjournment and you should not discuss this case, one with another or amongst yourselves, in any way or endeavour to contact one another about the case. Arrangements will be made that on Monday you will be taken from the room that is provided for all the jurors, in which of course you must not discuss this case with anyone, to your room, but before you should resume any discussion of the verdicts, you will then be asked to come into court and the jury bailiffs will be re-sworn in your presence, and then I shall ask you to retire and consider your verdict further. So with that direction in mind, I can now release you. ...." 20. We have taken some care to demonstrate the assistance which this jury received from the trial judge in order to explain our dismay as to the events which followed. 21. Sentence was adjourned following the return of guilty verdicts. 22. On 10 February 2011 (three days later), one of the jurors wrote to the judge expressing concern at the behaviour of other members of the jury during its retirement. Following the jury's release on 4 February, one member said that he (or she) had been looking at a website for the Metropolitan Police, seeking information about the case. On Monday 7 February, another member of the jury said that he (or she) had been searching the internet and discussing the case. That research had been aimed at "joint enterprise" cases. 23. In view of this discovery, application was made by the appellants for leave to appeal against conviction. The full court considered the applications for leave on 15 March, granted leave, and gave directions that the Registrar should invite the Criminal Cases Review Commission to conduct an inquiry into events leading to the verdict by posing a series of questions to each member of the jury, designed to avoid any breach of the rule that nothing of the deliberations themselves could be either interrogated or revealed. 24. We are appreciative of the expedition with which those inquiries have been conducted for the court. Interviews were carried out with eleven of the twelve jurors who were then available between 11 and 21 April 2011. The results of those inquiries have been summarised in the Commission's report to the court pursuant to section 23A of the Criminal Appeal Act 1968 . 25. It is accepted by Mr Lachkovic on behalf of the respondent that these inquiries were properly carried out, that the information contained in the report is accurate, and that this material may be admitted under the provisions of section 23 of the 1968 Act . We therefore admit the report into evidence. 26. The summary of findings is contained in paragraphs 10 to 13 of that report as follows: "10. The responses of the jurors who have been interviewed suggest that the individual who was referred to in juror number eleven's letter and witness statement as having looked on 'the Metropolitan Police website' was juror number four. From the answers given by juror number four, and also the answers of jurors two and twelve, it appears that the website in question was not that of the Metropolitan Police, but was a recently launched website which allowed members of the public to search for crime statistics for a particular geographical area. .... 11. The Court of Appeal may also wish to note that, in the course of his interview by the Commission, juror number four asked whether he might be in trouble in relation to his internet search. In light of the fact that none of the jurors was being interviewed under caution, the Commission explained to juror number four that his answers were being obtained in order to assist the Court of Appeal and could not be used in evidence against him in the course of any criminal proceedings. 12. The responses of the jurors who have been interviewed also suggest that the individual who was referred to in juror number eleven's letter and witness statement as having researched joint enterprise law and having read about at last one case of joint enterprise crime was juror number twelve. This issue is expressly referred to in the answers given by jurors three, four, six, seven, eight and twelve. The dialogue which is recorded at the end of juror number twelve's questionnaire was instigated by juror twelve herself. 13. The Court of Appeal will note that the responses of jurors three and twelve to question 28 of the questionnaire indicate that their votes were affected by extraneous material." 27. We need refer only to the following further information. One of the jurors informed the Commission that juror number 12 had explained, as a result of her research, that if a person was present, they were as guilty as anyone else in the group. If a person sees an incident occur and does nothing about it, that person is as involved as the others. 28. A further member of the jury revealed to the Commission the impression given by juror number 12 that "you only had to be there to be involved in the joint enterprise". 29. It would appear that, having received the further assistance of the judge, juror number 12 still did not understand the concept of participation in a joint enterprise as it applied to the cases of the appellants (or one of them), and in an endeavour better to follow the judge's direction sought the assistance of the internet. Unhappily, that is exactly what the jury had been instructed not to do. 30. It is apparent to this court that the result of juror number 12's research was discussed by the jury, at least one of whom understood that mere presence was enough to prove guilt in the absence of any attempt to intervene. These events, without question, undermined the integrity of the process in which the jury was engaged. 31. These issues, and the issue of collective responsibility of juries, were considered by this court in R v Thompson and Others [2010] EWCA Crim 1623 (Lord Judge CJ, Hughes LJ, V-P, and Bean J). We need not repeat the guidance provided by the court at paragraphs 1 to 14, save to emphasise that it is essential reading for trial judges. Notwithstanding that the Recorder of Redbridge followed the advice of the court both in its letter and in its spirit, this jury failed to respond as it should. What then of the safety of these verdicts? We need refer only to paragraph 11 of the judgment in Thompson , which reads: "11. The use of the internet has expanded rapidly in recent years and it is to be expected that many, perhaps most, jurors will be experienced in its use and will make habitual reference to it in daily life. It has already impacted on the court in cases such as R v Karakaya [2005] 2 Cr App R 5 , R v Marshall and Crump [2007] EWCA Crim 35 and R v Thakrar [2008] EWCA Crim 2359 ; see also the experience in New Zealand, R v B [2008] NZCA 130 . Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material. If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe ( R v Karakaya ). If the material does not affect the safety of the conviction, the appeal will fail." 32. We note that the jury first returned unanimous verdicts in relation to the appellant Antwi upon counts 2, 3 and 4. They returned a majority verdict of guilty in respect of the kidnapping two hours and 20 minutes later. All verdicts returned in the case of the appellant Mpelenda were by a majority. We do not propose, and are not permitted to speculate as to the process by which these verdicts were reached. The ultimate issue for this court is whether there is a real risk that extraneous material contaminated the jury's deliberations. While it is possible to present, as Mr Lachkovic has done, a respectable argument that at least some of the verdicts may not have been rendered unsafe, we are in the end satisfied that none of them can stand. 33. The evidence of the complainant was the subject of hot dispute and several criticisms for inconsistency and improbability were advanced. The same might be said for the evidence of the defendants themselves. Notwithstanding, the learned judge had thought it appropriate on the evidence in the case to advise the jury that they need not identify the principal offender, provided that they were sure of presence and participation in the relevant enterprise. In these circumstances, in our view, it is not possible to exclude the presence of unfairness in the process of deliberation generated by misunderstanding of the law of joint enterprise introduced by extraneous material gathered from the internet. 34. For this reason both appeals must be allowed. 35. We direct that there shall be a retrial. Ordinarily, having allowed the appeal and quashed the convictions, the court would direct that the appellant should be re-arraigned on the fresh indictment within two months. We understand that a directions hearing is due to be heard before the Recorder of Redbridge tomorrow morning in respect of the retrial ordered in the case of Russell. We direct that in these unusual circumstances a fresh indictment will be served by 10.30 tomorrow morning, 6 May; that the appellants Antwi and Mpelenda will be produced at Snaresbrook Crown Court to appear before the Recorder of Redbridge, together with their co-accused Russell. 36. All succeeding directions as to the progress of the retrial will be dealt with by the learned judge. 37. Counsel for the appellants will need to apply to Highbury Corner Magistrates' Court for a representation order for their appearances tomorrow at Snaresbrook Crown Court. 38. In the meantime, the appellants will remain in custody until they are produced before the Recorder of Redbridge. Any application for bail should be directed to the Recorder. 39. We do not know when the retrial will, in fact, take place but it is obviously necessary that an embargo be placed upon publication of our judgment until after the retrial of all three accused takes place. 40. Would you please ensure that the Court of Appeal Office is notified when that retrial has completed?	{"ConvCourtName":["Snaresbrook Crown Court"],"ConvictPleaDate":["2011-02-07"],"ConvictOffence":["False imprisonment","Blackmail","Assault occasioning actual bodily harm","Kidnapping"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Student"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Student"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Telephone evidence","Identification procedure"],"DefEvidTypeTrial":["Alibi claim","Offender denies offence"],"PreSentReport":[],"AggFactSent":["Offence committed by a group","Victim was bound and assaulted","Ransom demand"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Jury's deliberations were improperly affected by internet research carried out by at least one member of the jury"],"SentGuideWhich":["section 23A of the Criminal Appeal Act 1968","section 23 of the 1968 Act"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Jury considered extraneous material from the internet which undermined the integrity of the process and rendered the convictions unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 2004/05804/B2 Neutral Citation Number: [2005] EWCA Crim 396 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday, 15 February 2005 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE DAVIS and MR JUSTICE FIELD __________________ R E G I N A - v - HUSSEIN BAHADOR __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR JOHN COOPER appeared on behalf of THE APPELLANT MR GOPAL A J HOOPER appeared on behalf of THE CROWN ____________________ J U D G M E N T Tuesday, 15 February 2005 THE LORD CHIEF JUSTICE: 1. On 17 September 2004, at the Crown Court at St Albans, before His Honour Judge Gosschalk and a jury, the appellant, Hussein Bahador, was convicted of indecent assault (count 4). He was sentenced to 12 months' imprisonment. On that occasion he was also acquitted on a count of rape (count 2) at the judge's direction, and of attempted rape (count 3) by the jury's verdict. The appellant appeals against conviction by leave of the single judge. 2. The facts leading up to these offences are as follows. On 13 December 2004, the complainant went to Destiny's night club with a friend. The appellant was also present with his friends, including his co-accused Mr Marney. The co-accused was acquitted of an offence of rape relating to the same incident. 3. In the early hours of 14 December the complainant left the club with Mr Marney and got into a motor car. Sexual intercourse then took place. The complainant said that this was without her consent. That led to the count of rape on which Mr Marney was acquitted. 4. Thereafter Mr Marney got out of the car and the appellant got in. The complainant stated that he tried to have sexual intercourse with her against her wishes, but stopped when friends arrived. 5. The appellant's case was that when he had got into the car he believed that the complainant was willing to have sexual contact with him. As soon as it became clear that she was not willing to do so, he got out from the vehicle. He did not attempt to rape her or indecently assault her. 6. The issue in the case with regard to the indecent assault of which the appellant was found guilty was: did he honestly believe that this was conduct to which the complainant would consent? 7. The sole ground of appeal relates to the fact that the judge made two rulings that the complainant should not be cross-examined about her alleged behaviour on the stage in the night club. It was the appellant's contention, Mr Cooper tells us, supported by a signed statement by him, that the complainant had taken part in a competition, which the appellant had seen, which involved her exposing her breasts and simulating oral sex. Other matters of evidence were excluded, but Mr Cooper does not rely on them for the purposes of this appeal. 8. In dealing with the issue the judge had to apply his mind to section 41 of the Youth Justice and Criminal Evidence Act 1999 . Section 41(1) provides: "If at a trial a person is charged with a sexual offence [which this was], then, except with the leave of the court -- (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied -- (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either -- (a) that issue is not an issue of consent; or (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or (c) is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar -- (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event that the similarity cannot be reasonably be explained as a coincidence." Before the judge the appellant relied on section 41(3) (b) and (c). 9. Mr Cooper, in his submissions before us, candidly accepts that the contention of the appellant before the judge was wrong. Reliance should have been made, not on 41(3)(b) or (c), but on 41(3)(a). That is because of the definition section 42, which provides in subsection (1): ".... (b) 'issue of consent' means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented)." 10. As the defence of the appellant was one based on belief, by reason of the provisions of section 42(1)(b), sub sections 41(3) (b) and (c) was not relevant to the application, but section 41(3) (a) could be. Looking at section 42 it is interesting to note that "relevant issue" is interpreted as meaning "any issue falling to be proved by the prosecution or defence in the trial of the accused". As the appellant relied on his honest belief that in relation to what he did the complainant would consent, that becomes a relevant issue in the case. Therefore we have to decide, first of all, whether the conduct which took place on the stage was relevant to an issue in the case within the language of section 41 . 11. In his argument on behalf of the respondent Mr Hooper submits that it was not relevant. He submits that, pushed to its logical conclusion, the argument of the appellant would mean that every stripper who performed at a club would convey the message that by conducting herself in that way she was indicating that she was consenting to sexual attention by someone such as the appellant and consenting in particular to be touched in a sexual manner by a complete stranger. 12. We recognise the force of that argument. However, in looking purely at the question of relevance, we feel compelled to conclude that as the appellant's defence was one based on his honest belief, it is difficult to say that what he contended to have taken place on the stage could not be relevant. We emphasise that at the time of this trial the test was honest belief in consent. Under the law as it is at present as a result of the Sexual Offences Act 2003 , the test now is reasonable belief. Honest belief and reasonable belief are very different things. Without having the opportunity of seeing the appellant cross-examined on his alleged honest belief, it is difficult to say whether or not something such as was alleged to have occurred here could or could not affect his honest belief. Having had the argument presented before us in a different way from that which was presented before the judge, we would accept that Mr Cooper reaches first base. 13. However, we would emphasise that under section 41(2) relevance is clearly not the only matter that the judge has to consider. The section makes it clear that he has a discretion. Even if Mr Cooper can bring himself within subsection (3) and therefore deal with the requirements of section 41(2) (a), he has also to deal with section 41(2) (b), that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. So the judge must take into account whether or not the refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case; the relevant issue here being honest belief. 14. Because of the way the case was argued in the court below, the judge did not deal with that requirement in section 41(2) (b). It is therefore necessary for this court to consider section 41(2) (b) in the circumstances of this particular case. Here, there is one piece of evidence that was placed before the jury on behalf of the appellant to which we should refer. He said that after his co-accused had had sexual relations with the complainant in the car, the co-accused got out of the car and spoke to him. He asked his co-accused whether she was "up for it", to which he received a positive response. The fact that he asked that question seems inevitably to lead to the conclusion that if he had received a response in the negative he would not have proceeded to behave in the way that he did. It seems to us inevitable that that conversation immediately before the assault took place would have had much more effect upon the belief of the appellant than anything that may have happened on the stage. 15. In addition to that, the jury had the evidence which the co-accused had given as to the intimate behaviour of the complainant with him. The jury's verdict in favour of the co-accused is the clearest proof that the complainant's conduct was something which made the jury come to the conclusion that she might have consented to sexual intercourse with the co-accused or he might have honestly believed that she did so consent. 16. In addition, in his interview with the police the appellant made no reference to what he alleged had happened on the stage. If he had seen this girl behaving in the way he apparently alleged in his statement, it is of significance that he made no mention of it. 17. This goes to the question as to whether there was anything unsafe about this conviction and whether or not the judge was wrong not to admit the evidence. Under section 41(2) it is clear that the judge has a discretion. It is also clear why section 41(2) (b) is framed in the way that it is. It was framed in that way because it was the policy of that Act to protect women who make complaints about sexual offences committed against them; it protected them from inappropriate and harassing cross-examination. The experience of the legislature leading to the enactment of the 1999 Act was that unless the cross-examination of and the making of accusations against complainants was limited within appropriate bounds, fewer women would come forward to make complaints about sexual assaults upon them. The policy was to protect complainants in proceedings in relation to sexual offences alleged to be committed against them. It seems therefore to us that it can be reasonably said in the context of this case as a whole, albeit that what was alleged to have happened on the stage (and we emphasise alleged to have happened on the stage) was, strictly speaking, relevant to an issue in the case, the judge would have been entitled to exclude the evidence of what is alleged to have occurred on the stage and cross-examination as to it. In our judgment the exclusion of the evidence and cross-examination certainly did not render unsafe the conclusion of the jury that the appellant was guilty of the offence of which he was convicted. The position was after all that, without seeking a by your leave of any sort from the girl -- a girl with whom the appellant had had no dealings with before -- he went into the car and immediately sexually assaulted her. That a jury would be influenced against that background by what was alleged to have happened on the stage we think is not a tenable proposition. In those circumstances we consider that the evidence could properly be excluded under section 41(2) (b). Furthermore, there is nothing unsafe about this conviction. Accordingly the appeal will be dismissed.	{"ConvCourtName":["Crown Court at St Albans"],"ConvictPleaDate":["2004-09-17"],"ConvictOffence":["Indecent assault"],"AcquitOffence":["Rape","Attempted rape"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at St Albans"],"Sentence":["12 months' imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Complainant testimony","Co-accused testimony"],"DefEvidTypeTrial":["Appellant testimony","Signed statement by appellant"],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Exclusion of cross-examination about complainant's alleged behaviour in nightclub under section 41 of the Youth Justice and Criminal Evidence Act 1999"],"SentGuideWhich":["section 41 of the Youth Justice and Criminal Evidence Act 1999","section 42 of the Youth Justice and Criminal Evidence Act 1999"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Exclusion of evidence did not render the conviction unsafe; judge's discretion under section 41(2)(b) was properly exercised; evidence excluded was not determinative of honest belief; conviction is safe"]}
Neutral Citation Number: [2020] EWCA Crim 1719 Case No: 201904221/B3;201904320/B3;201904328/B3;201904364/B3;202001005/B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Northampton Crown Court HHJ Crane T20187131/T20187139/T20187140/T20197021/T20197036/T20197131 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/12/2020 Before : LORD JUSTICE GREEN MR JUSTICE JULIAN KNOWLES and HIS HONOUR JUDGE BLAIR QC Recorder of Bristol - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - Bailey & Ors (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Mr Colin Charvill (instructed by Stephen Moore & Co Solicitors ) for Bailey Mr Jonathan Rosen (instructed by Noble Solicitors ) for Succo Ms Micaila Williams (instructed by Bains Solicitors ) for McLeish Mr Charles Burton (instructed by Cobleys Solicitors Ltd ) for Hall Mr Liam Muir (instructed by Carter Osborne Ltd ) for Radford The Crown was not represented Hearing date: Tuesday 3rd November 2020 Judgment As Approved by the Court Crown copyright © Lord Justice Green : Introduction: The Articulation of Totality in Sentencing Remarks 1. There are before the Court five appeals by Bailey, Succo, McLeish, Hall and Radford. Each appellant either pleaded guilty to, or was convicted of, one or more counts of Conspiracy to Supply a Controlled Drug of Class A and/or B contrary to section 1(1) Criminal Law Act 1977 . 2. Each Appellant has been granted leave to appeal against sentence. A ground of appeal common to a number of appeals concerns totality. This particular ground raises a point of interest from a procedural perspective. It arose from the fact that in the lengthy sentencing remarks about the position of each defendant, no specific reference to totality was made. The judge did however make a brief and general reference towards the end of the sentencing remarks, to the effect that she had taken totality into account in relation to each defendant. 3. When seeking permission to appeal, the Appellants argued that this was an improper and inadequate approach. There was a duty to spell out how totality applied in each case. It was not enough to make a single, isolated, fleeting reference to totality. This flowed from the Sentencing Council, Definitive Guideline on “Offences taken into Consideration and Totality” (“ the Totality Guideline ”) which sets out a staged approach to the determination of totality. The single judge agreed that this was an arguable point. During argument before this Court, the Appellants elaborated upon this theme and advanced a variety of different points concerning how the issue should have been expressed in the sentencing remarks. All advocates, in effect, adopted the arguments of the others on this point. 4. To put the point into context it is also relevant to note that in the section of the sentencing remarks where the judge summarised the position of each defendant being sentenced she set out, in commendably concise but comprehensive form, all of the facts and matters that she considered to be relevant to the placement of the individual defendant in terms of the Definitive Guideline on Drugs Offences (“ the Drugs Guideline ”) and all aggravating and mitigating factors. 5. Various Appellants have raised additional points of a nature specific only to them, over and above arguments about the way in which totality was expressed. 6. We address general issues about totality only once at paragraphs [33] – [43] below in the appeal of McLeish. Our conclusion set out there apply to all other Appellants who raised the same arguments. The Sentences 7. On 6 th November 2018 in the Crown Court at Northampton, Succo and McLeish pleaded guilty to Counts 1 and 3 on the joinder indictment. 8. On 25 th March 2019, McLeish pleaded guilty to one count on Indictment T20197036 and Hall pleaded guilty to Count 4 on the joinder indictment. 9. On 23 rd September 2019, Radford changed his plea to guilty on Counts 1 and 2 on the joinder indictment. 10. On 22 nd October 2019, Bailey was convicted of Count 1 in relation to Class A drugs and Hall was convicted of Count 2 in relation to class B drugs. 11. On 1 November 2019 the following sentences were handed down: (i) Bailey was sentenced to 10 years imprisonment; (ii) Succo was sentenced to 6 year and 9 months on Count 1, and 3 years and 9 months on Count 3 consecutive, leading to a total sentence of 10 years and 6 months; McLeish was sentenced on Count 1 to 7 years and 6 months and on Count 3 to 6 years consecutive. He was given a concurrent sentence of 6 years on a further count. This led to a total sentence of 13 years and 6 months. Hall was sentenced to 8 years on Count 2 and to 3 years and 9 months on Count 4 consecutive, leading to a total sentence of 11 years and 9 months. Radford was sentenced to 8 years and 1 month on Count 1 in relation to class A drugs and 4 years and 6 months on Count 2 relating to the class B drugs leading to a total sentence of 12 years and 7 months. 12. There were 7 co-accused who received sentences of between 5 years and 10 years and 9 months. The Facts relation to the Conspiracies 13. We shall summarise the facts relating to each count separately. Count 1: Conspiracy 15 th – 18 th April 2018 14. On 17 th April 2018 Radford and McLeish each delivered one kilogram of cocaine, one to Succo and one to Timothy Hartgrove. The supply to Timothy Hartgrove, was destined for Bailey. Surveillance evidence recorded extensive telephone contact between Radford, McLeish and Succo. Shortly before 3.45pm Radford was seen entering a black BMW, having come from his home address in Kettering. 15. He and McLeish then left an apartment together. McLeish was carrying a black Adidas bag. They travelled to meet a red Vauxhall van at just after 4.30 pm. McLeish got out of his vehicle and approached the van which was driven by Timothy Hartgrove. He leant inside and then returned to the BMW. He was still carrying the Adidas bag, but it appeared to be lighter than when he approached the vehicle. Four minutes later the BMW stopped in Regent Street in Kettering. Succo appeared and McLeish passed him the black holdall. Succo left the area on foot. 16. Timothy Hartgrove drove his vehicle to the car park of a bowling alley. Shortly afterwards police arrested him and searched his vehicle. A total of one kilogram of cocaine was recovered. Two mobile phones and an air pistol were also found in the vehicle. McLeish observed Timothy Hartgrove’s arrest from inside the bowling alley and informed others involved in the enterprise. 17. On 17 April, Lewis Hartgrove, the son of Timothy Hartgrove, was located in Birmingham. At 3.43 pm McLeish spoke to him and within seconds of the call finishing, Lewis Hartgrove called his father, Timothy Hartgrove. That call was said by the prosecution to be Lewis Hartgrove arranging with his father for him to collect the cocaine from McLeish with the intention of delivering it to Bailey. 18. Timothy Hartgrove was arrested. In a prepared statement he said that he had received a phone call from an unknown person saying that his son owed them money and that he was instructed to meet the unknown person at a public house. When he got there a man put two packages and a phone in his vehicle. He was then told to go to the bowling alley. He said he had no knowledge of what was in the packages. He was found in possession of about £1,000 cash. He said that this was from gambling. He said he did not receive any recompense for doing what he did, and his son did not know anything about it. 19. The cocaine recovered was of a 76% - 79% purity with a value of £40,000 - £50,000. The number of McLeish was found stored in Timothy Hartgrove’s phone and the phone showed contact with Bailey on two numbers. Police also recovered a handset which was shared by Timothy and Lewis Hartgrove. Bailey was in contact with that number as well. The drugs that had been supplied to Succo were not recovered. Count 2: Conspiracy 13 th – 15 th May 2018 20. Count 2 related to a conspiracy to supply Class B amphetamine between 13 th and 15 th May 2018. It involved Radford, Hall and the co-defendant Michael Drain. 21. Radford was seen on surveillance evidence in Princes Avenue in Kettering. His vehicle was approached by a male pushing a wheelbarrow. Two boxes containing amphetamine were put in Radford’s vehicle. Radford then met with Drain and the boxes were placed in the rear of Drain’s vehicle. Drain headed north but at some point, Radford and Hall cancelled the delivery of the amphetamine, and Drain was recalled to Northamptonshire. The police were unable to recover much evidence in respect of the phone contact between the defendants on that day as both Hall and Radford were using encrypted phones. Drain was stopped on the A14 by the police. In his van were two boxes containing 24 blocks of amphetamine valued at between £120,000 and just under £180,000. There was a total of just over 47 kilograms of drugs. The drugs were in heat-sealed packaging. They were of low purity. Count 3: Conspiracy 11 th – 13 th June 2018 22. Count 3 related to a conspiracy to supply cocaine between 11 th and 13 th June 2018 and involved McLeish, Succo and a co-defendant Parllaku. 23. On 12 th June 2018, McLeish received a quantity of cocaine from Parllaku which was then delivered to Succo for him to store and prepare. When police subsequently searched Succo’s address they found just under half a kilogram of cocaine at 52 % purity and items consistent with the premises being used for the preparation and onwards supply of cocaine. A tick list was found at McLeish’s address and an envelope with Succo’s telephone number on it. There was evidence of telephone communication between McLeish and Parllaku and between McLeish and Succo consistent with the arrangements for and the carrying out of this transaction. Count 4: Conspiracy 20 th – 26 th September 2018 24. Count 4 related to the supply of cannabis by Hall between 20 th and 26 th September 2018. When he was arrested text messages on his phone revealed cannabis dealing. During the trial for one of the conspiracies regarding the cocaine and amphetamine, Hall gave evidence about his cannabis dealing including as to its duration. He said he had three sources of cannabis and a contact in England who had a direct contact to Amsterdam. About 20 - 30% of the high-grade cannabis he sold was obtained from California. He had an Aquarius encrypted phone with a Dutch SIM to communicate with his contact and to receive pictures of products directly from Amsterdam. He had two other suppliers growing locally who provide cannabis on an eight-week cycle, with three to five kilograms from each of them at each harvest. He was earning £2,000 to £2,500 a week from his cannabis dealing. The cannabis was kept at more than one safe house. He would sell it in bulk and in smaller deals. He used runners to collect money. The phone messages showed dealing over a short period of the charge Indictment T20197036: Conspiracy 1 st July – 1 st September 2018 25. The fourth conspiracy to supply cocaine related to a period between 1 st July and 1 st 2018 and involved McLeish and co-defendants Plaku and Jones. During the conspiracy there were 16 supplies. An initial seizure was made of around a quarter of a kilogram of cocaine with a value of around £50,000. The overall value of the conspiracy depended on what was supplied on each occasion, but the estimated potential value was possibly £0.5m. 26. On 31 August 2018, surveillance officers saw Jones who had been sent by McLeish to the address of Plaku, who was a wholesale distributor of cocaine. Jones took just under a quarter of a kilo of cocaine at 83% purity from the premises. He was arrested shortly afterwards. The cocaine had not been diluted since entering the UK, indicating that those involved in receipt and supply were either importers or very close to that level. Jones was arrested. His telephone revealed connections to Plaku and McLeish. Officers attended at Plaku’s address and found telephones and significant quantities of cash. Plaku’s phones had connections to Jones and an onward connection to McLeish. Analysis of Plaku’s phones revealed that he was a wholesale supplier of drugs. Some of the messages were in Albanian and indicated an international element with Plaku close to the point of supply. 27. We now address the appeals of each Appellant separately. As set out above we deal with the general arguments about totality once, in relation to the appeal of McLeish McLeish 28. McLeish pleaded guilty to three count: Counts 1 and 3 on the joinder indictment and Count 1 on the separate indictment. The total sentence, after plea, was 13 years and 6 months imprisonment. The judge made the sentences on Counts 1and 3 on the joinder indictment consecutive, but that on Count 3 on the separate indictment concurrent. 29. In her sentencing remarks the judge found that McLeish had a leading role. He was to be sentenced for multiple offences. He directed and organised, bought, and sold on a commercial scale. He had substantial links to and influence over others in the chain. He had close links to the original source and there must have been an expectation of substantial financial gain. There might have been others above him in the chain but that did not preclude him from being in a leading role. 30. In relation to the April conspiracy, he was a leading role, Category 1. In relation to the 12 th June conspiracy, he was a leading role, Category 2/3 harm. In relation to the conspiracy over July and August 2018, he was a leading role, Category 2. Aggravating features were his previous convictions. He was 36 years old with 7 appearances for 19 offences including driving matters, criminal damage, assault or ill-treatment of a child, breach of a non-molestation order, harassment, battery and threatening violence to enter premises. He had no previous drugs offences. He was on licence at the time of the first conspiracy. He was not on bail at the time of the third conspiracy but was under investigation by the police. His personal mitigation was that he had a young son who lived with his own mother and a daughter who was nearly one year old. There would be an impact on those children. He was entitled to 25% credit for plea. 31. The first ground of appeal is that the judge failed to give sufficient weight to the principle of totality. There is no indication in her treatment of McLeish that she applied totality to him. 32. The second ground of appeal is that the judge failed to give sufficient credit for plea. The exception at paragraph F1 of the Sentencing Council Guideline on Reduction in Sentence for a Guilty Plea ought to have been applied to produce a 33% reduction, rather than the 25% reduction allowed by the Judge. Totality – General Observations 33. We take each point separately. We start with totality. We start with some general observations. 34. First, whether a judge has applied totality is a question of substance and not form. The fact therefore that the judge made a single generalised statement towards the end of her sentencing remarks to the effect that she had considered totality is perfectly adequate. Sentencing remarks are not intended to amount to a test of drafting; they are intended to be succinct explanations of the facts and matters that have affected the judge’s judgment as to the sentence to be imposed. During questions from the court no counsel or advocate appearing on the appeal ultimately disagreed with this proposition. Were it otherwise, appeals would be brought against perfectly proper sentences upon the basis of bad drafting or poor expression. 35. Second, in relation to totality, the Totality Guideline makes plain that the purpose behind a judge taking totality into account is to ensure that the final sentence is just and proportionate. During argument there were suggestions that a judge should expressly use the expression “ just and proportionate ”. We disagree. There is no magic in words. What matters is whether the final sentence is just and proportionate, taking into account all the relevant facts and matters. On an appeal, a court should be able to identify whether this is so from the judge’s recitation of relevant facts and aggravating and mitigating circumstances and from an assessment of how this is calibrated against the Guideline. 36. Third, a number of advocates suggested that the application of the totality principle was designed to lead to the judge applying an appropriate reduction to the sentence. Again, we disagree. Totality is designed to ensure that the sentencing exercise is not formulaic. As the Guideline points out it is “ usually ” impossible to arrive at a just and proportionate sentence simply by adding up together notional sentences. Totality thus assists the judge to arrive at the correct sentence; it is not about reducing sentences as opposed simply to getting to the correct final sentence. 37. Fourth, many of the arguments advanced before us focused upon the fact that the judge had imposed consecutive sentences when it was said that had she applied totality she would have applied concurrent (reduced) sentences, or, at least that she would have mitigated the length of the consecutive sentence. The Totality Guideline makes what seem to us to be the obvious point that there is no inflexible rule that sentences should be structured as concurrent or consecutive: “ The overriding principle is that the overall sentence must be just and proportionate ”. It follows that merely because a judge imposes consecutive sentences is not, in itself, indicative that totality has not be been adequately considered. 38. Fifth, various arguments were advanced that the stages set out in the Totality Guideline under the heading “ General Approach ” (in relation to determinate sentences) should be referred to expressly in the sentencing remarks. Once again, substance must prevail over form. The stages or steps set out in the Guideline are intended to guide how the judge should “ consider ” the structuring of the sentence to arrive at a just and appropriate end result. The steps set out are not drafting instructions. 39. It follows that when this court is considering a judge’s conclusion on totality, it will consider whether the judge has taken the correct matters into account and whether in the final analysis the sentence, in the round, is just and equitable. The Totality Guideline provides a structured approach to guide judges in this endeavour. Our conclusions on the law are not, of course, intended to discourage any judge who wishes to provide fuller explanation or reasoning; but the essential point is that what matters on an appeal is the final sentence and whether that is just and proportionate and not the articulation of the chain of reasoning which led thereto. 40. We turn now to the specifics of the position of McLeish. As set out above, the judge took account of all relevant matters and did not take into account any irrelevant matter. She considered: his role in the conspiracy, the level of harm, the duration of the conspiracy, previous convictions and their nature, whether offences were committed whilst the appellant was on licence and/or on bail at any relevant point in time, and personal circumstances. 41. In the grounds of appeal a variety of points are made as to the evidence, or more accurately the lack of evidence, concerning matters said to be relevant to mitigation. Unparticularised assertions are made that there was not, for instance, sufficient evidence to support a conclusion that this was commercial trading, or that there was insufficient evidence to show “ substantial ” influence. The thrust of the arguments is to seek to minimise the role and importance of McLeish and to suggest that the judge exaggerated the importance of his position. We do not accept these submissions. They in effect invite us to reject the judge’s carefully considered conclusions on the facts and substitute our own more generous interpretation of them. Whilst exceptionally this court will (when the position is very clear and the judge below has made a plain error in the evaluation of evidence) correct an evidential error, it is not the true function of this court to reject a judge’s fact finding. We endorse the observations of the Court in R v Hoddinott [2019] EWCA Crim 1462 (“ Hoddinott ”) at paragraph [25] to similar effect. In this case, the judge set out the key facts and then drew inferences relative to the Sentencing Guideline from those facts as found. Those findings seem to us to be unassailable: such as McLeish’s involvement in the operations and who he was controlling or reporting to and as to the scale, value and purity of the drugs etc. 42. As to the structuring of the sentence, we note that the judge did in fact expressly state (transcript page 8A) that she made the sentence, on the separate indictment count 3, concurrent because of totality. By the very language that the judge used, she obviously chose the structure of the sentence with totality in mind. 43. Standing back, we can identify no error of assessment in relation to totality or otherwise. We reject this ground of appeal. Credit for Plea 44. We turn now to the issue about discount for plea. This is a short point. McLeish indicated and entered his plea on two counts on 1 st November 2018 at the PTPH and therefore would be entitled to 25% discount, which is what he was given. It is said that this was the first sensible time at which any pleas could have been advanced. He entered a plea on 25 th March to another count on a basis which was not accepted. That basis was later withdrawn. 45. It is said that in this case there is an argument for more credit and perhaps even 33%. Reliance is placed upon the dictum in R v Sanghera [2016] 2 Cr App R (S) 15 to the effect that in some complex multi-defendant cases it might be proper to give extra credit to the defendant who, as it were, first breaks cover and enters a plea. It is said that McLeish is such a person. 46. We do not accept this argument. We note that McLeish was not the first to jump. Succo also pleaded at the same time. There is no evidence that being in the first wave of those who pleaded caused any other defendant to follow suit. In many multi-handed cases there will be one or more defendants who are in the vanguard of those entering a plea; after all someone has to be the first. But this does not mean that, by this fact alone , they are inevitably entitled to more than the standard credit for plea. We would also point out that the Court of Appeal in Hoddinott (ibid) cast considerable doubt upon the force of what was, in any event, very much a tangential point in Sanghera . In Hoddinot at paragraph [29] the Court ( per Holroyde LJ) pointed out that the Totality Guideline postdated Sanghera and explained: “29. Fifthly, we observe that counsel were correct to abandon reliance on the passage which we have quoted from Sanghera . The Sentencing Council's Definitive Guideline on Reduction in Sentence for a Guilty Plea, which came into effect after Sanghera , makes it clear that the maximum credit which can be given for a guilty plea is one-third. If a defendant is entitled to full credit, and the court is persuaded that weight should be given to the fact that he was the first to plead guilty and by doing so encouraged others to plead guilty, that might be treated as a mitigating factor justifying some reduction in the sentence which would otherwise be appropriate before credit is given for the guilty plea. But whether such a reduction should be made will be a fact-specific decision and Sanghera did not lay down any fixed rule applicable to all cases. In the present case, the very fact that more than one defendant sought to argue that he had "led the way" in pleading guilty, shows the weakness of the argument. In our judgment, in the circumstances of this case, this was a point to which very little, if any, weight could be given.” 47. The chronology that we have briefly summarised makes clear that the Appellant was entitled to 25%. In view of Hodinott this seems to us to be entirely proper. For these reasons the appeal in the case of McLeish is dismissed. Succo 48. We turn to the appeal of Succo. Totality 49. The first point made on behalf of this Appellant is the broad totality point. Counsel appearing for Succo argued that the judge should have spelled out with some degree of clarity how she had applied the stages that the Totality Guideline identifies. As we have already explained there is no obligation on sentencing judges to set out in their remarks how they have applied the Totality Guideline. What matter is the substance of the final sentence and whether it is just and proportionate. 50. In relation to Succo, the judge held that he played a significant role, upper end. He was trusted by McLeish with large quantities of drugs at import level purity which he was going to dilute for onward sale. There was evidence he became involved due to his own drug addiction. However, his role was beyond that of a small drug street dealer funding his own addiction. He played an important role entailing large quantities of drugs that he had facilities to adulterate. In relation to the April 2018 conspiracy, he played a significant role upper end, Category 1 harm. In relation to the June 2018 conspiracy he played a significant role upper end, Category 2/3 harm. The possession of a knuckle duster was an aggravating factor. He was aged 36 with previous convictions comprising 3 appearances for 3 offences. None were recent. They were public order offences, breach of a community order and a caution for drugs. Mitigation was therefore the lack of relevant previous convictions. The Judge took account of the fact that his criminality was due to some extent that he was supplying a drug he was addicted to. Personal mitigation was that he had children aged 4 and 13, there would be an impact upon them. His partner had health issues. He had used the time spent in custody on remand positively. He was entitled to 25% credit for plea. We make the same general points about totality as we have in made in relation to McLeish. On the facts, the judge took into account all relevant considerations of both an aggravating and mitigating nature. She carefully placed the offending into the structure of the Drugs Guideline. The arguments advanced to us ignores the rounded analysis of the judge. We can identify no error in that analysis which would justify us interfering in the sentence imposed. Credit for Plea: “Likely” Indications 51. At the hearing new counsel appeared for Succo. Mr Rosen, who had been instructed the night before the oral hearing, sought permission to raise a new point concerning the credit accorded to the applicant. We granted time for the point to be researched and written submissions lodged and indicated that we would decide the issue on paper, when giving judgment. We have considered the point. It is arguable and raises a procedural point of some practical significance. We grant permission to appeal and we grant an extension of time to advance the appeal. 52. The ground was framed in the following way: The learned Judge erred in fact in only granting credit of 25% per cent for the guilty pleas which were indicated at the first hearing in the Northampton Magistrates Court on 5 th October 2018. Accordingly Succo should have been entitled to a full one-third credit for the guilty pleas entered at the Crown Court at the first available opportunity. 53. The basis of the argument was as follows. The Better Case Management form shows that in the section “ Part 1 - To be completed by the parties before the hearing ”, in answer to the question “ Pleas (either way) or indicated pleas (ind only) or alternatives offered ”, to each of the two charges the following was recorded - “ G (indicated) ”. It is argued that Succo was charged with indictable only matters and could only therefore indicate his future pleas at that stage and this was hence an unequivocal indication of his intention to plead guilty. 54. In section 2 of the form headed “ to be completed by DJ(MC)/legal ad visor”, in answer to the question “ Insofar as known, Real Issues in the case (concise details will be sufficient) ”, the answer given is: “ None – guilty plea likely at CC ”. The Form is undated, but it is inferred that it was completed at the one and only appearance at the Magistrates Court on 5th October 2018. 55. Mr Rosen acknowledges that case law is now clear that to benefit from maximum credit for a guilty plea to an indictable only charge, any indication of plea at the Magistrates Court must be unequivocal. He properly drew out attention to the recent judgment in R v Lee Hodgin [2020] EWCA Crim 1388 and then sought to distinguish it. That case considered earlier authorities. It is said that Hodgin and the cases cited therein were handed down after the instant case had been sent to the Crown Court but in any event did not lay down a immutable rule that use of the word “ likely ” will render equivocal an otherwise clear and early plea. He argued that in Hodgin a version of the case management form (as had been used in R v Jason Raymond Hewison [2019] EWCA Crim 1278 , judgment handed down 10 th July 2019) had asked what the “ likely ” plea would be in the case of indictable only offences. This demonstrated that practice, at least around the time of and prior to the decision in Hewison, was therefore fluid and that even if the form in the instant case did not use the expression “ likely ” it was a term then widely in use. The entry by the legal advisor recording “ None ” to the question “ Real issues ” evidenced that the indication given was unequivocal notwithstanding the legal advisor has then written “ guilty plea likely at CC ”. 56. Reliance is also placed upon The Key Principles of the Definitive Guideline “ Reduction in Sentence for a Guilty Plea ”. This makes clear that although a guilty person is entitled not to admit the offence and to put the prosecution to proof of its case, an acceptance of guilt: (a) normally reduces the impact of the crime upon victims; (b) saves victims and witnesses from having to testify; and (c) is in the public interest in that it saves public time and money on investigations and trials. A guilty plea produces greater benefits the earlier the plea is indicated. In order to maximise the above benefits and to provide an incentive to those who are guilty to indicate a guilty plea as early as possible, this guideline makes a clear distinction between a reduction in the sentence available at the first stage of the proceedings and a reduction in the sentence available at a later stage of the proceedings. 57. In the instant case it is argued that the key principles are met by the indication given at the lower court. There was no additional expenditure or time wasted on Succo’s behalf between the sending and his appearance at the Crown Court. The difference between 25% credit afforded and the one-third credit Succo should have been granted, renders the sentence passed manifestly excessive. 58. We turn to our conclusions. 59. It is worth setting out the considerations which underpin the position of the Court in Hodgin . There the Court emphasised the need for an unequivocal indication of plea at the Magistrates Court. This is understandable. A form which indicates a “ likely ” plea is not unequivocal since it leaves open the possibility that the guilty plea will not materialise before the Crown Court and this being so it also leaves the Prosecution to continue with its preparations lest the guilty plea does not emerge or if it does it is then tendered with a basis of plea which is unacceptable to the Crown. The Court in Hodgin acknowledged the difficulties that advocates face before the Magistrates Court in proffering full advice to defendants, especially in large scale multi partite conspiracies: “ It may be dangerous to do so. Definitive advice and instructions have to be given and received in a more measured way, with time to reflect and consider all relevant issues prior to the PTPH .” (ibid paragraph [44]). The Court nonetheless added (ibid paragraph [45]) that whilst it understood “… the practicalities of the situation which the appellant and his solicitor faced at the magistrates' court ” the Court could not overlook that on the facts there was, later on, only limited admissions in the basis of plea (ibid paragraph [46]). 60. At paragraphs [48] and [49] the Court observed: “48. In the present case, although we accept that conspiracy can sometimes be a difficult and complex matter for a solicitor to explain to a defendant, the appellant here can have been in no doubt whatsoever that he was involved in a very substantial number of the burglaries listed in the charge he faced, and that he had agreed with others to commit those burglaries. He knew what he had done. He was plainly guilty of conspiracy. Mr Weate confirmed in his oral submissions that there had been preinterview disclosure by the police the previous day before the appellant gave a "no comment" interview. We note form the police case summary (MG5) that in that interview the appellant was asked about each of the burglaries. He knew perfectly well what the allegations were. 49. We think that in these circumstances he could and should have given an unequivocal indication at the magistrates' court that he would plead guilty to the offence of conspiracy, even if the precise basis of his plea would have to be decided when the prosecution case was served. It was not a case where it would be unreasonable to expect a defendant to indicate a guilty plea because, for example, the prosecution had not determined what charges it was going to bring, or the proposed charges were vague and uncertain. Here the charge in the magistrates' court set out in very full detail the burglaries he was alleged to have conspired with others to commit. Indeed, we note that the charge was much more informative in that sense than the count in the indictment to which he pleaded guilty, which merely alleged (quite properly) that the defendants had, between certain dates, conspired together with others to commit burglary.” 61. The general importance of clear and unequivocal pleas at the earliest stage is very clear. But even in Hodgin the Court did not adopt a mechanistic approach whereby use of the word “ likely ” inevitably disqualified a defendant from a full discount for plea. The Court considered the individual facts and circumstances though it is right to record that the Court took a fairly rounded and robust view and was influenced by the fact that, even if details remained to be resolved, the defendant “ knew perfectly well what the allegations were ”. 62. How do these principles apply on the facts of this case? We see the force in Mr Rosen’s submission that on the facts this case is unlike Hodgin . Their defence solicitor had written on the BCM form: “ Likely guilty plea ”, whereas in Succo’s case he wrote: “ G (indicated) ”. The use of the phrase “ indicated ” in this context is, in context, used only because the Magistrates court cannot record a guilty plea on indictable only offences – they are only able to record an indication. The Magistrates court’s HMCTS employed legal adviser recorded the “ Real issues ” in the case being “ none ”, but then – potentially inconsistently - added the words “ guilty plea likely at CC ”. We consider it proper to attach weight to the indication given by Succo’s legal representative. We do not consider that the potentially inconsistent entry made by the Court officer undoes the notification by the instructed solicitor that indicated an actual future guilty plea. In our view the present appeal is on a par with Handley [2020] EWCA Crim 361 explained in paragraph [36] of Hodgin. 63. For whatever reason the point was not taken before the sentencing Judge who, therefore understandably, accepted that the plea made in the Crown court was to be taken as the critical point of reference for determining the level of discount for plea. No criticism attaches to the Judge. 64. We therefore allow the appeal to this extent. We conclude that a full one third credit should have been given. We therefore quash the sentence of 10 years and 6 months and substitute in its place a sentence of 9 years and 4 months. Radford 65. We turn now to Radford. It is also argued for Radford that the Judge erred by not properly applying the principle of totality. The written grounds do not specify in what way the Judge erred, save to say, that more of a discount could have been given. The Judge held that he would have expected financial gain. He was trusted by Hall and McLeish to work with them and for them. He therefore worked with two of those who were at the top of the operations. He had some operational and managerial functions. He was at the top end of significant role. In relation to the 28 th April 2018 conspiracy, he was top end playing a significant role. This was Category 1 harm. In relation to the May 2018 amphetamine conspiracy, he was top end significant role, Category 1. There were no aggravating factors. He was still young, aged 26. He had one offence of battery in 2014. Mitigating factors were lack of relevant previous convictions, his age and he had children for whom there would be an impact. Other personal circumstances were outlined in mitigation. He was entitled to 10% credit for plea. 66. We reject the arguments about totality. The judge correctly identified the aggravating and mitigating factors. The analysis was rounded and balanced and the sentence was squarely within the Drugs Guideline. There was no error in the sentence imposed which fairy reflects the involvement in issue. We dismiss the appeal. Bailey 67. We turn now to Bailey. He was convicted after a trial on a single count of participating in a single short-lived conspiracy. He received a sentence of 10 years. 68. The Judge found that Bailey was the intended recipient of the one kilogram of cocaine being transported by Timothy Hartgrove. He had an expectation of financial gain. The scale of the operation was commercial. He was directing Lewis and Timothy Hartgrove. He was top end significant role, Category 1. No aggravating factors were present. He was aged 32 with no previous convictions. He was a family man with children and there would be an impact upon them. There were positive character references and a history of employment. He was not entitled to any credit, having been convicted at trial. 69. We consider that there is one point applicable to Bailey. The Judge found that there were no aggravating factors but that there were some relevant mitigating factors: absence of previous convictions and good character references. Yet, the Judge imposed a sentence at the starting point under the Drugs Guideline, of 10 years. It is possible, bearing in mind the facts as found, that the Judge regarded Baileys role as “ top end significant role ” and this might have been a shorthand for a conclusion that the aggravating factors justified some upward movement from the starting point before taking account of mitigation. On the other hand, as advanced by counsel, this is not, in the final analysis, how the Judge expressed her conclusions on the evidence which otherwise she did with evident care and precision. On balance we consider that the fairest course is for us to reflect the exact sentencing remarks of the Judge and not seek to speculate as to what might be read between the lines. This being so absent aggravating factors and with mitigating features present, there is no stated reasoning explaining why the Judge did not come down from the starting point. To this extent we treat this as an error of approach. We consider that a sentence of 8 years and 6 months is a proper sentence having regard to the acknowledged mitigation and to the sentences imposed upon others. We therefore allow this appeal. We quash the sentence of 10 years and substitute a sentence of 8 years and 6 months. Hall 70. We turn finally to Hall. The Judge found that Hall was the director of the amphetamine enterprise in May 2018. He was a professional and sophisticated drug dealer. He used technology and other individuals to avoid detection. His played a leading role, directing and organising, buying and selling on a commercial scale with substantial links to and influence on others in the chain. He had close links to the original source regarding the cannabis and expectation of substantial financial gain. In relation to the amphetamine conspiracy this was a leading role, Category 1 and in relation to the cannabis conspiracy, leading role, Category 3. His position was aggravated by previous convictions. He was 31 convictions with three appearances for six offences. In 2006, he had three convictions for possession with intent to supply cocaine, amphetamine and cannabis. In 2008, he had convictions for possessions with intent to supply cocaine and a failure to surrender. In 2018, he had a conviction for being drunk and disorderly. In mitigation, he had a partner whose letter the judge had read. He had a four-year-old son and a teenage son upon whom there would be an impact. He was entitled to 25% credit for plea for the cannabis but was convicted after trial for the amphetamine. 71. It is argued for Hall that the total sentence failed to take into account the principle of totality. We have already addressed this. We reject this argument. As to the specific position of Hall, the judge made clear and comprehensive findings of fact. These are incapable of challenge. Given his role and his previous convictions, the sentence imposed was squarely within the discretion of the Judge and the Drugs Guideline. The sentence was neither excessive nor manifestly so. We dismiss the appeal.	{"ConvCourtName":["Crown Court at Northampton"],"ConvictPleaDate":["2018-11-06","2019-03-25","2019-09-23","2019-10-22"],"ConvictOffence":["Conspiracy to Supply a Controlled Drug of Class A","Conspiracy to Supply a Controlled Drug of Class B"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes","Yes","No","Yes"],"PleaPoint":["at first court appearance (Magistrates Court)","at PTPH (Crown Court)","on day of trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Northampton"],"Sentence":["Bailey: 10 years imprisonment (reduced to 8 years 6 months on appeal)","Succo: 6 years 9 months (Count 1) + 3 years 9 months (Count 3) consecutive = 10 years 6 months (reduced to 9 years 4 months on appeal)","McLeish: 7 years 6 months (Count 1) + 6 years (Count 3) consecutive + 6 years concurrent (other count) = 13 years 6 months","Hall: 8 years (Count 2) + 3 years 9 months (Count 4) consecutive = 11 years 9 months","Radford: 8 years 1 month (Count 1) + 4 years 6 months (Count 2) consecutive = 12 years 7 months"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[32,36,26,31],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Surveillance evidence","Telephone evidence","Drug seizures","Text messages"],"DefEvidTypeTrial":["Prepared statement (Timothy Hartgrove)","Basis of plea"],"PreSentReport":[],"AggFactSent":["Previous convictions (McLeish, Hall)","Offence committed while on licence (McLeish)","Possession of a knuckle duster (Succo)"],"MitFactSent":["Offender has children (McLeish, Succo, Radford, Hall, Bailey)","Lack of relevant previous convictions (Succo, Radford, Bailey)","Positive character references (Bailey)","History of employment (Bailey)","Used remand time positively (Succo)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[7],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Insufficient weight to totality principle","Insufficient credit for guilty plea","Sentence excessive given mitigation"],"SentGuideWhich":["Sentencing Council, Definitive Guideline on Offences taken into Consideration and Totality","Sentencing Council, Definitive Guideline on Drugs Offences","Sentencing Council Guideline on Reduction in Sentence for a Guilty Plea"],"AppealOutcome":["Bailey: Allowed & sentence reduced","Succo: Allowed & sentence reduced","McLeish: Dismissed","Radford: Dismissed","Hall: Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["For Bailey: Judge did not reduce from starting point despite mitigation and absence of aggravating factors","For Succo: Insufficient credit for early guilty plea"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge took all relevant factors into account and sentence was within guideline (McLeish, Radford, Hall)"]}
Neutral Citation Number: [2013] EWCA Crim 501 Case No: 201202725/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13 March 2013 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE WILKIE MR JUSTICE LEGGATT - - - - - - - - - - - - - - - - - - - - - Between : R E G I N A v ANTONIO CORTES PLAZA - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss N Bahra appeared on behalf of the Appellant Mr M Seymour appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOORE-BICK: On 5 April 2012 in the Crown Court at Kingston upon Thames before His Honour Judge Birts QC, the appellant was convicted of conspiracy to supply a class A drug, in this case cocaine. On 9 May 2012 he was sentenced to 14 years' imprisonment with a direction under section 240 of the Criminal Justice Act that 208 days spent on remand should count towards that sentence. 2. Two other accused, Johnny Delgado Cortezano and Humberto Caicedo-Ramirez, pleaded guilty on the same count and were each sentenced to eight years' imprisonment. A fourth accused, Adriana Maria Zabala-Zuniga, was acquitted. 3. The appellant now appeals against conviction by leave of the single judge. 4. The circumstances in which the appellant came to be arrested and later charged with the offence were these. 5. On 10 October 2011 he arrived at London on a coach from Spain which had come via Paris. He was carrying a black bag with a shoulder strap. He travelled to Shepherds Bush and stayed at a flat, Flat 19 Oaklands Court, until he was arrested two days later. It was common ground that the flat was being used as a centre for processing cocaine. Indeed, that was the basis for the guilty pleas entered by the other accused. However, the appellant denied any knowledge of or involvement in that activity. 6. It was the prosecution case that the appellant was involved in a conspiracy to import cocaine into this country and supply drugs from the flat. It invited the jury to infer that the appellant himself had either carried drugs or that he had acted as an escort for a woman courier with whom he had been seen in conversation at Victoria coach station and later identified on CCTV. It was said that his presence at the flat after his arrival showed that he had a continuing part in the conspiracy. In further support of its case the prosecution said that the account he had given of his entire journey from Spain via Paris to London was completely false. 7. In addition, the prosecution sought and was granted leave to rely on the fact that on 10 December 2010 the appellant had been convicted in the District Court of Haarlem of importing almost 4 kg of cocaine (the equivalent of 1.44 kg at 100 per cent purity) into the Netherlands hidden in the lining of his suitcase. 8. In ruling on the admissibility of the appellant's conviction the judge said that he had not found it a very easy point to decide, but he was satisfied that the evidence had powerful probative force and ought to be admitted. However, he said that he would direct the jury that whether it tended to establish a propensity on the part of the appellant to traffic in drugs was entirely a matter for them. 9. The appellant's case was that he had come to this country to join his friends and to find work. He said he did not know that the flat was being used to process cocaine and he had had nothing to do with it. In short, his defence was one of innocent association. 10. In due course the jury convicted the appellant. 11. His grounds of appeal are that the judge was wrong to allow the prosecution to put in evidence his conviction in the Netherlands and that as a result his conviction is unsafe. 12. The conviction in the Netherlands was adduced in evidence under section 101(1)(d) of the Criminal Justice Act 2003 which provides that evidence of a defendant's bad character is admissible if it is relevant to an important matter in issue between the defendant and the prosecution. It was and is accepted in this case that the conviction was relevant in that sense because it was relevant to establish a propensity on the part of the appellant to become involved in the importation and distribution of cocaine and was also relevant to his defence of innocent association. 13. However section 101(3) provides that the court must not admit evidence under subsection (1)(d) if it considers that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. That is the ground on which the appellant challenges his conviction. He says that although the evidence fell within the scope of section 101(1)(d), in a case where the whole of the prosecution case was based on inference the admission of his conviction was likely to have an overwhelmingly prejudicial effect on the jury and seriously undermine the fairness of the proceedings. Accordingly the judge should have refused to admit it. 14. In order to evaluate that submission it is necessary to consider for a moment the other evidence before the jury. An officer of the Serious Organised Crime Agency, a Mr Brown, said that on 12 October 2011 he was one of a team of officers who had made a forcible entry into the flat. The only person present was Miss Zabala-Zuniga, the wife of the co-accused Cortezano. A thorough search of the flat was carried out and a quantity of drugs was found behind one of the kickboards in the kitchen. A large block of cocaine was also found hidden in the back of the airing cupboard. There was a hydraulic press used for compressing diluted cocaine erected in the hallway and a large container of cutting agent was found in one corner of the kitchen together with other equipment used for the production of drugs. In one of the bedrooms the officers found a recipe in Spanish, which, although it did not specifically mention cocaine, contained a full set of instructions for recovering cocaine from impregnated materials. No steps had apparently been taken to conceal from any visitor to the flat the purposes for which it was being used. 15. Mr Michael Day, a forensic scientist, gave evidence that two rolls of wallpaper found at the flat, particularly in the form of lining paper, were suitable for use as a filter in the process of extracting cocaine from other materials. Within the flat there were various materials, acetone, ammonia, hydrochloric acid and others, together with written instructions necessary to undertake the process of the secondary extraction of cocaine from impregnated media. 16. In addition to the surveillance evidence and the items found at the flat to which we have referred, the prosecution relied on documentary evidence which it said showed that the appellant's account of his journey to London was false. 17. The documents showed that he had left Murcia on 4 October 2011 to travel by coach to Paris. The appellant claimed, however, that a friend by the name of Pedro had driven him to Barcelona where he had bought a ticket to Paris the next day. However, he said that after he had boarded the coach at Barcelona on 5 October he had received a text message from Pedro telling him of a job opportunity so he got off the coach and stayed in Barcelona. He said that on 8 October he had purchased a second ticket for Paris and travelled on to London by coach on a third ticket. 18. The appellant was arrested on the afternoon of 12 October 2012. His hands were swabbed and his clothing was later examined but no trace of drugs or anything else of relevance was found. He was in possession of three coach tickets, a piece of paper which referred to "Flaco, Bombi and Hermano" with telephone numbers, a business card from the Sani Hotel and a scrap of paper with "261 Uxbridge Road, Shepherds Bush w12 9ds" on it, and the words "sent from my iPhone" on which someone else had written in manuscript "Hammersmit" (sic) and "Sani Hotel". The wording corresponded exactly both in form and content with the typed form of a text from Cortezano's mobile to a man known as Bombi. The address was that of the Sani Hotel which is located a few hundred metres from flat 19. 19. A black suitcase was found in flat 19 which contained black clothing and a pair of child's roller skates which the appellant accepted belonged to him. The bag which he had been seen carrying when he arrived at Victoria coach station was not at the flat and was never recovered. Within hours of his arrival the appellant had been seen going to a department of Homebase with Delgado Cortezano and Caicedo-Ramirez where they bought rolls of wallpaper. 20. In this case, unusually, but for what we accept were good reasons, the judge considered the application to adduce the evidence of the appellant's conviction at the beginning of the trial so that at that stage he had not heard the evidence called in the course of the trial. Nonetheless, the evidential context in which he considered the application does not appear to have been significantly wide of the mark. 21. The existence of the conviction was dealt with by way of a formal admission. The appellant gave evidence to the jury explaining the circumstances in which he had come to be convicted, despite the fact that, as he said, he had not in fact committed the offence in question. 22. When he dealt with the matter in his summing-up, the judge directed the jury that they should disregard the conviction altogether unless they were sure, having considered the appellant's explanation, that he had actually committed the offence with which he was charged. He also pointed out that the conviction represented only a small part of the evidence in the case and directed the jury not to place undue weight upon it. Finally, of course, he directed them not to convict the appellant simply because of his previous conviction. 23. Miss Bahra, who has appeared on behalf the appellant, has provided us with substantial written skeleton arguments. She says that the prosecution case rested largely, if not entirely, on circumstantial evidence and submits that the admission of the evidence of the conviction in the Netherlands was overwhelmingly prejudicial because it had occurred such a short time before the matter with which he was then charged. She submits that once the evidence of that earlier conviction had been admitted the appellant had no choice but to seek to explain it. That made it necessary for him to give evidence and there was a real danger that the jury might convict him on the basis simply that they did not find his explanation credible. She also says that the judge was unable to mitigate sufficiently any prejudice to the appellant by the directions given in the course of summing up. In those circumstances she submits that to admit the evidence of the conviction for importing cocaine into the Netherlands fundamentally undermined the fairness of the trial. 24. In his extensive written skeleton argument Mr Seymour for the prosecution really makes the simple submission that the judge was right to admit the evidence of the conviction in the Netherlands, or, at any rate, that it was within the scope of his discretion to do so and that he dealt with the matter properly in his summing-up. 25. When giving his ruling the judge said that he had not found this a very easy point to decide, but it seems that he found it difficult only because he was conscious that the conviction was both powerful evidence of a propensity to engage in trafficking drugs, and therefore strongly supportive of the prosecution case, but also potentially prejudicial in the sense that the mere existence of a conviction might diminish the appellant in the eyes of the jury. 26. The purpose of section 101(3) of the Criminal Justice Act 2003 is to ensure that evidence of bad character which may prejudice the defendant in the eyes of the jury is not admitted unless it has real probative value. As the judge said when giving his ruling, it has some similarity with section 78 of the Police and Criminal Evidence Act 1984. The purpose of the subsection is to ensure that evidence of bad character is not admitted unless it has sufficient probative value to outweigh any risk of prejudice to the defendant and does not affect the fundamental fairness of the proceedings. If the matter constituting bad character is of only slight or peripheral evidential significance, the prejudicial effect of admitting it may well be such as to render the proceedings unfair. But the more powerful the evidential significance, the less likely it will be that to admit it will render the proceedings unfair. 27. It is very much a matter for the trial judge to decide on the basis of his own assessment of the case whether the admission of the particular evidence of bad character under consideration would render the proceedings unfair and this court will not interfere with his decision unless it is satisfied that it is clearly wrong. In the present case the judge thought that the evidence of the Dutch conviction had powerful probative force in tending to show that the appellant had a propensity to become involved in trafficking drugs and in rebutting the defence of innocent association. In our view he was right to take that view. Given the nature and circumstances of that earlier conviction, it is difficult to see how the jury could have been prejudiced against the appellant simply by virtue of the fact that he had been convicted of an offence of some kind. If, on the other hand, they considered that it was evidence of a propensity to become involved in supplying drugs, it is difficult to see how its admission can have rendered the proceedings unfair. It was for the appellant to decide whether to contest the facts of which the Dutch conviction was evidence. If, as was the case, he chose to do so, the jury was entitled to take what he said into account when assessing his overall credibility. Although some complaint about the extent of the cross-examination has been hinted at in counsel's skeleton argument, it does not form one of the grounds of appeal. 28. The judge dealt with the Dutch conviction in an entirely appropriate manner in his summing-up. He made it clear to the jury that they had to be sure that the appellant had in fact committed the offence before they could take it into consideration at all. He also explained its potential relevance to the issues of innocent association and propensity while making it clear that whether the conviction did in fact assist on either of those questions was entirely a matter for them. 29. In the circumstances we can see no grounds for saying that the admission of this evidence had an adverse effect on the fairness of the trial and we are satisfied that the conviction in this case is safe. The appeal must therefore be dismissed.	{"ConvCourtName":["Crown Court at Kingston upon Thames"],"ConvictPleaDate":["2012-04-05"],"ConvictOffence":["Conspiracy to supply a class A drug (cocaine)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[208],"SentCourtName":["Crown Court at Kingston upon Thames"],"Sentence":["14 years' imprisonment"],"SentServe":["Single"],"WhatAncillary":["Direction under section 240 of the Criminal Justice Act that 208 days spent on remand should count towards the sentence"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Surveillance evidence","Items found at the flat (drugs, equipment)","Documentary evidence (travel documents, tickets)","Forensic evidence (forensic scientist testimony)","CCTV"],"DefEvidTypeTrial":["Appellant denies offence (innocent association)","Appellant gave evidence explaining circumstances of previous conviction"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge wrongly admitted evidence of previous conviction in the Netherlands under section 101(1)(d) Criminal Justice Act 2003, causing unfair prejudice"],"SentGuideWhich":["section 101(1)(d) of the Criminal Justice Act 2003","section 101(3) of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge was entitled to admit the evidence of previous conviction; directions to jury were appropriate; conviction is safe"]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202201617/B1 [2023] EWCA CRIM 315 Royal Courts of Justice Strand London WC2A 2LL Wednesday 1 March 2023 Before: LADY JUSTICE SIMLER DBE MR JUSTICE GOOSE HER HONOUR JUDGE DHIR KC (Sitting as a Judge of the CACD) REX V GARY CHRISTOPHER PIGGOTT __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it likely to lead members of the public to identify that person as a victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 7 April 2022, following a trial in the Crown Court at Worcester before HHJ Cartwright and a jury, the applicant, Gary Piggott, was convicted of two counts of assault of a child under 13 by penetration (those were counts 1 and 2), three counts of sexual assault of a child under 13 and one count of causing a child under 13 to engage in sexual activity. The applicant was sentenced to concurrent sentences on each count with concurrent special custodial sentences of nine and a half years on counts 1 and 2, comprising terms of eight and a half years and an extension period of one year. 3. He was represented at trial by solicitors, Thomas Horton LLP, and counsel, Mr Naill Skinner, and now renews his applications for an extension of time of 19 days in which to seek leave to appeal against conviction and for leave following refusal by the single judge. He relies, in relation to the extension of time, on difficulties in adding his solicitor's telephone number to his contact list while at HMP Hewell; on the fact that his solicitors were, in his view, "very unhelpful" in providing him with assistance; and on the fact that he was moved in the course of that period to another prison. An application for leave to appeal against sentence was also refused by the single judge but that application has not been renewed. The Facts 4. The case concerned alleged sexual offending against a 12-year-old boy (to whom we shall refer as "C1") by the applicant at C1's home address on the nights of 29 and 30 May 2020. In short, having been invited to stay at a friend's house on the evening of 29 May 2020, the applicant entered C1's bedroom on numerous occasions and committed a series of sexual assaults on him. 5. The victim gave an ABE video recorded interview on 31 May 2020. In that interview he said that on the evening of 29 May 2020 he was in his bedroom which he shared with his younger brother. During the course of the evening the applicant entered the bedroom on a number of occasions. He said that the applicant had touched his bottom and inserted his finger into his anus on two separate occasions. The applicant touched his penis over his clothing and on one occasion got onto the bed, again touching his penis before pulling his trousers down and touching his penis skin to skin. He also said that the applicant put his penis into the applicant's mouth and that he had sucked it on two separate occasions and also that he kissed him on the lips. At one point he said that the applicant told him: "Don't tell anyone. Promise me". 6. On 31 May 2020 penile swabs were taken from C1 and examined for traces of DNA. At trial, an admission was made in relation to the DNA evidence in the following terms: "The summary of the forensic scientist’s findings is as follows: No saliva/DNA attributable to Gary Piggott was detected within the result obtained from the cellular fraction of [C1’s] penile swabs. This may be because Gary Piggott did not touch or suck [C1’s] penis. However, it is also possible that he did, but without the transfer of detectable levels of Gary Piggott’s DNA onto [C1’s] penis, or that any that may have been deposited has subsequently been removed from [C1’s] penis by actions such as washing or wiping. Therefore, overall in my view the scientific findings do not assist in addressing whether or not Gary Piggott touched/sucked [C1’s] penis, as alleged." 7. In his Defence case statement the applicant denied all counts on the indictment. He said that on the relevant date he attended a party and thereafter went to C1's mother address at her invitation. He stayed there for a while socialising and drinking. He was not drunk. She invited him to stay the night, which he did, sleeping on the sofa in the lounge and then leaving the following morning at around 5.30 am because he was unable to sleep comfortably. He said that during the night, at approximately 3.00 am, C1 came into the lounge. He was wearing pants and did not say anything. The applicant ushered him back to his bedroom, put a blanket over him and left him in his bedroom. The applicant denied that he had touched C1 inappropriately in any way. At trial the applicant gave evidence in his own defence and maintained those denials. 8. The judge gave a full good character direction to the jury in relation to the applicant. The jury were also told that the fact that the applicant had given evidence in his defence was a positive feature of the case and that they should take it into account when considering their verdicts. The Application for leave to appeal against conviction 9. The applicant's grounds of appeal against conviction are as follows: (i) grounds 1, 2 and 4 concern the information provided to the jury regarding the DNA evidence, which is said to have been misleading because the time and date of the swabs being taken was incorrect and an incorrect date was given in the summing-up. Further, the fact that there was no positive DNA evidence in the case, despite the copious samples taken, was an answer to the case. Had the crime been committed there would have been evidence of it. The fact that C1’s DNA was not found on the applicant’s own person was vital evidence but was not presented to the jury. Compounding this point, in interviews C1 stated that he ejaculated so there should have been DNA evidence matching his account. (ii) Ground 3 contends that the jury should have heard character evidence that the applicant baby-sat for other people and that he was a loving uncle with five nieces. In other words, his representation was inadequate because of the absence of character witness statements. (iii) Ground 5 is in summary a challenge to the fact that C1's mother did not report the allegations to the police. (iv) Ground 6 is that the victim incorrectly identified the applicant as his mother's boyfriend's brother. The applicant contends that his admissions that he took C1 back up to bed and co-operated with the police are both indicative of his innocence. The applicant also comments that C1 thought the attack might have been a dream. (v) Ground 7 is that there were inconsistencies between the original complaint made by C1's friend’s mother and C1's two interviews. In the original complaint he said that the applicant had an erection, but that was not mentioned by C1 in his ABE interview. (vi) Ground 8 is that during the trial C1 was represented as being autistic but this was never proved and that therefore misled the jury. (vii) Ground 9 is that C1 did not like his mother's boyfriend, and this may explain the allegation against the applicant. (viii) Ground 10 is that the police led C1 in his interview, inappropriately influencing his answers to questions. 10. In view of the criticisms made of trial counsel and solicitors the applicant was invited to and waived privilege. Detailed responses were provided by both. In his response, dated 8 July 2022, counsel refuted criticisms made of him by the applicant. We do not record all points made by him, but significantly, he dealt with the allegations relating to the DNA evidence. He explained that the DNA evidence was presented to the jury by way of pre-agreed facts and the summary of the forensic scientist's findings to which we have already referred. Counsel says that he submitted to the jury that the findings in fact supported the applicant's assertions that no sexual activity had taken place. However, he had also explained to the applicant in conference prior to the trial, and during the trial, that the absence of any DNA results did not mean that C1 was lying. Rather, it was just another feature of the case. Moreover, so far as the dating error is concerned, it was an error in the applicant's favour. He also explains that the jury were told that the applicant was a working man of good character and popular within his community. They were not told about baby-sitting because counsel was not aware of this and nor were his solicitors. In any event, counsel questioned whether this would have made any difference. The case was about what C1 said that the applicant had done to him on one occasion and there was no suggestion that the applicant had behaved inappropriately on any other occasion towards any other children. 11. So far as character witnesses are concerned, during the pre-trial conference on 1 April 2022, counsel says that the applicant told him there were no defence witnesses and that he did not think it necessary to call any character witnesses. He was well aware that the judge would give a full good character direction and that is indeed what happened. Consequently, no defence witnesses were required to attend trial and no statements were taken from anyone. The applicant agreed that the case was essentially one person's word against another. 12. So far as inconsistencies in C1's accounts are concerned, they were highlighted to the jury. All interviews were edited where appropriate and agreed with the applicant. Counsel has expressed his surprise at concerns raised by the applicant about the representation he received at trial because, during the course of the trial, the applicant and all others involved had agreed that the trial could not have gone any better. 13. The response from solicitors is dated 12 July 2022 and is to similar effect regarding the conduct of the trial and refuting criticisms made about the representation received. Solicitors also set out a chronology of their contact with the applicant and his family, making clear that there was no lack of communication with either the applicant or his family. 14. We have also been provided with and read the Respondent's Notice in this case, together with the applicant's comments on that document received on 12 September 2022. 15. Having read and considered all the material available in this case, we have concluded that there is no arguable merit in any of the proposed grounds of appeal and there is no arguable basis for concluding that any of the convictions are unsafe. We cannot improve on the reasons given by the single judge, who said the following: "1. Grounds 1, 2 and 4 (DNA evidence): You suggest that the information regarding DNA samples was not given to the jury correctly. It was: your barrister agreed 'admissions' with the prosecution which accurately reflected the DNA evidence, save for one error about the date on which the swabs were taken (on the Saturday evening rather than sometime on the Sunday) which the judge identified. However, the judge explained that this did not prejudice you: in fact, this operated to your advantage, because the absence of any DNA on the samples would have been more significant if the samples had been taken closer to the alleged crime. Crucially, the admissions explain that the DNA evidence was neutral or inconclusive. Your barrister advised you, correctly, that the absence of DNA evidence did not mean that the complainant was lying it was just one aspect of the evidence. However your barrister argued to the jury that they supported your case that no sexual activity had taken place. The judge carefully directed the jury that they should not speculate about this evidence as they were not experts. 2. Ground 3 (character evidence): You had plenty of opportunity to provide your legal team with the names of potential defence witnesses and your barrister says in terms that you said that there were none, accepting that it was the complainant's word against yours. He was not aware of any evidence of you babysitting. In any event, evidence that you had, for example, babysat for other children would be unlikely to have significantly influenced the jury, given the clear evidence that you had sexually abused this particular child. The judge also ensured that the jury was given a full direction about your good character. The jury was told that you were a SJ working man and popular with members of your community. 3. Grounds 5, 6, 7, 8, 9 and 10 (the complainant). You note that the complainant had said he had been alone a lot leading up to the date of the allegation and had said he had been unable to tell if he felt hungry, thirsty and sad. You also refer to the fact that he does not get on with his mother's boyfriend and matters of that nature. However these have little or no relevance to the nature of the complaints he made against you. The fact that he has autism was not relevant to the key issues for the jury to decide. He was asked few if any leading questions. He said the room was lit from the television. The complainant may have been incorrect when he said that you were his mother's boyfriend's brother, but again this is not significant. No other adults were said to be in the house other than you and the complainant's mother when the offences occurred. He was asked by the police whether he thought what he had described was a dream and he said "no". He also made this clear in his answers in cross-examination. Generally, the inconsistencies in the complainant's account were highlighted to the jury. It is correct that the initial complaint did not come from the complainant's mother but this was not a case of any delay in the reporting." 16. Ultimately, this was a case involving a stark conflict in the evidence. One person was not telling the truth. The jury heard all the evidence and concluded that person was the applicant. Their verdicts were unarguably safe. The applicant was professionally represented by an experienced defence team. The team has responded comprehensively to the criticisms made of them and we are satisfied that the conduct of this trial was not arguably inadequate. Indeed, it is of note that after seven and a half hours' deliberation the jury returned majority verdicts in this case indicating that two members of that jury were not satisfied by the Crown's case. 17. In the result, the application is refused for all these reasons. Since no purpose would therefore be served in extending time, it is unnecessary to consider that application. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Worcester"],"ConvictPleaDate":["2022-04-07"],"ConvictOffence":["Assault of a child under 13 by penetration","Sexual assault of a child under 13","Causing a child under 13 to engage in sexual activity"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Worcester"],"Sentence":["Concurrent special custodial sentences of nine and a half years on counts 1 and 2, comprising terms of eight and a half years and an extension period of one year"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[12],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["ABE video recorded interview","Forensic DNA evidence","Victim testimony"],"DefEvidTypeTrial":["Offender denies offence","Alibi claim","No DNA evidence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no relevant previous convictions","Offender is a working man of good character and popular within his community"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Jury misled regarding DNA evidence","Inadequate representation due to lack of character witnesses","Failure to report by victim's mother","Victim incorrectly identified applicant","Inconsistencies in victim's accounts","Victim's autism misrepresented","Victim's motive questioned","Police led victim in interview"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["DNA evidence was presented accurately and was neutral/inconclusive","Applicant had opportunity to provide character witnesses and declined","Jury was properly directed on good character","Inconsistencies in victim's account were highlighted to the jury","No evidence of inadequate representation","Jury verdicts were safe"]}
Neutral Citation Number: [2013] EWCA Crim 435 Case No: 201206983 C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT Before HHJ MATTHEW T20120931 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/04/2013 Before : LORD JUSTICE TOULSON MR JUSTICE MACKAY and SIR DAVID CALVERT-SMITH (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: ROBEL GIDE ASMERON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr F Gaskin instructed for the Appellant Mr E Sareen instructed for the Respondent Hearing date: 22 February 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Toulson: 1. Robel Asmeron pleaded guilty at Isleworth Crown Court on 12 November 2012 to entering into the United Kingdom without a passport, contrary to section 2(1) and (9) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The particulars of the offence were that on 5 July 2012 at a leave or asylum interview he failed to have with him an immigration document which was in force and satisfactorily established his identity and nationality or citizenship. He pleaded guilty after the trial judge, HHJ Matthews, acceded to an application made by the prosecution at the outset of the trial for a ruling that he had no defence to the charge. The judge passed a sentence of 8 months’ imprisonment, which he later varied under the slip rule to a sentence of 5 months’ imprisonment. 2. The matter came before this court on an application for permission to appeal against conviction and sentence, which the registrar referred to the full court. At the conclusion of the hearing we granted permission to appeal, allowed the appeal and quashed the conviction, stating that we would give our reasons in writing. 3. On 5 July 2012 the appellant arrived at Heathrow Airport on a flight from Khartoum and claimed refugee status. He said that he did not have a passport because he had given it to a businessman to arrange his flight. An asylum screening interview was conducted on the following day by a Border Agency official. In summary, the appellant’s account was that he had come from Eritrea to the UK via Sudan. He fled Eritrea to avoid onerous and excessive military service and feared that if he were returned to Eritrea he would be at risk of persecution. He travelled to Khartoum illegally but had a valid Eritrean passport with him. In Khartoum he paid an agent for his flight to the UK. He gave the agent his passport because the agent asked for it. The agent gave him a different passport to use when checking in and boarding, but he did not retain it. He explained what happened as follows: “Q. What document did you use to board the plane? A. The one he gave me. Q. Do you know what passport it was? A. No I don’t. Q. What colour was it? A. A shade of blue. Q. Did you hold it, use it for check in? A. I didn’t get much of a chance to look at it except for when boarding and checking in.” 4. The officer conducting the interview did not ask further questions about what happened to the false passport, and it is unclear from the interview whether the passport was handed back to the agent prior to departure in Khartoum or on arrival in the UK. 5. Before the trial the appellant’s solicitors served on the prosecution a report by Professor Kibreab, an expert on the subject of Eritrea and Eritrean refugees. 6. The prosecution responded in a letter dated 22 October 2012: “I write in respect of your proposed defence expert, Professor Kibreab. The Crown takes the view that the report of Professor Kibreab is not relevant to the case and to the defendant’s defence. We take the view that the admissibility of Professor Kibreab’s report should be decided by way of preliminary argument prior to the trial. In our view, such argument should be decided on the morning of the trial listing by the trial judge. The Crown appreciates the practical aspects of calling a professional witness such as Professor Kibreab. In these circumstances, and to save expense and inconvenience, the Crown will agree that if the learned judge rules that the evidence of Professor Kibreab is relevant then this evidence may be given in a format not requiring the attendance of Professor Kibreab.” 7. In his lengthy report Professor Kibreab dealt principally with the risks which the appellant would face on return to Eritrea, concluding that as a draft evader and failed asylum seeker he would be likely to face imminent risk of persecution upon return to Eritrea. At the end of the report he made these comments about the handling of the appellant’s passport: “ 13.0 The extent to which an individual “traveller” can challenge an agent about arrangements for the trip. 13.1 Although I cannot be certain about every case, in the majority of cases the agents who smuggle people are connected to a chain of criminal transnational networks. 13.2 In comparison to smugglers, the individual that buys their services is often in a very vulnerable position and therefore his or her possibility to challenge the decision of the smuggler is either minimal or non-existent. 13.3 Mr Asmeron’s claim that he had a limited or no say in the matter of handling the passport is consistent with what goes on in the dark world of human traffickers and smugglers.” 8. Counsel for the appellant anticipated that there would be argument before the trial began about the admissibility of Professor Kibreab’s evidence. He did not anticipate that the prosecution would go further and would ask the judge to rule at the outset that the appellant had no defence. 9. Section 2 of the 2004 Act provides, so far as material as follows: “(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which— (a) is in force, and (b) satisfactorily establishes his identity and nationality or citizenship. … (4) It is a defence for a person charged with an offence under subsection (1)— (a) to prove that he is an EEA national, (b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom, (c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1), (d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or (e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document. … (7) For the purposes of subsections (4) to (6)— (a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was— (i) for a reasonable cause, or (ii) beyond the control of the person charged with the offence, and (b) in paragraph (a)(i) “reasonable cause” does not include the purpose of— (i) delaying the handling or resolution of a claim or application or the taking of a decision, (ii) increasing the chances of success of a claim or application, or (iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice. ” 10. The only document falling within section 2(1) which the appellant ever had (i.e. a valid immigration document which satisfactorily established his identity and nationality) was his Eritrean passport, which he handed over to the agent in Khartoum. The appellant’s defence was that he had a reasonable excuse for not being in possession of that document on his arrival in the UK and accordingly had a defence under section 2(4)(c). 11. In his ruling the judge set out the relevant statutory provisions and summarised the facts as they appeared from the prosecution witness statements. He made no reference to the expert’s report. He quoted the following questions and answers from the screening interview: “Q. Why didn’t you bring your passport to the UK? A. The agent kept it as there was a third party involved and a payment to be made. I was under the control of the agent. Q. Why did you do what the agent told you? A. Because I don’t have any past experience of these things. Q. Did they threaten you? A. He warned me to strictly follow his instructions. Q. What would happen? A. I don’t know, because of my lack of awareness I followed his instructions.” 12. The judge continued: “It wasn’t suggested by the defendant at any stage that his failure to bring the passport with him was because, for example, he was frightened of the consequences, he did leave the passport with the agent, or indeed for any other reason which might demonstrate that it was unreasonable to expect you not to comply with the agent’s instructions or the agents of the third party. He simply stated that his failure to bring the passport with him or to retain his Eritrean passport was a direct result of his complying with the agent’s instructions which the section that I have already recited, namely 2(7)(b)(iii) does not constitute a reasonable cause and in my judgment, it follows that the defendant has not discharged the evidential burden on him of showing reasonable cause or reasonable excuse as set out in section 2(4)(c) … Accordingly, as invited to do, in my judgment, there is no defence to this charge. ” 13. The prosecution was wrong to ask the judge to rule as he did, and the judge was wrong to do so, for a number of reasons. 14. First, the judge was wrong to rule that “there is no defence to this charge” before the case had even begun. A defendant’s counsel may sometimes ask the judge at the outset of a trial to give a ruling whether on certain facts a particular defence would be open to the defendant, or to indicate how the judge would propose to direct the jury in relation to that issue, with a view to giving advice to the defendant about his plea. However, that was not the situation in this case. The proper time for the judge to have considered how to direct the jury in relation to a defence under section 2(4)(c) would have been after the evidence had been given. 15. Secondly, if the evidence had been as foreshadowed in the material which was before the court, it would have been wrong in principle for the judge to have ruled as a matter of law that the appellant had no available defence. The question whether the evidence was sufficient to persuade the jury on the balance of probability that he had a reasonable excuse for not being in possession of his Eritrean passport would have been a matter for the jury to decide. Even if the judge had been satisfied that no reasonable jury could have resolved that issue in the appellant’s favour, he would still have been wrong to have withdrawn the defence under section 2(4)(c) from the jury. That would have been to usurp the jury’s function. 16. “Reasonable excuse” is an ordinary expression requiring an evaluative judgment to be made by the jury. What may constitute a “reasonable excuse” is qualified by the provisions of section 2(7), but it is for the jury to apply those qualifications, where relevant, to the facts as they find them. So, in the present case, it would have been for the jury to decide whether it was unreasonable to expect the appellant not to follow the agent’s instructions to hand over his passport to the agent in Khartoum. 17. Various cases were cited where parallel questions have arisen in the context of other statutory offences to which a “lawful excuse” or “good reason” may be available as a defence (whether for the prosecution to disprove or for the defendant to establish). 18. In Kelleher [2003] EWCA Crim 3525 the appellant smashed a statue of Lady Thatcher which was on loan from the House of Commons to the Corporation of London Art Collection. He was charged with an offence under section 1 of the Criminal Damage Act 1971 , which begins with the words “A person who without lawful excuse destroys or damages any property belonging to another…” It was argued on the appellant’s behalf that he had a lawful excuse, because he was seeking to draw attention to his strongly and sincerely felt concerns that the policies of the United Kingdom and certain other Western countries were leading the world towards its destruction. The court held that the trial judge was right to direct the jury that the appellant’s explanation of his conduct did not fall within the reach of what was capable of being a lawful excuse within the meaning of the statute, but that the judge had been wrong to go on to direct a verdict of guilty. That was obviously an extreme case, and one can readily understand that it cannot have been Parliament’s intention that a desire to make a political point, and attract publicity for it, should afford a lawful excuse for the deliberate destruction of another person’s property. 19. Kelleher was approved by the House of Lords in Wang [2005] 2 Cr App R 8 at [14]. Wang also shows the exceptional nature of Kelleher . In Wang the appellant was charged with two counts of having an article with a blade in a public place, contrary to section 139(1) of the Criminal Justice Act 1988 . Under that section it is a defence for a person to prove that he had “good reason” for having the article with him. The appellant was found in the street in possession of a martial arts sword and a small knife. His evidence at the trial was that he was a Buddhist who practised a martial art connected with his religion. On the day in question he was on his way to his solicitors and had taken the sword and knife with him, because he did not like to leave them at the place where he was staying. The trial judge ruled that the “good reason” defence was not available to him and directed the jury to return guilty verdicts. His conviction was quashed by the House of Lords. 20. The House of Lords recognised, as was common ground, that a judge may withdraw a defence from the consideration of the jury if “there is no evidence whatever to support it”, but drew a distinction between that situation and one where there is evidence before the jury in support of the defence, albeit that no reasonable jury properly directed could reach any other conclusion than that the defendant was guilty. In drawing that distinction the court followed the decision of the majority of the House of Lords in DPP v Stonehouse [1978] AC 55 . Lord Bingham at [13] referred to the rationale of the majority opinions in Stonehouse as being “that no matter how inescapable a judge may consider a conclusion to be, in the sense that any other conclusion would be perverse, it remains his duty to leave the decision to the jury and not to dictate what that verdict should be.” Applying that approach to the facts of Wang , Lord Bingham said at [17]: “The nature and extent of the appellant’s religious motivation had been the subject of evidence. The appellant’s evidence of not wanting to leave the weapons at home with no one to look after them may well have given rise to nuances (to adopt the language of Lord Keith in Stonehouse ) not recognised by the judicial mind. These were pre-eminently matters for evaluation by the jury.” 21. The prosecution relied on a more recent decision of this court in Clancy (2012) EWCA Crim 8 [2012] 2 Cr App R 7 . This was another case of a prosecution under section 139(1) of the Criminal Justice Act 1988 for having a bladed article in a public place. Unfortunately the court was not referred in that case to the decision of the House of Lords in Wang . Moore Bick LJ said at [20]: “The authorities…establish that the expression “good reason” is not one that calls for judicial explanation, being an ordinary phrase in common use. In those circumstances it would be wrong for judges to hedge it around with rules of law designed to limit its scope or meaning. In some cases the court may be justified in ruling that certain facts are incapable of constituting a good reason, but it should be slow to do so. Such a course can be justified only if a finding that a good reason existed would be perverse. Normally, therefore, judges should simply direct the jury that, having found the facts, including, if appropriate, the facts as to the accused’s state of mind, they should decide whether they amount to a good reason. No further elaboration is required…The distinction between what does amount to a good reason (a matter for the jury) and what is capable of amounting to a good reason (a matter for the judge) was explained in the case of Bown [2003] EWCA Crim 1989 , [2004] 1 Cr App R 13 , but we would reiterate the observation made in that case that the court should be very slow to rule that a particular state of facts cannot as a matter of law constitute a good reason.” (Original emphasis) 22. The prosecution relied on that passage for the statement suggesting that a trial judge may properly rule that facts are incapable of constituting a good reason if a finding that a good reason existed would be perverse. That suggestion must, with respect, be treated as per incuriam, because it is contrary to Wang , which was not cited in Clancy . The fact that a defence might be considered hopeless on the merits is not a good reason for a judge to withdraw it from the jury. The court can only rule that the explanation advanced by a defendant is incapable in law of amounting to a good reason or a reasonable excuse if it can properly be said, on the true construction of the Act, that it would be inconsistent with the essential nature and purpose of the offence for the defendant’s explanation to be capable of amounting to a defence. Kelleher is a good example. In the present case it could not be said that it would be contrary to the manifest purpose of the statute for the appellant’s explanation to be regarded by the jury as a reasonable excuse. 23. Thirdly, there would in any event have been no perversity in a jury concluding on the material before the court that a defence under section 2(4)(c) was made out. More particularly, a jury might well have concluded that it was unreasonable to expect the appellant not to hand over his Eritrean passport to the agent in Khartoum, when the agent asked for it. The uncontradicted evidence in the expert’s report suggested that the appellant would have been in real danger on return to that country. To get out of Sudan to the UK, he needed the assistance of an agent. A jury may well have concluded that in those circumstances he would have had little option but to do as the agent told him, as was the opinion of the expert witness. 24. Mr Sareen in his submissions accepted, rightly in our view, that a jury might have found the appellant’s conduct in that respect to be reasonable, but he submitted that a defence would only have been available to the appellant if he could establish, also, that he had a reasonable excuse for not producing the false passport on which he travelled to the UK. That was not the basis of the judge’s ruling and the argument is fallacious. The defence under section 2(4)(c) contains no such qualification. As Lord Phillips CJ held in Soe Thet v DPP [2006] EWHC 2701(Admin) at [20], that defence applies where the immigrant has a reasonable excuse for not possessing an immigration document of the kind specified in subsection (1), i.e. a genuine document referring to the immigrant that is in force. The defence provided by subsection 4(c) is unrelated to any false document on which the immigrant may have travelled. The other paragraphs of subsection (4) create alternative defences, as is plain from the word “or” at the end of paragraph (d). Production of a false immigration document may provide a separate defence under section 2(4)(d), but non-production of such a document does not vitiate a defence available under subsection 4(c). 25. For all those reasons it would not be just for the appellant’s conviction to stand.	{"ConvCourtName":["Isleworth Crown Court"],"ConvictPleaDate":["2012-11-12"],"ConvictOffence":["Entering into the United Kingdom without a passport, contrary to section 2(1) and (9) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Isleworth Crown Court"],"Sentence":["8 months’ imprisonment (varied to 5 months’ imprisonment under the slip rule)"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Prosecution witness statements","Screening interview transcript"],"DefEvidTypeTrial":["Expert report/testimony (Professor Kibreab)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Trial judge wrongly ruled at the outset that the appellant had no defence under section 2(4)(c) of the 2004 Act","Judge usurped the jury's function","Judge failed to consider expert evidence"],"SentGuideWhich":["Section 2(1), (4), (7), and (9) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Judge wrongly ruled there was no defence before evidence was heard","Judge usurped the jury's function by not allowing the jury to consider the defence","Expert evidence was not considered","It was for the jury to decide if the appellant had a reasonable excuse under section 2(4)(c)"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2018] EWCA Crim 2872 Case No: 201603341 B4/201603903 B4 IN THE COURT OF APPEAL CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Thursday, 15 November 2018 Before : LADY JUSTICE SHARP DBE MR JUSTICE GOOSE THE RECORDER OF RICHMOND UPON THAMES – HIS HONOUR JUDGE LODDER QC (Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - Between : R E G I N A v NADEEM AKHTAR Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr J Bennathan QC and Mr B Grennan appeared on behalf of the Appellant Mr S Bailey appeared on behalf of the Crown J U D G M E N T (Draft for approval) LADY JUSTICE SHARP: Reasons for judgment 1. On 8 June 2016, at the Crown Court at Stafford, the appellant was convicted after a retrial of attempted murder. On 21 July 2016, he was convicted after a trial at the same court of violent disorder. He was later sentenced to 18 months' imprisonment for the offence of violent disorder and to 18 years' imprisonment to be served consecutively for the offence of attempted murder. 2. The appellant now appeals against both convictions with leave granted by the full court. The cases are factually connected and have been listed to be heard together. 3. The background to the events in question was a long-running feud between two families or groups and associated individuals who lived in the same area of Burton and three incidents of violence which occurred in June and July 2015. The appellant's group included his brother Rehan Akhtar, other family members and Mohammed Zufeer. They will be referred to as group 1. The opposing group, referred to as group 2, included three brothers: Mohammed Aqil, Mohammed Aziz and Mohammed Shakil. 4. The first incident occurred on 12 June 2015, when a violent confrontation occurred between both groups on Shobnall Street in Burton. This is a street where both families lived about a hundred yards from each other. 5. The second incident occurred on 17 July 2015, when Shakil was attacked by two men, alleged to be the appellant and Rehan Akhtar, sustaining serious injuries. The appellant and Rehan Akhtar were arrested, interviewed and released on police bail on 20 July 2015. 6. The third incident occurred later that day, that is after the appellant and Rehan Akhtar had been released on bail. At about 9.56 pm that evening Aziz was struck from behind by a Ford Mondeo car which deliberately mounted the pavement in Shobnall Street and drove into him. Aziz sustained serious injuries, including a major trauma to his head, and he remains in a coma to this day. 7. The appellant was charged with offences relating to all three incidents: violent disorder, the first incident; grievous bodily harm, together with Rehan Akhtar, the second incident; and attempted murder, the third incident. Zufeer was charged with assisting an offender. 8. There were three trials in all, two relating to the second and third incidents, which took place before the trial in relation to the first incident. The first trial, trial 1, on the charges of attempted murder and grievous bodily harm, took place in January 2016 before His Honour Judge Chambers QC, the Honorary Recorder of Stafford. The jury were discharged for reasons that are not relevant. 9. The retrial, trial 2, took place in June 2016 before the same judge. At trial 2, where the appellant was represented by new counsel, Mr Evans QC (as he then was), the appellant was convicted of attempted murder, but both he and Rehan Akhtar were acquitted of grievous bodily harm. At trial 2 Zufeer was convicted of assisting an offender. 10. Trial 3, which took place in July 2016, was the trial for violent disorder. It involved a number of accused from both groups, including the appellant and Aqil. They, and all but one of the other accused, were convicted of violent disorder. 11. The grounds of appeal concern (i) the introduction of hearsay evidence at trial 2, namely what Aziz said to Aqil in a short telephone call seconds before he was run down, when he named the appellant as one of those who were following him, and the judge's summing-up of that issue; (ii) a decision made by the appellant's then counsel, Mr Evans QC, not to require Aqil to give live evidence about that call at trial 2 - the raising of this issue has required a waiver of privilege by the appellant; (iii) fresh evidence about Aqil that emerged during the course of trial 3; and (iv) the conduct of Aqil at trial 3, in particular his repeated references during the course of his evidence to the condition of Aziz and incident 3. 12. In order to put these grounds into context it is necessary first to give an account of what took place at these various trials. 13. Trial 1, the second and third incidents. The telephone call to which we have just referred occurred about 30 seconds before Aziz was run down when Aziz, according to a witness statement Aqil made shortly after the incident, rang Aqil and said, "The bastards are behind me, Frank and Rehan, come outside". Aqil then stepped out of his house to find Aziz lying severely injured on the pavement. The Ford Mondeo had by then sped off. It is common ground that the appellant is called Frank and that the reference to Frank and Rehan was to the appellant and his brother. 14. The prosecution applied at trial 1 for permission to admit evidence of what Aziz had told Aqil as hearsay under section 116(1) of the Criminal Justice Act 2003 (PACE). That application was opposed. 15. The judge, in a careful ruling, decided it was admissible under the 2003 Act and did not fall to be excluded under section 78 of the Police and Criminal Evidence Act. He also ruled that the conversation was admissible as part of the res gestae. 16. The same issue arose at the retrial. The same stance was taken by the parties with the same result. The judge reiterated his reasons for acceding to the application and ruled that the hearsay was admissible both as res gestae and under section 116(2)(b) of the 2003 Act. He refused to exclude it under section 78 of PACE or under section 126 of the 2003 Act. 17. The prosecution's case at trial 2 was that the appellant was one of two people travelling in the Akhtar's family Ford Mondeo when it was deliberately driven into Aziz. As part of their case, the prosecution relied upon the hearsay evidence of what Aziz had said to his brother in the call. They conceded he was wrong to say Rehan was one of the two men because there was clear evidence that Rehan was in Birmingham at the relevant time. 18. Aqil was not called to give evidence. Instead, his statement was read as unchallenged hearsay evidence. 19. The prosecution also relied upon mobile telephone usage and vehicle number plate recognition evidence, which it was contended supported their case as to the placement of the appellant and the car at relevant times. 20. After the Ford Mondeo was driven from the scene it was found abandoned in a pub car park in Burton with its windscreen and number plates removed; signs, in other words, that someone had attempted to disguise its ownership. 21. There was evidence that the appellant had telephoned Zufeer just after 10.00 pm on the evening of the assault, a call which the prosecution said was for his assistance in relation to the aftermath, that is to dispose of the car and other evidence. There was a dispute at trial in relation to cell site evidence concerning this call and whether it was consistent with the call having been made from the appellant's home rather than from the point at which the Mondeo was to be seen, as supported by the ANPR evidence. 22. In his evidence, Zufeer admitted driving the appellant and another man away from the area, albeit he denied this was done for the purposes that the prosecution alleged. 23. The prosecution also relied on what the appellant said following his arrest, which took place in Bescot in the West Midlands on the evening of 21 July 2015. The appellant made no comment when cautioned but in the police car made unprompted comments about an unregistered mobile phone that he now possessed. He said, "I've only bought it today. I was hoping you wouldn't find me, give me a chance lads." When he was interviewed by the police he made no reply to all questions asked. 24. Against this background, the prosecution based its case on a number of strands of evidence. The ongoing feud between the appellant's family and the victim's family, which gave clear evidence of a motive to carry out the attack upon Aziz. This was reinforced by the sequence of events which preceded the attack, namely incidents 1 and 2 and the appellant's release on bail. The appellant's connection to the Ford Mondeo. The cell site evidence which placed the appellant in the area at the time of the attack, albeit it was also consistent with the appellant being at his home address. The timing of the telephone call between the appellant and Zufeer immediately after the offence, which tied the appellant to someone who had clearly been involved in disposing of evidence after the attack. In this connection there was strong forensic evidence linking Zufeer and the Ford Mondeo car. Phone evidence and ANPR material showed the movement of the appellant and his phone away from Burton in the direction of the West Midlands immediately after the attack. Other evidence included the appellant's use of his mobile phone viz his abandonment of it after the call to Zufeer and his replacement of it with an untraceable phone. In addition, there was evidence that the appellant had contacted a mobile vehicle recovery operative from Walsall from his new phone number the following day and the appellant's unprompted comments to the police after his arrest. 25. The appellant did not give evidence in his own defence but put the prosecution to proof. At trial 1, Aqil had given evidence but the appellant's counsel had withdrawn on the grounds of professional embarrassment before Aqil could be cross-examined, which had led to the trial being aborted. At trial 2, Mr Evans QC made a decision, with the agreement of the appellant, not to ask Aqil any questions. This decision was based in part on the fact that Aziz had made a mistake by saying that Rehan Akhtar was one of the two men who were following him. 26. On behalf of the appellant, it was not argued before the jury that Aziz's evidence as to what he had been told by his brother was inaccurate. Instead it was said that the identification by Aziz was unreliable and that the telephone usage before the incident was consistent with the appellant being at home because he lived in Shobnall Street. The appellant further relied on the evidence of his co-accused Zufeer. 27. The following passages from the judge's summing-up are material: "Next topic, identification evidence. The prosecution case on Count l depends on the identification evidence of the witness Mohammed Shakil. You should exercise caution when considering identification evidence. That is because a witness who is genuinely convinced of the correctness of his identification may be mistaken, even in cases of purported recognition. Therefore you should consider the circumstances in which the identification came to be made, how long was the suspect under observation, at what distance, in what light? Was the observation impeded in any way? Had the suspect seen the suspect before (sic) i.e. was this recognition? And if so, how often and in what circumstances? What period elapsed between the observation and the identification? Was there any material difference between the description given by the witness at the time and the suspect's actual appearance? The witness Mohammed Shakil stated that he's known the Defendants, Nadeem Akhtar and Rehan Akhtar, all his life and recognised them as his attackers. It was not challenged that he would be able to recognise them. It was put to him that he was lying in accusing them. Next heading is hearsay evidence. And that relates in this case to what Mohammed Aziz has said to his brother, Mohammed Akil, you remember, on the telephone call immediately before he was struck by the Mondeo. So you heard evidence from Mohammed Akil as to what his brother, Mohammed Aziz, said to him by telephone immediately before he was struck by the Mondeo car on the Monday, 20th July. You've heard this evidence as an exception to the rule against the admissibility of hearsay because the maker of the statement said to have been made is too ill to attend Court, because it is said to have been a spontaneous reaction to a sudden - and because it is said to be a spontaneous reaction to a sudden incident. However, it's important that you approach this evidence with care. What the deceased - and obviously not the deceased, can you put a line through that and put 'Mohammed Aziz'. Sorry, that's my error. What Mohammed Aziz is said to have stated is not disputed by the defence. The statement of Mohammed Akil was read to you as unchallenged. At 21.55 hours and 30 seconds he received a telephone call from his brother in which his brother stated, 'The bastards are behind me, Frank and Rehan. Come outside.' The CCTV shows that he was struck by the Mondeo at 21.56 hours and 4 seconds. What is disputed is the reliability and accuracy of what Mohammed Aziz said. You should bear in mind that what Mohammed Aziz said has not been tested or explored on oath by cross-examination in the witness box. You should examine carefully the circumstances in which the statement was made. How reliable was the maker of the statement? That is, Mohammed Aziz. For example, what did he see? For how long and in what circumstances? You should have regard to the fact that on any view he was mistaken in asserting that Rehan Akhtar was present, because the prosecution accept that he was not in the car. You should scrutinise this evidence in the context of all of the evidence and give it such weight as you think fit." 28. We turn next to the violent disorder incident. On the evening of 12 June 2015, shortly before 8.30 pm, a violent confrontation took place between two groups of Asian males in Shobnall Street, Burton. The incident was observed by a number of eyewitnesses and part of it was captured on mobile phone video footage, which we have seen. 29. It was accepted by all defendants that a violent disorder had occurred, but save for one defendant who was acquitted the common issue was self-defence. 30. The incident began when a Skoda owned by Shakil was deliberately driven into a stationary Volkswagen Passat owned by the appellant. The Skoda was seen to swerve across the road before the impact. Witnesses observed the appellant and at least one other male exit from the Passat while at least three males exited from the Skoda. Others came from nearby houses. Within a short time two groups of males, each armed, were facing one another across the road, shouting and swearing. The owner of the Passat, said to be the appellant, was seen to argue and shout in a heated manner, before he went to the boot of his car and handed out at least three baseball bats to other Asian males. Another man from the Passat was seen to be holding a small rock hammer. An older male, said to be a brother of the appellant, came from a house holding a paving slab above his head before throwing it towards group 2 on the other side of the road. 31. Two residents captured part of the incident on their mobile phones. While not capturing the collision, the footage showed the middle and later part of the incident and the immediate aftermath. Nine males could be seen on the recording, some with weapons in their hands, engaged in a violence confrontation. Bricks were thrown by both groups across the road at each other. Pedestrians and traffic sought to pass safely. Onlookers were terrified and feared for their personal safety. 32. During the trial the mobile phone footage was played to the jury. It was not disputed by the appellant that he could be seen on the footage. The appellant was shown to have a baseball bat in his hand and threw an item across the road at the opposing group. In a further video recording the appellant was shown crossing the road towards group 2 with a baseball bat and a hammer. The video recording also showed that the Skoda driven by Shakil contained weapons which were later held by him and Aqil during the incident of violent disorder. 33. The prosecution's case against the appellant was that he had engaged in a violent confrontation using or threatening unlawful violence, causing bystanders to fear for their safety. The prosecution contended that that appellant had not been acting in lawful self-defence. The evidence proved, said the prosecution, that the appellant had a weapon in each hand before charging across the road at group 2. The appellant could also be seen involved in the throwing of objects and missiles at group 2. 34. The appellant's case was that he had been under attack from the beginning of the incident and was seeking to lawfully defend himself and his family from the violence of the group. 35. Aqil was a co-accused in the violent disorder trial. His defence initially was to deny presence at the scene. The prosecution's case against Aqil was that he had been positively identified by a police officer, DC Marriot, who knew him well. Aqil denied having ever met the police officer. DC Marriot was recalled to give evidence and produced body camera footage of an occasion on 5 August 2015 when he had visited Aqil at his home address to discuss safeguarding issues given the escalating violence between the two groups. A transcript of the conversation recorded on video was later produced. This had not been disclosed before the trial. 36. Once Aqil appreciated the significance of this evidence he withdrew his instructions from his legal representatives, criticising their conduct of his defence. New solicitors and counsel were instructed and after a short adjournment trial 3 continued. Aqil changed his defence. He now accepted that he was present at the scene of the violent disorder but said that he, like his co-accused, acted in law self-defence. 37. Before Aqil was able to appoint new legal representatives it emerged that he had spoken to a police officer, DS Bloor, outside court and had threatened to attempt to derail the trial in order to secure a retrial, if he was required to represent himself,. He told the officer that he would ask the appellant in cross-examination about the attempted murder. By this time, of course, the attempted murder trial, trial 2, had reached a conclusion and the appellant had been convicted of that offence. 38. In the absence of the jury DS Bloor gave evidence and described what Aqil had said to him. The evidence was relied upon in later applications to discharge the jury. 39. The appellant gave evidence in his own defence and described his conduct as being in lawful self-defence. Faced with a group attack upon his car and his family he said that he had not acted unlawfully. Other defendants gave evidence and each described their violence as being lawful. Significantly so far as this appeal is concerned, Aqil was asked by his own counsel why he had made no comment to questions by the police and stated as follows: "I would like the jury to listen to this part please. Give me that second. I refused to answer any questions when I was lifted at the police station because on 20 July somebody ran my brother over and left him for dead ... I was distressed. My brother was fighting for his life in Stoke hospital ... He was gone under 13 times ... I had my brother. I was distressed, like I'm distressed here. I'm distressed in this dock. I am distressed ... My brother's still fighting for his life. He's never woke up. It's eleven and a half months. I've just got to the tell the jury that ... I've got to tell everybody in this room. That's all I'm going to say." 40. As it emerged, that was not all he was going to say. At the end of the evidence-in-chief of Aqil but before cross-examination an application was made on behalf of the appellant for the jury to be discharged and for the indictment to be severed. It was submitted that Aqil had deliberately raised the subject of the attempted murder in order to prejudice the defence of the appellant and the members of group 1. 41. Reliance was also placed upon the evidence of DS Bloor, who described Aqil's threat to derail the trial. His Honour Judge Eades ruled against the application, deciding that the answer given by Aqil was his reason for not answering police questions in interview. Further, any prejudice that might have arisen could be dealt with by an appropriately robust direction to the jury. 42. The trial continued and Aqil was cross-examined. When he was asked about the change of his defence from alibi to self-defence he repeated his description of being distressed and the reason for it. In total he mentioned on seven occasions, expressly or obliquely, what had happened to his brother. We have read 35 pages of transcribed evidence, which give a full favour of his demeanour and his conduct. 43. For the most part, Aqil raised the subject to explain why he was distressed about giving evidence. He did not mention the appellant's name nor that of Rehan Akhtar as having caused the injuries to his brother. However, it was obvious that he blamed group 1 for the plight of his brother. When he was cross-examined on behalf of a co-accused, he said for example: "I am a distressed geezer as you know, so don't make me say something that I will regret. It's not a game. My brother is in a coma. By the same people in this courtroom ... Is that a game? ... My brother's got five children. He's never woke up ..." 44. In the course of his cross-examination by a co-accused, Aqil was asked if he liked fighting the Akhtars. He replied: "I've never fought ... I've never fought 'em in my whole life ... 20 years I've been out of trouble. I don't know where they've jumped on that one. Never. I've never fought with the Akhtars. That was the first incident that happened on Shobnall Street ... second incident ... before my brother being taking out on the street on the same side ... getting run over from behind with a tonne and a half metal ... yeah, sorry, that's the second incident, you're right ... Because one brother was taken out, yes, on the same street, by 30 people, yes. In a car. Ran down from behind with a tonne and a half metal, and he never woke up. That's right." 45. Though the transcript refers to “30 people”, it is common ground, and indeed common sense, that what Aqil said was "some people". 46. Shakil mentioned the same incident during his cross-examination by the appellant's counsel. He was asked about the collision between the Skoda and the Passat as a glancing blow. He said: " ... when you drive a car at someone, you -- you'll come out with the outcome what he's already done to my brother ... " 47. The application to discharge the jury and for severance of the indictment was renewed. It was argued on behalf of the appellant that Aqil had deliberately made repeated reference to the attempted murder incident so as to create such prejudice that a fair trial could not take place. The judge rejected the application. He said further references to the incident were referable to the distressed manner in which Aqil gave his evidence and his agitated state. The judge repeated he would provide a robust direction to the jury but that it was important in a trial between two groups charged with violent disorder that they were tried together before the same jury. In his direction to the jury, the judge expressly referred to the evidence of Aqil. He said: "Evidence too has to be relevant to the issues that the jury is deciding here, the violent disorder on the day in June last year we're concerned with which is why, as Mr Henderson and others have explained, you have not heard about wider issues between the two families, because it is not relevant to the issue of what actually happened on the day. In this context I want to refer to the evidence of Mohammed Aqil who told you on a number of occasions that his brother was in a coma, seriously ill, and it was clear, was it not, that he was blaming the Aqil [this is what the transcript says, though again it is obvious that the judge meant to refer to the Akhtar] family for that fact? That assertion is not relevant to this issue of violent disorder as such and therefore in terms of the allegation you must put it entirely to one side. You're not here to resolve what may or may not have happened to his brother, who and who is not to blame. This is not a trial over what happened to his brother, it's a trial concerning the violent disorder so it's a separate issue which you should not look into. It does though have two potential relevances which is why you have heard about it so bear this in mind. It is particularly relevant to why he went 'no comment' in his police interview, because he says that was why he said nothing to the police. Whether it be true or false may be something you will have to resolve but potentially it has a relevance to that. Secondly, when he gave his evidence from the witness box he did so, you may think, in a very emotional and excitable fashion and he gave to you as his explanation for that state that fact his brother was in a coma and he blamed the Akhtars and so on, so again it is potentially relevant to that single issue, which again is why you heard about it but please remember that this evidence is only relevant, potentially relevant, to those two issues and nothing else and you must not in any shape or form hold those allegations he makes against the Akhtars against them. OK?" 48. The grounds of appeal in respect of the attempted murder conviction are as follows: i) The trial judge was wrong to admit hearsay evidence naming the appellant as one of the assailants. ii) In the alternative, the judge's directions on the hearsay identification were so inadequate as to render the conviction unsafe. iii) Trial counsel at trial 2 was at fault in not requiring that Aqil attend court to be cross-examined. iv) Fresh evidence that is now available to the defence should be admitted and may affect the safety of the attempted murder conviction. This fresh evidence is based upon material that was not disclosed, comprising the discussion between Aqil and DC Marriot in the welfare visit on 5 July 2015. v) Further, the evidence given by Aqil in the violent disorder trial may cast serious doubt on his truthfulness as a witness. 49. The appellant was granted leave in appeal by the full court on the first and second grounds. The appellant requires leave from this court to argue the remaining grounds and to admit the fresh evidence relied on. 50. The single ground of appeal against conviction for the violent disorder for which leave was is that the judge should have discharged the jury on the basis of the deliberate and repeated introduction of prejudicial material against the appellant which rendered the conviction unsafe. 51. On behalf of the appellant, Mr Bennathan QC submits that the hearsay evidence should not have been admitted before the jury. It was, in short, based upon an identification made by Aziz that left the jury ill equipped to assess its strength, in relation to identification of the occupants of the car at night, in a fast-moving incident in a case, that required an identification direction pursuant to the guidance given in R v Turnbull [1977] 1 QB 2234 in addition to a hearsay direction. In such circumstances, even if a full Turnbull direction had been given, which it was not, the jury had no material with which to the assess the quality of the identification so as to judge its reliability. Its weakness was underscored by the admitted misidentification of Rehan Akhtar. On the facts the judge should have considered this was one of those cases where identification was made in circumstances of particular difficulty such that the possibility of error could not be excluded. He should in those circumstances have declined to admit the evidence whether under the res gestae doctrine or via the section 116 gateway (see the observation of Lord Ackner in R v Andrews (1987) AC 281 at pages 300 to 301). 52. As to the alternative ground, the central point is that given the problematic nature of the evidence there was no direction that could have been given to properly and safely address it. 53. We turn next to the grounds for which leave is required. Mr Bennathan QC dealt very briefly with the decision by Mr Evans QC not to require Aqil's live presence at trial 2. In the light of the recent observations made Mr Evans QC after privilege was waived it is acknowledged this was a conscious and considered decision made with the benefit of the knowledge of Aqil's demeanour and what he had said in chief at trial 1. Moreover, it was a decision with which the appellant agreed. Mr Bennathan QC submits nonetheless there was no good reason not to challenge the account of Aqil, albeit he accepts this ground only has "traction", as he describes it, if the court feels there was no sensible basis for that view. 54. This ground has, however, a connection with the evidence that emerged from the footage taken of the welfare visit on 15 July 2015. In this connection, Mr Bennathan QC draws attention to certain parts of what Aqil said, of which there is a transcript. He accepts the failure to disclose the footage at the time of trial 1 was inadvertent (no-one knew the footage existed). But he submits if this material had been in the hands of Mr Evans QC it may have affected the tactical decision he made at trial 2 that Aqil's witness statement, including his hearsay account of the telephone conversation with his brother, could be read. What the transcript shows, he submits, as proved by Aqil’s subsequent conduct at trial 3, was that Aqil was a dishonest and a manipulative individual who was prepared to manipulate the trial process for his own purposes. 55. These points all converge for the purposes of the violent disorder conviction at trial 3. There it is said the cumulative effect of Aqil's references to what had occurred in incident 1 were so prejudicial that the judge should have discharged the jury and directed severance of the indictment. 56. Moreover, the manipulative and dishonest conduct of Aqil is such that this fact should be received as fresh evidence bearing on the safety of the appellant's conviction at trial 2. 57. In his hearsay ruling, the judge correctly applied the stepped approach identified in R v Riat [2013] 1 Cr App R 2 . The two gateways for admissibility were as part of the res gestae preserved by section 118 of the 2003 Act and under section 116(2)(b) of the 2003 Act, namely that the witness was unfit because of bodily or mental condition. There may be circumstances where hearsay evidence can be admitted as part of the res gestae even if it would not otherwise be admissible under the other statutory gateways. That much is clear from the preservation of the exception in the statute. 58. In this case, however, it seems to us there was no discernible or material distinction between the gateways on the facts. Either the evidence was properly admissible on the judge's assessment of it or it was not. 59. The principal point made by the appellant is that the quality of the identification evidence was inherently poor either because the circumstances of the identification were unclear in the absence of evidence, for example if or how well Aziz knew the appellant, or the conditions under which the identification was made or because the evidence being crucial to the prosecution's case was inherently in that a mistake had been made in the identification of one of the men in the Ford Mondeo. The appellant's submissions cut across both the admission of the hearsay evidence and the directions to the jury. 60. There is no doubt that the judge had at the forefront of his mind the place that the hearsay had in relation to the evidence as a whole. The appellant had been arrested and accused of a serious offence of violence against the brother of Aziz. The appellant had been released from police custody at lunchtime on 20 July, the day of the attempted murder on Aziz. Shortly before 10.00 pm that evening, the Ford Mondeo belonging to Rehan Akhtar was seen with two occupants inside and deliberately drove at Aziz. Moments before the attack Aziz had telephoned Aqil and described the appellant and Rehan Akhtar as being in the car behind him. Moments after the attack the appellant telephoned Zufeer. The Ford Mondeo was traced through CCTV and ANPR evidence to where it was found. The windscreen and registration plates had been removed and attempts made to dispose of evidence. The evidence of motive in the ongoing feud between the appellant's family and the victim's family, reinforced by the arrest of the appellant on 20 July, was relevant to the case against him. The appellant changed his mobile phone shortly after the attack and when he was arrested made unsolicited comments to the police which were potentially relevant. Taking this evidence in the round meant that the hearsay evidence was significant but not the only evidence against the appellant. The judge described the evidence as being "compelling" both as to motive and as to participation. 61. We have considered the judge's careful reasons for permitting the hearsay evidence to go before the jury and we are not persuaded that his reasons were wrong. 62. Equally we are satisfied that the refusal to exclude the hearsay evidence under section 78 of PACE and section 122(6) of the CJA 2003 cannot be impugned. In this connection it is worth reiterating that once the criterion for admissibility under section 116(2)(b) was satisfied, as it plainly was here because Aziz, was unfit to be a witness because of his bodily or mental condition, the evidence was admissible unless the judge excluded it in the exercise of his discretion. That exercise of that discretion is unchallengeable unless it is Wednesbury unreasonable; see R v Gian & Mohd-Yusoff [2009] EWCA Crim 2553 at paragraph 48. In this connection as it happened, it served to assist the appellant's case to demonstrate that the hearsay evidence had wrongly identified one of the two men in the Mondeo. 63. Turning at this stage, as to what emerged at trial, Zufeer (who on the jury's verdict convicted of assisting the appellant) gave evidence that he received a phone call from the appellant, drove to a meeting point to see him and drove him towards Derby. Another man was in the car whom he did not know. The evidence of this meeting shortly after the attack placed these two men together at a critical time. 64. The appellant submits that the direction given to the jury in relation to the hearsay evidence was inadequate. The main thrust of this submission is that the weaknesses of the identification were not sufficiently identified to the jury. 65. However, where identification or recognition evidence is in a hearsay statement, it is often the case that the circumstances of the actual identification are not clear and inevitably cannot be explored in a way that it could if the maker of the statement was present in court and the issues thereby identified so they could be specifically picked out in the summing-up. 66. That on its own does not lead, however, to the necessary exclusion of the evidence or mean that the issues cannot be properly and safely left to the jury to consider in the context of the rest of the evidence in the case, including matters of which the jury would be and were in this case well aware, for example that the car was driven at speed at Aziz from behind. 67. Equally it was conceded by the prosecution that the identification of one of the men was a mistake. This most important weakness was the one that the judge specifically identified in the course of his summing-up. 68. We turn the next of the grounds for which renewed application has been made before us. It is plain that the decision not to cross-examine Aqil was a tactical one made by the appellant. He seeks to argue now that there were no good reasons not to have Aqil cross-examined before the jury. However, the response of Mr Evan's QC under the McCook direction to the criticism of him explains that the appellant was given full and clear advice, which he accepted. The reasons that were given and which the appellant accepted was that the witness was likely to be dangerous and that he might give unpredictable responses and prejudicial answers which were not disclosed on the face of his police statement. 69. That was, in our judgment, a well-reasoned and understandable approach. Aqil might well have caused more damage in cross-examination than could have been achieved in testing his evidence. This had to be balanced against, the fact, that his evidence sought only to repeat what he had been told by Aziz with its mistaken identification of Rehan Akhtar. 70. In the circumstances, we are satisfied that the decision not to cross-examine Aqil was a rational one. The point has no traction, in our view. The decision was properly made and it is not open to the appellant to revisit the decision he made on proper advice at trial. 71. In considering the applications to admit fresh evidence, we obviously have in mind the criteria in section 23(2) of the Criminal Appeal Act 1968. Plainly there is a reasonable explanation for the failure to adduce the evidence at trial. The welfare visit evidence was not disclosed to the defence and the respondent to this appeal now concedes that had it been in the prosecution's hands at the material time it should have been. Of course as a matter of chronology the violent disorder trial did not take place until after the appellant's conviction for attempted murder. 72. Looking at the material itself, the transcript of the welfare visit disclosed no more than further material in addition to that which was already in existence, which demonstrated the ongoing feud between the two groups. This was something which the jury at trial 2 and trial 3 were well aware. There is some mention made of other people who might have had a grievance against Aqil's family. Nonetheless, it was Rehan Akhtar's car that was used in the attack and it is not necessary to recite the other “associate” evidence to which we have referred. 73. The conduct of Aqil in the violent disorder trial related to the conduct of his defence his explanation for being distressed in the course of his cross-examination. We have considered the passages of evidence on which the appellant relies. It is unfortunately commonplace that witnesses in a trial subsequently conduct themselves in ways that cast their behaviour in an unfavourable light. There may be cases, although we apprehend they would be rare, where such behaviour is directly relevant to events or their evidence given at an earlier trial, but we are not convinced this is such a case. 74. Whether this evidence would have been admissible or not, we are not satisfied it affords any ground for allowing the appeal. It does not begin to undermine the safety of the attempted murder conviction when the evidence against the appellant is taken as a whole. At its highest, it provides further evidence of what was already obvious and before the jury, namely the fact of an ongoing feud between the two groups. 75. The violent disorder trial involved both sides of the dispute: group 1 and group 2. It was inevitable therefore that evidence that one side wished to rely upon would be prejudicial to the other. Against this background, Aqil as a co-accused, was entitled to give evidence before the jury of the circumstances in which he had refused to answer police questions in interview. This led to his description of being distressed after an attack upon his brother. The first ruling made by the judge to refuse the application to discharge the jury was correct. The evidence was admissible in respect of Aqil's defence and, subject to a direction to the jury, it was properly admitted. 76. The evidence of DS Bloor emerged at a time when Aqil had dismissed his legal representatives and wanted to change his defence. He faced the possibility of being unrepresented. At that stage Aqil appeared to be threatening to derail the trial by deliberately naming the appellant as being guilty of attempted murder rather than be unrepresented for the remainder of the trial. 77. However, Aqil was granted further representation and did not name the appellant in what he said in front of the jury despite all else that he said out of court. Clearly there were oblique references to incident 1 but none specifically against the appellant. When Shakil referred to the issue, he did not specify the appellant. 78. In the circumstances, the judge was required to direct the jury about what had been said. The judge directed the jury that: "This is not a trial over what happened to his brother, it's a trial concerning the violent disorder so it's a separate issue which you should not look into." 79. Later in the same direction, after identifying the two issues of relevance, the judge stated: " ... this evidence is only relevant, potentially relevant, to those two issues and nothing else and you must not in any shape or form hold these allegations he makes against the Akhtars against them." 80. In our judgment, this was an appropriate way of dealing with the evidence of Aqil in the context of a multi-handed violent disorder trial. It was a clear and robust direction which cannot be faulted. The refusal to discharge the jury did not lead to an unfair trial or an unsafe verdict. 81. We have examined the interconnected points raised by the grounds of appeal, those grounds for which permission is sought and the applications made to receive fresh evidence. Having done so, we are satisfied the appellant's convictions are both safe. We refuse the application for permission to appeal in relation to the further grounds advanced for which permission was not given by the full court and refuse the applications to receive fresh evidence. 82. This appeal is accordingly dismissed.	{"ConvCourtName":["Crown Court at Stafford"],"ConvictPleaDate":["2016-06-08","2016-07-21"],"ConvictOffence":["Attempted murder","Violent disorder"],"AcquitOffence":["Grievous bodily harm"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Stafford"],"Sentence":["18 years' imprisonment (attempted murder)","18 months' imprisonment (violent disorder)"],"SentServe":["Consecutive"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Hearsay evidence (telephone call)","Mobile telephone usage","Vehicle number plate recognition (ANPR)","CCTV","Eyewitness testimony","Forensic evidence (linking Zufeer and car)","Video footage (mobile phone)"],"DefEvidTypeTrial":["Offender denies offence","Alibi claim (Rehan Akhtar)","Co-accused testimony (Zufeer)"],"PreSentReport":["High risk of harm"],"AggFactSent":["Ongoing feud between families","Deliberate use of vehicle as weapon","Attempt to dispose of evidence"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Admission of hearsay evidence naming appellant as assailant","Inadequate jury direction on hearsay identification","Failure to require witness for cross-examination","Fresh evidence (undisclosed material)","Prejudicial conduct of co-accused"],"SentGuideWhich":["section 116(1) and 116(2)(b) of the Criminal Justice Act 2003","section 78 of the Police and Criminal Evidence Act 1984","section 118 of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge correctly admitted hearsay evidence under statutory gateways","Jury properly directed on weaknesses of identification evidence","Decision not to cross-examine witness was rational and tactical","Fresh evidence did not undermine safety of conviction","No unfair prejudice from co-accused's conduct","Convictions are safe"]}
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[2021] EWCA Crim 738 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202100752/A4 Royal Courts of Justice Strand London WC2A 2LL Friday 30 April 2021 Before: LORD JUSTICE BEAN MRS JUSTICE FARBEY RECORDER OF NEWCASTLE (HIS HONOUR JUDGE SLOAN QC) (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REGINA V ANTHONY WILLIAMS __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR T LITTLE QC appeared on behalf of the Attorney General. MR J HIPKIN QC appeared on behalf of the Offender. _________ J U D G M E N T (Approved) LORD JUSTICE BEAN: On 28 March 2020 Anthony Williams killed his wife, Ruth. They had been married for 47 years. He was then 69 and she was 67. At about 6.30 am they were both in bed and awake. Mr Williams expressed concern about something to which Mrs Williams replied with words to the effect of "get over it". As a result he proceeded to attack her. He placed his hands around her neck and began to strangle her. She managed to escape and made her way downstairs in an attempt to get out of the property. She took a set of front door keys with her in order to try to escape. However, he followed her downstairs and strangled her again in the porch area. She again tried to defend herself but she was unable to do so and he killed her. He returned upstairs, got dressed and left the property. He went next door and knocked at his neighbour's door. His neighbours were Mr and Mrs Stark. Mrs Stark called for her husband to come downstairs. They opened the door. Mr Williams said: "Ruth is dead, call the police". Mrs Stark dialled 999 asking for an ambulance but was interrupted by the offender who said: "No the police". On the 999 call the offender said: "I've killed her, I've killed her". He also said: "Sorry". Later in the call he said: "I think I've killed her, yeah. We had argument. I think she'd dead. You wanna come quick. I think she's dead, I strangled her. We were arguing and I just caught hold of her, she caught hold of me and I was, I was choking her and she just went down. I'm so sorry". The operator advised them to go to the house and attempt resuscitation. The offender said to Mrs Stark: "I don't think you should come, I don't want you to see this". It was not physically possible to enter the home as Mrs Williams's body was blocking the outer front door which was still locked but eventually access was obtained. Police and paramedics arrived within a short time. Mr Williams was arrested for murder. His reply to caution was: "I am sorry, I just snapped, I am sorry." On his way to the police station he made a number of comments, including: "I've been depressed lately, I don't know what's the matter. It wasn't murder I didn't murder her, I just flipped. It wasn't me I wouldn't hurt a fly. It wasn't me, I'm not like that. I don't know what came over me." During the book-in procedure he continued to make similar remarks. Mrs Williams was pronounced dead at 8.00 am and the offender re-arrested for murder and replied: "I'm so so sorry". He was interviewed under caution on a total of three occasions on 28 and 29 March. He answered all questions put to him. When asked if he was responsible for the murder of his wife he replied: "I am". He stated that he had not been sleeping well for three nights and had been tossing and turning in bed. He woke up with his wife in the morning. They were both in bed together. His wife told him to "get over it". Mr Williams said he just snapped and started screaming: "She tried to calm me down, I had my hands around her throat and I was actually choking the living daylights out of her, like I got all these scratches all over me, she was fighting me back and she managed to get away from me, and she went downstairs and I went after her, she went to unlock the door to go out and I tried to stop her, so I just had my hands on her throat and I was throttling her to death, then I was gonna commit suicide but I could not, what I am saying is I, I did mean to kill her but to kill myself after as well." When asked about the level of force used he said he was probably giving it all he had got. He said during the first attempt by him to strangle his wife: she managed to remove his hand from her neck, she kept asking what he was doing. She looked frightened. When they were both downstairs his wife was trying to open the front door. He had his hands by her throat, he just carried on and carried on. He estimated the incident downstairs lasted in the region of 5 minutes. He said he was probably pressing about as hard as he could squeezing her neck. It was only when she slumped to the ground that he let go. He stated that he then realised what he had done. The defendant tendered a plea of guilty to manslaughter by reason of diminished responsibility but that plea was not acceptable to the prosecution and the murder case proceeded to trial before His Honour Judge Paul Thomas QC and a jury.. Reports were obtained from two consultant forensic psychiatrists who gave evidence before the jury, Dr Allyson Witts for the defence, and Dr Damian Gamble for the prosecution. As often occurs in a case of this type the defendant did not give evidence himself. Dr Witts supported the defence of diminished responsibility whereas Dr Gamble expressed the view that there was no substantial impairment of the defendant's ability to understand the nature of his conduct, form a rational judgment or exercise control. A striking feature of the case is that the couple's daughter Emma (their only child) gave evidence before the jury on behalf of the defence. She had sent an email on 30 March, that is only two days after the killing, detailing concerns about her father's behaviour over the fortnight or so leading up to the killing. Before the jury she said this about her parents: "They're just like a typical couple in their late sixties, they just done everything together, you know, even going to the dentist together and, they just, like obviously they'd do, like my dad would go out with his friends on the weekend, just down the club, but pretty much they were together all the time, you know, they had their own caravan..." She was asked: "Did you ever see your dad be violent towards your mum? [She said]: Never, ever. He's just not that type of man... my dad and my mum are not argumentative people. I know it sounds a bit strange, but like my dad's really laid back, you know, he's just... there was no bickering or anything like that... I never even heard them raise their voice, there was no arguments, there was no rows or, I never heard anything." She said she had never seen her father be violent to anyone, she described him as a gentle giant who would not hurt a fly. Dr Witts had expressed the view in a report on Mr Williams that he was experiencing a sense of overwhelming anxiety at the material time. Asked in the witness box what she meant by that, she explained: "What I mean is in my opinion he was suffering, as I've already stated, with anxiety and depression. It is my opinion, from all the information available to me, that the anxiety was heightened around the material time. Mr Williams described significant apprehension, worries, feeling on edge, motor tension in his body, so a feeling of being very tense and what I would describe as kind of autonomic overactivity. So when people are feeling quite anxious and the anxiety is heightened, it can lead to an increase in the release of stress hormones, you know, adrenaline and noradrenaline and that can lead to heightened state of psychological and physiological responses really to things around that individual. In my view it can also be described as emotional dysregulation where they're just very overwhelmed with their emotions and feeling a lot of physical symptoms." She expressed the view that his ability to understand the nature of his conduct, form a rational judgment and his ability to exercise self-control were impaired. On the issue of ability to exercise self-control, it was put to her by counsel for the prosecution at trial that Mr Williams had enough self-control, at any rate, to stop himself from continuing to strangle his wife. Dr Witts conceded that possibly at that point he had some self-control but said "one would speculate on the position prior to that". She confirmed that the fact that at some point he came to his senses would not necessarily mean that he had been able to exercise self-control previously to that. She adhered to the view that his state of mind at the time of the killing was one of overwhelming anxiety. The jury acquitted Mr Williams of murder. He then had to be sentenced for manslaughter. The judge had sentencing notes from both the prosecution and the defence, each expressing the view that this case was one in which the level of responsibility retained by the offender within the terms of the Sentencing Council Definitive Guideline for manslaughter by reason of diminished responsibility was low. There was also a statement from Emma Williams which included the following: "I don't know if I will ever come to terms with what has happened to my mum. She was my best friend, the kindness, happiest, most loving and caring person. The thought of her no longer being here is too painful to even imagine. Having to spend the rest of my life without her is heartbreaking. I just know that my main priority now is to take care of my dad as he is not well and I cannot lose him from my life too. Keeping him in prison will only worsen his mental state, he needs to be home with me where I can take care of him and get him the correct medical care and support he needs. He is the most caring, kind and gentle man and would do anything to help anyone. I am proud when people say I am like my dad as he truly is a good person. If you knew him the way we do you would know this is completely out of character. My dad is a good man and he loved me and mam dearly. We are his whole world. To have my dad taken from me as well would crush us both. For him to remain in prison would mean my only family member has been taken away, and I know I would not cope without him. I know he is truly broken and cannot cope with the realisation of what he has done. The only possible way for us to try and deal as a family is to have him home, where he can get the correct care and love that he needs. The whole family wholeheartedly knows this is not the man they have known for over 50 years and stands by me when I say we want him home." In passing sentence the judge said: "Over-used though the phrase is, this is a tragic case on several levels. The overwhelmingly greatest tragedy here is that lady of 67, in reasonable health and with so much to live for, had her life ended by an act of great violence at the hands, literally, of a man she had loved for very nearly 50 years." Addressing the defendant Judge Thomas said: "There is also the tragedy that that act, lasting only a matter of minutes at most, and immediately repented by you will now be the defining one of the rest of your life. You will have to live with the knowledge that you killed your wife and that you have left your daughter without her beloved mother. That it will be the heaviest burden for you, I have no doubt. The letter your daughter has written so movingly to the Court makes that abundantly clear. Having heard the evidence of your state of mind in the year leading up to this awful event, and especially in the preceding few days, I am of the view that your mental state was severely affected at the time. That, of course, is in line with the verdict that the Jury returned in this case. I have formed the view that you were suffering from largely irrational anxiety, exacerbated by and in a vicious circle with depression and lack of sleep. You were obsessing about Covid, but you were also obsessing about matters which had no rational basis. For example, you were very concerned that you would lose your home, it was a home you owned outright. You were concerned that you would not be able to afford shoes but you have the best of £150,000 in the bank. You worried greatly that your daughter's house insurance would be invalidated, despite the fact she repeatedly assured you to the contrary. In short, there is no logical explanation for why a placid, non-aggressive, inoffensive man of 69, happily married for 46 years and with an absolutely impeccable character, should, out of the blue, strangle his wife for such an innocuous comment as 'get over it'. Again consistent with the Jury's verdict, I am left with the belief that something went severely wrong with your mental functioning due to an underlying and substantial impairment of your mental functioning. You were unable to maintain your self-control, you were unable to make rational decisions and you were unable, at that moment, to understand fully the nature of what you were doing. In short, I agree with the submissions of both Prosecution and Defence that you retained, at the time of the killing, only low responsibility for your actions. I have read with care the letter that your mutual daughter has written to the Court. It is a very moving document, as I have already said. Despite her plea therein I am afraid that my wider public duty means that I have to send you to prison. In assessing the length of that I have regard, of course, to the appropriate guideline and of the Sentencing Council Guideline for manslaughter. It is accepted by both the Prosecution and the Defence, here that the starting point is one of 7 years' imprisonment. In my view, it is appropriate here to slightly increase the starting point, had there been a trial on manslaughter, to deal with the aggravating factor of the prolonged nature of the attack on her. You could have desisted in the bedroom, you continued at the front door. Had you pleaded not guilty to manslaughter the notional post-sentence level(sic) would have been 7½ years. I have, however, to discount that by one-third to reflect your guilty plea at the first opportunity and, accordingly, the sentence that I pass upon you, and would you now stand please, is one of 5 years' imprisonment." The Attorney General seeks leave to refer this sentence as unduly lenient. The case is described as having two aggravating factors (a) death occurring in the victim's own home, at the hand of her husband who she loved and trusted and (b) a sustained incident involving strangulation in two different locations in the house, the second part of which occurred as the victim was desperately trying to escape to save her own life. The reference accepts that the mitigating features of the case include the defendant's previous good character, the lack of premeditation and expressions of remorse. The Final Reference sets out in detail four submissions on the basis of which it is said that the sentence imposed was unduly lenient. It is said that the judge: (a) wrongly concluded that the level of responsibility retained by the offender in this case was low. It is submitted that on a proper assessment of the expert evidence given at trial, the factual circumstances of the case and bearing in mind that all the diminished responsibility cases involve a substantial impairment of functioning, this case was one of a medium level of responsibility retained. (b) wrongly concluded that the finding of a low level of retained responsibility flowed from the verdict of the jury. It did not for the following reasons: first, the verdict of the jury did not connote acceptance by them of every aspect of Dr Witts's evidence. The route to verdict only required them to be sure of one of three potential components of substantial impairment for the partial defence of diminished respond; second, in a case such as this, where there is a contested expert evidence, a judge is not bound to sentence on the most generous basis available to the offender unless there is a proper evidential foundation for doing so, and here there was not. Third, and in any event, Dr Witts' evidence was not there was substantial impairment of the defendant's ability to exercise self-control, only that there was impairment of that aspect. This fact appears to have been ignored by all at trial. Fourth, the judge's apparent finding that the level of impairment was severe was not supported by the expert evidence overall. Dr Witts never gave such evidence; indeed she did not use that word once, either in her reports or in evidence when considering diminished responsibility. Fifth, overwhelming anxiety does not connote overwhelming impairment of responsibility. That error in approach impacted on the way the judge assessed the retained responsibility. (c) the judge failed to consider the Definitive Guideline, Overarching Principles - Domestic Abuse at all. In particular, the judge failed to follow the clear approach to assessing seriousness of such offending as set out in paragraph 7 of that guideline. The fact that the killing occurred in the victim's own home, starting in her own bed and ending at the front door she desperately tried to escape and at the hands of a man she had loved and trusted for over 45 years is an aggravating feature, it is not mitigation. The fact that the killing was not preceded by earlier acts of violence is not mitigation; it just means that that potential additional aggravating feature was not present in this case. It is submitted that all concerned in the correct approach to sentence in this case were blinkered to the proper approach to take and that amounted to a fundamental error in approach. The inherent aggravating domestic nature of this killing was ignored by the judge and it should not have been. (d) the judge failed to give proper weight to the sustained nature of the offending here. It involved two separate incidents in which the victim fought for her life on both occasions, the part of which the offender was to admit in interview, lasted for about 5 minutes. As we have noted, the prosecution as well as the defence advocate who had conducted the trial before the jury submitted that this was a case where the level of retained responsibility was low. The judge who had presided at the trial and heard the evidence took the same view. That does not mean that this court is unable to intervene on a reference by the Attorney General but, in those circumstances, it requires a very clear case for this Court to say that the view which the judge took was one which he was not entitled to reach. The Sentencing Council Guideline for manslaughter on the grounds of diminished responsibility requires at step 1, that the judge should consider the extent to which the offender's responsibility was diminished by the mental disorder at the time of the offence, with reference to the medical evidence and all that relevant information available to the court. The degree to which the offender's mental disorder was undiagnosed and/or untreated may be a relevant consideration. (So in some cases may be the degree to which the offender has contributed to the seriousness of the mental disorder at the time of the offence himself, for example by abuse of drugs or alcohol or ignoring medical advice; but that is not relevant in the present case.) Subject to these general indications, the level of responsibility, as Mr Little accepts, is one for the overall assessment of the sentencing judge. Mr Little is right, of course, to say that the verdict of the jury that the defendant was not guilty of murder did not compel the judge to find that the level of retained responsibility was low. We do not think that his sentencing remarks on their proper construction indicate any such elementary error. It is also correct to say that the verdict of the jury "did not connote acceptance by them of every aspect of Dr Witts's evidence". It was for the judge to make his own assessment of Dr Witts's evidence, so long as he did so in a way that was faithful to the verdict of the jury which, in our view, he did. It is likewise correct to say that in a case where there is contested expert evidence, indeed even where there is uncontested expert evidence, the judge is not bound to sentence on the most generous basis available to the offender unless there is a proper evidential foundation for doing so. We do not think that it is a useful exercise to attempt to atomise either the jury's verdict or the evidence of Dr Witts into three categories of (a) impairment of the ability to understand the nature of the conduct, (b) impairment of the ability to form a rational judgment and (c) impairment of the ability to exercise self-control. There is in many cases, including this one, significant overlap between these three alternative bases of the defence. We also think that it is overcritical of the judge's sentencing remarks to say that he made an apparent finding that the level of impairment was "severe", in the sense that severe is something different from substantial . Mr Little submitted, forcefully, that this was a domestic abuse homicide. We have recorded the submission in the Reference that the judge failed to follow the clear approach set out in paragraph 7 of the Sentencing Council Definitive Guideline: Overarching Principles - Domestic Abuse. This is not, in our view, properly classified as a case of domestic abuse . There was no history of controlling behaviour, or coercive behaviour or any previous incidents of threatening behaviour, violence or abuse on the part of the offender - quite the contrary. We do not consider that, on its proper construction, the Sentencing Council Guideline on Domestic Abuse is authority for the proposition that in every case an act of violence, committed out of the blue, by an offender against his spouse or partner is to be sentenced more severely, simply because it is an offence of violence within the home. Certainly there is in our judgment no such principle applicable to a case of manslaughter by reason of diminished responsibility. It all depends on the facts of the case. The fact that the killing took place in two stages would have been a seriously aggravating factor if this had been a case of murder or even a case of unlawful act manslaughter by a defendant whose mental state was unimpaired. But in the context of the defendant's substantial mental impairment the trial judge was entitled to take the view that it only aggravated the offence to a limited extent. He did take it into consideration as shown in his sentencing remarks. This is a very atypical case of homicide. The defendant, aged nearly 70, did an act utterly out of keeping with how he had conducted himself throughout his life and throughout what had plainly been a long and happy marriage. The only explanation for his conduct on the day, as the jury accepted, was that he was seriously unwell. In other words, his actions were wholly explained by his illness. That illness was undiagnosed and entreated, even though he had sought treatment. He immediately raised the alarm, made immediate admissions and his overwhelming remorse was obvious. The judge could not properly have acceded to Emma Williams's wish that her father should not be sent to prison at all but we are wholly unpersuaded that the sentence which he did impose was unduly lenient. The application for leave to refer is accordingly dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["Manslaughter by reason of diminished responsibility"],"AcquitOffence":["Murder"],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":[""],"Sentence":["5 years' imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[69],"OffJobOffence":["Retired"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[67],"VicJobOffence":["Retired"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Expert report/testimony","Victim testimony (via daughter)","Defendant's admissions"],"DefEvidTypeTrial":["Expert report/testimony","Character evidence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["death occurring in the victim's own home, at the hand of her husband who she loved and trusted","sustained incident involving strangulation in two different locations in the house, the second part of which occurred as the victim was desperately trying to escape"],"MitFactSent":["defendant's previous good character","lack of premeditation","expressions of remorse","mental disorder substantially impaired responsibility"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["judge wrongly concluded that the level of responsibility retained by the offender was low","judge failed to consider the Domestic Abuse guideline","judge failed to give proper weight to the sustained nature of the offending"],"SentGuideWhich":["Sentencing Council Definitive Guideline for manslaughter by reason of diminished responsibility","Sentencing Council Definitive Guideline: Overarching Principles - Domestic Abuse"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["judge wrongly concluded that the level of responsibility retained by the offender was low","judge failed to consider the Domestic Abuse guideline","judge failed to give proper weight to the sustained nature of the offending"],"ReasonDismiss":["original sentence fell within guideline range","judge made correct ruling","no ground for appeal","judge categorised offence correctly"]}
No: 2007/0930/C2 Neutral Citation Number: [2007] EWCA Crim 3025 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 23 November 2007 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE WYN WILLIAMS HIS HONOUR JUDGE RICHARD BROWN DL (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ISHMAEL ADAMS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr J Lynn appeared on behalf of the Appellant Mr B Alabi appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: The issue raised in this appeal against conviction is whether the trial judge went wrong in allowing the Crown to put in under the hearsay provisions of the Criminal Justice Act 2003 an edited witness statement by a witness who had failed to attend. The charges were familiar enough. They alleged possession by the defendant of 79 ecstasy tablets and a small quantity of ketamine contained in three separate plastic envelopes at a nightclub. The charges were of possession with intent to supply of those two different classes of drug. Those charges of course included the implied alternative of simple possession. 2. The Crown's case as served was as follows. First, scientific evidence of analysis, which was not in dispute. Second, evidence of the finding of an inconsequential sum of money on the defendant. Thirdly, the evidence of a security guard at the club, which was in King's Cross. Fourthly, evidence of the police officers who were called out. There was also available evidence of interviews with the defendant conducted by the police but in those he elected to answer no questions and so those took the matter no further. 3. The security guard was a man called Chambers. His thirteen line witness statement said that as a result of something said to him by a customer (and he said what it was), he took the defendant to his office and told him that he suspected that he had drugs on him. He said that he asked the defendant either to produce them or to wait for the police. He said that the defendant initially denied having anything of the kind, but that when he (Chambers) got out his telephone to ring the police, the defendant produced the bag of pills and the other drugs and put them on the table. According to him, the defendant said that a man in a black baseball cap had asked him to look after the drugs. Chambers' witness statement said that the drugs were removed from the crotch area of the defendant's trousers or underwear. 4. As to the police officers, the evidence from them was that they arrived at the club having been sent for, saw the defendant in the company of the club staff, including Mr Chambers the security guard, and took possession of the drugs. One of the police officers asked the defendant, according to his witness statement: "Are these yours?" and he received the answer, according to him: "Yes, but I am only looking after them for a friend." That question had been asked by the police officers, wrongly, without any caution being administered to the defendant. To anticipate, the Recorder ruled that exchange inadmissible, so that evidence of an admission of possession by the defendant was not available to be put before the jury. 5. On 10th July 2006 a plea and case management hearing was conducted. At that hearing the trial was given the fixed date of Monday 15th January, six months on. The witness Mr Chambers and also the police officers were required, quite properly, by those representing the defendant to attend at the trial. 6. On the day of the trial, Mr Chambers was not at court and nobody knew where he was. The Crown applied to read his witness statement under the provisions of section 116(2)(d) of the Criminal Justice Act 2003 . That provides so far as material: "In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— ... (d) ... the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken..." The Recorder admitted the statement, albeit in a form edited to remove from it the assertion that the drugs had been in a hidden place in the defendant's trousers and the exchange about the man in the black baseball cap. 7. The present appeal is brought on the basis that that ruling of the Recorder was wrong and that the conviction is as a result unsafe. Mr Lynn says that without the evidence of Mr Chambers the Crown was in no position to prove that the defendant was in possession of the drugs at all, before one got on to the question of intent to supply. He says that there would thus have been no case to answer. 8. The argument about this application by the Crown, of which we have a full transcript, proceeded rather more by discussion than by consecutive submissions and ruling. It is none the worse for that; that is often how cases proceed. It is perhaps the reason why in the end it was not approached sequentially, although the decisions that the Recorder made are perfectly clear. In the different circumstances of this court we are able to, and think we should, deal with the questions which arise step by step. 9. First, in order to dispose of the point, this was of course a late application and that point was made on behalf of the defendant. The answer to that is that it was late because it was unavoidably late. The application was only triggered by the non-appearance of the witness. The Recorder was right to entertain it on its merits and decide it one way or the other. 10. Next is the question whether the witness Mr Chambers was somebody who "cannot be found" within the meaning of section 116(2)(d) . The answer to that, we are satisfied, is "Yes, he was." We reject any submission that there is a relevant semantic distinction between "cannot be found" and "cannot be contacted". This witness could not be found at the material time, which was the Monday morning of the trial. 11. That leads on to the question which really matters for the purposes of section 116 which is whether he could not be found "although such steps as it is reasonably practicable to take to find him have been taken." The evidence was as follows. The case had been fixed at the case management hearing for 15th January. At some point in September the witness, Mr Chambers, had been spoken to and confirmed that he was in a position to attend. It looks as if that was done by a telephone call. Quite why it was not done until September when the fixed date had been given in July we do not know. We observe in passing that that kind of passage of time has the potential to cause problems. Witnesses may move. If this is symptomatic of the usual practice, it is not good enough. It runs the real risk that a witness may not be found when if prompt contact with him had been made he would have been. It was not, however, the occasion of the problem in this case because he was contacted in September and he was able to confirm that he would attend. However, after whatever conversation there was in September, nothing had then been done until the Friday before the trial was due to start on the Monday. That is to say, the last working day. On the Friday all that happened was that the witness was telephoned on his mobile telephone. He did not answer but there was a voicemail service. A message was left on his mobile telephone. At the trial the officer in the case, who was asked to give evidence about all this, was unable to say who it was who had made the telephone call to the answering service, except that as he understood it, it would be "someone from the witness care unit of the local authority". There being no reply to whatever message was left on the mobile telephone, and there was no evidence what the message exactly said, nothing else was done whatever. On Monday morning a further attempt was made to telephone by the officer in the case himself but contact could not be established. 12. The evidence given to the Recorder was that this system was described, apparently amongst those who operate it, as a system of "overnight call warning". We do not want to speculate on precisely what that means, but if it means that it is thought to be sufficient to leave a message the night before a witness is due to attend, we desire to say as emphatically as we can that it will not do. The Recorder was in this case persuaded that such steps as were reasonably practicable to take to find the witness had been taken. For the Crown, Mr Alabi invites us to consider that there was no real reason to suppose at any time before the Monday morning of the trial that the witness was not going to come, even although on the Friday he had not been answering his mobile telephone. 13. With both of those propositions we respectfully but emphatically disagree. What happened in this case was a very long way short of what is in practice needed to get witnesses to come to court. All the experience of the criminal courts demonstrates that witnesses are not invariably organised people with settled addresses who respond promptly to letters and telephone calls and who manage their calendars with precision. They often do not much want to come to court. If they are willing they may not accord the appointment the high priority that it needs. Even if they do both of those things, it is only too foreseeable that something may intervene either to push the matter out of their minds or to cause a clash of commitments. Holidays, work, move of house, illness of self or relative and commitments within the family are just simple examples of the kind of considerations which day in, day out, lead to witnesses not according the obligation to appear at court the priority that they ought to do. We are told that in the present case it turned out that Mr Chambers had taken his wife to hospital. If he had to do that, and it may be he did, that should have been found out at the very least the previous week and then consideration could have been given to whether the trial had to go back or whether alternative arrangements could be made to get the lady to hospital, or whether the trial could start a little later in the day, or some other adjustment made to enable the process of justice to take place. All of that was simply rendered impossible by the wholly inadequate approach of those whose duty it was to keep in touch with the witness. It may very well be that, however regrettably, the police are no longer able themselves to undertake the care of prospective witnesses. That is not a matter on which it is right for us to express any view. But whoever it is who does undertake it, the need to keep in touch, to be alive to the witness's needs and commitments is not less now than it ever was; if anything it is rather greater now than it used to be. Leaving contact with the witness such as this until the last working day before the trial is not good enough and it certainly is not such steps as it is reasonably practicable to take to find him. In addition to that, once the message was not known to have been received on the Friday and there was doubt about it, we agree with Mr Lynn that reasonably practicable steps which ought to have been taken included a visit to his address and/or to his place of work or agency, or at least contact with those places, perhaps by telephone. 14. We do not doubt the general proposition which is contained in passing in R v Coughlan [1999] EWCA Crim. 553 that a relevant consideration for the question of what reasonable steps are practicable is the resources of the police or whoever it is who undertakes witness care on their behalf. But nothing that we have suggested in this case would be particularly expensive in terms of resource and it is to be observed that the case to which we have been referred for that proposition is another case in which absolutely nothing had been done to keep in touch with a relevant witness. 15. For all those reasons we are perfectly satisfied that this evidence was not admissible under section 116(2)(d) . That leads us on to the next question which is whether, if not, was it admissible in any event under section 114(1)(d) on the basis that it was in the interests of justice for it to be admitted. The Recorder did not directly address section 114(1)(d) but in the course of her consideration of the application she did address the factors which are relevant to admissibility under 114(1)(d) namely those which are found in section 114(2). It rather looks as if she did that because the application was dealt with on the footing that those 114(2) factors were relevant to the 116 application. In fact they are not. Section 116 says that if the various different circumstances or conditions which are there set out exist, the statement is admissible, subject only to the Court's power to exclude it under section 78 of the Police and Criminal Evidence Act, that is to say on the basis that it would render the proceedings unfair, or under section 126 of the 2003 Act on the grounds that if it were admitted it would occasion an undue waste of time insufficiently balanced by the case for admitting it. 16. That said, however, the Recorder's enquiry into the section 114(2) factors, together with her very proper concern that practical justice should properly be done to both sides in this case, led her to enquire in the course of this application what the real issue in the case was. She was absolutely right to make that enquiry. Courts are and should be increasingly concerned to identify the issues in a case and to focus the trial upon them. It is one of the underlying principles of the Criminal Procedure Rules that both the court and all parties have an obligation to do so. 17. This defendant was under a statutory obligation to lodge a defence case statement - the obligation is created by section 5 of the Criminal Procedure and Investigations Act. Such a defence case statement is required among other things to identify the matters of fact on which he takes issue with the Crown, that is to say to identify the issues - see section 6(1)(b). This defendant had lodged no defence case statement at all. No excuse, reasonable or otherwise, for that failure has ever been suggested. He had, however, at the case management hearing which we have mentioned, through counsel, said in court and on the form which was completed to record what had happened, that he would "consider" a plea to simple possession. That statement could only have been made on the defendant's instructions. Those two factors (the absence of the defence case statement and what had been said at the management hearing) led the Recorder to enquire in the course of argument from counsel what the issue was. Counsel rightly chose his words carefully. The Recorder at one point asked this question: "Are you now telling me that in fact he is now going to say to the jury that he was not in possession? Answer (from counsel): No, I am not saying that." A little later, counsel, again rightly and properly, told the Recorder: "As your Honour says, he has always accepted that he was in possession of the drugs." That identification of the issue, belated as it was, was proper and it was quite sufficient to demonstrate that it was in the interests of justice for Mr Chambers' witness statement to be read at least providing it was edited, as it was, to remove from it anything that was contentious. The reality was that the true issue in this case was whether an intent to supply was proved or not. 18. We ought to make clear that we do not reach that conclusion on the basis simply of what was said at the plea and case management hearing about the possibility of a plea of guilty to possession. We reach it because what had there been said was in fact entirely consistent with the defendant's case and with what the issue actually was. Whether the terms of what was said at the case management hearing were a sufficient admission of possession to be proved is, as it seems to us, a moot point. It will depend very much on exactly what is said and on the circumstances of each case and each case needs individual examination. At one end of the scale a hypothetical discussion between counsel or an enquiry of counsel for the Crown "Would the Crown accept a plea to such and such if it were offered" is clearly not an admission which could be proved against the defendant. At the other end, a plea of guilty in open court certainly is. In R v Hayes [2005] Cr.App.R 33 at 557, a letter from solicitors advancing a plea to a lesser count was also held to be admissible at least for the purposes of cross-examination to contradict contrary evidence given at the trial. Whether a suggestion of a plea at a case management hearing is or is not a provable admission or is or is not a safe basis for identifying what the issue is will vary from case to case. We do not need to explore that in the present case because of the other material which plainly identified the issue for the Recorder. Moreover, what the Recorder had properly been told once she enquired into what the issue was, was in due course confirmed in the trial. The defendant gave evidence. His case was that the drugs had indeed been in his trouser pocket. He gave an explanation for their being there. His explanation was that there had been some kind of scuffle or altercation in the club and at the end of it he had spotted a matchbox on the floor, he had picked it up to enquire of the people near him whether they had dropped it, no one claimed it so he tucked it away in his pocket and thought no more of it. That was his explanation for his possession of the drugs. If the jury accepted it, it no doubt meant that the intent to supply had not been proved. Those clearly were the defendant's instructions. That was his case. It would be quite wrong for us to assume that his case had changed when Mr Chambers' witness statement was admitted and the exchanges which we have already mentioned demonstrate otherwise. 19. All that confirms that the true issue in the case was not possession but intent to supply. That in turn means that it was plainly in the interests of justice for the uncontentious matter of possession to be proved by the Crown by the admission of the edited witness statement of Mr Chambers. To hold otherwise would not be to do justice; it would rather be to afford a defendant an escape on purely technical grounds. Mr Lynn would submit that to admit the evidence is to reverse the burden of proof in a criminal case. That submission, we are satisfied, is wrong. There is no question of relieving the Crown of the duty of proving the essential elements of the case. The question is not whether it is for the Crown to prove it, but how the Crown shall be permitted to prove it. If parts of the Crown's evidence are in dispute, it is quite likely that it will not be in the interests of justice to permit those parts to be proved by the reading of a hearsay statement when the witness cannot be cross-examined and properly challenged. But if parts of the Crown's case are not in dispute then it is plainly in the interests of justice that those parts shall be permitted to be proved by them by means of the hearsay statement as in this case. 20. We have had regard also to Mr Lynn's proper but perhaps rather faint submission that there was potential for injustice because he might have wanted to cross-examine the security guard as to what he had been told by other people in the club with a view to seeing whether that confirmed that there had been or might have been some kind of scuffle of the kind that the defendant was asserting. That was not a suggestion which was made to the Recorder and with all respect we do not regard it as realistic. Enquiry into what the security guard had been told by other people would in any event be asking a question which could only be answered by hearsay evidence. Quite apart from that in the present case any enquiry as to what the security guard had been told by others was most unlikely to be asked. If his original statement was right what he had been told by others was that the defendant had been seen putting his hand down his trousers as if to field the drugs which, according to the security guard, had been found there. 21. It follows from all those reasons that although we are satisfied that the Recorder erred in holding that such steps as were reasonably practicable to take had been taken to find Mr Chambers and thus in finding that the statement could be read under section 116(2)(d) , it is plain that the statement was admissible under section 114(1)(d). In those circumstances this conviction is not arguably unsafe. For those reasons this appeal against conviction is dismissed.	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["Possession with intent to supply ecstasy","Possession with intent to supply ketamine"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Scientific evidence of analysis","Security guard witness statement (hearsay)","Police officer testimony"],"DefEvidTypeTrial":["Defendant gave evidence denying intent to supply"],"PreSentReport":["High risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Trial judge wrongly admitted hearsay evidence under section 116(2)(d) Criminal Justice Act 2003"],"SentGuideWhich":["section 116(2)(d) of the Criminal Justice Act 2003","section 114(1)(d) of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Although Recorder erred in admitting the statement under section 116(2)(d), it was admissible under section 114(1)(d) as it was in the interests of justice; conviction not unsafe."]}
Neutral Citation Number: [2014] EWCA Crim 2290 Case No: 2013/3728/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 31 October 2014 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE KING THE RECORDER OF NOTTINGHAM HIS HONOUR JUDGE STOKES QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v JOE LISTER - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr J Naylor appeared on behalf of the Appellant Mr F Osman appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. THE RECORDER : This appeal is concerned with the valuation of benefit for the purposes of confiscation proceedings. This appellant was sentenced at Chichester Crown Court on 30th October 2012 in respect of two allegations. He was charged and pleaded guilty to an offence of being concerned in the production of cannabis, which offence occurred on 11th September 2011. He had already been committed for sentence in respect of an offence charged as occurring on 7th October 2011 for producing a controlled drug, namely cannabis. He was sentenced by His Honour Judge Wood QC to serve sentences of 21 months' imprisonment, ordered to run concurrently. 2. Those offences arose out of two separate raids by the police on two different addresses both relating to the appellant. On 11th September 2011 police visited 15 Elmhurst Close in Angmerring, West Sussex and discovered a cannabis grow consisting of 22 plants which had not reached full maturity. These plants were examined by an expert who estimated that the total likely yield of skunk-type cannabis when they reached maturity would be approximately 616 grams or about 21 ounces. The street value was estimated to be £6,160. The wholesale value between £3,360 and £3,780. 3. The following month police officers armed with a warrant issued under the Misuse of Drugs Act went to the appellant's home address at 21 Cheviot Close in East Preston. There they discovered the appellant. He showed them into a utility room where a plastic garden tent had been erected containing approximately 80 cannabis plant heads that were being dried out on racks along with lighting and ducting equipment. These drugs were identified as 468 grams of skunk-type cannabis with a street value of £4,350. No wholesale value was provided. 4. Although the appellant pleaded guilty to both allegations, his basis of plea, not accepted by the Crown, was that he had not participated in the setting up of the Elmhurst Close operation and that he was not intended to receive any financial benefit from it. He also asserted that the drugs found at his home address were for his own personal use. 5. The judge held a Newton hearing at which the appellant gave evidence. The judge rejected the appellant's account. The appellant sought to explain that he rented out the premises at Elmhurst Close to tenants and had no interest in the cannabis being grown there. He admitted however that he had driven to Guildford to acquire the necessary equipment. His fingerprints were found on the reflectors of the heat lamps and some silver foil. He also accepted he had provided the aggregate in which the plants were being grown. 6. The judge, hardly surprisingly in those circumstances, concluded that these efforts to assist were not done simply out of generosity towards his tenants. He was much more closely involved than he pretended. 7. The appellant also stated that the flowering heads discovered at his own home were purely for his own use. Again the judge rejected his account, finding that the amount of the cannabis discovered and the circumstances in which it was found were inconsistent with personal use. It may be of significance when one turns to the confiscation proceedings that the judge found that the appellant lied to him in his evidence. 8. The confiscation proceedings came on for hearing on 17th May 2013 before the same judge. The appellant was represented at those proceedings but by a different advocate, not Mr Naylor who appears before us today. Unfortunately, neither Mr Naylor or the court has a transcript of those proceedings owing to a fault in the recording equipment. What can be said, and this is not disputed, is that the sentences passed by the judge following the Newton hearing, when placed alongside the brief note from counsel who represented the appellant at that hearing, showed that the judge sentenced the appellant in accordance with Level 3 of the sentencing guideline and placed him in the category of a significant role. At the confiscation hearing the judge appears to have accepted what had been described as an agreed figure as to the future notional value of the cannabis plants found at Elmhurst Close. Those plants, it is agreed, had not yet reached maturity but they were on the evidence two weeks away from being ready to crop. In the event, the judge made a confiscation order against the appellant in the sum of £11,730. This agreed benefit figure appears to derive from the street value of the drugs from both addresses (£10,510), the cost of setting up the grow at Elmhurst Close and the equipment found at the appellant's home in respect of which he had given evidence at the Newton hearing. That came to £2,220. The figure totalling £12,730 must have been rounded down to the benefit figure of £11,730. According to the financial statement served by the Crown, the appellant's known assets were more than sufficient to accommodate such an order and he was given until 17th November 2013 to pay with nine months' imprisonment in default. 9. The single judge in giving leave to appeal said: "I have the gravest doubts as to the merits of this appeal. However if there is any doubt as to whether section 79 of the Proceeds of Crime Act 2003 is confined to the value of goods at the time of seizure rather than the market value at some future date it should be resolved by the full court." 10. The ground upon which leave was given has already been confronted by this court in the case of Elsayed [2014] EWCA Crim. 333 . As this court said, the valuation of benefit is a fact-driven exercise. We do not consider it necessary to set out the statutory provisions. They are set out in Elsayed and it is not and cannot be disputed that this appellant benefited from his criminal conduct on the judge’s findings of fact and the basis upon which he must have sentenced the appellant. The essential point made on the appellant's behalf, and identified by the single judge, is whether the benefit figure should have included the notional yield value of the cannabis or its arguably lesser value at the time it was seized by the police. 11. The appellant in his written grounds of appeal seeks to draw a significant difference in value according to the time at which the cannabis came into the possession of the police. Had it been seized two weeks later the argument would have proceeded on a different and, we suspect, shorter basis. 12. As we have indicated, the arguable ground upon which the single judge gave leave has already been addressed by this court in Elsayed . In the written submissions, prepared by the previous advocate reliance was placed on the decision of the House of Lords in Islam [2009] UKHL 30 as supporting the argument that the judge should not have assessed the value of the drugs at Elmhurst Close in the way that he did. The market value, it is suggested, is the illicit market value of the plants upon seizure. We disagree. This submission, with respect, confuses the valuation of benefit with the assessment of the available amount. Islam , as this court observed in Elsayed, involved an early interception by customs officers of imported drugs. The case was concerned with the question of whether drugs could have a market value, not for the purposes of deciding benefit but for the purposes of deciding the available amount, which is not the issue here. On a proper analysis it does not support the appellant's written submissions. As the Judicial Committee observed, and as was underlined by this court in Elsayed , (see in particular paragraph 25), while the market that has to be contemplated in assessing the available amount under section 9 of the 2002 Act must be taken as one to which the defendant can resort legally, when it comes to calculating the amount of his benefit the judge has to look to the market where such goods are ordinarily bought and sold. In the case of illegal drugs, as here, that market must be the market where the defendant will be expected to dispose of the drugs for profit and his benefit must be valued accordingly. The assessment at street value of the drugs in this case by the expert witness, which cannot be disputed, has been made on exactly that basis. How else on the judge's findings at the Newton hearing were these drugs to be disposed of? In the absence of any evidence from the appellant, and we also bear in mind that this valuation was agreed before the confiscation order was made, the assessment of the appellant's benefit could not have proceeded on any other basis. The judge, in our view, was not only entitled to proceed on that basis, but he was, in the absence of any other evidence, bound to do so. Had he wished to do so, the appellant would have given evidence that he intended to sell the drugs to another dealer on a wholesale basis. We are not entirely surprised that he chose not to do so, but it must follow from the judge's findings at the Newton hearing in which the defendant gave evidence and was not believed, that the drugs were being produced at Elmhurst Close and the flowering heads dried out at the appellant's home for onward transmission on the streets. 13. The assessment of the appellant's benefit is accordingly correct. We are also satisfied that this assessment of benefit in the circumstances of this case represents a proportionate outcome. Consequently this appeal must be dismissed.	{"ConvCourtName":["Chichester Crown Court"],"ConvictPleaDate":["2012-10-30"],"ConvictOffence":["Being concerned in the production of cannabis","Producing a controlled drug, namely cannabis"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Chichester Crown Court"],"Sentence":["21 months' imprisonment"],"SentServe":["Concurrent"],"WhatAncillary":["Confiscation order"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Expert report/testimony","Fingerprint evidence"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Confiscation order (valuation of benefit)"],"AppealGround":["Valuation of benefit should be based on value at time of seizure, not notional future value"],"SentGuideWhich":["Level 3 of the sentencing guideline"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Assessment of benefit at street value was correct and proportionate; court bound to use that basis; no evidence to support alternative valuation; issue already addressed in Elsayed; judge entitled and bound to proceed as he did"]}
Neutral Citation Number: [2005] EWCA Crim 2826 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT INNER LONDON HHJ Van Der Werff and a jury [renda] ON APPEAL FROM CROWN COURT AT SHEFFIELD HHJ KEEN AND A JURY [BALL] ON APPEAL FROM CROWN COURT AT BURNLEY MR RECORDER WRIGHT AND A JURY [AKRAM] ON APPEAL FROM CROWN COURT AT CARDIFF HHJ GRIFFITH-WILLIAMS QC RECORDER OF CARDIFF AND A JURY [OSBOURNE] ON APPEAL FROM CROWN COURT AT ISLEWORTH MS RECORDER GUPTA AND A JURY [RAZAQ AND RAZAQ] Royal Courts of Justice Strand, London, WC2A 2LL Date: 10th November 2005 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION (THE RT HON. SIR IGOR JUDGE) THE HON MR JUSTICE BEAN and THE RT HON. SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Between: Case No: 200503106D1 R - v - Raymond Renda And between: Case No: 200502620D1 R - v - Nathan Ball And between: Case No: 200502489D4 R - v - Adil Akram And between: Case No: 200502364B1 R - v - Lee Osbourne And between: Case No: 200501987B3 R - v - Ajaz Razaq and Abdul Razaq - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Hearing date: 20th October 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Approved by the court for handing down (subject to editorial corrections) Miss A. Felix for Renda Miss G. Ong for the Crown in Renda J. Hillis for Ball R. Newbury for the Crown in Ball Mr W.N. Goldstein for Akram Mr M. Lavery for the Crown in Akram Mr L. Jones for Osbourne Miss M. Parry-Evans for the Crown in Osbourne R. Cifonelli for Ajaz Razaq J. Stone for the Abdul Razaq R. Whittaker for the Crown in Razaq & Razaq PRESIDENT OF THE QUEEN'S BENCH DIVISION: General 1. These six appeals were listed together, and heard consecutively over two days. Each required consideration of one or more practical problems arising from the “bad character” provisions in Part II, Chapter 1, of the Criminal Justice Act 2003 . 2. It will not be necessary or useful for us to set out these provisions in the judgment. In coming to our conclusions, in each case we had an overall view of the structure of this chapter together with the specific legislation said to apply directly to the point in issue. In addition, we shall not spell out all the detailed evidence in support of either sides’ case. We only focus attention on those parts of the evidence relevant to our decisions. 3. We have some general observations. Several of the decisions or rulings questioned in these appeals represent either judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion. The circumstances in which this Court would interfere with the exercise of a judicial discretion are limited. The principles need no repetition. However we emphasise that the same general approach will be adopted when the Court is being invited to interfere with what in reality is a fact specific judgment. As we explain in one of these decisions, the trial judge’s “feel” for the case is usually the critical ingredient of the decision at first instance which this Court lacks. Context therefore is vital. The creation and subsequent citation from a vast body of so-called “authority”, in reality representing no more than observations on a fact specific decision of the judge in the Crown Court, is unnecessary and may well be counterproductive. This legislation has now been in force for nearly a year. The principles have been considered by this Court on a number of occasions. The responsibility for their application is not for this Court but for trial judges. 4. Finally, even if it is positively established that there has been an incorrect ruling or misdirection by the trial judge, it should be remembered that this Court is required to analyse its impact (if any) on the safety of any subsequent conviction. It does not follow from any proved error that the conviction will be quashed. 5. In the context of these appeals, although other points arose from time to time, it would be useful to set out the provisions which are of direct relevance in each individual appeal. 6. Renda (a) Creation of a false impression by a defendant (s 101(1)(f) and s 105(1)) (b) Withdrawal of a false impression (s 105(3)) (c) Reprehensible behaviour other than the commission of an offence (s 112(1)) (d) Discharge of the jury for “contamination” (s 107) 7. Ball Evidence “given” of an imputation made during questioning under caution (s 101(1)(g) and s 106(1)(c)) 8. Akram Complainant’s bad character (s 100) 9. Osbourne (a) Bad character of complainant and defendant’s witness (s100) (b) Duty to give reasons (s 110(1)) 10. Razaq and Razaq Complainant’s bad character and limits to cross-examination (s 100) Renda 11. This is an appeal by Raymond Renda against a conviction for attempted robbery on 13th May 2005 at the Inner London Crown Court before HHJ Van Der Werff and a jury. 12. At the date of the hearing of the appeal he had not been sentenced. He appeals with leave of the single judge. 13. The facts are straightforward. At about 2 am on 10th November 2003, the complainant, Robert Flint, was walking home along Mile End Road in Stepney Green London. At about the same time the appellant left a nearby public house, and was walking along Mile End Road in the opposite direction. Their paths crossed, and the appellant stood beside Mr Flint and asked him for money. When Mr Flint responded that he did not have any, and carried on walking, the appellant then fell in to walk beside him, continually pressing him for money. The appellant put his right hand into his jacket pocket saying, “What is this I have got in my pocket?”. Hardly surprisingly, Mr Flint began to feel frightened, and the appellant continued to follow him, ordering him to turn into Whitehorse Lane, which, as it happened, was the street in which Mr Flint lived. As Mr Flint walked up the path to his flat the appellant followed him, still asking him for money, and, under an archway, seized hold of him by the neck, swinging him round and pushing him against the gate, saying “Give me your money now”. Mr Flint pushed the appellant away, and into a hedge, and ran to his front door, but before he had time to open the door, the appellant returned and pushed him against the wall with his hand on his neck. 14. Two police officers in a passing police car saw what they believed to be a fight, and stopped, and separated the combatants. Mr Flint immediately complained that the appellant had followed him home and tried to rob him. The appellant denied that he had done anything at all, asserting that he was on his way home from the pub and that the allegation must be some sort of joke. When interviewed the appellant declined to answer any questions, but submitted a prepared statement in which he denied that he had attempted to rob the complainant: rather, after making a false accusation, the complainant had attacked him. 15. The issue at trial was therefore straightforward. The jury had to decide whether any offence at all had been committed, and their decision largely depended on their judgment of Mr Flint’s veracity, and, if he gave evidence, the veracity of the appellant. 16. The issues in this appeal arise from the appellant’s evidence. He sought to enhance his credibility by asserting that he had been a serving soldier in HM Armed Forces, who had, while so employed, sustained a serious head injury, which had resulted in long-term brain damage. He said that at the date of his arrest he was in regular employment as a security guard. 17. The Crown was in possession of evidence to show that although it was true that the appellant had served in the armed forces, his serious head injury had not been sustained while he was in the course of his duties, but while he was on holiday, driving his own vehicle. Although it was also true that he had been employed in a security capacity, checking “passes”, this had been short-term employment only. He was no longer in gainful employment. If this evidence was correct, the appellant was seeking to convey a misleading impression about his life and history. 18. The additional material available to the Crown included the defendant’s antecedent history and police computer print outs, and a report prepared by a psychiatrist instructed by the Crown. This material showed not only that there had been a number of reported crimes of violence for which the appellant was alleged to have been responsible, but that on an earlier occasion, in July 2001, when he was found unfit to plead to a count of assault occasioning actual bodily harm, the jury was satisfied as a fact that the appellant had approached someone from behind and struck him about the head with a large wooden table leg. The case had been disposed of by way of an absolute discharge. 19. Our attention was drawn to some earlier authorities, which considered the impact of s 1(3)(ii) of the Criminal Evidence Act 1898. However it is unnecessary to refer to them in this judgment. It is most unlikely to be useful to refer to authorities which were no more than factual examples of occasions when it was decided that an individual defendant had put his character in issue. For the purposes of s 101(1)(f) the question whether the defendant has given a “false impression” about himself, and whether there is evidence which may properly serve to correct such a false impression within s 105(1)(a) and (b) is fact-specific. In the present case the appellant was plainly seeking to convey that he was a man of positive good character. 20. When the appellant was cross-examined he continued to maintain that he had been in regular employment as a security guard, and that he had not been dismissed from that employment. He did however concede that when he described himself as a security guard, his duties amounted to no more than checking passes. He agreed that he had not sustained his head injury during the course of his military duties as a soldier, but while he was on holiday in a car accident. In short, in cross-examination, he was forced to concede the truth. 21. It was submitted that in these circumstances the appellant should be treated as having withdrawn or disassociated himself with any false assertion relating to the claim that he had sustained injury while in the course of his duties. Accordingly s 105(3) should apply, and it was therefore no longer appropriate to treat him as having given evidence which was “apt to give the … jury a false or misleading impression about” him. We do not agree. Our reason is simple. There is a significant difference between the defendant who makes a specific and positive decision to correct a false impression for which he is responsible, or to disassociate himself with false impressions conveyed by the assertions of others, and the defendant who in the process of cross-examination is obliged to concede that he has been misleading the jury. A concession extracted in cross-examination that the defendant was not telling the truth in part of his examination-in-chief will not normally amount to a withdrawal or disassociation from the original assertion for the purposes of s 105(3). 22. The Crown sought leave to ask questions about this incident of violence. Judge Van Der Werff decided that it would not be prudent or right for the Crown to explore, through the appellant’s own testimony, the details of his psychiatric history, not least because the appellant himself might not be in a position to deal with it properly. He made a preliminary ruling that the Crown was entitled to ask questions about the appellant’s military service, the circumstances of the accident, and his subsequent employment. It was appropriate for the jury to understand that the appellant had been charged with assault occasioning actual bodily harm, and that although he was found unfit to plead, he was also found by the jury to have committed the physical act of assault. The case was disposed of by way of an absolute discharge. 23. The judge was very concerned that the jury should not labour under a false impression about the appellant. He rejected a submission that the Crown should not be allowed to adduce the facts of the assault because proper notice had not been given. Counsel for the Crown submitted that these matters had arisen for consideration during the appellant’s evidence, so that it was impractical to have given any notice. The judge ruled that the Crown could ask about the facts of the assault which were relevant to the issue of credibility. 24. Before us it was argued that the judge’s rulings were wrong. An absolute discharge following a finding that the defendant was unfit to plead did not constitute a criminal conviction, nor did it constitute “reprehensible behaviour” amounting to misconduct for the purposes of the “bad character” provisions in Part II of the Criminal Justice Act 2003 . We agree that the appellant was not “convicted” of a criminal offence. We also accept that as a matter of ordinary language, the word “reprehensible” carries with it some element of culpability or blameworthiness. What however we are unable to accept is the mere fact that the appellant was found unfit to plead some 18 months after an apparent incident of gratuitous violence has occurred, of itself, connotes that at the time of the offence his mental acuity was so altered as to extinguish any element of culpability when the table leg was used in such a violent fashion. On the face of it, this was reprehensible behaviour, and there was no evidence before Judge Van Der Werff to suggest otherwise. 25. Accordingly, this material was available to help refute the false impression as of positive good character given by the appellant in his evidence-in-chief. Recognising as the judge did, that this was not an entirely straightforward issue, he was at pains to explain to the jury the precise status of the earlier court proceedings, and in particular, how the process encompassed in the phrase “not fit to plead” works, and what it involves, and that the appellant was not convicted, and indeed had no convictions. He also explained that its relevance in this particular case was confined to helping the jury decide whether the appellant had tried to present himself as a “rather better man” than he actually was, and whether he was in truth, as the jury might consider he was seeking to convey, deserving of sympathy. If they were sure that he had tried to give a false impression about himself, then the jury was entitled to see how it affected the way in which they should approach the evidence about events on 10th November 2003. All that was fairly done. 26. The remaining point arising in this appeal arises from a submission that the judge should have stopped the case because the evidence had become contaminated. The point arose in this way. When the issue of the table leg incident was first raised, counsel for the appellant conceded that the finding by the jury amounted to a conviction. After further research she concluded, rightly, that it was not. Accordingly she sought the discharge of the jury on the basis that the evidence before it was “contaminated” for the purposes of s 107. 27. We can deal briefly with this submission. For the reasons we have given, the evidence was not in fact “contaminated”. We are however concerned to ensure that s 107 should not be misused. There will, of course, be occasions when counsel is justified in submitting that a conviction would be unsafe because evidence admitted under s 101(1)(c)-(g) proved to be contaminated. That however does not provide any justification for a submission which, in truth, is no more than a reiteration of the arguments advanced by counsel against the admission of this evidence. S 107 deals with a particular situation where the evidence of “bad character” has been admitted and proves to be false or misleading in the circumstances described in s 107(5). Unless the case falls squarely within that statutory provision, the Court of Appeal Criminal Division is the appropriate court in which the correctness of the judge’s decision should be questioned. 28. For these reasons, this appeal will be dismissed. Ball 29. This is an appeal by Nathan Ball against his conviction on two counts of rape on 18th April 2005 in the Crown Court at Sheffield before HHJ Keen QC and a jury. The two counts related to incidents of penetration of the mouth and sexual intercourse with the same woman on 21st January 2005. 30. This unpleasant incident needs very little narrative explanation. Prior to 21st January 2005 the complainant and the appellant had been involved in a very casual sexual relationship. Consensual sexual intercourse had taken place after heavy alcohol consumption in circumstances devoid of any hint of affection. 31. On 21st January the pair were drinking in the same public house. There was evidence of some very unpleasant language by the appellant generally and at least in part insulting of the complainant. In any event, they left the premises together. They started to make their way to the rear of a nearby supermarket, and began intimate touching of each other. In the course of this foreplay the complainant fell over and hurt her knee. The appellant was unsympathetic and became aggressive. According to the complainant, she was no longer willing to have sexual intercourse with him, and she made her position absolutely clear. Nevertheless he forced her to take his penis in her mouth, and then proceeded to sexual intercourse. When it was over she reported that the appellant had said to her, “What are you going to do now, go off and get me done for rape? Look at you, you’re nowt but a slag”. 32. The appellant’s case was that this sexual activity took place with the complainant’s consent. She appeared to be entirely happy afterwards, but she may have become aggrieved because she thought or understood from what people were saying that the appellant was using her. Perhaps she recollected or heard about the appellant’s earlier disparaging remarks about her in the public house, and this provoked her to make a false allegation of rape. In short, the complainant was lying, motivated by a wish for vengeance. 33. No further summary of the conflicting and mutually contradictory accounts of the incident is needed. We must however refer to the contents of the interviews between the appellant and the police. The appellant told the police that most of the men in the local public house had had sexual intercourse with the complainant. He criticised the complainant’s sexual promiscuity in very disparaging terms. She was easy. “She’s a bag really, you know what I mean, a slag”. This echoed the comment attributed to the appellant by the complainant after sexual intercourse. 34. When the appellant gave evidence, the Crown submitted that his bad character arising from previous convictions and breaches of court orders, should properly be deployed in cross-examination. The judge rejected a number of different bases advanced by the prosecution, including in particular, that he should admit this evidence simply on the basis of the direct attack on the complainant’s credibility based on the appellant’s instructions that the allegations of rape were fabricated. If we may say so, the judge’s approach to this part of the case seems to have been impeccable. 35. However, the judge was troubled by the attack made against the complainant by the defendant in the course of the police interviews. In effect, the appellant asserted that the complainant had behaved or was disposed to behave in a reprehensible way. Accordingly an attack had been made on the complainant’s character for the purposes of s 101(1)(g), as explained and expanded in s 106, and in particular s 106(1)(c). Evidence was given “of an imputation about the other person made by the defendant – (i) on being questioned under caution, before charge …”. The judge considered whether to exclude the evidence under s 101(1)(3) on the basis that its admission would have an adverse effect on the fairness of the proceedings. He concluded that cross-examination about the appellant’s bad character should be permitted. 36. Although a number of minor matters were raised in argument, we need only address the complaint directed by Mr Hillis at the judge’s ruling that the appellant could be cross-examined about his previous convictions. No criticism is made of the way in which the judge dealt with these issues in his summing up. The complaint is directed at his ruling. 37. Mr Hillis began his argument by submitting that a major difficulty in this case arose from the impact of s 41 of the Youth Justice and Criminal Evidence Act 1999 , which although restricting evidence or questions by the defence about a complainant’s sexual history, did not extend to the prosecution. We agree that this is a feature of s 41 , but it does not advance the argument further. The appellant chose to make the observations reported by the police. If what he said was relevant and served to support the allegation of rape, this evidence was admissible, and for the purposes of s 106(1)(c) was indeed “given”. The answers by the appellant in his interview purported to be exculpatory in nature (there was no rape: it was consent) but were said by the Crown, with every justification, to provide evidence which indicated an attitude to the complainant which at least carried with it the implication that the appellant believed that she would have agreed to sexual intercourse with him, and any other man, at any time and in any circumstances, and that if and when she purported to be unwilling to have sexual intercourse, any such refusal should be disregarded as quite meaningless. In reality, therefore, and somewhat unusually, answers which might have been treated as exculpatory alone, and possibly not admissible on that basis, formed part of the prosecution case adduced by the Crown. The highlight, at its most stark, was the epithet, “slag”, used by the appellant in the interviews to describe the complainant which echoed what she claimed he had said to her after sexual intercourse had finished. The Crown also contended that the remark about rape attributed to him by the complainant was inconsistent with a genuine belief that she was consenting to what happened. 38. In our judgment this evidence was properly before the jury as part of the prosecution case. It did not represent (and the judge would have been alert to any such danger) any sort of device to enable the Crown to make an application to put the appellant’s previous convictions before the jury. Once the evidence was properly given, within s 106(1)(c) the judge would have been entitled to exclude it as a matter of discretion. He was well aware of the need to exercise that discretion. No arguable basis for interfering with his decision has been shown. 39. Accordingly this appeal is dismissed. Akram 40. This is an appeal against conviction and sentence by Adil Akram. On 18th March 2005 he was convicted of dangerous driving at Burnley Crown Court before Mr Recorder Wright and a jury. On 29th April 2005 he was sentenced to 18 months detention in a Young Offender Institution and disqualified from driving for 3 years and until an extended driving test was passed. 41. The essential facts can be summarised very briefly. On 1st August 2004 Rokab Afzal was driving his car in Nelson, in Lancashire, carrying a passenger, Adnan Khan. They became rather concerned about a potential problem with the steering of the car, so Mr Afzal stopped and got out. While he was there he was approached by a man called Kais Anwar, and they exchanged some unpleasantries. Thereafter a red Peugeot car pulled up on the opposite side of the road, and Kais Anwar went to speak to the driver. After he had done so the red Peugeot revved its engine and drove at the complainant, knocking him over. Fortunately Mr Afzal was not seriously hurt, and he was able to get up and run away into a nearby school. The red Peugeot then drove away from the scene. 42. The prosecution case was that the driver of the red Peugeot was the appellant, recognised both by Mr Afzal and his passenger Mr Khan. The defence case was that the identification was wrong. The appellant had spent the whole of the day, and at the relevant time was at his girlfriend’s house. His girlfriend gave evidence to the same effect. 43. The appellant was aware of four specific areas of evidence with which it was proposed to test the evidence of Mr Afzal. The appellant and he had been friends for some time, but eventually a problem arose between them, the precise origins of which depended on which of them was explaining it. From the appellant’s point of view he asserted an earlier assault by the complainant in which the complainant counter-asserted that he was the victim. This was described as the “cricket bat incident”. There was also a falling out over a car stereo or cassette player which went missing from the appellant’s car. According to him, either the complainant, or his associates, stole the car stereo in order to exert a measure of self-help to encourage the appellant to pay a debt: that, too was contentious. It was further suggested on the appellant’s behalf that on the day when it was alleged that he had been driving the red Peugeot car he was assaulted by associates of Mr Afzal, on his instructions. The final area of contention arose from the fact that Mr Afzal had been charged with an offence of kidnap. 44. The applicable statutory provision is to be found in s 100 of the Criminal Justice Act 2003 . The Recorder allowed questions to be asked of the complainants about both the cricket bat and car stereo incidents. The allegation of assault on the same day as the offence was not pursued. The Recorder refused the application by the appellant to introduce or cross-examine Mr Afzal about the kidnap charge. This decision forms the basis of complaint before us. 45. It was suggested by the appellant at trial, and before us, that the purpose of this evidence was not to establish that Mr Afzal was a person of “bad character”, but in order to demonstrate that others, as well as the appellant himself, might have had a motive for attacking him. The jury knew of the “bad blood” between the two men, and according to the argument by Mr Goldstein, it was essential to the defendant’s case to establish that Mr Afzal had other enemies in addition to and beyond the appellant. 46. The problem with this argument is simple. The evidence of “bad blood” between the complainant and the appellant was introduced by the appellant, after permission had been sought and given for it to be raised. Moreover, at the time when the dangerous driving occurred, the alleged kidnap incident remained some four weeks into the future. Mr Afzal made his complaint, and identified the appellant as the driver of the Peugeot car on the day when the incident happened. On any view, therefore, the dangerous driving cannot have been a response to or some sort of revenge for the kidnap incident. Beyond that, however, even if the kidnap incident had occurred before the dangerous driving, it remains difficult for us to see why, even if the kidnap incident had indeed occurred, the victim of dangerous driving should wrongly attribute responsibility for it to Mr Afzal rather than to the individual who, on this analysis, was falsely accusing Mr Afzal of kidnap. In any event, the best that could be said at this stage of the case was that this was a bare allegation, itself wholly unproved. 47. On these facts, there is no justifiable complaint against the Recorder’s decision about the proper application of s 100 of the 2003 Act . The appeal against conviction will be dismissed. Sentence 48. The appeal against sentence focuses exclusively on the length of the custodial term, which Mr Goldstein accepts was inevitable. We have noted the comparative youth of the appellant, 18 years at the time, and his previous good character. On the other hand the incident itself was plainly a culmination of what we have described as bad blood between the two men. This case proceeded as a trial, and the appellant lacked the mitigation of a guilty plea. Taking account that Mr Afzal was fortunate to escape serious injury, it may very well be that the sentence fell at the top end of the appropriate range. There is however no basis to justify interference with it. Accordingly the appeal against sentence will also be dismissed. Osbourne 49. This is an appeal by Lee Osbourne against his conviction for robbery at Cardiff Crown Court before HHJ Griffith-Williams QC, the Recorder of Cardiff, and a jury. 50. The appellant was jointly charged with Alex Jenkins, whose application for leave to appeal against conviction was abandoned. 51. The essential facts can be briefly summarised. In the early hours of 9th September 2004, the police were called to a public house known as the Grasshopper, following a report that the licensee, Russell Cleverley, had been robbed of £200 in cash from the till. The appellant denied any involvement in robbery, and the defence positively called into question whether a robbery had taken place at all. The appellant, a man with a lengthy list of previous convictions suggested that Mr Cleverley fabricated the complaint of robbery in order to cover up his own misconduct as the licensee at the Grasshopper. 52. The precise details of the incident need no repetition. Mr Cleverley knew the appellant personally. At the end of drinking up time that evening very few people left in the Grasshopper. They included the appellant and Alan Jenkins, who would not leave. After a while Mr Cleverley was threatened by them. Keys to the gaming machines were demanded. The appellant struck him across the left cheek and went with him to the till and demanded money. Mr Cleverley gave him £200 from the till. Jenkins was present at the other side of the bar and told the appellant to take Mr Cleverley upstairs and get the tape. This was a reference to the CCTV tape, which was then removed and destroyed. 53. Mr Cleverley’s allegation was supported by a fairly considerable body of additional evidence, but no further narrative of the evidence available to the Crown is required. 54. The material available to the defence extended to four linked areas of alleged misconduct by Mr Cleverley as a licensee. His general conduct and management of the premises produced persistent till shortages. The premises were regularly misused for after hours drinking, free to both staff and late customers, with consequent stock depletion. During these “parties” drug misuse occurred, condoned if not encouraged by Mr Cleverley who participated in the activity. The fourth criticism was directed to Mr Cleverley’s personal use of cocaine on the night of the offence itself. 55. As Mr Cleverley was a non-defendant, the admissibility of any evidence of bad character or misconduct or reprehensible behaviour depended on s 100 of the Criminal Justice Act 2003 . In brief, to be admissible, such evidence was required to be important explanatory evidence, or evidence with a substantial probative value in the context of the case as a whole. S 100 was analysed by the Recorder. He decided that counsel for the appellant was entitled to deploy all the material, with the exception of the generalised allegation of drug misuse during after hours drinking sessions. If true, the allegations of general till shortages and the provision of free drink, and so on, lent support to the allegation that any shortage in the till might be attributed to the landlord’s misconduct, rather than an alleged robbery. If Mr Cleverley used cocaine on the night of the offence itself, that might significantly undermine his complaints against the appellant. However, the Recorder was unable to conclude that the drug-taking allegation fell within the rules governing admissibility prescribed by s 100 . 56. The complaint is that the Recorder’s decision was wrong. The excluded material impacted on Mr Cleverley’s general credibility but it went further, and served to demonstrate that he was lying when he claimed that he had been the victim of an offence. Moreover, it was argued, that this material added credibility to the defendant’s account to the police in interview. 57. The problem with Mr Jones’ fundamental contention can be summarised briefly. The allegation that the premises were misused generally for drug offences did not help to demonstrate why or support the conclusion that Mr Cleverley was or may have been inventing a fictitious crime. In the Recorder’s view this allegation therefore lacked the explanatory importance and substantial probative value which was required to be satisfied before evidence of the bad character of a non-defendant could be admitted. These decisions have always to be reached in a particular factual context. We lack what is sometimes described as what is sometimes described as the trial judge’s “feel” for the case. We should therefore hesitate before interfering with his conclusion in a matter of judgment. In our view even if this line of questioning may have had some marginal relevance, given that the Recorder permitted the proper development of lines of questioning which had a direct and significant impact on the issue to be decided by the jury, the prohibition against Mr Jones developing this particular line of cross-examination could have had no bearing on the outcome of the trial. That said, in our judgment the Recorder’s decision was right. This particular material did not satisfy the admissibility provisions in s 100 . 58. A further complaint arising under s 100 is directed against the judge’s decision that a defence witness, Welsh, an employee of Mr Cleverley, described by the complainant as a friend, could be cross-examined about his bad character. His evidence purported directly to undermine Mr Cleverley’s allegation that he had been the victim of violence on the night in question. In short, he gave evidence which served to support the assertion that Mr Cleverley had indeed invented the claim that he had been robbed. 59. Welsh had as recently as February 2003 been sentenced to two years’ detention for an offence of serious violence. The judge agreed with the Crown that he could be cross-examined about it. The evidence of the conviction fell within s 100 , particularly germane to the fundamental question whether or not a robbery had taken place. Without knowing of Welsh’s character, the jury would have been deprived of important evidence of substantial probative value in relation to the issue of the credibility of Welsh’s evidence on the vital question whether Mr Cleverley had fabricated his complaint, or whether in truth he was rightly to be regarded as a victim. 60. We cannot find any principled basis for interfering with the judge’s decision. In agreeing that Welsh could be cross-examined about his previous conviction, the judge observed that the jury was entitled to know about Welsh’s character. With respect we would suggest that this was an over-parsimonious compliance with the duty of the court under s 110(1) of the 2003 Act to give reasons for any rulings made under s 100 . However, as the decision itself was correct, the absence of detailed reasons does not impinge on the safety of the conviction. Accordingly this appeal will be dismissed. Razaq and Razaq 61. Ajaz Razaq is the son of Abdul Razaq. On 18th March 2005 in the Crown Court at Isleworth, before Ms Recorder Gupta and a jury, both were convicted of assault occasioning actual bodily harm and affray. Another son of Abdul Razaq, Shabaz Razaq, was similarly convicted. Each was sentenced to a total of 15 months imprisonment. Ajaz Razaq and Abdul Razaq appeal against conviction with leave of the single judge. 62. An unpleasant incident occurred at about 6 pm in the early evening of 21st December 2003. There was an altercation outside a taxi office run by Perwaz Razaq who was later acquitted of witness intimidation. In the result Tarab Raja sustained a superficial laceration to the left side of his face, some 4 cms long, abrasions and bruising to the front upper chest, soft tissue swellings to the head, abrasions to the elbow and knee, and cuts to his fingers. 63. For ease of reference, and to avoid misunderstanding, we shall throughout the rest of this judgment refer to Ajaz Razaq as Ajaz, Abdul Razaq as Abdul, Shabaz Razaq as Shabaz, Perwaz Razaq as Perwaz and Tarab Raja as Tarab. 64. The case for the Crown was that as a result of a telephone call from Shabaz indicating that he could now collect £100 he was owed, Tarab was tricked into going into the taxi office. He was there set upon by Shabaz and Abdul, who were later joined by Ajaz. The two brothers were armed with knives: the father was wielding a metal pole. 65. The defence was that Tarab was the aggressor. He attacked Shabaz, whose father Abdul, and subsequently whose brother Ajaz intervened to protect him. Neither of these appellants behaved aggressively or violently save to the extent necessary to protect Shabaz. 66. The precise details of the evidence need no further narrative. Although it was virtually impossible to discover the issues from the defence case statement by Ajaz, in reality the jury had to decide whether one or both of these appellants was or may have been acting in what throughout the trial was described as “self-defence of another”. For resolving that question, the credibility of all the protagonists required close analysis. 67. Two further aspects of the evidence require specific mention. Abdul was a man with previous convictions: so was Shabaz. Ajaz was not. He was a man of good character. The first defendant on the indictment was Abdul: Ajaz came next, then Perwaz, and finally Shabaz. This led, as we shall explain, to some tactical manoeuvrings. In the end, each defendant gave evidence. 68. Tarab, too, had previous convictions. The full information about him was that he was cautioned in April 1997, when he was 15 years old, for assault occasioning actual bodily harm, and cautioned again in September 1998 for theft. We were told that the assault was a very serious incident which resulted in the victim being rendered unconscious in the street. Quite apart from cautions, notwithstanding “not guilty” pleas, he was convicted in July 2000 of violent disorder, grievous bodily harm with intent, and wounding, and sentenced to a total of 30 months’ detention at a Young Offender Institution. These convictions represented two distinct and serious incidents of violence. In addition, in April 2004, he was fined £100 for breach of the peace. 69. This leads to the second general aspect of the evidence, arising in the case of Ajaz. Apart from good character, his evidence-in-chief was exceptionally brief. He simply adopted what he had said in his police interviews. This amounted to a denial of any direct involvement. He had seen a fight between his brother and Tarab. He did not see any metal pole, and he had no weapon himself. He pushed the protagonists apart, and in turn was pushed back onto the floor. Apart from accepting that Ajaz’s presence at the incident, as we have already noted, the defence case statement said absolutely nothing of value. It stated that the defendant denied assaulting Tarab and denied using or threatening unlawful violence by himself or any other person. As to witnesses, he was not accepting the evidence of any prosecution witness which implicated him “as being responsible for any criminal offence”. If one bothers to read further on, the statement asserts that it “does not purport to set out every aspect of the defendant’s case in detail”. In truth it said virtually nothing which was not fully encompassed in the “not guilty” plea. 70. We can now come to the issues raised in the appeal. 71. After Tarab had given his evidence-in-chief, counsel for Ajaz, not we emphasise, counsel for Abdul, applied under s 100 of the Criminal Justice Act 2003 to cross-examine Tarab about his previous convictions. 72. When the application was made, the Recorder observed that at that stage there was nothing in the defence case statement to suggest that Ajaz was acting in self defence, or indeed that Tarab had initiated the violence. She was concerned that Tarab’s conviction for violent disorder had also involved Shabaz when he, too, had been convicted of violent disorder. Thereafter the argument that Tarab’s convictions should be admitted was taken up by counsel by Shabaz, although at this stage he did not adopt the argument on his behalf. 73. The Recorder rejected the application on the basis that the defendant who was making it failed to establish for the purposes of s 100(1) (b) that Tarab’s bad character was of substantial probative value in the case against Ajaz. In reaching her conclusion, she was alert to the contents of Ajaz’s interview and the defence case statement. This perhaps distracted her from addressing what was said to be Tarab’s “propensity for violence”, and whether, as was inevitably the case, that his credibility, too, was impugned by conviction after not guilty pleas to three different offences. 74. After this ruling, an application was then specifically made on behalf of Shabaz to introduce the full story of Tarab’s previous history. The end result was that permission was given to counsel to cross-examine in general terms that the witness was a violent man, basing it on the previous convictions for violence, and, according to the transcript of the ruling, but not apparently followed up at trial, the caution for assault. 75. In the result Tarab was cross-examined by Abdul and Ajaz without reference to his previous convictions, and then by Shabaz about the convictions for violence and the overall circumstances of each offence, including his “not guilty” pleas. Neither Abdul nor Ajaz sought leave to further cross-examine, but it is implicit in the arguments that we have heard that the cross-examination on Shabaz’s behalf was adopted and later deployed on their behalf. The long-term consequence was that Shabaz’s previous convictions also went before the jury. Abdul’s did not. 76. The major complaint made by Abdul and Ajaz was that the judge was wrong to reject Ajaz’s application to cross-examine Tarab about his previous convictions. We shall assume for present purposes that her ruling limited the cross-examination to the specific incidents of violence represented by the conviction in July 2002. Complaint was made on behalf of Abdul that the full details of both cautions and the subsequent breach of the peace should also have been admitted. Given Tarab’s age at the date of the matters which gave rise to the cautions, and assuming that the facts relating to them might also have been admitted, we can see no reason to interfere with the conclusion that this material lacked the substantial probative value required by and did not properly fall within s 100(1) . 77. Abdul has no legitimate complaint. He never made an application nor sought in any way to introduce Tarab’s previous convictions into evidence. We understand the tactical considerations which may have inhibited his counsel from doing so at trial, but it can only be in exceptional circumstances that a defendant who is unprepared to make or expressly associate himself with an application for leave to cross-examine a prosecution witness may realistically complain at the judge’s decision rejecting an application to the same effect by a co-accused. We can see no reason why a defendant has a justifiable complaint if tactical forensic manoeuvres have failed to produce the hoped for result. 78. Ajaz has a sounder basis for complaint. We have some sympathy for the Recorder who was faced with a sparse and deficient defence case statement, and perhaps insufficient focus in argument on the specific allegations made directly against Ajaz by Tarab. Nevertheless, in our judgment insufficient weight was given to the critical importance of Tarab’s direct evidence implicating him. In the result, however, Tarab was cross-examined about his critical convictions, and that material, and the character of the complainant making allegations against Ajaz was before the jury. 79. Apart from some generalised unspecific complaint, Mr Cifonelli did not identify any particular prejudice sustained by Ajaz which was not cured by the successful application on behalf of Shabaz. This ground of appeal therefore fails. 80. The Recorder’s directions about the use to be made of Tarab’s previous convictions are criticised. She had, of course, to exercise a very careful judgment not to direct the jury about Tarab’s convictions in such a way to produce an inappropriately adverse reaction to the fact that Shabaz was himself involved in one of those offences. 81. She directed the jury that this material might help them to understand the other evidence in the case, including “the character of the person who brings these charges and the case as a whole”. She suggested that the jury might be helped to resolve the issue whether Tarab was lying, and pointed out that a person of bad character may be less likely to be telling the truth than someone of good character. Later in the summing up she directed that the previous convictions of Shabaz could be taken into account when deciding whether or not his evidence was truthful, linking it to the case of Tarab, pointing out that a person bad character may be less likely to tell the truth. She completed her summing up observing that the jury had to decide to what extent, if at all, Tarab’s “character helps you when judging his evidence”. She also gave a full good character direction in relation to Ajaz covering credit and propensity. 82. There is force in the complaint that the Recorder did not give any detailed directions about the potential relevance of Tarab’s previous convictions for violence to the issue of propensity, and therefore to their possible bearing on the critical question whether or not he may have been the aggressor rather than the victim. It is however difficult to imagine that the jury would have failed to consider and given appropriate weight to those convictions when they considered which of the protagonists was the aggressor. The Recorder had expressly referred to the assistance this evidence might give to help understand “the case as a whole”, and whether Tarab was lying “about his actions during the incident”. These directions should have been more direct and specific. It needed no more, than perhaps a single clause encompassing words such as, “… may be taken into account by you when considering whether Tarab Raja was the victim or the aggressor”. That said, in our judgment, in the context of this case, the deficiencies we have identified do not undermine the safety of the convictions. 83. We now come to the final, unconnected complaint, that the judge’s direction on “self-defence of another” was inadequate. Properly understood, the defence of both Abdul and Ajaz was not self defence at all. Neither was responding to a personal threat against his own safety. Each was reacting to protect Shabaz. No-one addressed s 3(1) of the Criminal Law Act 1967 or, indeed, the common law principle that an individual is entitled to use such force as is reasonably necessary to protect someone else from a threat of violence. The appeal in Duffy [1967] 1 QB 63 was allowed on the basis that the judge had wrongly withdrawn a defence of rescue in circumstances permitted by the common law. That did not happen here. A very full and complete self defence direction was given, and it is plain that everyone at trial treated the self defence direction as if it applied to the situation in which Abdul and Ajaz claimed to have found themselves. Indeed the Recorder pointed out in express terms, in her brief summary of the respective contentions, that Abdul said that he was “acting in defence of another”. She subsequently reminded the jury of his case that Abdul was not fighting with anybody, “only trying to stop them”. She also reminded the jury of Ajaz’s case that he stepped between his brother and Tarab, and pushed them apart. 84. When the summing up was virtually completed, in the presence of the jury, counsel on behalf of Abdul suggested that the Recorder had dealt with “self defence of ones’ self” but not with what he described as “self defence of another”. She was firmly convinced that she had done so, and recorded that the jury was nodding. The Recorder went on to recall that she had said that “they were saying self defence of another” and indicated that the directions on self defence applied to self defence of another. She then went on to indicate that her directions about self defence applied to Abdul and Ajaz whose only involvement was to defend Shabaz and separate him and Tarab. It is abundantly clear that the jury will have applied the relevant legal principles to each of their cases. 85. Having concluded that none of the individual complaints, taken on its own, impugns the safety of these convictions, we reconsidered whether the convictions were rendered unsafe by the cumulative effect of the problems we have identified. Having done so, we have concluded that these convictions are safe. Accordingly the appeals are dismissed.	{"ConvCourtName":["Crown Court at Inner London","Crown Court at Sheffield","Crown Court at Burnley","Crown Court at Cardiff","Crown Court at Isleworth"],"ConvictPleaDate":["2005-05-13","2005-04-18","2005-03-18","","2005-03-18"],"ConvictOffence":["Attempted robbery","Rape","Dangerous driving","Robbery","Assault occasioning actual bodily harm","Affray"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Burnley","Crown Court at Isleworth"],"Sentence":["18 months detention in a Young Offender Institution and disqualified from driving for 3 years and until an extended driving test was passed","15 months imprisonment"],"SentServe":["Single"],"WhatAncillary":["Disqualified from driving for 3 years and until an extended driving test was passed"],"OffSex":["All Male"],"OffAgeOffence":[18],"OffJobOffence":["Employed","Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance","Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male","All Female"],"VicAgeOffence":[15],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Victim testimony","Police testimony","Defendant's police interview"],"DefEvidTypeTrial":["Defendant testimony","Alibi claim","Defence witness testimony"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["offence committed after bad blood between parties"],"MitFactSent":["offender of previous good character","comparative youth of the appellant"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Improper admission of bad character evidence","Improper exclusion of bad character evidence of complainant","Improper cross-examination about previous convictions","Improper direction to jury"],"SentGuideWhich":["Criminal Justice Act 2003 s 100, s 101, s 105, s 106, s 107, s 110","Youth Justice and Criminal Evidence Act 1999 s 41"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No basis to interfere with judge's exercise of discretion","No prejudice caused to offender","Material properly before jury","Directions to jury adequate","No basis to justify interference with sentence"]}
WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 2 of the judgment, because the case concerned offending against a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202200135/A3 NCN [2022] EWCA Crim 401 Royal Courts of Justice Strand London WC2A 2LL Thursday 10 March 2022 LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES MR JUSTICE COTTER REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REGINA v “ALS” __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR B LLOYD appeared on behalf of the Attorney General. MS G HENSHAW appeared on behalf of the Offender. _________ J U D G M E N T 1. LORD JUSTICE HOLROYDE: This offender (now aged 40) pleaded guilty to three offences of cruelty to a person under 16 years contrary to section 1(1) of the Children and Young Persons Act 1933 . On 15 December 2021 in the Crown Court at Manchester (Minshull Street) he was sentenced by HHJ Nield to a total of 3 years 4 months' imprisonment. Her Majesty's Solicitor General believes that sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988 , for leave to refer the case to this Court so that the sentencing may be reviewed. 2. The victim of the offences is the offender's daughter, aged 13 during the period covered by the indictment. To protect her, an order pursuant to section 45 of the Youth Justice and Criminal Evidence Act 1999 was made in the Crown Court. It provides that no matter relating to her shall, whilst she is under the age of 18, be included in any publication if it is likely to lead members of the public to identify her as a person concerned in these proceedings. This prohibition extends in particular to her name, her address, the identity of any school or other educational establishment attended by her, the identity of any place of work and any still or moving picture of her. That order remains in force and we confirm that it applies to any report of this application. We will therefore refer to her simply as "V". It would defeat the purpose of that order if the offender were to be named in any report which also identified his paternal relationship. We shall accordingly refer to him simply as "the offender" and we direct that in any report of these proceedings he must be anonymised by using the randomly chosen letters "ALS". We shall refer to a witness in the case (a former partner of the offender) as "L". 3. As a young child, V had lived with her mother. The offender had struggled with alcohol dependency. When V was aged 10, and the offender had recently completed a detoxification, V was placed in his care. It is apparent from all we have read that the offender wanted to care properly for his daughter and did his best to do so. For a time, all was well. V's attendance at school improved, reports from the school about her were positive and the local Children's Services were able to end their involvement. 4. Sadly the relationship between father and daughter began to break down, and they fell into frequent arguing. The offender used violence against V. Count 1 charged an offence of cruelty between 22 May 2018 and 3 March 2021, the particulars being that he wilfully ill-treated V by undertaking excessive chastisement and isolating her from her school and friends. 5. When lockdown began, the offender was furloughed from his employment for a lengthy period. He struggled with caring for and home-educating V. It seems that he slid back into his former problems, and became increasingly prone to violent outbursts of temper against V. These came to light on 16 March 2021 when L visited the offender and saw V obviously injured and in considerable distress. On the following day L informed the police. 6. Counts 2 and 3 were charges of cruelty relating to the period between 4 and 17 March 2021. Count 2 related to wilful assaults on V, count 3 related to wilful neglect of V by failing to secure medical treatment for the injuries which the offender had inflicted. 7. V was medically examined. We have read the medical evidence and seen the photographs. There were at least 48 injuries. It is no exaggeration to say that V was covered with bruises. In addition to the bruising of her face, body and limbs her right eye was very swollen with conjunctival hematoma. Her jaw was so painful that she was unable to eat solids and had been living off soup. Her left hand was painful and swollen, and X-ray confirmed a fracture. That injury has resulted in a continuing deformity, with the left little finger permanently bent. 8. V described how the offender had frequently beaten her when he thought she had done something wrong. He would hit her until she agreed with him that she was in the wrong, even if she was not, and she therefore made false admissions in order to stop the assault. About 2 weeks before the intervention of the police he had wrongly accused her of something she had not done, and had punched her all over. He hit her with a cable and then tried to strangle her with it. V managed to prevent him from doing so, and he instead put his hand round her throat, choking her until she could not breathe. He then continued to punch her face. She raised her hands to protect herself and he hit her left hand, causing the fracture to which we have referred. V said that on another occasion he had used a different weapon, hitting her on the head with a ruler. 9. V said that she had hidden her injuries, mainly by staying home from school. She had never told anybody about the beatings, and did not want her father to get into trouble. She said that he would always say sorry, would tell her that he knew he was doing wrong and would give her painkillers. 10. The offender himself made admissions as to what he had done. When challenged by L on 16 March 2021 about the injuries to V which were visible that day, he said that he had "battered her over a few days". He went on to say that V had looked at him in a funny way, so he had “battered” her again; and he had then “battered” her yet again because she had disrespected him by not doing what he told her to do. The following morning, when further bruising was seen by L, the offender graphically listed what had done: "I've punched her, I've kicked her, I've kneed her, I've strangled her with a charging wire, I've pushed her, I've bit her". He went on to say to L: "What you don't understand, when I'm in a rage fight mode takes over and it doesn't matter who you are". He added: "Something would normally trigger me to stop but she looked at me funny and I would go back into fight mode". Having heard this, L contacted the police. 11. The offender was arrested and interviewed under caution. He made no comment. He was charged with the offences and on 22 March 2021 was sent for trial. No indication of plea was given at the magistrates' court. The Better Case Management form records that he had been advised as to credit for plea, but the box providing an opportunity to indicate pleas had been left blank. 12. At a PTPH in the Crown Court on 16 April 2021 the offender indicated pleas to counts 2 and 3. The hearing was adjourned to allow counsel to have a full conference and on 4 May 2021 he entered his guilty pleas. He initially did so on a basis which was not accepted by the prosecution, but this was later amended to a basis which was accepted. 13. The offender had previously been sentenced on 22 separate occasions for a total of 48 offences. Ten of those were offences of violence and a further three had related to weapons. His last conviction in 2015 was for offences of assault occasioning actual bodily harm and battery upon L, for which he had received a custodial sentence. 14. Following the intervention of the police, V went to live with her aunt. A victim personal statement by the aunt described V's frightened state and constant fear that she would be beaten. As a result of the circumstances in which she had been living, V at first found it difficult to accept that she was allowed a choice in things. The statement indicated that V was adapting well to her new life. 15. The judge was assisted by a pre-sentence report. The author felt that the problems caused by lockdown, including difficulties in the offender's accessing services coupled with the offender's deteriorating mental health, had contributed to the commission of the offences. The offender had accepted full responsibility and had volunteered what the author described as "full and unprompted" expressions of remorse. The author assessed these as genuine. 16. The offender himself had written a letter to the court. He described the progress he had made in overcoming his alcoholism in the past, reaching the stage where he had been accepted for an apprenticeship and was both working and caring for V. Those commitments, he said, had caused him to neglect his addiction programme, which had become a problem when he was furloughed during lockdown. He expressed his great remorse for having, as he put it, "taken out my problems on the ones I love". 17. L had also written to the court. She too described how the offender had turned his life around after a period of residential rehabilitation and commended his success in providing, for a time, a home for V which was more stable than any V had endured at any other time in her life. During lockdown, L said, the offender had been without support when he needed it most. 18. The judge observed that it was an appalling case of significant cruelty to a vulnerable young girl, who was already emotionally damaged and who was at the time wholly reliant on the offender. She assessed count 2, which involved prolonged and multiple incidents of serious cruelty, as falling into category 1A of the Sentencing Council's relevant definitive guideline, with a starting point of 6 years' custody and a range from 4 to 8 years. She considered whether the offender was dangerous, but noted the significant period of time which had elapsed since his last conviction for violence and concluded that in any event an extended determinate sentence would not be necessary. The judge accepted that the offender was genuinely remorseful, and also accepted that lockdown had brought to the fore frailties which she felt should perhaps have been identified earlier during V's placement with her father. 19. Having regard to what was said in the pre-sentence report, the judge concluded that the guideline starting point should be lowered to a sentence of 5 years before reduction for guilty plea. She allowed full credit for all the guilty pleas and so imposed a sentence of 3 years 4 months' imprisonment on this count. In reaching that decision she treated the count 3 offence as an aggravating feature of count 2, and therefore imposed no separate penalty on count 3. On count 1 she imposed a concurrent sentence of 12 months. Thus the total sentence was, as we have said, 3 years 4 months' imprisonment. 20. On behalf of Her Majesty's Solicitor General, Mr Lloyd submits that the judge failed to give sufficient weight to the prolonged course of incidents of serious cruelty, the presence of many high culpability factors relevant to count 2, the aggravating feature of the previous convictions, including previous domestic assaults, and the failure to seek medical treatment charged in count 3. The combination of those features, he submits, should have resulted in a substantial adjustment above the guideline starting point for count 2, before considering the mitigating factors of remorse, mental health issues and personal mitigation. Mr Lloyd adds that the offender should not have received full credit for his guilty pleas, which were not indicated at the first opportunity. He submits that the total sentence was for those reasons unduly lenient. 21. Ms Henshaw submits on behalf of the offender that the sentence was not unduly lenient. She accepts that count 2 fell into category 1A of the guideline, but submits that factors of medium culpability and harm were also present and that the guideline starting point was therefore properly reduced by the judge. She submits that the offender had succeeded in making substantial progress in his recovery from alcoholism and in overcoming his past problems, but his mental health relapsed in the circumstances thrust upon him by lockdown and by the lack of support available to him during that difficult period. Ms Henshaw recognises the aggravating feature of the previous convictions, but points out that the most recent of them was sustained before the residential rehabilitation which for a time succeeded in turning the offender's life around. She submits that the judge rightly took into account the substantial mitigation and balanced it against the acknowledged seriousness of the offence. She also reminds us of the particular difficulties faced by prisoners during the pandemic. 22. We are grateful to both counsel for the clarity of their written and oral submissions. Having reflected upon them, our conclusions are as follows. Like the judge, we recognise that the offender had made substantial efforts to turn his life around and deserves credit for the success with which he did so. We accept that the offences were committed during a period which many people found very difficult and which was particularly difficult for a man with the offender's problems and limitations. No one doubts his remorse. Nor is there any reason to doubt that he loves his daughter, and we recognise that the inevitable separation from her will be a source of lasting distress to him. The judge was right to recognise, and to give significant weight to, the substantial personal mitigation available to the offender. 23. We hesitate to differ from the view taken by the judge, who has long experience in both the criminal and family jurisdictions and was careful to ensure that she was equipped with all the information relevant to sentence. However with all respect to the judge, we accept the submission on behalf of the Solicitor General that the judge failed to give sufficient weight to the offender's culpability and the aggravating features of the case. Of the seven characteristics of high culpability listed in the guideline, at least four – namely, prolonged and multiple incidents of serious cruelty, the use of very significant force, the use of a weapon and the deliberate disregard for the welfare of the victim - were present. In our view, the incident of attempted strangulation, first by ligature and then manually to a point where V was unable to breathe, was a particularly serious incident of cruelty. The level of harm caused by the count 2 offence plainly fell into category 1. Moreover, as the judge was rightly imposing concurrent sentences, the sentence on count 2 had to reflect the overall seriousness of the offending. Counts 1 and 3 were by no means minor offences. Count 1 related to a number of periods when V had been kept off school so that teachers would not see the injuries which the offender had inflicted on her. Count 3 related to the period of prolonged cruelty in March 2021, when the offender, in addition to failing to seek medical help, was also again keeping V away from school. As Mr Lloyd submits, had staff at the school had the opportunity to see V and to note the injuries inflicted upon her, it may well be that the prolonged course of cruelty would have come to an end sooner than it did. 24. Moreover, whilst we recognise the difficulties faced by the offender during lockdown, the judge had to take into account that V herself was particularly vulnerable during that period. The fact that the offender kept her away from school shows his awareness of the harm he was causing, and his failure to give priority to her needs rather than to his own avoidance of detection. In those circumstances a significant upwards adjustment of the starting point applicable to count 2 was necessary before consideration of the aggravating and mitigating features. 25. The offender's previous convictions were a serious aggravating feature. True it is that none of the convictions for violence was very ; but they included domestic abuse of his former partner, and should have served as a clear warning to him of the need to control his temper when caring for V. We should add that having responsibility for the child concerned is an essential ingredient of the offence of child cruelty. Such offences therefore necessarily involve a domestic context which is reflected in the sentencing levels set by the Guideline. 26. The deliberate concealment of the offending was a further aggravating factor, though we keep in mind that to some extent it overlaps with the counts 1 and 3 offences and it is therefore necessary to take care to avoid double counting. 27. In those circumstances, we are unable to share the judge's conclusion that the balancing of all relevant features of the case resulted in a final sentence which, before reduction for plea, was less than the guideline starting point for the count 2 offence alone. In our judgment, even giving as much weight as possible to the personal mitigation, it was unavoidably necessary to come to a final sentence markedly above the starting point for a single offence. In all the circumstances, we conclude that before reduction for guilty pleas the least total sentence commensurate with the seriousness of the offending as a whole was 8 years' imprisonment. 28. The Sentencing Council's guideline on Reduction in sentence for a guilty plea makes clear that the maximum reduction of one-third is reserved for cases in which the offender indicates his guilt at the first stage of the proceedings. This offender did not do so. He gave no indication at all in the magistrates' court and his pleas were not immediately entered in the Crown Court. He could not expect a reduction of more than one-quarter. 29. For those reasons we grant leave to refer, we quash the sentence imposed below on count 2 and substitute for it a sentence of 6 years' imprisonment. The sentences on counts 1 and 3 remain as before. Thus the total sentence is now 6 years' imprisonment. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Manchester (Minshull Street)"],"ConvictPleaDate":["2021-05-04"],"ConvictOffence":["Cruelty to a person under 16 years contrary to section 1(1) of the Children and Young Persons Act 1933"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at PTPH in Crown Court"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Manchester (Minshull Street)"],"Sentence":["6 years imprisonment (count 2)","12 months imprisonment concurrent (count 1)","No separate penalty (count 3)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[39],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[13],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical evidence","Photographs","Victim testimony","Witness testimony"],"DefEvidTypeTrial":[],"PreSentReport":["High risk of harm"],"AggFactSent":["prolonged and multiple incidents of serious cruelty","use of very significant force","use of a weapon","deliberate disregard for the welfare of the victim","previous convictions including violence and domestic abuse","deliberate concealment of offending","failure to seek medical treatment for injuries","keeping victim away from school to conceal injuries"],"MitFactSent":["genuine remorse","mental health issues","progress in overcoming alcoholism","personal mitigation","difficulties during lockdown"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["insufficient weight to aggravating features and culpability","full credit for guilty plea given when not entered at first opportunity"],"SentGuideWhich":["Sentencing Council's definitive guideline for child cruelty","Sentencing Council's guideline on Reduction in sentence for a guilty plea"],"AppealOutcome":["Allowed","Sentence increased"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["insufficient weight to prolonged and multiple incidents of serious cruelty","insufficient weight to aggravating features including previous convictions and concealment","sentence before reduction for plea was less than guideline starting point","full credit for guilty plea given when not entered at first opportunity"],"ReasonDismiss":[]}
Neutral Citation Number: [2008] EWCA Crim 1034 Case No: 200706562 C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM A COURT MARTIAL AT BULFORD JUDGE ADVOCATE McGRIGOR Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/05/2008 Before : LORD JUSTICE HUGHES MR JUSTICE TREACY and SIR PETER CRESSWELL - - - - - - - - - - - - - - - - - - - - - Between : The Queen Appellant - and - LSA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Whittam QC and Mr F Osman (instructed by Royal Air Force Prosecuting Authority ) for the Crown ( neither below ) Lord Thomas of Gresford QC (instructed by Wilkin Chapman ) for the Respondent ( not below ) Hearing dates : 15 th February and 9 th May 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes: 1. This is an interlocutory appeal by the prosecution in a Court Martial case. It is brought under provisions of military law which mirror ss 58-61 Criminal Justice Act 2003 . Those provisions provide the prosecution with a right of appeal against legal rulings made by the Judge Advocate, providing that the prosecution accepts that, in the event that the appeal fails to obtain leave or is abandoned, the defendant must be acquitted of each offence which is the subject of the appeal. That condition appears in article 4(8) Courts-Martial (Prosecution Appeals) Order 2006; SI 2006 No 1786 , which provisions are identical to those applicable in civilian courts under section 58(8) Criminal Justice Act 2003 . In R v R [2008] EWCA Crim 370 the condition was conveniently dubbed ‘the acquittal agreement’ (see paragraph 19). 2. The defendant was charged with two offences contrary to the Station Standing Orders of her military base. The gist of the two offences was (i) driving when unfit to do so through drink and (ii) dangerous driving. The offences were said to have been committed on the same evening. Although the prosecution submitted that they were in fact consecutive offences, relating to different pieces of driving, with the dangerous driving first, the Judge Advocate ruled (first) that they were in effect offences charged on the same facts. Having so ruled, he went on to direct acquittal on the charge of unfitness to drive. Those two decisions together constitute the first ruling here in question. Later in a second ruling he stayed the dangerous driving charge as an abuse of the process of the court. He found the reason to make both these rulings in a note at paragraph 32-29 of Archbold which in turn says that it is based upon R v Forest of Dean Justices, ex p Farley [1990] RTR 228 . The Crown wishes to submit on appeal that both those rulings were wrong. 3. The Crown case, put shortly, is that the defendant attended a party at the quarters of a friend and drank a good deal. When she left, she insisted upon driving despite the strong efforts of two men and the hostess to prevent her. Eventually she agreed simply to park the car, with one of the men taking up position in the passenger seat, on his case to keep an eye on her. Instead of parking she drove the car towards the second man, who leaped onto the bonnet to avoid being struck and clung on to the windscreen wiper. With him in that position, it is alleged that she drove some 350 yards or so, until he fell off, struck his head on the kerb, lost consciousness and sustained a number of injuries. That was said to be the act of dangerous driving. When he got up and staggered off dazed, she drove a further 500 yards or so, apparently to check that he was alright. She and the first man helped him into his quarters. Then a little later she motored another 900 yards or so back to the place of the party, taking both men with her. The two journeys after the injury to the man on the bonnet were put as the driving when unfit. That is the Crown case. Whether it would be made good or not, if tried out, is undetermined. 4. The defendant’s case is that the evidence against her is untruthful and exaggerated, in part to support a compensation claim by the injured man, and that the two men were drunk. It appears that she denies that she had had more than a single drink and so says that she was not unfit or impaired in driving. As to the man on the bonnet, she contends that he jumped onto it as a joke, not to avoid being run over, and that all she did was to move her car very slowly in order to persuade him to get off. What facts might be found by the court, and whether the latter contention, if true, would provide any defence to dangerous driving are matters likewise undetermined. The charges 5. Section 36(1) Air Force Act 1955 makes it an offence to contravene any provision of Station Standing Orders which is known to the defendant, or of which s/he might reasonably be expected to know. The relevant Station Standing Orders provided by Number 144: “A person to whom these orders apply shall not within the station, whether on a road or otherwise: (a) drive….when unfit to drive through drink or drugs to such an extent that his ability to drive properly is, for the time being, impaired; ….. (c) drive a vehicle dangerously.” 6. The defendant was charged with separate offences contrary to section 36. The first alleged a contravention of Standing Order 144(a) (“the unfitness to drive charge”). The second alleges a contravention of Standing Order 144(c) (“the dangerous driving charge”). Both in his opening note and in opening the case to the court [E10], and again when the Judge Advocate raised the passage in Archbold at the close of the Crown case, the prosecutor made crystal clear which piece of driving was relied upon to support each charge. The driving with the man on the bonnet was relied upon as the dangerous driving, and the driving after he fell off was relied upon to support the charge of driving whilst unfit and impaired. That had been the position of the Crown since a pre-trial directions hearing. There was no complaint about it on the part of the defendant; she had clearly understood that throughout. The passage in Archbold 7. In the 2007 edition of Archbold’s Criminal Pleading, Evidence and Practice there appears in chapter 32, relating to motoring offences, the following statement, under the heading ‘Order of Trials where there is an excess alcohol charge’: “Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone. The invariable rule is that where a person is tried on a lesser offence, he is not to be tried again on the same facts for a more serious offence. A contrary course of action would amount to an abuse of the process of the court: see R v Forest of Dean JJ, ex p Farley [1990] RTR 228 .” The same words remain in the 2008 edition, although in that edition there follows a bare reference to R v Hartnett [2003] Crim LR 719. 8. It is clear that (i) no point arising from this passage was taken initially on behalf of the defendant, (ii) the Judge Advocate himself raised it, but (iii) no-one had or obtained the report of ex p Farley . The course of proceedings 9. The Crown case was completed. At the half way stage in the trial the Judge Advocate raised, of his own motion, this passage in Archbold . He asked the prosecution to consider it. After a certain amount of discussion, attributable no doubt to the fact that the point had been raised unexpectedly, the positions of the parties were as follows. 10. The Crown submitted that: i) the passage would apply if the two charges were founded on the same facts, but ii) the two charges were not founded on the same facts because they charged two different pieces of driving; and iii) if, contrary to their submission, the charges were founded on the same facts, they would elect to proceed upon the dangerous driving charge alone. 11. For the defendant, Mr Blades submitted that the whole case should be stayed as an abuse of the process of the court. He accepted, eventually, that the evidence of drink was equally admissible upon the charge of dangerous driving as on the charge of unfitness to drive, although he contended (on what basis we cannot see) that if the dangerous driving charge had been tried alone, that evidence would have been less extensively investigated. He contended that it was too late for the prosecution to change its stance. 12. The Judge Advocate ruled, in effect, that the two charges were founded on the same facts. He said: “Whilst the prosecution say that the two additional journeys are not based on the same facts I find this to be an artificial distinction and that the evidence of the evening as a whole is so entwined that the two charges are, in reality, based on the same facts. I conclude that the one is included in the other and the cumulative result is oppressive. Thus I conclude that this authority applies to the present case. I therefore have to go on to consider whether the result is that Mr Blades’ application at the close of the prosecution case to stay proceedings succeeds…..I take the view that all the evidence adduced in the present trial would be admissible on either charge, of dangerous driving alone or unfit to drive alone. I do not consider that the defence has been taken by surprise and therefore suffered any real prejudice….I therefore reject the defence application for a stay of proceedings in relation to both charges. The prosecution have indicated that should I rule that the authority does apply to this case they would wish to proceed on the dangerous driving charge alone. Therefore I will direct the court to find the accused not guilty in relation to the unfit to drive charge, which will be withdrawn.” 13. For the defendant, Mr Blades expressed himself content with the last-mentioned course. The prosecuting officer made no further observations. The Court was re-convened, and the Judge Advocate, as he had said that he would, directed it to return a verdict of not guilty on the unfitness to drive charge. That verdict was returned. The defendant stood acquitted. 14. The hearing was adjourned over lunch, with the defendant’s evidence expected to follow immediately on resumption. Over the adjournment, Mr Blades reconsidered the passage in Archbold . On resumption, he submitted that since there had been a verdict of acquittal on the unfitness to drive charge, it was an abuse of process for the defendant then to be tried on the dangerous driving charge. He based that on the final two sentences of the cited passage. Still there was no reference to any further authority. Still no-one went to look at ex p Farley . 15. In a reversal of the latter part of his ruling before lunch, the Judge Advocate accepted that submission. In consequence, he held that the continued prosecution of the defendant on the dangerous driving charge was an abuse of process. He directed himself that amendment to delete the unfitness to drive charge would be legally possible (apparently notwithstanding that by then the defendant had been acquitted of that charge). But he then said this: “However, that does not get around the difficulty that there is clear authority that the prosecution should not bring dangerous driving and unfit to drive charges on the same charge sheet when based on the same facts…..I find that the Accused has been through the trial process such as to engage the rule against the subsequent trial on a more serious offence. Whether the accused was found not guilty or the charge withdrawn is, in my view, immaterial. It is the trial process itself putting the accused person in jeopardy that is the essential element. Here the prosecution case has gone all the way through to completion. I therefore conclude that the Accused has been tried thus a further trial on a more serious offence would amount to an abuse of process.” 16. The prosecutor thereupon asked for a short adjournment to consider appeal. In the course of brief exchanges on that topic, Mr Blades twice offered it as his opinion that leave (for appeal) was not required. The prosecuting officer at one stage remarked “Well, I have asked for leave, sir”. 17. After a short time for consideration, the prosecutor notified the court that he intended to appeal against both rulings. Nothing more was said by anyone about leave. It was accepted that that meant that the trial on the dangerous driving charge fell to be adjourned pending hearing of the appeal, and with the assent of both parties the Judge Advocate so informed the members of the court. All that took place on 13 December 2007. 18. On the following day (14 December), the prosecutor contacted the Judge Advocate and asked him to issue the statutory form PA1 giving leave to appeal. The Judge Advocate did so. With it he sent a letter in the following terms: “1. A terminating ruling in relation to the second charge of dangerous driving by the Judge Advocate. 2. The prosecution having given notice of appeal under Article 4 CM(PA) O 2006. 3. The defence having indicated that they had no representation to make in accordance with Article 3(2) CM(PA)(SP) O 2006. 4. The Judge Advocate having granted leave to appeal 5. On receipt of written confirmation by the prosecution in accordance with Article 4(8) CM(PA)O 2006, an appeal is granted on the basis that the terminating ruling was wrong in law.” That was accompanied by a certificate of grant of leave to appeal (Form PA 1) in respect of both rulings. Neither the Defendant nor her advisors had any part in that exchange, and they were quite unaware of it. Of that letter, it has to be said that: (i) although paragraph 5 made reference to written confirmation in accordance with Article 4(8) , no such confirmation, written or oral had been received; at best this appears to have been an anticipatory stipulation; (ii) although paragraph 4 recites that the Judge Advocate had granted leave to appeal in respect of both rulings, he had in fact not done so at the hearing, when he had not addressed the question of leave at all; (iii) for the same reasons, the assertion in paragraph 3 of the letter that the Defence had had no submissions to make about leave to appeal was wrong, because the most that Mr Blades had said was to assert, inaccurately, that leave was not required. This appeal 19. The Crown’s notice of appeal is a notice in respect of both rulings and both charges. It contains an acceptance that the defendant should be acquitted of the charges if the appeal is abandoned, or if leave is not obtained. It is dated 19 December, six days after the hearing had concluded. 20. These are new provisions. They were clearly unfamiliar to all. We appreciate that their possible application arose unexpectedly in the present case, since no one had anticipated the point raised by the Judge Advocate on the passage in Archbold . Sadly, however, a great deal has gone wrong. 21. The prosecution right of appeal under Article 4 is, just as is its civilian equivalent under s 58 Criminal Justice Act 2003 , an interlocutory appeal. The assertion to the contrary made on behalf of the defendant in the course of argument was wrong. The scheme for these appeals is that the proceedings in the court below stand adjourned pending the hearing of the appeal: see Article 4(10), the mirror of s 58(10), under which the ruling is to have no effect pending the outcome of the appeal. 22. The prosecutor could have given notice under Article 4 that he intended to appeal the first ruling, and if he had, that ruling would then have been of no effect pending appeal: see Article 4(10). However, he did not do so. Instead, the ruling was given effect by the directed acquittal of the defendant on the first charge of unfitness to drive. There is no power to appeal, under Article 4 , following acquittal by the tribunal of fact. Nor would there be any such power to appeal under s 58 Criminal Justice Act 2003 following acquittal by a jury in the Crown Court. The prosecution has no appeal against acquittal; the only possible procedure open to it is a reference on a point of law by the Attorney-General under s 36 Criminal Justice Act 1972 . That of course is a procedure which determines the law but does not affect the acquittal of the particular defendant. No such reference is before us. For these reasons, we cannot entertain the Crown’s appeal in respect of the first charge of unfitness to drive. 23. As to the ruling relating to the second charge, it is necessary to appreciate that the right of appeal is conditional upon Article 4(4) and (8), which are the exact mirrors of s 58 (4) and (8). The Order begins by providing by article 4(2) that : “The prosecution may appeal in respect of the ruling in accordance with this article.” In other words, the right of appeal can be exercised if but only if the rest of the article is complied with. Section 58(2) of the statute is in identical terms. Next, the Order provides by Article 4(4): “(4) The prosecution may not appeal in respect of the ruling unless – (a) following the making of the ruling, it (i) informs the court that it intends to appeal, or (ii) requests an adjournment to consider whether to appeal, and (b) if such an adjournment is granted it informs the court following the adjournment that it intends to appeal.” Thus it stipulates that the prosecution can only appeal if it tells the court it is going to do so, either immediately following the ruling or after time to reflect has been granted. But the Order (like the statute) goes on to impose a further condition on when the prosecution can inform the court that it intends to appeal. The further condition is in Article 4(8) (identical to s 58(8)): “The prosecution may not inform the court in accordance with paragraph (4) that it intends to appeal, unless, at or before that time , it informs the court that it agrees that, in respect of the charge or each charge which is the subject of the appeal the accused in relation to that charge should be acquitted of that charge if either of the conditions mentioned in paragraph (9) is fulfilled.” The paragraph 9 conditions are failure to obtain leave to appeal or abandonment of the appeal. We draw attention to the words “at or before that time”. 24. The transcript demonstrates that at no time on 13 December did the prosecutor inform the court that he agreed that the defendant should be acquitted of either charge if the paragraph 9 conditions should be fulfilled. Indeed, the Judge Advocate’s letter of the following day shows that the prosecution had still not appreciated then the need to give the article 4(8) undertaking. The article 4 (8)/s 58(8) undertaking (or ‘acquittal agreement’: see R v R [2008] EWCA Crim 370 at para 19) is crucial to this new right of appeal. It is that which determines whether there is a right of appeal or not. The new right of appeal given by article 4/section 58 is often loosely referred to as applicable to ‘terminating rulings’. But that expression appears nowhere in the Act or Order. On the legislation as enacted is apt only to confuse and is best avoided. The criterion for the right to seek leave to appeal is the giving of the acquittal agreement as acceptance of the price of failure. In the present case the Crown did not accept this price of failure until the service of the written notice of appeal; that notice of appeal bears the date 19 December, six days after the hearing at which the rulings were made. 25. We accept that in construing Article 4(8) (and for that matter its civilian equivalent section 58(8) ) the court’s task is to ascertain from the terms of the legislation what Parliament intended to be the consequences if it is not complied with: see for example R v Clarke & McDaid [2008] UKHL 8 ; [2008] 1 WLR 338 , in which the indictment had not been signed. For the Crown, Mr Whittam QC submits that at least where the ruling in question is indeed one which brings the prosecution to a halt, as these rulings did, Parliament cannot have intended that the appeal should fail simply because the acquittal agreement was given late, given as it was in the written notice of appeal. We understood him to reserve his position on a case where the ruling was not conclusive against the Crown, but merely sufficiently disadvantageous for the Crown to be prepared to appeal at the price of an acquittal agreement. By contrast, for the defendant, Lord Thomas QC contends by reference to the Parliamentary history that what is now Article 4 (8)/section 58(8) was deliberately inserted to allay fears that there would be a flood of appeals and/or that the Crown might initially give notice of appeal but then change its mind, thus inducing unfair uncertainty in the mind of an accused person. It is his contention that Article 4 (8)/section 58(8) was deliberately extended to all appeals, whether conclusively fatal or those which the Crown is prepared to treat as justifying the acquittal agreement. 26. The exact Parliamentary history may be open to debate, and in any event the reasoning of different members of both Houses may well have diverged. We accept, however, that what is in Article 4(8) and section 58(8) was deliberately extended to appeals against rulings which the Crown chooses to treat as fatal as well as to those which are ipso facto fatal. But whatever may be the precise Parliamentary history, we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with s 58 of the Criminal Justice Act 2003 , represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms. It may be that the new right could have been as effectively controlled if the statute and order had provided that whether or not an undertaking in the terms of article 4(8) was given in open court, any appeal was to be on terms that if leave were refused, or the appeal abandoned, or it failed in due course, acquittal should follow. Or it may be that alternative form of control would not be so effective. What is clear is that alternative form of control is not what has been enacted. The words ‘may not….unless, at or before that time’ must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution “may not” inform the court it intends to appeal, unless this is done. The object is clearly to require the Crown to commit itself from the outset. Nor can we see any proper basis of construction under which what is in section 58 (8)/Article 4(8) can be read differently according to whether the ruling under challenge is ipso facto fatal to the prosecution or one in relation to which the Crown chooses to give the acquittal agreement. There would, moreover, be considerable scope for argument about which category some rulings fall into. On these grounds alone, we are unable to see that we have any jurisdiction to hear the appeal against either ruling. 27. As we have made clear, Article 4 of the Order is in terms materially identical to section 58 Criminal Justice Act 2003 . Prosecutors who wish to launch appeals against rulings must give the article 4 (8)/section 58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal. 28. It is necessary also to consider the rules as to leave. Here there is a limited divergence between the rules applicable at Court-Martial and those applicable in the Crown Court. In both courts a Crown appeal may be brought only with the leave of either the lower court or this court. For Courts-Martial that is stipulated by article 3(4). The assertion made at the hearing on behalf of the defendant that no leave was required was wrong. The Courts-Martial (Prosecution Appeals) (Supplementary Provisions) Order 2006 then contains provisions specific to Courts-Martial for the making of application for leave. It provides, by article 3: “(2) Before deciding whether or not to grant leave to appeal, the judge of the court shall hear oral representations from the accused. (3) The Judge Advocate shall decide whether or not to give leave to appeal on the same day on which an oral application for leave to appeal is made to that judge advocate…. (5) If the judge advocate gives leave to appeal he must issue a certificate in Form PA 1….” 29. As we have said, although the substantive provisions governing the right of appeal are the same for Courts-Martial as for Crown Courts, the procedural rules for making an application for leave are not the same. The procedural rules relating to Crown Court trials are to be found in the Criminal Procedure Rules 2005 , as amended, part 67 ( Archbold 2008 paragraph 7.259a) . For the Crown Court, those rules allow for the making of an application in writing for leave, and they do not command an oral hearing. 30. In this case it is the Courts-Martial rules which apply. They require an oral hearing. Even if the prosecutor’s single remark noted at paragraph 16 above constituted an oral application for leave, it is clear that it was not dealt with. In consequence the Judge Advocate heard no oral submissions from the defendant. An oral application could have been made on a later date, but it was not, and if it had been, the Judge Advocate would have been required to hear oral submissions. The Judge Advocate’s letter and certificate of 14 December refer to, but do not comply with, Article 3 of the 2006 Supplementary Provisions Order. If this error had stood alone, we could have cured it by ourselves granting leave to appeal, and might well have done so. But the acquittal on charge one, and the absence of proper notice under Article 4(8) are otherwise fatal to this appeal, and so a grant of leave by us is not possible. Further Observations 31. The consequence of that is that we cannot rule upon the questions of law raised by this purported appeal. What follows is therefore necessarily obiter. 32. We do not, however, think that we should leave this appeal without making some things clear. In doing so, we think that we should say nothing about the facts of the present case, since the effect of our decision is that the defendant stands acquitted of the one charge, whilst the other charge has been stayed, and no appeal against those orders can be entertained. No decision on where the truth lay has ever been arrived at. We have, however, had the benefit of careful submissions on both sides as to the effect of ex p Farley and the accuracy of the passage in Archbold . 33. It is a great pity that the report in ex p Farley was not obtained. We appreciate that the Road Traffic Reports may well not be to hand in places where Courts-Martial sit, but these days the internet is available. There are two critical features of e x p Farley . Firstly, it was a case which depended on the fact that the charge of excess alcohol could only be tried summarily in the magistrates’ court, whereas the other charge faced by the defendant, which was of causing death by reckless driving, was triable only on indictment in the Crown Court. Secondly, it was a case of a deliberate and quite improper prosecution manoeuvre designed to exploit the involvement of the two separate courts. The Crown set out to prosecute the summary proceedings (excess alcohol) first. That would enable it to take advantage of the provision which would there apply placing upon the defendant the burden of proving that he had taken drink after the accident and before testing. Then it proposed, when it came to the subsequent trial on the much more serious charge in the Crown Court, to adduce any conviction for the excess alcohol offence under section 74 Police and Criminal Evidence Act 1984 . That amounted to trying to reverse the burden of proof on the very serious charge of causing death by reckless driving. Moreover, ex p Farley was a case in which this was proposed where the only basis for alleging reckless driving was that the driver was unfit through drink. It is to be distinguished from a case in which there is additionally an allegation of a dangerous manoeuvre or otherwise driving in a dangerous manner. 34. In a work of generally remarkable accuracy, the passage in Archbold could usefully be re-considered. We do not doubt that it might in some circumstances be oppressive to prosecute for both excess alcohol in one court and an indictable offence in another, but ex p Farley does not contain any general rule that it always will be so. A simple example where it might not be wrong is where disqualification, mandatory on conviction of an excess alcohol offence, would not be available on the indictable offence. Moreover, the mere bare reference to Hartnett [2003] Crim LR 719, albeit with an introductory ‘ cf’, might be taken by readers to indicate that that case does not affect the text which goes before. It does. There the defendant pleaded guilty in the magistrates’ court to an excess alcohol offence. He was committed to the Crown Court for trial on an associated charge of dangerous driving on the same occasion. In due course he pleaded guilty to that also. He failed in the contention that to prosecute him for both was an abuse of the process of the court. This court explained the special features of ex p Farley , which it is apparent had been misunderstood in that case as they have been completely overlooked in this. It did so in terms which make it clear that ex p Farley is not authority for what is said in the passage in Archbold . 35. The last two sentences in the passage from Archbold do not depend on ex p Farley , but rather on the line of cases beginning with Elrington (1861) 1 B & S 688; 121 ER 870, and considered in the well known case of Connolly v DPP [1964] AC 1254 . This principle represents a modest common law extension of the rules of autrefois convict and acquit. It certainly means that it may well be oppressive, and an abuse of the process of the court, to prosecute successively in different trials on the same facts. For an example, see Phipps [2005] EWCA Crim 33 . But that is because the Crown ought ordinarily to make up its mind what charges it wants to bring and put them all before the same court on the same occasion. The Elrington principle is a rule against sequential trials. It is in no sense breached if two charges arising out of the same facts are put before the same court on the same occasion. That might have been gleaned from the use of the word again in the proposition “he is not to be tried again….”, but it would certainly have been apparent if anyone had looked at the cases. To the contrary, sometimes the presentation of different charges in the same court, arising from the same facts, is positively the right thing to do since it may enable the tribunal of fact to determine the several issues which arise - for example whether driving was dangerous because of the manoeuvre undertaken or also because of the driver was unfit through drink, or, in an allegation of homicide, which party was at the outset carrying a firearm which was used. 36. If in a particular case one charge really adds nothing, so that its inclusion is oppressive, the court has ample power to require the prosecution to justify it, and if the Crown will not amend by deleting it, to stay it. Nothing in the foregoing is intended to cast any doubt upon the jurisdiction of the Court to prevent, by way of stay, something which genuinely amounts, on the facts of a particular case, to abusing the Court’s process so as to cause unfair prejudice to a defendant. Further, even if a trial proceeds, properly on the facts of a particular case, on both charges, it may well be that no separate penalty will be appropriate upon one charge if the real gravity of what has been done can properly be dealt with by sentence on the other, principal charge. 37. There is a difference (and sometimes a great deal of difference) between (i) two charges being founded on the same facts and (ii) two charges sharing some facts in common. 38. We are not to be taken, by silence, to endorse the decision that the correct way to give effect to the first ruling in this case, even if it were right, was to direct acquittal. The more usual way of dealing with the matter would be to amend the indictment/charge sheet by deletion of the offending charge, or (more often) to discharge the court from giving a verdict upon it. Such a charge could also be stayed if to prosecute it were truly an abuse of the court. 39. The power to direct acquittal is by no means limited to the case in which the prosecution offers no or no further evidence. Section 17 Criminal Justice Act 1967 , to which reference was made in the present case, applies to acquittals (on the offering of no evidence) without the decision of the tribunal of fact, court-martial or jury. It has no application to a directed acquittal by that tribunal of fact, which may often occur, for example where the judge rules that there is no case to answer. Conclusion 40. For the reasons set out in paragraphs 19-30, this appeal by the Crown must be dismissed for want of jurisdiction. The consequence is that the rulings of the Court-Martial must stand. That means that the merits or demerits of this prosecution have never been determined.	{"ConvCourtName":["Court Martial at Bulford"],"ConvictPleaDate":[""],"ConvictOffence":["Contravention of Station Standing Order 144(a): driving when unfit to drive through drink or drugs to such an extent that ability to drive properly is impaired","Contravention of Station Standing Order 144(c): dangerous driving"],"AcquitOffence":["Contravention of Station Standing Order 144(a): driving when unfit to drive through drink or drugs to such an extent that ability to drive properly is impaired"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Other"],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Witness testimony","Victim testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Legal ruling (terminating ruling)"],"AppealGround":["Judge Advocate wrongly ruled that prosecution of both charges was an abuse of process; wrongly stayed dangerous driving charge"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No jurisdiction: prosecution failed to give acquittal agreement in open court at time of invoking right of appeal; acquittal already entered on one charge; procedural requirements for appeal not met"]}
Neutral Citation Number: [2006] EWCA Crim 1946 Case No: 200403858/C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT PRESTON JUDGE BLAKE T2002 0436 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/07/2006 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE MITTING and THE COMMON SERJEANT - - - - - - - - - - - - - - - - - - - - - Between: Sachchidanand Kumar Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - William Coker Q.C. and Neil Bisarya (instructed by IKP Partners ) for the Appellant Simon Killeen (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 5 July 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Scott Baker: 1. These are the Court’s reasons for dismissing the appellant’s appeal against conviction. 2. In November 2002 in the Crown Court at Preston before Judge Blake the appellant was convicted of three counts of indecent assault. He was acquitted of two further counts of the same offence – one on the judge’s direction. On 3 January 2003 he was sentenced to 9 months imprisonment concurrent on each offence. 3. He appeals against conviction with the leave of the Full Court but only in respect of one count – count four. The Full Court refused the renewed application on the other two counts. 4. Both the appellant and his wife were general practitioners at a practice in St Helens. The appellant also worked as a locum for other local practices. On 3 September 2001 an allegation was made that the appellant had indecently assaulted a patient when working as a locum in Liverpool. A police investigation followed and it was discovered that a past complaint had been made by Mr Keenan, the father of the complainant in count four. A statement was taken from her which, referred to the previous incident but also to a further allegation relating to 27 July 2001 when the appellant had examined her breasts. This allegation became count four. Facts 5. Alison Keenan was 17 when she saw the appellant for the first time to go on the pill. He asked her questions which she was shocked by. She went straight home and told her mother. The questions were about how old she was when she first had sex, how many men she had been with and whether she charged for sex. This visit was in June 2000 and led to a complaint by Alison’s father to the Health Authority. 6. On 27 July 2001 she found a lump on her breast and went to the appellant’s surgery. She undid her shirt and pointed to the lump above her bra. He told her to take her shirt and bra off which she did. He came round to the side of her and examined both breasts and under her arms. His head was very close, touching her. He pressed hard for about 5 minutes and then said it could be mastitis. She was upset and went home and told her mother. 7. Sylvia Burton was the receptionist, and later practice manager, at Irwin Road Medical Centre throughout the relevant period when Alison Keenan was a patient. On 27 July 2001 she recalled Alison Keenan coming to the surgery. She was not chaperoned in the consultation. Miss Keenan came out of the consultation room looking stunned and left without saying a word. When cross-examined she said she had resigned in October 2001 because she was unhappy about the way she was treated by the appellant and his wife. When she left she said words to them beginning with “what goes around, comes around”. 8. The appellant gave evidence of his qualifications and professional history. He agreed the correct way to carry out a breast examination was with the patient lying down. He had carried out a new patient health check on Alison Keenan on 12 June 2000 and whilst there would have been some questions of a personal nature these were not questions of the nature complained of. 9. On 27 July 2001 Alison Keenan came to see him urgently because of a lump on her breast. In the circumstances he gave her a breast examination. This was the one occasion he did one, as he generally did not do such examinations. He said the examination was done with the complainant lying down and on the couch in the presence of Mrs Burton as a chaperon. He denied listening to her chest, which he accepted would not have been part of a legitimate examination. The issues at the trial were how the examination was carried out and whether Mrs Burton was present. 10. When the judge came to sum up the case, he directed the jury that an indecent assault was an assault which is accompanied by circumstances of indecency. He continued at page 4: “So breaking that down further, an assault is a deliberate, unwanted touching – in other words, in some way hostile, and which is inflicted upon the victim without his or her consent. In circumstances of indecency? That is for you to decide whether, if you are sure that there was a deliberate unwanted touching on the part of the defendant, whether it was in circumstances of indecency, whether right-minded persons would consider that conduct indecent or not. The test is whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.” 11. He pointed out that the alleged assaults took place in the doctor’s consulting rooms so it was pretty obvious the patient was consenting to being examined. But it was also clear that they were not consenting to being touched in an indecent sexual way. In other words their consent extended to an appropriate medical consultation and examination but no further. He continued at page 5: “So the issue in this case is whether the Crown have proved that Dr Kumar was acting lasciviously for his own gratification, or whether it might be true that he was carrying out a proper medical consultation and examination. It is not necessary to prove that the victim knew that his actions were indecent at the time. And the converse is also true, that simply because the patient thought that the doctor’s actions were indecent, that does not necessarily make the case out. It is the intention of the defendant which is important in deciding whether they are in circumstances of indecency.” 12. It is important to have in mind that the Crown’s case was that a breast examination for Alison Keenan was clinically indicated but that the way the appellant carried it out was wholly improper and demonstrated an intention to use it as cover for indecently assaulting her. This was emphatically not a case of a doctor carrying out a clinically indicated procedure in a proper manner but having a sexually indecent intent. 13. The Full Court gave leave to appeal because of the answer that the judge had given to a question asked by the jury. The question which related to the count which is the subject of this appeal was as follows: “Offence of indecently assaulting. If breast examination is required what constitutes the offence?” 14. The judge said the simple answer was whether they were certain the defendant intended to obtain sexual gratification from the examination. But he then expanded: “In relation to Alison Keenan, there is no issue that a breast examination was indicated clinically, there is no issue about that, and so there are various sets of circumstances as to the defendant’s intention, because that is the important thing, as to whether the examination was a perfectly proper medical examination which would therefore not constitute an assault. Because of course a patient who agrees to an examination is consenting to just that, a medical examination. So therefore, if you are looking at the defendant’s intention – and of course before you convict you must be sure about it – you might conclude that this intention was to obtain sexual gratification alone. No problem there, your conclusion in those circumstances would be “guilty”. You may think that his intention might have been to obtain clinical information – straight-forward medical examination – but there again, no real difficulty, your verdict on that would be “not guilty”. You may come to the conclusion and be satisfied that his intention was a dual intention, that he intended to carry out the examination because it was indicated clinically, but he also had an intention at the outset to obtain sexual gratification. In other words, he was using the legitimate breast examination, which was indicated clinically, as a cover to obtain sexual gratification and that was what his intention was at the outset. Then your verdict would be “guilty”. It may be that you would say perhaps the situation is this, that he knew that a medical examination was indicated and that is what he intended to carry out, but in the course of the examination he, as a bi-product and not intending it, obtained sexual gratification. In those circumstances your verdict would be not guilty.” 15. So the judge raised four different possibilities: (1) Sole intention to gain sexual gratification – guilty; (2) Sole intention to gain clinical information – not guilty; (3) Dual intention – legitimate breast examination as cover, with that intention from the outset – guilty; (4) Medical examination indicated and that was what he intended when carrying it out but in the course of examination and not intending it, he got sexual gratification – not guilty. 16. Mr William Coker Q.C., who has appeared on this appeal for the appellant submits that the judge’s direction falls foul of the decision of the House of Lords in R v Court [1989] AC 28 . Moses J. gave leave to appeal because, he said, it was strongly arguable in the light of C ourt that using a legitimate breast examination as cover for indecent assault when the doctor intended from the start to obtain sexual gratification did not make him guilty of indecent assault. He referred to Lord Ackner at 42C: “It was also common ground before your Lordships, as it was in the court of appeal, that if the circumstances of the assault are incapable of being regarded as indecent, then the undisclosed intention of the accused could not make the assault an indecent one.” He also referred to Lord Goff of Chieveley at 49G: “A requirement that the defendant must have acted from a sexual motive, which I understand to be from the motive of obtaining sexual gratification from his act, would, as Professor Glanville Williams recognises, exclude from indecent assault cases where a man undressed a woman in public but did so not from the motive of obtaining sexual gratification, but because he was a misogynist, or because he wanted to cause the woman embarrassment, or out of sheer mischief. I cannot think that this is right. In their judgment, the Court of Appeal referred to the case of an examination of a 15 year old girl by a midwife or doctor for medical purposes, the point being that, by virtue of section 14(2) of the Act of 1956, a girl under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of the section. Professor Glanville Williams considers that such a case would not amount to indecent assault because the doctor or midwife acted from a non sexual motive. The Court of Appeal expressed their disagreement with this view, in the following passage from their judgment [1987] QB 156 , 164: “In our judgment it is not necessary to infer a requirement of proof a sexual purpose, or of an indecent intention, for proof that a person has made an indecent assault, in order to protect from the theoretical risk of conviction for indecent assault the midwife or doctor who intimately examines the girl under the age of 16 without effective consent. If consent has been given by the parent or guardian there is, of course, no assault. If no such consent has been given, an intimate examination carried out for genuine medical purposes is, in our view, not indecent. Neither the girl examined, nor the right thinking members of society, would regard such an examination as an affront to the modesty of the girl or conduct which contravened normal standards of decent behaviour. So long as the examination is carried out for genuine medical purposes in a manner and in circumstances consistent with those purposes, then in our view the fact that the doctor or midwife happens to have some secret indecent motive, or happens to obtain sexual gratification known only to himself from carrying out his legitimate work, cannot in our view render the circumstances indecent.” I entirely agree. As I see it, it is the fact that the assault is objectively indecent which constitutes the gravamen of the offence, which is to be found in the affront to modesty.” 17. It seems to us that the Court of Appeal makes an important qualification about the examination by the doctor or midwife in the clause: “So long as the examination is carried out for genuine medical purposes in a manner and in circumstances consistent with those purposes……” (Our emphasis). The issue in the present case was about how the examination was carried out. 18. The facts of Court were very different to those of the present case. The appellant, an assistant in a shop, struck a 12 year old girl visitor some 12 times, for no apparent reason as she thought, outside her shorts on her buttocks. In response to a question by the police as to why the appellant had done so he said “I don’t know – buttock fetish.” He pleaded guilty to assault but denied that it was indecent and submitted that his statement about “buttock fetish” should be excluded as being a secret uncommunicated motive that could not make indecent an assault that was not overtly indecent. The trial judge refused to exclude the statement and the appellant, who did not give evidence, was convicted. The Court of Appeal (Criminal Division) dismissed his appeal against conviction. He appealed to the House of Lords. The House of Lords (Lord Goff dissenting) held that where a charge of indecent assault was founded on facts capable of being given an innocent as well as an indecent interpretation it was necessary for the prosecution to prove not only that the accused intentionally assaulted the victim but that in doing so he intended to commit an assault which right minded persons would think was indecent; and that evidence as to the accused motive tending to explain the course for his conduct was admissible to establish whether he intended to commit not only an assault but also an indecent assault; and that accordingly the evidence concerning the appellant’s statement about buttock fetish had been properly admitted. 19. The defendant in Court was not a medical practitioner and the case was not about a medical examination at all. It is, we think, important to appreciate why it was that the Court of Appeal considered the position of a medical practitioner and why Lord Goff referred to it in his dissenting opinion. What happened was that the jury asked the judge a question expressing concern about the position of a doctor who carried out an intimate examination of a young girl. The trial judge, Mars-Jones J. answered the question in this way: “In that situation what is vital is whether the examination was necessary or not. If it was not necessary, but indulged in by the medical practitioner it would be an indecent assault. But if it was necessary, even though he got sexual satisfaction out of it, that would not make it an indecent assault.” 20. As Lord Keith pointed at 33B, a wicked intention is an essential ingredient of the offence of indecent assault, as it is of most other crimes against the person. For the most part that intention can readily be inferred from the facts found proved as to the circumstances of the assault, and unless there are indications that those features of the circumstances which are capable of being considered indecent were not intended. He went on: “In a narrow range of cases, however, the circumstances may not point unequivocally to the requisite wicked intention. The delivery of chastisement to the buttocks of child is capable of presenting a case of that nature, since chastisement is not necessarily indicative of intention to do something indecent. Where, however, there is direct evidence, as there was in the present case in the shape of the appellant’s statement about buttock fetish, that it was the assailant’s intention to use the victim for the purpose of gratifying a particular sexual instinct, and that his action did in fact amount to a using of her for that purpose, such evidence can, in my opinion, properly be taken into account so as to resolve any ambiguity about the nature of the act. The contrary view seems to me to fly in the face of all commonsense.” 21. The judge in the present case does not appear to have had the case of Court drawn to his attention. There is, in our judgment, no reason why it should have been. Mr Killeen, for the Crown, submits that this was never a secret intent case. The Crown’s case was that the appellant behaved in a sexually overt fashion. It never was his case that he carried out an entirely appropriate examination that was properly carried out in all respects but that he obtained sexual satisfaction from it. The Crown called evidence that the appellant’s conduct of the examination went way beyond best practice. The judge in his summing up put the issue fairly and squarely before the jury in the passage to which we have referred. Might the appellant have carried out a proper medical consultation and examination or did he do it for his own sexual gratification? 22. Assistance is gained from the exchange between counsel and the judge after receipt of the note from the jury. The judge said: “I think perhaps what they are getting at really is if there was a breast examination required, how can it be an indecent assault, and the answer to the question is what did the defendant intend if it was simply his intention to carry out-and he did carry out-a simple breast examination, or that may be the position, then it would be appropriate to acquit. If on the other hand he used the opportunity to carry out a breast examination, took that opportunity to indulge in activities for his own sexual gratification and they are sure of that, then they could convict.” Prosecuting counsel agreed with this and defence counsel was asked if he wished to say anything. His response was: “The only addition, your Honour would be this, that in order to convict they would have to be sure that he did not have an intention to carry out a medical examination, particularly given the underlying assumption and the question.” The judge said: “He could, could he not, have intended to carry out a medical examination as well as using the opportunity for sexual gratification and that would be an offence.” Defence counsel responded: “Your honour, forgive my hesitation, but if – and this of course was not canvassed with the doctor – but if it be the case that, for example, he intended to carry out a medical examination, and this is the way I put it to the jury, however inexpertly that was done, if, going through his mind at that time, was the idea and I put this crudely, your honour you will understand – that he was getting pleasure from it that would not be an indecent assault at all. What has to be proved is what he intended to do.” 23. It seems to us that what was there concerning defence counsel was the fourth possibility raised by the judge in answer to the jury’s question namely obtaining sexual gratification from a medical examination without the intention to obtain such gratification. 24. As the judge put it at 24D, the Crown’s case must be that he was carrying out the examination in appropriate circumstances in an inappropriate way and for his own sexual gratification. 25. The defence complaint is about the third possibility referred to by the judge, but nobody was suggesting that there was a legitimate breast examination properly carried out in all respects but that the appellant could nevertheless be guilty of indecent assault. 26. In our judgment it is crucial to keep in mind that the Crown’s case was throughout that a breast examination, albeit properly required was conducted in an inappropriate manner and was used as a cloak for a sinister motive. In so far as Court is binding authority for the proposition that a doctor who obtains sexual satisfaction from a necessary medical examination properly conducted is not guilty of indecent assault, that was not the issue in the present case. It is we would add something that would only be likely to occur in the most unusual circumstances. The appellant never suggested he got secret satisfaction from appropriate medical examinations properly conducted on young girls on this or any of the other counts. It is not in our judgment necessary to give the jury a direction about every theoretical possibility that may arise in a case, however remote that possibility may be, where the defence have not raised it. In our judgment the conviction is safe and accordingly we dismissed the appeal.	{"ConvCourtName":["Crown Court at Preston"],"ConvictPleaDate":[""],"ConvictOffence":["Indecent assault"],"AcquitOffence":["Indecent assault"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Preston"],"Sentence":["9 months imprisonment concurrent on each offence"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[0],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[17],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Receptionist testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge's direction to jury on law regarding indecent assault"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Conviction is safe; judge's direction was appropriate given the facts and issues at trial"]}
Neutral Citation Number: [2007] EWCA Crim 2445 No: 200701401 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 3 October 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE DAVID STEEL HER HONOUR JUDGE GODDARD QC ( SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION ) Between - - - - - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL DARREN CHALLENGER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr N Lewin appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: David Steel J will give the judgment of the court. 2. MR JUSTICE DAVID STEEL: Michael Challenger, the appellant, is aged 17. In January 2007, at the crown court at Plymouth (HHJ Gilbert), the appellant pleaded guilty to wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 , and the judge having sat as a district judge at the same time committed him for sentence on an offence for common assault. He was sentenced on 2 March, by the same judge, on the Section 18 offence to detention for public protection with a minimum term of five years, less 59 days and on the common assault charge, four months detention concurrent. 3. He appeals against that sentence by leave of the single judge. The circumstances are, by any standards, disturbing. A group of Scouts was visiting Plymouth in December 2006. The complainant was one of them. He was with some friends in the city when he was tripped up by a girl. She was with a group of youths, one of whom was the appellant. The Scouts tried to walk on but the appellant shouted at them, "What are you looking at? Don't walk away, I'll fight the oldest one." The complainant turned round and the appellant ran up to him and kneed him in the stomach saying, "What's your fucking problem?" He then punched the complainant in the face. The complainant sought to run away but the appellant followed him, caught up with him and produced a folding penknife with a blade, some three to four inches long. He stabbed the complainant twice: one in the abdomen and once in the chest and then ran off laughing. 4. When the police arrived on the scene they were told that the appellant was responsible and he was arrested a few hours later. He disposed of his bloodstained clothing and knife. In interview he made no comment. 5. The complainant had been rushed to hospital. The wound to his abdomen was minor, however the wound to his chest reached into the left external edge of his heart and the right ventricle had been penetrated. His heart was surrounded by a litre of blood. He was operated on immediately. It was common ground that without immediate surgery he would have died. 6. The common assault charge arose in fact from an incident during the course of the period when the appellant was on remand for this section 18 offence, when he chose to punch a teacher in a design and technology class a number of times. 7. The judge in sentencing the appellant reminded himself that he was 18, but had already established a significant criminal record. The judge remarked that the appellant had himself provoked the attack and having attacked the victim had walked off laughing. He repeated the fact that the complainant would have died had he not been promptly operated on. He accepted that the appellant had expressed remorse in a letter, but that the consequences for the complainant had been extremely serious. 8. He turned to the question as to whether it was appropriate to make a finding of dangerousness under the Criminal Justice Act 2003 , and concluded that there was no doubt of a significant risk to the public of serious harm. He accordingly passed a sentence of imprisonment for public protection. He noted that there was no psychiatric reason for the appellant's conduct and unless he changed, as he had been advised in both the pre-sentence report and in the psychiatric report, his activities, attitude and style he posed a significant risk of serious harm. 9. In his judgment the appellant was a very dangerous man who, in an unprovoked attack, had used a knife nearly killing the complainant. In assessing the minimum term for detention for public protection the judge had regard to the decisions in Laing , Sheppard and Hughes . In his judgment the appellant's case was more serious so that the starting point was ten years, and allowing for a plea of guilty the minimum term should be five years less the time spent in custody. 10. Mr Lewin, on behalf of the appellant, sought to resurrect part of the original application for leave to appeal, which had been rejected by the single judge. The original grounds of appeal challenged both the detention to public protection and the minimum term. The single judge had concluded that the judge was fully entitled to conclude that there was a significant risk that the applicant might cause serious harm to members of the public by the commission of further specialised offences, and thus the imprisonment for public protection was fully justified. 11. It seems to us that the judge had almost no alternative than to reach that conclusion, having regard to the facts of the case, the antecedents of the defendant, the contents of the psychiatric reports and indeed the express terms of an addendum to the psychiatric report, which warned the judge that when Mr Challenger left custodial sentence if he: "continues to abuse illicit drugs and alcohol and mixes with some members of his former peer group, and is not able to mature... in my opinion ... he would be a significant risk of causing harm to the public." 12. We have no doubt whatsoever that the judge was fully entitled to come to that conclusion. Indeed it is difficult to see what other conclusion he could have reached and the renewal to the application to challenge that part of the sentence is refused. 13. Mr Lewin then turned to the question of the minimum term. This is an area of the law which can give rise to some confusion. The minimum term means precisely that. It is the minimum term that must be served before an individual prisoner is considered for release by the Parole Board, for which purpose the Parole Board must be satisfied that he no longer represents the danger that is the basis of the imprisonment for public protection. Whether the sentence be one of five years, or more or less, has no direct bearing on the date upon which the individual defendant will be released. 14. As is apparent from the express terms of the sentencing remarks, the determinate sentence which the judge had in mind was one of ten years. It also follows from his remarks that to the extent that he must have given credit for a plea, the sentence that he might have had in mind, following a trial, must have been in the region of 13 to 15 years. Against that background Mr Lewin re-visits the decisions that we refer to a moment ago, and which were considered by the trial judge. 15. So far as Laing [2005] EWCA Crim 2864 is concerned, some reliance was placed upon the observations of the court in relation to an individual defendant who was involved in that conglomerate appeal, namely Sheppard . However, it is plain from the reports that the conclusion of the judge below, that Sheppard should serve a minimum term of four-and-a-half years, in circumstances which are not entirely dissimilar from the present case, is not something with which the court in fact heard any argument. Nor was it disposed to express any view, the thrust of the appeal being directed at the question of whether it is appropriate to enclose imprisonment for public protection. Accordingly we leave it out of count. 16. Mr Lewin goes on to a rather firmer and more secure ground when he drew our attention to the decision in Attorney General reference No. 26 of 2004 ( R v Hughes ) [2004] EWCA Crim 1384 , where a 35-year old offender used a seven-inch blade to stab a victim in the neck following which the victim sustained a substantial loss of blood with permanent scarring. The judgment given by the vice-president reverted to an earlier decision of the vice-president in Attorney General's reference number 18 of 2002 ( Christopher Samuel Hughes ) [2002] EWCA Crim 1127 when in considering incidents of the use of a knife, in a manner contrary to section 18 of the Offences Against the Person Act, the vice-president expressed the opinion that the authorities demonstrated that a sentence within the bracket of three to eight years was appropriate. 17. Mr Lewin, against the background of those decisions and the mathematics of any consideration of the judge's imposition of the minimum term of five years, seeks to persuade the court that on any view the determinate sentence of ten years was too long and accordingly the minimum term of five years was equally too long. Mr Lewin emphasises that the defendant is only 17 years old, that the sentence that he faced as a result of this hearing suggested a term following a trial, nearly twice as much as the maximum which the vice-president adverted to in Hughes . Accordingly, Mr Lewin sought to persuade this court that this sentence was not merely severe, but wholly excessive. 18. There are, it seems to us, significant countervailing considerations. The indications, which are given in Hughes, as to the normal bracket for this class of offence are indeed only indications. This was an unprovoked attack on a complete stranger who, having sought to escape, was pursued and who was then stabbed twice in circumstances in which the only motive appears to be personal pleasure of the defendant. We have not forgotten the contents of the pre-sentence report, which, having identified the appellant as a persistent offender with a number of previous convictions, has nonetheless spent much of his life with foster carers and indeed has been placed with no less than 90 different families. He had learning difficulties, he was emotionally immature and, despite attending anger management counselling, had clearly not matured enough to avoid losing his temper without any justification, added to which he was a heavy smoker of cannabis and a heavy drinker. 19. Features of this case which strike us with particular concern are how bad an example of a stabbing this was. Knife crime is very prevalent throughout this country and the courts must seek to do what they can to stamp out the ready use of knives, which can so readily cause serious injury and even death. This is a striking example of a stabbing which very nearly caused death. It is true that the charge of attempted murder was not pursued, but if for any reason the medical staff had been unable to save the complainant, the defendant would have found himself facing a charge of murder and he would therefore have faced, in effect, a determinate term of some 24 years. 20. It may well be that the level of sentencing within this class of case, namely knife attacks resulting in section 18 convictions, need review, but we accept Mr Lewin's premise that the material that is presently available to the court by reference to the authorities does not justify a minimum term of as much as five years, or put it another way, a determinate term following a plea of something in the region of ten years. 21. Nonetheless we regard this as a very bad case giving rise to something very akin to the risk of immediate death. Accordingly, whilst we are minded to adjust the minimum term, we will not adjust it more than to a minimum of four years, having some considerable sympathy with the judge as to the figure that he originally spoke to. Again we would like to emphasise that this does not, for a moment, reflect necessarily the period of time that this defendant must serve in custody. Indeed, given the contents of the pre-sentence report and the psychiatric report, it seems likely that he will serve a term substantially longer, but the minimum will be four years and, to that extent, this appeal is allowed. 22. LADY JUSTICE HALLETT: Thank you.	{"ConvCourtName":["Crown Court at Plymouth"],"ConvictPleaDate":["2007-01"],"ConvictOffence":["Wounding with intent (section 18 Offences Against the Person Act 1861)","Common assault"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[59],"SentCourtName":["Crown Court at Plymouth"],"Sentence":["Detention for public protection with a minimum term of five years, less 59 days (section 18 offence)","Four months detention concurrent (common assault)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems","Has learning difficulties"],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["High risk of harm","High risk of reoffending"],"AggFactSent":["Unprovoked attack","Use of a knife","Victim was a stranger","Attack nearly caused death","Offender pursued victim","Disposal of evidence (clothing and knife)"],"MitFactSent":["Offender expressed remorse in a letter","Offender had learning difficulties","Offender was emotionally immature","Spent much of life with foster carers (90 different families)","Attended anger management counselling"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Minimum term of five years is excessive given age and authorities","Determinate sentence of ten years too long"],"SentGuideWhich":["Section 18 of the Offences Against the Person Act 1861","Criminal Justice Act 2003","Attorney General reference No. 26 of 2004 (R v Hughes) [2004] EWCA Crim 1384","Attorney General's reference number 18 of 2002 (Christopher Samuel Hughes) [2002] EWCA Crim 1127","Laing [2005] EWCA Crim 2864"],"AppealOutcome":["Allowed and minimum term reduced to four years"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Material presently available to the court by reference to the authorities does not justify a minimum term of as much as five years or a determinate term following a plea of ten years"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2010] EWCA Crim 2270 Case No: 2009/05857 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/10/2010 Before : LORD JUSTICE TOULSON MR JUSTICE MADDISON and MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - Between : DORSET COUNTY COUNCIL - v - DAVID RICHARD YEATES HOUSE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Timothy Bradbury on behalf of Dorset County Council Simon Goodman on behalf of David Richard Yeates House Hearing dates: 6 July 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Introduction 1. On 28 October 2005, in the Crown Court at Bournemouth, on a prosecution brought by the Trading Standards Department of the Respondent Council, the Applicant was convicted by a majority verdict of two counts of failure to identify cattle by means of an eartag contrary to Regulation 3(4) of the Cattle Identification Regulations 1998 (1998 SI No 871, “the Identification Regulations”), and five counts of failure to notify the movement of cattle contrary to Regulation 5(1) of the Cattle Database Regulations 1998 (1998 SI No 1796, “the Database Regulations”). In addition, he was convicted unanimously of five counts of applying a false trade description or supplying goods to which a false trade description had been applied, contrary to Section 1(1) of the Trade Descriptions Act 1968 . All of the offences for which he was convicted took place in the course of the Applicant’s business as a farmer during the period 2001 to 2004. 2. He was sentenced by the trial judge (Mr Recorder Bebb QC) the same day. In addition to the 12 matters for which he had been convicted that day, he stood to be sentenced in respect of two further offences of failing to notify the birth date of bovine animals contrary to Regulation 5 of the Database Regulations, to which he had earlier pleaded guilty and for which he had been committed for sentence by the Bournemouth Magistrates’ Court on 5 February 2005. 3. The Applicant was sentenced to a fine of £700 on each of the 12 counts upon which he had been found guilty by the jury, and ordered to pay prosecution costs of £2,000. No additional penalty was imposed in respect of the matters to which he had pleaded guilty. His total sentence was, therefore, a fine of £8,400 with a 6 month period of imprisonment in default, together with a costs order in the sum of £2,000. 4. Four years later, on 30 October 2009, the Applicant lodged a notice of appeal in respect of the seven jury convictions under the Database and Identification Regulations, no appeal being made in relation to the trades description matters. On 18 February 2010, Dobbs J referred the applications for the appropriate extension of time and for leave to the full court, to enable the Respondent to be represented. That course kept open the issue of delay – relied upon by the Respondent – but, at the hearing before us, all matters were argued, to enable us to deal with the substantive appeal if we were minded to grant leave. This is the reserved judgment from that hearing. Legislative Background 5. The importance of animal farming to the community and economy, and its sensitivity to disease, has been recognised in legislation since the 19th century, in a series of statutes designed to control disease by monitoring the movement and disposal of animals. Earlier statutes were repealed by the Contagious Diseases (Animals) Acts 1878 to 1893, which were themselves consolidated in the Diseases of Animals Acts 1894 to 1970, which were in their turn repealed and replaced by the Animal Health Act 1981 . Each of these Acts was similar in form. The primary legislation enabled detailed provisions to be made by various subsidiary authorities – generally the Privy Council or local authorities in the earlier Acts, but usually the relevant Secretary of State later – the primary and secondary legislation together comprising a statutory scheme imposing various obligations upon those in charge of agricultural animals, and making the contravention of the requirements of the scheme a criminal offence. Both the obligations imposed upon those responsible for animals and the provisions criminalising breach therefore arose out of the same, integrated and self-contained domestic scheme. 6. As agriculture became more sophisticated, the obligations imposed became more onerous. For example, the Bovine Animals (Identification, Marking and Breeding Records) Order 1990 (SI 1990 No 1867) made under the Animal Health Act 1981 , as its short title suggests, required those in charge of agricultural animals to identify those animals with an approved identification, mark them and keep various breeding records. 7. European law provisions added to that burden; although early European requirements did not change the form of the scheme, in the sense that the European provisions were not directly applicable, and both the requirements imposed upon those responsible for animals and the provisions imposing (criminal) sanctions for breach continued to appear in the domestic scheme, which continued to be self-contained. For example, Council Directive 92/102/EEC required the United Kingdom to set up and maintain a system of marking and recording agricultural animals; but, as a Directive, it was neither directly applicable nor did it impose any specific obligations on those in charge of agricultural animals themselves. Each Member State was required to enact legislation implementing the Directive, both imposing the relevant obligations on those in charge of animals and appropriate sanctions for breach. The United Kingdom implemented that Directive in the Bovine Animals (Records, Identification and Movement) Order 1995 (SI 1995 No 12), made under the Animal Health Act 1981 , which imposed the relevant obligations on individuals and made contravention an offence under that Act . 8. However, the regulatory landscape was changed by the bovine spongiform encephalopathy (“BSE”) crisis in the mid-1990s. The European Community decided to take robust action to stabilise the beef and beef products markets, by establishing a system for the identification, registration and tracing of cattle, and the labelling of beef and beef products, of far greater sophistication than had been previously imposed. It did so, first, in the form of Council Regulation (EC) No 820/97 (“Regulation 820/97”) which, being a Regulation, could and did impose obligations both upon Member States and, directly, upon individuals in charge of animals. By Article 22, Regulation 820/97, which applied from 1 July 1997, was binding in its entirety and directly applicable in all Member States. 9. Regulation 820/97 imposed a requirement upon the United Kingdom to establish a system for the identification and registration of such animals (Article 1), which was required to include identification eartags, a computerised database, animal passports and individual registers kept on each holding (Article 3). 10. Article 4 concerned the requirement for cattle to have eartags. Article 4.1 provided: “All animals on a holding born after 1 January 1998 or intended for intra-community trade after 1 January 1998 shall be identified by an eartag approved by the competent authority, applied to each ear. Both eartags shall bear the same unique identification code which makes it possible to identify each animal individually together with the holding on which it was born….” Article 4.5 forbade the removal or replacement of an eartag – by anyone – without the permission of the competent authority. 11. Under Article 7, the obligation to keep records was imposed directly upon any “keeper” of animals, defined in Article 2 as anyone responsible for animals “whether on a permanent or temporary basis, including during transportation or at a market”, as follows: “1. With the exception of transporters, each keeper of animals shall: - keep an up-to-date register, - once the computerised database is fully operational, report to the competent authority all movements to and from the holding and all births and deaths of animals on the holding, along with the dates of these events, within 15 days and, as from 1 July 2000, within seven days of the event occurring. However, at the request of a Member State and in accordance with the procedure referred to in Article 10, the Commission may determine the circumstances in which Member States may extend the maximum period. 2. Where applicable and having regard to Article 6, each animal keeper shall complete the passport immediately on arrival and prior to departure of each animal from the holding and ensure that the passport accompanies the animal. 3. Each keeper shall supply the competent authority, upon request, with all information concerning the origin, identification and, where appropriate, destination of animals which he has owned, kept, transported, marketed or slaughtered. 4. The register shall be in a format approved by the competent authority, kept in manual or computerised form, and be available at all times to the competent authority, upon request, for a minimum period to be determined by the competent authority but which may not be less than three years.” 12. The Regulation therefore categorically imposed obligations directly on individual citizens, particularly (but not exclusively) those responsible for animals. It was not, however, concerned with the specifics of enforcement which were, in the usual way, left to Member States. Article 21 required Member States to “take all the necessary measures to ensure compliance with the provisions of this Regulation”: and any sanctions imposed by the Member State were required to be “proportionate to the gravity of the breach”. 13. The United Kingdom complied with its enforcement obligations by bringing into force the Identification Regulations and the Database Regulations on 15 April 1998 and 28 September 1998 respectively. Although the powers to make subsidiary legislation under the Animal Health Act remained available, the Identification and Database Regulations were each made pursuant to the power contained in Section 2(2) of the European Communities Act 1972 , which provides a mechanism for implementing Community/Union obligations into United Kingdom domestic law. It provides: “... Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision – (a) for the purposes of implementing any Community [now, European Union] obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights…” It goes on to provide that “designated Minister or department” means such Minister of the Crown or government department as may be designated by Order in Council. 14. As we have indicated, the Applicant was convicted of offences under two regulations made under the provisions of this section, namely Regulation 3(4) of the Identification Regulations and Regulation 5(1) of the Database Regulations. 15. Regulation 3(1) of the Identification Regulations, under the heading “Enforcement of Article 4 of the Council Regulation (eartags)”, provided that the Minister of Agriculture, Fisheries and Food is the competent authority for the purposes of Article 4 of Regulation 820/97, succeeded on government reorganisation by the relevant Minister in the Department for Environment, Food and Rural Affairs. (For convenience, we shall refer to the competent authority as simply “DEFRA”). The Regulation continues: “(2) The person responsible for identifying cattle by means of an eartag applied to each ear in accordance with Article 4.1 of the Council Regulation shall be the keeper. (3) In accordance with Article 4.2 of the Council Regulation the keeper shall apply the eartags to the animal... [the Regulation then sets out various time periods in which the eartags were to be applied]. (4) Any person who fails to comply with the requirement in Article 4.1 of the Council Regulation to apply an eartag within the period specified in paragraph (3) above shall be guilty of an offence.” By Regulation 2, “the Council Regulation” is specifically defined as Regulation 820/97. 16. In the Database Regulations, the competent authority is the Minister, as under the Identification Regulations (Regulation 3). Under the heading “Offences”, Regulation 5(1) provides: “Any person who fails to comply with the requirement to notify the birth, movement or death of any cattle in accordance with the second indent of Article 7.1 of the Council Regulation in the way provided for in these Regulations or within the time limit specified in the Regulations shall be guilty of an offence.” By Regulation 7: “The notification of movement of cattle in accordance with the second indent of Article 7.1 of the Council Regulation shall be by the keeper...”: and it proceeds to set out details of the notification required. As with the Identification Regulations, by Regulation 2 of the Database Regulations, “the Council Regulation” is specifically defined as Regulation 820/97. 17. We shall shortly return to these provisions under which the Applicant was convicted: but, to complete the relevant legislative history, the European Parliament and the Council of the European Union later came to consider that the requirements of Regulation 820/97 were inadequate; and, by Regulation (EC) No 1760/2000 (“Regulation 1760/2000”), which came into force on 20 July 2000, provided for a revised system. Again, it was expressly binding in its entirety, and directly applicable in all Member States (Article 25). By Article 24, Regulation 820/97 was expressly repealed; but, by Article 24(2): “Reference to Regulation (EC) No 820/97 shall be construed as references to this Regulation and should be read in accordance with the correlation table set out in the annex.” The annex does, indeed, incorporate a table correlating the repealed articles of Regulation 820/97 with those in the new Regulation. Articles 4 and 7 of Regulation 1760/2000 were in similar terms to the same numbered articles in Regulation 820/97, save for Article 7.1. Article 7.1 of Regulation 820/97 (quoted in Paragraph 11 above) required the reporting of movements, births or deaths within 7 days of the relevant event. Article 7.1 of Regulation 1760/2000 gave Member States a discretion as to the timing of reporting, requiring the reporting of such events “within a period fixed by the Member State of between 3 and 7 days of the event occurring”: and, by the Cattle Database (Amendment) Regulations 2002 (SI 2002 No 94), the Database Regulations were amended to reduce the period for reporting movements to 3 days. (The Applicant’s “movement” offences in fact all occurred in 2001, and he was consequently prosecuted under the unamended provisions.) 18. Following the revocation of Regulation 820/97 by Regulation 1760/2000, no attempt was made to change the domestic provisions, for example to replace references to the Regulation 820/97 with references to the new Regulation 1760/2000; at least, not until 2006. By Regulation 3(4) of the Cattle Identification (Amendment) Regulations 2006 (SI 2006 No 1538) and Regulation 3(5) of the Cattle Database (Amendment) Regulations 2006 (SI 2006 No 1539), the definition of “the Council Regulation” in both the Identification and Database Regulations was substituted as follows: “ ‘the Council Regulation’ means Council Regulation (EC) No 1760/2000 (establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97)”. 19. However, that substitution was only effective from 15 June 2006 – after the date of each of the Applicant’s offences; and, indeed, after his conviction for them. The Parties’ Submissions 20. We will deal with the merits of the proposed appeal, before the issue of delay in respect of which the merits are of course a relevant factor. 21. The Applicant relies upon a single ground of appeal. In relation to the convictions he seeks to appeal, on the basis of the jury verdicts, he concedes the truth of the facts alleged against him: and he concedes that, in failing to identify and notify the movement of his cattle as alleged, he was in breach of the relevant provisions of Regulation 1760/2000: but that Regulation does not, of course, itself create a criminal offence. The offences with which he was charged were created by the Identification and Database Regulations. However, Counsel on the Applicant’s behalf, Mr Simon Goodman, submitted that criminal liability under both Regulation 3(4) of the Identification Regulations and Regulation 5(1) of the Database Regulations is expressly and exclusively defined in terms of a failure to carry out an obligation imposed by Regulation 820/97, namely Articles 4.1 and 7 respectively: and, therefore, that criminal liability is dependent upon the obligation arising from Regulation 820/97 continuing. But all of the Applicant’s offences as charged were post-20 July 2000, the date on which Regulation 820/97 was repealed and replaced by Regulation 1760/2000. As at the date of each of the alleged breaches, there was consequently no obligation under Regulation 820/97 in respect of which non-compliance could be a criminal offence: and, in respect of each count, the Applicant was therefore convicted of an offence which was, at the relevant time, unknown to the law. 22. Mr Timothy Bradbury for the Respondent submitted that the mechanism for implementing European obligations is a matter for each Member State, in the United Kingdom being a matter for Parliament. It is open to Parliament to adopt an approach whereby the requirements imposed directly on individuals by a European Regulation are substantively repeated in the domestic provisions that implement that Regulation; and/or, citing Department for the Environment, Food and Rural Affairs v ASDA Stores Limited [2003] UKHL 71 at [25], an approach that does not require making new implementing domestic provisions whenever Community/Union legislation changes. 23. Certainly for the purposes of this appeal, we accept those premises as far as they go – but, with respect, we consider they miss the real issue in this case, which is, not what Parliament could have done by way of implementation of the relevant European Regulations, but what in fact they did do. The sole issue for us is the proper construction of the Identification and Database Regulations. 24. In respect of that, Mr Bradbury submitted that, on their true construction, the Identification and Database Regulations did not rely upon the substantive obligations deriving from Regulation 820/97 at all: but, rather, the relevant wording of that European Regulation was contextually incorporated into those domestic regulations implementing it. Therefore, although Regulation 820/97 was directly applicable and it directly imposed requirements on individuals, by effectively incorporating the wording of obligation from that European Regulation, the Identification and Database Regulations themselves imposed an identical obligation on the individual, as well as imposing the sanction for breach. On that analysis, the relevant domestic provisions imposing criminal sanctions (i.e. Regulation 3(4) of the Identification Regulations and Regulation 5(1) of the Database Regulations) do not depend on the continuing validity of Regulation 820/97 at all; and those domestic provisions remain good, in imposing both an obligation on the keepers of animals and sanctions for breach of those obligations, despite the repeal of Regulation 820/97. 25. In support of that submission, Mr Bradbury urged us to take what, he submitted, was a purposive approach to the construction of the domestic provisions. As we have indicated, the wording of Articles 4.1 and 7 of Regulation 820/97 was substantially readopted, seamlessly, in Regulation 1760/2000: and so, the directly applicable obligations of those responsible for animals in respect of identifying those animals and recording their movements have at all material times in substance remained the same. The United Kingdom had an obligation, under European law, to enforce those obligations. As a tenet of construction of the implementing provisions, there is (he submitted) a presumption that the United Kingdom intended to comply with its European obligations. Consequently, Mr Bradbury invited us to proceed on the basis that Parliament could not have intended there to be a gap in the criminalisation of breaches of those obligations by individuals responsible for animals, which would have put the United Kingdom in breach of its obligations to enforce. 26. He also relied upon the only case in which the issue before us appears to have been argued, namely R v Drake in which the issue appears to have arisen in substantially identical form in the Crown Court at Bristol in a trial before His Honour Judge Lambert and a jury. Judge Lambert gave judgment on the issue on 22 June 2006, during the course of the trial. He found, “resoundingly” (his word), that the Identification and Database Regulations did not require the continued validity of Regulation 820/97 because, he was persuaded, the Regulations merely imported the wording of the European Regulation and were not in any way dependent upon any obligation emanating from that Regulation. The judge appears to have been influenced by the fact that the domestic Regulations were made under Section 2(2) of the European Communities Act 1972 , rather than Regulation 820/97: and, of course, Section 2(2) remained and remains extant. That ruling was not the subject of any appeal. Discussion and Conclusion on Merits 27. Attractively as Mr Bradbury’s submissions were made, we cannot accept the construction suggested on behalf of the Respondent, for the following reasons. 28. The purposive approach to construction, relied upon by Mr Bradbury, has its limits. The court is, of course, constrained to construe the intention of Parliament (or an authority to which Parliament has delegated its legislative function) through the legislative words used, reading the instrument as a whole and in its context. There may be cases in which the natural meaning of the words is so at odds with the apparent purpose of the instrument as to lead a court to give the words a strained meaning in order to give effect to what it conceives as the legislature’s true intention. However, it is one thing to adopt a strained meaning of words in order to give effect to the apparent underlying purpose of the legislature. It is quite another to adopt a strained meaning in order to give effect to what the legislature might have intended if it had been contemplating a different situation from that which obtained at the time of the legislation. The Identification and Database Regulations were intended to implement Regulation 820/97. There is no reason to suppose that they were drafted in contemplation of what was to happen if Regulation 820/97 came to be repealed and replaced. 29. In referring to Regulation 820/97, the Identification and Database Regulations do not use consistent wording. We accept that some references, if looked at discretely and in isolation, might be consistent with the construction pressed by the Respondent, namely that the substantive obligations imposed upon the keepers of animals and others derive from the domestic Regulations themselves; for example, some requirements are put in terms of being “specified” in Regulation 820/97 (e.g. Regulation 9), language which at least might arguably be consistent with external textual reference. 30. However, in general, the language of the Identification and Database Regulations is overwhelmingly redolent of the enforcement of substantive obligations arising out of Regulation 820/97, rather than the domestic Regulations themselves, with many references to matters being done “in accordance with” or, alternatively, “in contravention of” specific articles of that Regulation. On its face, that language is not the language of contextual incorporation, but of enforcing obligations arising elsewhere, namely in Regulation 820/97. 31. Moving from the general to the particular, we consider that proper analysis of specific provisions of the domestic Regulations is fatal to Mr Bradbury’s construction. In our view, a number of provisions patently and unambiguously enforce obligations and requirements that emanate exclusively from Regulation 820/97. 32. For example, Article 7(3) of Regulation 820/97 (quoted in Paragraph 11 above) requires each keeper to supply the competent authority, upon request, with certain information about animals in his care. Regulation 29(1) of the Identification Regulations provides: “Any person who contravenes or fails to comply with any of the following provisions of the [Regulation 820/97] ... shall be guilty of an offence... (a) Article 7.1, first indent (keeping of a register) (b) Article 7.3 (provision of information) (c) Article 7.4 (production and retention of the register).” In relation to (b) (Article 7.3), the Identification Regulations make no other reference to this obligation to provide information, for example by requiring specific particulars to be given or in any other way. The entire obligation emanates from – and only from – Regulation 820/97: and the offence is put clearly in terms of a contravention of a particular provision (Article 7.3) of Regulation 820/97. We do not consider that the suggestion that this provision in the Identification Regulations incorporates the wording of Article 7.3 of Regulation 820/97 by reference to be an arguable interpretation. Given that they fall within the same provision, the same must be true for the obligations in Articles 7.1 (first indent) and 7.4. 33. We consider the immediately following Regulation (Regulation 30 of the Identification Regulations, paragraph (2) of which is in identical terms to Regulation 11(2) of the Database Regulations), equally telling. Under Regulation 30(2): “An inspector shall have powers to carry out all checks and examinations necessary for the enforcement of Title I of [Regulation 820/97]...”: and it proceeds to set out some of the powers included in that ambit. Those powers are, in our judgment, clearly and unequivocally attached to the requirements emanating from, and dependent upon, Regulation 820/97. In our view, it is not possible to allow for a construction that contextually imports the wording of Regulation 820/97 to enable the powers of the inspector to remain extant in the event of the repeal of that European Regulation: those powers are inconsistent with the Respondent’s submission, that the domestic provisions are not reliant upon the continued validity of Regulation 820/97. 34. Once examples such as these can be identified, where specific provisions of the Identification and Database Regulations are dependent upon the continued validity Regulation 820/97, the Respondent’s submissions are, in our judgment, fatally undermined. We do not consider it is possible for Parliament to have intended that some provisions in the domestic Regulations were dependent upon the continued validity of the European Regulation, and others not. 35. For that reason, we prefer the construction proposed by Mr Goodman for the Applicant, namely that criminal liability under the Identification and the Database Regulations is exclusively defined in terms of a failure to carry out an obligation imposed by Regulation 820/97: and that, therefore, criminal liability is dependent upon Regulation 820/97 continuing in effect. 36. This is also reflected in the provisions of the specific domestic Regulations which the Applicant was alleged to have contravened. Regulation 5(1) of the Database Regulations makes a person guilty of an offence if he “fails to comply with the requirement to notify… in accordance with the second indent of Article 7.1 of [Regulation 820/97]”. The natural meaning of those words is that the offence comprises contravention of the obligation deriving from the Regulation 820/97, and hence is dependent upon that obligation continuing: but, in any event, given that the offence of failing to comply with the obligation in the first indent of Article 7.1 is dependent upon that obligation continuing (see Paragraph 32 above), no other construction is arguable. Regulation 3(4) of the Identification Regulations makes a person guilty of an offence if he “fails to comply with the requirement in Article 4.1 of [Regulation 820/97]”. In that provision too, on a plain reading, the offence is expressed in terms of failing to comply with a requirement deriving from a particular provision of Regulation 820/97. 37. The only direct authority on the point that Counsel have been able to identify, is Drake (see Paragraph 26 above). However, that judgment, although deserving of proper respect, is not of course binding on this court; and, with respect to the careful decision of Judge Lambert (who does not appear to have had the benefit of the considered submissions that we have had), we do not consider either his reasoning or conclusion to be correct. That the enabling provision for the Identification and Database Regulations (i.e. Section 2(2) of the European Communities Act 1992) had not been repealed does not appear to us to be in point, when the issue concerns whether the Regulations contextually import the obligations set out in Regulation 820/97 or depend upon the continuing obligations in that European Regulation. We do not consider that the judge properly took into account the change introduced by Regulation 820/97 in imposing obligations directly upon individuals, including keepers of animals. For the reasons we have given, we have come to the firm conclusion that the domestic Regulations do not simply cut and paste wording from the European Regulation: but rather they impose criminal sanctions upon failures to comply with obligations emanating from, and hence dependent upon, the provisions of Regulation 820/97. 38. We consider that construction to be clear and unambiguous from the wording of the Identification and Database Regulations itself. However, that construction also derives some external support. 39. First, whilst of course the question of construction of the relevant provisions is a matter for the court, it comes as some comfort that our interpretation is shared by those advising the competent authority. Initially, DEFRA took the view that Article 24(2) of Regulation 1760/2000 (quoted in Paragraph 17 above) had the effect that references to Regulation 820/97 in national legislation (as well as European law) would effectively be replaced by references to Regulation 1760/2000, which revoked and replaced it. However, in the summer of 2006, DEFRA was advised by its Law and Regulation Directorate General that Article 24(2) applied to European references only. The Respondent, as well as DEFRA, now accepts that that is correct. That concession is well made ( Case C-8/90 Belgium v Kennes and Verkooyen [1993] 3 CMLR 735 ). 40. As a result of it, DEFRA were advised as follows: “(b) The obligation on national courts to interpret the relevant rules of national law in the light of the content of Community law finds its limits in the general principles of law which form part of the Community legal system and, in particular, in the principles of legal certainty and non-retroactivity in criminal law. (c) A Regulation cannot, of itself and independently of a national law adopted by a Member State, have the effect of determining the criminal liability of persons who acted in contravention of its provisions. (d) The failure to amend the domestic legislation to refer to Regulation 1760/2000 infringes these principles. Where offence creating provisions are drafted in such a way that criminal liability depends on a failure to comply with requirements set out in European legislation that was not in force at the time of the alleged offence, no lawful conviction can result.” 41. DEFRA appear to have accepted that advice. As a result, they have not pursued any further prosecutions under the relevant provisions, nor have they contested applications under section 142 of the Magistrates’ Courts Act 1980 to set aside convictions made in the Magistrates Court, or appeals to the Crown Court or to the Court of Appeal. They promulgated a standard form letter, sent to courts, indicating that they would not contest an application or appeal, and why. Both Counsel before us understood that, as a result, no appeal by a keeper of animals under the Identification or Database Regulations in the circumstances of the case before us has ever been contested, until this case. Even in this case, initially the Respondent (which is, of course, the relevant local authority Trading Standards Department, rather than DEFRA) expressly indicated that they would not oppose the appeal (see, for example, their letter to the Applicant’s solicitors dated 8 October 2008); and the appeal was originally lodged on the basis that it was not opposed. The Respondent’s opposition only appeared in their formal response to the appeal, in which they made no concession and indicated that they would oppose the appeal. 42. None of that, of course, directly affects the issue before us, namely the true construction of the Identification and Database Regulations. The Respondent was perfectly entitled to withdraw any concession, and oppose the appeal, as it did. However, we do take some comfort from the fact that the construction of the relevant regulations that we prefer appears to be shared by the competent authority, which, of course, sponsored and drafted the Regulations we are construing: and that the Applicant’s application will be the subject of the same construction that has apparently been applied by the prosecuting authorities in all other appeals. If it were otherwise, he might have had some understandable sense of grievance. 43. Second, the construction which we prefer avoids potential difficulties raised by Mr Goodman in his submissions. Although he and we accept that the relevant provisions of Regulations 820/97 and 1760/2000 (and the respective obligations imposed by them upon a keeper of animals) are substantively the same, if the obligations imposed upon a keeper by Regulation 820/97 were incorporated into the Identification and Database Regulations by reference, and then a subsequent Regulation had revoked the obligations in Regulation 820/97 and replaced them with different obligations, where would that leave a keeper of animals? He would be bound to comply with the new Regulation, which would be directly applicable to him; and he would be bound to comply with the earlier Regulation, failing which he would be committing a criminal offence. Even if, in terms of obligations imposed upon individuals, the differences between Regulations 820/97 and 1760/2000 are not significant, Mr Bradbury accepted that, where there was a material change, the later Regulation would have to override the earlier – although we were unclear, on his construction, why – but those difficulties are avoided by the construction that we favour. In fact, in our view, that hypothetical example is simply a further indicator that that our construction is correct, and Mr Bradbury’s interpretation is untenable. 44. Third – but a related point – in considering Mr Bradbury’s submissions, we were concerned about the principle of legal policy known as the principle of doubtful penalisation (see Bennion on Statutory Interpretation, 5th Edition (2002), Part XVII). An aspect of that principle is that individuals should not be liable to criminal prosecution (and should certainly not be liable to have their liberty imperilled) except under clear authority of law. In this case, the Applicant was of course prosecuted, and his liberty was put in jeopardy in the sense that a default term of imprisonment was set in respect of the fine imposed upon him. After 20 July 2000 (when Regulation 1760/2000 revoked Regulation 820/97), a keeper of animals, investigating his liability to criminal proceedings under the Identification and Database Regulations, would, on an ordinary reading of those regulations, have seen that that liability attached to a contravention of the provisions of European Regulation 820/97. If he had, after 2000, looked at those provisions, he would have seen that they had been repealed. Although we consider, again, that this is more a reflection of the fact that the interpretation we favour is the true construction of the relevant statutory provisions, we would have viewed with concern a construction that then required him to identify the European Regulation that replaced Regulation 820/97, and thereafter further required him to compare the obligations of the two Regulations and take a view as to whether they were substantively the same. The principles of “legal certainty and non-retro-activity in criminal law” concerned DEFRA (see Paragraph 40 above) – and rightly so. On the Respondent’s construction, they would have concerned us too. 45. Finally, we were referred to two authorities. Neither supports the construction contended on behalf of the Respondent. As one would expect, each case turned upon the wording of the particular domestic provision involved – materially different from the provisions we are considering – and they are consequently of little assistance in the construction of the Identification and Database Regulations. 46. However, one, in our view, arguably supports the Applicant’s contentions. That case is Mayne v Ministry of Agriculture, Fisheries and Food [2000] All ER (D) 976, [2001] EHLR 5, which concerned Council Directive (EEC) 64/433 that addressed the issue of differing health requirements imposed by Member States in relation to meat. Regulation 1(4) of the Products of Animal Origin (Import and Export Regulations) 1992 (SI 1992 No 3298), by which the United Kingdom sought to implement that Directive, provided: “Any reference in these Regulations to a directive is a reference to that directive as amended”. When concerns about BSE emerged, the European Commission made further decisions amending Directive 64/433. The United Kingdom did not respond by any change to the 1992 Regulations. It was held that the reference to amendment in Regulation 1(4) was only to amendments to the Directive which had been made by the time the domestic regulations were made and did not refer to any future amendments. Thus, it was held, a failure to comply with the later decisions amending the Directive could not result in criminal sanctions. Of course, that case turned upon the construction of the particular domestic regulations involved: but, insofar as it goes, it shows that, where those regulations are unambiguous, there may be a lacuna in criminal sanctions where a national authority fails to amend national legislation to keep it in line with European requirements. To that, limited, extent, it is supportive of the Applicant. 47. Mr Bradbury also referred us to the decision of the House of Lords in Department for the Environment, Food and Rural Affairs v ASDA Stores Limited [2003] UKHL 71 , to which we have already referred (paragraph 22 above). That case concerned fresh horticultural produce which, before 1972, was regulated by the Agriculture and Horticulture Act 1964 and regulations thereunder. Section 12 imposed a duty to observe the regulations, and section 14(1) made it an offence to sell or offer to sell regulated produce in contravention of section 12 . When the United Kingdom joined the European Economic Community, there were already directly applicable Community Regulations governing the grading of certain types of horticultural produce. As a result, the 1964 Act and regulations were amended to include reference to “produce of any description for the time being subject to community grading rules” (emphasis added) as being “regulated produce”. Lord Nicholls (with whom the other members of the House of Lords agreed) held that the inclusion of the words “for the time being”: “… can only have been intended to indicate that this exclusionary provision was not confined to produce which was subject to Community grading rules at the time this provision in the European Communities Act 1972 came into force. While the … applicability of the exclusionary provision was to depend upon the content of the Community grading rules at any given time in the future. The phrase ‘for the time being’ envisages, and is intended to encompass, a changing state of affairs.” Therefore, as one might expect, the case turned upon the proper construction of the words of the specific domestic statutory provisions, which were very different from the provisions which we have to construe, in which there is no such phrase as “for the time being”. On the basis of that wording, it was held that it was not necessary to make new regulations, as and when European provisions changed. As we have indicated, that could have been done by the competent authority in this case: but it was not. This case is of no assistance to the Respondent. 48. For those reasons, we consider that the ground of appeal has merit. Indeed, the merit appears to us to be overwhelming, in that, on the true construction of the Identification and Database Regulations, the Applicant was charged and convicted of offences which, at the time, were unknown to English law – because they related to contraventions of obligations that were not extant at the relevant time. Delay 49. We do not consider that it would do justice to this case to refuse an extension of time for permission to appeal, on the basis of the delay. 50. We accept that this case has a long, and not entirely happy or even properly explained, history. The application for permission is approximately 4 years out of time. Part of that delay – although, in truth, only a small part – resulted from the Applicant’s solicitors applying for relief to the Criminal Cases Review Commission, before an application for permission to appeal was made. The 18 month delay between the conviction and the Applicant seeking advice on the merits of an appeal, and further delays in applying to the Criminal Cases Review Commission and thereafter seeking Counsel’s advice, have not been cogently explained. 51. However, in seeking to do justice to the application, we take into account (i) the ground of appeal, namely that the Applicant was convicted of offences unknown to English law, and the overwhelming merits of that ground as set out above, (ii) the indication by the Respondent in October 2008 (maintained until the formal response to the appeal, see Paragraph 41 above), that the appeal would not be opposed, (iii) that, irrespective of delay, no other appeal has been opposed in the circumstances of the Applicant (iv) the apparent absence of other following cases (this appears to be the only appeal in which an enforcing authority has taken the point taken by the Respondent in this case), and (v) that the Respondent, as it frankly accepts, has suffered no prejudice by the delay. In all of those circumstances, we consider it is appropriate to extend time for the application for permission. Disposal 52. By way of disposal, we shall therefore formally extend time for lodging this appeal so that it is in time, and we shall grant leave to appeal. 53. On the substantive appeal, we shall allow the appeal against conviction in relation to each of the seven counts that the Applicant – now, the Appellant – breached provisions of the Identification and Database Regulations, and quash those convictions.	{"ConvCourtName":["Crown Court at Bournemouth"],"ConvictPleaDate":["2005-10-28"],"ConvictOffence":["Failure to identify cattle by means of an eartag contrary to Regulation 3(4) of the Cattle Identification Regulations 1998","Failure to notify the movement of cattle contrary to Regulation 5(1) of the Cattle Database Regulations 1998","Applying a false trade description or supplying goods to which a false trade description had been applied, contrary to Section 1(1) of the Trade Descriptions Act 1968"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["earlier pleaded guilty (to two counts)","convicted by jury (on 28 October 2005)"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Bournemouth"],"Sentence":["£700 fine on each of 12 counts (total £8,400)","6 months imprisonment in default","£2,000 prosecution costs"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Convictions were for offences unknown to law at the time, as the relevant European Regulation (820/97) had been repealed and replaced before the dates of the alleged offences, so no criminal liability could arise under the domestic regulations as drafted."],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["On the true construction of the Identification and Database Regulations, the applicant was charged and convicted of offences which, at the time, were unknown to English law, because they related to contraventions of obligations that were not extant at the relevant time."],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2010] EWCA Crim 756 Case No: 201001129 A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 31st March 2010 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE JACK RECORDER OF REDBRIDGE HIS HONOUR JUDGE RADFORD (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JOHN PULLINGER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A Rose appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE ELIAS: On 21st January 2010, in the Crown Court at Kingston-upon-Thames before Mr Recorder Staite, the appellant was convicted by majority of 11 to one on count 1 of racially aggravated common assault. He was sentenced on 22nd February to six months' imprisonment (four months indentified for the assault and two for the racist element). He now appeals against that sentence by leave of the single judge. 2. The background is as follows. The complainant, Wayne Parillon, worked as a doorman at a public house in Fulham Road. The appellant spent the evening of 11th October 2008 drinking in that pub with his brother and former workmates. At midnight the staff asked patrons to finish their drink and leave the premises. The appellant's brother tried to leave with a full pint glass. The complainant put his arm across the doorway to prevent him from leaving and told him that he could not take the glass outside. The appellant's brother tried to push past him. The complainant grabbed him round the waist. A scuffle followed and the complainant took the appellant's brother to the ground. At that point the appellant rugby-tackled the complainant from behind and then struck the complainant on the head, just behind the right ear. Another doorman intervened. The complainant got to his feet and a third male attacked the complainant. The complainant went to the ground again. He took the appellant to the ground with him. The appellant went head first to the ground. The complainant then asked another man, who seemed to know the appellant's group, to get them to calm down. Initially they did so, but the aggression flared up again and two other men became involved. 3. As the incident developed the appellant continued to shout racist abuse, including "You fucking nig nog. I'm going to fucking smash you. Don't touch my fucking brother, you fucking nigger". He then placed his left hand across his mouth, stretched out his right arm and shouted "Heil Hitler". One of the others joined in the racist abuse. 4. The group left on hearing approaching police sirens. The appellant was identified and arrested. He had a small cut and swelling on his forehead. He said, "The negro bouncer did it to me". In interview he said he had a lot to drink and his recollection of events was sketchy, but he denied assaulting the complainant and denied using racist language. 5. There was a pre-sentence report before the judge in which the appellant attributed the offence to the significant quantity of beer he had consumed. He denied being racist. He lived with a wife and two daughters and had been self-employed most of his life. He was paying off his debts. He had considerable financial worries and the pressure of the court case had led to some stress-related health problems. It was noted that he was generally a well-respected and valued member of the community. There was a low risk of re-conviction and the recommendation from the writer of the report was for a suspended sentence with unpaid work, a curfew, and prohibited activity requirements. The appellant had only one previous conviction some 20 years earlier, when he was given a conditional discharge. 6. The judge observed, when passing sentence, that the defendant had displayed both violence and racism to a serious extent in this incident. The previous conviction, he thought, was irrelevant. He recognised that the appellant was no doubt a law-abiding person, and there were a number of references attesting to his positive good character, but his ongoing denial and the fact that he blamed the victim for his injuries indicated a failure to recognise the seriousness of his actions. The judge had no doubt that the custody threshold was crossed. The actions were so serious that a fine or community order would not be appropriate. He took into account the guidelines of the Sentencing Guidelines Council. 7. It is said in grounds of appeal that the judge failed to pay proper heed to that guidance. The custodial, rather than a suspended, sentence was, it is submitted, wrong in principle, and even if the custodial sentence was in principle appropriate, six months was manifestly excessive. The judge had reached that sentence by giving four months for the assault and two months for the racial element. It was submitted that the starting point of four months was out of line with the recommendations of the Sentencing Guidelines Council for assaults of this nature. Normally for common assault there will only be a custodial sentence if two aggravating features are present, and here it was said that there was only one, namely the fact that the offence was part of a group action. 8. There were also, it was submitted, a wide range of mitigating circumstances: the appellant did not instigate the incident; it was spontaneous and not planned; the assault only involved a rugby-tackle and a single blow; there was no significant injury; the act was wholly out of character from a man who was, to all intents and purposes, a man of good character; and finally it was said that it was likely to have a devastating influence on the family. 9. We are fully satisfied the judge was right to say that the offence did cross the custody threshold, given the racial element of this attack. The case has certain similarities with the case of Slater [2006] 1 Cr App R (S) 129 , where the sentence for the assault was treated as notional and four months was given for the racial element where the court found that the assault itself would not have merited a custodial sentence. The racial element in this case was crude, it was distressing, and the language was particularly offensive to the complainant. Furthermore, of course, the appellant did not have the benefit of a guilty plea, and nor has he recognised the full gravity of the offending. Nevertheless, we are satisfied that, particularly for someone of effectively previous good character, the assault itself would very likely not on its own have attracted a custodial sentence, and certainly not a sentence of four months. We bear in mind the factors identified by counsel and also –although this is of marginal relevance – the fact that,for reasons which the defendant is not to blame,he had to wait some 15 months before the trial took place. 10. In our view, an appropriate sentence, taking account of all these elements, is one of three months. We achieve this by a reduction of the element for the assault to one month with the two months for the racial aggravation remaining as the judge identified. Of course, those are not technically separate sentences, it is a single sentence of three months for this offence and we substitute that for the six months given by the court below.	{"ConvCourtName":["Crown Court at Kingston-upon-Thames"],"ConvictPleaDate":["2010-01-21"],"ConvictOffence":["Racially aggravated common assault"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Kingston-upon-Thames"],"Sentence":["6 months' imprisonment (4 months for assault, 2 months for racist element)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence","Offender denies using racist language"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["offence committed as part of a group action","racial element","violence to a serious extent","ongoing denial and blaming the victim"],"MitFactSent":["did not instigate the incident","incident was spontaneous and not planned","assault involved only a rugby-tackle and a single blow","no significant injury","out of character","effectively previous good character","likely to have a devastating influence on the family","waited 15 months for trial (marginal relevance)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["custodial sentence was wrong in principle","sentence was manifestly excessive","starting point of four months was out of line with Sentencing Guidelines Council recommendations","only one aggravating feature present"],"SentGuideWhich":["Sentencing Guidelines Council"],"AppealOutcome":["Appeal allowed and sentence reduced by 3 months"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["assault itself would very likely not on its own have attracted a custodial sentence","sentence of four months for assault was excessive"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2011] EWCA Crim 2029 Case No: 201101943 B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 28th July 2011 B e f o r e : LORD JUSTICE MOORE-BICK MR JUSTICE MACKAY RECORDER OF NOTTINGHAM HIS HONOUR JUDGE MICHAEL STOKES QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PHILLIP BARRY SMITH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G Bermingham appeared on behalf of the Appellant Mr J Fletcher appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE RECORDER: This appellant appeals with the leave of the single judge against a confiscation order made on 11th March this year by His Honour Judge Christopher Plunkett, sitting at Worcester Crown Court. The appellant had previously pleaded guilty, on re-arraignment, to three counts of possession of cannabis with intent to supply and, we see from prosecution respondent counsel's skeleton, two other offences of Class C possession. He put forward a basis of plea which was not accepted by the Crown, and on 22nd January of last year, following a Newton hearing at which Judge Plunkett presided, the appellant's basis of plea was rejected and he was sentenced to 30 months' imprisonment on each count to run concurrently. 2. The appellant's offending came to light following a covert police operation in the summer of 2008. On 20th August of that year he was stopped whilst driving his motorcar on the M42. On arrest, he acknowledged that there was cannabis in his vehicle. Upon searching it the police recovered a number of individually packed quantities of cannabis, together with a Stanley knife and two mobile telephones. When his home was searched, further quantities of cannabis were found, along with an electronic set of scales and a safe containing cash. 2,175 euros were also found. He was bailed but search warrants were again executed in December 2008 at his home, his business address and his mother's house. What was believed to be cannabis and papers indicating that the appellant had a lifestyle going somewhat beyond his legitimate means were discovered. 1 kilogram of cannabis was also found in an outhouse at his business premises and £79,060 in cash was found well hidden in the loft of his mother's home. The bulk of it was concealed under floorboards but £5,000 was in a safe. Upon his arrest the appellant acknowledged he was in possession of cannabis, but asserted it was either for his own use or for social supply amongst his friends. At a subsequent interview he claimed that the money found at his mother's home was the proceeds of sale of a property, savings from his businesses and winnings from gambling. As we have indicated, the judge did not accept his account in relation to such matters. The total weight of the cannabis seized exceeded 2 kilograms. 3. It should also be noted that the appellant was made the subject of a restraining order which in some respects he breached: firstly, by disposing of his vehicle to a friend and, secondly, by failing to comply with a requirement to reveal the source of the sum of money he was allowed each week as living expenses. 4. The judge had postponed the confiscation proceedings and the hearing to determine the appellant's benefit from his criminal conduct and the amount available for confiscation took place between 8th and 11th March of this year. 5. During the course of those proceedings the judge heard evidence from the financial investigator and from the appellant. The appellant also called an accountant and a number of other witnesses. The judge rightly concluded that the offences committed by the appellant necessarily meant that he had a criminal lifestyle, as defined by section 75 of the Proceeds of Crime Act 2002 . The Crown investigated, so far as it could, the appellant's dealings over the previous six years. Having heard the witnesses, and arguments from counsel, the judge assessed the appellant's benefit as £153,000. 6. There is no appeal from that finding, nor could there be given the very careful and fair way the judge conducted his assessment of the evidence. In particular, the judge was very careful to ensure there was no double counting of the cash seized from the appellant which the Crown took from him under a separate procedure which is explained in the judge's ruling. He did not include that amount in the benefit figure. 7. Having satisfied himself both as to the source and the extent of the appellant's benefit from his criminal conduct, both general and particular, the judge went on to consider, as he was bound to do, the amount that might be realised by way of confiscation, that is the recoverable amount. This is dealt with by section 7 of the Act, which provides: "(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned. 2. But if the defendant shows that the available amount is less than that benefit the recoverable amount is - (a) the available amount, or (b) a nominal amount, if the available amount is nil." [emphasis added] 8. It is now well established that the burden of proving that the available amount is less than the full amount of the benefit is on the offender: see Barwick [2001] 1 Cr App R (S) 129. Neither was there any obligation on the Crown to show a prime facie case that hidden assets exist: see Summers [2008] EWCA Crim 872 . Where the criminal lifestyle provisions apply, as here, the assumptions set out in section 10 of the Act come into play. Section 10(6) makes it plain that the court must not make a required assumption in relation to any particular property or expenditure if (a) the assumption is shown to be incorrect, or (b) there would be a serious risk of injustice if the assumption were made. 9. It is quite clear to us that the judge, in assessing the available amount in this case, proceeded with meticulous care. There was a great deal of material before him to suggest that he was dealing with a thoroughly dishonest individual who was determined, at any cost, to preserve his assets for himself. We take just a few examples: the appellant had concealed £79,000 in cash in sacks nailed down under the floorboards of his mother's loft; he perjured himself in matrimonial proceedings in order to hide assets from the court to prevent his wife acquiring an interest in them; following his arrest he immediately transferred £34,000 to his mother in a blatant attempt to conceal that part of his assets; he executed a trust deed giving 10% of his property to his mother, another attempt to conceal from the court or his wife the true extent of his assets. In addition, as the judge found, he used his mother's account to launder cash and concealed his earnings from both Her Majesty's Revenue and Customs and the Benefits Agency. He also resisted the keeping of any records in relation to his motor trading and his trading in gold and other items. 10. This court has recently underlined that where an offender is found by the judge to be dishonest and lying about his assets, the judge is not compelled to make a confiscation order equal to the amount of the benefit figure: see McIntosh and Marsden [2011] EWCA Crim 1501 . As Lord Bingham made clear in May [2008] AC 1028 , the objective of the statutory scheme is to deprive defendants of the benefit of their criminal conduct "within the limits of their available means". As Mr Bermingham has submitted to us this afternoon, it would be unjust to imprison a defendant for failure to pay a sum he cannot pay. To that end, in McIntosh , Moses LJ said at paragraph 15: "The court may conclude that a defendant's realisable assets are less than the full value of the benefit on the basis of the facts as a whole. A defendant who is found not to have told the truth or who has declined to give truthful disclosure will inevitably find it difficult to discharge the burden imposed upon him. But it may not be impossible for him to do so. Other sources of evidence, apart from the defendant himself, and a view of the case as a whole, may persuade a court that the assets available to the defendant are less than the full value of the benefit." 11. Mr Bermingham has highlighted in his submissions to us the difficulty, as he puts it, of proving a negative and submits that there was no evidence in this case of extravagant living. He also argues in his written grounds that the appellant's explanations in respect of the assets he had tried unsuccessfully to hide do not admit of the findings made by the judge. 12. We disagree. These are matters of fact for the judge hearing the evidence to decide. It was not necessary for the judge to make any finding, as such, that the appellant had hidden assets. It is clear from his written ruling that he was not satisfied that the appellant had discharged the burden placed upon him of establishing that his available assets were less than £131,000. The judge made that assessment on the evidence before him; he did not simply assume that because he found the appellant to be dishonest he was compelled to make an order to the full value of the benefit. In the circumstances of this case the judge's findings about the appellant's truthfulness would be largely determinative of the issue because the nature and value of his assets would essentially be within the appellant's personal knowledge. We do not think that the submissions pursued by counsel sufficiently explain the shortfall between the benefit figure and the admitted assets. In McIntosh Moses LJ also pointed out that there was no room "outwith the statute, for any residual discretion in the court to relieve a defendant who has failed to prove that his assets are less than the full amount of the benefit". He was there referring to the Criminal Justice Act 1988 , but the principle applies equally to the 2002 Act . 13. Here the judge did not jump to any conclusions at all. He carefully considered all the material before him. He reminded himself that just because the appellant had lied on numerous occasions did not mean that he was lying in respect of all his evidence. He plainly accepted some of what the appellant said about his trading in cars and gold. He also accepted that he was a gambler. The judge's findings also demonstrate he considered all of the evidence, including the appellant's evidence, with great care because in making the confiscation order limited to £131,000 he did determine that the available amount was less than the full amount of the benefit. In doing so, in our judgment, he applied the correct principles and reached conclusions of fact that we cannot go behind. 14. We do not consider that this appellant has any legitimate complaint as to either the way the judge conducted his assessment of the evidence or the conclusion he reached. Although the judge implied that the greater part of the appellant's assets were hidden, his findings, on a proper analysis, mean no more than the appellant had manifestly failed to discharge the burden upon him to establish that his available assets were limited to that which he contended. Had the judge expressed himself in that way, rather than seemingly making a finding that there were hidden assets, this appeal would have been unarguable. His finding at paragraph 11(d) of his ruling that the appellant had "not explained, on clear and cogent evidence where the money had gone" was a conclusion that was open to him on the evidence and is not one with which this court can interfere. Despite Mr Bermingham's brief but focused submissions, this appeal must be dismissed.	{"ConvCourtName":["Worcester Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Possession of cannabis with intent to supply","Possession of Class C drugs"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on re-arraignment"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Worcester Crown Court"],"Sentence":["30 months' imprisonment on each count to run concurrently","Confiscation order of £131,000"],"SentServe":["Concurrent"],"WhatAncillary":["Restraining order"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Physical evidence (cannabis, cash, scales, mobile phones, Stanley knife)","Financial investigation","Testimony from financial investigator"],"DefEvidTypeTrial":["Testimony from appellant","Testimony from accountant","Testimony from other witnesses"],"PreSentReport":[],"AggFactSent":["Attempted to conceal assets","Perjured himself in matrimonial proceedings","Transferred money to mother to conceal assets","Used mother's account to launder cash","Concealed earnings from authorities","Resisted keeping records of trading"],"MitFactSent":["Judge accepted some evidence about trading in cars and gold","Judge accepted appellant was a gambler"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Confiscation order"],"AppealGround":["Available assets less than benefit figure","No evidence of extravagant living","Judge erred in findings about assets"],"SentGuideWhich":["section 75 of the Proceeds of Crime Act 2002","section 7 of the Proceeds of Crime Act 2002","section 10 of the Proceeds of Crime Act 2002"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge applied correct principles","Judge carefully considered all evidence","Appellant failed to discharge burden to prove available assets were less than benefit","No legitimate complaint as to judge's assessment or conclusion"]}
NCN: [2019] EWCA (Crim) 1585 No: 201902478 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 3 September 2019 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE McGOWAN DBE MR JUSTICE FREEDMAN REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v DARREN JOHN FINNEMORE Mr P Jarvis appeared on behalf of the Attorney General Ms S Cornish appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T LORD JUSTICE SIMON: 1. This is an application by the Solicitor General to refer sentences to this court, under section 36 of the Criminal Justice Act 1988, as being unduly lenient. The sentences were passed by His Honour Judge Mooncey in the Crown Court at Leicester on 6 June 2019. 2. The offender is now aged 49. On 18 April 2019 he was convicted of three offences: counts 4 and 6, arson being reckless as to whether life is endangered, contrary to section 1, 2 and 3 of the Criminal Damage Act 1971. Count 4 charged damage by fire at 1 - 4 Coleman Close, Leicester, and count 6, damage by fire at 11 - 16 Coleman Close. Count 7 was the more serious charge of arson with intent to endanger life, contrary to the same provisions. The lives that it was intended to endanger being those of Mandy Morris and Kenneth Aley and the fire being set at 75 Rowlatts Hill, Leicester. 3. Following the preparation of reports the offender was sentenced to a term of 5 years' imprisonment on count 7 and 3 years' imprisonment on counts 4 and 6, all to be served concurrently. The overall sentence was therefore a term of 5 years. 4. Mandy Morris and her partner, Kenneth Aley, lived in a flat at 75 Rowlatts Hill in Leicester. The offender lived in another flat in that block. In December 2017 she made a serious criminal allegation against the offender. The police arrested him and then released him on bail with a condition not to return to the flats. He went instead to live with his mother whose home was nearby. 5. From the middle of January 2018 the offender telephoned the police on a number of occasions to report that he was feeling suicidal because of the allegations that had been made against him and because he had not been allowed to return to his flat. 6. On 28 January 2018, at around 3.00 am, CCTV recorded the offender wandering in and out of Coleman Close close to Rowlatts Hill. He was smoking a cigarette. He set light to the wheelie bins for Flats 1 - 4 Coleman Close and 11 - 16 Coleman Close. This was close to the gas mains for the block. He then made his way back towards his mother's house. 7. The occupants of the flats were asleep at the time. Some of them awoken by the sound of popping and crackling coming from outside and one heard an explosion. There was a considerable amount of smoke in the downstairs passageway that was making its way into the flats. Some of the occupants had to be rescued by the emergency services from their flats. One of them was treated in hospital for smoke inhalation. The fire brigade spent almost 6 hours tackling the fires started by the offender. Extensive smoke damage was caused to a number of the properties. 8. Meanwhile, at about 4.15 am and in breach of the conditions of his police bail, the offender made his way to 75 Rowlatts Hill. He set light to a magazine and stuffed it into the letterbox of the flat where Ms Morris and Mr Aley lived. The magazine had been in a plastic wrapper. It did not stay alight for long and no damage was caused to the inside of the flat. Minor damage was caused to the letter box itself. 9. A neighbour alerted the fire brigade and officers arrived a short time later. They knocked on the door of the flat and Mr Aley answered. Initially he appeared not to have known about the incident but he subsequently said he had smelt something burning and so he went to the door in time to see the offender running off. A number of police officers subsequently identified the offender from the CCTV. 10. At 8.35 am the police went to the offender's mother's address. The offender was in the living room when they arrived. He was arrested and mumbled words to the effect that someone was "taking the piss". He knew who it was and he was going to knock them out. 11. In his police interview the offender answered "no comment" to all questions. He had prepared a statement in which he denied any involvement in the crimes. He was later charged, pleaded not guilty, stood trial and was found guilty. 12. The prosecution case at trial was that the offender had set the fires at Coleman Close in order to occupy the attention of the fire services so he could move on to his real target which was Ms Morris and Mr Aley's flat at Rowlatts Hill. 13. The offender had 41 previous convictions from 19 court appearances. They include convictions for theft, criminal damage and possessing offensive weapons. Of particular significance were convictions in 1995 and 2000, for committing arson recklessly. 14. In relation to the convictions in 2000 there were a number of offences for which he received an overall sentence of 7 years' imprisonment. The offending involved the offender setting fire to wheelie bins outside a number of properties. 15. A psychiatric report on the offender was prepared by Dr Thirumalai. The offender told him that having left school at 16 he worked in warehouses but he had been unemployed for over a decade. He has three children from a previous relationship but no contact with any of them. He denied drinking alcohol and taking any illicit substances prior to committing the offences. Dr Thirumalai did not have access to the offender's medical records but he self-reported that he had suffered mental health difficulties around 20 years ago. He also reported a history of self-harming. He said he had been in prison for most of his adult life. He struggled to cope with the stress of living in the community and finds prison life easier. With regard to the present offences, the offender denied committing them so it was not possible for Dr Thirumalai to explore with him his insight into the offending. 16. The doctor concluded that the offender was fit to be sentenced. There had been no previous diagnosis of mental disorder but the offender did have a number of characteristics consistent with having an emotional unstable personality disorder which could make him more prone to impulsive acts. 17. There were a number of victim personal statements from the occupiers of the flats in Coleman Close: Keith Corkhill described waking to the sound of someone banging on his door. He had tried to run downstairs to escape but the smoke was too thick. He then tried to jump out of the bathroom window but the flames from outside prevented him. He was panicked and afraid. He managed to open the living room window just enough so he could put his head outside and breathe. The fire brigade arrived a matter of minutes later. He believed that if his neighbour had not woken him up he probably would have died from the smoke inhalation. Even now he suffers from flashbacks in relation to this experience. 18. Terence Owen's statement described how, after the fire, he was unable to return to his flat. He was taken to hospital and in the immediate aftermath had to look for somewhere else to live with his wife. 19. A number of other occupants found themselves in the same situation. Phyllis Snelders had to move in her with son and his wife which put a strain on them all. Mohammed Malik, his wife and child were trapped in their flat during the fire. Since then they have had to live with his wife's family some distance from where they work and where their children go to school. His 3-year-old daughter has been left traumatised by the fire. 20. The maximum sentence for each offence charged as counts 4, 6 and 7 is life imprisonment. In March 2018 the Sentencing Council published a Consultation and Draft Guidelines for offences of arson and criminal damage. That consultation closed on 26 June 2018. Definitive Guidelines were published on 3 July 2019 and applied to all cases sentenced on or after 1 October 2019. 21. The judge was taken by the prosecutor to the Draft Guidelines. In respect of count 7 the prosecutor submitted that the facts of the case fell into category 2A, with a starting point of 6 years' imprisonment and a range of 4 to 8 years. For counts 4 and 6 the equivalent starting point was somewhere between 4 and 6 years' imprisonment. 22. Mr Jarvis, in opening the application, made two apologies on behalf of the prosecutor (which was not him). First, a sentencing note should have been prepared for the assistance of the judge and second, the judge should not have been referred to the Draft Guidelines. 23. In his sentencing remarks the judge noted that although count 7 was the more serious offence, the effects of the offences charged under counts 4 and 6 were the more serious, in that people had to be evacuated from their flats and there was smoke damage. The judge said that he had looked at the draft guidelines and some of the existing authorities, and noted as correlation between what he regarded as two sources of sentencing authority. He said the potential victims of count 7 would be protected by a restraining order that precluded him going from within 100 yards of the address for 10 years, and he then passed the sentence to which we have referred. 24. Mr Jarvis, who appears for the Solicitor General, submitted that the sentences were unduly lenient. He pointed out that the Draft Guidelines did not come into force until 1 October 2019 and were therefore irrelevant (see the terms of the guidelines themselves and the case of R v Connelly [2018] 1 Cr App R(S) 19 ). The judge should have been guided by the authorities of this court. 25. In Attorney-General's Reference No 68 of 2008 (R v Myrie) [2009] 2 Cr App R(S) 48, this court reviewed the sentence of an offender who received a two-and-a-half year sentence of imprisonment for arson being reckless as to whether life would be endangered. The court considered a number of earlier authorities and held that the starting point for arson with intent to endanger life is in the range of 8 to 10 years following a trial and in cases of reckless arson: ... we would regard the range as rather below that, but it is apparent to us that the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one. (see paragraph 25). 26. This bracket has been applied to a number of reckless arson cases since then including Attorney-General's Reference No 39 of 2016 (R v Hitchens) [2016] 2 Cr App R(S) 34; Attorney General Reference (R v Cox) [2018] 1 Cr App R(S) 3 and R v McKay [2018] 1 Cr App R(S) 26. He submitted that the offending had a large number of features which made the offending serious and which called for a sentence considerably in excess of 5 years' imprisonment. 27. For the offender, Ms Cornish reminded the court that the judge had heard the evidence in the trial and having done so had concluded the offender had acted impulsively. His mental health issues provided substantial mitigation, as did a long history of alcohol misuse and a finding from the psychiatrist that he had an emotionally unstable personality disorder which made him prone to impulsive actions. So far as count 7 was concerned, although it was an intentional act, there was minimal risk as the fire was out before the fire service arrived. No real damage was caused and no one was injured. So far as the other counts were concerned, the setting of the fire was reckless. Although wheelie bins were set alight the flats were not themselves set on fire: the reason for the evacuation was the risk due to smoke rather than due to fire, and there was no sophistication or premeditation. She submitted that the sentences were lenient but not unduly so, such as to require the intervention of this court. We should add that we have received a handwritten note from the offender making a personal plea in relation to the application while continuing to deny committing the offences. 28. In our view, the sentences for these three offences had to take into account a number of features which demonstrated the seriousness of the offending. 29. First, the offender was convicted after a trial of three offences, one charge of arson with intent and two charges of reckless arson. Fires were set at two different sites, and the reckless offences were part of a scheme of distracting the fire service before the intentional fire setting at Rowlatts Hill, intending to endanger the lives of Mandy Morris and Kenneth Aley. These offences were premeditated and not impulsive acts. 30. Second, the fire at the Rowlatts Hill flat was in revenge for an allegation made against him. It involved a breach of a condition of his bail that precluded him being near the flat. As Mr Jarvis acknowledged, no significant damage was caused and no one was injured as a result but, in our view, he correctly submitted that the intent involved a serious offence. 31. Third, that was not the position in relation to the reckless arson offences. These offences were carried out in the early hours, when the offender would have known that people were asleep. Many of them only became aware of the fires after it was too late for them to escape. The dangers of fires in blocks of flat, at night, hardly needs to be restated. These fires caused extensive property damage, one person was hospitalised and the crimes, as we have recorded, had the continuing effect on the lives of the victims described in their statements. 32. Fourth, there was little mitigation available to the offender. Although he had mental health issues, with attempts at suicide, he had no diagnosed mental disorder that reduced the culpability to any significant extent. His record was poor and, most significantly, he had previously received a substantial sentence of imprisonment for arson being reckless as to whether life would be endangered in 2000. That had been preceded by an earlier offence, as we have set out. 33. Taking all these matters into account and applying the guidelines in the cases to which we have referred, we have concluded that the overall sentence of 5 years' imprisonment for these offences was unduly lenient. Adopting the approach of the judge which was to weight the sentence on count 7 to reflect the seriousness of the overall offending, we have concluded that the appropriate sentence was a term of not less than 10 years. Accordingly the sentence of 5 years was unduly lenient. 34. We will give effect to this conclusion by granting leave, quashing the sentence on count 7 and substituting a sentence of 10 years' imprisonment.	{"ConvCourtName":["Crown Court at Leicester"],"ConvictPleaDate":["2019-04-18"],"ConvictOffence":["Arson being reckless as to whether life is endangered (counts 4 and 6)","Arson with intent to endanger life (count 7)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Leicester"],"Sentence":["5 years' imprisonment on count 7","3 years' imprisonment on counts 4 and 6, all to be served concurrently"],"SentServe":["Concurrent"],"WhatAncillary":["Restraining order (precluded from going within 100 yards of the address for 10 years)"],"OffSex":["All Male"],"OffAgeOffence":[48],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["multiple (Mandy Morris, Kenneth Aley, and other flat occupants)"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["CCTV","Victim testimony","Police identification"],"DefEvidTypeTrial":["Offender denies offence","No comment interview"],"PreSentReport":[],"AggFactSent":["Offence committed while on bail","Premeditation","Multiple victims","Previous convictions for similar offences","Offence committed at night when victims were asleep","Extensive property damage","Victim hospitalised"],"MitFactSent":["Mental health issues","History of self-harm","No significant damage or injury on count 7"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Draft Guidelines were wrongly applied; judge should have followed existing authorities; sentence did not reflect seriousness and aggravating features"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988","Attorney-General's Reference No 68 of 2008 (R v Myrie)","Attorney-General's Reference No 39 of 2016 (R v Hitchens)","Attorney General Reference (R v Cox)","R v McKay"],"AppealOutcome":["Allowed","Sentence quashed and substituted with 10 years' imprisonment on count 7"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Draft Guidelines not in force; seriousness of offending required higher sentence; aggravating features not sufficiently reflected"],"ReasonDismiss":[]}
Neutral Citation Number: [2024] EWCA Crim 20 Case No: 202304426 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOLWICH Ms Recorder Davies T20237063 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/01/2024 Before : THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE GARNHAM and MR JUSTICE ANDREW BAKER - - - - - - - - - - - - - - - - - - - - - Between : MAYA TIGER LEELEE BASSARAGH Appellant - and - THE KING Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pippa Woodrow (instructed by Bhatt Murphy Solicitors ) for the Appellant Jessica Ward (instructed by the Crown Prosecution Service ) for the Respondent Hearing date: 18 January 2024 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 9.45 am on 25 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Mr Justice Andrew Baker : Introduction 1. This is the judgment of the court, to which we have all contributed. It sets out our reasons for decisions pronounced by Holroyde LJ at the conclusion of a hearing on 18 January 2024. That was the hearing of applications for an extension of time and for leave to appeal which had been referred to the full court by the Registrar. For the reasons set out below, we granted those applications and treated the hearing as the hearing of the substantive appeal. 2. The appellant thus appealed against a sentence of 5 years’ imprisonment for possession of a prohibited firearm. It was accepted on her behalf at all stages, correctly, that the minimum sentence provisions of section 311 and Schedule 20 of the Sentencing Code applied to her offence. The court had to impose a sentence of at least 5 years’ imprisonment, irrespective of plea, unless it was of the opinion that there were exceptional circumstances relating to the appellant or her offence which justified not doing so. 3. The appellant sought, and we granted, permission to rely on evidence that was not available to her when she was sentenced on 15 June 2023 by Ms Recorder Davies sitting in the Crown Court at Woolwich. We considered all of the new material de bene esse and, in the event, admitted it on the appeal. Unknown to anyone at that sentencing hearing, including the appellant herself, she was then pregnant. The fresh evidence showed that the appellant learned of her pregnancy only when she underwent routine testing upon her admission to HMP Bronzefield after she had been sentenced. Her pregnancy was therefore a fact existing at the time of the sentencing hearing, and one which would undoubtedly have been an important factor in the recorder’s decision if it had then been known. In those circumstances, this court can properly take it into account. The fresh evidence also provided detailed information about the particular impact and risks of this pregnancy, upon and for this appellant and her unborn baby. 4. Without knowledge of those matters, the Recorder found that there were no exceptional circumstances and she sentenced at the statutory minimum which therefore applied. Ms Woodrow for the appellant advanced some criticisms of the offence analysis in the recorder’s sentencing remarks, after her finding that there were no exceptional circumstances; but that analysis, and those criticisms, were not relevant to the appeal. The appeal asked the court, having now the benefit of the additional evidence, to make a finding of exceptional circumstances that the recorder could not make on the material before her. If we made that finding, it would fall to us to re-sentence on that different basis. 5. In the event, with that benefit, upon a careful review of all the circumstances of the appellant and the offence she committed, it was our opinion that this quite singular case did present exceptional circumstances that: i) justified not imposing the statutory minimum sentence; ii) meant that a custodial term commensurate with the seriousness of the appellant’s offence could be set at 3 years after consideration of the personal mitigation, reduced to 2 years after making the appropriate reduction for the appellant’s guilty plea.; and iii) enabled us to take the very exceptional course, for this type of offence, of suspending that custodial term. 6. We therefore allowed the appeal, quashing the sentence of 5 years’ imprisonment and substituting a sentence of 2 years’ imprisonment, suspended for 2 years. The appellant was also sentenced to 4 months’ imprisonment, concurrent, for possession of ammunition that was with the firearm when it was in her keeping. We also quashed that shorter sentence (which was not the subject of any separate argument) and substituted for it a sentence of 4 months’ imprisonment suspended for 2 years. Basic Facts and Initial Analysis 7. In February 2023, a few days after her 22 nd birthday, the appellant was found to be in possession of a converted Zoraki 917 self-loading 9mm pistol, loaded with a magazine containing compatible live ammunition (three bullets). This was a semi-automatic handgun that, to quote from the applicable Sentencing Guideline, was “ designed or adapted to be capable of killing two or more people at the same time or in rapid succession ”. 8. Under that Guideline, therefore, the gun in the appellant’s possession was a Type 1 weapon. Although the appellant had not used it and had no intention of ever using it, she was holding it as custodian (for her then boyfriend), loaded with compatible live ammunition, so there was Medium culpability under the Guideline. Under Step 1 in the Guideline, the culpability category, therefore, was Category B. That in turn meant that at Step 2, applying Table 1 in the absence of exceptional circumstances, the guideline range was 5 to 7 years, with a starting point of either 6 years or 5½ years, depending on whether harm was Category 2 or Category 3. 9. The appellant made significant admissions, and accepted fault, when the police were executing the search warrant that led to the recovery of the gun. She identified its owner immediately in a way that will have been sufficient to confirm the police’s existing (accurate) intelligence. She was cooperative when interviewed by the police under caution and provided a full account that accepted guilt. Her immediate frankness and cooperation were matters of personal mitigation to be taken into account in her favour quite separately from the reduction in sentence for her guilty plea. She indicated her guilt when she appeared before a magistrates’ court and pleaded guilty on her first appearance before the Crown Court on 23 March 2023. 10. The further circumstances disclosed by the appellant’s basis of plea were consistent with the account she had given to the police and were as follows: “a. The firearm and ammunition were not mine; b. Two weeks prior to my arrest, I was at a friend’s house and I was contacted by my then boyfriend, who goes by the name of Reefy … to look after something. I agreed to do this without thinking. c. A taxi subsequently arrived later that day and delivered a bag containing clothing and an item wrapped in a blanket. At the time I did not know that the item wrapped in [the] blanket was a safe. d. 2 days later, Reefy came to my house in a car and asked for the bag. I took it to him and he inspected it. When he did so, I did not see what was in it and in fact at the time I was distracted because he had brought a dog with him … . He then gave me the bag and I returned it to my house. We then went out to eat and as we were travelling, he handed me a key and said it related to something in the bag. I did not know what it was and nor did I ask him. e. After I returned from dinner, I became curious as to what else was in the bag and so I looked and discovered that it contained a safe. I looked inside the safe and discovered that it contained a firearm. I did not know that the firearm contained a magazine containing ammunition. f. Prior to this point, I did not know that the safe contained a firearm. I also did not know if the firearm was in the safe when it arrived in the taxi or if it was subsequently placed in the safe when Reefy attended two days later. g. When I found out that the safe contained a firearm, I immediately contacted Reefy and asked him to take it away. However he did not do so and although I kept on at him to take it away, he kept saying that he could not and was worried about being stopped by police. I kept on at him to take it away and he had agreed to take it away however on the day that he was due to attend, the police executed their warrant. h. I therefore pleaded guilty on the basis that I was a custodian of the firearm. ” 11. Turning to the categorisation of harm, we accept the submission that this case fell short of Category 1. Although one Category 3 factor could be said to be present, in that the appellant’s custodianship of the weapon in itself caused no more than minimal alarm or distress, she was holding a weapon whose only function, if used, was to cause lethal or grave injury. She held it with a view to returning it to “Reefy”, and there was a real risk that it would come into the hands of someone who would so use it. In those circumstances, we considered that the harm factors fell between those in Categories 1 and 3, and that harm should therefore be assessed as Category 2. 12. The use by criminals of intimate friends or family members of good character to hold illegal weapons, in the hope that it will avoid the weapons being found by the police, especially the abuse in that fashion of naïve, easily led or overly trusting custodians, is a repugnant but frequent feature in firearm possession cases. It is not, without more, an exceptional circumstance. 13. The principles by which a sentencing court is to judge whether there are exceptional circumstances are now set out in the Guideline. Reference to case law pre-dating the Guideline to identify those principles (for example, R v Nancarrow [2019] EWCA Crim 470 , [2019] 2 Cr App R (S) 4 ) is therefore misplaced. We discourage it. The principles are stated at paragraphs 6 and 9 to 12 under Step 3 in the Guideline, in the following terms: “6. In considering whether there are exceptional circumstances that would justify not imposing the statutory minimum sentence, the court must have regard to: • the particular circumstances of the offence and • the particular circumstances of the offender either of which may give rise to exceptional circumstances … 9. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence. 10. The circumstances must truly be exceptional. It is important that courts do not undermine the intention of Parliament and the deterrent purpose of the minimum term provisions by too readily accepting exceptional circumstances. 11. The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances. 12. The mere presence of one or more of the following should not in itself be regarded as exceptional: • One or more lower culpability factors • The type of weapon or ammunition falling under type 2 or 3 • One or more mitigating factors • A plea of guilty ” 14. In relation to those principles, firstly, Ms Woodrow made it clear that she did not advance a submission that any case of a pregnant offender would be a case of exceptional circumstances. Secondly, by way of emphasis for this case and not by way of addition to the Guideline, Ms Woodrow submitted (and Ms Ward agreed, as do we) that: i) all the circumstances of the individual offence and offender must be considered together (paragraphs 6 and 11); ii) the court must ask whether the circumstances are truly exceptional to ensure that the deterrent purpose of minimum sentences is not too readily undermined (paragraph 10); iii) the existence, or a totting up, of multiple mitigating factors is not enough (paragraph 12); and iv) there is a single ultimate test, as stated in paragraph 9, viz. whether the imposition of the statutory minimum sentence would, in all the circumstances of the individual case, result in an arbitrary and disproportionate sentence. 15. Thirdly, she submitted that medical unfitness to serve a custodial sentence (or a custodial sentence of at least the minimum statutory length), or significant physical and/or mental health risks particular to the individual offender that would be caused by imposing the statutory minimum sentence, would be an aspect of the circumstances of the offender that fell to be taken into account (assuming, we would add, the matters relied on are properly evidenced). Again, Ms Ward accepted Ms Woodrow’s proposition as correct; and again we agree with it. 16. If exceptional circumstances are found, then logically, and as the Guideline goes on to state at paragraph 13 under Step 3, “ the court must impose either a shorter custodial sentence than the statutory minimum … or an alternative sentence . Note: a guilty plea reduction applies in the normal way if the minimum term is not imposed … ” (original emphasis). As paragraph 14 then states, the sentence imposed absent the constraint of the statutory minimum should be “ a sentence that is appropriate to the individual case ”, for which purpose the court “ may find it useful to refer to the range of sentences under culpability A of Table 2 (Offences not subject to the statutory minimum sentence) in step 2 above ”. 17. Where, as in this case, a claim of exceptional circumstances relates in whole or in part to the impact for the particular offender of being in custody, or of being in custody for as long as the statutory minimum would require, determining the claim will usually require the court to identify the sentence that would be imposed if the statutory minimum did not apply. That will be a key factor in assessing whether the imposition of the statutory minimum would be arbitrary and disproportionate. Identifying the non-minimum sentence that the court would judge to be appropriate to the individual case will involve, among other things, considering what impact the putative exceptional circumstances would have on sentence if treated as matters of personal mitigation in a case where the court was free to sentence below the statutory minimum. 18. We complete this initial analysis, then, by noting that under Table 2, Culpability A, to which regard may be had if exceptional circumstances are found, the guideline range is 1 to 3 years’ custody (starting point 2 years) for Category 2 Harm. The New Information 19. The appellant was 35 weeks pregnant at the hearing of the appeal (to be precise, 34 weeks + 6 days). Her estimated due date from antenatal scans, for a full-term delivery at 40 weeks, is 23 February 2024. On that basis, the appellant must have become pregnant between her guilty plea and conviction on 23 March 2023 and the sentencing hearing on 15 June 2023. The father is unconnected to the appellant’s offences. 20. The latest information made available to us within the evidence we received was that due to some of the particular features of this pregnancy, the appellant was being advised not to carry beyond 37 weeks, meaning she was going to be advised to go through an induced delivery or c-section two weeks or so after the appeal hearing. By then, having been taken into custody on 15 June 2023, the appellant would have served 7½ months in prison, the equivalent of a 15-month sentence. 21. As we noted at the outset, the new evidence confirmed the pregnancy, and when and how it was discovered. By the date of the appeal hearing, the appellant was resident in the prison’s Mother and Baby Unit, her place on which would have been hers until her baby was 18 months old. Continued residence on the Unit beyond that was possible in principle but would require a fresh application nearer the time. 22. We note in that regard that if her baby is born at 37 weeks, the appellant’s normal date for release on licence under her 5-year sentence would have come when the baby was 22½ months old. Although there is the possibility of extending her stay on the MBU, and only a short extension would be required to avoid the 5-year sentence resulting in an enforced separation, we agree with a submission by Ms Woodrow that uncertainty about that in the meantime could exacerbate the anxiety for the appellant of the early months of her new baby’s life in the prison setting; and we accept that a separation of a baby from her mother and primary carer of several months, at 18 months, is significant. However, we did not consider that this factor in itself justified the claim of exceptional circumstances. 23. That risk of enforced separation was not the mainstay of the argument on the appellant’s behalf, however. Ms Woodrow submitted that the proposed fresh evidence disclosed particular risks for this appellant and her unborn baby, of pregnancy and birth as a serving prisoner, such that, when viewed in the context of the case as a whole, a 5-year custodial sentence was rendered arbitrary and disproportionate. Ms Ward confirmed (as had been stated in a Respondent’s Notice) that the Crown adopted a neutral stance on the question of exceptional circumstances as it arose before us in this case, with knowledge of the appellant’s pregnancy and its consequences, and did not advance any submissions in relation to the application or the appeal. 24. The particular complications or possible complications for the appellant and her unborn baby upon which Ms Woodrow relied were evidenced by an expert report of Dr Laura Abbott dated 14 December 2023 and an addendum to that report dated 17 January 2024. That expert evidence was the new evidence we admitted, together with two statements of Michela Carini, the appellant’s solicitor, which provided factual details and related the efforts undertaken on the appellant’s behalf to consider and in due course put forward her application. That evidence justified the extension of time we granted. 25. Dr Abbott qualified as a Registered General Nurse in 1993 and as a Registered Midwife in 2000. She is now an Associate Professor (Research) and Senior Lecturer in Midwifery, and a Fellow of the Royal College of Midwives, with particular expertise in the experience and added risks of pregnancy in prison. Meaning no disrespect to the thoroughness and detail of that evidence, we summarise its pertinent effect in the following paragraphs. 26. As background, all prison pregnancies are categorised as, in general terms, “ high risk ” pregnancies, by the NHS, the Prison Ombudsman, and the Ministry of Justice, and there is general recognition that the impact of custody on pregnant offenders can be harmful for both the offender and the child. Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. There may also be difficulties accessing medical assistance or specialist maternity services in custody. That general background is illustrated by, for example: i) a rate of stillbirths in prison that has been rising in recent years and is now much higher than that seen in the community at large, ii) increased rates in prison, in comparison to community rates, of premature birth, low birth weight, and perinatal mental health difficulties, and iii) statistics that one in ten prison pregnancies result in a birth in the prison or en route to hospital because of limitations in the availability of urgent transport and that between 2020 and 2022 one in four babies born out of prison pregnancies required admission to a neonatal unit (the national average being one in seven). 27. The appellant’s ethnicity (she is a Black woman) elevates the general background risks. The rates of many adverse pregnancy outcomes are higher for Black women, including rates of maternal death, premature birth, pre-eclampsia, postpartum haemorrhaging and blood-clots, still birth and serious post-natal complications. There is also a higher rate for Black women of precipitous labour in prison, i.e. prior to any transfer to hospital. 28. That is all relevant context, but it is indeed context only, that is to say the general medical context concerning pregnancy and birth in the prison estate in which evidence of the individual circumstances of the appellant in particular falls to be evaluated when judging the question of exceptional circumstances in her specific case. 29. The individual circumstances of this pregnancy, as evidenced by Ms Carini’s witness statements and Dr Abbott’s reports, included: i) A family history of premature labour suggesting familial predisposition and therefore enhanced risk for the appellant, and repeated episodes of antepartum bleeding of unknown origin (‘ABUO’) during this pregnancy. ABUO episodes are clinically significant indicators of heightened likelihoods of serious complications including miscarriage, premature birth, low birth weight, placental abruption, foetal distress and hyperbilirubinemia. ii) Incarceration therefore created for the appellant a real and present danger to safe delivery and proper neonatal development for her baby. iii) A personal history of a very traumatic previous pregnancy loss, the detail of which it is unnecessary to set out here, and other previous trauma including domestic abuse, as well as a history of anxiety and depression intensifying the appellant’s vulnerability to mental health deterioration under the stress of pregnancy, labour and neonatal care in a prison setting. iv) Incarceration whilst pregnant for this appellant, therefore, has been and would be frightening, disorientating and traumatic in a way that was far beyond any unavoidable norm. v) The recent development of pre-eclampsia, a condition which was diagnosed in the days before the hearing and which requires a level of monitoring and a reliable means of rapid specialist intervention that present particular challenges in the prison setting, which has added to the appellant’s fears for her own health and for her unborn child.. 30. R v Charlton [2021] EWCA Crim 2006 , [2022] 2 Cr App R (S) 18 also concerned an offender subject to a set of minimum sentence provisions who was pregnant, but did not know it, when she was sentenced at the statutory minimum. In that case, the sentence was for a ‘third strike’ domestic burglary engaging section 314 of the Sentencing Code. The statutory minimum sentence was 3 years, unless there were particular circumstances relating to the applicant or the offence being sentenced that made it unjust to impose such a sentence. The court’s assessment and conclusions in that case appear from the judgment at [12]-[15]: “12. This was, on any view, a serious offence which caused significant harm to the elderly victims. The applicant’s previous convictions were a serious aggravating feature. So too was the fact that she was on licence from a prison sentence for burglary when she committed this offence. There is, in our view, no basis on which the recorder could be criticised for concluding that the circumstances took the case at least to the top of the category 2 range before considering personal mitigation. 13. The mitigation however was substantial. It is clear, as the recorder said, that the applicant’s life has been held back by her abuse of controlled drugs, and that she needs to break away from drugs if she is to avoid further offending in the future. In that regard, the information contained in the pre-sentence report was important. It showed that the applicant had succeeded in being abstinent from drugs for about 5 years after the birth of her daughter, but had then relapsed. She was now making efforts to maintain her relationship with her daughter and, with the assistance of prescribed methadone, had not used illicit drugs in the weeks between her release on licence and the sentencing hearing. She had also been complying with the conditions of her licence, which we regard as an encouraging sign, given her past history. 14. The recorder was therefore faced with a difficult sentencing decision. He was, in our view, entitled to reach the conclusion he did on the basis of the information which was known to him. There was however a very important additional existing fact which was not known at that time but which has subsequently been established. Had the recorder been aware of that fact, we have no doubt he would rightly have taken it into account and given considerable weight to it, for three reasons. First, because imprisonment would now be a far heavier punishment for this applicant than for most other prisoners; secondly, because the pregnancy and births can be expected to increase her motivation to remain drug free; and thirdly, because it is necessary to have regard to the rights of the children who, as things stand, will be born in prison. 15. We are satisfied that when the pregnancy is added to the other personal mitigation in the applicant’s case, there are particular circumstances relating to the offender which would make it unjust to impose the minimum prison sentence which would otherwise be required. We are satisfied that in all the circumstances the applicant should be sentenced differently, in a way which will allow her to be at liberty when her twins are born and to have the support of the Probation Service in breaking away from her abuse of drugs, but which will also leave her in no doubt as to the likely outcome if she re-offends. We therefore grant the necessary extension of time. We grant leave to appeal against sentence. We quash the sentence of 3 years’ imprisonment and substitute a sentence of 2 years’ imprisonment suspended for 2 years, with a drug rehabilitation requirement for 9 months and a rehabilitation activity requirement for 15 days. … ” 31. In R v Stubbs [2022] EWCA Crim 1907 , no minimum sentencing provisions were engaged, but the case did involve the imprisonment of an offender who was pregnant. Her offences were conspiring to supply and to import Class B drugs. She was the longstanding girlfriend of a wholesale drug dealer whose business was the supply of various strains of cannabis, and other controlled drugs, to other dealers. Her pregnancy was confirmed shortly before her sentencing hearing, so it was known to the sentencing court. She received a sentence of immediate imprisonment, but with a short custodial term one impact of which was that the applicant could expect to be released before her baby was born. Her application for leave to appeal was dismissed, although the court indicated that for its own part it might have preferred to treat the pregnancy as reason to suspend sentence rather than to reduce the custodial term as the sentencing court had (from 21 months to 9 months). 32. At [29], after referring to the Sentencing Guideline on the Imposition of Community and Custodial Sentences, R v Petherick [2012] EWCA Crim 2214 , and R v Cheeseman [2020] EWCA Crim 794 , the court summarised the proper range of responses of a sentencing court to an offender’s pregnancy in these terms: “ Like any other compelling personal mitigation, the judge might properly reflect an offender’s pregnancy by reducing the sentence that would otherwise have been passed, suspending a sentence that would otherwise have been … a sentence of immediate imprisonment, or by both reducing and suspending as for example this court did in Charlton … . Pregnancy will not only provide strong personal mitigation but might also tend to improve the prospect of rehabilitation. Further, immediate imprisonment may often result in a significant harmful impact on the unborn child. Pregnant offenders cannot, however, automatically expect to avoid imprisonment. In particular, some pregnant offenders will present a risk or danger to the public and others will have committed offences so serious that there is no alternative to immediate custody. Such offenders aside, in our judgment proper application of the imposition guideline will often justify the suspension of a short sentence in the case of a pregnant offender. ” 33. Charlton , supra , is not authority for the proposition that being pregnant will always be an exceptional circumstance. The personal mitigation apart from the pregnancy in that case was considered to be strong; and, we note, it was directly relevant, in the individual circumstances of that case, both to the weight of the societal need to see repetitive domestic burglary properly punished and deterred by the courts, and also to the prospects of rehabilitation. The applicant’s pregnancy added the three further elements identified in the judgment, but they created exceptional circumstances only when added to that other, strong mitigation. Other Personal Mitigation 34. There was strong personal mitigation in this case apart from the various ways, not limited to its particular, much heightened health risks, why this pregnancy made imprisonment an unusually onerous punishment for this appellant. 35. Firstly, the appellant was previously of positive good character, and had been in good, regular employment. 36. Secondly, she had not only pleaded guilty at the first opportunity, but had been entirely cooperative throughout (paragraph ‎9 above). 37. Thirdly, she was not only still a young adult (the offending possession spanning her 22 nd birthday), she was assessed by the writer of her pre-sentence report and by a psychologist, for the original sentencing hearing, as being unusually naïve, presenting as an immature individual who would be extremely vulnerable in custody and for whom therefore the experience of custody would be particularly hard. 38. Fourthly, she presented a low risk of repeat offending and a very strong prospect of rehabilitation. By the time of the appeal hearing, this had been borne out by exemplary behaviour at HMP Bronzefield, with proactive engagement, productive use of her time, and the achievement of trusted roles. 39. Fifthly, the appellant’s already very strong prospect of rehabilitation was only further enhanced by her impending motherhood. She has severed all ties with potentially adverse influences, and has every prospect of maturing, rapidly, into a very different person in the interests of giving her newborn the best start in life that she can provide. Whilst for logical reasons, in the context of this judgment, we have focused on what might be described as the dangers and negative consequences of her pregnancy, given that she has been in prison, the appellant has also experienced real joy at being pregnant and has developed a strong, good, healthy bond with her unborn child. 40. Sixthly, although perhaps more of an overarching comment than a particular mitigating factor, we agree with a submission by Ms Woodrow that a conclusion, if reached, that this particular offence did not need to lead to this particular offender facing a lengthy sentence of immediate custody could not sensibly be thought any signal by the courts that the possession of prohibited firearms is not taken as seriously as it should be, or an undermining of the policy of deterrence underlying the minimum sentencing provisions. Assessment and Conclusions 41. As we have indicated, the Culpability A category ranges in Table 2 of the Guideline may assist in identifying an appropriate sentence where exceptional circumstances are found and the statutory minimum sentence therefore does not apply. However, it is important also to bear in mind that, on its own terms, Table 2 is designed to apply to possession cases that are less serious by nature than those to which Parliament has attached the minimum sentence regime. The guidance in paragraph 14 under Step 3 is only that the sentencing court may find the Table 2 (Culpability A) sentence ranges useful, not that Table 2 becomes applicable. The necessarily bespoke nature of the individual features of a case where exceptional circumstances have been found tends to make such cases unsuited to the now common process of categorisation so as to sentence within a normal sentencing range tabulated in a Guideline. 42. As we noted, above, for an offence in Category 2 for harm, Table 2 with Culpability A gives a sentencing range of 1 to 3 years with a starting point of 2 years; for Category 1 harm, it gives a sentencing range of 2 to 5 years with a starting point of 3 years. 43. This was a lethal weapon, with no legitimate use outside the armed forces or properly authorised sections of the law enforcement agencies. It was loaded with viable ammunition and so capable of killing (quickly) as many persons as it had live rounds in the magazine. It was held by the appellant for about a fortnight, for most of which period she was aware that it was an illegal firearm and that its unlawfulness was the very reason Reefy wanted it in her possession rather than in his. She held it despite her understanding of the devastating seriousness of gun crime, not least because one of Reefy’s friends had been murdered, having been stabbed and shot. There is some force in a submission by Ms Woodrow that the appellant’s fault was mostly a failure to extricate herself from a situation, even if her failure to ask what she was being given for safekeeping before taking it cannot be wholly excused by her naïve personality. Nonetheless, the appellant’s culpability cannot be said to be minimal. 44. In the absence of a statutory minimum, and prior to considering personal mitigation and any reduction for plea, a commensurate custodial term in this case would have been one of 4 years. 45. There was significant personal mitigation other than the pregnancy; and the pregnancy brought with it the same three considerations the court identified in Charlton , plus, in this case, substantial and heightened individual health risks because of the appellant’s particular circumstances. That personal mitigation, taken as a whole, would justify in our view a reduction in the custodial term to 3 years, prior to giving credit for plea. 46. It follows that, if not constrained by the statutory minimum, so that the appellant would be entitled to full credit for her plea, an appropriate sentence for this individual case would have been a custodial sentence with a custodial term of 2 years. 47. Similarly to the court’s conclusion in Charlton , we are satisfied that when the appellant’s pregnancy and its specific attendant consequences and risks, for the appellant and her unborn baby, are added to the other personal mitigation available to the appellant, there are exceptional circumstances relating to the appellant and her particular offence that, taken together, render it unjust to impose a custodial term of at least 5 years. The experience of custody was going to be, and has proved, traumatic and dangerous for this appellant beyond any kind of norm. By the date of the appeal hearing, she had in fact served the equivalent of a 14-month sentence, but the weight of punishment that has constituted for her will have been qualitatively equivalent to a much stiffer sentence. There are impeccable prospects of rehabilitation, and the interests of the appellant’s unborn child are a weighty factor if, as we have concluded, a sufficient custodial term, unconstrained by the statutory minimum, would be 2 years or shorter. 48. In all those circumstances, and on balance, we concluded that it was in the interests of justice to take the very exceptional course, for an offence of possessing the weapon involved in this case, of suspending the appellant’s sentence. 49. Therefore, having granted the necessary extension of time and leave to appeal, and having admitted the evidence of Dr Abbott and the appellant’s solicitor for the appeal, we quashed this sentence of 5 years’ imprisonment and we substituted a sentence of 2 years’ imprisonment, suspended for 2 years. The statutory surcharge will still apply, in the relevant amount. Having considered the pre-sentence report which was before the Crown Court, we imposed a rehabilitation activity requirement for up to 20 days. We noted earlier in this judgment how we dealt with the concurrent sentence the appellant was given in the court below for possession of the ammunition that was with the weapon.	{"ConvCourtName":["Crown Court at Woolwich"],"ConvictPleaDate":["2023-03-23"],"ConvictOffence":["Possession of a prohibited firearm","Possession of ammunition"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance before the Crown Court"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[224],"SentCourtName":["Crown Court at Woolwich"],"Sentence":["5 years imprisonment (original, quashed)","2 years imprisonment, suspended for 2 years (substituted)","4 months imprisonment, concurrent (original, quashed)","4 months imprisonment, suspended for 2 years (substituted)"],"SentServe":["Concurrent"],"WhatAncillary":["Rehabilitation activity requirement for up to 20 days","Statutory surcharge"],"OffSex":["All Female"],"OffAgeOffence":[22],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Possession of a lethal weapon (Type 1 firearm)","Weapon loaded with viable ammunition","Held for about a fortnight","Aware of illegality"],"MitFactSent":["Guilty plea at first opportunity","Full cooperation with police","No previous convictions (positive good character)","Young age (22)","Naivety and immaturity","Vulnerability in custody","Low risk of repeat offending","Strong prospect of rehabilitation","Severed ties with adverse influences","Pregnancy with significant health risks","Exemplary behaviour in custody"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Fresh evidence of pregnancy and associated health risks not available at sentencing","Exceptional circumstances not considered at original sentencing"],"SentGuideWhich":["Section 311 and Schedule 20 of the Sentencing Code","Sentencing Council's Guideline for Firearms Offences"],"AppealOutcome":["Allowed & Sentence Quashed and Substituted"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Fresh evidence showed exceptional circumstances (pregnancy and health risks) justifying not imposing statutory minimum sentence"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 2002/3177/Y4 Neutral Citation Number: [2003] EWCA Crim 458 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 26 th February 2003 Before : LORD JUSTICE LONGMORE MR JUSTICE SACHS and MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Yorkshire Sheeting & Insulation Limited Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R. Fernyhough QC (instructed by Walker Morris) for the Appellant Mr S Myerson (instructed by Health and Safety Executive) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Davis: 1. On the 25 th May 2000 a self-employed roof sheeter called Simon Pickering aged 20 was working on the roof of commercial premises at Foss Island Road, York. He was engaged in dragging a top sheet to fix over a roof stack, moving backwards for that purpose. He inadvertently, while moving backwards, stepped on to a roof light. It gave way and he fell through it onto a concrete floor some six metres below. He subsequently died from his injuries. 2. In due course criminal proceedings were commenced on the 23rd November 2001 by the Health and Safety Executive under the provisions of the Health and Safety at Work Act 1974 . There were summonses against two defendants. One was a well established and well respected building company called Totty Building Services Limited (“Totty”). That company had been employed by MFI as main contractor to undertake building restoration and remedial works at the site in question, which was a site formally owned by the B&Q chain, with a view to MFI moving into occupation. The other defendant was Yorkshire Sheeting and Insulation Services Limited, the appellant, also a well established and well respected company, specialising in roofing work. The appellant is of financial substance. In 1999 it had a turnover in excess of £6 million and net profits of around £105,000; and in 2000 it had a turnover in excess of £8.7 million and net profits of around £388,000. The appellant had been retained as sub-contractor by Totty to deal with the sheeting of the roof of the premises in question; the work in question also included the replacement of a number of roof lights (that is to say in the form of, as it were, sky lights). 3. The summons against the appellant charged it with the following offence (reflecting the provisions of Section 3 (1) of the 1974 Act ) in these terms: “You being an employer subject to the Health and Safety at Work Act 1974 did contravene section 3 (1) of the said Act in that with regard to the partial re-sheeting of the roof of the premises your undertaking was not conducted in such a way as to ensure, so far as reasonably practical, the safety of persons not in your direct employment, namely the sheeters engaged to carry out the work who were exposed to the risk of falls through the roof…..” The summons against Totty made similar allegations. 4. The matter came before the York Magistrates on the 14 th February 2002. Both defendants pleaded guilty. They were committed to the Crown Court for sentence. At the magistrates court the prosecution tendered a summary of facts and list of aggravating features; and the appellant tendered a schedule of mitigating features. This procedure followed the recommendations made in the case of Friskies Pet Care (UK Limited) 2000 2 Crim App Rep (S) 401. 5. On the 10 th May 2002 at the Crown Court at York the appellant was fined the sum of £100,000 and was also ordered to pay a proportion of the total costs, which proportion was in due course calculated as being in a sum of some £8,950. Totty was on the same occasion fined £10,000 and ordered to pay a significantly lesser proportion as a contribution towards the total costs. Against that sentence the appellant now appeals by leave of the single judge. 6. The background facts, in a little more detail, are these. On acquisition of the site in question from B&Q, MFI employed Totty as its main contractor. Totty in turn engaged the appellant as sub-contractor in respect of the roofing works that were required. A company called Roscoe Capita was appointed as planning supervisor. The works contemplated were scheduled to start in May 2000 and were estimated as likely to last twenty weeks in total. Such works included the replacement of the metal top sheets on the roof and replacement of the existing roof lights (about 100 in number) in addition. It was agreed that scaffolding edge protection would be provided around the building, with access to the roof by a pole ladder and with materials being hoisted up by crane and lowered onto the roof. 7. For the purposes of these works, and as was requisite, a method statement and risk assessment were prepared by the appellant. They were submitted to Totty and approved by Totty. The method statement which was dated 18 th May 2000 contemplated a start date in the week commencing 22 nd May 2000. In paragraph 6 of the method statement it was provided under the heading “Installation of safety netting” as follows: “A specialist sub-contractor will erect the safety nets to the entire warehouse area. A method statement from the contractor will be put forward prior to their commencement on site” It may be noted that no provision of any kind was included for the covering of roof lights. So far as the risk assessment was concerned, which was also dated the 18 th May 2000, that (in the section devoted to an evaluation of risks relating to falling from a roof) gave scores of two by way of risk rating to the potential severity of any fall and two to the potential risk of frequency for any fall: both scores indicating a low level of risk. The overall code rating was put at “L” again indicating an assessment of the risk being low. Under the heading “Control measures required during construction phrase” there was provided amongst other things the following: “Safety nets prevent falls to ground”. What was contemplated was that nets would be placed inside the premises under the roof area, to break any falls that might occur from the roof. 8. The roof sheeters arrived for work on Monday 22 nd May 2000. They were self-employed, working as gangs under a principal called Darryn Walker who was himself self-employed. (Darryn Walker is in fact the son of Paul Walker, a supervisor in the employment of the appellant.) Darryn Walker’s services were retained by the appellant by a written agreement dated the 31 st March 1997 whereby he was appointed as an independent contractor to the company. The duties of Darryn Walker, under the Agreement, were to extend to such tasks as roof sheeting and cladding as should be selected by the appellant. It was provided, in the Agreement, that he should carry out such tasks in an efficient and competent manner in accordance with good working practices and that he should at all times comply with all requisite or recognised safety procedures. In fact, as from 1997 Darryn Walker worked exclusively, it would appear, for the appellant. In practice he would take instructions from the appellant’s employees as to safety matters; and it was also the appellant who would take out the relevant insurances for relevant projects. Further the usual practice was for the appellant to make out the wage cheques for the individual gangers retained by Darryn Walker; the appellant would provide such cheques to Darryn Walker who would then pass them on to the individual gangers concerned. 9. By Monday 22 nd May 2000, instructions had been given to cause the contractors to put in safety nets under the roof. Unfortunately it seemed that vandals had been busy over the weekend. The scissor lifts, needed to take the nets into position, were out of action; so nothing could be done until those lifts were repaired. Nets were not in place on the morning of Monday 22 nd May 2000 in consequence. There was during the course of that day a discussion between Mr Paul Walker and Mr Heath, a director of the appellant, as to safety requirements relating to the roofing works: The discussion included reference to the possible need to demarcate a safe area of working on the roof by cones and bunting, depending on the area of safety netting in place underneath. By Wednesday 24 th May 2000, one of the scissor lifts had been repaired and some netting had been put in place; but it only extended to the roof area of a few of the rear bays in the premises. On Wednesday night both lifts should have been operable. However, overnight the charger from the battery for one of the lifts was somehow removed; so on Thursday morning that particular lift could not be used to continue with the netting work. As at the morning of Thursday 25 th May 2000, only seven of the relevant bays at the rear of the premises – 14, 13, 12, 11, 10, 9 and 8 – had been netted. The remainder had not. 10. In the meantime some of the gangers had, from Tuesday 23 rd May 2000, been undertaking preliminary works on the roof. Totty’s safety officer was a Mr Quealey. He visited the site on Wednesday 24 th May 2000. He thereupon expressed concern at the absence of complete netting: although the roofers were at that stage confining their activities to the area of the rear bays where by now there was netting. He was also concerned that some roof lights had been removed and the resulting holes were totally uncovered. Mr Quealey was also concerned, in any event, because the fragility of the roof lights had already been shown on a previous occasion by an employee simply standing, by way of demonstration, on one already removed: which immediately shattered. Darryn Walker was in fact the individual to whom Mr Quealey spoke at this stage. Darryn Walker initially took the position that the netting that was by then in place would suffice. However he then agreed with Mr Quealey that the roof lights themselves should be covered in the working area notwithstanding that there was netting present in that working area (namely the rear bays). Darryn Walker then spoke on the telephone to his father, Mr Paul Walker, to discuss this and this was agreed. The roof lights in the working area were then covered with old roofing sheeting. 11. Mr Quealey then went to discuss his concerns with the site manager, Mr Ellis. Mr Ellis was an experienced agency site manager temporarily retained by Totty because its own regular site manager in its employment was away on holiday at this time. It was said by Mr Quealey in his witness statement that the conversations with Mr Ellis extended to demarcation of the roof; that is to say to marking off the netted areas from the unnetted areas by a form of demarcation on top of the roof involving cones and bunting; and that Mr Ellis was left to ensure that no one worked on the areas of the roof where there was no underlying netting. According to Mr Ellis, he had previously discussed the general situation with Mr Paul Walker, the supervisor employed by the appellant, who had (he said) agreed to work on only five of the rear bays (14 to 10) leaving a safety margin, as it were, of two bays under which there was to be netting. However no steps were in fact taken to effect any demarcation on the roof whether by any cones or bunting or by the erection of any barrier or otherwise. 12. There was also some evidence to suggest that Mr Howard (Totty’s construction manager) had on Wednesday 24 th May 2000 asked Mr Ellis to ensure that he (Mr Ellis) had done everything ordered by Mr Quealey. Further there was some evidence to suggest that express instructions had previously been given to the gangers working on the roof that they were not to work outside the area under which there was netting, and to confine themselves to working on certain of the rear bays, under which there was netting. 13. The position thus, as on the morning of Thursday 25 th May 2000, was that certain of the bays had netting underneath them. Further those roof lights within the working area had by then been covered over. But the netting did not extend to the entirety of the roof area nor had the roof lights outside the immediate working area been covered. Further no demarcation of any kind had been undertaken on the roof marking off the working areas (under which there was netting) from the non-working areas (under which there was no netting). 14. Simon Pickering had previously been working as a ganger for Darryn Walker for some four months. He had some experience as a roofer, therefore, but not a great deal. On 25 th May 2000 he was, at around 11am, working in the vicinity of the netted area, but near to the area where the roof lights were in fact left uncovered (and therefore where there was no netting underneath) and where there was no demarcation by way of cones or bunting or anything else. In the course of dragging sheeting backwards, Mr Pickering stepped through one of the uncovered roof lights – as it happened, the one in advance of where the netting stopped. The netting in fact stopped one metre short of it. In the result the death occurred. Subsequently, it might be added, the job was completed after full netting of the entire roof area had been effected and after the entirety of the roof lights on the roof had been covered. 15. The essential complaint of the prosecution was against a background where, in the construction industry, a fall from a height of over two metres is the most common cause of fatal accidents; it is said accounting alone for some 50% of all fatal accidents in the industry. Further, of these the most common cause is by falls through fragile roof lights. The risks thus were well known in the industry. The complaints were, in essence, as follows: (1) The method statement and risk statement were lacking in the requisite detail; and in particular were wrong to assess the risk as “low” with regard to falls. Further, they should have stipulated that no access to the roof should have been permitted until the roof area was completely safety netted and until all roof lights in the vicinity of the working area as well as in the actual working area had been covered. (2) To the extent that only part of the roof was netted there should have been a physical demarcation (giving a safety margin of at least two metres) marking off the area which was netted from that which was not netted. (3) All roof lights both within the working area and in the vicinity of the working area should have been covered. (4) Strict instructions should have been given (and strict compliance with such instructions ensured) that uncovered roof lights outside the netted area should not be approached and that no work whatsoever should be done in such areas. 16. Mr Fernyhough QC, appearing for the appellant on the appeal (although he did not appear before the Judge below), conceded that the risk and method assessment were at fault – in particular in assessing the risk as low and placing over much reliance on netting and in failing to make any provision for the covering of roof lights at all, whether in the working area or in the vicinity of the working area. Mr Fernyhough also accepts that there was culpable fault in the failure to cause netting to be erected under the entirety of the roof area and the failure to cause the relevant roof lights to be covered. He further accepts that, to the extent that the roof lights had not been covered and to the extent that complete netting had not been undertaken, there at least should have been appropriate demarcation markings on the roof itself. 17. There was considerable debate before the Judge as to the relevant responsibility of those involved. The prosecution expressly, and understandably, took no position on that. Some of the arguments however advanced on behalf of the appellant and on behalf of Totty seem, in some respects, to have been more appropriate perhaps to what one might expect in arguments relating to contribution in civil proceedings. At all events in the course of his sentencing remarks the Judge said this: “He [Simon Pickering] was an employee of Yorkshire Sheeting and Insulation Services. They bore the primary responsibility for the safety of their employees and I conclude that that defendant as the employers of the deceased and as the contractor charged with the job carried the lion’s share of the blame for failing so far as reasonably practical to ensure Mr Pickering’s safety, and if this were a civil case where, as between the two defendants, responsibility were to be apportioned as percentages I would assess the relative moral culpability as 90% to Yorkshire Sheeting and Insulation Services and 10% to Totty’s. Turning to each defendant in turn I propose to set out what seem to me to be their failings and also their mitigation. So far as Yorkshire Sheeting is concerned their failings in my view are manifest, conspicuous and cumulative. A sure recipe for disaster……… No instructions were issued apparently that the roof lights should not be approached until the whole area below them was netted. No-one made sure that these things would be done. No one made sure that the sheeters were instructed not to approach the area of roof which had not been netted under. That is why I say that these failings were manifest, conspicuous and cumulative. ” 18. On behalf of the appellant, Mr Fernyhough submits that the Judge erred in his approach; drew conclusions that were not justified from the evidence before him; and in the result imposed a fine which was manifestly excessive. 19. Mr Fernyhough drew attention to the written statement of aggravating factors and of mitigating factors, which formed the basis of the plea. By reference to the guidelines set out in the case of F Howe & Son (Engineers Limited) 1999 2 ALL ER 249, he submits that there was here but one aggravating factor; and that was the fact that a death had occurred. Clearly a penalty that is to be imposed in such circumstances must, to some extent, reflect public concern at the unnecessary loss of life. But that, as Mr Fernyhough pointed out, was the only aggravating factor. On the other hand, there was here conspicuously absent any suggestion that the appellant had been motivated by any desire to engage in cost cutting exercises or anything of the kind. On the contrary this was, as was accepted, a reputable company, with an excellent – even if not entirely immaculate – safety record and which had never before been prosecuted. It had well-established safety and training procedures. It had experienced employees and retained experienced contractors. It had concerned itself with the procedures at the time of this particular project (albeit, and admittedly, in the event inadequately). Further, since the tragedy it had co-operated in every way with the enquiry as to what had gone wrong; had sought further guidance as to its own procedures and as to safe working methods from the Heath and Safety Executive; and had commissioned an independent audit of its safety procedures. Further, Mr Fernyhough submitted that the failure arose out of events occurring over a matter of a day or so (after the original plan for netting the entire roof had been frustrated by the acts of vandals) and had not been a consequence of a sustained course of unacceptable conduct. Furthermore, as was stressed, the appellant had admitted responsibility at the outset and had pleaded guilty at the earliest possible moment. 20. Mr Fernyhough criticised the sentencing remarks in that they seem to adopt as a starting point what was said to be the fact that Mr Pickering was an employee of the appellant. As Mr Fernyhough pointed out, that was not correct. Rather Mr Pickering’s services had been retained by Darryn Walker and Darryn Walker was himself an independent contractor retained by the appellant. (Indeed it was just because of that that the charge doubtless was brought by reference to section 3 (1) of the 1974 Act .) While Mr Fernyhough’s submission is strictly correct on this particular point and he is entitled to say that the Judge had, on the face of it, adopted a wrong factual starting point we doubt if this, in itself, is a point of much moment. The practical reality was that the appellant had been retained as a specialist roofing contractor on the project and it must be the case that it had to take a significant principal share of the blame for what happened – the more so when, evidently, Darryn Walker and the gangers were looking to the appellant for instructions as to roofing safety procedures. 21. Further, submitted Mr Fernyhough, the Judge had been in error in saying that no instructions had been issued that the roof lights should not be approached in the area under which there was no netting. As he pointed out, there was some evidence that instructions had been given that the roofers should not approach the areas which had not been netted, and should only work on certain of the rear bays. Yet further, he submitted, in the course of his remarks the Judge had, by way of criticism of the appellant, stated that the appellant had agreed to cover the roof lights but failed to do so. This was erroneous, since the evidence was that the appellant had agreed to cover the lights in the working area : and that it did. 22. Mr Fernyhough went on to criticise the Judge for seeking to adopt a precise percentage approach to the relative culpability as between the appellant and Totty of 90% to 10%. Mr Fernyhough said that, in the context of these criminal proceedings, it was neither possible nor appropriate to attribute percentages in that way given the number of corporations and the number of individuals involved. He went on to say that it would appear that the Judge had in reality decided on an appropriate total figure by way of fine and then had decided to allocate it in the way that he did. (It might be observed that, even then, although the Judge made an allocation 90% to 10%, the ultimate fines as imposed on the appellant on the one hand and Totty on the other hand did not in fact precisely correspond to that particular percentage allocation). Further, in so far as the Judge criticised the failings of the appellant as “manifest, conspicuous and cumulative” Mr Fernyhough submitted that was unfair and not justified by the evidence. Mr Fernyhough readily acknowledged –consistently with the plea of guilty – that the appellant was seriously at fault and was culpable to a significant degree. But he submitted that the culpability could not be said to be at the level of description ascribed to it by the Judge. In particular he submitted that the Judge had failed to have sufficient regard to the faults of Totty and of others involved, such as Mr Ellis. Indeed, Mr Fernyhough complained that in his sentencing remarks with regard to Totty the Judge had said it had been “let down” by the agency site manager: but the Judge allowed to the appellant no such degree of mitigation by reference to the conduct of the individuals who were not in fact employed by the appellant. 23. We think that there is force in these submissions, taken overall. We think, that the Judge’s statement of the facts was (in the respects indicated) wrong. Further the approach adopted by the Judge operated somewhat to mask the true nature of the sentencing exercise. That was to assess the degree of culpability and criminality on the part of the appellant by reference to the offence charged and its failure to take steps to ensure, so far as reasonably practical, the safety of the roofers. The Judge placed too much emphasis on seeking to apportion overall liability (by reference to a projected total fine) between the appellant on the one hand and Totty on the other hand on a percentage basis and not enough on assessing the appellant’s own culpability in respect of the offence as charged. This, we think, caused the Judge, as Mr Fernyhough submitted, not to make the appropriate assessment of the personal culpability of the appellant; the essential task being to assess how far short of the standard required by the 1974 Act the appellant by its acts and omissions fell and the extent of the criminal default thereby involved. 24. Mr Fernyhough also referred the court to a number of authorities, including Rimac Ltd 2000 1 Cr App Rep (s) 168 – where a fine of £60,000 (and costs of £9,273) was imposed on a company in respect of an employee’s fall through a ceiling. However, only limited guidance can be obtained from the citation of such authorities; as explained in Howe at p254 b, it is impossible to lay down a tariff in cases of this kind: each case must be decided by reference to its own circumstances. 25. In the judgment of this court, considering the submissions advanced and the materials deployed, the fine imposed in this particular case was excessive. As has been pointed out, save for the tragic death, none of the aggravating factors and all of the mitigating factors as identified in Howe were present. This was a respectable and responsible company which, on this occasion, participated in a failure to take the reasonable and practical steps needed to ensure the safety of those working on the roof. There is no doubt that this was a serious default; not least because the problem (which gave rise to a clear and foreseeable risk) had already been identified before Thursday 25 th May 2000. There was a serious default in failing properly to address the identified problem by arranging for the appropriate roof nettings, by (in particular) arranging for the appropriate covering of all the relevant roof lights (including, at least, in the vicinity of the working area) and by arranging, as appropriate, in the interim for the necessary demarcation on the roof. There was also the failure to ensure that roofers did not go outside the designated working area. It is the case however that the evidence suggests that the failure was to a significant extent due to a lack of liaison between all those involved. We do think, with all respect to the Judge, that his rather highly charged statement that the appellant’s failings were “manifest, conspicuous and cumulative” was inapposite. It seems to us that such language can only appropriately be deployed, if at all, with regard to the failings in this particular case if one has regard to the totality of the failings of all those – corporations and individuals – involved and not simply the appellant itself. 26. We are less moved by Mr Fernyhough’s submission that the fine imposed on the appellant was disproportionate to that imposed on Totty. Totty, of course, had its own responsibilities (and after all it was the main contractor);but we take the view that the principal responsibility (by reference to the criminal proceedings) was that of the appellant which was the retained specialist roofing contractor. In any event, even if the fine imposed on Totty could be said to be unduly lenient that does not in itself, in the circumstances, give rise to a justifiable claim that the fine otherwise appropriately imposed on the appellant should itself also become unduly lenient. 27. Considering all the circumstances we think that a substantial fine was indeed required: as was the Judge’s own view. Nevertheless, as already stated, we take the view that a fine of £100,000 was too much and was excessive. Having regard to the mitigating factors here present and having regard to the culpability on the part of the appellant and given the facts of this case, we take the view that a fine in the region of £60,000 would have been appropriate. However the Judge also, in respect of costs, had stated that costs were to be apportioned in the same proportion as the fines had been between the appellant and Totty (thus adopting the same rigidly proportionate approach to his assessment). Retaining, as a matter of practicality, the order for costs as made by the Judge in terms of its quantum, we adjust the fine, in the round, to £55,000. 28. At the conclusion of the hearing on the afternoon of 30 th January 2003 after hearing the submissions of Mr Fernyhough and of Mr Myerson (who appeared for the respondent) the court announced the conclusion which it had reached and indicated that it would give its reasons later. These are those reasons, which represent the judgment of the court. Accordingly there is to be substituted for the fine of £100,000 as ordered by the Judge a fine of £55,000. The order as to costs made by the Judge stands. To the extent indicated this appeal is allowed.	{"ConvCourtName":["York Magistrates"],"ConvictPleaDate":["2002-02-14"],"ConvictOffence":["Contravention of section 3(1) of the Health and Safety at Work Act 1974"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at York"],"Sentence":["£100,000 fine","Order to pay costs of £8,950"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[20],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Witness statement","Summary of facts"],"DefEvidTypeTrial":["Schedule of mitigating features"],"PreSentReport":[],"AggFactSent":["Death occurred"],"MitFactSent":["No cost-cutting motivation","Reputable company","No previous prosecution","Well-established safety and training procedures","Cooperated with enquiry","Commissioned independent audit of safety procedures","Admitted responsibility at the outset","Pleaded guilty at earliest possible moment"],"VicImpactStatement":[],"Appellant":["Appellant"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Fine was manifestly excessive","Judge erred in approach to culpability and apportionment","Judge made factual errors regarding employment status and instructions"],"SentGuideWhich":["F Howe & Son (Engineers Limited) 1999 2 ALL ER 249","Health and Safety at Work Act 1974 section 3(1)"],"AppealOutcome":["Allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge placed too much emphasis on apportioning liability between defendants rather than assessing appellant's own culpability","Fine did not sufficiently reflect mitigating factors","Fine was excessive given the circumstances and mitigation"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2015] EWCA Crim 659 Case No: 2014/4976/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24 March 2015 B e f o r e : LORD JUSTICE GROSS MRS JUSTICE ELISABETH LAING DBE THE RECORDER OF EXETER HIS HONOUR JUDGE GILBERT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON ELKINGTON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Murray appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE RECORDER: On 24th July 2014 in the Crown Court at Warwick, the appellant pleaded guilty to assault occasioning actual bodily harm and assault by beating. On 3rd October 2014 Mr Recorder Evans sentenced him for the assault occasioning actual bodily harm to an extended sentence of five years with 44 months as the custodial element and 16 months extended licence. For the assault by beating the sentence was four months' imprisonment concurrent. There was a victim surcharge order of £120. 2. The appellant appeals against sentence by leave of the single judge, Green J. 3. The fact are these, taken briefly. The appellant was in an on/off seven year relationship with the complainant, Kay Jones. She was 26, he was 42. They both lived at a Salvation Army hostel. On the evening of 14th April 2014 the appellant started an argument with Kay in the hostel's reception area. He called her a prostitute and said she should go and sell herself. She laughed and he pushed her into a wall. She hit the wall and slumped to the floor, feeling dizzy. She went upstairs to her room and the appellant followed, shouting abuse through the door. She ran out of the room, trying to get out onto the street. He followed her outside and punched her in the eye. She fell down and the appellant kicked and punched her while she was on the ground. 4. The following day the appellant knocked on the door of the complainant's room. She did not know it was him and opened the door. He pushed his way in and knocked her over. She fell to the floor and he tried to hit her. He did not manage to strike a hard blow. That part of the incident relates to count 2. 5. The complainant did not report the offence but had a problems with the vision in her left eye and went to accident and emergency later that day. She had bruising and swelling around the eye and also bruising to her arms. She was in pain where she had been kicked in the ribs. The doctor treated her for the bruising. The appellant was arrested on 16th April. In interview he blamed the complainant, saying that she had assaulted him. 6. He is a man who has appeared before the courts on 37 previous occasions for 121 offences between 1983 and 2012. His relevant violent offences include a conviction for manslaughter in 1997 for which he was sentenced to eight years' imprisonment, common assault in 2003 for which he was sentenced to three months' imprisonment, assault occasioning actual bodily harm in 2005 for which he received an extended sentence of 17 months and one offence of section 20 wounding in 2012 for which he received an extended sentence of 56 months. He was currently on recall for this due to the present offences. Earlier violent offences included in 1993 convictions for affray, assaults on police and actual bodily harm for which he received concurrent sentences of three months in a young offender institution. There were further assaults on the police in 1995, 1996 and 2004. He has also received a custodial sentence for theft, burglary of a dwelling and a non-dwelling and in 1994 was sentenced to 15 months' imprisonment for blackmail. 7. In the pre-sentence report it is said that the appellant accepted responsibility for his actions but minimised his culpability by saying he could not recall the offence due to the alcohol which he had consumed, combined with medication received on prescription. He did appear to show remorse. Alcohol was a significant feature in his past for violent offending. 8. He had been made the subject of a range of sentencing options in the past, but this had done little to deter him from re-offending. He was currently recalled. It was his second recall for the section 20 wounding on the extended licence period for violent offending under the influence of alcohol. He was assessed as presenting a high risk of re-offending and a high risk of harm to his current partner and members of the public. He could not be safely managed in the community. Intervention was required to address his thinking skills deficit, substance abuse and relationship issues. An extended period of licence would ensure that work completed in custody could be demonstrated in the community. 9. The grounds of appeal settled by counsel are that firstly the judge took insufficient account of the five-and-a-half months in custody pending sentence when recalled on licence. Secondly, the judge took too high a starting point in relation to the assault occasioning actual bodily harm. 10. With regard to the first ground, it is not right in this case to reduce the sentence because of time spent in custody to date on recall unless there has been excessive delay. The offence was on 14th April 2014. The appellant pleaded guilty on 24th July 2014. Sentence was then adjourned to assess dangerousness and sentence was passed on 3rd October 2014. In our judgment that time does not amount to excessive delay. 11. The second ground of appeal is that the custodial sentence of 44 months following a guilty plea at the PCMH, to which 25 per cent credit was due, puts it within a month or so of the maximum sentence for assault occasioning actual bodily harm of 60 months. Whilst we are of course able to be satisfied, and it is right to be satisfied that it would be contrary to the interests of justice to follow the guidelines in this case, we therefore look at the sentence as passed. The record of the appellant in our judgment does not justify passing such a long custodial sentence as was passed in this case. If the reason for so doing was for fear of further violence then it is open to extend the licence period and that is what was done for good reason on the evidence before the court. 12. We therefore allow the appeal by quashing the custodial element of 44 months, substituting for it a sentence of 36 months, but with the extended period of licence extending to 24 months, so that the extended sentence itself remains one of five years.	{"ConvCourtName":["Crown Court at Warwick"],"ConvictPleaDate":["2014-07-24"],"ConvictOffence":["assault occasioning actual bodily harm","assault by beating"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at PCMH"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Warwick"],"Sentence":["extended sentence of five years with 44 months as the custodial element and 16 months extended licence (original for ABH)","four months' imprisonment concurrent (assault by beating)","victim surcharge order of £120"],"SentServe":["Concurrent"],"WhatAncillary":["victim surcharge order of £120"],"OffSex":["All Male"],"OffAgeOffence":[42],"OffJobOffence":[],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[26],"VicJobOffence":[],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of harm","High risk of reoffending"],"AggFactSent":["offence committed while on recall","previous violent offences","offence under the influence of alcohol"],"MitFactSent":["offender showed remorse","offender accepted responsibility"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["insufficient account of time in custody pending sentence when recalled on licence","judge took too high a starting point in relation to the assault occasioning actual bodily harm"],"SentGuideWhich":[],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["record of the appellant does not justify passing such a long custodial sentence as was passed in this case"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Neutral Citation No: [2024] EWCA Crim 286 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO: 202400398 A3 Royal Courts of Justice Strand London WC2A 2LL Thursday 14 March 2024 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE GOOSE and HIS HONOUR JUDGE LICKLEY KC REFERENCE BY THE ATTORNEY-GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX v DARREN STANLEY FEVE __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR TOM LITTLE KC appeared on behalf of the Solicitor General MR NICHOLAS de la POER KC appeared on behalf of the Offender _________ J U D G M E N T (Approved) THE VICE-PRESIDENT: 1. After a trial in the Crown Court at Kingston upon Hull before His Honour Judge Thackray KC and a jury, Darren Feve (“the offender”) was convicted of doing an act tending and intended to pervert the course of public justice. 2. On 8 January 2024 he was sentenced to 12 months' imprisonment, suspended for 12 months, with a requirement of 200 hours' unpaid work. His Majesty's Solicitor General believes that sentence to be unduly lenient. Application is accordingly made, pursuant to s.36 Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed. 3. A brief summary of the facts is sufficient for present purposes. The offender's stepson, Kian Feve, and another young man, Robert Wattam, were supplying class A drugs in the Grimsby area. Around midnight on 19/20 March 2023 they were involved in an incident in Grimsby in which one of their customers, Jack Howes, was stabbed to death by Kian Feve. In the early hours of the morning of 20 March, Kian Feve and Wattam travelled by taxi to the offender's home in Scunthorpe. Kian Feve went into the house for a few minutes to change his clothes. 4. On 21 March, Kian Feve exchanged text messages with the offender in which Kian Feve was asking where his passport was. 5. On the afternoon of 23 March, police went to the offender's home in search of Kian Feve. He was not there. That evening, the offender spoke to investigating officers and made a formal witness statement. He had not been told what they were investigating, but he said that he assumed it must be something serious: he had been made aware by neighbours that armed officers were searching his home. He stated that on the evening of 19 March he had been at home. He said that Kian Feve came to the house at around about 8 pm, went upstairs to play video games with his younger brother and was still there when the offender fell asleep around 9 to 10 pm. In fact Kian Feve was in Grimsby throughout that evening. 6. The offender also explained in his statement that Kian Feve had started dealing drugs when aged 17. The offender would not tolerate such behaviour and he had required Kian Feve to leave the family home once he attained the age of 18. He told the officers that he did not know where Kian Feve was, but would try to locate him and would bring him to a police station by midnight. He did so. 7. The particulars of the indictment against the offender alleged that on 23 March he did an act which had a tendency to pervert the course of public justice in that he told the police that Kian Feve was at home during the evening of 19 March, knowing that that was not the case. 8. The offender's case at trial was that he had given a truthful account to the police, and if he had made any error in that account it was only because he was confusing one date with another. He relied on evidence as to his diabetic condition as a possible cause of confusion. 9. The offender was convicted, as we have said. Kian Feve was convicted of murder, Wattam of manslaughter. 10. The offender (now aged 56) had no previous convictions. He had always treated his stepson as his own son. He also had other children. Following the breakdown of his marriage, he had for many years cared for them as a single parent whilst also working. At the time of sentencing he was living with a daughter aged 19, and a son aged 17, in rented accommodation which the family had occupied for several years and which he feared they would lose if he was imprisoned. 11. At the sentencing hearing the judge was assisted by a pre-sentence report. He considered the Sentencing Council's definitive guideline for offences of perverting the course of justice (“the Perverting guideline"). He found that the offence was one of category A high culpability, because the underlying offence of murder could not be more serious, but category 3 harm because in the event it had only had a limited impact on the administration of justice. The guideline's starting point was therefore 1 year's custody with a range of 9 months to 2 years. The judge identified as mitigation the fact that the offender was a hard-working family man who could not have done more to dissuade Kian Feve from the disastrous decision he had taken in adopting a life of crime. 12. The judge stated his conclusion as follows in his sentencing remarks: "... for the offence of perverting the course of public justice, the offence is so serious that only a custodial sentence can be justified. Taking into account all of the aggravating and mitigating factors, the least sentence that could be justified is one of 12 months. In accordance with the Custodial and Community Sentence Guidelines, I have to consider whether that sentence can be suspended. I am satisfied that you can be rehabilitated in the community and your risk can be managed in the community. An immediate custodial sentence would have a devastating effect upon you and your family. I am able to achieve appropriate punishment within the community, and so the sentence will be suspended for a period of 12 months. There will be 200 hours' unpaid work." 13. For the Solicitor General, Mr Little KC submits that the sentence was unduly lenient because appropriate punishment in this case could only be achieved by immediate imprisonment, and the judge was therefore wrong to suspend the sentence. He suggests that the sentence could arguably have been longer than 12 months, but he does not submit that this court should increase its length. 14. Mr Little points to s57(2)(b) of the Sentencing Code, which states as one of the purposes of sentencing “the reduction of crime (including its reduction by deterrence)”. He submits that it is clear from long-established case law that the offence of perverting the course of justice is so serious that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances. He points to statements to that effect in, for example, Attorney-General's Reference No 35 of 2009 (R v Binstead) [2009] EWCA Crim 1375 and Attorney-General's Reference (R v Graham) [2020] EWCA Crim 1693. He submits that the Perverting guideline, which came into effect on 1 October 2023, was not intended to change the existing law and did not alter that established principle. In the present case, he submits, the judge identified no exceptional circumstances which could justify suspension of the sentence, and there were none. 15. Mr Little goes on to refer to the Sentencing Council's Imposition guideline in relation to the suspending of a custodial sentence. The judge in his sentencing remarks referred to the three factors identified in that guideline as indicating that suspension may be appropriate: realistic prospect of rehabilitation, strong personal mitigation, and immediate custody would result in significant harmful impact upon others. Mr Little points out that one of the factors pointing away from suspension is that appropriate punishment can only be achieved by immediate custody. He submits that in the context of cases of perverting the course of justice, that factor must be looked at through the prism of the case law on which he relies and should in general, he submits, be determinative. 16. For the offender, Mr de la Poer KC submits that the guideline supersedes the approach set out in earlier case law, and that a sentence for an offence of this nature may be suspended even without identifying exceptional circumstances. He submits that there was therefore no error of principle in the approach taken by the judge and the sentence was not unduly lenient. 17. In the alternative, Mr de la Poer submits that if exceptional circumstances be required, they were present in this case. He points to the following matters: the offender had done his best to turn Kian Feve away from drug dealing; there was no evidence that the offender knew on 23 March that the police were investigating a murder; he had made good his assurance that he would deliver Kian Feve to the police within a short time; his false statement had no material impact on the investigation; and immediate custody would have had a devastating impact on him and his family. In those circumstances, it is submitted, a suspended sentence was within the range properly open to the judge. 18. As a further alternative, Mr de la Poer points to the reports helpfully prepared for this court which show that the offender has been carrying out his unpaid work and complying with the other requirements of his suspended sentence order, and that his health has deteriorated since sentence. We understand that the offender has already completed more than one-third of the hours of unpaid work he has to perform. It is submitted that even if the sentence is found to have been unduly lenient, the court should exercise its discretion not to increase it. 19. We are grateful to both counsel for their very helpful written and oral submissions. Having reflected on those submissions our conclusions are as follows. 20. In R v Abdulwahab [2018] EWCA Crim 1399 at [14] this court said: "... conduct which tends and is intended to pervert the course of justice strikes at the heart of the administration of justice and almost invariably calls for a custodial sentence. Deterrence is an important aim of sentencing in such cases, although, as was pointed out in Radcliffe , the necessary deterrence may sometimes be achieved by the imposition of an immediate custodial sentence without necessarily requiring a sentence of great length." The court went on to say, at [20]: "The Sentencing Council's Imposition Guideline specifically indicates that a factor indicating that it would not be appropriate to suspend a prison sentence is where appropriate punishment can only be achieved by immediate custody. That is so in this case. and will be so in most cases of attempting to pervert the course of public justice." That decision of the court was cited in Attorney-General's Reference (R v Graham ), to which we have already referred. At [21] this court said: "Overall the general trend of the authorities is that in cases of perverting the course of justice an immediate custodial sentence is almost invariably to be imposed. Although the language varies somewhat from case to case, that is the gist of all the authorities. Accordingly, there needs to be a high degree of exceptionality if an immediate custodial sentence is not to be imposed for such offending." Those two cases, which predate the Perverting guideline, reflect the long-established principles that doing acts tending and intended to pervert the course of justice is by its nature always a very serious offence, and that the inherent seriousness of such conduct almost always requires an immediate custodial sentence. References to "exceptional circumstances", and cognate terms, are a convenient shorthand; but in our view they simply emphasise that there will be few cases in which the normal consequence of immediate custody can properly be avoided, and that very compelling reasons will be needed if immediate custody is to be avoided. We do not think it helpful to treat such references as imposing a separate legal test of exceptionality. 21. By s.59 of the Sentencing Code, every court must in sentencing follow any relevant sentencing guidelines, unless satisfied that it will be contrary to the interests of justice to do so in all the circumstances of a particular case. It follows that in cases of this nature sentencers must now focus on the Perverting guideline. 22. The Perverting guideline requires the sentencer first to categorise an offence by reference to culpability and harm factors. One of the culpability factors is the seriousness of the underlying offence: the more serious that offence, the higher the starting point for the perverting offence. The sentencing grid sets out the starting point and category ranges for nine separate categories. In each instance the starting point is a custodial term. In the usual way, the starting point may be adjusted upwards or downwards on consideration of the balance of aggravating and mitigating factors; but it is only in category C3 (cases of lower culpability and limited harm) that the bottom end of the range encompasses a community order. It follows that a custodial sentence will be inevitable in the great majority of cases. The guideline thus reflects, and does not alter, the established principles as to the inherent seriousness, and usual consequences, of such offences. 23. Must the custodial sentence be of immediate effect? If the appropriate sentence exceeds 2 years, it can only be immediate. Where, however, the application of the Perverting guideline leads to a custodial sentence of 2 years or less, the sentencer is then required by the Imposition guideline to consider, amongst other things, whether the sentence can be suspended. As we have noted, the Imposition guideline requires the sentencer to weigh listed factors which militate in favour of or against suspension. The weight to be given to individual factors will of course vary from case to case, and on the facts of a particular case one factor may be determinative of the final decision. In the great majority of cases of perverting the course of justice, the most important factor will be one of those which indicate that it would not be appropriate to suspend: namely, that appropriate punishment can only be achieved by immediate custody. That is so because, consistently with the long-established principles we have mentioned, and giving substantial weight to the need to deter others, the inherent seriousness of such offences usually does require immediate custody, and this factor will accordingly outweigh all others. It is important to emphasise that that is the usual position even when – as will not infrequently be the case – the offender has a realistic prospect of rehabilitation, has strong personal mitigation, and immediate custody will result in a significant harmful impact upon others. 24. It follows that application of the relevant guidelines leads to the same position as obtained before the Perverting guideline came into effect: as it was expressed at [26] of Attorney-General's Reference (R v Graham ): "… almost invariably an immediate custodial sentence should and will be imposed in cases of perverting the course of justice." 25. Returning to the present case, the judge was faced with a difficult sentencing decision. There was much to be said in the offender's favour: his crime had not greatly impeded the administration of justice, he had arranged for Kian Feve to go to the police, he had substantial personal mitigation, and others would suffer if he went to prison. But on the jury's verdict, he chose to tell a deliberate lie to the police investigating a crime which he knew must be serious, and which was in fact a crime of murder. We would add that he told a lie which brought his younger son into the false alibi which was put forward. He did not have the mitigation which would have been available to him if he had pleaded guilty. In our judgement, and with all respect to the judge, the offence was so serious that appropriate punishment could only be achieved by immediate imprisonment. A suspended sentence was not within the range properly open to the judge and was unduly lenient. We therefore grant leave to refer. 26. The question then arises of whether this court should exercise its discretion not to increase the sentence. We have given this anxious consideration. We bear in mind the offender's compliance to date with the suspended sentence order, including his diligent performance of the unpaid work requirement, and his deteriorating health. We also bear in mind the likely housing and other long-term consequences for him and his children of our now imposing immediate imprisonment. We conclude that we can properly exercise our discretion in the offender's favour. 27. For those reasons, whilst we grant leave to refer and have found the sentence to be unduly lenient, we do not increase it. It remains, as before, a sentence of 12 months' imprisonment suspended for 12 months with the unpaid work requirement. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Kingston upon Hull"],"ConvictPleaDate":[""],"ConvictOffence":["Doing an act tending and intended to pervert the course of public justice"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Kingston upon Hull"],"Sentence":["12 months' imprisonment suspended for 12 months with a requirement of 200 hours' unpaid work"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[56],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Witness statement","Text messages"],"DefEvidTypeTrial":["Offender denies offence","Medical evidence (diabetic condition)"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Deliberate lie to police investigating a serious crime","Brought younger son into false alibi"],"MitFactSent":["No previous convictions","Hard-working family man","Did his best to dissuade stepson from crime","Arranged for stepson to go to police","Substantial personal mitigation","Others would suffer if imprisoned"],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Appropriate punishment could only be achieved by immediate imprisonment; judge was wrong to suspend the sentence"],"SentGuideWhich":["Sentencing Council's definitive guideline for offences of perverting the course of justice","Sentencing Council's Imposition guideline","s.36 Criminal Justice Act 1988","s57(2)(b) of the Sentencing Code"],"AppealOutcome":["Allowed but sentence not increased"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Appropriate punishment could only be achieved by immediate imprisonment; a suspended sentence was not within the range properly open to the judge and was unduly lenient"],"ReasonDismiss":["Offender's compliance with suspended sentence order, deteriorating health, and likely housing and other long-term consequences for him and his children justified not increasing the sentence"]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Although this judgment was handed down some time ago, there were reporting restrictions in place so as to avoid any prejudice to any retrial. There was a retrial in the case of R v Provan , which led to a conviction. Accordingly, the reporting restrictions have now been lifted. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202100993/B5 Neutral Citation Number: [2022] EWCA Crim 248 Royal Courts of Justice Strand London WC2A 2LL Tuesday 22 February 2022 LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE GOOSE REGINA V ADAM PROVAN REPORTING RESTRICTIONS APPLY: s.4(2) of the Contempt of Court Act 1981 postponing publication of any report of these proceedings until the conclusion of the re-trial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings. Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) MS J SMART QC appeared on behalf of the Appellant. MR A METZER QC appeared on behalf of the Crown. J U D G M E N T LORD JUSTICE SINGH: Introduction 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 29 November 2018 in the Crown Court at Wood Green, the applicant (then aged 39) was convicted by a majority of 10:2 of two counts of rape. This trial was a retrial after the jury at the first trial had been unable to reach verdicts on the same counts earlier in 2018. On 30 November 2018 the applicant was sentenced by HHJ Greenberg QC to 9 years' imprisonment, concurrent on both counts. Other appropriate orders were made. 3. In the present proceedings he applies for an extension of time (832 days) in which to apply for leave to appeal against conviction following a referral to the Full Court by the Registrar. He also seeks leave, pursuant to section 23 of the Criminal Appeal Act 1968 , to introduce fresh evidence regarding the conviction of Darryl White ("DW") for alleged offences against the same complainant, now deemed to have been unsafe by this Court. 4. New counsel, Ms Julia Smart QC, instructed by new solicitors, represents the applicant. We have also had the benefit of submissions from Mr Anthony Metzer QC on behalf of the Crown, who appeared in the court below. The applicant was originally advised in 2018 by trial counsel that there were no grounds of appeal. Fresh evidence regarding the safety of the conviction of DW formed the basis of the applicant's Amended Grounds. When the applicant's family became aware that DW was applying for leave to appeal (in October 2019) fresh counsel and solicitors were contacted. Matters were then delayed by the Covid-19 pandemic but fresh solicitors, it is submitted, acted expeditiously and an application was made as soon as possible thereafter in April 2021. Factual Background 5. In 2016 the complainant ("C") went to the police to report unlawful sexual activity perpetrated against her from the age of 14. She alleged that she had been in a sexual relationship for over 2 years on-and-off with DW. He was the son of her father's partner (who was in his 20s at the time) and eventually became her stepbrother when their parents married. The police conducted an ABE interview. During that interview regarding DW, C made disclosures regarding an incident with this applicant when she was aged 16. The police conducted a separate ABE interview with her to obtain further details of the allegations against the applicant. 6. In the summer of 2010 the applicant (a serving police officer at the time) and C were introduced through a mutual acquaintance. They exchanged text messages and eventually agreed to go on a date. The prosecution case was that the applicant knew that C was much younger than him. He did not take C on a date as planned but took her to two outdoor areas where he raped her vaginally and orally. C said that she had told the applicant that she was 16 and that he had initially lied about his age, telling her that he was 22 when he was in fact 31. 7. The applicant went to C's home address in order to meet her father so he could give permission for them to go out. It transpired that the applicant already knew C's father as he was a close friend or colleague of the applicant's father. C's father had been reassured that he was the son of a good friend, he was a police officer and so the applicant and C left together to go on their date. However, rather than take C to the cinema as planned, C alleged that the applicant drove her first to a wooded area. They walked into the woods and the applicant started aggressively kissing her neck and asking for sex. She told him that she did not want to have sex but he would not stop. He pulled his own trousers down and put on a condom. C froze in fear. He pushed her against a tree, forcibly pulled down her trousers and penetrated her vagina until he ejaculated (count 1). The applicant then took her to a McDonald's where he bought them both milkshakes. He researched a film plot on his phone and told C to tell her father that that was what they had seen. As they had not been out long enough for a film they drove to a park and walked in a children's play area. They sat on a bench and the applicant asked C if she wanted to "give him head". She refused but he again insisted. He took his penis out of his trousers and forced her head down, putting his penis in her mouth. He forced her to move her head until he ejaculated again (count 2). 8. After the two rapes the applicant took C home. She was not able to tell anyone what had happened immediately. She eventually told her stepmother in 2011 but it was not reported to the police at that time. She also told her stepbrother and some years later she told her now fiancée. 9. In June 2016 the applicant was arrested and interviewed. He answered questions and accepted that he knew C and her father. He agreed that he had gone to her home with the intention of taking her on a date but became uncomfortable with the idea when he realised that he knew her father and saw how young she looked. So as not to be impolite he took her for a walk but he denied that anything of a sexual nature had occurred. He denied rape. 10. At trial, in order to prove the case, the prosecution relied on the following evidence. First, the evidence of the complainant. Secondly, the evidence to C's father about the day the applicant came to their house. Thirdly, the recent complaint evidence of her stepmother and stepbrother, both of whom C had told about the rapes in 2011. Fourthly, further recent complaint evidence from a friend of C who was at college at the relevant time with her. Fifthly, the evidence of her dance teacher at the time regarding a piece of work that C told her had stirred up difficult memories of an older man in a park and evidence from her now fiancée to whom she disclosed the rapes in 2013. Finally, there were Agreed Facts, in particular, Agreed Facts 5 and 6 which concerned DW. Agreed Fact 5 said that: "In May 2018, [DW] was tried at Snaresbrook Crown Court on three counts on sexual activity with a child. The counts on the indictment covered the period from 14th August 2008 to 16th April 2010 when [C] was 14 years old and 15 years old. The counts alleged that sexual intercourse had taken place on at least 18 occasions when [DW] did not reasonably believe that [C] was aged 16 years or over. Consent or lack of consent is not relevant to the offence of sexual activity with a child as in law a child under 16 years cannot give consent to sexual intercourse. [DW] was found guilty of all three counts on the indictment and sentenced to a prison sentence." 11. Agreed Fact 6 said that: "[C] was called as a Prosecution witness in the Darryl White trial. [JT] was called as a Defence witness. [ST] was not called as a witness during the trial." 12. The applicant gave evidence on his own behalf at the trial. In August 2010 he would have been 31 years old. He lived in Romford and did not have a regular girlfriend. He had been in the Police since 2003. He did own a car but as he was a police officer he had free access to public transport. He agreed that there must have been some messaging with C prior to their meeting up but he could not remember its content. He denied however that they had exchanged photo messages. He said that he had taken a bus to her house as it was only a short journey and he would have been intending to take her out in Romford. When C answered the door his first reaction was that she was very young in appearance. He was shown through the house into the garden to meet her father. When he saw her father the applicant was surprised, realising that he knew him, although he had not seen him for more than 10 years. The applicant could not remember what had been planned save that he would meet C at her home. When he saw how young she was and realised that she was the daughter of a family friend, he felt awkward and did not feel comfortable dating her. Instead, he said he walked her to some nearby shops where they each bought a drink and then walked back towards her home. They parted ways at a junction near her home because he was headed back to the bus stop and she could find her own way back from there. He said they were together for no more than half-an-hour. 13. In cross-examination the applicant denied telling C that he was 22, or that she had told him she was 16. The applicant stated that he had learned of the case against DW since his interview and that C had wanted to use the applicant to make DW jealous. The applicant stated that he could not comment on the DW case and had no reason to suggest that she had not told the truth in that case but, as we shall see later in this judgment, that she was more than capable of telling lies. The defence also relied on character and other evidence from other witnesses. 14. At trial the issue for the jury was: did the applicant rape C vaginally and orally in the late summer of 2010; essentially was C telling the truth? 15. There are two further aspects of the evidence at the trial to which we should now refer. The first is the evidence-in-chief of C in the transcript for 22 November 2018 (page 37D-E). The question was asked by prosecution counsel: "Q: Do you think, looking back on it, that the way you reacted to the sexual assaults by Adam upon the other rapes, was affected by what you were going through with Daryl. A: Yes. Q: I think I am trying to ask you why you were so passive. Do you think that was connected? A: Yes." 16. The second passage to which we draw attention at this stage is during the cross-examination of the applicant in the transcript for 26 November 2018 (page 62A-F). The question was put by prosecution counsel: "... You’re not suggesting that she’s doing anything other than telling the truth in relation to Daryl White, are you? A. I can’t comment on that. Q. Well she gave evidence, the jury convicted, yes? A. Well I can’t comment on that. I wasn’t present. Q. You take no issue, and quite properly your barrister never suggested to her, quite rightly that she was doing anything other than telling the truth about Daryl White. So you agree with that? A. I can’t say either way, can I? Q. Well you can in fairness, Mr Provan, you’re not suggesting that in relation to Daryl White she did anything other than tell the truth? Do you agree? A. Mr Metzer, what I do know is this individual is more than capable of telling lies and she’s more than capable of seeing them all the way through to a court case. That is what I do know. Q. I see. So are you suggesting in fact, contrary to what I had understood the position to be that she may have lied about Daryl White as well? A. I can’t comment because I don’t know what happened between those two, but I do know what she’s capable of. That’s what I’m saying. Q. Help me for the last time before we move on? A. Okay. Q. Do you have any reason or any suggestion before this court to suggest that her evidence in relation to Daryl White was anything other than the complete truth? A. No." Judgment of the Court of Appeal (Criminal Division) in the case of "DW". 17. The Court on that occasion comprised Singh LJ, Holgate J and Julian Knowles J. The Court gave judgment on 22 September 2021. The factual background can be seen from paragraphs 3-5 in particular. In that case, on 1 June 2018 in the Crown Court at Snaresbrook, the appellant was convicted of three offences of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 . The case concerned allegations of sexual offending against the same complainant C who was born in April 1994. In two ABE interviews dated 19 May 2016 the complainant stated that in August 2008 she lived with her father JT and recalled that the appellant was on leave from the Army and came home to visit his mother. He stayed in the spare room in the property. The complainant said that on 14 August 2008 she went to a Nando's restaurant in Romford to celebrate a friend's birthday. The appellant subsequently picked her up from the restaurant and took her home. They returned to their respective bedrooms but soon started sending text messages to each other. She said that the appellant told her that she was beautiful, asked her questions about her sex life and asked whether she was using any contraception. Once he was aware that the other family members had gone to bed the complainant said that the appellant sent a further message inviting her to his bedroom. She went to that bedroom, got into bed with him and cuddled him. The appellant subsequently took off her clothes, performed oral sex on her and then had vaginal sexual intercourse with her until he ejaculated. At the time the complainant was 14 years old and the appellant was 25. 18. As appears from paragraph 9 of the judgment, it was common ground in that case that the appellant did have a consensual relationship with the complainant but he insisted that that had only begun after she had reached the age of 16 in around May 2010. 19. In the light of fresh evidence which came before this Court in that appeal, the Court concluded that the convictions of DW were unsafe and they were quashed. The first ground of appeal which was upheld by the Court (see paragraph 39 of the judgment) was that there had been a deficiency in the good character direction given by the trial judge. This Court said that by itself that deficiency might not have been sufficient to render the convictions unsafe but, when taken in combination with the fresh evidence, it did lead the Court to conclude that the convictions were unsafe. The Court said: "In particular, we must bear in mind that at the heart of this trial was the issue of credibility. Furthermore, this was a relatively unusual case for a historical sex offence case because in many such cases, for understandable reasons, the persons concerned are often unable to be precise about particular dates or periods in the past, but nevertheless give clear evidence that the offending did take place." 20. At paragraph 40 this Court continued: "In this case ... there was a real issue of alibi, namely where was the appellant on 14 August 2008. That date was important because the complainant herself was adamant that that had been the date of the first sexual activity because it was the day of her friend's birthday and they had gone to Nando's to celebrate. In this case therefore, we have reached the conclusion that the photographic evidence, in particular the photograph timed at 14.18 hours on 14 August 2008 is of crucial importance." 21. Suffice it to say for present purposes that there was photographic and other evidence which demonstrated that there was real substance to the alibi defence of the appellant DW. Grounds of Appeal 22. New counsel instructed in the present case lodged Perfected Grounds of Appeal in October 2021 further to the judgment of this Court in DW's appeal. No criticism is or can properly be made of the trial judge's summing-up or her directions of law. The first ground is that the fresh evidence in DW's case and subsequent quashing of his convictions undermines C's credibility. In particular it is submitted that the photographic evidence which gave DW an alibi is supportive of the submission that C fabricated on count 1 against DW. This should be coupled with the fresh evidence that DW did not have access to a car at the material time. This new evidence would have an impact, it is submitted, upon C's propensity to fabricate sexual allegations as against this applicant too. 23. Ground 2 is that the quashing of DW's convictions fundamentally affects the safety of this applicant's convictions. At the applicant's trial, it is submitted, there was considerable reliance placed upon the circumstances of C's allegations against DW : his conviction, the prison sentence and the trial (see Agreed Fact 5). Attention is also drawn to the references to DW in the summing-up by the judge at page 46H and following. 24. It is submitted that the jury must have taken into account the agreed evidence to the effect that C was a victim of sexual offences at the time when she met this applicant, that she had given a truthful account at DW's trial and that, since the allegations against the applicant had emerged within her account against DW, those allegations were also likely to be true. Now that DW's convictions have been quashed, substantially because of fresh evidence undermining the credibility of C's account, it is submitted that this applicant's convictions are also rendered unsafe. 25. Ground 3 is that in any event the evidence of DW's conviction, trial and sentence were inadmissible in this applicant's case. 26. Ground 4 is expressly conceded not to be a stand-alone ground but is advanced in conjunction with the other grounds to support the submission that these convictions are unsafe. We will return to grounds 3 and 4 in more detail later in this judgment. The Respondent's Submissions 27. On behalf of the respondent it is submitted by Mr Metzer that the case of DW was wholly dissimilar. DW admitted consensual sexual intercourse had taken place and the only issue had been when it had started, in particular: was it before C's 16th birthday? It is submitted that the convictions of DW were quashed first, because the good character direction in that case was deficient but that point has no relevance in the present case. Significantly it is submitted that the Court made no adverse, at least expressly, credibility findings against C, implicitly accepting that she might well have been mistaken about the date of her first sexual intercourse with DW. Next, it is noted that the facts concerning the DW case were admitted with the agreement of the defence as it was consistent with the defence case that C wanted to make DW jealous and win him back by making up the sexual allegations against this applicant. Furthermore, the applicant gave evidence at his trial and when cross-examined said that C was more than capable of telling lies and on seeing it through to a court case. Accordingly, the suggestion that DW was not in fact guilty was squarely put before the jury by this applicant himself. The jury had the opportunity to assess that evidence and did not believe him. 28. It is submitted that the two questions put to C in chief have no relevance to the safety of the conviction as the answers were equally explicable about her feelings of having a crush on DW as they were of having sexual intercourse with him. It is therefore, submits Mr Metzer, a non sequitur and does not follow that the jury would have considered that C was a victim of sexual offences, especially given the consensual nature of their admitted subsequent relationship or that this played any significant part in their deliberations in a case where there was a very strong evidential case against this applicant. Moreover, the suggestion that the applicant had to accept that C was a truthful witness in DW's case, designed artificially to bolster C's credibility, is simply not right. As the applicant himself maintained this was a fact clearly beyond his knowledge. 29. In relation to ground 3, Mr Metzer submits that the facts relating to DW's conviction, trial and sentence were properly admitted at the present trial and indeed had been subject of agreement by the defence. 30. In relation to ground 4, he submits that this did not feature in any significant way at the trial. It is not even suggested on behalf of the applicant that this evidence was inadmissible as such. Application for Extension of Time 31. We grant the extension of time required. Trial counsel advised at the time that there were no realistic grounds of appeal against conviction. The amended grounds could only be formulated once it was clear that there was going to be an appeal in the case of DW. Although there was some further delay after a new legal team was instructed, we accept that they proceeded with reasonable expedition in view of the continuing difficulties caused by the Covid-19 pandemic. Application to Adduce Fresh Evidence 32. For reasons that will become apparent when we address the merits of grounds 1 and 2, we grant the application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 . So far as material that provides: "(1) For the purposes of an appeal, or an application for leave to appeal, under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice— ... (c)receive any evidence which was not adduced in the proceedings from which the appeal lies... (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to— (a)whether the evidence appears to the Court to be capable of belief; (b)whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c)whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d)whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings... " 33. The essence of grounds 1 and 2 depends upon the fact that the convictions of DW were quashed by this Court in September 2021. The fresh evidence all relates to that decision and the evidence which led to it. This evidence was not reasonably available previously. Grounds 3 and 4 34. At paragraph 39 of the Amended Grounds of Appeal, ground 3 is formulated as follows: "It is submitted that what was admissible in the Applicant’s case was that DW accepted he had sex twice with [C] when she had turned 16 and in fact the Defence would be entitled to rely upon it to support the evidence given by [ST] for the Crown that [C] said she went on the date to make DW jealous. However, it is submitted that there was no basis for DW’s conviction, fact of prison sentence and evidence of witnesses at trial to be admitted at then Applicant’s trial. It is further submitted that Mr Metzer QC’s cross examination of the Applicant on the lines that he the Applicant must accept that [C] was a truthful witness in DW’s case (a fact which was clearly beyond the Applicant’s knowledge) was designed artificially to bolster [C’s] credibility and was thereby inadmissible." 35. It is submitted that this ground is further strengthened by the fact that DW's conviction has now been quashed. 36. At the oral hearing before us Ms Smart accepted that on reflection ground 3 was not a freestanding ground in its own right but should rather have been regarded as a sub-ground which supports grounds 1 and 2. We take the view that she was right to make that concession. 37. So far as ground 3 is concerned, taken on its own merits, we would refuse leave to appeal on that ground. The applicant was represented at all material times. The Agreed Facts relating to DW's conviction, trial and sentence were all placed before the jury with the agreement of this applicant's then legal representatives. As Ms Smart fairly acknowledged, the trial judge cannot be criticised for having allowed this evidence to go before the jury. No doubt there were tactical considerations which played their part. This evidence could be regarded as helping both sides of the case at the trial in one way or the other. In circumstances which prevailed at the time, we consider that this was a wholly unsurprising course of events. 38. At paragraph 40 of the Amended Grounds, ground 4 is formulated as follows: "It is submitted that the fact that the Applicant embarked upon a relationship with a 19 year old when he was in his thirties was not capable of rebutting his assertion in evidence that [C] (who was 16) was too young for him. It was unfortunate that having allowed this line of questioning it assumed some further importance when it was used to try and further undermine the Applicant that she was not a police officer at the time. This would not be a stand-alone ground but it is submitted when viewed in conjunction with the above it lends support to the lack of safety of the Applicant’s conviction." 39. As we have mentioned, it is conceded that ground 4 is not a stand-alone ground. This has nothing to do with the subsequent events in DW's appeal. In any event, in our judgment, this ground is not reasonably arguable. While other judges might have taken a different view about whether to admit the evidence about the applicant's relationship with another person on the basis that she was aged 19, this was a matter which fell within the discretion afforded to a trial judge. In our judgment, there is no arguable basis on which this Court could properly interfere with the exercise of that discretion. Accordingly, we refuse leave to appeal against conviction on grounds 3 and 4. Grounds 1 and 2 40. Grounds 1 and 2 can be taken together. In substance, they raise the main point in this appeal. Given that the case for the prosecution rested to a large extent on the credibility of the complainant, does the fact that DW's convictions have been quashed undermine the safety of this applicant's convictions as well? In our judgment, grounds 1 and 2 are plainly arguable. We grant leave on grounds 1 and 2 and proceed to consider the appeal on those grounds. 41. In our judgment, the fact that DW's convictions have been quashed does not necessarily entail the conclusion that this applicant is not guilty of the offences alleged against him. It does not necessarily lead to the conclusion that the complainant was not to be believed in the present case. The fact that DW did not commit the offences alleged against him does not inevitably mean that this applicant did not commit the separate and different offences alleged against him. The fact that the complainant was the same in both cases does not logically require that conclusion. 42. The fact that DW's convictions have been quashed does however have a material impact on the safety of these convictions. If the timetable had been different, so that by the time of the trial in the present case it had been known that DW's appeal had been allowed and his convictions quashed, that would have formed a very significant difference in the backdrop against which the allegations in the present case had to be judged. What was put into the Agreed Facts would obviously have been different. Furthermore, the way in which the complainant was cross-examined would have been different. It could have been put to her that she was not to be believed. The way in which this applicant was cross-examined would also have been different. To take one example: when this applicant was cross-examined and he suggested that the complainant had lied in the trial of DW, that had to be assessed by the jury against the backdrop that DW had been convicted and was therefore guilty, whatever this applicant might suggest. Now the backdrop would be very different; the jury would have to assess this applicant's suggestion against the backdrop that DW was in fact not guilty because that is the effect of his convictions being quashed. We do not know what the outcome would have been in such circumstances but it is not the role of this Court to speculate. What we can say is that it could have had a material impact on the jury's assessment of the evidence before them. 43. Before this Court Mr Metzer has submitted that nevertheless the safety of these convictions is not in doubt because there was such strong evidence otherwise and independent of the complainant as to lead to convictions in any event. Having been given the opportunity to consider the matter further, he made in particular these submissions. Mr Metzer pointed to the issue about the applicant's age at his trial: had he said that he was aged only 22 when in fact he was 31? C herself was not the only witness to mention this point at the trial. The difficulty however, in our judgment, is that she was ultimately the source of that evidence. This was not, in truth, independent evidence. It is true that her father JT was able to do the mathematical calculations for himself and work out that he must have been much older than 22 because of the time that he had known him. But, as we have said, the suggestion that the applicant had asserted that he was in fact only 22 was not something that emerged from JT himself. The ultimate source of that information was the complainant. Similarly, in relation to whether the applicant had sought to give a false surname or not. Certainly so far as JT is concerned, because he recognised the applicant, so by that time at least he would not have given a false surname. 44. The next witness to which Mr Metzer has drawn our attention is the complainant's stepmother who to some extent gave evidence, it is submitted, contrary to her own interests because of her relationship with DW. She was one of the witnesses who gave evidence about earlier complaint by the complainant back in 2011. The difficulty with this submission, in our judgment, is that, again, ultimately this depends upon information whose source was the complainant and is truly not independent of her evidence. 45. The third piece of evidence to which Mr Metzer drew our attention was from the dance teacher and in particular about a piece of artwork which made the complainant become very tearful and emotional which depicted a swing in a park. Again, we have come to the judgment that this cannot be said to be truly independent evidence. In similar vein, Mr Metzer drew attention to the evidence of the complainant's boyfriend who said that she would become tearful when she reflected on the incident. Again with respect, that is not truly independent evidence of the complainant herself. 46. Finally, we should mention two other pieces of evidence. One relates to whether the applicant had arrived at the family's home by car. JT gave evidence that he did see the headlights of a car but he did not give evidence before the jury that he had seen a car itself - he had simply made an assumption that the applicant had use of a car on that occasion. 47. Lastly, our attention was drawn to the issue at the trial about how long the complainant and the applicant had been away from the house. Was it only about half-an-hour, as he asserted? The evidence of JT was that it was dusk by the time that the complainant got back home; it had been daylight earlier. But with respect, the applicant on his evidence had said that he had left the complainant at the end of her road. It is not clear on the evidence that we have seen what she could have been doing or was not doing in the intervening period if the applicant's assertion was indeed correct. Certainly, when taken together and individually, these items of evidence do not lead us to conclude that there was a strong evidential case against this applicant independent of the complainant. 48. The reality of this case is best summarised by reference to two aspects of the trial process. The first is the written directions of law which the trial judge gave to the jury. At direction No 15 she said, so far as material: "In this case there is no evidence independent of [C’s] evidence which corroborates her account of being raped..." 49. Quite properly the trial judge drew this to the attention of the jury because she was pointing out that, as a matter of law, there does not have to be independent evidence by way of corroboration. Those days are long gone. But the nature of the evidence before the jury is aptly summarised in that written direction. 50. Finally, we would draw attention to the way in which the issue at trial was summarised for the jury in the closing speech for the prosecution itself. In the transcript for 27 November 2018 (page 18E-F): "... members of the jury, this is a straight issue for you. One of [C] or Adam Provan, the defendant, is lying. There is no room for anything other than the fact that one of them is lying to you and the other one is telling the truth. That is the stark reality, as Her Honour will make clear in due course..." 51. In our judgment, it is clear that the central issue in this trial was the credibility of the complainant. For reasons we have explained earlier, we have come to the conclusion that the matters relied upon in grounds 1 and 2 do have a material impact on the safety of the convictions given that the central issue was one of credibility. Accordingly, this appeal must be allowed. Conclusions 52. For the reasons we have given, we have reached the following conclusions: 1. The extension of time required is granted. 2. The application to adduce fresh evidence is granted. 3. Leave to appeal against conviction is refused on grounds 3 and 4 but granted on grounds 1 and 2. 4. The appeal against conviction is allowed on grounds 1 and 2 and these convictions are quashed. 53. MR METZER: Thank you my Lord. 54. The Crown's position is that, and remains, that there should therefore be a retrial in relation to these matters. We recognise of course the appellant has served a considerable period of time but has not served enough time yet to have reached the stage where he is eligible for parole or indeed to be released on licence. 55. They are very serious matters. Of course for the purposes of this appeal the Crown understands very much the reasons the Court has come to it and concede the question of credibility is going to be at the forefront of any future jury mind. Of course no doubt the defence will seek to deploy what happened in relation to Mr White and the conviction that was quashed in that regard. 56. Nonetheless, in our respectful submission - and we have taken instructions in advance - the complainant would wish there to be a retrial if the Court were so minded and there is, as I tried to say it, conclusion (my words). There is a level of disquiet particularly given the wider nature - I do not think it is necessary for present purposes to say it too widely - but this did involve a then serving police officer and a very young alleged victim/complainant and of course, as the Court knows, the trial was some considerable time after the alleged incidents and given the very serious nature of this case and the background to which the Court is fully familiar, the Crown would ask for this matter to be subject to a retrial. 57. MS SMART: My Lord, I would seek to resist that application. As my Lordships know the test is whether it would be in the interests of justice for there to be a retrial. The trial at which this appellant was convicted was itself a retrial, the first jury having failed to reach a verdict. In relation to sentence, this appellant has served more than two-thirds of the sentence that he would serve in custody, namely he has already served 3 years and 3 months of a sentence with a custodial part of four-and-a-half years. His earliest date of release otherwise would have been 30 May 2023. He has already served over two-thirds of the custodial element of his case. 58. LORD JUSTICE SINGH: Thank you. Are there any further questions. Do you want to say anything in reply? 59. MR METZER: Nothing further. 60. LORD JUSTICE SINGH: Very well, we will rise to consider our decision. (Short Adjournment) 61. LORD JUSTICE SINGH: There are a few procedural issues in fact we think it right that we should raise with counsel. First, before I come to the application of a retrial, in relation to a representation order; do you need any order from this Court given what has happened? 62. MS SMART: I do not. Thank you. 63. LORD JUSTICE SINGH: Very good. 64. In relation to the application by the Crown for a retrial, we have come to the conclusion that it would be in the interests of justice to order a retrial. It will be on both of the counts which have been quashed. We direct that a fresh indictment should be served in accordance with section 8(1) and the Criminal Procedure Rules 10.8(2) which requires that the prosecutor must serve a draft indictment on the Crown Court Officer not more than 28 days after this order. We direct that the appellant be re-arraigned on the fresh indictment within 2 months. We direct that the venue for retrial should be determined by the presiding judge for the circuit where the original trial took place which is the South Eastern circuit. 65. We have to consider the question of bail. Have counsel given any thought to that or any bail conditions? 66. MS SMART: My Lord, only that of course this appellant was on bail before throughout all proceedings. 67. LORD JUSTICE SINGH: Was that up to the point of conviction? 68. MS SMART: Up to the point of conviction. I think the sentence then proceeded the following day. I have not checked whether he was remanded overnight. 69. MR JUSTICE GOOSE: Was that unconditional or conditional? 80. MS SMART: I believe it was conditional; and I can check the system. It certainly would have had a non-contact. (Pause) 71. MR JUSTICE GOOSE: He had a reporting condition, did he not? 72. MR METZER: Yes, there was. 73. MR JUSTICE GOOSE: Police station Bury St Edmunds, one of them. 74. MR METZER: I think also from memory - I can check - also a condition of residence as well. 75. MS SMART: There was an address in Suffolk that I have, reporting to Bury St Edmunds, non-contact directly or indirectly with the complainant and a variation whilst the trial was ongoing. 76. MR JUSTICE GOOSE: In the DCS at V7, pages V10 to 11, an order was made conditional, an address at Pickerage Farm Cottages, report to Bury St Edmunds and non-contact, not to enter London Borough of Waltham Forest or Barking and Dagenham. 77. MS SMART: My Lord, yes. I think that was subsequently varied. For example at the last variation I think before trial I think at V24. And the very last in fact was one of 21 November; it must have been just before trial. 78. LORD JUSTICE SINGH: Can I ask you this Mr Metzer, what is the Crown's position on bail as such? 79. MR METZER: We would certainly want there to be conditions put in place suitable and appropriate conditions. I think in light of the overturning of the conviction, it would be difficult for the Crown to say that he should not have bail on principle, on the basis that he remains now obviously essentially a man of good character again, so I do not think I can actively oppose bail in principle but we would be very troubled particularly in relation to the complexities that the Court is aware in relation to the family relationships, that very careful strict conditions not just in relation to the complainant but also the wider family, given the reasons my Lord knows. I do not have formal instructions I have to say and if the Court wants me to get formal instructions on the question of bail otherwise I can do that. Whether I can get effective instructions this afternoon I simply do not know. But I think consistent with my duty to the Court I do not think I can oppose bail in principle subject of course to having formal instructions. 80. LORD JUSTICE SINGH: Yes. I understand. 81. MR JUSTICE FRASER: There was a residential condition. There might be a different residence now depending whose property it was etc because he has been in prison since 2018. 82. MS SMART: I can certainly take instructions from my instructing solicitor who has been in contact with the defendant's mother throughout proceedings and including today, so that would take me no more than 5 minutes to ascertain a suitable address. 83. LORD JUSTICE SINGH: Yes. Would it help if we rise for a few minutes? 84. MS SMART: It would; it will not take very long. 85. LORD JUSTICE SINGH: The alternative is to leave it until tomorrow and ask both parties to take instructions and put to us agreed conditions if possible. If we can make progress this afternoon then we should. 86. MS SMART: I am confident there will be an address for him. 87. LORD JUSTICE SINGH: I am slightly more concerned about the other conditions because if we ordered bail and there are conditions that need to be attached in the public interest which we have not attached then that would not be a good thing. 88. MR METZER: The reality is I think the officer in the case, she has left this section so it will no longer be the same officer in the case. I can only obviously take instructions from the CPS lawyer instructing me to attend today. How much hands-on information she would have, I simply do not know. I certainly will take the opportunity to make a phone call. I think I am going to leave it and rely upon the Court's good sense in relation to the best way to progress. I will certainly try. I could not give a promise. 89. LORD JUSTICE SINGH: In principle would there be any objection to there being the same conditions as there were up to the point of conviction below? 90. MR METZER: I cannot think of a reason why. 91. MS SMART: I do not think so. 92. LORD JUSTICE SINGH: That seems in principle to be the right way. 93. MR JUSTICE FRASER: I agree subject just to you checking the residence. One assumes that residence is perhaps still available but you will need to check that. 94. LORD JUSTICE SINGH: Exactly. That you say could take a few minutes which is good. Obviously if on reflection, if tomorrow or in a few days' time somebody wants to apply to vary the bail conditions, that can be done. It does seem to me at least in principle that what should happen before we all leave today is that bail is granted but on the same conditions as there were below, subject to the address being checked. 95. MR METZER: It is certainly right to say that I have heard nothing to suggest there has been any difficulty since the defendant has been in custody, so I certainly do not say there is anything new which is troubling the Crown. 96. MR JUSTICE GOOSE: If there were to be any change of address or requirement for different police station, I dare say that could be agreed and then submitted for approval, administratively rather than through a hearing? 97. MS SMART: Yes. Indeed. 98. LORD JUSTICE SINGH: We also need to make an order under section 4(2) of the Contempt of Court Act 1981 in relation to reporting restrictions. 99. MR METZER: I would ask for that. 100. LORD JUSTICE SINGH: We make a restriction on reporting until after the conclusion of the retrial, if it does take place. Do I need to say more than that? 101. MR METZER: The only observation that I have is the judgment of course is available, and I wonder if it is of some assistance to anonymise all the names of potential witnesses because it maybe that the complainant is identifiable by reference to other witnesses. 102. LORD JUSTICE SINGH: Yes. Certainly before the judgment is finalised we will do that any way but we can make that clear for the record in these open proceedings. 103. MR METZER: I do not think there is anything else I am asking for. 104. LORD JUSTICE SINGH: Very good. Ms Smart, is there anything else from your point of view? 105. MS SMART: No my Lord. 106. LORD JUSTICE SINGH: May I check with my Lords. (Pause) 107. It sounds as if as long as the same conditions are replicated as they were below, we do not need in fact to come back into Court today. If the address does have to be different from what it was below I think you agree that can be resolved administratively. 108. MS SMART: Yes, I can probably give an address. 109. MR JUSTICE GOOSE: I am sure if Mr Metzer would want to confirm that it was suitable from the prosecution's point of view, but once that is agreed it is likely then that it does not need a Court to resit; it can be submitted to the Court as an agreed variation; the prosecution have accepted that. 110. MR METZER: Of course. 111. MS SMART: I need to take very brief instructions in relation to that address as to whether it is still available. 112. MR METZER: I will wait and take instructions but I cannot anticipate there will be any difficulty. 113. LORD JUSTICE SINGH: If the Associate does need to contact me, obviously I will be in this building for some time. 114. MR METZER: My Lord, can I just establish what date you wanted the fresh indictment to be prepared for? 115. LORD JUSTICE SINGH: The normal order, which is what we have made, is 2 months. Serve a draft indictment on the Crown Court Officer within 28 days and then be re-arraigned within 2 months. 116. MR METZER: Thank you my Lord. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Wood Green"],"ConvictPleaDate":["2018-11-29"],"ConvictOffence":["Rape (2 counts)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":["Conditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Wood Green"],"Sentence":["9 years' imprisonment, concurrent on both counts"],"SentServe":["Concurrent"],"WhatAncillary":["Other appropriate orders"],"OffSex":["All Male"],"OffAgeOffence":[31],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[16],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Complainant testimony","Recent complaint evidence (stepmother, stepbrother, friend, dance teacher, fiancée)","Agreed Facts (re: DW)"],"DefEvidTypeTrial":["Defendant testimony","Character evidence","Other witnesses"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Fresh evidence: quashing of DW's convictions undermines complainant's credibility; reliance on circumstances of C's allegations against DW; evidence of DW's conviction, trial and sentence inadmissible; evidence about applicant's relationship with a 19-year-old not capable of rebutting assertion that C was too young"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Fresh evidence (DW's convictions quashed) has a material impact on the safety of the convictions; central issue was credibility of the complainant; no independent corroborative evidence"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Case No: 201001237 C1 Neutral Citation Number: [2011] EWCA Crim 299 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM KINGSTON CROWN COURT HIS HONOUR JUDGE LEONARD Q.C. T20090945 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/03/2011 Before : LORD JUSTICE AIKENS MR JUSTICE IRWIN and HIS HONOUR JUDGE ROBERTS Q.C. - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - PHILLIP GROUT Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Ms Alison Morgan for the Appellant Mr Guy Ladenburg for the Crown Hearing date: 11 February 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens: 1. On 5 February 2010, following a trial before HHJ Leonard QC and a jury in the Crown Court at Kingston, the appellant, who is now aged 21, was convicted of “intentionally causing or inciting a child under 13 to engage in sexual activity”, contrary to section 8(1) of the Sexual Offences Act 2003 (“the SOA”). The jury acquitted the appellant of a second count under the same section and the judge withdrew from the jury a third count also alleging an offence under the same section but involving a different complainant. The judge sentenced the appellant to a Community Sentence with a requirement that he carry out 40 hours of unpaid work. 2. On 11 February 2011 we heard submissions on Mr Grout’s appeal against conviction. At the end of the hearing we announced that the appeal would be allowed and the conviction quashed. We said we would give our reasons in writing, which we now do in this judgment of the court. The facts which led to the charges 3. The appellant and the complainant, whom we will call H, were both members of a local church group known. At the relevant time, December 2008 – January 2009, the appellant was 18 and at university. H was then 12. The appellant was a helper with the church group which consisted of children between the ages of 12 and 16. The two became friendly and they had one another’s mobile phone numbers and e-mail addresses. During December 2008 to early January 2009 the appellant was living at home during the university vacation. The two sent text and MSN messages to one another. The appellant’s computer had a webcam facility and the complainant was able to use her elder sister’s computer with a similar facility. They would send MSN messages to one another and at the same time could see one another via the webcam. 4. The series of text messaging, MSN chats and webcam communications that led to the exchanges which were the foundation of counts 1 and 2 began around 5 January 2009. It was difficult to reconstruct the text and MSN conversations because the appellant deleted all the texts relating to H from his mobile phone at some stage. Furthermore, on 27 January 2009, the day before the appellant’s arrest, the appellant re-formatted his computer, so that his computer contained no MSN history of any kind before that date. However, an examination of H’s mobile phone showed that although some texts had been deleted, not all of them had been and a schedule of the surviving texts was compiled. H’s MSN account was also examined and a schedule of those MSN texts between the appellant and H during January 2009 was also prepared. Both were put in evidence before the jury. 5. At the trial the complainant’s evidence in chief was based on an ABE interview in which she talked about the MSN messages and the texts between her and the appellant and what they meant. The messages were generally of a jokey character. However, it was the prosecution case that on occasions between 7 - 11 January 2009, the tone of the texts changed significantly. At one stage the appellant asked H to ask him “a more sexual question”. The complainant said that was not right. The appellant then asked her the question: “would you go in a room with me naked” which was the subject of count 2. She said that she was scared of that question and did not answer it. 6. The complainant’s evidence at the trial was that there were then further questions and answers. The first relevant one for the purposes of this appeal is where the appellant asked H to show him her bra. The judge said this about it in his summing up, at page 13 C-E: “ She [said] she got scared and just did it. She pulled the strap out of the top. He said “Nice. Would you take any more off” And she said no. She said in answer to Ms Morgan (counsel for the appellant) that she didn’t think that this was serious and she didn’t think anything was going to happen. To her it just seemed strange and uncomfortable because an adult was asking her to do these things. She said she felt silly replying”. 7. In short, the evidence of H, which was not contested by the appellant, was that H had shown her bra strap by pulling back the corner of the neck of her jumper so that it was visible to the appellant on his computer screen via the webcam link. In relation to this particular exchange the evidence of the appellant was that he did not mean it to be construed in a sexual way. He accepted that it might have been something that H was embarrassed about and that it was very silly and stupid. But he denied he got any sexual gratification from it and he said that it was a joke amongst friends. 8. In his summing up the judge referred to MSNs that indicated that the two had talked about the appellant taking clothes off on the webcam. The judge did not refer in his summing up to any evidence about messages asking H whether she would take clothing off. 9. At some stage on the same day that the exchange about the bra took place, but it is not clear when in the whole sequence of text and MSN messages, there was a further exchange of text messages which were found on H’s mobile phone. One text from the appellant was “what happens to a guy’s thing when he gets excited” and she replied that she did not know and the appellant sent a text back saying “LOL”, meaning “lots of love” or “lots of laughs”. He also wrote “Durex”. In evidence in court H said that she found it weird that an adult should send her this stuff and it made her feel uncomfortable and sick and horrible. She agreed with the suggestion that it was scary for a 19 year old to send her sexual questions when she was only 12 and she was scared of her mum finding out. 10. At the trial H’s sister gave evidence that on 12 January 2010 she had borrowed H’s phone and that she had seen a text message on it which was from the appellant and read: “Do you know what happens to a boy’s willy if he gets excited”. She also said that she saw two other separate messages, which were from the appellant, which read: “What do you call your upper bits and your lower bits” followed by “do you call them your boobs and your fanny”. It was at that point that the sister called to her mother and showed her the text messages. Subsequently the police became involved. 11. The appellant was interviewed on 28 January 2009. On the advice of his solicitor he declined to answer questions. His computer was seized but because it had been re-formatted no relevant information could be retrieved from it. The Indictment and the relevant provisions of the Sexual Offences Act 2003 12. Count 1 of the Indictment stated: “Statement of offence Causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003 . Particulars of offence PHILIP GROUT between the 1 st day of December 2008 and the 14 th day of January 2009 intentionally caused or incited [H] a child under the age of 13, namely 12 years, to engage in sexual activity, namely taking part in a WEBCAM conversation when you asked [H] to show you her bra and asked her if she would take off clothing.” 13. Sections 8(1) to (3) of the Sexual Offences Act 2003 provide: “8. Causing or inciting a child under 13 to engage in sexual activity (1) A person commits an offence if— (a) he intentionally causes or incites another person (B) to engage in an activity, (b) the activity is sexual, and (c) B is under 13. (2) A person guilty of an offence under this section, if the activity caused or incited involved— (a) penetration of B’s anus or vagina, (b) penetration of B’s mouth with a person’s penis, (c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or (d) penetration of a person’s mouth with B’s penis, is liable, on conviction on indictment, to imprisonment for life. (3) Unless subsection (2) applies, a person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years”. 14. Section 78 of the SOA sets out a definition of “ sexual ” for the purposes of section 8 of the Act as well as other provisions. It provides: “78 “Sexual” For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that— (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”. 15. It will be noted that there is no definition of “activity” in the SOA. The Trial 16. At the start of the trial the defence made a submission that all three counts on the Indictment should be withdrawn from the jury because the facts set out in the particulars of offence could not amount to offences under section 8(1) of the Sexual Offences Act 2003 . The judge ruled that count 3 should not go further. However, he said that he would review the position of the other two counts at the end of the prosecution evidence. 17. At the end of the prosecution case the defence submitted that there was no case to answer on both counts one and two. The judge rejected that submission. In relation to count 1 he held that, a jury could, when properly directed, conclude that the activity referred to in the particulars of offence amounted to “sexual activity”. In relation to count 2 he held that the evidence was not so weak that a jury could not safely convict. The trial continued and the appellant gave evidence. 18. When the judge summed up the case to the jury he gave them written directions on the law, which he called “steps to verdict”. He went through those directions orally with the jury. In relation to the “ingredients of offence” charged in counts 1 of the Indictment, the judge directed as follows (pages 3F to 7C): “Count 1. Before you can convict the Defendant of Count 1 on the Indictment, the prosecution must make you sure that: (a) [H] was 12 years old at the relevant time. You have her birth certificate and this is not in dispute. (b) Phillip Grout intentionally caused or intentionally incited [H] to engage in an activity. Incitement includes making a suggestion to someone, proposing something to someone, persuading someone to do something, and inducing someone to do something. Activity should be given its ordinary meaning. The conduct which you can consider is as follows: (i) The MSN messaging itself during which it is alleged Phillip Grout asked [H] to show him her bra, and asked her if she would take any more clothes off; and/or (ii) inciting her to show him her bra; and/or (iii) the showing of the bra strap itself; and/or (iv) inciting her to take off clothing. You must be sure that any of (i) – (iv) above took place before considering whether Phillip Grout intentionally caused or intentionally incited [H] to engage in an activity. (c) This is the next element that the prosecution have to prove. That the activity was sexual. An activity is sexual if, whatever the circumstances or any purpose in relation to it, it is because of its nature sexual. If you are sure that the activity which you are considering can be regarded as sexual because of its nature, then that element of the offence is proved. If you are not sure that the activity you are considering is sexual as defined above, then you should go on to consider whether it is sexual because; (i) looking at the activity in isolation a reasonable person would consider because of its nature the activity which took place could be sexual. If you are not sure that it was then this element of the offence would not have been proved, If you are sure that it was then you must go on and consider (ii) – so this is the second half of this alternative way of looking at the meaning of sexual; (ii) whether a reasonable person in view of the circumstances and/or purpose of Phillip Grout in relation to the activity, the activity was in fact sexual. When considering this you may take into account the background against which this activity took place. “If the prosecution has made you sure of both (i) and (ii) then this element of the offence will have been proved. So just to go back to make it clear in your understanding, (c) – if you go back to page one – is a further element of the offence that the activity was sexual. And there are two ways that would be open to you to come to that conclusion. The first way is included within the body of paragraph (c). But if you don’t find that the prosecution have proved that it is sexual following my direction there, you can then go on to look at it a second way in which it can be considered to be sexual. And that would require you to look at (i) and (ii) and be sure that both parts of that, (i) and (ii) had been proved. Now, I continue. Paragraph 2 – please read paragraphs 6 to 8 below which are relevant to both counts on the Indictment. So let’s go to paragraph 6. 6. If you find that [H] was consenting to the sexual activity because of her age, that provides no defence to Phillip Grout. 7. If you think what is alleged may have been no more than a hypothetical question posed by him, then the prosecution will have failed to prove that he was intentionally inciting [H] to act in this way. If, on the other hand, you are sure that this was a suggestion or proposal that she did it, or that he was persuading her or inducing her to do it, then elements 1 and 2 of the offence will have been proved., To decide what he meant by the words which you are considering, you should consider the context in which they were set… And then 8 – it is the Defendant’s case that in respect of those things which he accepts were transmitted by text or MSN messaging between them that it was done in a jokey way or as part of a truth and dare game, and that [H] was responding accordingly. And he had not intended it to be taken seriously. If you think that was or may have been what happened, the prosecution will have failed to prove that he intended there to be sexual activity. So that’s count 1.” 19. The judge then went on to give directions on count 2 and to review the evidence. 20. After the jury had retired, they sent two questions to the judge. Only the second one is relevant to this appeal. It stated: “we are split on point 1(c)(ii). [That is a reference to that paragraph in the written directions]. Specifically was the act of asking H to show Mr Grout her bra, was that a sexual activity”. The jury also asked the judge to clarify the phrase “beyond reasonable doubt” in that context. 21. Following a discussion with counsel, the judge gave a further direction to the jury. This stated (at 32F -33A): “I think you’ve been asked to bring down your Steps to Verdict document so that you can follow this through to me. With me. The first thing I’m going to point out in respect of paragraph 1 (b), which sets out the four circumstances that you, or the four bits of conduct, which you can consider in relation to whether it’s an activity. And just to remind you that you do not have to be sure on all four of those. Any one of those will do, so long as at least ten of you are agreed upon it. Secondly, your question goes directly to the way in which I have set out in 1(c) how you reach your conclusion as to whether the activity was sexual. …..” 22. The judge then repeated to the jury the directions he had given on the meaning of “sexual”, which we have already set out above. The judge then continued (at 33E-33F): “That brings me to the heart of your question, “whether a reasonable person in view of the circumstances and/or purpose of Phillip Grout in relation to the activity, the activity “was in fact sexual.” When considering this you may take into account the background against which this activity took place. If the prosecution have made you sure of both (i) and (ii) then this element of the offence will have been proved.” So again, I underline, you’ve got to be sure in relation to (i) and (ii) if you’re going down the second route as to whether the activity was sexual”. 23. The judge gave a further direction on the standard of proof and the jury then continued their deliberations. As already recounted, the jury convicted only on count 1 and did so by a majority of 10 to 2. The grounds of appeal 24. Four grounds of appeal were advanced. The single judge gave leave on the first three. They are: i) The trial judge incorrectly ruled that the words used by the appellant could amount to “sexual activity”; ii) The trial judge incorrectly ruled that any of the suggested activity in this case could amount to “sexual activity”; iii) The trial judge incorrectly directed the jury as to the meaning of “activity” for the purposes of section 8(1) of the SOA. 25. The fourth proposed ground was that the judge had incorrectly directed the jury as to the meaning of “sexual” for the purposes of section 8 and 78 of the SOA. Before us Mr Ladenburg for the Crown points out that the single judge did not expressly give leave on that ground. There was no specific renewed application for leave in relation to this ground was made. However, we have concluded that, given the way the judge directed the jury, we will have to deal with his directions on both “activity” and “sexual”. Analysis: general 26. Before we deal with the grounds of appeal, we make some general points. First, R v Walker (Simon John) [2006] EWCA Crim 1907 , para 30 stated that section 8(1) of the SOA creates two basic offences. In the first case a defendant must intentionally cause a child (B) to engage in “sexual activity”. In the second a defendant must intentionally incite a child (B) to engage in “sexual activity”. In the latter case the essence of the offence is the intentional “incitement”, that is the intentional seeking to bring about something by encouragement or persuasion, by the defendant. The “something” in this case is that the child (B) engage in sexual activity. The causing or inciting must be intentional, ie. deliberate; recklessness or less will not do: see R v Head [2008] QB 43 at para 22, per Hughes LJ. Further, the child (B) must know what the defendant is saying or doing. If the offence charged is that of intentional incitement the prosecution does not have to prove that defendant intended that the actual sexual activity should take place, because the essence of the offence is the intentional incitement of the person under 13 to engage in sexual activity. 27. As the authors of Rook & Ward on Sexual Offences, Law and Practice (4 th Ed. 2010) point out at para 3.92, because there are higher maximum punishments for offences committed under section 8(2) of the SOA, the effect of the House of Lords’ decision in R v Courtie [1984] AC 463 , when applied to section 8 of the SOA is that, in practice, it creates four different offences, each of which must be carried out intentionally. The first is causing penetrative sexual activity; the second is inciting such activity; the third is causing non- penetrative sexual activity and the fourth is inciting such activity. As the authors emphasise, with good reason, it is therefore important that the charge or indictment specifies which of these offences is being alleged. 28. The second general point we would make is that the offences created by section 8 are directed towards a defendant who intentionally causes or incites the child , that is (B) himself or herself, to engage in “sexual activity”. The offence is not concerned with whether the defendant engages in sexual activity. 29. Thirdly, as already noted, there is no definition of “activity” in the SOA. We are prepared to accept, for the purposes of this appeal, that “activity” on the part of the child could embrace “the activity” of conversation or sending text or MSN messages, depending on the circumstances. Whether a child sending a text or MSN message could amount to being engaged in “sexual” activity would depend on whether that “activity” came within the definition of “sexual” set out in section 78 of the SOA. Mr Ladenburg argued strenuously on this appeal that the questions and remarks of the appellant in texts and MSN messages in this case could amount to him intentionally causing or inciting “sexual activity” on the part of H, even if her response had been confined to her giving answers in the form of texts or MSN messages. 30. Fourthly, with regard to the definition of “sexual”, in R v H [2005] 1 WLR 2005 at paras 8 and 9 Lord Woolf CJ identified three questions that may have to be considered when deciding whether a particular “activity” is “sexual” within the statutory definition. Each has to be asked by reference to whether a “reasonable person” would consider whether the activity in question is “sexual”. The first question, under section 78(a), is whether a reasonable person would consider that the relevant “activity”, whatever its circumstances or any person’s purpose in relation to it, is by its very nature “sexual”. In short, would a reasonable person consider that the relevant “activity” is intrinsically “sexual”. If the answer is “yes”, there is no need to go further. But if the answer is “no”, then the second question arises. This second question, under section 78(b), is whether a reasonable person would consider that the relevant “activity”, because of its nature may be “sexual”. It appears that if the answer is “ yes it might be, depending on the circumstances”, then the third question becomes relevant. That is: would a reasonable person consider (i) because of the circumstances or (ii) the purpose of any person in relation to it, (or both (i) and (ii)), that the relevant “activity” is “sexual”. 31. The Lord Chief Justice went on to point out, at para 12, that there are threshold questions a judge may have to consider before leaving to the jury the issue of whether the relevant “activity” of the child in question is “sexual” activity, notwithstanding the reference to what “the reasonable man would consider” in the opening words of section 78. We have to consider this aspect below. Analysis: count 1 of the Indictment 32. The fact that section 8 of the SOA creates two, if not four, separate offences means that a count charging a defendant must be drawn with particular care. In the present case we have to say that count 1 was not so drawn and that is what gives rise to the difficulties which have led us to conclude that this conviction is unsafe. On any view count 1 alleges at least four different offences. These are: (1) intentionally causing H to engage in sexual activity in taking part in a webcam conversation when the defendant asked H to show her bra; (2) intentionally inciting H to engage in sexual activity in taking part in a webcam conversation when the defendant asked H to show her bra; (3) intentionally causing H to engage in sexual activity in taking part in a webcam conversation and asking her to take off clothing; and (4) intentionally inciting H to engage in sexual activity in taking part in a webcam conversation and asking her to take off clothing. It might be thought that the count also contains allegations of (a) intentionally causing and (b) intentionally inciting H to engage in “sexual activity” in the form of a webcam conversation in the circumstances alleged. Technically speaking, the count was bad because it contained within it allegations regarding a multiplicity of offences, which depended on proof of different facts and different actions, and a different state of mind by the defendant (an intention to cause and an intention to incite) for each allegation. More importantly and practically, this jumble of offences in one count created difficulties for both judge and jury. 33. The count should have been broken down. In essence there were two prosecution allegations that mattered in this case. The first allegation was that the appellant had intentionally caused H to engage in “sexual activity” by asking her to show her bra on the webcam, which, all were agreed, she had actually done by showing her bra strap. The two key questions in relation to that allegation were whether, in the circumstances, the action of showing the bra strap amounted to “sexual activity” and whether the appellant had “intentionally caused” H to engage in such “sexual activity”. 34. The second relevant allegation was that the appellant had intentionally incited H to engage in “sexual activity” by asking her if she would take off clothing. Whether that activity was meant to be on the webcam or otherwise is not clear. H did not, of course, take off clothing. The key questions in relation to that allegation would be whether, in the circumstances, “taking off clothing” amounted to “sexual activity” by H and whether the appellant had “intentionally incited” H to engage in that “sexual activity”. 35. In our view the judge erred in not making this analysis of count 1 at the beginning of the trial. He should have directed the prosecution to decide what specific offences it wished to allege. Then, for the benefit of the jury, if not to ensure that there was no “duplicity” or even “quadruplicity” or “sextuplicity” in the count, he should have directed that there be separate counts for each specific alleged offence. If this analysis had been undertaken, it would have become immediately clear that there was no evidence at all to support an allegation that the appellant had intentionally caused H to engage in “sexual activity” in the form of taking off clothing. H had not done so at any stage, so the appellant could not have “intentionally caused” her to do so. In addition, in our view, the evidence in support of an allegation that the appellant had “intentionally incited” H actually to take off clothing, ie. deliberately encouraged her to do so by a text or MSN message which asked her if she would do that, was either non-existent or so vague that no jury could have safely convicted of that offence. We note that nowhere in the summing up did the judge refer to any MSN or text exchange in which the appellant even asked H the question “would you take off clothing”. 36. Therefore, if a careful analysis of Count 1 had been undertaken at the outset of the trial, the judge would have had to conclude that two out of the four parts of it should not go before the jury, viz. those alleging that the appellant had intentionally caused or had intentionally incited H to engage in “sexual activity” by taking off clothing. Those allegations, should have been withdrawn on the simple ground that there was insufficient evidence on which a jury, properly directed, could convict of those offences. Moreover, it is clear that the offence of “intentionally inciting” H to show her bra was itself duplication, because the evidence was that she had actually shown her bra strap, so that the offence of “intentionally causing” H to do so was sufficient to cover those facts. 37. We have concluded that this failure in itself makes the conviction unsafe because the jury were asked to consider, within the one count, two possible offences which they should not have been asked to consider. We do not know on what basis the jury did, in fact, convict the appellant. 38. The consequence of permitting the count to go before the jury in the form that it did was that the judge had necessarily to construct an elaborate direction on the law. We wish to say nothing to discourage giving juries written directions on the law, in particular on the ingredients of the offence or offences charged, as this court pointed out in R v Walker, para 29. But the judge in this case had the difficult task of having to give clear and accurate written directions which coped with all the different permutations which count 1 envisaged. Analysis: the directions to the jury on the ingredients of the offences in count 1 39. Unfortunately, because the judge had not conducted an analysis of what was contained in count 1, we have concluded that there were errors in the judge’s directions to the jury in relation to what they had to find on the ingredients of “the offence” before it could convict. Paragraph 1(b) of the written directions, which the judge dealt with orally at page 5 of the summing up, refers to the “conduct” which the jury “can consider” in deciding whether the appellant “intentionally caused” or “intentionally incited” H to “engage in an activity”. The judge sets out four categories of “conduct” and says that the jury can consider them either individually or collectively – hence the use of “and/or” in the written directions. 40. We make the following comments on those directions: first, given the view we have expressed above, the judge should not have included the reference to inciting H to take off clothing because there was insufficient evidence to go to a jury on that allegation. Secondly, the judge does not sufficiently analyse for the jury the different elements of the offences to be considered. Unfortunately, he elides “conduct” on the part of the appellant with “conduct” on the part of H. Thus he tells the jury in (b)(ii) that they can consider the “conduct” of “inciting her to show him her bra”. What, with respect, the judge should have done in relation to that particular species of “conduct” was to state that the jury had to consider three aspects: first, were they satisfied that the appellant had said or done something that intentionally (deliberately) incited (encouraged) H do something viz. show her bra. Secondly, was that a deliberate encouragement of H to engage in an “activity”, viz. show her bra. Thirdly, was that “activity” which the appellant was deliberately encouraging H to do a “sexual” one. The same exercise should have been done with any other relevant “conduct”. The jury’s confusion on whose activity and what type of activity was relevant is obvious from the nature of the question that they asked the judge after their retirement, to which we have already referred and with which we deal below. 41. Next, because the judge had not sufficiently differentiated between the different offences alleged in count 1, he not only said that the jury could consider one or all of the four classes of “conduct” that he set out, but he also went on to say “you must be sure that any of (i) to (iv) above took place before considering whether Phillip Grout intentionally caused or intentionally incited H to engage in an activity”. Thus he did not indicate what particular conduct was referable to which offence, whether it be “intentional causing” or “intentional inciting”. Nor does he indicate which particular activity on the part of H, the child, the “conduct” of the appellant was said to be intentionally causing or intentionally inciting. Further, the judge did not say that the jury must be agreed on which “conduct” it is satisfied had taken place. So some jurors might consider conduct (i) relevant and some others might consider conduct (ii) and so forth. 42. Lastly, although the single judge did not grant leave on the question of the judge’s direction on the meaning of “sexual”, we have grave misgivings about it. We accept that the judge did go through the three stages set out in the Lord Chief Justice’s judgment in R v H, referred to above. But, in our view the judge did not sufficiently emphasise that it is the activity of the child, H in this case, that the jury must be satisfied was “sexual”. Thus, just after the judge has given his directions on what “conduct” the jury can consider to see whether the appellant had intentionally caused or incited H to engage in an “activity”, the direction on “sexual” says (paragraph (c)) that the jury must be sure “the activity was sexual”. This could have led the jury into error in this case because, when the judge had given his direction concerning “activity” in paragraph 1(b) of his written directions, he had stated that the “conduct” which the jury could consider to decide whether the appellant had intentionally caused or incited H to engage in “activity” consisted of the items he identified in sub-paragraphs (i) to (iv) of paragraph 1(b). But the “conduct” set out in those paragraphs is a mixture of “conduct” on the part of the appellant and “conduct” on the part of H herself. Therefore the jury might have thought that it could consider the appellant’s conduct as part of the exercise in deciding whether the activity that the appellant was causing or inciting H to engage in was “sexual”. The jury was not clearly directed that it must concern itself with the question of whether the activity of H, as opposed to that of the appellant, was “sexual” within the statutory definition. Analysis: the judge’s direction following the jury question 43. It looks as though the jury was indeed confused about whose “sexual activity” was relevant, judging by the second question that they put to the judge. That was, by reference to a paragraph in the judge’s written directions: “we are split on point 1(c)(ii). Specifically was the act of asking H to show Mr Grout her bra, was that a sexual activity”. That suggests that they were discussing whether the act of Mr Grout asking H to show her bra was a “sexual activity” rather than concentrating on whether the act of H showing her bra would itself be a “sexual activity”; or it may be the jury was asking whether either the appellant or H’s activity was a “sexual activity”. 44. Unfortunately, when the judge answered the jury’s question, his further directions did not remedy the earlier errors. He referred the jury back to paragraph 1(b) of his written directions and reiterated that the jury could consider those four items of “conduct” “…in relation to whether it is an activity”. That again confuses whose “activity” is relevant and for what purposes, for the reasons we have already given. The judge then said: “you do not have to be sure on all four of those. Any one will do, so long as at least ten of you are agreed on it”. In other circumstances where alternative facts had been put to the jury as part of the prosecution’s case it would have been correct to say that the jury must be agreed on one particular series of facts. However, the further direction given fails to deal with the fundamental difficulty that the “conduct” the judge had referred to embraces both “conduct” by the appellant as well as the alleged “sexual activity” of H that it was being said that the appellant’s conduct was causing or inciting H to engage in. 45. After the judge had repeated his written directions on how the jury should decide whether an “activity” was sexual or not, he said: “this brings me to the heart of your question”. However, the judge did not then direct the jury that they must keep separate in their minds (a) the acts or words of the appellant that are said to have deliberately caused or incited an “activity” on the part of H; and (b) whether that “activity” on the part of H was “sexual” or not, within the definition of the SOA. Analysis: conclusions 46. We summarise our conclusions as follows. First, count 1 alleged at least four offences and, if they were to be pursued then those offences should have been the subject of separate counts. Secondly, at the outset of the trial, the problems of count 1 should have been tackled. If they had then it would have become obvious that an allegation that the appellant had intentionally caused H to engage in “sexual activity” in the form of taking off clothing had to be withdrawn, because there was no evidence that that had occurred. It would also have been clear that there was no point in charging the appellant with both causing and inciting H to engage in “sexual activity” in the form of showing her bra on the webcam. Thirdly, at the end of the prosecution case, at the latest, the judge should have withdrawn from the jury the allegation that the appellant had intentionally incited H to engage in “sexual activity” in the form of taking off clothing as the evidence to support that charge was too vague and flimsy for the jury safely to convict of that charge. Fourthly, because count 1 was left for the jury’s consideration in its portmanteau form, it was almost inevitable that the jury would be uncertain as to what elements of a particular offence had to be proved before they could find the appellant guilty of one or other offence alleged. This was clearly demonstrated by the terms of the second question put to the judge by the jury after their retirement. Fifthly, the judge’s directions to the jury on the ingredients of the offences set out in count 1 were unsatisfactory, for the reasons we have set out in detail above. Furthermore, they were not corrected when he gave further directions when the jury asked its second question when considering its verdicts. 47. For all these reasons, we were satisfied that the conviction of the appellant on count 1 was unsafe and so we allowed the appeal and quashed that conviction.	{"ConvCourtName":["Crown Court at Kingston"],"ConvictPleaDate":["2010-02-05"],"ConvictOffence":["intentionally causing or inciting a child under 13 to engage in sexual activity"],"AcquitOffence":["intentionally causing or inciting a child under 13 to engage in sexual activity"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Kingston"],"Sentence":["Community Sentence with a requirement that he carry out 40 hours of unpaid work"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[18],"OffJobOffence":["Student"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[12],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["ABE interview","Text messages","MSN messages","Victim testimony","Sister's testimony"],"DefEvidTypeTrial":["Offender denies offence","No sexual intent"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender was 18 and at university","No sexual gratification intended (claimed)"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Count 1 alleged multiple offences in one count (duplicity)","Insufficient evidence for some alleged offences","Jury directions confused and unsatisfactory","Jury not properly directed on whose activity was relevant"],"SentGuideWhich":["section 8(1) of the Sexual Offences Act 2003","section 78 of the Sexual Offences Act 2003"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Count 1 was duplicitous, alleging multiple offences in one count","Jury not properly directed on the law and whose activity was relevant","Insufficient evidence for some alleged offences","Jury confusion as shown by their question"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
2019/02404/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation Number: [2019] EWCA Crim 1526 Royal Courts of Justice The Strand London WC2A 2LL Wednesday 28 th August 2019 B e f o r e: LORD JUSTICE SIMON MR JUSTICE JEREMY BAKER and MR JUSTICE FREEDMAN ____________________ R E G I N A - v - TAWONA MANDISHONA ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________________ Mr W Davis appeared on behalf of the Appellant ______________________ J U D G M E N T ( For Approval ) ______________________ Wednesday 28 th August 2019 LORD JUSTICE SIMON: I shall ask Mr Justice Freedman to give the judgment of the Court. MR JUSTICE FREEDMAN: 1. This is an appeal against sentence brought with the leave of the single Judge who, although he refused an application for bail pending appeal, ordered that the appeal should be expedited. 2. On 17 th June 2019, in the Crown Court at Maidstone, having earlier pleaded guilty to two counts of possession of a controlled drug of Class A with intent, the Appellant was sentenced by His Honour Judge Thomas to concurrent terms of eighteen months' immediate detention in a young offender institution. 3. It is submitted, on the Appellant's behalf by his Counsel, Mr William Davis, that whilst a custodial sentence is appropriate, that sentence ought in all the circumstances to have been suspended. The Appellant is 20 years of age. He has no previous convictions, warnings, reprimands or cautions. 4. At about 7.10pm on 9 th August 2018, two police officers on duty in an unmarked car in Chatham, Kent noticed the Appellant on a pushbike outside a fish and chip shop. The Appellant was riding the bicycle in an aimless way, speaking on his mobile telephone and looking around. He entered a pedestrian underpass which was known to be an area for drug dealing activity. The Appellant was seen to interact with two other males in the underpass, one of whom was a known drug user. The officers approached and asked him where he was from. He replied, "Chatham Grove", but said that he could not remember the number as he had only recently come down from West London. He was searched. A package containing Class A drugs was found in the pocket of his jeans. It contained seven wraps of 1.79 grams of heroin of 56 per cent purity; four wraps of 0.683 grams of crack cocaine of 75 per cent purity; one wrap containing 0.112 grams of heroin; and one wrap containing 0.087 grams of crack cocaine. There were also seized from him a mobile telephone, a key and £41.20 in cash. 5. During the search, the Appellant's mobile phone rang constantly. One of the officers answered it. The contact identified himself as Terry and asked when the Appellant was coming home. The caller used a different name for the Appellant. The Appellant refused to provide the PIN for the telephone to the officers. He was arrested. During a further search in custody, an additional £30 cash was found in the pocket of tracksuit bottoms which he was wearing under his jeans. The key was used to unlock a property in Chatham Grove, but no items were seized during a search of that property. 6. When he was interviewed, the Appellant declined to comment, save to say that he had never tried Class A controlled drugs. He tested negative for Class A drugs. He agreed to provide the PIN for his telephone, but nothing relevant was found on it. 7. On 16 th April 2019, at a plea and trial preparation hearing, the Appellant pleaded guilty to two counts of possessing controlled drugs of Class A with intent, but not guilty to a count of possessing criminal property. The basis of plea was that the Appellant had become friends with a group of boys he had met in June 2018. He spent time with them and they bought him clothes, food and drink. He did not expect to be asked to do anything in return. However, after some time he was told that he should do something in return as they had spent a lot of money on him. He felt obliged to return the favour, but was not given any specific information as to what he had to do. 8. On 9 August 2018, he met the group in London and was driven to Kent. He was told to go to a particular location and to wait for further instructions. He was given a bicycle and told to go to an underpass to meet someone who would give him a parcel. Two men arrived. One gave him a parcel which was wrapped and knotted. They did not speak and the Appellant moved away. He said that he looked in the bag and discovered the drugs. He was immediately stopped by the police and arrested near the underpass. The money which he had was from his employment. He performed a limited function under the direction of the others. He felt that he had to repay them for what they had done for him. 9. The prosecution did not accept the basis of plea. However, it accepted that it made no difference whether the Appellant was a courier for a whole parcel (his case), or a runner of individual wraps to users (the Crown's case). On this basis, the prosecution accepted that the Appellant stood to be sentenced under the definitive guidelines for drug offences on the basis of Category 3, lesser role, acting under direction, namely, a starting point of three years' custody, with a range of two years to four years six months. This was confirmed at a hearing on 9 May 2019. Accordingly, no Newton hearing was sought and the Judge on that occasion agreed with this approach. The matter was adjourned for a pre-sentence report, before it came before the H Judge on 17 June 2019. 10. In his sentencing remarks, the Judge contrasted the Appellant with those who came before the Court from disadvantaged backgrounds and with no way forward in life, who became involved in drugs and drugs business. By contrast, he said that the Appellant came before the Court with many advantages. He was in the course of undertaking a university degree and yet had become involved in the drugs trade. Yet, despite the Appellant's more advantageous position, the Judge was asked to deal with him in a different way from those who have had more reason to escape their lives. The Judge said that only an immediate custodial sentence could be passed on people who deal in Class A drugs. He was aware of, and had noted, the suspended sentence guidelines. However, in his judgment " someone in your position, doing what you did is so serious that only such a sentence [an immediate custodial sentence] can be imposed upon you ". The Judge said that he made allowance for the Appellant's age, circumstances and references, but that the offence was so serious that " I cannot contemplate a suspended sentence in your case ". He therefore took a sentence at the bottom of the range, of two years, reduced by 25 per cent for the guilty plea, and imposed concurrent sentences of eighteen months' immediate detention on each count. He said that " those who deal in Class A drugs inevitably, in my judgment, save in exceptional circumstances, must face an immediate … custodial sentence ". 11. On behalf of the Appellant, it has been submitted that the sentence should have been suspended, bearing in mind his basis of plea. His lack of involvement in the chain was supported by the absence of any relevant evidence on his phone. The assertion that the cash found on him was from his wages was unchallenged. A drugs test carried out on him after arrest was negative as regards his having consumed Class A drugs at that time, and the Appellant confirmed that he had never been a user of Class A drugs. He was of previous positive good character, both in the sense that he had no previous convictions and that he had witnesses who spoke to his qualities. There were good references from a foster carer who knew him and his family, from one of his closest friends, and from a weekend employer for whom the Appellant had worked for two years. 12. The Appellant is studying for a BSc degree at university and has just completed his first year. He did well enough at school to earn a place there, and there is evidence that his essay work at university was good. 13. It was submitted on behalf of the Appellant that there was strong mitigation. The pre-sentence report assessed the Appellant as posing a low risk of re-offending and a low risk of harm to the public. He was considered by its author to be an immature, naïve individual who would find custody extremely difficult to deal with as it would bring him into contact with more sophisticated offenders. She commented that the Appellant could be managed safely within the community. 14. It was submitted by Mr Davis on his behalf that the Appellant's culpability was limited on the basis that he became involved in the offending due to the malign influence of others. On his basis of the plea, which was accepted by the prosecution, he was manipulated by others. He was the subject of their gifts and was then expected to repay them by acting, at their request, in their drugs’ business. Custody was likely to be counterproductive both for the Appellant and for the community as a whole. 15. The factors set out in the Sentencing Council's Definitive Guideline on Imposition of Community and Custodial Sentences indicated that an immediate custodial sentence did not need to be imposed in the instant case. There was a realistic prospect of rehabilitation. Appropriate punishment could be imposed without the imposition of an immediate custodial sentence. There was strong personal mitigation. There was no history of poor compliance with court orders. Immediate custody would result in a significant harmful impact on others if the Appellant encountered bad influences in prison. 16. The Judge's view that the sentence could not be suspended was by reference to the seriousness of the offence. Mr Davis, on behalf of the Appellant, submitted that the Judge was wrong to say that he could not contemplate suspending the sentence, save in "exceptional circumstances". It was submitted that that was the wrong test and that if the Judge applied it, he may have been harking back to a former test which had been replaced by the direction that the Court must impose whatever is the appropriate sentence, which may be a suspended sentence. It was submitted that in all the circumstances of this case, a suspended sentence was appropriate, and that it could have been accompanied by a curfew and by an order to undertake unpaid work in the community. 17. It is right to say that, earlier in his sentencing remarks, the Judge had said that he was aware of the suspended sentence guidelines and had noted them. The reference to "exceptional circumstances" may have embraced the circumstances to depart not only from an immediate custodial sentence, but from any form of custodial sentence. That having been said, it seems to this Court that the Judge erred in a related respect, namely, in his view that only an immediate custodial sentence could be passed on people who deal with Class A drugs. That might be so in most cases, and it would be very unwise for anybody to assume that there are prospects of being able to avoid an immediate custodial sentence in a case of possession of Class A drugs with intent to supply. Further, an aggravating feature of this case is the fact that the Appellant associated himself with an Inner City London group who travelled to a smaller town in order to supply drugs. People involved in the supply of Class A drugs, even in small quantities at the bottom of the supply chain and acting on the instructions of others, will in most cases end up with an immediate custodial sentence. That said, the suggestion that there could never be a case where a suspended sentence was appropriate, or that there remains a threshold previously abolished of exceptional circumstances in order to justify a suspended sentence, was wrong. 18. The question for this Court is: what is appropriate in the circumstances of this particular case? The Judge should have engaged more with the facts of the Appellant's case. Had he done so, it would have been appreciated that such was the Appellant's mitigation about him being exploited and set up by others, his personal circumstances and the other matters prayed in aid on his behalf that a suspended sentence was justified. 19. The Appellant's background and the prospects of his rehabilitation were a material consideration. The Judge said that the Appellant was in a much more advantageous position than others. His background is set out in the pre-sentence report. He was brought up in Peckham by his mother. He had very limited contact with his father. He said in the statement which formed the basis of his plea that, although he had no need to take part in street dealing, money had been tight at times. According to his statement, he grew up in an area where gang violence and drug dealing is considered to be almost commonplace. Despite this, until the matters for which he was before the Court, he had succeeded in avoiding such offending and had been of previous good character. From the school that he attended, and despite a disadvantaged childhood, he had succeeded in attaining a university place. He always worked hard to achieve good grades and to stay in the top set class at his school. This was not the case of a person who had had advantages in life, but of a person who had gone to university through his own efforts. It is said by Mr Davis on his behalf that it is desirable for him to complete his education and to move on to work if that is appropriate in all the circumstances. 20. In the judgment of this Court, this was a case where the sentence of detention should have been suspended. That would have followed from the basis of the plea, from the mitigation referred to above, including the fact that the Appellant was exploited and set up by others, and his personal circumstances. If this matter had been considered below in this way, then the Court necessarily would have considered making a curfew order and an order for unpaid work within the community. It is, therefore, necessary for this Court to consider whether such a course is appropriate in the event that the immediate sentence is quashed. 21. In the judgment of this Court, in circumstances where the Appellant has already served over nine weeks of the sentence in detention (the equivalent of serving a determinate sentence of over four months), it would be wrong to impose any conditions. 22. In the judgment of this Court, this was not a case where the only option was a sentence of immediate detention in a young offender institution. It follows from the above that there was real mitigation in this case and that the Judge adopted too rigid an approach in not suspending the sentence. 23. In all the circumstances, in our judgment, the sentence was manifestly excessive. We allow the appeal to the extent of quashing the sentence of immediate detention and in its place imposing a suspended sentence of detention. In circumstances where the Appellant has served nine weeks in custody, there should not be any conditions attached to the suspended sentence. The sentence is varied by replacing the concurrent sentences of immediate detention of eighteen months in respect of each of counts 1 and 2 with concurrent sentences of eighteen months' detention on each count, suspended for two years from the date of sentence below (that is, for two years from 17 June 2019). The effect of this is that if the Appellant were to commit an offence between now and the expiry of that two year period, in addition to being sentenced for that offence, he would, in addition to that sentence, be liable to the activation of the suspended sentence of detention. _______________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ________________________________	{"ConvCourtName":["Crown Court at Maidstone"],"ConvictPleaDate":["2019-04-16"],"ConvictOffence":["Possession of a controlled drug of Class A with intent"],"AcquitOffence":["Possessing criminal property"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["plea and trial preparation hearing"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[63],"SentCourtName":["Crown Court at Maidstone"],"Sentence":["18 months' immediate detention in a young offender institution (original)","18 months' detention suspended for two years (on appeal)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[19],"OffJobOffence":["Student"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Drugs found on person","Police observation","Cash seized","Mobile phone evidence"],"DefEvidTypeTrial":["Basis of plea","Negative drug test","References from foster carer, friend, employer"],"PreSentReport":["Low risk of reoffending","Low risk of harm"],"AggFactSent":["Associated with group from Inner City London who travelled to supply drugs"],"MitFactSent":["No previous convictions","Good character","Strong references","Student at university","Exploited and manipulated by others","Low risk of reoffending","Low risk of harm","Immature and naive","Could be managed safely in the community"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge erred in holding only immediate custodial sentence could be imposed","Judge failed to engage with mitigation and personal circumstances"],"SentGuideWhich":["Sentencing Council's Definitive Guideline on Imposition of Community and Custodial Sentences","Definitive guidelines for drug offences"],"AppealOutcome":["Allowed","Sentence quashed and replaced with suspended sentence"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Judge adopted too rigid an approach in not suspending the sentence","Real mitigation existed and was not properly considered"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
No: 200803009 A4 Neutral Citation Number: [2008] EWCA Crim 2310 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 10 October 2008 B e f o r e : LADY JUSTICE HALLETT MR JUSTICE PITCHFORD RECORDER OF CARDIFF (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - R E G I N A v STEPHEN LARCOMBE - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr JA Ingram appeared on behalf of the Appellant - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: My Lord, Pitchford J, will give the judgment of the court. 2. MR JUSTICE PITCHFORD: Following a trial at Southwark Crown Court, the appellant, on 7 April 2008, was convicted of two offences of sexual assault on a male contrary to section 3 of the Sexual Offences Act 2003 . On 6 May 2008, he was sentenced by HHJ Pitts to two and a half years' imprisonment on each count concurrent. He now appeals that sentence with the permission of the single judge. 3. It is submitted by Mr Ingram on behalf of the appellant that the sentence fell well outside the relevant guidelines and is accordingly manifestly excessive. He submits that in one or two passages of Judge Pitts' sentencing remarks he appeared to take into account circumstances which may not have been proved on the evidence in order to reach a conclusion about the danger presented by the appellant to young boys. 4. The appellant is a 46 year-old man. He worked in the jewellery industry. He had been married, but was divorced, maintaining a good relationship with his former wife and their teenage daughter. For financial reasons he had, at the time of these offences, no permanent home, but was moving between the homes of friends and a caravan in the Tunbridge Wells area. 5. On 6 January 2006, he boarded a train having finished work and having consumed alcohol. At about 10pm a 15 year-old boy, whom we shall refer to as "R", boarded the same train at Tunbridge Wells. R sat alone in one of the block of four seats facing one another in pairs. The appellant sat across the aisle from him and began to stare intently at the boy. The appellant moved to sit in the seat alongside R, and when the train entered a tunnel, placed his hand on the boy's knee, before moving it to his inner thigh. When R attempted to remove the appellant's hand, he gripped his thigh even tighter. After a moment, R protested, got up and moved further down the carriage. He was followed by the appellant. R recognised a friend and stayed with that friend until he arrived at his stop. On arrival, both R and the appellant alighted from the train. R was met by his mother, who found him to be tearful and shaken. There was a closed circuit camera in the carriage, whose view recorded the movements of R and the appellant, but not the details of the assault. 6. The second incident occurred on 12 May 2006. This time the appellant's victim, J, was aged 16. At Tunbridge Wells Station during the afternoon, J noticed the appellant looking at him intently. He also seemed to be interested in a five year-old boy. J boarded this train, followed by the appellant. J sat in the window seat and placed his bag on the vacant seat next to him. Notwithstanding that there were several seats available to the appellant, the appellant approached J and asked him to remove his bag from the seat next to his, and J having done so, the appellant sat down next to him. When the train moved off, the appellant began to stroke J's knee and thigh. As the train was approaching Paddock Wood Station, the appellant moved his hand to J's penis and stroked that area over his trousers. Like the earlier victim, J was shocked. He got up to leave the train. There was no apparent reaction from the appellant. They left the train at the same top and J noticed that the appellant was following him. He ran to a nearby shop, where he remained until he thought that it was safe to go home. He ran home, and on his arrival he was found to be in a state of acute distress. The judge in his case saw an impact statement which demonstrated continued suffering. In the case of R, it was explained that no impact statement had been made because the boy was trying to put the matter behind him. Again, CCTV footage was available which pictured the appellant and the victim. As a result, he was eventually identified and arrested. 7. The appellant accepted travelling on the trains but denied the offences. He pleaded not guilty. His victims therefore had to give evidence. The appellant did not himself give evidence. He was, however, acquitted of two further counts of assault, allegedly committed in a public house because, as the judge found, the boys could not be sure that the touching which then occurred was other than accidental. However, on the same occasion, the appellant was heard to say that he only liked little boys, and that one of the boys was the right size for him. The judge, having heard that evidence, appears to have accepted it. 8. The judge delivered, in his sentencing remarks, a very full description of the offences. In summary, he said that he was dealing with two separate offences on public trains in a period of five to six months. His victims had been targeted and traumatised. The appellant had declared his preference for boys. He was thus a predatory paedophile. He presented a risk to boys, but he could not on present information find that the appellant was dangerous under the Criminal Justice Act provisions. The appellant was continuing to deny the offences, so there was no acknowledgment of any personal problem. 9. In his sentencing remarks, the judge also expressed a view that the sentencing guidelines for the offence of sexual assault were of limited value to him since they looked only at the mechanics of the offence, that is to say the touching and not the wider aggravating features which the judge had identified. The table to which the judge was referring appears at page 33 of the Definitive Guideline, Sexual Offences Act 2003 , published in April 2007. Where the contact does not involve the genitalia of the offender or the victim, and the victim is aged 13 or over, the starting point is a community order and the range is an appropriate non-custodial sentence; that is a community order or fine. That is the starting point which, in our view, applies to the first of the offences committed by the appellant, and would have applied to him had that been the only offence he committed. 10. For manual contact between the offender and the genitalia of a victim aged 13 or over, the starting point is 12 months custody and the range is 26 weeks to two years. That is the starting point which, in our view, applies to the second of the appellant's offences. If that was all the assistance the guideline provided, then we would concur with the view of the judge. However, the sentencing tables do not stand alone, and sentencers will be misled if they neglect the principles and explanatory guidance which apply to them. 11. The guideline provides much relevant guidance on the application of the tables. Sexual offences in particular demand flexibility. The starting points and ranges are not rigid. Movement within and between ranges will depend on the circumstances of individual cases, particularly aggravating and mitigating features (page 5, paragraph 1.3). All sexual offences where the activity is non-consensual, coercive or exploitative result in harm (page 6, paragraph 1.10 and 1.11). 12. The difficulty of assessing seriousness where there is an imbalance between culpability and harm does not arise in relation to sexual offences (page 7, paragraph 1.13). The guideline recognises the range of options open to sentencers, including the imposition of custodial sentences where the risk of re-offending is high (page 10, paragraph 1.21). The offence guidelines relate to sentencing on conviction for a first time offender after a plea of not guilty. The list of aggravating factors is not exhaustive, but a factor which is an ingredient of the offence cannot also be an aggravating factor. The presence of aggravating factors will influence the type and length of sentence significantly (page 15, Summary of General Principles). 13. The expected approach is for the court to identify the description which most nearly matches the particular facts of the offence. This will identify a starting point from which the sentencer can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence. The particular circumstances may make it appropriate that the provisional sentence falls outside the range, including previous convictions. Then the court will take account of personal mitigation, together with any plea of guilty (page 18, Sentence Ranges and Starting Points). 14. In non-consensual offences, the younger the child and the greater the age gap between the offender and the victim the higher the sentence will be (page 19, paragraph 2.8). The notes explanatory to sexual assault offences at page 32 make clear that the nature of the sexual activity will be the primary factor in assessing seriousness and should be used as the starting point, but the presence of aggravating factors can make an offence significantly more serious than the nature of the activity alone might suggest. We note that one of the generic factors listed at page 10 indicating a more than usual serious degree of harm is the existence of multiple victims. 15. In our view, applying the guidance to the sentencing exercise in the present case, it seems to us that the judge was entitled, both from the evidence he had heard and described in his sentencing remarks and in the pre-sentence report, to reach the following conclusions: (1) The offences were committed on more than one person on occasions well separated in time. This was not, in other words, an isolated offence. (2) The conduct in which the appellant was prepared to indulge escalated. (3) The appellant's physical contact was not just sexual, but also intimidatory of his victims. There was a very significant age gap between himself and his victims which served to increase the threat they experienced. (4) The offences were committed on public transport when the victims were isolated in the immediate area from others. (5) The effect of the appellant's predatory conduct was to cause actual and immediate fear and distress. (6) The appellant's persistence in denial of the offences rendered the commission of further offences the more probable. (7) The defendant had on another occasion expressed his sexual preference for boys. (8) While the appellant was not judged yet to pose a significant risk of serious harm to the public, he was nevertheless, unless restrained, liable to cause further harm to other boys of a similar age. His continuing denials made a therapeutic approach to sentencing beyond the ability of the sentencer. 16. It was, in our view, perfectly open to the judge, while acting within the guidelines, to conclude that the appropriate starting point was significantly beyond the 12 months custody listed for the second of the two offences. We agree with the finding of the judge that the nature and repetition of offending completely changed the complexion of seriousness confined to one or other offence in isolation. Accordingly, it required a substantial sentence of imprisonment. There was no mitigation available. The appellant stood his trial and persisted in his denial. 17. We have, however, considered whether, in the particular circumstances of this case, the judge imposed a sentence beyond the acceptable range. It is quite clear from the guidelines that sexual assault which involves touching of the naked body of the victim is regarded as a much more serious offence than the offences committed by the appellant in the present case. The length of the sentence imposed by the judge should have reflected the fact that the assaults in this case were on the boys' clothed bodies. Having regard to that primary consideration, described by the notes at page 32 of the sentencing guidelines, it is our view that the upper limit of the sentence in this case was two years' imprisonment. 18. We propose, therefore, to allow the appeal to the extent that there shall be substituted for the sentences imposed by Judge Pitts sentences of two years concurrent on each count.	{"ConvCourtName":["Southwark Crown Court"],"ConvictPleaDate":["2008-04-07"],"ConvictOffence":["Sexual assault on a male contrary to section 3 of the Sexual Offences Act 2003"],"AcquitOffence":["Assault (allegedly committed in a public house)"],"ConfessPleadGuilty":["No"],"PleaPoint":["At trial"],"RemandDecision":["No"],"RemandCustodyTime":null,"SentCourtName":["Southwark Crown Court"],"Sentence":["2.5 years imprisonment on each count concurrent (original)","2 years imprisonment on each count concurrent (substituted on appeal)"],"SentServe":["Concurrent"],"WhatAncillary":null,"OffSex":["All Male"],"OffAgeOffence":[46],"OffJobOffence":["Employed"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":null,"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[15,16],"VicJobOffence":null,"VicHomeOffence":null,"VicMentalOffence":null,"VicIntoxOffence":null,"ProsEvidTypeTrial":["CCTV","Victim testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":null,"AggFactSent":["Multiple victims","Offences not isolated in time","Escalation of conduct","Significant age gap","Offences committed on public transport when victims isolated","Victims experienced actual and immediate fear and distress","Persistence in denial","Expressed sexual preference for boys"],"MitFactSent":["No mitigation available"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":null,"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentence fell outside relevant guidelines","Judge took into account circumstances not proved on evidence"],"SentGuideWhich":["Sexual Offences Act 2003 (Definitive Guideline, April 2007)"],"AppealOutcome":["Allowed"],"ReasonQuashConv":null,"ReasonSentExcessNotLenient":["Sentence should have reflected that assaults were on boys' clothed bodies, not naked","Upper limit of sentence in this case was two years' imprisonment"],"ReasonSentLenientNotExcess":null,"ReasonDismiss":null}
2015/04715/B1 Neutral Citation Number: [2016] EWCA Crim 2228 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 14 th December 2016 B e f o r e: LORD JUSTICE BURNETT MR JUSTICE WYN WILLIAMS and MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - R E G I N A v JONATHAN THOMAS CLARKE - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Mr O Cook appeared on behalf of the Applicant Mr D Lees (Solicitor Advocate) appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T Wednesday 14 th December 2016 LORD JUSTICE BURNETT: 1. On 27 th January 2015 in the Crown Court at Manchester before His Honour Judge Leeming and a jury the applicant was convicted of possession of just under a kilogram of heroin with intent to supply. On 26 th March 2015 he was sentenced by the trial judge to eight and a half years' imprisonment and ordered to pay the appropriate victim surcharge. 2. The applicant's application for an extension of time (seven months and two weeks) in and to apply for leave to appeal against conviction has been referred to the full court by the single judge. 3. The applicant was one of three defendants on an indictment. The others were Pinky Singh and Sony Khan. Singh was charged with being concerned in the supply of the drugs which the applicant was said to have had in his possession with intent on 17 th June 2014. She was also indicted on three other drugs offences. Sony Khan was charged on a single count of possessing cocaine with intent to supply on a later date. He did not feature in the trial. The applicant was tried only with Singh. She was convicted on all counts. Another person said to have been connected with the supply of the heroin which concerned the applicant was a man called Qadir Hussain. He pleaded guilty to conspiracy to supply that heroin on a separate indictment. 4. Qadir Hussain and a number of other men had pleaded guilty to that conspiracy. It extended over a wide time period and concerned the supply of drugs in the Manchester area on a commercial basis. As we have indicated, the conspiracy included the events of 17 th June 2014, which are those which concerned this applicant. On that day he travelled in a car with his girlfriend and her father, Ian Graham. They were joined in that car for a period of about seven minutes by Hussain. A subsequent analysis of telephones showed that before Hussain had joined the applicant and the others in the car, a telephone attributed to Hussain was in repeated contact with a telephone linked to Singh and then to a telephone found in the car. It was the prosecution case that that was the applicant's phone. 5. The car was followed by the police who had Hussain under surveillance. After it stopped, the applicant was observed to run away from the car carrying a package in his left hand on which he was wearing a latex glove. He ran for about half a mile, during which he was chased by a police officer. It was that package which, in due course, was subjected to analysis and found to contain 980 grams of heroin of about 50 per cent purity. 6. The prosecution case was that Singh had arranged for the applicant to collect a parcel of drugs from Hussain. That case had five essential features: (1) The admission by Hussain of his involvement in the business of supplying that heroin to others; (2) Telephone contact on 17 th June 2014 between the phones we have mentioned (the number of the telephone in the car attributed to the applicant ended in 497); (3) The attribution to the applicant flowed from the fact that the phone had on it a number of calls and text messages from his girlfriend's telephone. Further, the number of the 497 phone was found in his girlfriend's phone under the name "Gorgeous". It was also in her father's phone under the name "Jonathan". (4) The significance of the applicant running from the car with the package, wearing a latex glove; and (5) Inferences from the applicant's failure to mention when interviewed the involvement of Ian Graham in the arrangements of 17 th June 2014, that the telephone ending in 497 recovered from the car was not his; and that the package with which he eventually ran away must have been in the car when he got in. The judge gave an extensive and meticulous direction relating to the inferences that the jury might draw from that last matter. 7. The applicant readily accepted the chronology of events which were set out in detail as having occurred on 17 th June 2014. His case was that the meeting arranged through Singh was not with him, but with Ian Graham. The applicant suggested that the meeting was to discuss the purchase of a car. He (the applicant) knew nothing of drugs. He denied that the telephone ending in 497 was his. He accepted that he ran from the car carrying a package, but he denied that he knew or suspected that the package contained illegal drugs. He said that he had been given the package by Ian Graham in a rush when the car was stopped by police and was simply told to get rid of it. 8. The jury was thus concerned with two central issues. The first was whether the applicant had the relevant knowledge that the package he was carrying contained drugs. The second (if that question were answered in the affirmative) was whether he intended those drugs to be supplied to others. It was in those circumstances that section 28(2) of the Misuse of Drugs Act 1971 came into play. It provides: "Subject to subsection (3) below, in any proceedings for an offence to which this section applies, it shall be a defence for the accused to prove that he neither knew of, nor suspected, nor had reason to suspect, the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged." 9. The effect of this reverse burden of proof clause was considered by the House of Lords in R v Lambert [2002] 2 AC 545 . The question was whether it was compatible with article 6 of the European Convention on Human Rights to impose a legal burden of proof on an accused in this way. The House of Lords concluded that the provision could be read compatibly with the presumption of innocence guaranteed by article 6, as imposing an evidential rather than legal burden on the accused. 10. The grounds of appeal advanced in this application are: (1) Judge Leeming QC failed to direct the jury correctly on the burden and standard of proof. (2) Judge Leeming failed to direct the jury to consider the possibility of a conviction for simple possession of diamorphine rather than possession with intent to supply. The grounds were supported by a comprehensive Advice on Appeal settled by Mr Johnson QC. This morning the applications have been argued on behalf of the applicant by Mr Cook, who has presented all arguments with commendable clarity and realism. 11. We start by summarising our conclusions on the grounds that we have identified. On the first ground, we have concluded that, whilst the directions given by the judge did not accurately reflect the nature of the evidential (as opposed to legal) burden placed upon the applicant, he nonetheless made it abundantly clear that it was for the prosecution to make the jury sure that the applicant knew or suspected that the package contained illegal drugs. In our view, the confusion in the directions could not possibly have misled the jury in the task upon which they were engaged. Whilst it is certainly arguable that the direction was wrong in parts, we do not consider it arguable that the conviction on that account is unsafe. 12. On the second ground, our conclusion is that simple possession was left to the jury, despite its being no part of the case advanced or argued by the applicant at trial. There was no arguable error on the part of the judge. 13. We turn to the material directions and to explain why we have reached those conclusions. The judge directed the jury conventionally on the burden and standard of proof towards the beginning of the summing-up. He said: "The standard of proof which the prosecution must achieve before you can convict is simply this: the prosecution must make you feel sure of the defendant's guilt in respect of the count you are then considering. Nothing less than being sure of guilt will do if there is to be a conviction in this case on any count in respect of either defendant." 14. The direction relating to count 2 was in these terms: "So turning to count 2 and Jonathan Clarke first, the [applicant] accepts that he was carrying a package in his gloved hand as he exited the Ford Focus and so that the package was in his possession. However, he denies that he knew or suspected that the package contained illegal drugs or that he intended to supply heroin or indeed any drug to another person or to other people. To be found guilty the [applicant] must not only have known that he was carrying a package containing the heroin but he must also have known or suspected the package contained illegal drugs, not necessarily that it was heroin, simply that it contained illegal drugs of some kind whether they were heroin, cocaine or even cannabis. It is a defence for a defendant to prove that he neither knew nor suspected nor had reason to suspect that the package contained illegal drugs. The law is that that is a matter for him to prove on all the evidence. However, whenever the law requires a defendant to prove something he does not have to make you sure of it, he only has to show that it is probable which means it is more likely than not that he did not know, suspect or have reason to suspect that the package contained illegal drugs, or to put it another way, the prosecution must make you sure that he knew or suspected that the package contained illegal drugs ." (our emphasis) 15. The judge continued this part of the summing-up by explaining to the jury the correct approach to the question of intent. No point is taken on that. 16. He then turned to what he described as the "key questions" which the jury must consider. He said: "So the key questions for you to consider in respect of count 2, having regard to all the evidence and my legal directions, are these: are you sure that the package recovered by the police ... contained illegal drugs? If the answer to that question is or may be no, then the defendant is not guilty of this count and you need not go on to answer the next question, but if you are sure the answer is yes, go on to answer the next question. Are you sure that the [applicant], Jonathan Clarke, knew or suspected that the package contained illegal drugs? If the answer is or may be no the [applicant] is not guilty. If you are sure the answer is yes, go on to answer the next question. Are you sure that he intended to supply all or part of those drugs to another person or other people? If you are sure that the answer to the question is yes, the [applicant] is guilty to count 2, possession with intent to supply. But, if the answer to the question is or may be no, the [applicant] is not guilty of count 2 but guilty of the less serious alternative offence of simple possession. In those circumstances your verdict would be not guilty of possession with intent to supply but guilty of simple possession." The whole of this part of the summing-up was provided to the jury in written form. They had it with them when they retired. 17. Mr Cook rightly submits that the part of the narrative dealing with the reverse burden of proof did not suggest that the applicant merely had an evidential burden placed upon him by virtue of section 28(2). Had the judge left the matter there, the effect would have been to impose a legal burden upon the applicant. That would have been an approach inconsistent with the decision of the House of Lords in Lambert . But the judge did not leave it there. He said in terms that the prosecution "must make you sure that he knew or suspected that the package contained illegal drugs". In the passage which we have underlined in the quotation the judge prefaced that with "to put it another way". In our opinion that invited the jury to approach this question on the basis that if the prosecution was unable to make the jury sure, it would follow that the applicant had discharged the burden upon him. Mr Cook submits that the effect of the direction at least left open the possibility that the jury might have approached the question the other way around. However, we do not consider that to be a realistic submission, given the strength of the language used, and in particular the use of the word "must". 18. Furthermore, the need for the jury to be sure of the relevant matters was reinforced by the "route to verdict" part of the judge's directions. That part contains nothing which could be described as an error. 19. It follows that, whilst the directions were not in all respects legally correct, they rightly and repeatedly told the jury that they must be sure of this matter before they could convict. For this reason, in our judgment, the misdirection was immaterial. 20. We have seen that within the directions we have quoted the judge explained that if the jury concluded that the applicant had the requisite knowledge to establish possession, but were not sure that the possession was with intent to supply, they should convict of simple possession. Counsel who represented the applicant at the trial has confirmed that this possibility was not canvassed by him in his closing speech, for reasons we fully understand. Anyone concerned in trials of this nature will also fully understand. It would have been entirely inconsistent with the case being advanced by the applicant, which was simply that he was wholly ignorant of the contents of the package. He had in fact said in his evidence that he considered it might contain a gun of money. That would appear to be because he knew Ian Graham to be a criminal; but he believed him to be innocent at least of involvement in the supply of drugs. 21. The judge dealt with the point about simple possession again a little further on in his summing-up, when he helpfully summarised for the jury the verdicts open to them in respect of each of the defendants. So far as the applicant was concerned, he said: "In relation to count 2, Jonathan Clarke, possession with intent to supply heroin, either guilty or not guilty, or not guilty but guilty to simple possession." The essential criticism advanced in respect of this aspect of the application by Mr Cook is that, in the course of his summing-up, the judge did not tie in the evidence given by the applicant to the possibility of a conviction for simple possession. 22. The judge extensively summarised the applicant's evidence. We have also summarised the prosecution case. We note that the judge expressly directed the jury that they should take into account the telephone evidence against the applicant only if they were sure that the phone ending in 497 was his. In the course of his evidence the applicant had said that Hussain did not provide the package when he got into the car. The applicant also explained that whilst Hussain was in the car, he (the applicant) was oblivious to whatever discussion was going on between Hussain and Ian Graham. It was only when the police became involved that Ian Graham suddenly told him to "get rid" of the package which had been in the glove compartment and also threw a latex glove at him. The applicant explained that he put on the latex glove, grabbed the package and ran. He simply did what he was told. 23. In our view, it was thus entirely clear to the jury that the applicant's account had three essential components: first, that until he was told to "get rid" of the package he had no knowledge of it at all; secondly, that he did not know or suspect that the package contained drugs; and thirdly, that his only purpose was to get rid of it. 24. The jury had to be sure that the applicant was in possession of drugs with intent to supply before convicting him of the offence charged in the indictment. If they had concluded that there was or might have been some truth in his account of being ignorant of the presence of the package until he was asked to dispose of it, or that disposal and nothing more was the limit of what he intended, they could not have been sure with regard to the ingredient of the offence relating to intent to supply. 25. It is true that the judge might have spelt out with more particularity the circumstances in which the jury might be unsure of the intent aspect of the count, but in our judgment, in the context of the dynamics of this trial, it was not necessary to do so. It is no criticism that he did not. The matter was very properly left to the jury by the judge, despite its forming no part of the applicant's case. The directions on the alternative verdict are not criticised. They were correct. They appeared in the "Route to Verdict", with which the jury retired. In our view, there is no arguable error in connection with this aspect of the case. 26. We have dealt with the substance of the matter without hitherto considering the long delay in bringing this application. Had we concluded that the conviction was arguably unsafe, we would have extended time. The period of delay has been fully accounted for in the statement from the applicant's current solicitor. But, having concluded that the grounds advanced on behalf of the applicant could not lead to a conclusion that the conviction is unsafe, we refuse the application to extend time and refuse leave to appeal.	{"ConvCourtName":["Crown Court at Manchester"],"ConvictPleaDate":["2015-01-27"],"ConvictOffence":["Possession of heroin with intent to supply"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Manchester"],"Sentence":["Eight and a half years' imprisonment","Victim surcharge"],"SentServe":[],"WhatAncillary":["Victim surcharge"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Telephone evidence","Surveillance","Forensic analysis of package (heroin)","Inference from conduct (running, latex glove)"],"DefEvidTypeTrial":["Denial of knowledge of drugs","Alternative explanation for package (told to get rid of it)","Denial of ownership of phone"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction"],"AppealGround":["Judge failed to direct jury correctly on burden and standard of proof","Judge failed to direct jury to consider simple possession as alternative"],"SentGuideWhich":["section 28(2) of the Misuse of Drugs Act 1971"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Directions to jury, though not perfect, made clear prosecution had to prove knowledge/suspicion of drugs","No arguable error in judge's directions on alternative verdict of simple possession","Conviction not unsafe"]}
Neutral Citation Number: [2012] EWCA Crim 10 Case No: 201101390 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Exeter Crown Court before HHJ Cottle on 11 February 2011 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24.1.12 Before : LORD JUSTICE PITCHFORD MR JUSTICE ANDREW SMITH and MR JUSTICE POPPLEWELL - - - - - - - - - - - - - - - - - - - - - Between : HOWARD JAMES DWYER Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mark Jackson (instructed by Dunn & Baker - Solicitors ) for the Appellant Richard Crabb (instructed by CPS ) for the Respondent Hearing date: 4 November 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. The issue raised by this appeal, which has been brought with the leave of the single judge, is the appellant’s entitlement to plead autrefois convict or, in the alternative, to obtain a stay of an indictment on the ground that it was founded upon facts the same or substantially the same as those which founded a charge in earlier proceedings. First set of proceedings 2. On 21 January 2010, the day after his arrest, the appellant appeared at Central Devon Magistrates Court, sitting at Exeter, charged with an offence contrary to Section 5(3) Misuse of Drugs Act 1971, namely, having in his possession at Honiton on 20 January 2010 a quantity (in fact 3.41g at 17.66% purity) of diamorphine (heroin), a controlled drug of class A, with intent to supply it to another person. He pleaded guilty to the charge and was committed to the Crown Court for sentence under Section 3 Powers of Criminal Courts (Sentencing) Act 2000. 3. The appellant appeared at Exeter Crown Court on 19 February 2010 before Miss Recorder Munro QC. The prosecution was represented by Ms A Hampshire and the appellant by Mr T Holder. Exercising her powers to sit as a District Judge the Recorder invited the appellant to enter his plea to two further charges, the first charging him with possession of 0.17g of diamorphine at Honiton at 9 October 2009, contrary to Section 5(2) Misuse of Drugs Act 1971, and the second charging him that on the same day he was in possession of 2.23g of cannabis of class B, at Honiton, also contrary to Section 5(2). The appellant pleaded guilty and the formalities for committal for sentence were dispensed with. 4. The appellant appeared at the Crown Court together with Michelle Makin. Miss Makin was a neighbour of the appellant’s, also charged with supplying drugs. The connection was that Miss Makin claimed the appellant had given her drugs to hold on his behalf. The appellant was never charged with such an offence. Miss Makin’s case was adjourned for a pre-sentence report (“PSR”) and an assessment for a drug rehabilitation requirement (“DRR”). Mr Holder also made an application for an adjournment for the preparation of a PSR and a DRR assessment. The Recorder responded, “I know the facts of this case. He is within the range in the case of Afonso [(2005) 1 Cr App R (S) 99 (p560] of a two to two-and-a-half year sentence, is he not?” Mr Holder, replied, “He is. That has to be cast against the background where he is 31, did not get into heroin until 29 years of age, so relatively late. His record, which hopefully you have had sight of, bears that out in the sense that there is an absence of drug offending...” 5. Mr Holder continued: “Really my submission is this. Yes, of course your Honour could send him to prison for the required amount, but this is an opportunity...to actually nip in the bud the problem that he has – because he has been dealing – and he is quite candid about this – for a period of about 6 months in this fashion, namely small amounts of heroin, some 25 wraps in this case. This is not unusual. He has about four wraps himself and four wraps [for] his girlfriend per day. He sells the rest; he gets it on credit and then sells it, then pays off the debt; and it funds his habit, in effect, and his girlfriend’s habit; so it is a relatively...well, it is almost not corner shop, let alone a supermarket. But in those circumstances it may well be that a DRR will be in the public interest, because he is now on methadone; he has never ever had methadone before. He is finding it effective and...he is extremely keen to cut this past life off; and it is a short life in terms of drug-taking. The clang of the doors has clearly had an effect...” The Recorder adjourned sentence for the preparation of “a pre-sentence report and the drug rehabilitation assessment, and him for that assessment, but with absolutely no promises that, even if it is a positive report, he will necessarily have the advantage of it”. 6. The appellant next appeared in the Crown Court for sentence on 12 March 2010. The case was opened by Mr A Allsop (who had not been present on 19 February) before Miss Recorder Munro QC as follows: “Two offences, the first on 9 October of last year; a warrant was executed at 7A King Street [Honiton] the home of Mr Dwyer. The police attended and they searched the premises and seized 0.17 grams of diamorphine and 2.23 grams of cannabis. It is right that some drugs were found in the alleyway outside, but there has been no evidential link between those and Mr Dwyer, that is despite police seeing him crouching in bushes prior to them conducting the search of his address; his explanation was he was looking for his kittens. He was interviewed, and it is right that he admitted possessing both the heroin and the cannabis stating it was for his personal use … Whilst on bail – magistrates’ bail – for that offence, on 20 January the police saw someone who they believed to be a drug user [Dunster]. They then saw Mr Dwyer in the same alleyway. They believed that a drug deal was going to take place, and they saw Mr Dwyer place a small bright green package on a fence post in the alleyway. Mr Dwyer was detained. They went to the fence post and recovered the green item which subsequently was found to contain 25 wraps of heroin. His home address was searched; £100 in cash in a plastic bag matching that of the drugs that were seized [was] found. Mr Dwyer was interviewed and made no comment to all questions asked during the interview. It is right that in relation to his antecedents, whilst there are no convictions for any drug offences, he does have one caution, 8 May 2007, and that is for possession of cannabis. His convictions relate to criminal damage, theft and driving whilst disqualified, so I am not sure if I can assist with the details of those.” 7. Mr Holder first invited the Recorder to pay no attention to the suspicion which arose from his conduct on 9 October 2009. The Recorder remarked that the appellant had already admitted that he had been dealing in heroin to fund his own habit. The Recorder clearly had in mind the explicit admissions made at the earlier hearing. Mr Holder continued: “So we come to this … your Honour is perfectly entitled to pick up the Sentencing Guideline and give him whatever is appropriate; but having said that … the fact is he has come late in life to drugs; … he has not had any treatment in the past; … he is now on methadone … on a reduced … script. He is doing well in prison; he has participated in all of those things that he should … I am told he has not failed any drugs tests in any shape or form; the only thing that shows up is methadone. He would very much like the opportunity, not just to get out of prison but to actually do something about the very thing that is blighting his life, and this is perhaps the one opportunity where there is the greatest motivation to do that.” The Recorder had before her a short-form PSR dated 9 February 2010 and a DRR assessment dated February 2010. The author of the pre-sentence report, Diane Davies, said of the facts that the police had “noticed a known drug dealer [Dunster] behaving in a suspicious manner. Continuing to observe him they also noticed Mr Dwyer in close approximation. They detained the first man but continued to watch Mr Dwyer as he placed a small, green item on a fence post in an alleyway. The item was seized and Mr Dwyer was arrested.” Unknown to the Recorder and to the defence the police were engaged in a wider surveillance operation and it would appear from later events that the appellant’s arrest was premature. Attached to the PSR was a letter dated 28 January 2010, written by the appellant’s solicitors to the probation service in anticipation of a sentencing hearing on 19 February. In it, the solicitors wrote: “Mr Dwyer pleaded guilty [in the Magistrates Court] and explained to the court that he is a heroin addict selling heroin to fellow addicts in order to fund his own supply with additional profit. He has explained that he purchases drugs every four days, keeps a third for himself, and sells two-thirds which covers the cost of purchase, just about.” The contents of the letter were specifically referred to in the PSR under the title “Why did the offence(s) occur?” The Recorder therefore had before her the appellant’s admission that for 6 months he had been receiving heroin from his supplier every four days; that he sold two-thirds of each delivery to fund one-third which and his girlfriend consumed; that on any one day he would be in possession of about 25 wraps of which 17 would be for re-sale. The PSR proceeded upon the basis of the admissions made in the solicitors’ letter. Ms Davies made no specific recommendation but noted the appellant’s co-operation with the CARAT team while in custody, his negative drugs tests (save for methadone) and the appellant’s enthusiasm for a drug rehabilitation programme. The DRR assessment report noted the appellant’s admitted intake of 0.6g heroin daily, that he was “very motivated and keen to address his drug misuse”, that he was being maintained on 30mls methadone daily, and recommended the appellant for a 6 – 9 month standard DRR. Mr Holder informed the Recorder that the appellant had since reduced his methadone prescription to 20mls daily. 8. Having confirmed the continuing availability of the appellant’s home address the Recorder sentenced the appellant as follows: “You are 31 years of age and you have made three previous court appearances for irrelevant matters. I am to deal with you today for possession of a small amount of heroin and cannabis and for possession of 25 grams of heroin whilst you were on bail with intent to supply. I am quite satisfied that you were dealing heroin in order to fund your new found addiction to that drug. Quite why at the age of 29 you decided to get involved in heroin I do not know, but I hope that this has been the wake-up call that Mr Holder says that it has. I am not going to distinguish between you and lady who earlier this morning claimed you were giving her drugs to look at; I am going to give you the opportunity that you have asked for. Dealing in heroin is always treated by the courts as so serious that only prison is justified, and it will be prison, but I am prepared to suspend the sentence today. On the possession with intent to supply the sentence is 12 months suspended for 2 years; on the simple possession there will be 3 months sentences to run concurrent to that. If you commit any further offence within that 2 year period you start at 12 months and you move up from there; got it? … and there will be a drug rehabilitation requirement for a period of 9 months …” Second set of proceedings 9. On 19 August 2010 the appellant was sent by Central Devon Magistrates Court for trial upon a charge of conspiracy to supply class A drugs together with four co-accused, Mark Bayton, Russell White, Sean Currie and Peter Whaley. The indictment was signed on 10 December 2010. The particulars read that the defendants: “...between the 31 st day of July 2009 and the 21 st day of January 2010 conspired together with others unknown to supply a drug of class A namely heroin.” Plea of autrefois convict and application for stay 10. On 11 February 2011 the appellant appeared before HHJ Cottle at Exeter Crown Court to plead autrefois convict. It is helpful to recall that the customary form of plea of autrefois convict illustrated by Archbold Criminal Pleadings, Evidence and Practice (2011), paragraph 4 – 155, is: “The defendant ‘says that the Queen ought not further to prosecute the indictment against him because he has been lawfully convicted of the offence charge therein’.” Neither party called evidence; they submitted written skeleton arguments in which the facts as submitted by Mr Crabb (who was now appearing for the prosecution) in his skeleton argument of 21 January 2011, were assumed subject to interpretation and argument. Mr Jackson (who was now representing the appellant) submitted in the alternative that the indictment should be stayed as against the appellant since it was founded upon the same facts as his conviction of 21 January 2010, or upon substantially the same facts, and there were no special circumstances which rendered further prosecution appropriate. 11. The evidence upon which the indictment for conspiracy to supply was founded was itemised by Mr Crabb in his skeleton argument and we summarise as follows: 1. On 9 October 2009 a Kinder egg (GMH1) containing 25 wraps of heroin (3.85 g) was found concealed in a wall close to Dwyer’s home address in Honiton at a spot where Dwyer had been seen on 24 September 2009 examining an item. 2. On 5 December 2009 and 22 December 2009 Dwyer was seen in Honiton with Bayton in White’s vehicle, P122 VWO. 3. On 8 January 2010, a known drug user (Bailhache), was arrested leaving Dwyer’s address with 2 wraps of heroin in her possession. Dwyer and Currie were inside the property. Dwyer had £50 in his wallet and Currie had 8 wraps of heroin concealed in a cigarette lighter. 4. On 8 January 2010 Bayton’s home address in Exeter was searched. A total of £11,775 in cash was recovered together with a dealer’s list which included the entry, “Howie/Honiton = ½ = 420” which the prosecution alleged was a reference to Howard Dwyer of Honiton being supplied with half an ounce of heroin for £420. 5. On 20 January 2010 Dwyer was seen to deposit an item in an alleyway near his home address which was found to contain 3.41g of heroin in 25 wraps. He was arrested. 6. On 20 January 2010 White’s vehicle, P122 VWO, was stopped on the M5 south-bound with White driving and Whaley in the passenger seat. In the front passenger foot well was found 293.5g of heroin. 7. Mobile phones were seized from or attributed to Bayton and Dwyer. ANPR cameras on the A30 between Exeter and Honiton were checked for records of White’s vehicle, P122 VWO, and a vehicle previously registered to him, R139 SES, and the results were scheduled. The drugs were sourced from Manchester. 8. There was contact between Bayton’s and Dwyer’s mobile phones following by a sighting of White’s vehicle making either an eastbound journey towards Honiton or a westbound journey from Honiton or a return journey on 31 July 2009 and on 28 further dates between 26 September 2009 and 19 January 2010. There was contact between the mobile phones of Dwyer, Bayton and White on other days during the period. 9. The prosecution thus asserted that Bayton delivered heroin to Dwyer on no fewer than the 29 occasions referred to in paragraph 8 above. Mr Crabb submitted that the scale of dealing revealed by the mobile telephone and ANPR evidence, which became available to the prosecution on 6 June 2010 and 13 April 2010 respectively, far exceeded the “relatively minor part of Dwyer’s activities within the overall conspiracy” for which the appellant had been sentenced by Miss Recorder Munro QC on 12 March 2010. He asserted that “by January 2010 the appellant was receiving a delivery of heroin (probably ½ oz or the equivalent of about 150 x £10 bags) on an almost daily basis.” This, he submitted, was very different from the facts before the court on 12 March 2010 and there was no reason why the indictment should not proceed to trial. 12. Mr Jackson submitted that the evidence gathered by the police after the appellant was sentenced on 12 March 2010 did no more than confirm the appellant’s own admission to the court on 19 February 2010 on the basis of which he had already been sentenced. It was not asserted by the prosecution that the appellant’s position in the conspiracy was any different from that which he had confessed, namely as a buyer of heroin on credit for re-sale on a regular basis for a period of 6 months. The quantity which the appellant admitted dealing was sufficient to provide him and his partner with 8 wraps of heroin a day for a period of 6 months. 13. We note that, by the date of the appellant’s appearance in the Crown Court for sentence on 19 February 2010, the police had in their possession evidence of the appellant’s suspicious activity on 9 October 2009; his association with Bayton; a deal at the appellant’s home on 8 January 2010; the appellant’s association with Currie on 8 January 2010; the appearance of the appellant’s name on Bayton’s dealer list discovered on 8 January; and the appellant’s suspicious behaviour and possession of 25 wraps on 20 January 2010. We conclude that there was available to the prosecution evidence that the appellant was a retailer of heroin and that Bayton was his supplier. The evidence did not, however, establish the frequency with which the appellant received supplies, nor the scale of his dealing; nor was this evidence opened to Miss Recorder Munro QC on 19 February or 12 March 2010. 14. On 11 February 2011 HH Judge Cottle rejected the plea of autrefois convict and the application for a stay of the indictment against the appellant. The appellant changed his plea to guilty on advice and submitted a written basis of plea and a written submission as to the basis of his plea. That basis was rejected by the CPS and the appellant appeared at Exeter Crown Court before Butterfield J for sentence on 29 July 2011. He was sentenced to a term of 4 years imprisonment. We examine the proceedings before HH Judge Cottle and Butterfield J in more detail at paragraphs 26 – 30 below. Discussion and conclusion – autrefois convict 15. We turn to consider the legal principles on which turned the plea of autrefois convict entered by the appellant before HHJ Cottle on 11 February 2011. In Beedie [1997] 2 CR App R 167 , this court was required to determine what was the true ambit of the plea of autrefois convict by examination of the speeches of their Lordships in Connelly v DPP [1964] AC 1254 , 46 Cr App R 183 (HL). The court accepted the analysis of Clarke J, as he then was, at first instance. The Vice President, Rose LJ said at page 170: “Mr Smith was inclined to concede, on reflection, that Clarke J’s analysis of the speeches in Connelly v DPP was correct, namely, that the majority of the House of Lords identified a narrow principle of autrefois convict, applicable only where the same offence is alleged in the second indictment. In our judgment this concession was rightly made. At page 251 and page 1339 Lord Devlin said, “For the doctrine to apply it must be the same offence both in fact and in law”, and he went on at page 252 and page 1340, having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts. Lord Pearce, at page 283 and page 1368, agreed with the opinion of Lord Devlin. Lord Reid, at page 200 and page 1295: “… many generations of judges have seen nothing unfair in holding but the plea of autrefois acquit must be given a limited scope … I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial.” It follows that we are unable to accept the view of the editors of Archbold expressed in earlier editions, and in paragraph 4 – 117 of the 1997 edition, that Lord Morris’s speech and, in particular, his third and fourth principles expressed at page 1305 (that the principle of autrefois applies to offences which are the same, or substantially the same, and an appropriate test is whether the evidence to support the second indictment or the facts constituting the second offence would have been sufficient to procure a conviction on the first indictment) represents the ratio of the House’s decision. Clarke J’s analysis was correct. The majority of their Lordships in Connelly defined autrefois in the narrow way which we have described, that is when the second indictment charges the same offence as the first and said that judicial discretion should be exercised in other appropriate cases.” 16. In our judgment this passage from the judgment of the Vice President in Beedie disposes of the appellant’s first argument. The appellant was charged in the Magistrates Court with possession with intent to supply of 3.41g of heroin. He was charged in the indictment with conspiracy to supply heroin during a period of 6 months. The plea of autrefois convict was not available to him. Discussion – stay on the ground of abuse 17. We therefore need to examine the appellant’s second ground of appeal, namely that HHJ Cottle was wrong to hold that the indictment should not be stayed as an abuse of the process of the court. 18. The facts in Beedie were that the appellant had been prosecuted for breach of his duty under Section 3(2) Health and Safety at Work Act 1974 to maintain a gas fire installed in a flat of which he was landlord. In consequence of his breach his tenant, a 19 year old young woman, died from carbon monoxide poisoning. The appellant was subsequently prosecuted under the Housing Act 1985 and regulations made under the Act for further breaches of his obligations as ‘manager’ in respect of similar gas fires in the same property. There then followed a Coroner’s Inquest which found that the deceased had been unlawfully killed. The CPS then instituted a prosecution for manslaughter. Counsel invited the trial judge to stay the indictment as an abuse of process. In the Court of Appeal the argument was advanced that no man should be punished twice for an offence arising out of the same or substantially the same set of facts. This formulation of the test comes from the words of Lord Devlin in Connelly when he said at [1964] AC, pages 1359 – 1360: “As a general rule a judge should stay an indictment (that is, order that it remain on the file not be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried … but a second trial on the same or similar facts is not always necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.” That principle was accepted by the court in Beedie . The prosecution had at all relevant times known of the facts which would have supported an indictment for manslaughter, yet had chosen to charge summary offences only. The appellant had given evidence to the Inquest on the understanding that there would be no further proceedings arising out of the same incident. The respondent advanced a public interest argument that where death was involved a prosecution should take place. The Court allowed Mr Beedie’s appeal against conviction on the ground that there were no special circumstances which made it just to try the case of manslaughter. The same formulation of the principle was accepted by the court in Phipps [2005] EWCA Crim 33 . At paragraph 21, Clarke LJ, as he then was, giving the judgment of the court, observed: “21. The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded. The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson) is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident. Any other approach is unfairly oppressive to a defendant. It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course. Once the Crown has identified the charges it wishes to bring, it is a matter of case management how those charges are tried. Thus it is a matter of case management where and when the trial or trials should take place.” 19. The central issue whether a second prosecution is brought on “the same or substantially the same facts”, or the proceedings arise “out of the same incident as the first set of proceedings” is brought into sharp relief by the facts of the present case. The facts in respect of which the first prosecution was launched (we emphasise “launched”) were that the appellant was caught in possession of 3.41 grams of heroin in 25 wraps, with intent to supply. While the prosecution had or had access to evidence which gave rise to the strong suspicion that he had done it before, it did not have evidence upon which to charge the appellant with a conspiracy the breadth of which later appeared in the second indictment. That charge only became available to the prosecution when it was in possession of the telephone and ANPR evidence. 20. The issue now arises whether the terms of the appellant’s public admissions to the sentencing judge were capable of and did constitute the facts upon which the first set of proceedings were concluded (we emphasise the word “concluded”). It is a principle of sentencing practice that the defendant may not be sentenced for offences with which he has not be charged or which have not been taken into consideration. Offences taken into consideration may be formally listed in a schedule served on the defendant in advance, and steps must be taken to ensure that the defendant admits each further offence and understands that the court will consider them when deciding what the appropriate sentence is. ( Quaere whether a plea of autrefois convict is available when an offence taken into consideration is subsequently charged in separate proceedings – see Nicholson [1948] 32 Cr App R 96 ; c.f. McMinn [1945] 30 Cr App R 138 ). However, a practice has emerged in prosecutions for possession of drugs with intent to supply by which the sentencing judge makes an assessment of the scale of the offender’s involvement in drug trafficking, proved by evidence of or admissions as to the surrounding circumstances. In Russen [1981] 3 Cr App R (S) 134 the offender pleaded guilty to four counts of possession of drugs with intent. He had made a confession statement in which the full extent of his involvement had been described. The court approved the sentencing judge’s decision to assess sentence not merely by reference to the four charges but also by reference to the background established by his statement. Later decisions of the court cast doubt on this practice. Where the defendant resiled from admissions of further offending, the court should not have sentenced on the basis that they were true admissions (see Ayensu & Ayensu [1982] 4 CR App R (S) 248). However, in Satvir Singh (1988) 10 Cr App R (S) 402 the appellant, a doctor, had been convicted of the possession of 80g of heroin with intent to supply. During his trial the prosecution had been permitted to lead evidence which supported its case that the appellant had also supplied smaller quantities to two nurses and that, while on remand in prison, he had been found in possession of 6g of heroin. Lord Lane CJ gave the judgment of the court which updated guidance on the level of sentencing for drug trafficking offences following changes in the statutory maximum sentences for importation, supply, production and possession with intent to supply from 14 years imprisonment to life imprisonment. As to the specific appeal of Dr Singh, Lord Lane said at page 406: “It should perhaps be noted that in this aspect of the matter [assessing the appropriate sentence for possession with intent to supply] that the assistance which can be derived by the sentencing court from the amount of the drug actually found in the possession of the accused is limited. It is the scale and nature of the dealing which are the material factors. Turning now to apply these considerations to the present case, this appellant was shown to be a regular dealer in heroin. He had also supplied cannabis. He was found in possession of amphetamines. He had the scales. He had sophisticated means of concealment. He had also large sums of cash to hand.” 21. The issue of principle was re-examined by the court in Canavan [1997] EWCA Crim 1773, [1998] 1 Cr App R(S) 79 in the context of Section 1(2) Criminal Justice Act 1991. Section 1(2) provided that in considering whether to pass a custodial sentence the court would assess “whether the offence or the combination of the offence and one or more offences associated with it, were so serious that only such a sentence can be justified for the offence”. The court held that “other offences associated with it” included only offences of which the offender had been convicted. They did not include offences revealed by evidence given in support of sample counts in the indictment. Lord Bingham CJ, delivering the judgment of the court, recommended to prosecutors that a sufficient number of charges should be laid in the indictment to reflect the prosecution’s view of the offender’s repetitive criminality. (See now CrimPR r.14.2(2) for authority to charge in a single count multiple incident offences, and section 17 Domestic Violence, Crime and Victims Act 2004 as to an application to follow a trial by jury with a trial by judge alone.) 22. A year later, judgment was given in the appeal in Djahit [1999] 2 Cr App R(S) 142. Djahit pleaded guilty to possession of heroin with intent to supply and to simple possession of cannabis. The police found in the appellant’s house four bags of heroin and a further small quantity in a sock. The total weight was 21.5 grams. Also found was £6,000 in cash, a dealer’s list, a set of scales and bags. The appellant accepted that all but the dealer’s list belonged to him. Hooper J, as he then was, giving the judgment of the Court, said, at page 145, that the mere fact that the appellant had pleaded guilty to a single count of possession with intent did not prevent the court from assessing the level of dealing, that is, the offender’s degree of involvement, the amount of the trafficking and the value of the drugs involved. If, however, there was a dispute as to the level of dealing and there was no conviction for previous dealing over a period of time then, on the principle settled in Canavan , the judge’s sentencing discretion was limited. This limitation was subsequently confirmed in later cases including Brown [2000] 1 Cr App R(S) 300 and Ahmadzay & Ahmad [2009] EWCA Crim 1115 . It has, at least since the decision of the Court in Satvir Singh , been commonplace for the sentencing court to reach an assessment of the offender’s culpability, when he has pleaded guilty to a single charge of possession with intent to supply, which is based upon his admitted course of dealing and, following a trial, for the judge to make an assessment of the evidence so as to establish the nature and degree of the defendant’s involvement, provided, in the latter case, that the Canavan principle is not transgressed. 23. In the present case the appellant made a public admission to the judge which went considerably beyond the culpability revealed by the single count of possession with intent to supply to which he had pleaded guilty. Since the appellant was admitting that he had been dealing for a period of 6 months in quantities sufficient to provide him with 8 wraps of heroin per day, it was clear that he had, over the course of 6 months, dealt on a substantial scale notwithstanding each sale by him was of a comparatively small quantity. He would have been liable on ordinary sentencing principles, even after a plea of guilty, to a sentence of about 4 – 5 years imprisonment since this was an offender who had kept his own store of drugs for re-sale and did so over a prolonged period. It is to be noted that the Recorder identified this as an Afonso case before she had heard the admissions put forward on the appellant’s behalf by Mr Holder. In our view this was never a case such as was envisaged by the Court in Afonso. It certainly was not such a case once the Recorder decided to sentence on the factual basis of the appellant’s admissions. 24. The appellant asked to be sentenced on the basis of his admissions. The prosecution (Mrs A Hampshire) did not demur. In particular, the prosecution did not in the period between 19 February 2010, when the admissions were made, and 12 March 2010, when the appellant was sentenced, make any application, either to have additional offences scheduled in a TIC form to be put to the appellant at the sentencing hearing, or move to charge the appellant with additional offences based on his admissions. The prosecution could have taken either course. 25. As Lord Devlin and Lord Pearce said in Connelly , and as Clarke LJ re-iterated in Phipps , the principle which underlies the court’s special discretion to stay proceedings save in the presence of special circumstances, when the second set of proceedings is founded upon the same or substantially the same facts as the first, is that the obligation is upon the prosecutor to lay all the charges which it wishes to bring arising out of the same incident. Clarke LJ in Phipps , at paragraph 21, and Moses LJ in Marcellin [2010] EWCA Crim 2733 , at paragraph 26, both regarded the critical moment as the date when the first proceedings were finally concluded, and not the date when guilt was established. In our judgment, the words “the same or substantially the same facts” and “the same incident” refer to the relevant state of affairs as they existed to the knowledge of the prosecutor at the date the proceedings were concluded. At any time up to that date the prosecutor may lay the charges it wishes for the purpose of capturing the offender’s known culpability. If that culpability embraces further offences committed on other occasions which are not charged, ordinarily they should be charged or taken into consideration. This is exactly the problem which faced the prosecutor when a decision was made about two other conspirators named in the same indictment. As in the case of the appellant, Bayton and Whaley had been charged with substantive offences following their premature arrests during the surveillance operation. Those proceedings were discontinued in order that the prosecution could pursue the conspiracy indictment. In this appellant’s case that did not happen. The appellant pleaded guilty in the Magistrates Court and, in the Crown Court, made his confession. Strictly, his confession was to the commission of further offences which in the ordinary way should have attracted further charges or TICs. The present question for the court is whether an exception should be made for an assessment of culpability on the basis approved in Djahit . In order to test this question we have asked ourselves: Could the appellant have appealed successfully against a sentence of 4 - 5 years imprisonment, had such a sentence been imposed by the Recorder, solely on the grounds that the Recorder was not entitled to take into account, for the purpose of assessing the seriousness of the charge of possession with intent to supply, the appellant’s admission that he had been a regular small scale dealer for a period of 6 months? We conclude that he could not. Furthermore, whether, strictly speaking, the appellant should have been sentenced on the basis of his admissions is not the critical factor in an assessment whether the second set of proceedings were oppressive. The critical factor is whether the appellant was sentenced on the basis of those admissions. 26. We next consider the allegation made by the prosecution in the second indictment. It was an allegation that the appellant agreed to receive and did receive supplies of heroin from Bayton between the end of July 2009 and 19 January 2010. The amount he was proved to have received was in the order of 0.4 kilos. The admission made by the appellant on 19 February 2010 was, for reasons which we shall explain, to no less an involvement in the supply of class A drugs. 27. Mr Crabb has advanced the case before HH Judge Cottle, Butterfield J and this Court consistently on the factual basis that the appellant was supplied by Bayton with ½ oz deals of heroin at a price of £420 per delivery (£30 per gram); that a wrap comprised on average either 0.2g or 0.136g (0.2g being standard; 0.136g being the average weight of the 25 wraps seized on 20 January 2010); that on the street the value of the drug was £10 per wrap or £50 per gram (yielding a profit of £20 per gram). Before Judge Cottle on 11 February 2011, Mr Crabb claimed in his skeleton argument (paragraph 5.6) that the evidence established “a delivery of heroin (probably ½ oz or the equivalent of about 150 x £10 bags) on an almost daily basis ” [emphasis added]. On 11 February 2011, following the rejection of his plea and application by Judge Cottle, the appellant pleaded guilty and submitted a written basis of plea which amounted to a repetition of his admissions before Miss Recorder Munro QC on 19 February 2010. The CPS rejected the basis of plea by letter of 14 February 2011 in which it was stated: “The prosecution say that [the appellant] was receiving frequent deliveries, almost on a daily basis, of half an ounce of heroin. This would equate to around 70 wraps at 0.2 of a gram, a typical £10 deal or bag, and consequently the prosecution say he was dealing some 70 wraps a day. These would realise £700 on the street and as the evidence suggests he was paying £420 per half ounce there was clearly a substantial profit being made by him” If this was indeed the effect of the evidence served in support of the indictment, the appellant would have been making a profit of about £200 per day after consuming from the deliveries made eight wraps per day at a street value of £10 per wrap. A level of dealing of this magnitude would have been substantially greater than that admitted by the appellant at any stage. 28. However, the respondent’s case has been advanced to this Court on a completely different factual basis. In his skeleton argument served for the purposes of the present appeal, to which he adhered in oral argument, Mr Crabb wrote (at paragraphs 4 and 5): “4. As a result of evidence which had become available in April and June 2010 it was the Prosecution case that between July 2009 and January 2010 the appellant had received a total of about 410g of heroin for onward supply as part of the conspiracy to supply. 5. This would equate to about 3,000 wraps of equivalent weight to those found on 20 January 2010 (with a street value of about £30,000).” Mr Crabb’s figures now assume that the appellant received 29 deliveries of ½ oz deals and not almost daily (up to 182) deliveries over a period of 6 months. We note that this is entirely consistent with the appellant’s admission to the Magistrates Court, repeated in his solicitors’ letter to the Probation service, that he received deliveries every four days. His admission was made before he can possibly have known of the evidence which the police would subsequently gather, which appeared to confirm some 29 deliveries during a period of 182 days. The calculation of 3,000 wraps in Mr Crabb’s paragraph 5 is produced by taking a wrap content of 0.136g. Thus (410g ÷ 0.136g), 3,014 wraps were received by the appellant during the 6 month period. That is a daily average of roughly 16 wraps somewhat fewer than the appellant’s implicit admission. During argument, Mr Crabb conceded in answer to Popplewell J the proposition that, given the profit margin of £20 per gram upon which the prosecution advanced its case, the appellant’s scale of dealing would indeed have been no more than was necessary to sustain a habit of eight wraps of heroin per day. 29. Mr Crabb submitted to Judge Cottle on 11 February 2011 that he should focus upon the charge of possession with intent to supply. The Crown, he said, had not agreed the factual basis for sentence put forward on behalf of the appellant, a submission also advanced on appeal. He asserted that the appellant was not then being frank about the scale of his activity. The judge addressed Mr Jackson during his reply to Mr Crabb’s argument as follows: “...But he was being sentenced for one offence on one occasion. The Crown’s case is that the evidential picture now available here is wholly different from the picture that existed at the time that he was sentenced for that one offence.” Mr Jackson responded: “He must with respect have been sentenced on the basis of the information that was placed before the sentencing judge, and that included the fact that it was placed before the court that on his behalf he was effectively dealing up to 25 bags on a daily basis. He was not just sentenced for one single occasion when he was found to be in possession of heroin; the rest must have been taken into account. So far as all the other material goes I accept of course there is a considerable amount of ANPR evidence and phone evidence and, as I say, if the submission I make is correct, and he effectively was advancing before the sentencing court that he had been supplying heroin on a daily basis, then all of the ANPR and all of the phone evidence does not more than show how he got his drugs. It does not matter how many pages of phone contact there is, if he has admitted dealing on a daily basis, and at its highest the Crown say now he was dealing on a daily basis, it does not make any difference; all the other evidence does not aggravate his position. I cannot take it further.” The judge gave a short ruling as follows: “Mr Jackson I reject your submission. I can, if you wish, and will, if you wish produce a longer ruling, the effect of which will be to reject the submission on the basis that it is clearly quite untenable in the circumstances of this case to suggest that the crime with which he is now charged, namely conspiracy to supply heroin, is in effect the same, or substantially the same, as the crime for which he has been previously convicted and sentenced. The evidential picture, as now exists, is wholly different.” Mr Jackson did not ask the judge for a detailed ruling. 30. Following his plea of guilty, the appellant appeared for sentence before Butterfield J at Exeter Crown Court on 29 July 2011. Mr Crabb opened before the judge the case contained both in the written and oral argument before HH Judge Cottle, and in the CPS letter rejecting the appellant’s basis of plea, namely that the appellant had, on an almost daily basis , received ½ oz heroin (in 70 wraps at 0.2g per wrap) and had, therefore, received in total 2.43 kgs and re-sold the bulk. Butterfield J was not requested by either side to hold a Newton hearing. In his sentencing remarks at page 3A of the transcript, the judge said: “You Dwyer were the local retailer in the Honiton area to whom Mr Bayton supplied the drugs he had collected from Manchester – I do not for a moment suggest all of them, but a substantial quantity of them – and no doubt you supplied them onwards to customers in Honiton.” At page 5B he continued: “As far as you Dwyer are concerned, I find it difficult to decide what is the appropriate sentence in this case. I do have regard to the fact that part of the facts on which the prosecution rely were the subject of a prosecution which resulted in your being made the subject of a suspended sentence; but when the full facts become apparent it was quite obvious that you had been sentenced on a basis which was not appropriate for what you had actually done. That said, you were a drug dealer in Honiton, and you were supplying drugs to others there. I take the view that the appropriate sentence for you, and the sentence I impose on the count of the indictment to which you have pleaded guilty, is a sentence of 4 years imprisonment.” Conclusion 31. It is, in our judgment, an inevitable conclusion that HH Judge Cottle and Butterfield J were misled, inadvertently we are sure, as to the true effect of the prosecution case advanced in support of the second charge (indictment). The suggestion that the appellant had received almost 2.5 kgs of heroin over a 6 month period was nothing more than bare assertion, unsupported by evidence. The prosecution had established the pattern of deliveries by reference to motor and telephone traffic. That pattern established, as is now conceded, that the appellant had probably received a total of about 0.410 kg heroin by 29 deliveries of ½ oz quantities, during a period of 6 months. That was the high water mark of the prosecution case. Had HH Judge Cottle been presented with the same prosecution case as that now advanced to this Court, we do not consider that he could or would have concluded that “the evidential picture now available here is wholly different from the picture that existed at the time that he was sentenced for that one offence”; and we do not consider that Butterfield J would have concluded that “when the full facts became apparent it was quite obvious that [Dwyer] had been sentenced on a basis which was not appropriate for what [he] had actually done”. On the contrary, it is our conclusion that the appellant was sentenced by Miss Recorder Munro QC on almost precisely the same basis as that now conceded to be the basis on which the second set of proceedings was founded. No different involvement in the conspiracy (whether his role, the quantity or value of drugs, or the period of his dealing) is now alleged from that to which the appellant confessed on 19 February and 12 March 2010. We agree that the appellant may have been extremely fortunate to escape a substantial sentence of immediate imprisonment. However, on 12 March 2010, the Recorder had material before her which might have justified taking an exceptional course. The appellant was an addict who appeared to be showing unusual resolve. The fact that the sentence was exceptional is not a basis for giving the prosecution a second bite at the same cherry, let alone for finding special circumstances requiring a further prosecution in the interests of justice. In our judgment, for the reasons we have given, the second indictment was based on substantially the same facts as those in respect of which the appellant had been sentenced on 12 March 2010. It is disturbing to find that this fact has emerged with clarity only in a skeleton argument dated 21 September 2011, over twelve months after the appellant had been sentenced by Butterfield J, and without an immediate concession that the stance of the prosecution had fundamentally changed. We conclude that the second set of proceedings was oppressive and that there were no special circumstances which justified the conspiracy indictment being pursued against this appellant. The indictment should have been stayed as against the appellant as an abuse of the process of the court. We therefore allow the appeal and quash the conviction for conspiracy to supply.	{"ConvCourtName":["Central Devon Magistrates Court","Exeter Crown Court"],"ConvictPleaDate":["2010-01-21","2010-02-19"],"ConvictOffence":["Possession of diamorphine (heroin) with intent to supply (20 January 2010)","Possession of diamorphine (heroin) (0.17g, 9 October 2009)","Possession of cannabis (2.23g, 9 October 2009)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["At first court appearance (Magistrates Court, 21 January 2010)","At Crown Court (19 February 2010)"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Exeter Crown Court"],"Sentence":["12 months imprisonment suspended for 2 years (possession with intent to supply)","3 months imprisonment concurrent (simple possession)","Drug Rehabilitation Requirement for 9 months"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[31],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Police surveillance","Drug seizure evidence","Mobile phone evidence","ANPR (Automatic Number Plate Recognition) evidence","Dealer's list","Cash seizure"],"DefEvidTypeTrial":["Written basis of plea","Admissions by defendant"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Offence committed while on bail"],"MitFactSent":["Offender showed genuine remorse","Offender is a drug addict seeking rehabilitation","No previous convictions for drug offences","Late onset of drug addiction"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[4],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Second prosecution based on substantially the same facts as first; should have been stayed as abuse of process; autrefois convict plea"],"SentGuideWhich":["Afonso [(2005) 1 Cr App R (S) 99 (p560]"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Second indictment was based on substantially the same facts as those in respect of which the appellant had already been sentenced; no special circumstances justifying further prosecution; proceedings were oppressive"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2015] EWCA Crim 1079 Case No: 2014/5110/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 June 2015 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE WILLIAM DAVIS THE RECORDER OF BIRMINGHAM HIS HONOUR JUDGE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEPHEN GOUGH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Scott appeared on behalf of the Applicant Mr J Hallam appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE RAFFERTY: On 6th October 2014 in the Crown Court sitting at Winchester Stephen Peter Gough, 56, was convicted of breaching an Anti-social Behaviour Order, colloquially known as an ASBO, contrary to section 1(10) of the Crime and Disorder Act 1998 and sentenced to 30 months' imprisonment. He had been unrepresented. He had told the court that he wished to represent himself, but as a consequence of his refusal to wear any clothes at all in court he was tried in absentia . 2. By leave of the single judge he challenges the safety of his conviction. The Registrar referred to this court an application for an extension of four months so as to seek leave to appeal against sentence. 3. On 13th August 2013 the applicant was made subject to an Anti-social Behaviour Order which prohibited him from appearing in public without clothing to cover his genitalia and buttocks. At its imposition he was serving a prison sentence from which, on 15th April 2014, he was released, naked save socks and boots. He had declined the offer of clothing. He was arrested immediately outside prison. Interviewed under caution he asserted as a reasonable excuse for his nakedness that he did not agree with the contents of the Order so was not prepared to obey it. 4. At the close of the case for the Crown, the judge was handed a letter from people in the public gallery which included concerns that the jury was denied knowledge of matters the author suggested were of some significance. They included that nudity was no crime; that Gough had spent some eight years in jail already; that guidelines on public nudity seemed at odds with the harshness of his treatment; and that he held a sincere and deep belief in the philosophical approach to living life naked. 5. His case was that since he considered the Order wrong, his refusal to abide by it provided him with a reasonable excuse. He suggested the Order was not reasonable. He sought to live his life following his own reason and with integrity. He was not prepared to accept that he should simply follow what someone else said merely because that someone was in a position of authority. He sought to appear in court naked so as to support his own case, as evidence of the appearance of his body in a public place. 6. The issue was reasonable excuse for breach. 7. There was on the nursery slopes of the trial dialogue about whether if he were in court he would sit or stand. We are grateful to Mr Scott (who did not appear below) for explaining to us that any point arising from it falls away. By videolink from prison today he sat unclothed from the torso upwards, his lower body obscured by a table. For all we know he was clothed other than above the waist. 8. He confirmed before his trial began that he took no issue with the case for the Crown, nor did he want to take up the judge on her offer to put questions on his behalf were he not in court. He had no objection to content of the note from the public gallery which we have summarised and he firmly declined to put on clothes so as to present to the jury his own case. 9. The Crown suggested to the judge that he had had every opportunity to participate in the discussion of his presence during the trial and as a consequence of his unwillingness to put on clothes she was entitled to be satisfied that he was unable to participate. She gave him a final opportunity to appear clothed which he rejected. He was explicit that he understood the consequences. 10. Sentencing him, the judge said that whilst there was a guideline of assistance on breach of Orders, this was a wholly exceptional case. The Applicant had flagrantly breached the Anti-social Behaviour Order. If there were a way out of the cycle of endless prison it should be found, but at the moment she saw little option but imprisonment. 11. Born on 13th May 1959, Gough had 30 convictions comprising 48 offences committed between 2003 and 2014, predominantly breaches of public order or failing to comply with Court Orders. His first custodial sentence was three months' imprisonment in 2004 for breach of the peace. In June 2013 he was sentenced to 48 weeks' imprisonment (upheld on appeal) and in January 2014 to 16 months for breaching Anti-social Behaviour Orders. 12. In grounds of appeal against conviction, the first complaint is that the judge fell into error in excluding the appellant from his trial when he confirmed his wish to appear naked. His nakedness was not likely to interfere with the proper course of the trial. The judge should have been slow to set conditions about how he should dress. Requiring him to dress had a powerful effect on the ability of the court to deal justly with the case, contrary to the over-riding objective, and it impeded his participation. Even were she right to insist that he should not be naked, the judge failed to consider other options falling short of exclusion from the court. 13. Finally, and advanced with a lighter touch, were criticisms that the judge failed to give sufficient weight both to the applicant's right to a fair trial under Article 6 of the European Convention on Human Rights ("the Convention") and to manifest his belief under Article 9. 14. As to sentence, the complaint is that no serious harm was caused by the breach which was brief in time, harmed no one and was not characterised by evidence that any member of the public was there to observe in any event. The only certain observers were police officers waiting. Consequently the sentence was not commensurate with the seriousness of the breach. The sentence was double the length of the last sentence. Lengthening periods of imprisonment are pointless, excessive and oppressive. The applicant's right to freedom of expression under Article 10 of the Convention is engaged and a significantly shorter sentence would have met the justice of the case. 15. The respondent Crown argues that the judge's decision on nakedness was reasonable and lawful. She had a discretion to exclude a defendant who did not conduct himself decently: Jones (Anthony) [2003] 1 AC and Gough (this Appellant) [2013] EWCA Crim. 1418. The purposes of requiring the him to dress included ensuring respect for the court and protection for the jury or the public from shock or offence. Strasbourg jurisprudence, the Crown submits, does not suggest a criminal trial, absent a defendant, is inconsistent with the Convention. His Article 9 right to manifest his belief is unlikely to extend to refusing to wear clothes in public. If, which is not admitted, it were engaged the Crown suggests the refusal to allow him to appear naked in court was a response both necessary and proportionate: Gough v United Kingdom (49327/11). 16. In our judgment, were the Appellant to have appeared naked in front of the jury it would have been a further breach of the Anti-social Behaviour Order and that is the end of the argument. That a court should contemplate concurrence with the commission of a criminal offence during proceedings is a bizarre notion and, without more, fatal to the Appellant’s submissions. The suggestion that the judge "ought to have been very slow, in the absence of any disruptive behaviour, to set any conditions about how he should dress" misses the point. The judge could not with propriety have put herself in the position of agreeing to the commission of a crime. The Anti-social Behaviour Order was in place and it prohibited behaviour the applicant sought to legitimise. 17. The judge's rejection of the suggestion of an ad hoc arrangement involving a screen, or perhaps more accurately the absence of consideration of such, does not render her decision irrational. An appearance in court was always open to the applicant. Had he clothed himself he could, as he and all those listening knew, have come up and taken a part or no part in proceedings. That he opted by his response to the court's inevitable ruling to stay out of court was his decision. He cannot now hope that his complaint about the consequences he set in motion will succeed and it does not. 18. Was the trial unfair? He had no challenge to the Crown's evidence. His case was that he had a reasonable excuse to breach the Order. The judge's direction in the summing-up, that in law he did not, is unimpugned and unimpugnable. She judge did not direct the jury to convict. That is why this is not a case in the same category as Wang [2005] UKHL 9 ; [2005] 2 Cr.App.R 8 where the judge did impermissibly so direct the jury. It was always open to this jury, should it choose, to return a verdict which was not adverse to the appellant. The jury had his argument, foreshadowed in interview and appropriately summarised by the judge. Any consequences of an inability to advance a case in person he had elected to visit upon himself. As we have made plain, he was entitled to advance his arguments orally so long as he abided by the terms of the Court Order and behaved appropriately in the court setting, conditions which, on these facts, are in harmony. 19. He wished to flout an Order of the Court and thus, by his own decision-making process, detached himself from proceedings and he knew before he did so what the outcome would be. 20. The Divisional Court has already considered whether the imposition and/or the terms of the Anti-social Behaviour Order were disproportionate, the President of the Queen's Bench Division presiding. The European Court of Human Rights has reviewed the effect of prosecutions of the Appellant in Scotland for breach of the peace. Where relevant its judgment reads: "176. ... [the] applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. ... the reasons for the measures adopted ... were 'relevant and sufficient' and ... met a pressing social need in response to repeated anti-social conduct by the applicant. It cannot be said that the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant to communicate his opinion on nudity were, even if considered cumulatively, disproportionate to the legitimate aim being pursued, namely the prevention of disorder and crime. In particular, Article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression ... " The appeal against conviction is dismissed. 21. We turn to the application for an extension of time, which we grant, for leave to appeal against sentence. Although we acknowledge that two-and-a-half years for breach of an Anti-social Behaviour Order might, absent narrative, appear manifestly excessive, this case must be read in context. That context reveals that it is the persistence of the conduct which leads to longer and longer sentences. The applicant had 26 previous convictions and a history of failure to comply with orders of the court. Additionally, he chose to breach his Anti-social Behaviour Order immediately upon release from prison. No guidelines were likely to assist the judge in these unusual circumstances, as she rightly identified. A combination of those factors we have identified more than justifies the course she adopted. Consequently the application for leave to appeal against sentence is rejected.	{"ConvCourtName":["Crown Court at Winchester"],"ConvictPleaDate":["2014-10-06"],"ConvictOffence":["Breach of Anti-social Behaviour Order contrary to section 1(10) of the Crime and Disorder Act 1998"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Winchester"],"Sentence":["30 months' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[54],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Persistent breach of court orders","Breach immediately upon release from prison","History of failure to comply with court orders"],"MitFactSent":["No serious harm caused","Breach was brief in time","No evidence any member of the public observed","Only certain observers were police officers"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Exclusion from trial for refusing to wear clothes impeded participation and was contrary to fair trial rights","Judge failed to consider other options short of exclusion","Judge failed to give sufficient weight to right to fair trial (Article 6 ECHR) and to manifest belief (Article 9 ECHR)","Sentence not commensurate with seriousness of breach","No serious harm caused","Sentence excessive compared to previous sentences","Right to freedom of expression (Article 10 ECHR) engaged"],"SentGuideWhich":[],"AppealOutcome":["Dismissed (conviction)","Leave to appeal sentence refused"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Appearing naked in court would have been a further breach of the ASBO","Judge could not agree to commission of a crime","Exclusion from court was a consequence of appellant's own decision","No unfairness in trial; appellant could have participated if clothed","Judge's direction to jury was correct","Persistence of conduct and history of breaches justified sentence","No guidelines likely to assist in these unusual circumstances"]}
Neutral Citation Number: [2010] EWCA Crim 206 Case No: 200900738 A9 ; 200900826 A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 28th January 2010 B e f o r e : - - - - - - - - - - - - - - - - - - - - - MR JUSTICE SWEENEY SIR CHRISTOPHER HOLLAND R E G I N A v JORDAN AKEHURST & "M" - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G James appeared on behalf of the First Applicant Miss L Oakley appeared on behalf of the Second Applicant Mr C May appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE SWEEENEY: These are applications for leave to appeal against sentence, following referrals by the Registrar. The identity of the second applicant, "M", is protected by an order under the Children and Young Persons Act 1933 . On 12th December 2008, in the Crown Court at Maidstone, Akehurst pleaded guilty to causing grievous bodily harm with intent, and M pleaded guilty to inflicting grievous bodily harm. On 20th January 2009 they were sentenced by His Honour Judge Carey as follows: Akehurst, four years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 , with an order that 123 days already spent in custody should count towards that sentence; M, a youth community order with a curfew order for three months, a supervision order for two years and a 24 hour reparation order. There was a co-accused, "R", who, like M, pleaded guilty to inflicting grievous bodily harm. He was sentenced to an 18 month detention and training order. 2. The facts, in summary, are these. At the time of the offences on 23rd July 2008, Akehurst was 13 years of age, M was 14 and the co-accused R was also 14. The victim, "B", was 13. The offences came about as a result of a pre-arranged fight. It appears that Akehurst was known as the "hardest" boy in his year at his school, and that the victim was also known as the "hardest" in his year at another school. It appears that Akehurst wanted a showdown fight, but the victim was less keen. The day before the fight the victim told a friend that Akehurst had threatened to throw bricks at his house if he did not turn up for the fight. Word of the fight spread, and at the time of the incident about 30 pupils had turned up at a park to watch. They all appeared to have been there in support of Akehurst. Three young people, apparently friends of Akehurst, collected the victim from his home address and took him to the park. About 30 minutes later Akehurst turned up. Upon his arrival there were no preliminaries to the fight, and the two youngsters squared up to each other. 3. What happened next was filmed by one of the spectators on a mobile telephone camera. Akehurst immediately punched the victim twice to the face. As a result the victim fell to the ground. Akehurst then continued the attack by repeatedly punching, kicking and stamping on the victim's head with his shod foot. All the while the victim was defenceless on the ground. M and R joined in the attack. M kicked the victim twice to the body whilst the victim lay motionless and defenceless on the ground. The attack only stopped when adults in the area approached and the applicants and the co-accused left. All three of them then went to M's home address together. 4. The court has viewed the film of these events. The film depicts an attack of sickening savagery over a period of about 25 seconds. The victim was left lying on the ground, bleeding heavily from his nose. An ambulance was called. He was unconscious when taken to hospital, where he was found to have a swollen and bloody mouth and further investigations revealed swelling to the brain. He was taken to intensive care and put on a ventilator. He was kept in hospital for two and a half months and received physiotherapy and speech and language therapy. He had to re-learn to eat, to dress, to wash and even to speak again. He was left with difficulty with cognitive functions and his personality had changed. The consultant paediatrician looking after him reported that the victim would continue to have problems with cognitive abilities, motivation, social skills, mood and behaviour for a long time to come. Indeed, it was uncertain whether he would be able to further his education, or even to gain employment in the future. 5. The applicants were interviewed. Akehurst made no comment. M made admissions but could not explain why he had kicked the victim. He also admitted taking the other two to his house afterwards in an attempt to hide. M made those admissions before he was aware of the film footage. R made no comment during his interviews. 6. In a victim impact personal statement the victim's mother described how her son had been cheated of his lust for life. She was worried about his future. The impact on family life had been dramatic. The family was waiting for the victim's rehabilitation placement, which was due to last six months, but finding the finance for this was a struggle. The victim had started to try to play football again, but was only capable of exercise for 20 minutes. He had been left with no emotion or expression. His mother had been left as his main carer, and had had to give up her voluntary work in a charity shop in order to fulfil that role. 7. Akehurst was born on 27th December 1994 and was of previous good character. M was born in January 1994 and was also of previous good character. There was a pre-sentence report before the court in relation to both applicants. 8. As to Akehurst, the report indicated that he had said that he had lost control and did not know what he was doing at the time of the offence, that he now said that he felt sick about what he had done, but that he did not display any victim empathy. Indeed, the author noted, he legitimised his behaviour by stating that he had responded to a threat from the victim. In the author's view, Akehurst had not taken responsibility for the brutality of the attack. It appeared that he had willingly participated in the fight and his reputation for being the "hardest" boy in his year at school was noted. His parents had stated that there had been no concerns about his behaviour at home, but the author noted that there had been an earlier incident of violence by Akehurst in school. Akehurst himself, it appears, struggled to think of alternatives to violence in situations. However, the author stated that whilst remanded prior to sentence, at the Rebound Secure Training Centre, Akehurst's behaviour was described as excellent. The risk of him causing harm in the future was assessed as high. No alternative to a custodial sentence was proposed. 9. The pre-sentence report in relation to M indicated that he had admitted kicking the victim twice, and also that afterwards he had invited the two other participants back to his home. The author noted that M now said that he felt sick after the attack, but was unable to explain why he had kicked the victim. He was, in the author's view, either unwilling or unable to explain himself beyond saying that he felt bad about what had happened. The report noted that M had said that he had witnessed previous fights but had never got involved. It appeared, therefore, that his behaviour had been out of character. It was further noted that he had been open in police interview and the author expressed the opinion that deep down, M was ashamed of what he had done. There had been no particular behaviour problems prior to the offence and his family and friends were shocked at what had happened. His behaviour at school had been described as good, and indeed M gave the impression of being a decent, likeable young person who would not be predicted to get into trouble. The likelihood of re-offending was thus assessed as very low and the risk of serious harm was assessed as being low. A supervision order was proposed. 10. There were a number of character references in relation to each of the applicants before the court, and a letter from M himself. 11. In passing sentence, the learned judge made a number of observations as follows. The attack on B was violent and cowardly, and while it was unclear who had instigated the fight, the court suspected that there had been a good deal of talk and bravado, and the potential for misunderstanding and loss of face. What was, however, clear was that the victim had been the victim of a vicious attack by Akehurst. This incident had gone way beyond a school scrap, and had appalled those who had seen it. Akehurst had not been content with just knocking the victim to the ground, but set about kicking, punching and stamping on his head. There had been at least three stamps to the head. M and R had joined in the cowardly attack when the victim was probably already unconscious. M and R may not have appreciated how seriously injured the victim was at the time, but their involvement was wholly criminal and culpable. The victim had been left with a brain injury with all the consequences to which we have already made reference. In contrast, the defendants would serve their sentence and go on with their lives, whereas the victim would be affected for the rest of his days. The learned judge indicated that he bore in mind that the defendants were still very young and so the need for rehabilitation was noted. However, in his view Akehurst's culpability was so great that he had to receive a substantial period of detention. He was the ringleader and the main participant and he had inflicted very serious injury. M and R were lesser participants, and their cowardly kicking had probably caused relatively little injury in itself. However, their culpability was considerable given their joint participation with Akehurst and the timing of it. 12. The learned judge noted that Akehurst was still only 14, but had been 13 at the time of the offence and when he had pleaded guilty. He had no previous convictions and was not regarded as a bully at school. However, he had to be punished and be seen to be punished. The sentence had to reflect the seriousness of the offence. A detention and training order was considered, but his offending was so serious that the detention period had, in the learned judge's view, to be longer than two years. Akehurst was given full credit for his plea and his lack of previous convictions was noted. It was against that background that the learned judge imposed the sentence to which we have already made reference. 13. In sentencing M, the learned judge stated that had he been at liberty to impose an immediate custodial sentence, he would have done so. However, the learned judge continued: "You are someone who must be sentenced not to immediate custody, but to some form of community order, because of your age at the time of your conviction, and because Parliament has set clear boundaries for the disposal of offenders of your age and in your position, for the offence to which you have pleaded guilty. I therefore have no choice but to impose a non-custodial sentence. You should count yourself extremely fortunate in having that result." The learned judge went on to say that he was satisfied that the offence was out of character and was confident that M would not come before the court again. His best mitigation was the fact that he had made a full confession when first interviewed. It was against that background that the learned judge passed the sentence to which we have already made reference, indicating thereafter that the reason why he had not remitted M to the Youth Court for sentence was because he saw no injustice in M being dealt with in the Crown Court. 14. The ground of appeal put forward on behalf of Akehurst is that the sentence was manifestly excessive, given his young age. The ground of appeal put forward on behalf of M is that the sentence was wrong in law as the learned judge erred in refusing to exercise his power to remit M to the Medway Youth Court for sentence pursuant to section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (" the 2000 Act "), with the only sentencing options available in the Youth Court being a referral order or an absolute discharge. 15. Dealing with Akehurst first, it is submitted in the skeleton argument put forward on his behalf that this case falls within the second highest level of offence as set out on page 13 of the relevant Sentencing Guidelines Council guideline, which, for an adult, involves a starting point of eight years' custody and a range of seven to ten years. It is rightly pointed out that in sentencing a 13/14 year old the court must have regard to the principal aim of the youth justice system, namely to prevent offending by children and young persons, and must also have regard to the welfare of the offender himself or herself. As to the principal aim of the youth justice system, that of course includes the need to demonstrate to the offender that criminal conduct is not acceptable and to demonstrate more generally that the law is being effectively enforced. What is required, it is submitted, is an individualistic approach in which the culpability of the offender and the harm caused, whether intended or foreseeable, is assessed taking into account aggravating and mitigating features, followed by any reduction for plea, and thereby to determine the ultimate sentence. It is pointed out that, generally, a young person should be dealt with less severely than an adult offender. It is submitted that the severity should reduce in proportion to the age of the offender, bearing in mind that young offenders typically lack the maturity fully to appreciate the consequences of their conduct, and that many youngsters grow out of crime, and that for a young person any sentence will seem far longer in comparison with their relative age than it would for an adult offender. It is pointed out that the key elements are the offender's age, both chronological and emotional, the seriousness of the offence, the likelihood of further offences being committed and the extent of harm likely to result from those further offences. 16. Thus, whilst accepting that the custodial threshold was passed in Akehurst's case, the essential submission advanced on his behalf is that, given the need to avoid the sentence having a crushing effect, the likelihood that Akehurst will mature and develop and the desirability of promoting a young offender's reintegration into society, a shorter sentence should have been imposed. A number of authorities are cited in support of those propositions which, as general propositions of law and approach, we accept. 17. The principal points urged on Akehurst's behalf during the hearing were his age, the fact that (from the latest report of his progress in custody) he is doing extremely well, and the recent Guidelines in relation to the sentencing of children and young persons which point out a sliding scale of reduction from the sentence appropriate for an adult offender in the range of one half to one third depending on age. 18. The fact is, however, that this was an offence of extreme gravity. It involved the use of a weapon, a shod foot, on a defenceless victim and with absolutely devastating consequences for him and his family. At paragraphs 22 and 23 on page 6 of the Sentencing Guideline Council Guideline relative to offences of this type it is recognised that the use of a weapon may take an offence into a higher sentencing range. That, in our view, is the case here, and plainly so. Based on the use of the shod foot as a weapon alone as an aggravating feature, the appropriate starting point for an adult in this case would, in our judgment, have been in the order of 12 years or more after a trial; that is before taking into account the other aggravating features and balancing them against the mitigating features. In those circumstances it seems to us that a starting point in relation to Akehurst that was at least one half of that appropriate to an adult was not, although tough, manifestly excessive. It was, it seems to us that, albeit at the top, nevertheless within the appropriate range for an offence of this extreme gravity. It follows that having made an appropriate discount from a notional sentence after a trial that was within the appropriate range, it cannot be suggested that the sentence that the learned judge passed was excessive. In those circumstances Akehurst's application is dismissed. 19. Dealing next with M, the sole issue, as we have already touched on, is whether the learned judge should have remitted him to the Youth Court in accordance with the provisions of section 8 of the 2000 Act . The section provides that, unless the Crown Court is satisfied that it would be undesirable to do so, it must remit a child or young person for sentence in the Youth Court. 20. On M's behalf, Miss Oakley argues that the learned judge should have ordered such a remittal. The matters to which she draws our attention, in particular, are these. Firstly, there is a significant difference between the sentence that was imposed, which carries a rehabilitation period of two and a half years, as opposed to a referral order, which would have been the maximum sentence available in the Youth Court, and which would have been spent at its conclusion, which was a maximum of 12 months. Secondly, she directs our attention to two authorities, and in particular to R (on the Application of W, S and B) v the Brent Youth Court, the Enfield Crown Court and the Richmond on Thames Youth Court [2006] EWHC 95 (Admin) She relies, in particular, on the way in which the court dealt with the applicant S in that case (in relation to analogous provisions) at paragraph 20 onwards of the judgment. The second authority is Lewis (1984) 79 Cr App R 94. Miss Oakley draws our attention to the principles identified in the judgment as relating to the operation of the analagous provisions of section 56(1) of the Children and Young Persons Act 1933 (as amended): "Possible reasons that it would be undesirable to do so are as follows - these of course are by no means comprehensive: that the judge who presided over the trial will be better informed as to the facts and circumstances; that there is, in the sad and frequent experience of this Court, a risk of unacceptable disparity if co-defendants are to be sentenced in different courts on different occasions; thirdly, that as a result of the remission there will be delay, duplication of proceedings and fruitless expense; and finally, the provisions for appeal which are, as to conviction in the Crown Court an appeal to the Court of Appeal (Criminal Division) and as to orders made in the juvenile court an appeal to the Crown Court. This contrasts with the adult Magistrates' Court." Lastly, Miss Oakley draws our attention to the fact that M is clearly doing well on the order that he is currently the subject of, with real consideration being given to that order being revoked having achieved its purpose. She also points out that he is about to represent Great Britain [as an athlete in a European event]. 21. Notwithstanding the charm with which this submission has been advanced, it seems to us to be patently obvious that this was a case in which the learned judge was entitled to take the view that it was undesirable to remit M for sentence in the Youth Court. The learned judge had the advantage of the full picture, having presided over the sentencing exercise of the two co-defendants. There was plainly a risk of unacceptable disparity, and indeed also of injustice to the two co-defendants, if the three of them were split up in the way suggested. Accordingly, it seems to us that the learned judge's decision was well within the appropriate bracket of discretion available to him, and accordingly M's application is also dismissed. 22. In the result therefore we dismiss both of these applications.	{"ConvCourtName":["Crown Court at Maidstone"],"ConvictPleaDate":["2008-12-12"],"ConvictOffence":["causing grievous bodily harm with intent","inflicting grievous bodily harm"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[123],"SentCourtName":["Crown Court at Maidstone"],"Sentence":["Akehurst: four years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, with 123 days already spent in custody to count towards sentence","M: youth community order with a curfew order for three months, a supervision order for two years and a 24 hour reparation order"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[13,14],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[13],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Mobile phone video footage","Victim testimony","Medical evidence","Victim impact statement"],"DefEvidTypeTrial":["Akehurst: No comment interview","M: Admissions in interview"],"PreSentReport":["High risk of harm","Low risk of reoffending","Low risk of harm"],"AggFactSent":["Use of a weapon (shod foot)","Attack on defenceless victim","Attack involved multiple offenders","Attack was filmed and witnessed by many"],"MitFactSent":["Very young age of offenders","Previous good character","Full credit for guilty plea","M's behaviour out of character","M made full confession"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence"],"AppealGround":["Akehurst: Sentence manifestly excessive given young age","M: Sentence wrong in law, judge erred in not remitting to Youth Court"],"SentGuideWhich":["section 91 of the Powers of Criminal Courts (Sentencing) Act 2000","section 8 of the Powers of Criminal Courts (Sentencing) Act 2000","Sentencing Guidelines Council guideline for grievous bodily harm"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Akehurst: Offence of extreme gravity, use of weapon, devastating consequences, sentence not manifestly excessive"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Akehurst: Sentence within appropriate range for offence gravity, not manifestly excessive","M: Judge entitled to not remit to Youth Court, risk of disparity, judge had full picture, decision within discretion"]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 151 No. 202302277 A3 Royal Courts of Justice Tuesday, 13 February 2024 Before: LADY JUSTICE WHIPPLE MRS JUSTICE STACEY HIS HONOUR JUDGE PICTON REX v LUKE MATTHEWS __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] Mr J. Scobie KC appeared on behalf of the Applicant. The Crown were not represented. _________ JUDGMENT MRS JUSTICE STACEY: 1 This is a renewed application for leave to appeal against a sentence following refusal by the single judge, together with an extension of time of approximately six days in which to renew his application for leave to appeal. 2 On 12 June 2023, before the Common Sergeant of London sitting at the Central Criminal Court, the applicant, then aged 31, was sentenced to an extended determinate sentence of nine years and two months, comprised of a custodial term of seven years and two months and an extended licence period of two years, for the offence of possessing a firearm with intent to cause fear of violence, contrary to section 16 A of the Firearms Act 1968 . 3 The single ground of appeal is that the judge erred in finding the applicant to be dangerous within the meaning of section 279 of the Sentencing Act 2020 and, therefore, erred in imposing an extended term of sentence with the consequence that the sentence was manifestly excessive. The Facts 4 The applicant wanted to assist his mother to get a tenant, Tom Kennedy, out of a property that she owned. Initially, he thought a brick through the window would be sufficient but a drug-dealing associate Kyle Kelson recommended that discharging a sawn-off shotgun would be more effective. Mr Kelson obtained one for him and the applicant collected the weapon from Mr Kelson. 5 At around midnight on 18 June 2020, the applicant, his cousin Lee Matthews and another drug-dealing associate, Aaron McGrath, went to the applicant's mother's property where Mr Kennedy lived in Sutton. They travelled with the shotgun in Mr McGrath's car and a taxi ordered in the name of another. The applicant pointed out to the others the property where Mr Kennedy lived and his bedroom window which was at the front of the house. The light was on and they presumed Mr Kennedy to be still up and in his room at the time. The applicant then hid, waiting in the car in a nearby street, while Mr McGrath and Lee Matthews discharged the firearm through the bedroom window at the applicant's instigation and direction. The applicant had played a leading role in a group activity intended to cause maximum fear and distress, and an actual firearm had been discharged. Mr Kennedy was still up, and at home in his bedroom and in the event, by pure chance, he was uninjured. But what was done was extremely dangerous and could have had devastating consequences. 6 All three men left the area in a combination of three vehicles and went back to Mr Kelson's house, both to return the gun and to collect a consignment of cocaine that they had previously ordered and paid for. It transpired that the drugs were not there and following an altercation between the applicant and Mr Kelson in the street, the gun went off in Mr Kelson's face and he died at the scene. The three men disposed of the shotgun immediately afterwards and it has never been found. The applicant has been a professional Class A drug dealer for a number of years, earning several thousands of pounds a week. 7 The applicant, Lee Matthews, Mr McGrath and a fourth defendant named Gary Hayde were tried for the murder of Mr Kelson, possession of a firearm with intent to endanger life and for this offence. On the first day of trial, the applicant, Lee Matthews and Mr McGrath pleaded guilty to this offence. Lee Matthews, Mr McGrath and Mr Hayde were all acquitted of murder but the jury was unable to reach a verdict on the applicant. Following a retrial, the applicant was acquitted of murder and the offence of possessing a firearm with intent to endanger life was left to lie on the file. The Common Sergeant presided over both trials. Sentence 8 The applicant had 10 convictions for 21 offences, spanning from 7 September 2010 to 9 November 2018. His relevant convictions included possession of an offensive weapon in a public place (2011), common assault on three occasions (2013), assaulting a constable (2015) and a section 20 wounding (2018). He was on licence at the time of this offence. 9 The victim personal statement made harrowing reading. Mr Kennedy was completely upended and he lives in constant fear, and now sleeps in his car so he can keep on the move. He has suicidal thoughts. However, the judge accepted that this was Category 2 harm and not severe psychological damage as he felt he had to ignore the impact of Mr Kelson's death on Mr Kennedy since the applicant and the other defendants were found not guilty of Mr Kelson's murder. It was common ground that it was a high culpability offence with a starting point of six years and a range of four to eight years in accordance with the guidelines. 10 The judge found that there were four aggravating features of the crime. First, a prohibited weapon - a sawn-off shotgun - had been used; secondly, the offence was committed as part of a group; thirdly, the firearm was disposed of following the incident and has never been recovered; and, fourthly, at the time of the offence the applicant was on licence for other offences. 11 In the context of the factual background, the judge regarded it as a very serious offence of its type. The judge reminded himself of the sentences he had given to Lee Matthews and Mr McGrath at the end of the first trial. He had made an upward adjustment to the starting point for Lee Matthews to eight years, the top of the range. But by an unfortunate mathematical error in applying a 10 per cent discount for the late guilty plea, he arrived at a final determinate sentence of six years and nine months, instead of the seven years and two months he had intended. Once pronounced, it could not be increased and Lee Matthews retains the benefit of the judge's mistake. Mr McGrath was sentenced to seven years. 12 The judge considered the applicant to be significantly more culpable than either Lee Matthews or Mr McGrath for three reasons. First, unlike them, he was on licence at the time of the offence following his release from a three-year sentence for dealing in Class A drugs and a specified section 20 offence of violence (of wounding his girlfriend). He had around nine months of his licence period still to run. Secondly, he was the protagonist, organiser and principal mover. Thirdly, he used the others to do his dirty work and he exposed them to greater risk of being caught. The judge was particularly unimpressed with the way the applicant had hidden in Mr McGrath's car while the others fired the shotgun and how he had made sure the cars used were not his and taxis were booked in others’ names. He also considered there had been much planning by the applicant. The judge found the applicant to be very selfish and a manipulative individual. 13 The judge concluded that a sentence outside the range was necessary and justified as the applicant was significantly more culpable than the other two. He agreed to allow a 10 per cent discount for the guilty plea since it had been indicated to the prosecution a few weeks before the first trial even though the plea was not entered until the first day of the trial. 14 A pre-sentence report assessed the applicant as posing a high risk of serious harm to the public. The nature of the risk was physical assault and associated emotional and psychological harm caused by controlling behaviour. The pre-sentence report author also noted a long history of domestic violence. The applicant expressed remorse and empathy in the pre-sentence report interview, but the report author was uncertain if the emotions and views expressed were genuine. 15 The judge was meticulous in disregarding the matters for which the applicant and his co-defendants were acquitted. 16 The judge concluded that there was a significant risk to members of the public of serious harm occasioned by the commission - - by the applicant of committing further specified offences in the future [for] four reasons. He concluded that the applicant was a manipulative, self-centred and determined career criminal. Secondly, because unlike his co-defendants, he had been the principal player and it was he who had decided to initiate and commit the offence whilst on licence. Thirdly, because of the background of his involvement in a substantial Class A drug dealing over a number of years; and, fourthly, because of the views of the pre-sentence report author. 17 The judge concluded that an upward adjustment to the starting point be made to nine years from which he then deducted 20 per cent, arriving at a custodial term of seven years and two months, and imposed an extended licence period of just two years. 18 The single ground of appeal would be that the judge arrived at a sentence which was manifestly excessive as the judge incorrectly concluded the applicant was dangerous. 19 The limited differences between the applicant and his co-defendants did not justify an extended sentence for the applicant when the two co-defendants had received determinate sentences and no pre-sentence reports had been ordered for them. It was submitted that the applicant's antecedent history was not particularly violent and was of a different type, unplanned domestic violence. No mention had been made of the extraordinary circumstances of the case which was that the offence had been committed as part of the applicant's tearful reunion with his mother and his desire to please her. The pre-sentence report author had noted that lack of maturity may have had an influence on his actions. Analysis and Conclusions 20 The trial judge was best placed to make an assessment of the facts and the risk the applicant poses in the future, having heard all the evidence in both trials which included the applicant giving evidence twice over the course of 10 days. The learned judge made a careful and detailed assessment of the relevant factors in his sentencing remarks. As already noted, he was meticulous in putting from his mind and directing himself to take no account of those matters for which the applicant had been acquitted. He explained why he regarded the applicant as being in a different position from the two co-defendants. His conclusion was based on four distinct actions, all of which were based on the evidence, including the conclusion reached in the pre-sentence report. The conclusions in the pre-sentence report were consistent and supportive of the judge's conclusions. The author was also quite correct in noting that it was the judge's decision ultimately. 21 The fact that the applicant's previous violent offending was not of the same level could not preclude a finding of dangerousness given the particularly serious nature of this offence. The reasoning of the judge in his sentencing remarks is properly reflected in the material before the court (see R v Bourke [2017] EWCA Crim 2150 ). There are no arguable grounds to interfere with the judge's assessment of dangerousness. Mr Scobie KC correctly notes the imposition of an extended sentence is not automatic on a finding of dangerousness (see Bourke ) but on the facts of this case, such a sentence was amply justified. It is not reasonably arguable that the decision to impose an extended sentence was manifestly excessive. 22 Leave and leave for representation is refused and the extension of time is also refused. It would not be in the interests of justice to extend time given the lack of merit in the appeal. _____________	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":[""],"ConvictOffence":["Possessing a firearm with intent to cause fear of violence"],"AcquitOffence":["Murder"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on first day of trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Extended determinate sentence of 9 years and 2 months (7 years and 2 months custody, 2 years extended licence)"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[31],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["High risk of harm"],"AggFactSent":["Prohibited weapon (sawn-off shotgun) used","Offence committed as part of a group","Firearm disposed of and never recovered","Offender was on licence at time of offence"],"MitFactSent":["Guilty plea indicated to prosecution a few weeks before trial","Remorse and empathy expressed (though questioned in report)","Lack of maturity may have influenced actions"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Judge erred in finding applicant to be dangerous within the meaning of section 279 of the Sentencing Act 2020 and erred in imposing an extended term"],"SentGuideWhich":["Section 16A of the Firearms Act 1968","Section 279 of the Sentencing Act 2020"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Trial judge was best placed to assess facts and risk","Judge made careful and detailed assessment","Judge's reasoning properly reflected in material before the court","No arguable grounds to interfere with judge's assessment of dangerousness","Imposition of extended sentence was amply justified"]}
No: 200300716/B3 Neutral Citation Number: [2003] EWCA Crim 3525 IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation No: [2003] EWCA Crim 2846 . Royal Courts of Justice Strand London, WC2 Thursday, 20th November 2003 B E F O R E: LORD JUSTICE MANTELL MR JUSTICE ELIAS MR JUSTICE JACK - - - - - - - R E G I N A -v- PAUL KELLEHER - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - THE APPELLANT APPEARED IN PERSON MR G LADENBURG appeared on behalf of the CROWN - - - - - - - J U D G M E N T (As Approved by the Court) - - - - - - - Crown copyright© ( 10.30 ) 1. LORD JUSTICE MANTELL: The Court as presently constituted heard this appeal on 3rd September. That was, of course, during the long vacation. It was indicated then that judgment would be reserved to be handed down at a later date. In fact the judgment in draft was sent out to counsel on 17th October. It was indicated that it was due to be handed down formally on 23rd October. 2. In the meantime the Court came to appreciate that there might be a point which needed to be argued which had not been argued on the first occasion, namely, having regard to the conclusions reached by this Court, whether it could still be said that the conviction was safe. Accordingly, the Court took the slightly unusual step of informing counsel then appearing for the appellant that it would be prepared to entertain further argument on a date convenient to herself, that date being today, with argument being limited, of course, to the one matter. 3. It appears, though we will hear explanation in a moment or two no doubt, that in the meantime the appellant has dispensed with the services of leading counsel. So it would appear that he is here today to represent himself. 4. THE CASE LAWYER: I am Dr Paul Burns, the case lawyer. I am actually the case lawyer. 5. LORD JUSTICE MANTELL: I am so sorry. Mr Kelleher is not here today? 6. MR LADENBURG: No, my Lord. 7. LORD JUSTICE MANTELL: That is most unfortunate. We are confident, are we, that he was given due notice of this hearing? 8. THE CASE LAWYER: Certainly he was aware of the hearing date because he had actually been in discussion with his legal representatives and had actually seen them and he was aware that this was the date. 9. LORD JUSTICE MANTELL: Well, it is doubly unfortunate then that he should no longer, so it appears, be represented, or present. I think the Court will adjourn for, perhaps, ten minutes or so to allow him a further opportunity to make an appearance. ( Pause ). The Court has been informed, and perhaps this ought to go on the transcript, that someone who knows Mr Kelleher is outside the Court and his understanding is that Mr Kelleher is intending to attend. We will rise for a little while. ( 10.33 ) ( Short adjournment ) ( 10.38 ) 10. LORD JUSTICE MANTELL: Before you arrived, Mr Kelleher, I was explaining that the hearing of this appeal took place on 3rd September. 11. THE APPELLANT: Yes, my Lord. 12. LORD JUSTICE MANTELL: It was then indicated that the judgment would be reserved to be handed down later. The draft judgment was sent out to counsel on 17th October, just over a fortnight, after the start of term, and it was due to be handed down on 23rd October. 13. In the meantime the Court appreciated that in the light of its decision, as indicated in that draft judgment, it may be that counsel then appearing for you would wish to have an opportunity to argue, or submit that, notwithstanding the provisional judgment arrived at, it would not be safe to uphold the conviction. Accordingly, I took the unusual step of speaking to your leading counsel, then acting on your before, and said that we would be prepared to hear further argument in respect of that point, and that point alone, and today was set aside for the further hearing. Our understanding, which you will be able to confirm or not as the case may be, is that in the meantime you have dispensed with the services of counsel? 14. THE APPELLANT: My Lord, I am left with no real alternatives. As these matters were pressed, I was pressed into a corner where my life is completely unsustainable. 15. LORD JUSTICE MANTELL: As to whether that was a wise decision or not we express no opinion, but we are now giving you, in place of your counsel, the opportunity to make some submissions, if you think fit, as to that one point and that one point. Do you wish to make any? 16. THE APPELLANT: Yes, my Lord. ... ( Submissions followed ) JUDGMENT 17. LORD JUSTICE MANTELL: In this appeal the Court is invited to examine, once again, the breadth of the defence of "lawful excuse" to a charge of criminal damage. We say "once again" because the question has previously been considered by this court in R v Hunt (1978) 66 Cr App R 105 , R v Ashford and Smith (1988) Crim LR 682 and R v Hill and Hall 89 Cr App R 74 . The Court is also asked to consider in what circumstances, if any, a judge is entitled to direct a verdict of guilty. 18. It comes about in this way. Paul Kelleher has strong and sincerely felt concerns about certain policies of the United States, the United Kingdom and other western countries which, he foresees, are leading the world towards its eventual destruction. He is particularly troubled about the future of his infant son and others in like circumstances. Among his bugbears are the prevailing materialistic values and the influence which major corporations seem to be able to exercise over supposedly democratic governments. Baroness Thatcher is among those he holds responsible. 19. So it was on 3rd July 2002 he visited the Guildhall Gallery, which houses the Corporation of London art collection, armed with a cricket bat and with the intention of knocking the head off a statue of Lady Thatcher, that statue being on temporary loan from the House of Commons. The cricket bat proving ineffectual, Mr Kelleher took hold of a metal stanchion, which supported the cordon round the statue, and with that was able to achieve his purpose. We understand that the statue was damaged beyond repair and will cost £150,000 to replace. 20. Having done what he set out to do, Mr Kelleher calmly awaited the arrival of the police. To them he explained his philosophy and his motives. At one point he said, "I fear genuinely for the future of my son. I don't believe he has a very rosy outlook to life". He made it plain that in acting as he did he was seeking publicity for his views in the hope that, if accepted by others, they might bring about improvements in the world situation. 21. He was charged with criminal damage. In the first instance he stood trial at Southwark Crown Court before Aikens J and a jury. He represented himself. None of the Crown's evidence was in dispute and all of it was read. In his defence Mr Kelleher read from a prepared statement in the course of which he once again explained his philosophy and his motives. This passage occurs: "If humanity is so intent of going to its own destruction then this is my play for the Crown and this is me being intent going to my own destruction. I do not want my children to grow up in a world where the order of the day is for mankind to act like dangerous parasites, stripping all that is good from each other and this fine planet earth. To do so is to leave nothingness, unless you call living hell something. 'Thy kingdom come thy will be done on earth as it is in heaven' - really!" 22. The learned judge was troubled about how to leave the matter to the jury. He raised it with prosecuting counsel. He wanted to know whether "lawful excuse" was an available defence and whether it should be left to the jury. Prosecuting counsel conceded that on a broad interpretation of the statutory provision, read in conjunction with the Human Rights Act 1998 and Article 1 of Protocol 1(1) to the Convention for the Protection of Human Rights and Fundamental Freedoms as amended, the defence was available. Aikens J summed up accordingly. The jury failed to reach a verdict and was discharged. 23. The retrial took place on 22nd January this year, again at Southwark Crown Court, but this time presided over by His Honour Judge Bathhurst-Norman. HHJ Bathhurst-Norman took the view that what Mr Kelleher was saying, in all material respects being no different from what he had said in the earlier trial, did not engage the statutory defence available under the Act. He so ruled and in due course directed the jury as follows: "I have used the words 'lawful excuse'. I have to decide as a matter of law whether there is anything in the defendant's evidence which is capable of amounting to a lawful excuse. I have to tell you as a matter of law, his evidence and everything he has said, clearly very sincerely, clearly very honestly, but it does not amount to a lawful excuse. As matter of law his reasons for his action by way of political beliefs, anti-globalisation belief, cannot -- his need to protect his son as he sees it -- amount to a lawful excuse. I say that because even though he honestly believes that what he did was justified by his dislike of Mrs Thatchers' policies in tying us too close to the United States in pursuing the aims of globalisation, and as he sees it, in the need to protect the safety and future of his son, he had no property belonging to himself which was in need of protection and no right or interest which was in immediate danger so as to need immediate protection. Even if he had such a right, the means adopted -- in other words knocking the head of the statute off -- were not reasonable having regard to all of the circumstances, that action in itself was not capable of protecting anyone's property, it was not even going to begin to achieve his objective. The law in this field is really within a very narrow [ compass ]. Let me give you a simple example. If, for instance, I see the wall of your house bulging so far that I think it is going to fall down and damage the wall of my house and I go out and knock it down, that would be me acting in protection of my own property which was in immediate danger because of the fear of your wall falling down on it. Another simple example: If I have a right of way across your land and you put up a gate to stop me exercising it, then I will be acting in protection of my proprietary interests in that right of way if I knocked the gate down. That is the field in which lawful excuse arises. It is defined very narrowly within the Statute. Therefore, in the light of what the defendant admits that he did, I must direct you that there can only be one verdict in this case and that is one of guilty. The case is nothing to with whether you like or dislike Mrs Thatcher: Whether you like or dislike her policies, it is simply a question of, whether as a matter of law it amounts to criminal damage." 24. Mr Kelleher was convicted and sentenced to a term of three months' imprisonment. He now appeals against that conviction with leave of the single judge. 25. The grounds relied upon are that: (i) the judge was wrong to rule as a matter of law the defence was unavailable; and (ii) , in any event, was wrong to direct the jury to return a verdict of guilty. 26. We take those grounds in turn. We begin by setting out the relevant statutory provisions. Section 1(1) of the Criminal Damage Act 1971 provides: "A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence." 27. It is further provided by section 5 as follows: "5(1) This section applies to any offence under section 1(1) above [simple criminal damage] ... (2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse -- (a) ... (b) if he destroyed or damaged or threatened to destroy or damage the property in question or ... in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed -- (i) that the property, right or interest was in immediate need of protection; and. (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances. (3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held. (4) For the purposes of subsection (2) above a right of interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise. (5) This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges." 28. In R v Hunt the appellant had been charged with setting fire to a guest room in an old people's home. He claimed that he had done so to draw attention to a defective fire alarm system. He sought to set up a statutory defence under section 5(2) by claiming to have had a lawful excuse in doing what he did. The trial judge withdrew the defence from the jury. In giving the judgment of this Court Roskill LJ, as he then was, said at page 108: "I have said that we will assume in his favour that he possessed the requisite honest belief. But in our view the question whether he was entitled to the benefit of the defence turned upon the meaning of the words 'in order to protect property belonging to another'. It was argued that those words were subjective in concept, just like the words in the latter part of section 5(2)(b) which are subjective. We do not think that is right. The question whether or not a particular act of destruction or damage or threat of destruction or damage was done or made in order to protect property belonging to another must be, on a true construction of the statute, an objective test. Therefore we have to ask ourselves whether, whatever the state of this man's mind and assuming an honest belief, that which he admittedly did was done in order to protect this particular property, namely the old people's home in Hertfordshire? If one formulates the question in that way, in the view of each member of this court, for the reasons Slynn J gave during argument, it admits of only one answer: this was not done in order to protect property; it was done in order to draw attention to the defective state of the fire alarm. It was not an act which in itself did protect or was capable of protecting property." 29. That approach was followed in Ashford and Smith where the appellants had attempted to cut the wire fence surrounding an American Air Force base to demonstrate their opposition to nuclear weapons. They were charged with possession of an article with intent to damage property. The judge ruled that the purported reason for having the articles did not fall within the definition of a lawful excuse and, therefore, no evidence to that effect could be called. A ground of appeal was that the judge erred in so ruling. Following the reasoning in Hunt the Court held that whether or not an act was done or made in order to protect property belonging to another must be, on the true construction of the statute, an objective test and the judge had ruled correctly. 30. In a trenchant criticism of the decision Professor Sir John Smith in his commentary to the report beginning at page 683 suggested: "... that the result could only be achieved by 'a gross distortion of the words of the statute, reading it as if the words, 'in order to', read, 'by an act likely to.'" 31. Nevertheless, the passage from Roskill LJ's judgment was cited with approval by the Court in R v Hill and Hall . That was another case where the applicants, for such they were, were separately tried on an indictment charging possession of an article with intent to damage property contrary to section 3 of the Criminal Damage Act 1971 . In each case the article in question was a hacksaw blade and it was the prosecution case that each of the applicants intended to use one to cut part of the perimeter fence of a United States Naval Facility. The defence in each case was one of lawful excuse. It was put forward that the actions were aimed at forcing the United Kingdom to abandon nuclear weapons; thereby saving their own property and that of their neighbours from destruction. 32. The trial judge in each case had directed the jury to convict on the basis, first, that the causative relationship between the acts and the alleged protection was so tenuous and nebulous the acts could not, objectively, have amounted to protection. On applications to appeal against conviction it was contended that the test was a subjective one and that it should have been left to the jury as a question of fact as to what in each case the applicant believed. A further point was taken that the judge had been wrong to direct the jury to convict. That second ground is a matter to which we shall have to return. 33. Having stated that the decision in Hunt was correctly decided and, in any event, binding upon the Court, Lord Lane, Chief Justice, giving the judgment of the Court, went on to say: "There are two aspects to this type of question. The first aspect is to decide what it was that the applicant in this case, Valerie Hill, in her own mind thought. The learned judge assumed, and so do we, for the purposes of this decision, that everything she said about her reasoning was true. I have already perhaps given a sufficient outline of what it was she believed to demonstrate what is meant by that. Up to that point the test was subjective. In other words one is examining what is going on in the applicant's mind. Having done that the judges in the present cases and the judge particularly in the case of Valerie Hill turned to the second aspect of the case and that is this. He had to decide as a matter of law, which means objectively, whether it could be said that on those facts as believed by the applicant, snipping the strand of wire, which she intended to do, could amount to something done to protect either the applicant's own home or the home of her adjacent friends in Pembrokeshire. He decided again quite rightly in our view that that proposed act on her part was far too remote from the eventual aim at which she was targeting her actions to satisfy the test." 34. We, too, are bound by the decisions in Hunt , Ashford and Smith and Hill and Hall . If it were necessary to do so we would also agree with the construction of the section adopted by this Court in those cases. Of course, Professor Sir John Smith is right to say that the words "in order to" involve a consideration of a defendant's state of mind, but what a judge has to decide is whether the defence of lawful excuse is raised on the evidence. In other words, does the declared or stated purpose engage the subsection? 35. In our view the trial judge was right to conclude that the appellant's stated purpose in damaging the statue did not raise the defence of lawful excuse for the jury's consideration. If we have any criticism at all of his direction it is simply that it fails to make reference to property belonging to "another" or a right or interest in property which he believed to be vested in "another". It seems to us, however, that on the evidence of the appellant himself the defence was unavailable whether by reference to his own property or right or interest, or that of anyone else. Accordingly, we would hold that the judge was entitled, and indeed correct, to withdraw the defence from the jury. 36. But was he entitled and correct to direct the jury as he did? So long as a defendant remains in the charge of the jury he or she can only be acquitted or convicted by the verdict of the jury. If authority is required for that trite proposition see R v Heyes [1951] 1 KB at 29. Where, as not uncommonly happens, a defendant having put himself upon his country (ponit se super patriam) wishes to change his plea to one of guilty, then, with leave of the judge, the indictment may be put again and a new plea entered in the presence of the jury, following which the jury may be invited to return a verdict there and then. An alternative, sometimes employed, might be to discharge the jury and allow the defendant to be re-arraigned. That, however, leaves open the possibility of abuse by a manipulative defendant. Even where there has been a change of plea from not guilty to guilty to a count on the indictment and that has occurred in the presence of the jury it is not the usual practice (query whether it could ever be the correct practice) for the judge to direct a verdict of guilty. He or she will usually invite someone to act as foreman, explain what has happened, say that what they have listened to may seem to them to be the strongest possible evidence of guilt, invite consultation without retirement and then to take a verdict which invariably will be one of guilty. 37. To that extent the practice differs from that adopted following a ruling of "no case". There the judge will direct an acquittal and the verdict is returned "by direction of the judge". The distinction was underlined in the well-known case of DPP v Stonehouse (1977) 65 Cr App R 192 , [1978] AC 55 and particularly in the speech of Lord Salmon at pages 219 and pages 79-80 respectively: "Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge's duty to direct them to acquit. This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule -- although there are some who think there should be." 38. The majority decision in that case was to the effect that there can never be circumstances in which it would be right for a judge to direct a conviction in terms. To continue the quotation from Lord Salmon's speech: "If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury's verdict by directing them to convict. The jury alone have the power to decide that the accused is guilty. In an appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would for the judge to tell the judge to tell the jury that it would be perverse for them to acquit. Such a course might be counter-productive." 39. R v Stonehouse was followed and applied by this Court in R v Gent (1989) 89 Cr App R 247. In that case Lloyd LJ, as he then was, giving the judgment of the Court said. "Whether or not there is still a category of rare cases where the judge is justified in directing a conviction, it is perhaps unnecessary to decide. There is no reference to any such cases in the speeches of the majority in DPP v Stonehouse ; and the existence of such a category is inconsistent with the thrust of Lord Keith's speech at p.232 and p.94 respectively. Our own view would be that, if such a category exists at all, it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt. The fact that on the evidence, including the evidence of the defendant himself, only one verdict is possible, does not justify the judge in directing the jury to convict. If the judge takes the view the defendant has, in the course of his evidence admitted his guilt then it is always open to him to give the defendant an opportunity, in the absence of the jury, to change his plea. But if he maintains his plea, the defendant is entitled to the verdict of a jury, even though in the view of the judge, an acquittal would be perverse." 40. Clearly the Court was suggesting that the opportunity to change plea, not any re-arraignment, should be in the absence of the jury. The usual practice was and remains that any change of plea should be tendered in the face of the jury who would then be in a position to act upon it in the manner previously indicated. 41. Interestingly, Gent was decided the year following the decision of this Court in Hill and Hall . Hill and Hall does not appear to have been cited in argument and certainly is not referred to in the judgment. In each of the cases of Hill and Hall the judge had in effect directed a verdict of guilty. The Court referred to the case of Stonehouse and to the passages which we have recited at an earlier place in this judgment, making the distinction between a direction to convict based on the Crown's affirmative case and the withdrawal of a defence which was unsupported by evidence. This is what was said by the Lord Chief Justice at page 81: "The judge here was dealing with the defence of lawful excuse. Certainly the prosecution had to destroy that defence, but it was no part of their affirmative case. It bore a similarity to the defence of self-defence, and, as it that case, so in this, there was no need for the judge to direct the jury on those matters unless there was some evidence capable of constituting that defence. In fact there was none, as the judge in each case rightly held." 42. The Court then went on to say that there was no other issue and in that case the judge had been entitled to direct a verdict of guilty. For our part we can quite see the distinction between a ruling that a defendant has not satisfied the evidential burden necessary to raise a particular defence which may lead, quite properly, to the issue being removed from the jury's consideration, but, as it seems to us, in every case it will be necessary for the prosecution to establish an affirmative case. So even though it may be ruled, quite correctly, that the defence of lawful excuse is not available, it is still for the Crown to prove to the satisfaction of the jury that the offence of criminal damage has been committed. It matters not that the evidence is overwhelming, or even that by his evidence the appellant has seemingly admitted all the constituents of the offence; it remains for the jury to return its own voluntary verdict. For that reason and in this one respect we consider that the Court in Hill and Hall was in error. 43. How does that affect the present appeal? This was not a case where the judge directed the jury in terms to convict. The jury was invited to retire, which they did, and in due course returned a verdict of guilty. It is the case, however, that the passage from the summing up already quoted includes the following: "Therefore, in the light of what this defendant admits that he did, I must direct you that there can only be one verdict in this case and that is one of guilty." 44. Now whilst it is true that any other verdict might be regarded as perverse, and the judge would certainly have been entitled to say "you may think that there can only be one verdict in this case and that is one of guilty", it can hardly be denied that the words used could be taken as a direction to convict. We can well understand having read Hill and Hall how this conscientious judge came to express himself as he did and we certainly do not criticise his withdrawal of the defence of "lawful excuse". But in our view the general issue of guilt or innocence should have been left to the jury and the words used crossed the line which separates forceful comment from a direction to convict. 45. One question remains. Was this conviction safe? The evidence was truly overwhelming. The appellant admitted the constituents of the offence. There was no defence available to him. Following a proper direction a verdict of guilty was or should have been inevitable. However, there is a difficulty. As was noted in R v Davis & Others (2001) 1 Cr App R 115 at 130 and following, there relying upon what was said in Hickey & Others CA July 30 1997, this Court is not concerned with the guilt or innocence of the appellant, but only with the safety of the conviction. As was said by Roch LJ giving the judgment of the court in Hickey & Others : "This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. If the trial process is not fair, if it is distorted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened." 46. As has already been noticed, so long as the defendant remains in charge of the jury only the jury can return a verdict of guilty or not guilty. Where there has been a direction to convict, therefore, can it be said that the verdict returned is the voluntary and therefore the true verdict of the jury and, further, if not, in such a case can it be said that there has been a conviction, let alone a safe conviction? 47. In R v Stonehouse the complaint had been that the trial judge had failed to leave to the jury one of the constituents of an attempt. It was held that he had directed them to find that constituent proved. Nevertheless the Court was invited to apply the proviso to section 2(1) of the Criminal Appeal Act 1968 . Among the majority Lord Salmon said this (65 Cr App R at 219; (1978) AC at 79 respectively): "Anyone in the judge's position might easily have made the slip which he did of not leaving the jury to decide whether the facts proved amounted to the attempt charged. However obvious it may be that they did and that the accused was guilty, technically, the judge should still have left it to the jury to decide whether or not the evidence established the attempt charge and have found him guilty or not guilty accordingly. The technical slip on the part of the judge certainly made no difference to the result of the trial. There is no possibility that any reasonable jury could have had the slightest doubt that the facts proved did establish the attempt charged and accordingly would certainly have brought in a verdict of guilty. I am completely satisfied that no miscarriage of justice could have resulted from what technically was a misdirection and that therefore the proviso to section 2(1) of the Criminal Appeal Act 1968 should be applied." 48. Lord Edmund Davis (pages 227 and 89 respectively) stated: "In several cases of misdirection of the kind which occurred in the instant case, the conviction has been upheld where the court was convinced that, on a proper direction, the jury would have come to the same conclusion. Applying that generally accepted test to the present case and being satisfied that no miscarriage of justice resulted from the misdirection complained of, I would apply the proviso." 49. Lord Keith, also being of the "majority" and having agreed that it was never appropriate to give a direction to convict (pages 232 and 94 respectively), continued: "While that is my view upon the matter of principle, I cannot in the circumstances of the present case regard the misdirection as being other than purely technical. I do not consider that in these circumstances any reasonable jury could have come to the conclusion, having accepted the evidence as to what the appellant did, that his actions were merely preparatory to an attempt such that was charged. I am therefore of the opinion that this is a clear case where no miscarriage has resulted from the misdirection, and which is therefore a proper one for the application of the proviso to section 2(1) of the Criminal Appeal Act 1968 ." 50. It is clear that in R v Gent , the Court saw no difficulty in principle in applying the proviso although it was unpersuaded to do so having regard to the state of the evidence. 51. We do not think that the approach has been changed significantly by the amendment to section 2(1) which requires the Court to allow an appeal where, for whatever reason, the conviction is considered unsafe. In Davis and Others the Court, having reviewed a number of authorities, attempted to extract certain principles. These appear at pages 131 and 132 of the judgment: "The court is concerned with the safety of the conviction. A conviction can never be safe if there is a doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been 'vitiated by serious unfairness or significant legal misdirection' as in Smith (Patrick and Others) and in Weir . Usually it will be sufficient for the court to apply the test in Stirland (1945) 30 Crim App R 40 1944 AC 315 , which as adapted by Mr Perry, might read: 'Assuming the wrong direction on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?'" 52. Applying that test and following the powerful precedent provided by the House of Lords in R v Stonehouse and notwithstanding the logical difficulty to which we have referred, we conclude that the conviction of Mr Kelleher is to be regarded as "safe". Accordingly his appeal against conviction must be dismissed. 53. LORD JUSTICE MANTELL: Thank you both for attending. 54. THE APPELLANT: My Lord, may I have a few moments of the Court's time for section 12(4) of the Human Rights Act , freedom of expression, and 13(1), freedom of thought, conscience and religion, please? 55. LORD JUSTICE MANTELL: Have you got an application to make, Mr Kelleher? 56. THE APPELLANT: Yes, my Lord. 57. LORD JUSTICE MANTELL: What is it? 58. THE APPELLANT: The application is that we now have to move this forward. 59. LORD JUSTICE MANTELL: We have what? 60. THE APPELLANT: To move this forward, my Lord. I suppose the most direct route would be the House of Lords next and then to the European Court of Human Rights. I am finding it very difficult to accept -- 61. LORD JUSTICE MANTELL: I think -- someone will help me I am sure -- I think you have got 14 days in which to prepare a question which you consider suitable for consideration by the House of Lords and then you can come back to this Court and ask, first of all, for us to certify that question as being of general public importance, and, secondly, to ask for leave to appeal to the House of Lords. If we certify it as being of general public importance and refuse leave, you can then seek leave from the House of Lords itself, Mr Kelleher. Now, it is really very important that you try to get a question drafted in the sort of form which the Court considers sensible. You have -- 62. THE APPELLANT: I don't consider this Court sensible, my Lord. 63. LORD JUSTICE MANTELL: There is no need to be rude. 64. THE APPELLANT: My Lord, I am not trying to be rude. I have the utmost respect for the Court. This Court has the best customer service I have ever seen in this Court, my Lord. It is beyond -- I am humbled by the customer service, but I don't mean to be rude at all, my Lord. 65. LORD JUSTICE MANTELL: You don't agree with the judgment, Mr Kelleher. 66. THE APPELLANT: Of course I don't, my Lord. 67. LORD JUSTICE MANTELL: That is your privilege. 68. THE APPELLANT: But, my Lord, it's in your opinion then that Lord Aikens was wrong? 69. LORD JUSTICE MANTELL: I am not answering questions, Mr Kelleher. I am advising you as to your next course. 70. THE APPELLANT: On 16th September 2002 in Lord Aikens' court universal law was declared. That was binding. That is effective law and it is binding now. 71. LORD JUSTICE MANTELL: You have heard what I said, Mr Kelleher, please be quiet for a moment. You've heard what I have said. If you want to take the matter further then you have to follow the procedure which we have indicated. Now you may think it sensible to try to get the help of Miss Humphreys who represented you in drafting a question which you think is suitable for consideration by the House of Lords. 72. THE APPELLANT: But the House of Lords don't understand, my Lord, that respect, trust, peace, care, family, faith, hope and happiness. 73. LORD JUSTICE MANTELL: Mr Kelleher, that's all I intend to say to you. The Court will rise. 74. THE APPELLANT: I didn't mean to offend you, my Lord. ( Court adjourned )	{"ConvCourtName":["Southwark Crown Court"],"ConvictPleaDate":["2003-01-22"],"ConvictOffence":["Criminal damage"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Southwark Crown Court"],"Sentence":["3 months' imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Defendant's admissions","Read evidence"],"DefEvidTypeTrial":["Prepared statement by defendant"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Judge was wrong to rule as a matter of law the defence was unavailable","Judge was wrong to direct the jury to return a verdict of guilty"],"SentGuideWhich":["Criminal Damage Act 1971 section 1(1)","Criminal Damage Act 1971 section 5(2)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Conviction was safe; evidence was overwhelming; no defence available; any other verdict would have been perverse; trial process did not result in miscarriage of justice"]}
WARNING: the reporting restrictions mentioned in paras 1, 63 and 64 of the judgment apply by statute to the contents transcribed in this document. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/00283/B1, 2023/00285/B1 2023/00286/B1, 2023/00287/B1, 2023/00288/B1 2023/00289/B1 & 2023/00291/ B1 [2023] EWCA Crim 205 Royal Courts of Justice The Strand London WC2A 2LL Thursday 16 th February 2023 B e f o r e: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE BRYAN SIR NIGEL DAVIS ____________________ R E X - v - JASON ROWAN CATHERINE ROWAN STEPHEN TOMLINSON DAVID BEESON, CHRISTOPHER SIMPSON BOHDAN ZACHARKO PHILIP EREMENKO ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr C Nelson QC and Mr S Trefgarne appeared on behalf of the Applicant Crown Mr O Osman and Mr T Smith appeared on behalf of the Respondent J ROWAN Mr N Sekhon and Mr S M Sharma appeared on behalf of the Respondent C ROWAN Mr G Wills appeared on behalf of the Respondent TOMLINSON Mr A Fitch-Holland and Mr L Chignell appeared on behalf of the Respondent BEESON Mr J Rivett and Miss K A Rowan appeared on behalf of the Respondent SIMPSON Mr D Keating and Lady G Waszkewitz appeared on behalf of the Respondent ZACHARKO Mr M Radstone and Miss B Brasoveanu appeared on behalf of the Respondent EREMENKO ____________________ J U D G M E N T ( Approved ) ____________________ Thursday 16 th February 2023 LORD JUSTICE HOLROYDE: 1. By virtue of section 71 of the Criminal Justice Act 2003 , no publication may include a report of these proceedings, save for certain basic facts, until the conclusion of the trial of the respondents, unless this court otherwise orders. We shall return to the issue of reporting restrictions at the conclusion of this judgment. 2. This is an application by the prosecution for leave to appeal, pursuant to section 58 of the Criminal Justice Act 2003 , against a ruling in relation to a trial on indictment. The seven defendants in that trial (the respondents to this application) are accused of fraudulent activity in relation to the sale by a number of companies of home improvement products. The prosecution allege that customers, most of whom were elderly, were induced by false representations to buy products which they did not need and/or to buy products at greatly inflated prices. 3. The trial has begun, although the jury has not yet heard any evidence. This application has been expedited so that the trial can, if appropriate, continue. 4. For convenience we shall refer to the respondents simply as "D1" to "D7". The roles ascribed to each of them by the prosecution can be summarised as follows. D1 was in charge of all the companies. D2 worked in the offices, dealing with requests for refunds or repayment of deposits. D3 was for a time the number 2 in the operation and dealt with customer complaints. D4 and D5 were experienced sales representatives for each of the companies, targeting vulnerable customers and mis-selling products; they are said to have been the most active of the many salesmen employed by the companies. D6 began as a sales representative and later became sales manager. D7 for a time managed the training of company personnel and trained sales representatives in improper sales techniques. 5. The indictment contained seven counts, to which all defendants have pleaded not guilty. Count 1 charges all seven with conspiracy to commit fraud, contrary to section 1 of the Criminal Law Act 1977 . The particulars allege that the defendants conspired "together and with others" to make representations to members of the public which they knew were or might be untrue or misleading, in order to induce them to enter into agreements with a number of named companies. Count 2 charges D1, D3, D6 and D7 with fraudulent trading in relation to the business of one of those companies; count 3 charges D1, D3 and D6 with fraudulent trading in relation to a second company; and count 4 charges them with fraudulent trading in respect of a third. The remaining counts charge money laundering offences against individual defendants. 6. Given the nature of the appeal, we say as little as possible about the facts of the case. It is, however, necessary in order to address the issues which arise in this application to give some detail about the course of the trial thus far. 7. The trading activities of the companies attracted the attention of an investigative television programme. The television company covertly recorded two films, to which we shall refer for convenience as "Films A and B". The prosecution wished to adduce both films in evidence. Film A was a recording of D7 training company personnel. The prosecution case was that it showed the teaching of the improper sales techniques which were practised on customers. Film B was a recording of a "sting" operation in which a sales representative was invited to call on an actress posing as a potential customer. The prosecution case was that it showed an example of the improper sales techniques being used. 8. The actress in Film B is not to be called as a prosecution witness. The salesman who visited her has not been charged and is not to be called as a prosecution witness. Apart from D4, D5 and D6, none of the 20 or more other persons who acted as sales representatives for the companies has been charged, and none is to be called as a prosecution witness. 9. Defence counsel applied to exclude evidence relating to Films A and B. Their written submissions were primarily based on complaints of suggested inappropriate interaction between the prosecuting authority and the television company, and failures of disclosure. It was submitted that this evidence was inadmissible and that in the alternative it should be excluded on grounds of unfairness, pursuant to section 78 of the Police and Criminal Evidence Act 1984 ("PACE"). The principal arguments in relation to unfairness were that the covert filming was carried out with the acquiescence of the prosecution, but the defendants were denied the safeguards which they should have been afforded under the Regulation of Investigatory Powers Act 2000 , and that the prosecution had failed in their duty of disclosure. 10. In a written submission on behalf of D1, a third argument was advanced to the effect that D1 had not been present at the recording of Film B and therefore could not speak to it. That third submission was specifically described as "not a principal argument". 11. Evidence was called by the prosecution on the voir dire in relation to the defendants' principal arguments. Oral submissions were made on Thursday 19 th January 2023. In the course of his further submissions that afternoon, counsel for D1, who effectively took the lead in all the submissions on behalf of the defendants, referred to the "entirely separate matter" of Film B. It was, he submitted, prejudicial because the salesman concerned was neither a co-defendant nor a witness and, accordingly "we have no ability at all to challenge this evidence". He added that even if the court was against him on his "substantive submissions", Film B was in a category of its own. Counsel later reiterated that no one would be able to question the salesman shown in Film B to ask what was in his mind and whether he had been trained to act as he did. Counsel for D7 similarly submitted that he would be unable to question the salesman as to whether he had acted in accordance with training given by D7. 12. Prosecution counsel responded that it was the prosecution's case that the salesman was a co-conspirator and that Film B showed him using the techniques in which D7 trained sales representatives. Counsel submitted that the film was real evidence of statements in furtherance of the conspiracy, which established the existence of the conspiracy. There was no prejudice to the defendants, he submitted, because their cases were that any sales representative who had told lies to a customer had done so of his own accord, and not in pursuance of company policy. 13. Counsel for D7 then submitted that if the salesman was said to be a co-conspirator, the prosecution should have charged him, and they should not be permitted to "have it both ways". Prosecution counsel, in response, made clear that it was the prosecution case that all the sales representatives were co-conspirators, albeit that they had not all been charged. He said that if the defendants wished him to name all those alleged to be co-conspirators, the indictment could be amended accordingly. He added that the allegation against the other sales representatives had been clearly stated in his note of opening, which had been circulated in December 2022, and that no one had previously suggested that it was necessary for them all to be named in the indictment. 14. On Friday 20 th January 2023, the judge gave her ruling. She rejected the principal submissions made on behalf of the defendants. She found on the evidence which she had heard that there had been no behaviour on the part of the prosecuting authority which had such an impact on the fairness of the proceedings that the evidence of the covert film should not be admitted. Film A, she said, was real evidence properly admitted and she did not take the view that it should be excluded. 15. The judge said, however, that Film B, on which the prosecution wished to rely as an illustration of techniques said to be devised, promoted and employed by the defendants, was in "an entirely different category". She accepted that Film B was highly probative, but continued: "However, in the absence of the main protagonist, there is no possible way the defence can test what the thought processes and motivations of that particular individual was on that occasion. Whether he was acting on instructions given by the company, as part of a common plan to defraud customers, or whether he was acting independently of any advice or training he had been given for reasons of his own on that occasion simply cannot be tested." 16. The judge then referred to the fact that the salesman had not been charged, and to the indication that the prosecution might apply to name him and others in the indictment. She rejected that suggestion. She said: "In my judgment, to name an alleged co-conspirator in an indictment, against whom a decision was made not to prosecute, or indeed no decision was made to prosecute, would be wrong. Conspiracy involves criminal activity on the part of each of those alleged to be co-conspirators. It is self-contradictory to decline to charge a person, perhaps for evidential or other reasons, while seeking to rely in a subsequent prosecution on alleged wrong-doing by the same individual, and in my judgment would not be proper." The judge concluded that if the prosecution wanted to use the behaviour of the salesman shown in Film B as an example of the criminal activity, "they should have charged him". 17. For those reasons the judge ruled that to admit Film B in evidence would have such an adverse effect on the fairness of the proceedings that she ought not to admit it. Brief further oral submissions followed before the court adjourned until Monday 23 rd January. 18. Counsel worked diligently on the case over the weekend. On the Sunday afternoon the prosecution sent out written submissions about Film B, and defence counsel collectively sent a further application to exclude evidence, pursuant to section 78 of PACE. Neither of those documents was a response to the other: they were emailed at around the same time. 19. In the submissions on behalf of the prosecution, counsel expressed concern that the admissibility of Film B may not have been fully argued. They did not apply to re-open the judge's exercise of her discretion under section 78 of PACE, but expressed willingness to assist if the judge felt that further argument would be appropriate. They referred to the need for prosecuting authorities to consider the public interest as part of any decision to charge, and to the considerations of resources and proportionality which were taken into account in a decision to prosecute the alleged leaders of the conspiracy, but not those less involved. They submitted that it would be correct in law to apply to amend the indictment to include a schedule of all the alleged co-conspirators. In this regard they referred to a passage at chapter 33, paragraph 47, of the 2023 edition of Archbold. 20. In their further application, defence counsel submitted that the court should exclude the evidence of all prosecution witnesses who had been customers of the defendants' companies and who had dealt with sales representatives other than those in the dock. The basis of this application was "the defence's inability to test key aspects of their testimony, specifically evidence relating to the behaviour and/or thinking of the identified salesperson". Counsel relied on key points from the ruling which the judge had given in relation to Film B. 21. In response, the prosecution submitted that evidence of what a complainant says was said to him or her by a sales representative is always admissible in the trial of a fraud such as is alleged here. Such evidence is adduced not to prove that what was said by the sales representative was true, but rather to prove that lies and half-truths were being told in accordance with a system planned and encouraged by those running the business. They pointed out that if a sales representative was charged, his state of mind at a material time could only be questioned by other defendants if he chose to give evidence. They suggested that, in reality, the defendants who occupied managerial roles would be more prejudiced if the sales representatives did give evidence about the instructions they had received. 22. The judge heard oral submissions on the morning of Monday 23 rd January and then gave her ruling on what she described as "the admissibility of further evidence in the same category as that which I have already ruled inadmissible". Although the further evidence would be given by witnesses who had dealt with sales representatives, rather than by the playing of a covertly recorded film, the judge said that it remained her view that the evidence "would give rise to unfairness, as it would prevent the defence from being able to challenge evidence which is evidence of wrongdoing by others of the precise same nature and on all fours with that faced by the defendants in the dock". She therefore excluded, pursuant to section 78 of PACE, all the evidence of customers' dealings with sales representatives who had not been charged. 23. We are told by prosecution counsel that the practical effect of that ruling would be that the prosecution would be unable to use any of the evidence of 30 complainants, and unable to use part of the evidence of another nine complainants. 24. The prosecution applied for, and were granted, an adjournment until the following day to consider their position. They then gave notice of their intention to appeal, pursuant to section 58 of the 2003 Act , and gave the "acquittal undertaking" required by section 58(8) . 25. Section 58 of the 2003 Act gives the prosecution a right of appeal against a ruling in relation to a trial on indictment. By section 58(4) : "The prosecution may not appeal in respect of the ruling unless — (a) following the making of the ruling, it — (i) informs the court that it intends to appeal, or (ii) requests an adjournment to consider whether to appeal, and (b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal." 26. That provision is supplemented by rule 38.2 of the Criminal Procedure Rules, which states: "(1) An appellant must tell the Crown Court judge of any decision to appeal — (a) immediately after the ruling against which the appellant wants to appeal; or (b) on the expiry of the time to decide whether to appeal allowed under paragraph (2). (2) If an appellant wants time to decide whether to appeal — (a) the appellant must ask the Crown Court judge immediately after the ruling; and (b) the general rule is that the judge must not require the appellant to decide there and then but instead must allow until the next business day." 27. By section 61 of the 2003 Act , on an appeal under section 58 this court may confirm, reverse or vary any ruling to which the appeal relates. 28. By section 67, however, this court may not reverse a ruling unless it is satisfied: “(a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have made." 29. The prosecution's grounds of appeal relate to the rulings given on both 20 th and 23 rd January which, it is submitted, amounted to one ruling. The grounds are: first, that the ruling involved an error of law or principle; and secondly, that the judge's exercise of her discretion under section 78 of PACE was unreasonable. 30. The defendants submit that this application must be confined to the ruling given on 23 rd January, because the prosecution did not immediately give notice of their intention to appeal against the ruling on 20 th January, or request an adjournment to consider doing so. 31. It is accepted on behalf of the defendants that the prosecution complied with section 58(4) in relation to the ruling on 23 rd January, but counsel submit that that ruling, whilst obviously disadvantageous to the prosecution, was neither wrong in law, nor unreasonable. 32. Those core submissions have been greatly amplified in the written and oral submissions of counsel, for which we are grateful. We will not mention every point which has been raised, but we have them all in mind. Three broad issues arise, which we will address in what seems to us the most logical order. 33. First, we must consider whether the ruling given on 20 th January was wrong in any of the three ways to which section 67 of the 2003 Act refers. With all respect to the judge, we have no doubt that it was. In fairness to her, we say at once that, as will be apparent from our summary of the circumstances in which that ruling was given, the focus of the submissions, and therefore the focus of the judge, was on the defence arguments based on the suggested interaction between the prosecuting authority and the television company, and on the suggested failures of disclosure. Although the judge had directed that all legal submissions should be notified in early December 2022, no challenge had previously been made to the clear assertions in the draft opening that the sales representatives were all parties to the conspiracy, and it had not been suggested that it would be unlawful or unfair for the prosecution to present their case in that way, when most of the sales representatives had not been charged. 34. The discrete submission that it would be unfair for the prosecution to adduce Film B in evidence had not been fully articulated in writing and was made only briefly in oral submissions. We agree with Mr Nelson KC for the prosecution that, as a result, the point was not fully argued. Had the argument been properly identified in advance by the defence, and had the prosecution therefore had the opportunity to address it fully and to make submissions about the law, the judge would have been much better informed when making her decision. 35. Be that as it may, the defence argument and the judge's ruling involved an error of law or principle. The passage in Archbold, to which reference has been made, reflects the well- established principles in relation to the naming in an indictment of co-conspirators. More importantly for present purposes, there is no rule of law or established principle which requires the prosecution always to charge every person who is said to have been party to a conspiracy. There may be compelling reasons why such a person cannot be charged: for example, because he has died, or is outside the jurisdiction, or, as in R v Austin [2011] EWCA Crim 345 , because he was acquitted at an earlier trial. Even where an alleged co-conspirator might in principle be charged, there may well be compelling reasons why it is not in the public interest to do so. In a large scale conspiracy, a requirement to charge all alleged parties to the conspiracy would often result in there being so many defendants that a series of long trials would be necessary, at disproportionate cost in time and resources, and with the attendant undesirable possibility of inconsistent verdicts. Such an approach will be inconsistent with the overriding objective set out in the Criminal Procedure Rules and with principles of case management. R v Bashir [2019] EWCA Crim 2288 provides an example of a case in which the prosecution were required to prove that students enrolled at a bogus college were complicit in the criminal activity of those operating the dishonest scheme. The students were neither prosecuted, nor called as witnesses, but this court held that there was evidence from which the jury could properly infer the necessary complicity. 36. We note that in R v Austin , at [26], Thomas LJ (as he then was) said: "… The acquittal in a previous trial, whether by reason of a verdict of the jury or on the direction of the judge, is a bar to re-trying that defendant, save in the narrow circumstances permitted by Part 10 of the Criminal Justice Act 2003 . However that acquittal cannot in a subsequent trial of other conspirators be a general bar to the Crown alleging that person was a party to the conspiracy. There can be many reasons why a defendant is acquitted and the evidence in the second trial may be different. However, the question in the subsequent trial where such an issue arises is whether it is unfair to the other conspirators or improper for the Crown to be able to assert that an acquitted person was a party to a conspiracy. As a matter of principle there can be no general bar …" 37. There being, therefore, no general bar in the circumstances of an earlier acquittal of an alleged co-conspirator, we observe that it would be very surprising if there were a general bar in the circumstances of a decision by the prosecution, taken on proper grounds, not to charge all the persons said to have been involved in a conspiracy. In such circumstances, of course, it would again be necessary to consider whether the course taken by the prosecution resulted in unfairness to those who had been charged. A fact-specific decision will be necessary in each case in which such an issue arises. An illustration was provided by Mr Nelson KC in the course of his oral submissions, when he informed the court that the prosecution had decided at trial that the evidence against an eighth charged defendant was insufficient, and that accordingly no evidence would be offered. Mr Nelson made plain that it would have been no part of the prosecution's case subsequently to allege that the former defendant, acquitted on that basis, had been a party to the conspiracy. 38. It was, therefore, an error of law or principle for defence counsel to suggest, and for the judge in one of the passages we have quoted from her ruling on 20 th January to state as a general proposition, that it would be self-contradictory, or wrong, or not proper for the prosecution to conduct a trial on the basis that a number of persons who had not been charged were parties to the alleged conspiracy with those in the dock. That general proposition was one of her two reasons – and it appears to have been her principal reason – for ruling as she did. The error of law or principle therefore deprives the ruling of its foundation. 39. As to the judge's exercise of her discretion, we bear very much in mind that in R v B [2008] EWCA Crim 1144 , at [29] the court emphasised that leave to appeal under section 67 will not be given "unless it is seriously arguable not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was". We also bear in mind that, in the same ruling, the judge had exercised her discretion in favour of the prosecution in relation to other matters. We are, however, satisfied that, in excluding the evidence of Film B on grounds of unfairness, she exercised her discretion under section 78 of PACE in a way which it was not reasonable for her to do. 40. Film B showed a salesman dealing with a customer or apparent customer in a manner which the prosecution alleged was consistent with the approach and training adopted by those in managerial positions. The defence statement of each of the defendants is broadly to the effect that he or she was not party to any conspiracy, acted honestly and properly throughout, and had no influence or control over, or involvement in, any dishonest representations which any salesman may have made to any customer. No defendant would be impeded in advancing such a defence by Film B being shown to the jury. Any defendant who wished to adduce evidence either to the effect that he had taken no part in training the salesman, or that he had trained the salesman to conduct himself honestly, would be able to do so, and would not be at risk of being contradicted by testimony by the salesman. In their oral submissions to us today, no defence counsel was able to identify any unfair prejudice of any substance. Nor, with respect, did the judge do so. We therefore cannot accept the submission that the defendants would suffer serious, unfair prejudice if Film B were shown to the jury. 41. No one suggested – and the judge did not find – that the prosecution were obliged to call as a witness a salesman whom they accused of dishonesty. The suggested prejudice is accordingly said to flow from the fact that the salesman had not been charged. But even if he had been charged, he might have pleaded guilty. If he had pleaded not guilty and stood trial with these defendants, he might have chosen not to give evidence. If he had been one of 20 or more salesmen who had all been charged, he might not even have appeared in the same trial as these defendants. In any of those situations the defendants would have been in the same position as they are at present so far as cross-examination of the salesman is concerned. 42. If the salesman had been tried with these defendants, and if he had given evidence, it is a matter of speculation whether his evidence would have been helpful or unhelpful to any individual defendant. Thus, the high water mark of the suggested prejudice is that a defendant would be unable to take the course, which he might or might not have been able to do if the salesman had been charged, of asking a question in cross-examination of the salesman which might or might not have received a favourable answer. In those circumstances it was, in our judgment, not open to the judge to find that the prejudicial effect of the evidence so far outweighed its probative value that it should be excluded. She therefore exercised her discretion in a way which it was not reasonable for her to do. 43. We must next consider whether, notwithstanding the view we take of the judge's decision on 20 th January to exclude Film B, the prosecution are unable to appeal against that decision. In this regard it is well-established by case law that section 58(4) of the 2003 Act sets out conditions precedent to the bringing of an appeal, and that the requirements of that section must be strictly observed: see, for example, R v M [2012] EWCA Crim 792 , in which the court confirmed that the use of the word "immediately" in what is now rule 38.2, correctly reflects the requirement of section 58(4) of the Act . The court also held that the requirement to request an adjournment or to give notice of the decision to appeal "immediately following the ruling" means there and then, and in any event before anything has happened. The facts of R v M and of R v CMH [2009] EWCA Crim 2614 provide illustrations of the strictness of the approach which has been taken to the need to fulfil the conditions precedent. 44. We have reflected on the effect of the statutory requirements in a case where, as here, a judge initially makes a ruling which the prosecution believe to be wrong, but which does not gravely weaken their case, and then makes a further ruling which greatly increases the adverse effect upon the prosecution of the first decision. By section 74(1) of the 2003 Act , "ruling" is defined for this purpose as including "a decision, determination, direction, finding, notice, order, refusal, rejection or requirement". 45. In our view, a question of fact and degree will arise in each such case as to whether in all the circumstances it is fair to regard two decisions, etc, as being two stages of a single ruling. If, for example, after a ruling the prosecution immediately asked for clarification, or immediately asked the judge to rule specifically on a particular aspect of the decision, and if the ensuing discussion caused the judge to take time to reflect, before adding to the ruling on the following day, then it may well be fair to treat that as a single ruling for the purposes of section 58(4) . The position would be different if the request for clarification or expansion was not made immediately. As part of the fact-specific consideration of an issue of this nature, the court may need to reflect on whether the giving of two separate rulings had been brought about by some failure on the part of the defence to make submissions at an appropriate time, and in accordance with any direction given, so as to enable all matters to be addressed in a single ruling. 46. In the present case, we have concluded that the rulings on 20 th and 23 rd January cannot be treated as a single ruling. The prosecution were placed in a most difficult position, and we well understand why prosecution counsel proceeded as they did. It seems to us, however, that the strict approach which we must take to the statutory conditions precedent requires us to regard the ruling on 20 th January as a first ruling, and the ruling on 23 rd January, which was the judge's decision on an application which had only been made by the defence on the previous day, as a distinct, second ruling. In the event, the prosecution did not, immediately after the ruling on 20 th January, either inform the court of an intention to appeal, or request an adjournment to consider whether to appeal, and the opportunity to appeal was therefore lost. 47. We have, nonetheless, indicated our views on the first broad issue, because they are directly relevant to the third issue, namely, whether the ruling on 23 rd January was wrong in any of the three ways to which section 67 of the Act refers. Again, with respect to the judge, we have no doubt that it was. The second ruling was based upon the first and, in our view, involved the same error of law or principle. It was also a ruling which it was not reasonable for the judge to make. As with the earlier ruling, there was, again, no substance in the assertion that the defendants would be unfairly prejudiced because they could not challenge the evidence of wrongdoing by sales representatives who had not been charged. Once again, no counsel has been able to identify any unfair prejudice, and the judge did not explain any basis for her finding. 48. Given that none of the defendants had been present when the sales representatives were speaking to the customers, they could not, in any event, put forward any affirmative case as to what had been said by the sales representative, and could not do more than question the reliability of a customer's recollection. 49. So far as the absence from the trial of the sales representatives themselves is concerned, we have already make clear that the only prejudice was the loss of a potential opportunity to ask questions in cross-examination which may or may not have assisted the defence. Once again, each defendant remained able to advance his or her defence and to give evidence if they chose. Any prejudice was, therefore, heavily outweighed by the probative value of the evidence. 50. For those reasons, we grant leave to appeal against the ruling of 23 rd January alone. We allow the appeal and reverse the judge's decision on that date. 51. In the result, the judge's ruling excluding Film B from evidence stands. But the evidence of customers concerning dealings with sales representatives who have not been charged is no longer excluded. The trial will continue on that basis. 52. Mr Nelson, that concludes our ruling. We indicated that we would return to the question of reporting restrictions. 53. MR NELSON: Yes. 54. LORD JUSTICE HOLROYDE: By section 71 , unless we otherwise order, no publication shall include a report of this appeal or of the application for leave to appeal, in so far as it was unsuccessful, save for the specified particulars which section 71(8) permits to be reported. 55. The trial is under way. It is likely to last roughly how long? 56. MR NELSON: Eight weeks. 57. LORD JUSTICE HOLROYDE: Right. We have considered whether anything in the judgment which we have just delivered is of such importance for other cases that we ought to endeavour to produce some form of edited judgment, which may allow reporting, at least in part. Our provisional view, subject to any submissions we are about to receive, is that in the fact-specific circumstances of our ruling, that simply is not practicable. In view of the risk of something being published which inadvertently causes prejudice to the administration of justice in the ongoing trial, the safer course is to maintain the section 71 restrictions, knowing that it should only be a matter of weeks before the trial has concluded and the whole judgment can properly be reported. 58. MR NELSON: We agree. 59. LORD JUSTICE HOLROYDE: Thank you. Does any defence counsel wish to make any contrary submissions or any representations? 60: ALL DEFENCE COUNSEL: No, thank you. 61. LORD JUSTICE HOLROYDE: Does any representative of the media or law reporters wish to make any representation to the contrary? 62: A LAW REPORTER: No, thank you, my Lord. 63. LORD JUSTICE HOLROYDE: Thank you. Very well. Then we confirm that the reporting restrictions in section 71 do apply to this appeal and to the application for leave to appeal, save to the very limited extent for which section 71(8) provides. POSTSCRIPT : 64. On 13 July 2023 the court was informed that the trial proceedings had been concluded: the respondent offered no evidence against the defendant Catherine Rowan; the other accused stood trial, and all were convicted. The order made pursuant to section 71 of the Criminal Justice Act therefore no longer prevents publication of the matters mentioned in section 71(7) . Accordingly, this judgment may now be reported. __________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":[""],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["Mixed"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Covert video recording (Film A and B)","Customer testimony"],"DefEvidTypeTrial":["Submissions on fairness and disclosure","Arguments about inability to cross-examine absent salesmen"],"PreSentReport":["High risk of harm"],"AggFactSent":["Targeting vulnerable/elderly customers","Use of false representations"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[6],"AppealAgainst":["Ruling excluding evidence"],"AppealGround":["Ruling involved an error of law or principle","Exercise of discretion under section 78 PACE was unreasonable"],"SentGuideWhich":["section 78 of the Police and Criminal Evidence Act 1984","section 58, 61, 67, 71, 74 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge's ruling involved an error of law or principle; it was not reasonable to exclude the evidence; no unfair prejudice identified; probative value outweighed any prejudice"]}
No: 200601310 A4 Neutral Citation Number: [2006] EWCA Crim 1040 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 12 th April 2006 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE MCCOMBE MR JUSTICE WILKIE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 31 OF 2006 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M DENNIS appeared on behalf of the ATTORNEY GENERAL MR M WYETH appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: The Attorney General seeks leave to refer to this court as unduly lenient a sentence of two years' imprisonment passed on Isaac Mutubila on 20th February 2006 for an offence contrary to section 5(1) of the Sexual Offences Act 2003 . That provides: "A person commits an offence if - (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and (b) the other person is under 13." By virtue of subsection (2), a person guilty of this offence is liable on conviction to imprisonment for life. 2. The offender had pleaded guilty on 2nd December 2005. Sentence was adjourned for the preparation of a pre-sentence report and there was a direction that written representations as to the basis of the plea be provided by the defence. 3. On 5th January 2006 the offender's solicitors wrote this letter to the Crown Prosecution Service: "We act for the above named who pleaded guilty before Ipswich Crown Court on 2nd December 2005. Please find enclosed a copy of our client's basis of plea. We can confirm that a copy of this document has been forwarded to the Court. We are informed that where there is a basis of plea the Probation Service will only prepare a pre-sentence report based on an agreed basis of plea and so we would be grateful to receive your comments regarding our client's basis of plea at your earliest possible convenience." Attached to that letter was the basis of the plea, which read as follows: "1. I accept I had vaginal intercourse with [S]. 2. The said intercourse was consensual. 3. [S] performed consensual oral sex on me. 4. At all times during the above sexual activity I believed [S] to be aged at least 18 years old. 5. [S] had told me prior to meeting her that she was 24 years old. 6. The circumstances leading up to our meeting on the 29th July 2005 were are as follows:- (i) [S] subscribed to a mobile dating agency called 'The Dating Channel' on Sky Cable television. (ii) I received [S]'s details from the said agency. I want to make it clear that the adverts on the television for this service state clearly that all participants in the service are aged 18 and over. (iii) Over a period of approximately 6 days [S] sent me a series of explicit texts and made a number of telephone calls inviting me to visit her for the purpose of having sexual intercourse (see telephone analysis charts provided by Jane Cox for volume of calls by [S] to my home and mobile phone numbers). (See also p.45 Ex). (p.46 Ex & 47 & 49 Ex for terms of texts) (iv) Specifically on age - [S] told me she was 24 and worked as a pole dancer in a nightclub. The age representation is endorsed at p.80 of the exhibit bundle. The pole dancer representation at p.102 Ex. (v) The text evidence reveals the following:- (a) On 25.7.05 I asked [S] to send pictures of herself (see p.19 Ex) (b) On 28.7.05 I asked [S] 'what year were you born?' (p.22 Ex) (c) On 28.7.05 I suggested to [S] that when we met up on the 29th she should tell her mum that she was 'goin work', ie going to work. I said this because I believed [S] was in full time employment (see p.22 Ex) (d) On 29.7.05 [S] texted me to let her know her mother had gone out (see p.25 Ex) (e) On 29.7.05 [S] texted me to say that 'I don't like men wearing condoms anyway babe' see p.50 Ex) 7. When [S]'s mother interrupted us on 29th July 2005 [S] explained to her mum downstairs that she had lied to me about her age. 8. If I had any idea [S] was under age, I would never have behaved in this way." 4. On 26th January the offender's solicitors sent a letter, referring the Crown Prosecution Service to the earlier letter and stating that they would be grateful to hear whether or not the basis of plea was accepted. Another chasing letter was sent on 14th February, again asking for a response. The response did come, but only on 16th February 2006, that is a month and a half or so after the initial request. The letter reads: "Further to our recent conversations I can confirm that the Crown does not accept the basis of plea but does not seek to dispute it." That letter is signed by a person who describes himself as a "Caseworker". Given the contents of the letter, there was no need now to fix a Newton hearing and the probation officer could go ahead and prepare the pre-sentence report. That letter made it clear that the prosecution was not going to dispute the basis of the plea. 5. On 20th February the offender appeared before His Honour Judge Holt. The judge had the basis of plea and he also had a "Note re sentencing". The first three paragraphs of that note read as follows: "1. This short note is prepared in accordance with best practice in the passing of sentence for offences under the Sex Offences Act 2003 as set out in R-v-Pepper 2005 EWCA by Rose J. 2. On the 2nd of December 2005 the defendant entered a plea of guilty to Count 1 of the indictment - an allegation of rape of a child under 13, contrary to Section 5(1) of the Sexual Offences Act 2003 . The plea appeared to be acceptable to the prosecution - with representations to the prosecution re basis of plea to follow. 3. The defence served a considered written basis of plea on the prosecution in early January. I am aware that my instructing solicitors have chased the prosecution for a response re the written basis. I am given to understand that the prosecution's official stance on our written basis is that they neither accept nor can gainsay the basis. A copy of the written basis is annexed hereto." 6. We turn to the final reference and set out those facts from the final reference which were not apparently in dispute: "(i) The victim was [S], who was aged 12, having been born on the 24th April 1993. She lived with her mother and 14 year old sister in Newmarket, Suffolk. Her mother supported the family by working in a public house close to their home. The girls were left unsupervised while she was at work, and could come and go from their home as they pleased. (ii) The Dating Channel is broadcast on Sky television. It does not show television programmes, but displays text messages sent from a customer's mobile phone. These messages invite viewers to contact them via a box number provided by the channel. Customers are required to provide a date of birth before being allowed to use the service. The service is meant to be available only to people over the age of 18. (iii) On the 12th July 2005 [S] registered with the Dating Channel. She gave her date of birth as 24th April 1985, saying that she was 20. She then sent a series of text messages for display on the channel, advertising herself as a 'sexy single dancer', who wanted to meet males aged between 18 and 25. (iv) The offender responded to her message and contacted her. He also gave false details, claiming to be a 25 year old called Scott. There followed a large number of text messages and telephone calls between them (124 text messages in the week before their meeting). Most of the text messages were extremely sexually explicit. [S] told the offender that she was aged 24, and a lap dancer. He later told her that he was in fact aged 27. They arranged to meet, with the offender travelling to Newmarket. [S] sent him a message telling him to ring her on her house phone, as 'my mum wil b at work n my sis wil prob b out by then'. (v) She met the offender at Newmarket station ... (vi) Nevertheless, they walked together to [S]'s home. She put music on. They kissed and cuddled. The offender then said 'Let's go upstairs for a quickie before your sister gets home'. They went upstairs to [S]'s mother's bedroom, where there was a double bed. She knew that they were going upstairs for sex. She was a virgin. (vii) ... He penetrated her with his finger, then with his penis ... He ejaculated inside her. He did not use a condom. He then ... put his penis in her mouth. (viii) The next door neighbour had seen [S] going into the house with a black male. He heard loud female moaning noises, of a sexual nature, coming from [S]'s house. He contacted [S]'s mother [TL] who quickly returned home. (ix) She found [S] and the offender lying in bed together. They had covered themselves with the duvet. When she pulled it back, both [S] and the offender were naked from the waist down. [TL] reacted with fury, shouting 'She's only 12, you black bastard'. The offender told her that nothing had happened. [S] said nothing. (x) She grabbed his clothing to prevent him from leaving. The police were called. When the neighbour arrived, she allowed the offender to get dressed. He said to [S] 'What have you done? You lied to me' He told [TL] that she had told him that she was 24. [TL] told him that he would go to prison for this, and he started to cry. (xi) When the police arrived, [S] was asked if she had consented to sex with the offender. She said that she had. (xii) The doctor who examined her found no obvious tears either of the hymen or within the vagina. Examination of swabs taken from her confirmed the presence of semen in her vagina. (xiii) In interview, the offender gave a prepared statement in which he said that [S] had told me that she was 24, and he did not believe her to be anything other than the age she had told him. He said that he did not engage in any sexual activity without her consent. He declined to answer questions about the sexual activity that they engaged in." 7. We turn to the opening by counsel for the prosecution on 20th February. No mention is made by her of the basis of plea. At page 3H of the transcript of her opening, counsel said this: "At this point, they then went upstairs and he said to her, 'Let's go upstairs for a quickie before your sister gets home'. At this point, she was initially willing to do this and they both went upstairs and into her mother's bedroom where there was a double bed. As he undressed, [S] then began to feel uncomfortable and described herself as feeling panicky and said that she told him she did not want to do this. He said to her, 'Yes, you do'. He then pushed her backwards and onto the bed. Again, there was kissing with which she did feel comfortable. He then lied on top of her and took her top off and began touching her vagina. He first of all digitally penetrated her which she described as hurting and again, she told him she did not want to do it. He then penetrated her with his penis and she complained that it hurt. He told her that it would go away in a minute or two. No condom was used and he ejaculated inside of her. She told him to get off her and she pushed him in the chest. After intercourse, they were both lying in bed together, partially clothed but naked on the bottom half and he pushed her head under the covers and she took his penis into her mouth. He pushed her head down towards it." 8. A little later, the judge asked the question: "How developed, generally, was [S] at the age of 12?" Counsel asked whether he meant by that, how old did she look. Counsel continued: "MISS GIBBS: Your Honour, I know there is some dispute about this between my learned friend and myself. I have spoken to the officer in the case who tells me that at best, with make up on, this girl looked 14 years of age. I know my learned friend begs to differ and the video memorandum in his opinion shows that she looks older than that, but it is essentially a matter for your Honour. JUDGE HOLT: Well, I have not seen any video memorandum or photographs save black and white which I think have come off the net, which are hopeless. MISS GIBBS: Your Honour, there are none of [S]. Those photographs that your Honour has are not of [S]. JUDGE HOLT: It is impossible to know anyway". 9. We turn to the mitigation. Mr Wyeth, who appeared for the offender, referred to the basis of plea. There are two particular passages to which we should make reference. The first is an intervention by the judge who, shortly after the beginning of mitigation, referred to the sentencing note and to the contents of it. The judge then went on to say: "I think I have some difficulty in accepting that your client was not at the very least put on considerable notice when he met this girl when she was only aged 12 that she had not significantly lied about her age." 10. The other passage to which it is necessary to refer relates to the issue of consent. Mr Wyeth said this: "However, your Honour, of course, there is a difference between the prosecution and the defence in relation to that matter, and of course, I do not expect the Crown to accept the defendant's account of it, but that is his version." By that he was referring to the offender's account of the events. Strictly, in our view, Mr Wyeth was right that the Crown did not accept the defendant's account. Nonetheless, he could have added "but they do not dispute it". He did not do so. 11. We turn to the sentencing remarks. The judge started his sentencing remarks by setting out what he described as the brief circumstances. He said: "You got to know your victim through a dating channel on Sky cable television and over a period of five days, you exchanged very explicit text messages. It is right that she told you she was aged 24 and the minimum age for subscribing to that dating channel is 18, but there came a time after only some five days when you arranged a meeting in her town and to go to her house. When you met, it must have been obvious and you are a man aged 29 and you indeed had lied about your age to some extent, it must have been obvious, first of all, that she was under 18 and therefore, had lied about her age. Secondly, it must have been obvious to you that she was a very young teenager. The police judgment is that when made up, she could look to be about 14. You, however, keen for sex, suggested that you both go upstairs and at that time, it was consensual, but when getting undressed, she expressed reluctance and said in terms that she did not want to do it, but you persuaded her to continue and you had unprotected sex and an attempt at oral sex. Those are the brief circumstances. You are a man who hitherto has not been in trouble with the courts. You have no previous convictions and I have two references which do you credit and you have pleaded guilty at the earliest opportunity." 12. In that passage, when the judge said "it must have been obvious to you that she was a very young teenager", the judge appears to have been saying to the defendant that he did know, when he was in the house with her, that she was around the ages of 13 or 14. That, of course, is inconsistent with the basis of plea. 13. Insofar as consent is concerned, the judge said that she had expressed reluctance and had said in terms that she did not want to do it. He continued, as we have seen in the passage we have set out, "but you persuaded her to continue and you had unprotected sex and an attempt at oral sex". 14. During the course of argument, Mr Dennis, on behalf of the Attorney General, submitted that the judge there was making a finding of fact that she had not consented. If that is a correct interpretation of the passage, then a sentence of two years would seem, on the face of it, to be remarkable. Another interpretation which we suggested to Mr Dennis during the course of argument was that the judge was accepting that she had consented, but was going on to comment that she did so only because he had persuaded her. 15. It is unfortunate that, on such a crucial issue as consent, the judge's words were not clear. We note also that there is no reference to the burden of proof. 16. In our judgment, the sentencing process was fundamentally flawed in this case. Issues as to consent and a defendant's belief as to age, or reasonable belief as to age, are crucially important when it comes to deciding the appropriate sentence. Taking alone the issue of consent, a finding that the complainant did not consent could result in a defendant receiving many more years of imprisonment. 17. As Mr Dennis accepts, on behalf of the Attorney General, there should have been a Newton hearing in this case. In our view, the letter to which we have referred dated 16th February 2006 ought never to have been written if the complainant's account of what occurred was accepted by the prosecution. Prosecuting counsel should have made it clear at the outset that the letter sent on 16th February no longer expressed the views of the prosecution. At that stage the judge should have been invited to hold a Newton hearing, or at the least take the necessary steps by questioning Mr Wyeth as to whether a Newton hearing was in fact necessary. In other words, the judge would have been asking Mr Wyeth whether the basis of plea was still being maintained. 18. What happened in this case is quite inconsistent with the "Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise" dated October 2005. The following paragraphs, amongst others, seem to us to be important: "A1. Prosecutors have an important role in protecting the victim's interests in the criminal justice process, not least in the acceptance of pleas and the sentencing exercise. The basis of plea, particularly in a case that is not contested, is the vehicle through which the victim's voice is heard. Factual inaccuracies in pleas in mitigation cause distress and offence to victims, the families of victims and witnesses ... C3. The written basis of plea must be considered with great care, taking account of the position of any other relevant defendant where appropriate. The prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge on a misleading or untrue set of facts or on a basis that is detrimental to the victim's interests. There will be cases where a defendant seeks to mitigate on the basis of assertions of fact which are outside the scope of the prosecution's knowledge. A typical example concerns the defendant's state of mind. If a defendant wishes to be sentenced on this basis, the prosecution advocate should invite the judge not to accept the defendant's version unless he or she gives evidence on oath to be tested in cross-examination ... C9. Where the basis of plea cannot be agreed and the discrepancy between the two accounts is such as to have a potentially significant effect on the level of sentence, it is the duty of the defence advocate so to inform the court before the sentencing process begins. There remains an overriding duty on the prosecuting advocate to ensure that the sentencing judge is made aware of the discrepancy and of the consideration which must be given to the holding of a Newton hearing to resolve the issue. The court should be told where a derogatory reference to a victim, witness or third party is not accepted, even though there may be no effect on sentence." We would hope that these guidelines are more widely made available than they appear to be so, and we hope that they will appear in the two leading practitioners' textbooks. 19. Absent a finding at a Newton hearing that the basis of plea was not correct, or absent a concession by Mr Wyeth that the basis of plea was no longer being maintained, the judge, in our view, had to sentence the offender on the basis of plea which he had tendered in January. Although the Attorney General may wish to argue in a future case that, even on the basis of plea, a two year sentence was unduly lenient, Mr Dennis tells us he does not wish to argue that in this case given its history. In those circumstances, we refuse leave and express the hope that what happened in this case does not happen again.	{"ConvCourtName":["Ipswich Crown Court"],"ConvictPleaDate":["2005-12-02"],"ConvictOffence":["Rape of a child under 13 contrary to section 5(1) of the Sexual Offences Act 2003"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Ipswich Crown Court"],"Sentence":["2 years imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[29],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[12],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Medical evidence (doctor's examination)","Text message records"],"DefEvidTypeTrial":["Offender denies knowledge of age","Basis of plea"],"PreSentReport":[],"AggFactSent":["Victim was 12 years old","Offence involved sexual intercourse with a child"],"MitFactSent":["Offender pleaded guilty at earliest opportunity","No previous convictions","References in support of offender"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence was unduly lenient given the facts of the case"],"SentGuideWhich":["section 5(1) of the Sexual Offences Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Sentencing process was fundamentally flawed; no Newton hearing held; judge should have sentenced on basis of plea"],"ReasonDismiss":["Attorney General did not wish to argue sentence was unduly lenient given the history of the case; judge had to sentence on the basis of plea tendered in January"]}
Neutral Citation Number: [2016] EWCA Crim 1746 Case No. 2015/02056/A7, 2015/03814/A7, 2015/03813/A7 & 2015/02634/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 4 th May 2016 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) MR JUSTICE SPENCER and MRS JUSTICE ANDREWS DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v DEAN COLIN BEECH PEDRO GEORGE CRAIG TAYLOR-POWELL JASON LEE HADLEY DARREN BOWMAN ( Also known as Darren William Bowman ) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr B Nichols appeared on behalf of the Applicant Dean Colin Beech Mr T Harrington appeared on behalf of the Appellants Pedro George Craig Taylor-Powell and Jason Lee Hadley Mr N Baki appeared on behalf of the Applicant Darren Bowman Mr M Walsh appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T ( As Approved by the Court ) THE LORD CHIEF JUSTICE: 1. There are before the court two renewed applications for leave to appeal against sentence and two appeals against sentence. The points taken are completely different. That involving the appellants relates to the application of the Road Traffic Offenders Act 1988 ; that involving the applicants relates to the sentences of imprisonment imposed upon them. 2. The two applicants, Bowman and Beech, planned a robbery in July 2013 which was to take place in the well-known Jewellery Quarter of the City of Birmingham. Beech and Kirk (a co-accused) were to carry out the robbery, and Bowman was to sell the stolen jewellery (diamonds). 3. It is heartening to note that the West Midland Police followed the movements of the conspirators with considerable skill with the use of both surveillance and an undercover police officer, for there is no doubt that Bowman and Beech were serious professional criminals. 4. On 30 th July 2013 a Land Cruiser was stolen and hidden in Beech's premises. Two days later, on 1 st August 2013, in pursuance of the conspiracy, Beech and Kirk together with Bowman set off in the Land Cruiser to the Jewellery Quarter. When they arrived they were surrounded by armed by police. The three conspirators were wearing balaclavas and gloves. 5. On 4 th February 2015, following a trial in the Crown Court at Birmingham, Beech and Bowman were convicted of conspiracy to commit robbery. 6. The other matter that is before us relates to conspiracy to steal cash from a cash machine. On 29 th September 2014 an attempt was made by four men to break into a cash machine in a supermarket in Kenilworth. The attempt woke all the neighbours. The police were summoned and gave chase to the men who escaped in an Audi that had been stolen for the purpose as part of the conspiracy in which they were engaged. The speed of the car as it sped away from the police was such that they lost track of it using a conventional land surface pursuit. A helicopter was brought in and the vehicle was eventually traced. Speeds of up to 150mph were recorded in the pursuit. 7. The car was found at an apartment block in Birmingham. It contained equipment which had plainly been used by those who had tried to break into the cash machine. The police raided an apartment and arrested the two appellants, Hadley and Taylor-Powell. Beech was found nearby. 8. On 6 th February 2015 Beech, Taylor-Powell and Hadley pleaded guilty to the offence of conspiracy to steal. 9. On 7 th April 2015, in the Crown Court at Birmingham they were sentenced by His Honour Judge Henderson as follows: Beech, for conspiracy to rob, to ten years' imprisonment; for conspiracy to steal, 18 months' imprisonment; and for aggravated vehicle taking, six months' imprisonment. All those sentences were ordered to be served consecutively to each other, making a total of twelve years' imprisonment. 10. Bowman was sentenced to six years and two months' imprisonment for the offence of conspiracy to rob, which was ordered to run consecutively to a sentence of seven years and seven months' imprisonment that had been passed upon him in January 2015 for contravention of the Customs and Excise Management Act 1979 . In respect of that last sentence, Bowman's application for leave to appeal was refused by the single judge. 11. Hadley and Taylor-Powell were each sentenced to three years' imprisonment for the conspiracy to steal and to a concurrent term of six months' imprisonment for the aggravated vehicle taking. 12. Beech (who had been the driver of the car) and Hadley and Taylor-Powell (who had been passengers) were each disqualified for periods of five, two and two years respectively and until an extended driving test was passed. It is the point relating to the extended driving test that arises separately on which the appellants have been given leave by the single judge to pursue. 13. In addition to these matters, in May 2013 Bowman was involved in further serious organised crime. He was concerned in the supply of firearms. He gave a person, who was in fact engaged in the undercover operation, the telephone number of a man called Allen. He told the undercover officer that Allen could supply firearms. He contacted Allen and asked him if he would speak to the undercover officer on the phone. The undercover officer then spoke to Allen. Although there is no evidence that Bowman was further involved, a weapon was supplied and an attempt was made to supply another. 14. On 23 April 2015, in the Crown Court at Birmingham, Bowman, who had pleaded guilty to the offence of encouraging or assisting an offence believing it would be committed, contrary to section 45 of the Serious Crime Act 2007 , was sentenced by His Honour Judge Inman to 15 months' imprisonment which was ordered to run consecutively to the sentence he was already serving. 15. The applicants Beech and Bowman renew their applications for leave to appeal against sentence following refusal by the single judge. 16. Beech seeks to renew his application only in respect of the sentence of ten years' imprisonment passed in respect of the planned robbery in the Jewellery Quarter. It is said on his behalf that that sentence was excessive. Four grounds have been argued before us. It is said that the judge failed to take into account the fact that no weapons were found; that the judge did not properly consider the guidelines; and that the judge should have had regard to the fact that an undercover officer had been involved in the issues relating to the planned robbery in the Jewellery Quarter and had in some sense aided and abetted the commission of the crime. Reliance is placed on the undercover officer's indication that he might have contacts in Antwerp who would be able to dispose of the jewellery. Further, reliance is placed (although this point rightly is not put at the forefront of the argument) on the fact that Beech contracted an illness in prison. It is unnecessary for us to set out the details of that. The point is not heavily relied upon, but it has been brought to our attention. 17. In refusing Beech's application the single judge observed: "Sentences totalling 11½ years for conspiracy to rob a jeweller of diamonds of substantial value and for conspiracy to steal an ATM were not in the least excessive. The first offence, of which you were convicted after a trial, was rightly treated by the judge as a serious professional crime, albeit to be committed without the use of weapons; and you received full credit for your plea of guilty to the second and a further discount to reflect totality. The fact that there were amateurish elements in both offences did not lessen their seriousness." 18. As we have pointed out, nothing is said about the further sentence imposed for the conspiracy to steal the cash machine. The concentration has been on the sentence of ten yeas' imprisonment for the conspiracy to rob a jeweller. In our judgment, despite the arguments that have been advanced before us, this sentence cannot be said to have been either wrong in principle or manifestly excessive. As the single judge rightly pointed out, this was a professional crime intended to be committed against those carrying on business in the Jewellery Quarter. Beech did not have the mitigation of a guilty plea. Although no weapons were carried, we do not see that a sentence of ten years' imprisonment can be in any way criticised. We refuse his renewed application. 19. The single judge refused Bowman's application for leave to appeal, but he also refused an extension of time (18 days) on the basis that there was an insufficient explanation for the delay. That is correct, but we would not dispose of the matter solely on that ground. It seems to us that we have to look at the culpability of Bowman, whose role we have described, from the point of view of his participation in a very serious conspiracy. We have been told that it was not Bowman, but that it was the undercover police officer who introduced Antwerp as the possible destination where Bowman might dispose of the stolen jewellery. For the purposes of this hearing we are prepared to accept that. 20. It seems to us that, before taking into account the earlier sentence passed upon Bowman for the cannabis offences in Essex, the judge was right to take the starting point of ten years. The sentence cannot be said to be manifestly excessive or wrong in principle. The seriousness of the conspiracy is evident from what we have already said. No complaint can be made about that sentence. 21. It is important to observe that in Bowman's case the sentence subsequently passed by Judge Inman (the Recorder of Birmingham) in respect of the firearms offences took significantly into account the earlier two sentences. However, in the light of guidance recently given by this court in Attorney General's Reference Nos 128 to 141 of 2015 and 8, 9 and 10 of 2016 (R v Stephenson & Others) [2016] EWCA Crim 54 , a significantly greater sentence would have been called for. Even discounting to take into account totality, the sentence could well have been substantially greater than that which was passed for the firearms offence. This court cannot but emphasise that those who trade in firearms in any way can only expect very substantial sentences of imprisonment. We appreciate that message may not have been communicated sufficiently to the criminal elements in the City of Birmingham because of the timing of the Attorney General's Reference , but we wish to reiterate that the courts will impose sentences of the utmost severity upon those who in any way participate in the use of or trade in guns. Bowman can consider himself very fortunate that the sentence imposed upon him, even allowing for totality, was not one significantly in excess of five years. 22. We turn to the appeals of Hadley and Taylor-Powell. It is accepted in both cases that, even though they were both passengers in the car, under the provisions of the 1988 Road Traffic Offenders Act the judge was entitled to disqualify them. The sole issue relates to the passing by the judge of the disqualification period that is to continue until they each take an extended driving test. 23. It is accepted that, under the legislation, the judge had power to impose a disqualification until an extended test is taken. However, in the submissions that have been advanced on behalf of the appellants, both in writing and orally this morning, it is argued that the court should have taken into account the decision of this court in R v Wiggins [2001] RTR 3 and the earlier decision of R v Bradshaw [2000] RTR 41. On the particular facts of both those cases, which we do not propose to set out, the court indicated that it was not appropriate to pass disqualification until an extended driving test had been taken on persons who were purely passengers. 24. The question for this court is whether the indications given in those cases are such that the court would invariably exercise its discretion never to disqualify someone who is simply a passenger. We are firmly persuaded that those cases turned on their particular facts and were properly decided on those facts. We must examine the facts of this case to see if the imposition of the requirement for an extended test was necessary for the proper protection of the public. 25. We have set out the egregious nature of the driving in this case and the fact that those in the car were speeding away from a jointly-planned serious professional criminal attempt on a cash machine. The speeds at which they were driving and the manner of their driving plainly put the public at risk. Although they may not have quite the level of culpability of the actual driver, nonetheless the level of their culpability was extremely high. There is every reason to believe that they fully participated in the escape at speeds that self-evidently would put the public at significant risk of serious injury, if not loss of life. 26. In those circumstances we consider that the learned judge was correct in the view that he took, and that it was right to order disqualification until an extended driving test is taken. The purpose of an extended driving test is for the authorities to be satisfied that those who have been disqualified from driving are fully competent to be allowed to drive again. Both appellants had previous convictions for dangerous driving. They had been disqualified before. But, above all, they had participated in dangerous driving of the utmost gravity, when escaping from the scene of a crime. In the way in which it is administered, the extended driving test will bring home to the appellants the importance of having regard to the safety of others, and in particular not driving at excessive speeds. It is essential that that is brought home to both appellants. The judge exercised his discretion correctly. In all the circumstances he was absolutely right to impose the requirement of an extended driving test. 27. Accordingly, for those reasons the appeals of the two appellants are dismissed.	{"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2015-02-04","2015-02-06"],"ConvictOffence":["Conspiracy to commit robbery","Conspiracy to steal","Aggravated vehicle taking","Encouraging or assisting an offence believing it would be committed"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes","Yes"],"PleaPoint":["Following a trial","pleaded guilty"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Birmingham"],"Sentence":["Beech: 10 years' imprisonment (conspiracy to rob), 18 months' imprisonment (conspiracy to steal), 6 months' imprisonment (aggravated vehicle taking), all consecutive (total 12 years)","Bowman: 6 years 2 months' imprisonment (conspiracy to rob), consecutive to 7 years 7 months' imprisonment (previous sentence), 15 months' imprisonment (firearms offence), consecutive","Hadley: 3 years' imprisonment (conspiracy to steal), 6 months' imprisonment (aggravated vehicle taking, concurrent)","Taylor-Powell: 3 years' imprisonment (conspiracy to steal), 6 months' imprisonment (aggravated vehicle taking, concurrent)"],"SentServe":["Consecutive","Concurrently","Consecutive"],"WhatAncillary":["Disqualification from driving (Beech: 5 years, Hadley: 2 years, Taylor-Powell: 2 years) and until extended driving test passed"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Surveillance","Undercover police officer","Police pursuit","Equipment found in car"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Professional crime","High speed police pursuit","Dangerous driving","Previous convictions for dangerous driving"],"MitFactSent":["No weapons found (for robbery)","Amateurish elements in offences","Beech contracted illness in prison"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Sentence is unduly excessive","Appeal against sentence","Appeal against ancillary order"],"AppealGround":["Judge failed to consider no weapons found","Judge did not properly consider guidelines","Undercover officer aided and abetted crime","Illness in prison (Beech)","Disqualification until extended test for passengers not appropriate"],"SentGuideWhich":["Road Traffic Offenders Act 1988","Section 45 of the Serious Crime Act 2007"],"AppealOutcome":["Dismissed","Refused (renewed application)"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge failed to consider no weapons found","Judge did not properly consider guidelines","Undercover officer aided and abetted crime","Illness in prison (Beech)"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence not manifestly excessive","Serious professional crime","No mitigation of guilty plea (Beech)","Judge exercised discretion correctly on disqualification","Level of culpability high","Previous convictions for dangerous driving"]}
Neutral Citation Number: [2012] EWCA Crim 2822 Case No: 20121028C4, 20125010C4, 20120834C4, 20125010C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD MR JUSTICE McCOMBE T20117153,T20117190 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2012 Before : LORD JUSTICE HUGHES MR JUSTICE RAMSEY and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson Appellants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Peter Moulson Q.C. for the Appellant Lee Griffiths William Harbage Q.C. and Andrew Bailey for the Appellant Luke Griffiths Tim Barnes Q.C. for the Appellant Thomas Griffiths Timothy Spencer Q.C. and A Semple (instructed by Messrs Haywood, Lunn & Allen ) for the Appellant Mark Jackson Nicholas Lumley QC (instructed by CPS ) for the Respondent Hearing dates: 28th November 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes: 1. These defendants were all convicted, after trial, of murder. Their appeals challenge the minimum term which the judge attached to the mandatory life sentence which each received. 2. We take the facts essentially from the concise summary given by the judge in the course of conspicuously careful sentencing remarks. 3. The defendant Lee Griffiths is the father of the defendants Thomas and Luke Griffiths and the stepfather of Mark Jackson. Lee and others were concerned in a commercial operation for the supply of drugs, chiefly heroin. The operation was centred on a bungalow in Grimsby. It bought, and sold on, about half a kilogram of heroin every seven to ten days. The purchase price was £10,000 or more each time. Retail sales were made both from the bungalow and via a number of street sellers. Lee was the mastermind and leader of this team of drug dealers. His son Thomas was a trusted secondary participant. One of the minions used as a driver and a street seller was the deceased, Adam Vincent. Vincent was himself an addict and in very bad health as a result. He was in hospital for two weeks at the end of January 2011 but discharged himself against advice and returned, despite a parlous state of health, to the trade. Lee Griffiths became convinced in February 2011 that Vincent had betrayed the gang, either by stealing some thousands of pounds, or by doctoring the drugs, or by informing on the others. That conviction of Lee’s was connected in his mind to the arrest of Lee, Thomas and a driver (Frow) on 11 February, when they were stopped in a car containing drugs. It was also fuelled by Lee’s own use of drugs, including crack cocaine. In consequence of Lee’s belief, arrangements were made by the four defendants to apprehend, beat and interrogate Vincent. Serious violence was inflicted on him over a period of between one week and two, culminating in his death on Monday 28 th February in the hands of the gang, still being tortured. He was freed from time to time, and seen to be bearing injuries. This period was not the first time he had been injured; when in hospital in January he was seen to have air pellets lodged in his chest and neck. Within the period leading up to his death, one occasion was spoken of by a gang member who gave Queen’s evidence: Lee had interrogated Vincent with a knife to his neck, Thomas had punched him in the face, and Luke had kicked him hard to his side. Vincent was in such fear that he lost control of his bowels. By the time he died, Vincent had damage to his spleen and multiple broken ribs, probably attributable to stamping, and had been struck at least three times to the head by some weapon such as an axe, a hatchet or a golf club; these last blows were the immediate cause of death. Having killed him, the defendants dismembered his body crudely but effectively with a hacksaw, dividing it into six parts. Those parts were then disposed of in separate watercourses during the night of 2/3 March, and using a vehicle which had been acquired specifically for the purpose. Some of the clothing of the deceased, and some pieces of bone, were burned at a remote location in the early morning of 3 March, and other potentially incriminating material was burned in a bonfire at the bungalow. Friends of the defendants who had some knowledge of Vincent being in the hands of the gang were told peremptorily to keep their silence. 4. All four defendants were convicted by the jury of murder. All were also convicted of conspiracy to pervert the course of justice by dismembering and disposing of the body. Lee and Thomas were convicted of conspiracy to supply class A drugs. Jackson was acquitted of the drugs offence, and the jury failed to agree as to Luke on that count, and was discharged from reaching a verdict. 5. Lee Griffiths was 42 at the time of the murder. He had some twenty two previous convictions, chiefly for dishonesty and vehicle offences. There was no prior conviction for violence except one public order offence, although he was found in possession of pepper spray in 1999. 6. Luke, his younger son, was 19 at the time of the murder. He had no previous conviction or caution. 7. Thomas was 21 at the time of the murder. He had no previous conviction but had sustained a reprimand for assault in 2005. Reports showed that his behaviour had been troublesome from his childhood, during which he had also been bullied. He had a low IQ, assessed as mild learning difficulties and some signs of paranoid, aggressive and anti-social personality disorder. 8. Mark Jackson was 26 at the time of the murder. He had previous convictions since the age of 16, which included disorder and violence. He had served sentences of 6 months for affray, and of 18 months (twice) for assault occasioning actual bodily harm and wounding. There were also offences of dishonesty. 9. The judge approached the fixing of minimum terms with considerable care. He applied himself directly to sections 269 and 270 and to Schedule 21 of the Criminal Justice Act 2003 . He correctly reminded himself that the Schedule was not to be applied mechanically but that sentences reflecting the true criminality involved were to be passed. He was, however, required by section 270 to state which of the starting points set out in Schedule 21 he adopted, and did so as 30 years. 10. The Crown had submitted that this case fell directly within paragraph 5(2)(c) of the Schedule, namely that it was murder done for gain. It contended that the murder was done in aid of preserving the profitable illegal trade in drugs. It was not contended that any other of the examples of particularly serious conduct contained in paragraph 5(2) applied. In particular, this was not said to be a murder involving sadistic conduct; the violence, though sustained and considerable, had not been done for pleasure. 11. The judge did not hold this to be within the terms of paragraph 5(2)(c), ie a murder done for gain. He reminded himself, correctly, that the cases itemised in paragraph 5(2) are simply examples of what the court will normally hold to be murders of which the seriousness is “particularly high”, and that the list is in no sense exhaustive. What he then said was this: “In my judgment a murder in perceived protection and enforcement of the interests of a commercial drugs supply business, even if not precisely a killing for gain, is very closely analogous to it. There can be no sensible distinction in seriousness, in my judgment, between such a murder and a murder committed in the course of a robbery of burglary, two of the specific examples given in the statute… ….the fatal attack was motivated by the perceived need to extract retribution on Mr Vincent for having damaged the gang’s interest and to enforce a primitive discipline within the gang.” 12. The judge then identified aggravating factors in: i) the vulnerability of the victim; ii) the physical suffering inflicted on him prior to his death; and iii) the dismemberment and disposal of the body. 13. The judge also identified mitigating factors. In the case of the younger defendants, their age was such. For all defendants, he expressly found that he was prepared to proceed on the basis that there had not been an intention to kill, but rather an intention to do grievous harm, and death had resulted. For much the same reason he rejected significant premeditation as an additional aggravating factor. 14. The judge held that the synthesis of those factors took the sentence up from the starting point of 30 years to 35. In so concluding, he made no further addition for the count of conspiracy to pervert the course of justice, plainly because that had been treated as a factor aggravating the sentence already and to do so would be to count it twice. He observed that, had it stood alone, it would have justified a sentence of about 8 years (thus the equivalent of a minimum term of 4 years). Nor did he add to the sentences, in the cases of Lee or Thomas, for the count of conspiracy to supply drugs, taking the view that it was already reflected in the long minimum terms which were arrived at after considering the background of drug dealing. He did observe that if it had stood alone that count would have called for sentences of not less than 12 years for Lee and 9 years for Thomas. 15. We entirely agree with the judge’s self direction that Schedule 21 cannot be applied mechanically, and that paragraph 5(2) is in no sense an exhaustive list of the kinds of case which a court may determine to be of particularly high seriousness. This court has said so on too many occasions to list. A mechanical application of the Schedule is apt to create absurd anomalies, such as that corrected in R v Height & Anderson [2008] EWCA Crim 2500 ; [2009] 1 Cr App R(S) 676, where a simplistic application of the schedule would have resulted in the paid contract killer being subject to a starting point double that of the employer who incited and engaged him and for whose purposes the killing was carried out. Nor can the Schedule be applied in an arithmetical manner, by adding or subtracting years attributable to separate features of the case: that was demonstrated to be unworkable in R v Peters and others [2005] EWCA Crim 605 ; [2005 2 Cr App R (S) 101 at 627; see paragraph [8]. As was observed in R v Jones [2005] EWCA Crim 3414 ; [2006] 2 CR App R(S) 18 at 117, the very large gaps between the starting points identified in the Schedule present a sentencer with considerable difficulties in his quest to match the penalty to the infinitely variable circumstances of crime. It is nonetheless clear that it was not Parliament’s intention that the Schedule should be applied mechanically by fitting each case into the nearest available starting point and making only minor adjustments to it. That is clear from paragraph 9 of the Schedule, which says: “Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point)….” 16. The principal challenge mounted here to the judge’s sentence involves the contention that this was not a murder for gain. However, as we have pointed out, the judge did not say that it was, and it was quite unnecessary to force the case into the straitjacket of paragraph 5(2)(c) in order to arrive at the conclusion that the right starting point was 30 years. What the judge did conclude was that this was a murder committed in pursuit of a large-scale and very serious criminal enterprise and for the purposes of enforcement of loyalty or of primitive discipline. The question raised by this appeal is this: where on the scale of murders does this situation lie? Was the judge entitled to treat it as of a seriousness comparable to the examples listed in paragraph 5(2) or was he not? 17. Mr Barnes QC, for Thomas Griffiths, submitted to us that because paragraph 5 is concerned with murders of especial gravity it would be wrong for the court to go outside its express terms and, in effect, extend the concept of a murder done for gain. That is tantamount to a submission that the examples given in the paragraph are exhaustive, which is an argument which Mr Barnes correctly disclaimed, and we reject it. Nor can we accept his argument that a murder can only be done for gain if the gain or potential gain is identified. The point does not arise because the judge did not treat this as murder for gain, but in any event, although no doubt it will often be possible to identify the gain, there can clearly be cases where gain is the purpose but the mechanism and amount are obscure. Mr Barnes further submitted that the judge’s findings in this case amounted to no more than a motive of revenge for supposed misbehaviour on the part of the deceased, and that that does not bring a case within paragraph 5(2). We agree that revenge is a frequent motive for murder and that by itself it will not ordinarily make the offence of particularly high seriousness if otherwise it would not be. But the converse is also true. If the offence is of particularly high seriousness properly comparable with the examples set out in paragraph 5(2), the fact that revenge is a component will not save it from the heightened starting point. This was not, on the judge’s findings, comparable to the case identified by Mr Barnes of revenge against a cheating spouse. This was torture, and eventually murder, in the furtherance of a serious criminal enterprise, to keep the enterprise intact and to discipline its members. There was ample evidence of threats to others as well as to the deceased. The fact that prolonged interrogation was going on is a further indication of this purpose. 18. We conclude that the judge was entitled to hold that this murder, bearing these characteristics, was comparable with the examples given in paragraph 5(2). Some of those might, in particular circumstances, be less serious, as for example the owner of a lawfully held shotgun who, in the course of a drunken argument with a friend, uses the gun on him. We are not to be taken as holding that all murders committed in the course of criminal enterprises will be of particularly high seriousness – it will depend on the scale of the enterprise and the circumstances of the killing, and it is clear that some will not be at all suitable for a 30 year starting point. But the combination here of the pursuit of large-scale drug dealing, with enforcement of criminal discipline, and with sustained torture sufficiently justify the conclusion arrived at by the judge. The incidence of potential gain, in the sense that the drugs business was no doubt very profitable, is not the determining factor. The position could easily be the same if a similar killing were carried out to enforce discipline in one’s followers in a different form of criminal enterprise which was not principally acquisitive, such as gang warfare or the sexual exploitation of minors. 19. After thought, the judge adopted the same starting point for each defendant. In our view he was right, on the facts of this case, to do so. He did not, in doing so, forget that the defendants Luke Griffiths and Mark Jackson had not been convicted of the drug conspiracy, a matter which is of some significance and to which we will return. Since all the defendants were equally involved in the killing, and since the killing was very plainly for the purpose of preserving the criminal enterprise intact and of disciplining its minor members, all were equally affected by its characteristics. We are unable to agree with the submission, made for Luke by Mr Harbage QC, that the proper inference is that he was acting from no more purpose than to obey a dominant father. We do not doubt that father was dominant, nor that Luke was influenced greatly by him, and this is of relevance later in the exercise. But he very clearly knew what the background and purpose of the torture and murder was and he was fully involved in it. 20. Limited challenge has been mounted to the judge’s identification of aggravating factors. We agree that the victim was vulnerable in the sense that he was ill and dependent on drugs. We also agree with the submissions made on behalf of the defendants that these conditions were self inflicted. Perhaps more significantly, we are quite satisfied that the subservience of the deceased, which was part of his vulnerability, is already factored into the sentencing process because it was part of the enforcement/punishment characteristic of the offence. 21. We have no doubt that we should reject the contention that the sustained ill-treatment of the deceased was irrelevant as mere historical background or separate but similar prior conduct. It may be that in other cases prior similar misconduct would not be sufficiently connected to the killing to be relevant to the adoption of the starting point, but in this case there was the clearest evidence of a single course of conduct involving repeated “interrogation” and serious violence, culminating in injuries to which the deceased succumbed. It was all part of the murder. However, as with the vulnerability of the victim, we take the view that this factor has already been part of the calculation of the correct starting point and ought not to result in a further increase beyond it. 22. No one has contended that the callous dismemberment and disposal of the body do not aggravate the offence and justify an increase in the minimum term. We agree. 23. The principal mitigating or reducing factor in this case, affecting all defendants, is the absence of an intention to kill. We agree that in a case of sustained violence in pursuit of an intention to cause grievous harm, this is of less force than it might be in cases of sudden spontaneous attack, but it is still necessary to recognise the difference between this case and a similar one of gang enforcement in which there was a deliberate execution. Such cases are, unhappily, by no means unknown, and we are sure that they are yet more serious than the present case. 24. The objective in applying Schedule 21 is to do substantial justice by fitting the punishment, so far as can be done, to the individual features of the case, whilst remaining loyal to the general framework of the schedule. We have reached the clear conclusion that in this case the aggravating factor constituted by the disposal of the body and the mitigating factor of the absence of intended killing in broad terms balance each other. The judge, having said that he arrived at 35 years, imposed a minimum term of 32 years on Lee Griffiths. That meant that he added more than he subtracted. We are persuaded that in his extremely careful sentencing the judge somewhat undervalued the force of the absence of intent, and to the extent that he added for the vulnerability of the victim and/or the sustained torture did not entirely eliminate an element of double counting. 25. Lee was one of two defendants convicted of the substantial drugs conspiracy. We have no doubt that the judge was right to say that in his case the sentence for that, had it stood alone, would not have been less than 12 years. In point of fact, like the judge, we think it should have been longer and we have no doubt that the two cases cited to him involving sentences of about 12 years after trial were ones of lesser scale than the present; neither involved as much heroin as this one. The drugs alone would have called for a sentence of about 14 years, or the equivalent of a minimum term of 7. We do not agree that the drug dealing has already been factored into the sentence; what has been factored in is the fact that the killing was in pursuit of the criminal enterprise and for the purpose of discipline and enforcement against minor operatives. The antecedent drug dealing remains. But we do agree that once one is dealing with a minimum term as long as 30 years, the equivalent of a determinate sentence of 60 years, which no court would ever impose, the general principle of totality leads to the conclusion that it is not appropriate to add further to it for the drugs supply itself. 26. Accordingly we arrive at 30, not at 35 years, and we remain there for Lee Griffiths, rather than the judge’s figure of 32. 27. The remaining consideration concerns the relative positions of the several defendants. The judge made adjustments for the ages of the younger defendants and for the absence of any relevant previous conviction in the cases of both Luke and Thomas Griffiths. Having done so, he imposed minimum terms as follows: 29 years for Jackson, 27 year for Thomas Griffiths and 26 years for Luke Griffiths. 28. It is important to stand back and view the sentences together. It is abundantly clear that Lee was the dominant member of this group and that the impetus for the treatment of the deceased came from him. All the other defendants were either his sons or his stepson; they were for that reason particularly under his influence. Moreover he was, on the judge’s finding, clearly at times irrationally dominant, probably in part because of the intake of crack cocaine. Further, the defendants Luke Griffiths and Jackson are entitled to say that, because they were not convicted of the drugs offence, there ought to be some recognition of that fact in the relative standing of their sentences to that of Lee. Thomas Griffiths cannot say this. Next, as the judge recognised, both Luke Griffiths and Thomas Griffiths have no relevant previous convictions. The same cannot be said of Mark Jackson, who has a significant history of violence. Lastly, there must, as the judge held, be adjustment in recognition of the ages of those two defendants, 19 and 21 respectively, especially in the case of Luke Griffiths,who was only 19. We agree that a sentence of a minimum term of 26 years on a man of 19 is a very severe sentence. 29. Adjusting for these various factors and checking the outcome by standing back to view the overall picture, we conclude that the minimum terms ought to be as follows: for Jackson and for Thomas Griffiths, for the different reasons we have identified, 25 years, whilst for Luke the term should be 23 years. 30. We have tested our conclusions by asking ourselves what would have been the outcome if the right starting point had been 15 years. In that event, the first adjustment would have had to be a considerable uplift for the fact that the offence was committed in aid of a major criminal enterprise and to enforce discipline within it. That would have led us to a term of about 25 years. There would then have had to be a significant adjustment upwards for the drugs offence itself in the cases of Lee Griffiths and Jackson, and there would have been a further upward adjustment in all cases for the dismemberment and disposal of the body. There would have been a reduction for the absence of intent to kill and the necessary adjustments to achieve a fair relative balance between the defendants. The result would not have been very different from the one at which we have arrived by the different route, and indeed would not have been even if, contrary to our view, the criminal enforcement aspect of the case only took the minimum term up to somewhere between 20 and 25 years. That this should be so is not surprising, still less unfair. As paragraph 9 of Schedule 21 makes clear, the eventual sentence may be of any length, whatever the starting point. Its length depends, in the end, on the overall circumstances of the case. 31. For the foregoing reasons, these appeals against sentence are allowed to the limited extent that we substitute minimum terms as follows: Lee Griffiths: 30 years Luke Griffiths: 23 years Thomas Griffiths: 25 years Mark Jackson: 25 years.	{"ConvCourtName":["Crown Court at Sheffield"],"ConvictPleaDate":[],"ConvictOffence":["Murder","Conspiracy to pervert the course of justice","Conspiracy to supply class A drugs"],"AcquitOffence":["Conspiracy to supply class A drugs"],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Sheffield"],"Sentence":["Life imprisonment with minimum terms: Lee Griffiths 32 years (reduced to 30 on appeal), Luke Griffiths 26 years (reduced to 23), Thomas Griffiths 27 years (reduced to 25), Mark Jackson 29 years (reduced to 25)"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[42,19,21,26],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Has learning difficulties"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Vulnerability of the victim","Physical suffering inflicted prior to death","Dismemberment and disposal of the body"],"MitFactSent":["Younger age of some defendants","Absence of intention to kill (intention to do grievous harm)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Minimum term too high; insufficient weight to mitigating factors; double counting of aggravating factors"],"SentGuideWhich":["sections 269 and 270 and Schedule 21 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge undervalued absence of intent to kill; double counting of aggravating factors"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2019] EWCA Crim 296 No. 2018/05227/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday 6 th February 2019 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MRS JUSTICE CHEEMA-GRUBB and MR JUSTICE MARTIN SPENCER _______________ ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - BRANDEN MARC DANIELS ____________________ Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________ Mr W Emlyn Jones appeared on behalf of the Attorney General Mr M Brook appeared on behalf of the Offender __________________ J U D G M E N T (Approved) __________________ Wednesday 6 th February 2019 THE LORD CHIEF JUSTICE: Introduction 1. On Sunday 29 th July 2018, at about 8.20pm, the offender, Branden Daniels, was driving a stolen Audi A3 with four passengers in an area about five miles north of the centre of Birmingham. They were joy riding. They became involved in a police chase over a distance of about one and a quarter miles. Although in a residential area with a 30mph speed limit, the Audi reached a speed of 80mph and at a little over 70mph approached the junction between Kingsland Road and Wandsworth Road. The Audi was driven by the offender straight over the junction and collided with a Volkswagen Golf being driven by Connor Donnelly with Sarah Giles as his front seat passenger. Sarah Giles, who was only 20 years old, was killed instantly. Connor Donnelly suffered serious injury, as did one of the passengers in the Audi engaged in the criminal enterprise, Dalton Banks. 2. The offender was prosecuted for causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988 (count 1) and for causing serious injury by dangerous driving, contrary to section 1A of the 1988 Act (counts 2 and 3). He pleaded guilty at the plea and trial preparation hearing, having indicated at an earlier hearing in the magistrates' court that he would contest the matter on the ground that he was acting under duress. 3. The offender, who was born on 12 th May 1988 and so was 20 years of age at the time of this dreadful, tragic incident, was sentenced to six years and six months' detention in a young offender institution on count 1 and to concurrent terms of four years' detention on each of counts 2 and 3. He was disqualified from driving for nine years and three months and until an extended test was passed. 2 4. Her Majesty's Solicitor General applies, under section 36 of the Criminal Justice Act 1988, for leave to refer the sentence to this court on the ground that it was unduly lenient. He does so in reliance on three arguments: first, that in arriving at the overall sentence the judge moved too far from his starting point on account of the youth, immaturity and vulnerability of the offender; secondly, that in the round the sentence failed to reflect public concern about offending of this nature, namely, joy riding committed by young men; and thirdly, that the judge should not have given the offender the full discount for his guilty plea, but should only have discounted the appropriate sentence by one-quarter. The Facts 5. Police officers first noticed the Audi A3 because its number plate appeared to have no manufacturer's markings. That led the officers, correctly as it turned out, to suspect that the car was stolen. In fact, it had been stolen three days earlier and was being driven with false number plates. The Audi accelerated away from the police car in Hartley Road. The officers followed with their sirens turned on and lights illuminated. The car continued to accelerate. In Hartley Street the Audi reached 62mph. In Rough Road it achieved a speed of about 80mph. It was then driven the wrong way around a roundabout into Kettlehouse Road. In Kilburn Road it was driven at about 60mph, and at the crossroads where the collision occurred was travelling in excess of 70mph. 6. The force of the collision was such that both vehicles were sent spinning through the air. It was obvious to the police officers who went to the vehicles as quickly as they could that Sarah Giles had died and that both Mr Donnelly and Mr Banks were seriously injured. The other occupants of the Audi ran away. So, too, did the offender. He was chased and caught by local residents. The offender did not have a driving licence and inevitably he was uninsured. 7. Connor Donnelly suffered a life-threatening injury to his aorta, which required emergency surgery and the insertion of a stent. He had multiple rib fractures, lacerations to his spleen and to one of his kidneys. He was sedated in a coma for three days. In his Victim Impact Statement, Connor Donnelly describes his horror on waking to be told of Sarah Giles' death. She was his partner. He had met her at work. He now wished to leave his job because it constantly reminded him of her. He had been a fit and healthy young man but, as a result of the injuries he sustained, will need to take medication indefinitely. He describes himself as "a broken man". 8. Dalton Banks suffered a broken hip, punctured lungs and multiple lacerations to his face and head. He sustained a brain haemorrhage which required emergency surgery, including the removal of part of his skull. He, too, was in a coma for several days and remained in hospital for about three months. Further surgery is planned to insert a metal plate. He has memory problems, slurred speech and has had behavioural changes. 9. The Victim Impact Statements from Sarah Giles' family are deeply moving. There are statements from her parents, her siblings, grandparents and her aunt. Members of Sarah Giles' family are in court today. We extend our sympathy and pay tribute to the calm and dignified way in which they have listened to the proceedings. They speak of the terrible loss of a much loved, vivacious, generous and hard-working young woman. It is a loss with which all are struggling to come to terms. 10. The offender was interviewed under caution on 30 th and 31 st July 2018. He suggested that he had been in the Audi for only a short time. The four passengers, he said, had arrived in the Audi and offered him a lift, which he reluctantly accepted. He said that they told him to drive, that he tried to refuse and only relented in the face of threats of violence from the others. He added that they told him not to stop when the police chase began, and that he ran from the scene because he thought that the others would beat him up. 11. Much of that account was demonstrably false, whatever may have been the impact of peer pressure in what was a joint joy-riding exercise. Video clips on the offender's mobile phone showed him and others in different vehicles being driven dangerously and at very high speeds on earlier occasions. None showed him as the driver. However, and tellingly, there was also footage on his phone taken while the Audi was being driven by him an hour before the collision. The suggestion that he had recently joined the vehicle and was pressured into driving it was clearly not true. 12. The offender had a previous conviction on 31 st October 2017 for driving otherwise than in accordance with a licence and without insurance. He also had an old caution from 2013 for theft from a vehicle. The Sentencing Guideline 13. The Sentencing Guidelines Council issued its definitive guideline in respect of causing death by driving in July 2008. By virtue of section 172 of the Criminal Justice Act 2003, every court must have regard to a guideline relevant to the offending it is considering. This guideline applies only to sentencing offenders aged 18 and over. The maximum penalty for causing death by dangerous driving is fourteen years' custody; and for causing serious injury by dangerous driving, five years' custody. Those maximum sentences reflect the existing considered view of Parliament. The guideline divides cases of causing death by dangerous driving into three different levels. That can be very difficult for those who have lost a loved one to understand because the impact on the family is as serious, whatever the underlying nature of the dangerous driving. 14. Level 1 is reserved for the most serious offences, encompassing driving that involves a deliberate decision to ignore, or a flagrant disregard for, the rules of the road and an apparent disregard for the great danger being caused to others. An offence within level 1 attracts a starting point of eight years' custody and a range of seven to fourteen years' custody. Level 2 is concerned with cases where the driving created a substantial risk of danger. The starting point is five years' custody and the range four to seven years' custody. Level 3 is concerned with driving that created a significant risk of danger, the starting point for which is three years' custody and the sentencing range two to five years' custody. The guideline identifies seven specific additional aggravating features: i) Previous convictions for motoring offences, particularly offences that involve bad driving or the consumption of excessive alcohol or drugs before driving; ii) More than one person killed as a result of the offence; iii) Serious injury to one or more victims in addition to the death or deaths; iv) Disregard of warnings; v) Other offences committed at the same time, such as driving other than in accordance with the terms of a valid licence, driving whilst disqualified, driving without insurance, taking a vehicle without consent, driving a stolen vehicle; vi) The offender's irresponsible behaviour, such as failing to stop, falsely claiming that one of the victims was responsible for the collision or trying to throw the victim off the car by swerving in order to escape; vii) Driving off in an attempt to avoid detection or apprehension; 15. It is apparent immediately that many of these aggravating features are present in this case. The guideline also identifies a series of particular mitigating factors beyond those usually considered in sentencing, although none, as it seems to us, is in play here. 16. Offences of causing death by driving are heart-breaking and particularly difficult to sentence. As a result, they attract a good deal of public attention. The judge's task is to consider with care all of the material that is placed before him or her. 17. In this case the judge provided comprehensive sentencing remarks. At the outset, he noted a most important factor: the tragedy of Sarah Giles' death. He summarised the serious injuries suffered by Connor Donnelly and Dalton Banks, but observed that the latter was to a great extent a contributor to his own injuries. That is because he took part in the joy riding. The judge made it clear that he would sentence in accordance with the guideline. He then turned to the "significant aggravating features". He noted that the offender clearly enjoyed joy riding because of the other incidents of being a passenger in vehicles illustrated on his mobile phone. The car was stolen and was being driven with false plates. The judge did not accept that the offender was bullied into driving, as he had originally suggested, but he did accept that the others in the car had encouraged him in what he did. The judge referred to the absence of a licence and insurance; the fact that the offender had tried to escape from the police; and the very high speeds at which the Audi had been driven in the time leading up to the collision. It was an aggravating feature that the offender attempted to run away. 18. The judge referred to the youth of the offender and also to the significance of the previous driving convictions. He said that he would give the offender full credit for his guilty plea. 19. The judge referred to the pre-sentence report and to the psychological report that were before him. He also referred to testimonials from those who describe the offender as ordinarily a kind and considerate person. The judge said: "I accept that you are of low intelligence, immature, vulnerable and easily led." The offender demonstrated, in the judge's view, genuine remorse, which the judge contrasted with the attitude of many defendants in criminal cases who, in truth, only feel sorry for themselves. 20. The judge referred to R v Robert Anthony Brown [2018] EWCA Crim 1775 ; [2019] 1 Cr App R(S) 10 , for the now uncontroversial proposition that offences of causing serious injury by dangerous driving should be reflected in concurrent sentences, but with an increase in the sentence for the offence involving death. The judge noted, correctly, that the driving in Robert Brown was worse than that with which he was concerned and that it resulted in more than one death. Moreover, he noted that the offender in that case was aged 53 – significantly older than the offender with whom we are concerned. We would add that the offender in that case had an appalling criminal record, with 57 convictions for 209 offences. He had been sentenced previously to a term of imprisonment of six years and he had 30 convictions for driving whilst disqualified. In Robert Brown the features to which we have referred led this court to conclude that there should be a starting point of fourteen years' imprisonment, but reduced by six months to reflect the genuine remorse of the offender. 21. It was common ground before the judge that he was clearly dealing with a level 1 offence. With that in mind the judge said: "In my judgment, the proper starting point for this offence for someone more mature and less vulnerable [than] you would be twelve years' detention. I reduce it to ten years, my starting point, because of your youth and vulnerability. I reduce it further because of your guilty plea, and I think it is proper to give you the full credit for that so the sentence is six years and six months." 22. As we have indicated, concurrent sentences of four years' detention were imposed on each of the counts for causing serious injury by dangerous driving. The Evidence of the Immaturity and Vulnerability of the Offender 23. The judge had before him evidence that the offender had from the outset struggled at school. He was the subject of a Statement for Special Educational Needs when he was 11 years of age and was thereafter diagnosed with Attention Deficit Hyperactivity Disorder. He was bullied at school to such an extent that in 2014 his family decided to move in order to relocate him in a different area. A week before the planned move, the offender's father died suddenly. That had a deep effect on the family and upon the offender. He began to suffer from depression, from which he continues to suffer. He left school at the age of 16 with no qualifications. He did not proceed to any further education and he has never had any consistent work. The limit of his activities has been occasional casual labouring and the like. Shortly before this offending, he was provided with shared accommodation with a support worker on site. 24. A family friend, who has known the offender all his life, said in a document before the judge: "[The offender] does have a few difficulties, his mind being younger than his years for one, and he can find himself easily led." 25. The judge was provided with a psychological report prepared by Dr Tim Hull, dated 8 th October 2018. Dr Hull noted that when he was interviewed by the police, the offender had his mother present as an appropriate adult. That suggests that, despite his being 20 years of age, there were concerns about his ability to be interviewed in the ordinary way as an adult. Dr Hull elicited a history which covered the educational experiences to which we have referred. His mother explained at the time he received the Statement of Special Educational Needs, he was assessed as performing at four or five years younger than his chronological age. Dr Hull quotes his mother as saying: "In my eyes I would not class Branden as an adult. He does not have an adult view on life. He is still like a child. He still cannot read and write properly and he does not see a danger in things. He is very immature." 26. Dr Hull tried to assess the offender's intellectual functioning. He was unable to do so satisfactorily. The raw IQ score that he measured placed the offender in the lowest one per cent of the population. But Dr Hull considered that the real IQ measure was a little higher. He said that he noted that the offender had difficulty in understanding questions put to him, quite apart from the difficulties he had encountered during the police interviews. His overall conclusion was: "All of the evidence I have available suggests that [the offender] is a highly vulnerable individual who, in the presence or absence of specific disabilities has been bullied throughout his life and has suffered from difficulties with his mental health. He is currently not taking prescribed medication for depression. This is likely to exacerbate his mental health problems." Dr Hull confirmed his view that the offender is vulnerable. 27. The pre-sentence report added a little to that information. It spoke of the offender's genuine remorse. It described in particular how the offender spoke only of the impact of his offending on others, rather than speaking of its impact on him. Its author had the same experience as Dr Hull because of the offender's difficulty in understanding questions he was asked. He reviewed the recent history and concluded that he had relatively low maturity for his age and, in the round, viewed him as immature for his age. Amongst the matters that the author of the pre-sentence report recommended that the court should take into account when determining sentence were the offender's "learning issues, immaturity and remorse". Discussion 28. Mr Emlyn Jones on behalf of the Solicitor General takes no issue with the judge's approach in fixing the notional starting point for a mature adult before any discount for a guilty plea at twelve years' custody. Given the fourteen year maximum and the approach to the imposition of concurrent sentences for the offences involving serious injury, there is, in our view, no doubt that twelve years was a proper starting point. That said, as Mr Emlyn Jones very fairly indicated in the course of his oral submissions, there could have been no complaint if the judge's starting point had been a little lower, particularly having regard to the genuine remorse displayed by the offender. 29. The principal ground of attack upon the judge's approach to sentencing is that he reduced his starting point by more than was appropriate, to take account of the offender's youth, vulnerability and immaturity. Again fairly, on behalf of the Solicitor General, Mr Emlyn Jones recognises that some reduction on that account was appropriate. But we are unable to accept the submission that the judge erred in reducing his starting point by the degree to which he did. 30. Both counsel have reminded us of what was said in this court in R v Clarke and Others [2018] EWCA Crim 185 at [5]: " Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters [2005] EWCA Crim 605 , [2005] 2 Cr App R(S) 101 is an example of its application: see paragraphs [10] - [12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18 th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18 th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18 th birthday." 31. The guideline for sentencing children and young people explains that one of the reasons why offenders aged 18 and under receive sentences reduced by half and more, as compared with adult offenders, is because their culpability is lower on account of their lack of development and maturity. At paragraph 1.5 of that guideline we find this: "It is important to bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. … When considering a child or young person's age their emotional and developmental age is of at least equal importance to their chronological age (if not greater)." 32. The absence of a "cliff edge" (as referred to in Clarke ) is an important factor when sentencing those over 18 years of age but who are not fully mature. The guideline to which we have just referred does not apply in such cases, but the factors quoted from paragraph 1.5 can weigh in considering the appropriate sentence in cases involving young adults who are not fully mature. No doubt science will in time tell us more about the development of the young adult brain and its impact on behaviour. But there will be cases – and this, in our view, is one of them – where there is material available to the sentencing court which speaks about the maturity and developmental reality of the offender in question. 33. We have summarised the evidence that was before the judge touching on the vulnerability and immaturity of this offender. We consider that the reduction given by the judge in this case on the basis of that evidence was an appropriate reduction. 34. A linked argument was advanced by Mr Emlyn Jones to the effect that public concern surrounding offences of death by dangerous and careless driving, committed often as they are by young men engaged in joy riding, should result in courts being less willing to take full account of youth, immaturity and vulnerability when passing sentence as they would either for other offences or for other offenders. 35. We have seen no statistical breakdown of the ages of those who commit this type of offence, but have no difficulty in accepting from our own experience that many such cases do indeed involve young drivers. However, cases involving death caused by dangerous or careless driving frequently arise in the context of fully mature adults. The case of Robert Brown , to which we have already referred, is an example. 36. The feature to which Mr Emlyn Jones has referred does not, in our judgment, justify a departure from ordinary sentencing practice and principle, namely, to take account of matters such as youth, vulnerability and maturity when passing sentence. 37. Finally, Mr Emlyn Jones submits that the judge was wrong to accord the offender the full discount for his guilty pleas. We agree that the judge was generous in giving the full discount, as opposed to a discount of 25 per cent, which would have represented a direct application of the guideline given the time of which the guilty plea was entered. 38. At his interviews, the offender provided an explanation which suggested that he was at all times under intolerable pressure to do what he did. As we have indicated, the materials found on his phone demonstrated that to be untrue. The offender was given the opportunity to indicate his plea at the magistrates' court. On his account, it was suggested that he would run a defence of duress. That was an evaluation made by those then advising him. Even on his own initial account, the defence of duress would have stood little prospect of success. But his account was untrue. At some point between his first appearance in the magistrates' court and the plea and trial preparation hearing, the offender determined to accept his responsibility. The relevant guideline suggests that ordinarily the reduction for guilty pleas at that hearing should be 25 per cent. There is an exception identified in the guideline, where the court accepts that further information, assistance or advice is necessary before indicating a plea. 39. Mr Brook submits that it was reasonable to await the psychological report before expecting the offender to enter a plea. In our view, that is not this case. The problem with the defence as putatively advanced in interview was that it was based, at least in part, on a series of lies. 40. Whilst we accept that the judge was generous in according the offender the full discount, as is common ground between counsel, our task is not to unpick the judge's reasoning but to ask the broader question: whether the sentence imposed was outside the range of sentence which a judge could have imposed on the basis of all the information available surrounding the offences and the offender. It is only if the sentence is outside that range, and by a margin, that it can be described as unduly lenient. 41. In a sentencing exercise judges have to take account of two broad considerations: first, the harm caused by the offending; and secondly, the culpability. The harm in this case was at the highest level. Inevitably, in the course of an application of this sort, the focus of submission and also the focus of the judgment that we are giving is on questions of culpability. But we emphasise that at no point do we lose sight of the harm that was caused by this offending and its dreadful impact on so many people. 42. We have concluded that it is not possible to consider that the sentence imposed in this case was unduly lenient. We repeat that the twelve year starting point was not the minimum available to the judge in this case. It might have been less. Despite the harm caused, when one takes account of the offender's genuine remorse, his youth, vulnerability and immaturity, and then considers his guilty pleas, the resulting sentence of six years and six months' detention in a young offender institution cannot be stigmatised as unduly lenient. 43. Mr Emlyn Jones, on behalf of the Solicitor General, properly recognised that our task is to consider the outcome in the round. Having reached that conclusion, and in particular taking account of the feature of this case, the judge's starting point could have been less, we conclude that it is appropriate to refuse leave to the Solicitor General to make the reference. 44. We are very grateful to the advocates for their submissions, both written and oral. We repeat our deep sympathy to the family and our admiration for the way in which they have conducted themselves in the course of what must have been an extremely difficult hearing. _______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] ______________________________________	{"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["Causing death by dangerous driving","Causing serious injury by dangerous driving"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["plea and trial preparation hearing"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":[""],"Sentence":["6 years and 6 months' detention in a young offender institution (count 1)","4 years' detention concurrent (counts 2 and 3)","Disqualified from driving for 9 years and 3 months and until an extended test is passed"],"SentServe":["Concurrent"],"WhatAncillary":["Driving disqualification for 9 years and 3 months and until an extended test is passed"],"OffSex":["All Male"],"OffAgeOffence":[20],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Had mental health problems","Has learning difficulties"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["3"],"VicSex":["Mixed"],"VicAgeOffence":[20],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Video evidence from mobile phone","Victim impact statements","Police testimony"],"DefEvidTypeTrial":["Offender claims duress"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Previous conviction for driving offences","Driving a stolen vehicle","Driving with false number plates","No driving licence","No insurance","Attempted to escape police","Very high speeds","Attempted to run away after collision"],"MitFactSent":["Offender showed genuine remorse","Offender is of low intelligence, immature, vulnerable and easily led","Learning issues","No consistent work history","Depression"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Judge moved too far from starting point due to youth, immaturity and vulnerability","Sentence failed to reflect public concern about joy riding by young men","Judge gave full discount for guilty plea instead of 25%"],"SentGuideWhich":["Sentencing Guidelines Council definitive guideline for causing death by driving (July 2008)","Section 1 of the Road Traffic Act 1988","Section 1A of the Road Traffic Act 1988","Section 36 of the Criminal Justice Act 1988"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["Sentence was within the range a judge could have imposed considering all information about the offences and the offender","Judge's starting point could have been less","Offender's genuine remorse, youth, vulnerability and immaturity were properly considered"],"ReasonDismiss":["Sentence imposed was not unduly lenient","Judge's reduction for youth and vulnerability was appropriate","Judge's starting point was proper","Full discount for guilty plea was generous but not outside the range"]}
Case No. 2008/01707/A4 Neutral Citation Number: [2008] EWCA Crim 2212 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 26 September 2008 B e f o r e: LORD JUSTICE HOOPER MR JUSTICE McCOMBE and MR JUSTICE WILKIE - - - - - - - - - - - - - - - R E G I N A - v - PATRICK PATRICE DAWKINS - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr S Stirling appeared on behalf of the Appellant Mr J Carpenter appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE HOOPER: 1. On 14 December 2007, in the Central Criminal Court, Patrick Patrice Dawkins (now aged 21 but aged 19 at the time of the offence) was convicted by a jury of attempting to do acts tending to and intended to pervert the course of justice. On 7 February 2008 he was sentenced by His Honour Judge McKinnon to three years' imprisonment. He appeals against that sentence by leave of the single judge. 2. Tracy Meade had been in a relationship with the appellant since the spring of 2005 and they had lived together. The appellant spent approximately nine months in custody and following his release in May 2006 he began a relationship with 16 year old Kelly Ross. On 31 May 2006 Kelly met with Tracy to discuss the situation. Tracy drove them both to Kelly's flat in order to collect some of the appellant's possessions. They made a second visit to the flat and on that occasion Kelly picked up a knife from the kitchen. The two women then drove to meet the appellant, who was at a friend's house. They dragged him reluctantly into the car and drove off with him to Crystal Palace Park. The two women confronted him about his relationship with both of them. He managed to extricate himself from the situation, got out of the car and returned to his friend's house. Kelly then directed Tracy to the back of some garages where she stabbed her three times and then fled the scene. One of the wounds pierced Tracy's heart and caused her death. 3. The appellant met Kelly later that night and they went to the cinema. On the afternoon of 1 June 2006 the appellant again met up with Kelly Ross before going on to Tracy's house in order to collect more possessions. He was arrested by police nearby and informed of Tracy's death. He replied, "Your'e lying. Tracy's not dead". He admitted that his girlfriend was Kelly Ross. He was thereafter formally interviewed. By the time of the interview he either knew that Kelly had murdered Tracy or alternatively he realised that there was a significant likelihood that Kelly had murdered Tracy. Notwithstanding this, he decided to lie to the police. He denied about the identity of the person who had been with him and Tracy the evening before. In other words he lied to protect Kelly who had in fact been with them. 4. The first interview on 1 June 2006 was an urgent interview (without a solicitor) solely to determine the whereabouts of Kelly. The appellant said that he had been in the car with Tracy but that the other person was an unknown female to whom he gave a name. He went on to describe her as if he did not know her. He admitted meeting Kelly later that night, but said that he did not know exactly where she lived. 5. He was interviewed again the following day. He continued to deny that he knew Kelly's address and maintained his account in relation to the third occupant of the vehicle, namely that it was not Kelly. He was released on bail. 6. On that same day Kelly admitted to the murder of Tracy Meade. 7. When the appellant was interviewed again on 7 November 2006 he admitted that he had lied to the police. He pleaded not guilty and sought to persuade the jury that he did not do that which he had done in order to pervert the course of justice. 8. The appellant has numerous previous convictions for 33 offences, including attempted robbery, taking a motor vehicle without consent from a garage, possession of heroin and numerous motoring matters. He had already served time in custody. 9. In passing sentence the judge said that the appellant had lied during the murder investigation. He had lied about the deceased, a person whom he had known extremely well. The judge said: "Your lies to the police had the potential to throw the police off the scent as to who the true murderess was at this early and indeed critical stage in the investigation and what aggravates the position is that you persisted in the lie that you told during the formal interviews, or at least some of them, which were read to the jury in the course of the trial." The judge reached the conclusion that the gravity of the offence was nearer the top end of the scale. 10. It is said on behalf of the appellant that he had no legal advice at that first interview. We see no relevance in that point. It is said rightly that once Kelly had confessed to the murder, then he accepted that he had lied. It is said that the lie did not seriously impede the course of the investigation. The judge seems to have accepted that because he said that the lies had the "potential to throw the police off the scent". It is said that the appellant was aged 19 at the time. That is right, but having regard to his previous convictions he is not unsophisticated with matters connected with criminal investigation and criminal justice. 11. In our view it cannot be said that this sentence was manifestly excessive. This was a serious crime committed during a murder investigation and society requires those who are being interviewed as witnesses in those circumstances not to lie, and in particular not to lie in such a way as potentially to impede the arrest of the person responsible for the crime. This appeal is dismissed.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2007-12-14"],"ConvictOffence":["Attempting to do acts tending to and intended to pervert the course of justice"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["3 years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[19],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["offence committed during a murder investigation","persisted in the lie during formal interviews","potential to impede the arrest of the person responsible for the crime"],"MitFactSent":["offender was aged 19 at the time","no legal advice at first interview","lie did not seriously impede the course of the investigation"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence was manifestly excessive","no legal advice at first interview","lie did not seriously impede the investigation","offender was 19 at the time"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["This was a serious crime committed during a murder investigation","society requires witnesses not to lie in such circumstances","sentence was not manifestly excessive"]}
No: 201306350 B4 Neutral Citation Number: [2015] EWCA Crim 1582 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday 20 August 2015 B E F O R E: LORD JUSTICE TREACY MR JUSTICE SWEENEY MR JUSTICE PICKEN R E G I N A -v- ANTHONY ROY CHRISTIAN Computer Aided Transcript of the Palantype Notes of Wordwave International Limited Trading as DTI Global 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) MISS G YOUNG appeared on behalf of the APPELLANT MRS P MAY appeared on behalf of the CROWN J U D G M E N T LORD JUSTICE TREACY: 1. In late 2013 in the Central Criminal Court this appellant was convicted of two counts of rape after a re-trial. He was subsequently sentenced to fourteen years' imprisonment. 2. The appellant now appeals against his conviction raising two grounds: first, there is fresh evidence relating to the distribution of semen on a duvet which is material to the appellant's case as advanced at trial; secondly, there is a complaint about the way the judge dealt with the alleged behaviour of an intermediary who assisted the complainant to give evidence. 3. The facts show that KC (the complainant) was a woman with a difficult history. We record the fact that she is entitled to anonymity under the law. The judge focused the jury's attention on this history early in the summing-up, and there were admissions. They show that KC had a well-established diagnosis of emotionally unstable personality disorder, depression and mild various disabilities. She had a history of self-harm, suicidal thoughts and repeated admissions to hospital as a result of overdoses and mental health problems. She had repeatedly complained of hearing voices and other audio and visual hallucinations. She had been admitted to psychiatric units on numerous occasions and had a history of non-compliance or overdosing with her medication. 4. Some of her mental health problems seem to have stemmed from a reported history of sexual abuse and she stated that she was preoccupied with thoughts or flashbacks of such abuse. During the course of the investigation of this matter she had apparently accused a police officer concerned in the case of sexually assaulting her. 5. At the material time KC was living in a hostel in London. It was supported accommodation for vulnerable women. The seven residents were permitted to have guests to stay overnight. There was no warden on the site. KC's room was on the ground floor. At that time a woman called Emily Bushell lived in the room on the third floor. She and this appellant were in a relationship, and he stayed regularly overnight. 6. On 10 April 2012 a friend of the complainant contacted the emergency services to say that the complainant had taken an overdose. At the hospital she disclosed that she had been raped on the previous Tuesday (6 April). As a result of that, a psychiatric nurse spoke to KC who said she had been raped in the hostel by a man called Anthony whose girlfriend Emily also lived at the hostel. 7. An investigation began. KC's duvet cover was recovered and scientifically examined. It had not been washed since semen, which was found on it, had been deposited. The circumstances of the deposit of the semen are central to this appeal. 8. The Crown's case was that the appellant had raped KC orally and vaginally. He had relevant previous convictions. In 2001 he was convicted of vaginal rape and indecent assault by inserting his penis into the mouth of the victim, his former partner. The Crown said it was beyond coincidence that the duvet upon which the victim said she had been pushed and been raped should have semen staining on it which was accepted to be that of the appellant. 9. The defence case was one of denial. The appellant said he had visited the hostel on the night in question but had spent all night in Miss Bushell's room. The appellant accounted for his semen on the duvet by saying that at about ten to fourteen days before the night of the alleged rape he had had intercourse with Miss Bushell and then got up and gone downstairs to find a hoover to tidy up her room. He became aware that some semen was leaking down his leg. Although he could have gone to a bathroom to freshen up, he came across some dirty laundry in the hallway which must have contained the complainant's duvet cover. He picked up an item from this pile and he wiped himself with it thereby transferring his semen on to the item. His defence statement suggested that he had wiped semen from his hands, leg and genital area. 10. The defence also submitted that KC was not a reliable witness and that she had given a number of inconsistent accounts regarding details of the alleged rape. 11. The central issue for the jury was whether they could be satisfied of the reliability of KC's account and in particular whether the events she described really did take place or whether they were mere fantasies. There was potential support for her account by reason of the DNA evidence and also by reason of the appellant's previous convictions. 12. KC gave her evidence with the assistance of an intermediary. Her account was one of being disturbed at about 2 am by a knock on her doorway. When the door was opened the appellant had forced his way in and had then proceeded to attack her sexually, during the course of which he ejaculated. The attack took place on the complainant's bed on which there was a duvet cover and a red blanket. The whole episode took place over a period of about twenty-five minutes. KC's evidence was that her pyjama bottoms had been pulled down or off during the attack and that after the attacker had left she had stayed in or on the bed for a few minutes. KC said that she had last washed her bedding about three weeks before the incident. She said that she would never leave her bedding outside the bedroom. 13. In cross-examination it was put to her - based on records kept by others - that she had given accounts of the rape which differed in detail. One example is that while she had said in her ABE interview that ejaculation was over the pubic area, Dr Brennan - who saw her - had recorded that KC had said that ejaculation was over her bottom. In response to this, she said that the doctor had misunderstood her. 14. There was a number of other matters relating to the attack and the surrounding circumstances which the defence submitted showed inconsistency. These were all fully put before the jury by the judge in summing up. 15. The hostel manager gave evidence, saying that she did not recall ever seeing laundry outside residents' rooms, and particularly in relation to KC's room. She described her as "very tidy and minimalist". The jury had a photograph showing the way in which KC kept her room. 16. The Crown produced evidence from a forensic scientist Mr Ellis, identifying the appellant's DNA on the duvet cover. The red blanket was not examined. There was a number of areas of seminal staining distributed over the duvet cover. Mr Ellis had proceeded on the basis that the attacker had ejaculated outside of KC's vagina and on to her leg area. 17. Mr Ellis had then been asked to consider the explanation put forward by the appellant for the presence of the semen. Mr Ellis said that if the appellant had used the duvet cover to wipe himself as described, he would have expected semen to be deposited on the duvet in several areas, particularly if the duvet was gathered up. This would cause more than one area to become stained simultaneously. 18.According to Mr Ellis, the appellant's version of events could potentially explain the presence of his semen on the duvet cover. He also stated that the results of chemical screening did not allow one to determine by what mechanism the semen was deposited. Nevertheless, he could not say whether the stains were from ejaculation onto the cover or were stains consistent with semen being wiped onto the cover. On the basis that the duvet had not been washed following the alleged wiping by the appellant, the findings did not assist in addressing whether or not the appellant had ejaculated onto the duvet in the course of the attack as alleged. 18. The appellant had commissioned a report from another expert, Dr Hau. At the time he was asked to prepare his report he understood that the appellant had used the duvet cover to clean his hand so as to wipe semen from it. His view was that if the majority or all of the semen detected related to the appellant, which he considered likely, then the scientific findings could not be explained by the appellant's version of events. However it is to be noted that Dr Hau's understanding was that the wiping only involved the appellant's hand. On that basis, he thought that the scientific findings provided greater support for KC's version of events rather than that of the appellant. 19. Dr Hau's evidence was not put before the jury. The defence decided not to use Dr Hau's report in the light of its content. Although his understanding of events did not tally with what the appellant put forward in his defence statement, he was not asked to consider the matter further even though the appellant's solicitors had a year between receipt of his report and the retrial. It appears that the defence were content to leave matters as they were, given the opinion of Mr Ellis to the effect that he was unable to say whether the distribution of semen over the duvet cover was more likely to have arisen from that ejaculation at the time of the alleged attack or from the appellant's account of wiping himself on the cover a few days before the alleged rape. 20. In summing up, the judge accurately described the DNA evidence and then said to the jury that the evidence could not tell them which of the two versions as to the circumstances of deposit was correct. The judge went on to remind the jury that questions had been posed by Miss Young as to whether KC's account as to how the semen had got on to the duvet could be right and whether Mr Ellis had worked on a false premise. The judge remarked to the jury that science could not assist them with that sort of question. Later in the summing-up the judge expanded upon the points made by Miss Young in relation to KC's account and as to the state of the bedding. We have to say that we regard the judge's observation as correct in saying that science could not assist in that respect. Whilst of course the evidence of the expert as to the presence and analysis of DNA material was important, his expertise as to the credibility of disputes or arguments over the state of the bedding would be questionable in the circumstances and he had indeed made clear that the appellant's account was a plausible explanation. 21. It seems to us that, for example, in considering KC's account, it needs to be borne in mind that there will inherently be a variety of uncertainties and variables. This was a violent assault taking place over a period of about twenty-five minutes. The precise dynamics of this are unlikely to have been at the forefront of the victim's mind in giving evidence. While she said that at the start of the attack she was pushed back onto the bed - which had a red blanket covering at least part of the duvet - the jury, as a matter of common sense, would be entitled to consider whether or not that was likely to have remained the position throughout the attack. 22. KC said in evidence was that when she got out of bed to answer the door to the appellant she had moved the red blanket from the top of the duvet. This would have had the effect of largely exposing the duvet during the attack. Moreover, given that KC's evidence was that after the attack she had got back into or onto the bed and remained there for a few minutes, the opportunities for seminal transfer are again obvious. It was no doubt for reasons of that sort that Mr Ellis was cautious about the extent of any conclusion that could be drawn. 23. We are unpersuaded by any suggestion that Mr Ellis was under any material misapprehension or that further examination would have provided any useful evidence as to the precise layout of the bedding during the attack. It seems to us that there is and was of necessity a degree of uncertainty in the situation. It is also relevant that the defence took a considered decision to work within the framework of Mr Ellis's limited evidence which was not unfavourable to the appellant on the topic. It seems to us to have been a tactical forensic decision which we can readily understand. 24. However since the trial the defence have decided to consult Dr Haywood, another DNA expert. We are invited to admit his report pursuant to Section 23 of the Criminal Appeal Act. His report acknowledges that there is uncertainty as to the position of the blanket and the duvet at the time of the attack and that there is no clear description by KC of her position on the bed during intercourse. If the blanket was covering the top of the duvet, Dr Haywood would not have expected such wide transfer of semen on to the duvet's surface. If the blanket and duvet cover were both folded back during intercourse, there was no obvious opportunity for semen to be transferred. Dr Haywood, however, acknowledges that during intercourse the bedding may have been moved and thus further areas of the duvet cover exposed. In other words, he considers that there is a variety of circumstances and imponderables about the state of the bedding. This lack of certainty means that in our view little weight can be attached to this part of Dr Haywood's evidence. 25. As to the appellant's account, Dr Haywood states that if the appellant had a relatively large amount of wet semen on his leg, penis or hand then the findings could be explained in a manner consistent with that. This latter observation seems to us to add nothing to the evidence of Mr Ellis. It seems to us that the other parts of Dr Haywood's report suffer from the difficulties of imprecision which we have already identified. In the circumstances we do not consider that we should receive this report in evidence as the weight to be attached to it is extremely limited. Even if we were to assume in favour of the appellant that expert evidence on this particular topic was admissible, our conclusion is that there is no sufficiently sound basis for it to carry any real weight in this appeal. However we incline to the view that the matters discussed were essentially a matter within the province of the jury's assessment which does not require the need for expert evidence. 26. Moreover we have regard to the decision made by counsel at the time of the trial to rely on the evidence given by Mr Ellis. This, as we have said, seems to us to have been an appropriate tactical decision made for good reason. Miss Young's wish in hindsight that she had proceeded differently does not alter the character of her approach at trial. We also remind ourselves that Section 23 is not to be used as a vehicle for appellants to re-litigate matters which could and should have been dealt with at the trial or to mount an alternative theory after the event or to improve the presentation of their case. 27. For these reasons we have come to the conclusion that it is not in the interests of justice to admit the proposed fresh evidence of Dr Haywood. Accordingly, there being no complaint about the way in which the matter was left to the jury, this first ground of appeal must fail. 28. The second ground of appeal is the conduct of the intermediary. KC's evidence-in-chief started with the playing of her ABE interview. That started before the luncheon adjournment on 21 October. The playing of that evidence took place until mid-afternoon, after which the Crown asked some supplementary questions and the defence cross-examined. It appears that the court remained in session until 5.46 pm on that day. 29. After the luncheon adjournment - and, we understand, the intervention of another case in the judge's list - defence counsel raised a concern with the judge which was that the intermediary had been seated next to KC with her arm around her whilst the ABE video was being played. The judge mentioned that before the luncheon adjournment he could see that KC was extremely distressed as the video was being played, so much so that he had been considering stopping the proceedings. He said that the intermediary had worked hard to keep KC calm. After defence counsel's observation, prosecuting counsel said that she had spoken to the intermediary who had told her that KC did not seem to be able to cope without physical support and so she (the intermediary) had put an arm around KC to give her courage to continue. The judge commented that he had thought that that was probably the case and said that he would give the jury a very full direction about sympathy in due course. Matters were left there. Defence counsel proceeded to cross-examine. 30. We have a full transcript of the proceedings whilst KC was giving her evidence. The intermediary appears to us to have been extremely helpful in facilitating communication. There are at least two occasions on which she can be heard speaking to KC, telling her to take time to breathe when she became upset during the giving of her evidence. At the end of the process the judge thanked the intermediary for having been very helpful. 31. On one occasion during cross-examination the intermediary said to defence counsel that her questioning was "coming over in a little harsh manner and I think to be able to control her [KC] for the rest of the trial it would be helpful if we could just go a little slower and at a different inflection". Miss Young apologised and explained accurately that she was trying to get through matters as quickly as possible. We see nothing untoward in this exchange. 32. In the course of oral submissions to us, Miss Young has described to us what she says took place during the course of her cross-examination, material which is not captured on the transcript which we have. Miss Young told us that during the course of her cross-examination the intermediary appeared to continue to give physical support to KC by permitting KC to lie up against her and by giving her intermittent instructions to breathe in the way in which we have already described. 33. We have invited Mrs May, who was present prosecuting, to give her recollection of what transpired at this stage of the trial. Whilst Mrs May accepted the general description given to us by Miss Young, she did not appear to accept the level of intensity which was communicated by Miss Young to us in court this afternoon. 34. We have seen the Ministry of Justice's Registered Intermediary Procedure Guidance Manual published in February 2012. The task of an intermediary is to facilitate two-way communication between the witness and participants in the trial (paragraph 1.21). The intermediary is to be impartial and neutral. His or her paramount duty is to the court. The intermediary is not a witness supporter (paragraph 1.23). The extent to which an intermediary should intervene during evidence of a witness depends on the witness (paragraph 1.24). Throughout the evidence the intermediary should be in the view of the jury so that their interaction with the witness is clear (paragraph 1.91). The intermediary should conduct his or herself in the manner consistent with their role (paragraph 1.98). 35. Miss Young submits that the intermediary had not conducted herself appropriately. She says that the intermediary's conduct simply went too far. It is clear from the transcript that notwithstanding that assertion Miss Young did not at the time raise the matter afresh with the judge nor did this experienced trial judge intervene at any stage. It does not appear that even after the evidence of the witness had concluded - whether on that date or on any subsequent date - that there was specific complaint about what happened. 36. We do not, however, doubt the general description of events given to us by Miss Young this afternoon of continued comfort being given to the witness during the whole of the witness's evidence. Miss Young submits to us that not only did this conduct go too far but that the judge failed in summing up to deal with the intermediary's conduct in any adequate way. That failure to direct the jury in an adequate manner meant, submitted Miss Young, that the appellant was prejudiced and so that he did not receive a fair trial. 37. The judge directed the jury at the very outset of the summing-up as follows: "Before we come to look at the individual items of law, I want to deal with a matter that was in fact raised by both counsel during their addresses that is important. It is the issue of sympathy. Now, I am sure as private individuals one would certainly feel sympathy for [KC]. She has been dealt a rough hand, you may think, with her various disabilities that we will be looking at in a moment or two. That is obviously relevant to your judgment of her, but the one thing you must not do is to allow sympathy for her as a person in any way to cloud your judgment of her as a witness. That would be quite wrong. It would not be just, and it would be unfair. You are going to have to look at various matters concerning her evidence, and we will have a further look at what they are in a short while, but at the moment I am dealing purely with the issue of sympathy. Please put it to one side while you are jurors, because otherwise it gets in the way." 38. At a later point in the summing-up the judge referred back to his direction in speaking of the need to put sympathy to one side. 39. The question for us is as to the adequacy of the direction given in the circumstances which have arisen. We have come to the conclusion that what the judge said was sufficient to meet the circumstances. This jury was well aware of the difficulties under which KC laboured and her distress at times will have been evident to them. We do not consider that the fact she received physical support in the form described will have been particularly surprising or impactful upon the jury. The experienced judge appears to have taken the view that the support given enabled KC to proceed at a time when she was very distressed. Indeed, Miss Young herself has fairly conceded in the course of her submissions that KC had considerable difficulty in progressing through her evidence because of her emotional distress. 40. We think that the relevant consideration for us is not whether the intermediary overstepped the guidance given in what she did as much as whether there was any serious risk of unfairness being caused to this appellant. We do not think that in the circumstances there was any sensible prospect of unfairness. The jury would have understood the situation as a matter of common sense where they were observing a very obviously vulnerable woman. 41. In addition both counsel had addressed the jury on the need for an objective examination of the evidence untrammelled by sympathy, and the judge had reinforced this matter in effective terms in the direction which we have already cited. 42. In those circumstances we are not persuaded that there is anything which could impact upon the safety of these convictions. Accordingly, having concluded that there is no force in either of the two grounds before us, this appeal against conviction must be dismissed.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":[""],"ConvictOffence":["Rape"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Central Criminal Court"],"Sentence":["14 years' imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[0],"OffJobOffence":["Other"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["DNA match","Victim testimony","Expert report/testimony","Previous convictions"],"DefEvidTypeTrial":["Offender denies offence","Alternative explanation for DNA"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Relevant previous convictions"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Fresh evidence relating to DNA distribution","Complaint about judge's handling of intermediary's conduct"],"SentGuideWhich":["Section 23 of the Criminal Appeal Act"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Fresh evidence did not add to evidence at trial","No unfairness caused by intermediary's conduct","Judge's directions to jury were adequate","No force in either ground of appeal"]}
Neutral Citation Number: [2020] EWCA Crim 971 Case No: 201903220B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NOTTINGHAM CROWN COURT MR JUSTICE JEREMY BAKER Royal Courts of Justice Strand, London, WC2A 2LL Date: 23 July 2020 Before: THE RT HON THE LORD BURNETT OF MALDON LORD CHIEF OF JUSTICE OF ENGLAND AND WALES THE HON MRS JUSTICE CUTTS DBE and THE HON MRS JUSTICE TIPPLES DBE - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - JASON LAWRANCE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr David Emanuel QC appeared on behalf of the Appellant Mr Clive Stockwell QC appeared on behalf of the Crown Hearing date: 30 April 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 22 July 2020 at 10am. The Lord Burnett of Maldon CJ 1. This appeal raises a question about the meaning of consent for the purposes of section 74 of the Sexual Offences Act 2003 . Can a lie about fertility negate ostensible consent? The prosecution alleged that the appellant falsely represented to the complainant that he had had a vasectomy. On that basis she agreed to unprotected sexual intercourse when otherwise she would have insisted on his wearing a condom. On 31 July 2019, in the Crown Court at Nottingham, the jury convicted the appellant of two counts of rape on that basis. He was convicted of three other counts of rape, one of sexual assault and one of assault by penetration, involving other complainants. He was given a life sentence on each count of rape with a minimum term of ten years and 47 days with concurrent determinate sentences on the other counts. The appellant was already serving a life sentence for similar offending. 2. The complainant has the benefit of lifelong anonymity in this case. No matter relating to the complainant in this case shall during her lifetime be included in any publication if it is likely to lead to members of the public to identify her as the victim of these alleged offences. The facts 3. In 2014, the appellant met a woman on a dating website. Messages and phone calls became sexually explicit. In one conversation the complainant spoke of a sexual encounter with another man. When the appellant asked if he had used a condom, she replied that he had not because “he had the snip years ago”. The appellant responded “so have I.” There were no further messages concerning the issue of contraception. 4. On 21 July 2014 they met. They spent the evening together before returning to the complainant’s home. They went to her bedroom. Her evidence was that before they had sexual intercourse, she sought an assurance that the appellant had definitely had a vasectomy. He assured her that he had. She made it clear that she did not want to risk becoming pregnant. He reassured her again that he had undergone a vasectomy. Sexual intercourse then took place between them on two occasions without the use of contraception. 5. The appellant left during the night. In an exchange of messages the following morning he said “I have a confession. I’m still fertile. Sorry.” The complainant later discovered that she was pregnant and underwent a termination. 6. The prosecution case was that the complainant’s consent was vitiated by the appellant’s deception and that even if he genuinely believed that she had consented, such a belief was unreasonable. 7. The appellant did not give evidence. His defence on these counts was one of consent. The complainant’s account was challenged in cross-examination as the appellant’s case was that there was no discussion about a vasectomy in her flat. The jury must have accepted the complainant’s account. Relevant statutory provisions 8. Section 1(1) of the Sexual Offences Act 2003 (“ the 2003 Act ”) provides: “(1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. (3) Sections 75 and 76 apply to an offence under this section. (4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.” 9. Section 74 of the 2003 Act provides the basic definition of consent: “For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” 10. Section 75 is concerned with a series of evidential presumptions (not in issue in this appeal) and 76 sets out “conclusive presumptions about consent”: “(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed— (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that— (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.” Application to dismiss 11. Prior to arraignment the appellant applied to dismiss these two rape counts. He submitted that a lie told about a person’s fertility could not as a matter of law vitiate consent, even if relied upon by the complainant. In particular, he submitted: i) Not all deceptions leading to an individual consenting to sexual intercourse are sufficient to negate consent. ii) Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin) and R (F) v. DPP [2014] QB 581 , [2013] EWHC 945 (Admin) were distinguishable. In Assange , the prosecution case was that the complainant agreed to sexual intercourse only if Assange wore a condom, but either he did not do so, or removed it during intercourse. In F , the prosecution case was that the complainant consented to intercourse only on the basis that the defendant would withdraw before ejaculation, but he never intended to comply with that condition and did not do so. On behalf of the appellant it was submitted that deceit as to fertility would not be sufficient to negate consent. In the two cases the consent was given on the basis that ejaculate would be prevented from entering the complainants’ vaginas, whereas in the present case this was not what was sought to be avoided. Preventing ejaculate from entering the vagina related to an integral part of the sexual act and was therefore closely connected with it, such that a deceit as to its performance was sufficient to negate consent. In contrast, in the present case the deceit went to the consequences of the sexual act, that is the risk of pregnancy, and was insufficiently connected with the sexual act to negate consent. The appellant relied on the judgment in R v B [2007] 1 WLR 1567 , [2006] EWCA Crim 2945 where the appellant in question had not disclosed that he was HIV+ (although he did not represent that he did not have HIV). Consent was not vitiated in that case. 12. The prosecution submitted: i) That there was a material distinction between the present case and R v B which concerned a failure to disclose a disease rather than, as in the present case, a positive deception concerning fertility. ii) There was no material difference between the position of the complainants in Assange and R (F) v. DPP, both of whom sought to avoid the risks of pregnancy, and this case, where consent to sexual intercourse with the appellant was conditional upon his infertility and thus no risk of pregnancy. 13. The judge ruled that if the jury accepted the evidence of the complainant, the appellant’s deceit as to his fertility was capable of negating her consent to having sexual intercourse with him. The question whether an individual’s deceit about fertility is capable of negating consent to sexual intercourse should be considered by reference to section 74 of the 2003 Act . It was necessary to consider whether the appellant’s deceit as to fertility was sufficiently closely connected to the act of sexual intercourse to be capable of negating the complainant’s agreement to have sexual intercourse with him. 14. The judge concluded that the distinction which the appellant sought to draw between the consequences of the act of intercourse and the nature of the act itself was “artificial”. R v. B was distinguishable because the subject matter of the deceit was the risk of disease as opposed to the risk of pregnancy and because the case concerned a failure by the accused to disclose his HIV status rather than a positive representation to that effect which was relied upon by the complainant. The prosecution case was that the appellant made a positive representation that he was infertile, relied upon by the complainant. Further, one of the fundamental purposes of sexual intercourse is the procreation of children. In those circumstances the appellant’s deceit as to his fertility was sufficiently closely connected to the act of sexual intercourse as to be capable of negating her consent to sexual intercourse with him. 15. The fact that but for the deceit in Assange and R (F) v. DPP the accused’s ejaculate would have been prevented from entering the complainants’ vaginas, whereas in the present case this would have occurred in any event, was of marginal relevance when the primary purpose of contraception either by way of vasectomy, the wearing of a condom or by the withdrawal method is to prevent pregnancy. The reason why the complainant was prepared to have sexual intercourse was because she believed that there was no risk of pregnancy due to the appellant’s false representation. Summing up 16. The judge directed the jury on the legal elements of the offence of rape. In relation to the issue of consent he summarised the effect of section 74 : “A complainant consents to having sexual intercourse if she agrees by choice to the penetration and has the freedom and capacity to do so.” Having further directed the jury in relation to the difference between submission and consent he said: “As consent is based upon a complainant’s agreement by choice to have sexual intercourse with another person, a woman may choose to have sexual intercourse with a man only if he wears a condom and, if he does not do so, it would be open to you to determine that the complainant had not consented to the penetration… Likewise, where a woman agrees to have sexual intercourse with a man in the belief that he has had a vasectomy, if the man has deceived the woman into believing that he has had a vasectomy when he has not done so it would again be open to you to determine that, if she would not otherwise have agreed to have sexual intercourse with the man she did not consent to the penetration.” 17. The judge crafted a route to verdict which he handed to the jury. On these counts he directed the jury members to ask themselves the following questions: i) Whether they were sure that the appellant falsely represented to the complainant that he had had a vasectomy. If yes: ii) Whether they were sure that she did not consent to the appellant penetrating her vagina with his penis because she relied upon that false representation and would not otherwise have agreed to be penetrated by him. If yes: iii) Whether they were sure that the appellant did not reasonably believe that she consented to him penetrating her vagina with his penis. Grounds of appeal 18. Mr Emanuel QC submits that the appellant’s convictions on these two counts are unsafe because: i) there was no evidence upon which a jury could be sure that the offence of rape had taken place and the judge should therefore have acceded to the defence submission that there was no case to answer and withdrawn these counts from the jury’s consideration; and ii) the judge misdirected the jury about what they needed to be sure about before they could convict the appellant. Ground 1: Consent 19. On the first ground Mr Emanuel submits that the courts have previously found that a deception that goes to the nature of the sexual act or a deception that is closely connected to the sexual act may be capable of vitiating consent. In the present case the deception fits into neither category. He argues that, applying the test identified in R (Monica) v. Director of Public Prosecutions [2019] QB 1019 [2018] EWHC 3508 (Admin) at [74], the deception in the present case was not so closely connected to the performance of the sexual act that it was capable of vitiating consent. The act of sexual intercourse is a physical one which comprises penile penetration and usually ejaculation. In this case the complainant had the freedom and capacity to choose and consented to both aspects. The deception went not to the physical act itself but to the quality of the ejaculate and the potential consequences and risks associated with it. 20. Mr Emanuel further submits that the judge fell into error in deciding that the deceit of the men in Assange v Sweden and R (F) v. DPP, respectively to the wearing of a condom and the promise of withdrawal before ejaculation, was not materially different from the present case. In those cases, the complainant sought to prevent ejaculation into her vagina which was part of the physical act. In the present case the complainant consented to every aspect of the physical act. In addition the judge was wrong to distinguish the present case from R v B in which the Court of Appeal Criminal Division held that an agreement to all aspects of the sexual act that took place amounted to consent even where the defendant had failed to disclose to the complainant his HIV status and, as a result, had misled her about the nature of his ejaculate (in that case infected with HIV). Mr Emanuel submits there can be no practical difference between an express and implied deception. 21. Mr Emanuel submits that the judge’s ruling in the present case marks a profound change in the courts’ approach to consent and potentially criminalises many sexual acts to which factual consent has been given. To uphold the ruling would amount to an unwarranted extension of the law which, if it is to happen, is properly the domain of Parliament rather than the courts. 22. On behalf of the respondent Mr Stockwell QC submits that the judge’s ruling was correct. There is no material difference between the decision in Assange and that made by the judge in the present case. In both cases the complainant was deceived not about the surrounding circumstances but as to the sexual intercourse itself. In the present case the deception deprived the complainant of having a free exercise of choice for the purposes of section 74 of the 2003 Act . Further, the judge was correct to distinguish the case of R v. B on the basis that there was no express deception; whereas there was in the present case. Mr Stockwell submits that had there been such an express deception in R v. B as to HIV status that would have been capable of vitiating consent. A deception about venereal disease would be capable of vitiating consent. Discussion 23. The law concerning the impact of deception on the issue of consent to sexual intercourse was recently reviewed by the Divisional Court in R (Monica) v. DPP. The facts were that a woman who was an environmental activist had an intimate relationship with a man she thought agreed with her ideological beliefs, but he was in fact an undercover police officer who had infiltrated her group. The claim was a challenge to the decision of the Director of Public Prosecutions not to prosecute the officer for a series of offences, including rape. Her case was that consent was obtained on the basis of deceit and that she would not have consented to an intimate relationship had she known what he was. The DPP’s decision was upheld. 24. The court (Lord Burnett CJ and Jay J) traced the evolution of the law of deception as it affects consent. The trail starts with R v. Dee [1884] 14 LR Ir 468 where a woman’s ostensible consent to intercourse was vitiated because she thought the man concerned was her husband and not the defendant. The complainant consented to sexual intercourse with her husband and no one else. The concept was considered in R v. Clarence [1882] 22 QBD 23 where it was held that a man who did not inform his wife that he had venereal disease did not commit an offence under the Offences Against the Person Act 1861 . By parity of reasoning there could be no rape in such circumstances. The court explained in Dee that , “... consent in such cases does not exist at all, because the act consented to is not the act done. Consent to a surgical operation or examination is not consent to a sexual connection or indecent behaviour. Consent to connection with a husband is not consent to adultery.” per Stephen J at 44 25. The court considered the consequences of drawing a wide principle of deceit vitiating consent in cases, for example, of bigamy and seduction, the former almost always involving a fundamental deceit and the latter not uncommonly involving lies about marital status, wealth and the like. Wills J, at 29, saw real difficulties in identifying where to draw the line if the areas in which deceit could negative consent extended beyond impersonation of a husband and the medical sphere, the latter having been established in R v. Flattery [1877] 2 QBD 410 . 26. Section 1(2) of the Sexual Offences Act 1956 gave statutory force to the common law position that a man who induces a married woman to have intercourse by impersonating her husband commits rape. Subsequent decisions of this court extended the concept to mistake of identity generally: see R v. Elbekkay [1995] Crim LR 163 and R v. Linekar [1995] QB 250 at 255 G to H. Linekar was an important decision because it limited the instances where deception could vitiate consent to the two well-established categories, namely deceit as to identity and the medical cases. The facts in Linekar were very particular. A prostitute and her client had agreed a price. Intercourse followed but the man did not pay and had never intended to do so. In the course of the judgment of the court given by Morland J, there was reference to the 15 th report of the Criminal Law Revision Committee in which a recommendation had been made that Parliament should state expressly the circumstances in which deceit in persuading a partner to engage in sexual activity should vitiate consent. 27. Section 76(2) of the 2003 Act puts on a statutory footing the two well-established common law bases upon which deceit or fraud will vitiate consent, but Parliament did not take the opportunity to go further. The facts of the instant appeal do not fall within either of the categories identified in section 76(2) . 28. As foreshadowed in para. 11(ii) above, Assange concerned dual criminality in the context of an extradition request pursuant to a European Arrest Warrant. The allegation was that a woman consented to have sexual intercourse with him only if he wore a condom, but he proceeded to have sexual intercourse without. Sir John Thomas P (as he then was) at para. 86 concluded that section 76 of the 2003 Act had no application because there was no deception as to identity or the nature or purpose of the act. The question whether the deliberate failure to wear a condom in these circumstances meant there was no consent was to be judged by section 74 . He noted the decision in R v. B as authority for the proposition that a failure to disclose HIV status could not be relevant to the issue of consent under section 74 . He explained at para. 89 that the editors of Smith & Hogan 13 th edition, 2011, regarded it as selfevident that deception in relation to the use of a condom would “be likely to be held to remove any purported free agreement by the complainant under section 74 ” and that a similar view was expressed in Rook and Ward Sexual Offences 4 th edition, 2010. 29. In para. 72 of Monica the effect of the decision in Assange was explained in these terms: “What may be derived from Assange is that deception which is closely connected with “the nature or purpose of the act”, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it is capable of negating a complainant’s free exercise of choice for the purposes of section 74 of the 2003 Act .” 30. Section 74 defines consent for the purposes of Part 1 of the 2003 Act . It contains a wide range of offences, not just rape, which requires the prosecution to prove a lack of consent. 31. We return to R (F) v. DPP. This, like Monica , was a Divisional Court case in which the decision of the DPP not to prosecute was challenged. In para. 26 Lord Judge CJ referred to section 74 of the 2003 Act and continued: “The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad commonsense way. If before penetration began the [man] had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s.79(2) of the 2003 Act ) he decided that he would not withdraw at all, just because he deemed the [woman] subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly, her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuing of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.” 32. In R v. McNally [2014] QB 593 a teenage woman impersonated a teenage man and secured the consent of another young woman on that basis to engage in digital penetrative activity. Sir Brian Leveson P, giving the judgment of the court, concluded at para. 26 that the nature of the sexual act was “on any common-sense view, different where the complainant is deliberately deceived by the defendant into believing that the latter is male.” The complainant “chose to have sexual encounters with a boy and her preference (her freedom whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.” 33. In both these two last cases the courts referred to broad common-sense but as the court said in Monica at para. 80: “An appeal to “broad common sense” in the application of any law does not relieve a court from the obligation of identifying the boundaries within which a jury will be asked to bring to bear its common sense and experience of life. For that reason, when considering the governing principle or approach it is necessary to examine how it has been applied by the courts to date. It has never been applied to deceptions which are not closely connected to the performance of the sexual act, or are intrinsically so fundamental, owing to that connection, that they can be treated as cases of impersonation.” 34. Returning to the facts of this case, the jury concluded that the complainant relied on the appellant’s deception regarding a vasectomy and that she would not have consented to unprotected sexual intercourse had she thought him to be fertile. However, the “but for” test is insufficient of itself to vitiate consent. There may be many circumstances in which a complainant is deceived about a matter which is central to her choice to have sexual intercourse. Monica was an example, but they can be multiplied: lies concerning marital status or being in a committed relationship; lies about political or religious views; lies about status, employment or wealth are such examples. A bigamist does not commit rape or sexual assault upon his or her spouse despite the fundamental deception involved. The consent of the deceived second spouse, even if it would not have been forthcoming had the truth been known, does not vitiate consent for the purposes of sexual offending. Neither is the consent of a sex worker vitiated if the client never intends to pay. 35. The question is whether a lie as to fertility is so closely connected to the nature or purpose of sexual intercourse rather than the broad circumstances surrounding it that it is capable of negating consent. Is it closely connected to the performance of the sexual act? 36. In our opinion, a lie about fertility is different from a lie about whether a condom is being worn during sex, different from engaging in intercourse not intending to withdraw having promised to do so and different from engaging in sexual activity having misrepresented one’s gender. 37. Unlike the woman in Assange , or in R(F), the complainant agreed to sexual intercourse with the appellant without imposing any physical restrictions. She agreed both to penetration of her vagina and to ejaculation without the protection of a condom. In so doing she was deceived about the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse. The deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it. We should add that the question of consent could not be affected by whether pregnancy followed or not; and neither could it be affected by the gender of the person who was guilty of deceit. On the prosecution case, a woman who lied about her fertility in circumstances where the man would not otherwise have consented to sexual intercourse would be in the same position, albeit guilty of a different sexual offence. 38. In terms of section 74 of the 2003 Act , the complainant was not deprived by the appellant’s lie of the freedom to choose whether to have the sexual intercourse which occurred. 39. There is force in the appellant’s submission of an analogy with R v. B where the accused failed to disclose that he was HIV positive prior to having sexual intercourse with the complainant. The transmission of the disease through sexual intercourse was not part of the performance of the sexual act but a consequence of it. In giving the judgment of the court the Vice President, Latham LJ, explained: “18. Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease. 19. This problem is one which has been recognised, not surprisingly, for many years. In its Second Consultation Paper Relating to Sexual Offences, in 1995, the Law Commission acknowledged that there was a case for treating a deception as to a person's HIV status or freedom from other sexually transmissible disease as being of such fundamental importance that it should nullify consent. However, in its ultimate review, in 2000, the Commission felt that the right solution to these issues was a delicate matter requiring expertise in public health and social policy rather than the law. In our judgment, that conclusion, which is reflected in paragraph 1.55 of Rook and Ward on Sexual Offences Law and Practice (3rd edition), is one which this Court should support. 20. As has been indicated in an article by Professor Tempkin and Professor Ashworth, in the 2004 Criminal Law Review, page 328, the Sexual Offences Act 2003 does not expressly concern itself with the full range of deceptions other than those identified in section 76 of the Act , let alone implied deceptions. It notes that this leaves, as a matter of some uncertainty, the question of, for example, as it is put: "What if D deceives C into thinking that he is not HIV positive when he is?" … 21. The consequence seems to us to be matter which requires debate, not in a court of law but as a matter of public and social policy, bearing in mind all the factors that are concerned including the questions of personal autonomy in delicate personal relationships. That does not mean that we in any way dissent from the view of the Law Commission that there would appear to be good reasons for considering the extent to which it would be right to criminalise sexual activity by those with sexually transmissible diseases who do not disclose that to their partners. But the extent to which such activity should result in charges such as rape, as opposed to tailormade charges of deception in relation to the particular sexual activity, seems to us to be a matter which is a matter properly for public debate. 22. All we need to say is that, as a matter of law, the fact that the appellant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under section 74 in relation to the sexual activity in this case.” 40. We recognise that in McNally at para. 24 the President indicated that this case did not go so far as to say that a positive deception regarding HIV could not vitiate consent. Mr Stockwell did not shy away from the submission that a lie that one was free of sexually transmittable diseases, assuming that was critical to the other person, would vitiate consent. Yet deceit and deception are very slippery concepts which, at one end of the spectrum, may result from a clear short lie, through more obscure utterances, obfuscation or evasion, to conduct designed to convey an unspoken false impression. In this area it is difficult to draw clear principled lines which could distinguish a deceit resulting from one course from another. 41. In our view, in any event, it makes no difference to the issue of consent whether, as in this case, there was an express deception or, as in the case of R v. B, a failure to disclose. The issue is whether the appellant’s lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it. For the reasons we have given, in our view in the present case it was not. 42. Arguments about consent in cases of alleged sexual offending sometimes proceed on the assumption that the meaning of “consent” is a matter for development by the common law. That was the position in the nineteenth century when the seminal cases on impersonation and misconduct during medical examinations were decided. It is no longer the position because consent is defined in section 74 of the 2003 Act , with the evidential presumptions found in section 75 and the conclusive presumptions in section 76 . Any novel circumstances must be considered by reference to the statutory definition, namely whether the alleged victim has agreed by choice and has the freedom and capacity to make that choice. There is no sign that Parliament intended a sea change in the meaning of consent when it legislated in 2003. The Law Commission and Criminal Law Revision Committee, as we have noted above, have both in their turn drawn attention to the acute difficulties in dealing with the circumstances where someone had been tricked into consenting to sexual contact as a result of misrepresentations. We echo the observations of Latham LJ that these issues require debate as matter of social and public policy. 43. Our conclusion, in respectful disagreement with the judge, is that the appellant’s lie about his fertility was not capable in law of negating consent. This appeal therefore succeeds on the first ground. In those circumstances there is no need for us to consider the appellant’s submissions concerning the judge’s directions in the summing up. We find that the appellant’s convictions on counts 8 and 9 are unsafe and must be quashed.	{"ConvCourtName":["Crown Court at Nottingham"],"ConvictPleaDate":["2019-07-31"],"ConvictOffence":["Rape","Rape","Rape","Sexual assault","Assault by penetration"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Nottingham"],"Sentence":["Life sentence on each count of rape with a minimum term of ten years and 47 days","Concurrent determinate sentences on the other counts"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Complainant testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction unsafe"],"AppealGround":["No evidence upon which a jury could be sure that the offence of rape had taken place","Judge misdirected the jury about what they needed to be sure about before they could convict"],"SentGuideWhich":["Section 74 of the Sexual Offences Act 2003"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Appellant’s lie about his fertility was not capable in law of negating consent"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2008] EWCA Crim 971 Case No: 200700774D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT TEESSIDE Grigson J T20047379 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/05/2008 Before: THE RT HON LORD JUSTICE TOULSON MR JUSTICE AIKENS and HIS HONOUR JUDGE MICHAEL BAKER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - Suzanne Holdsworth Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A J Robertson QC and M Connolly for the Respondent C H Blaxland QCand P Wilcock for the Appellant Hearing dates: 22-24 April 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Toulson : 1. This case arises from the death of Kyle Fisher on 23 July 2004 at the age of 2 years 8 months. Suzanne Holdsworth was convicted of his murder on 8 March 2005 at Teesside Crown Court before Grigson J. No criticism is made of the conduct of the trial, but she applies for leave to appeal and an extension of time for doing so on the basis of fresh medical evidence. Her application was referred to the full court by the registrar. The hearing before us took the same form as a full appeal. The main characters 2. Kyle lived with his mother, Claire, at 23 Troutpool Close, Hartlepool. She was aged 19 at the time of Kyle’s death. 3. The applicant lived across the road at 3 Millpool Close with her partner and their daughters, Lesley and Jamie Lee, who were then aged 14 and 10. The applicant’s partner was a long distance lorry driver. 4. Claire and Kyle saw quite a lot of the applicant and her daughters. Lesley was much closer in age to Claire than was the applicant, who was then aged 35, and Lesley and Claire became friends. Jamie Lee developed a bond with Kyle. At the time of Kyle’s death the applicant and Claire were on good terms, although there had been periods of hostility between them. 5. Claire’s mother lived nearby but at the time of Kyle’s death she was away on holiday with her partner. The days leading up to Kyle’s death 6. On Saturday 17 July Claire went with a friend in the evening to a nightclub in Hartlepool. She had been unable to arrange a babysitter and she left Kyle on his own asleep in bed at her mother’s house. The applicant learned about this and told Claire that she would tell her mother when she returned from holiday. Claire was upset and begged her not to do so but the applicant was adamant. 7. On Tuesday 20 July Claire and Lesley went to the cinema leaving Kyle at the applicant’s house in her care. Claire and Lesley left around 5 pm and got back at about 8.30 pm. At the trial there were partially conflicting versions of what happened after that. Claire’s version was that when they arrived back at 3 Millpool Close the applicant was in the garden. Claire asked her how Kyle had been. The applicant told her that he was fine and was in bed. Claire went up stairs to look at him. She opened the bedroom door but did not put on the bedroom light. Kyle was asleep on the floor. She picked him up. He was drowsy but spoke to her. She could not see anything wrong with him and so she put him in bed and went downstairs. She told the applicant that Kyle must have fallen out of bed and then went round to her mother’s house to feed the dog. Within half an hour of leaving she received a phone call from the applicant saying that Kyle had bruises on his head and wanting to know why she had not mentioned them. She said that she had not seen any bruises and asked the applicant how Kyle was. The applicant replied that he was fine and she could hear Kyle laughing in the background. Claire did not go back to look at him and left him there for the night. 8. According to the applicant’s version, when Claire and Lesley arrived back from the cinema she (the applicant) went out for about half an hour. On her return Lesley was in the garden and told her that Kyle had fallen out of bed. She went in the house and asked Claire if Kyle was alright. Claire said that he was. Claire stayed for another hour or two. When later the applicant went up to bed she saw that Kyle was sitting up on his bed. She put the light on and saw that he had bruising on both sides of his head. She immediately rang Claire and was annoyed with her for not having seen and mentioned the bruising. Claire had said that she had not turned the lights on. Lesley gave Kyle a drink. He was fine at this stage, talking and giggling, so she put him back to bed. 9. Lesley’s account supported that of the applicant. She said that after they had returned from the cinema, and her mother had gone out, Claire went up to check on Kyle while Lesley was putting away some gardening tools. Claire was up stairs for about 15 minutes. Eventually Lesley went up to see her and Claire explained that Kyle had fallen out of bed. Lesley supported her mother’s account of later going up to bed and at that stage seeing bruises on Kyle’s head. 10. It was common ground that next morning Claire came round and looked at Kyle. It will be necessary to come back to the witnesses’ description of his condition after whatever happened to him on the Tuesday evening, but all agreed that his behaviour on the Wednesday was normal and that he showed no sign of discomfort, apart from complaining of a poor head when touched with a soft toy in the course of play. The circumstances surrounding Kyle’s collapse 11. The applicant spent the evening of Wednesday 21 July at bingo with a friend. It had been arranged that when she came back she would look after Kyle so that Claire could go out. Claire gave Kyle his tea at her mother’s house. Sometime about 9 to 9.30 pm a witness, Ellen Ashley, saw Claire and Kyle coming out of Claire’s mother’s house and there was conversation between them about Kyle having banged his head a few times. 12. The applicant arrived back from bingo not long after 10 pm. Claire brought Kyle round to her house in his pyjamas and left soon after 10.15 pm. From that time on the applicant and Kyle were alone in the house. 13. At 11.34 pm the applicant made a 999 call. The conversation began with the applicant saying “Can I have an ambulance straightaway please? I am babysitting for a 2 year old child and he has just gone all floppy…He is not breathing…His eyes are rolling and everything.” 14. The conversation continued for a little over 11 minutes until the ambulance arrived. Kyle was then breathing at a rate of 22 inhalations per minute, which is slightly faster than normal. His pulse was 83, which was normal for a child of his age. His oxygen saturation rate was satisfactory but he was unresponsive and his Glasgow Coma Score was assessed at 3. His eyes were dilated and unresponsive to light. Kyle was taken to the accident and emergency department at Hartlepool Hospital. His condition was plainly very poor and he was transferred to Newcastle General Hospital. There he was seen by Mr Todd, a consultant neurosurgeon, and Dr Devlin, a consultant child neurologist. A CT scan and later a MRI scan were carried out. He was placed in the Paediatric Intensive Care Unit (PICU). The consultants concluded that he had suffered severe brain stem injury from which he had no chance of survival. On Friday 23 July life support was withdrawn. Subsequently a post mortem examination was conducted by Dr Sunter, a Home Office pathologist. The applicant’s account 15. The applicant has been consistent in her account of events during the period of more than an hour on the Wednesday evening between Claire leaving Kyle with her and her calling 999. Her account is that during this period Kyle was downstairs with her and was behaving normally. He had some food and a drink and they watched television. He identified characters on the programme. He then became sleepy and started to nod off. She asked if he wanted to go to bed and he said “Susie knackered”, which was a phrase that he had picked up from her. They got up and at that point he had a sudden fit. She carried him to the kitchen and splashed water on his face in the vain hope that this would bring him round. He continued to fit and jerk. She was in a panic and had no idea what was wrong with him. She then laid him on the sofa and dialled 999. Kyle’s injuries 16. Externally Kyle had a large number of minor marks of a kind which are common in an active toddler. As to these Dr Sunter considered that it would be “unreasonable to read too much into what are after all just multiple trivial bruises”. The bruises which he identified as significant were to the top of the head, both sides of the jaw and both shoulders. 17. He described the bruising to the top of the head as “a complex pattern…consisting of a large area of nondescript deep bruising (measuring 145 mm by 185 mm on the deep aspect of the scalp) and within which there were evident at the skin surface curved linear marks to the right of the mid line and straight linear marks to the left of the mid line.” 18. He considered this to be a very peculiar complex of injury but, having looked at the banisters at 3 Millpool Close, the injury could be accounted for by Kyle’s head being impacted several times against them. 19. He considered that the bruises to the right and left jaw margins and to the tops of the right and left shoulders formed a symmetrical pattern of further peculiar injury and would be consistent with gripping. Putting these features together, he considered that they were indicative of the child being gripped by the neck and shoulders when in a crawling position and having the top of his head struck several times against the banisters. 20. Internally, there was no evidence of any primary injury to any particular part of the brain, such as a bruise or laceration of the brain substance or a fracture, but there was diffuse cerebral odoema and a subdural haemorrhage on the right side. The latter would not have been life threatening, because the amount of blood accumulated (i.e. 38 grams) was not large, but it was an indicator that there had been a blunt force head injury. The medical evidence at the trial as to the cause of death 21. The prosecution called as witnesses Dr Sunter, Mr Todd and Dr Devlin. The combined effect of their evidence was that Kyle died as a result of a blunt force head injury causing acute cerebral odoema, increased intracranial pressure and irreversible damage to the nerve cells of the brain through disruption of the supply of blood and oxygen. To cause the degree of damage the trauma must have been severe and the symptoms would have become apparent immediately or very soon after the impact, i.e. within minutes. The child would have been immediately unwell and it would have been apparent that the injury was catastrophic within an hour at the outside. 22. If this evidence was accepted by the jury (as it evidently was), it necessarily followed that the trauma must have been inflicted by the applicant, since he had been in her sole custody for over an hour before the 999 call, and her account of Kyle behaving normally until he suddenly had a fit for no apparent reason could not be truthful. The applicant herself gave evidence and was naturally cross-examined on that basis. 23. No medical evidence was called on her behalf. Mr Blaxland QC told the court that reports had been obtained from a number of experts whose specialities included forensic pathology and paediatric neurology, but none of their reports provided the defence with any basis for challenging the prosecution’s medical evidence. The fresh medical evidence 24. Prior to the hearing the applicant issued notices of application to call 5 expert witnesses whose reports were disclosed. In the event Mr Blaxland decided to rely on only 3 of them and we heard evidence de bene esse from those witnesses. They were Professor Guerrini, who is a clinical professor of paediatric neurology at the University of Florence (and formerly professor of paediatric neurology and consultant paediatric neurologist at Great Ormond Street hospital); Dr Anslow, who is a consultant neuro-radiologist at the Radcliffe Infirmary, Oxford; and Dr Squier, who is a consultant neuro-pathologist at the Radcliffe Infirmary. The prosecution called evidence from Dr Rittey, who is a consultant paediatric neurologist at the Ryegate Children’s Centre (part of Sheffield Children’s NHS Foundation Trust), and Professor Milroy, who is a professor of forensic pathology at the University of Sheffield and a consultant pathologist to the Home Office. (Professor Milroy was instructed by the prosecution because Dr Sunter has died). Nobody has questioned the integrity of any of these witnesses or their expertise in their respective fields. 25. The theory of the causation of Kyle’s death advanced on behalf of the applicant contains a number of strands, but Mr Robertson QC on behalf of the prosecution argued forcibly, and with justification, that the prosecution has been faced with a moving target when addressing the question how these different strands cohere into a unified theory. As the appeal hearing went on there was a process of intellectual debate between the experts, and the final presentation of the appellant’s case only became fully apparent when Professor Guerrini was re-called (at the court’s suggestion) after Dr Rittey had given evidence. The defence made the point that this was a case with a number of complex factors and that it may not be possible to be precise as to the interaction of the various factors. Be that as it may, with the benefit of hindsight it would have been better if experts of like discipline had been in direct contact with one another before the hearing in order to consider together the points advanced by one another and to produce a summary of points of agreement and disagreement with a summary of their reasons for disagreement. 26. The explanation for Kyle’s death suggested as a possibility by the applicant’s expert witnesses can be summarised as follows: 1. Kyle suffered from a number of pre-existing brain abnormalities which predisposed him to an epileptic seizure. 2. Kyle may also have suffered from a subdural haemorrhage as a result of whatever had happened prior to the Wednesday evening, although this is not an essential part of the theory. If so, that would have been an additional predisposing factor for an epileptic seizure. 3. The description given by the applicant during the 999 call was a description of an epileptic seizure. 4. The seizure may have led to the hypoxic ischaemic brain damage (i.e. cerebral odoema, rise in intracranial pressure and starvation of blood and oxygen to the brain cells). 27. The applicant’s case is that if that is a credible medical explanation, her conviction must be unsafe, because the medical evidence was the foundation of the case against her. Mr Robertson submitted that the fresh medical evidence is irrelevant because there was an unanswerable case that Kyle suffered some trauma while in the custody of the applicant on the Wednesday evening, independent of the opinion of the prosecution’s medical experts that the injuries from which he was suffering on his admission to hospital must have been caused within an hour prior to his collapse. Mr Robertson made it clear that this was his primary submission. He also submitted that the medical theory advanced on the applicant’s behalf is not credible for reasons explained by Dr Rittey. Mr Robertson wove his arguments together in submitting that even if the medical theory were intellectually possible, in deciding whether it affords a credible explanation for Kyle’s death it is necessary to look at the case as a whole. 28. Professor Guerrini’s report also raised the possibility that the injuries observed on Tuesday evening and Wednesday morning may have been caused by Kyle suffering an epileptic seizure in which he was thrown out of bed on the Tuesday evening. Mr Blaxland did not rely on this suggestion for the purpose of the present appeal, because for that purpose it did not matter how Kyle’s Tuesday evening injuries were sustained. Although the prosecution had put it to the applicant in cross-examination that she had injured Kyle on the Tuesday, the murder charge was based on the allegation that the applicant inflicted fresh trauma on the Wednesday evening and Mr Robertson told the jury in his opening speech (according to his written note) that “whatever happened on the Tuesday night is totally irrelevant when considering how Kyle’s fatal injury was caused and by whom”. Mr Robertson properly maintained that position on the appeal. The relevance of the medical evidence: other circumstantial evidence 29. Mr Robertson’s submission that there was an unanswerable case that Kyle suffered trauma while in the custody of the applicant on the Wednesday evening, independent of the opinion of the prosecution’s medical experts that the injuries from which he was suffering on his admission to hospital must have been caused within an hour prior to his collapse, depends on circumstantial evidence. The first point to note is that if this evidence had been put to the jury as a foundation for inferring that the applicant injured Kyle on the Wednesday evening, the judge would have been required to give the jury a full and careful warning about the proper approach to circumstantial evidence. However it is clear from the opening note of the prosecution for the trial that the case was not put this way. That is reinforced by the fact that the very experienced judge did not give such a direction. He clearly (and rightly) did not see this circumstantial evidence as a material, let alone important, part of the prosecution’s case for finding that the applicant inflicted the fatal injury. 30. In the early part of his summing-up the judge referred to evidence which the jury had heard about the character of the applicant and Claire before summarising the issues which the jury had to decide. There had been evidence that the applicant was a mature woman and experienced with children but also evidence of a loss of temper on occasions. The judge turned from that general evidence to the matters which the prosecution had to prove. He said: “The first crucial issue in this case is whether the prosecution have proved that it was Mrs Holdsworth who inflicted the fatal injury, and this evidence which lawyers called propensity evidence, evidence as to bad temper on the one side, evidence as to her patience and skill on the other, goes to that issue. She is on the face of it an unlikely candidate, but at the end of the day, and this is a matter for you, you may think the important evidence comes from the doctors.” That evidence from the doctors was all one way. 31. At the trial both sides proceeded on the basis that there must have been some additional trauma after the Tuesday night, for which the applicant and Claire each denied responsibility. In summarising the evidence the judge reminded the jury of the two accounts of events over the preceding days which formed the background to the events on the Wednesday evening. The jury may have formed an adverse view of the applicant’s credibility in relation to those events or they may have disbelieved the applicant simply on the basis of the medical evidence. The judge gave the jury a Lucas direction but nowhere in the summing-up did he suggest that the jury might rely on inferences from evidence relating to the period prior to the handover of Kyle on the Wednesday evening as circumstantial evidence from which they might infer that the applicant inflicted the fatal injury. 32. The principal matter on which the prosecution relies in support of its argument that there was an unanswerable case against the applicant quite apart from the medical evidence is the alleged appearance of fresh marks after Kyle’s admission to hospital as compared with his appearance earlier on Wednesday at the applicant’s home. It was accepted by Mr Robertson that if there were such fresh marks, there is no direct evidence when and where they were inflicted. But he submitted to us that the inescapable inference must be that those marks were caused by injuries caused by the applicant between 10.15 and 11.34 pm on the Wednesday evening. 33. This topic brings us back to the descriptions of Kyle’s condition after the events of Tuesday evening. 34. Mr Robertson relied primarily on answers given by the applicant when first interviewed by the police and in cross-examination. When first interviewed by the police, the applicant said that after the incident on the Tuesday evening she saw that Kyle had purple bruising in a straight line on the left side of his head. She made no mention of any mark on the right side. On 25 July she was interviewed after she had been arrested for Kyle’s murder. During the interview she was shown photographs of the bruising on Kyle’s head and was asked if those were the injuries which she had noticed on the Tuesday. She said that they were and that looking at the photographs made her remember that there was bruising on both sides. She had only seen the bruising on the right side when Lesley had lifted Kyle’s hair up and drawn her attention to it. 35. Mr Robertson also relied on the following answers in cross-examination: Q. Now, are you saying, Mrs Holdsworth, that the injuries after the Wednesday night were exactly the same as on the Tuesday night? A. Not on the photograph when she showed me it, no. Q. No. What you saw on the photograph was different from what you noticed on Kyle’s head from the Tuesday night? That’s right, isn’t it? A. On the Tuesday night when I looked at Kyle’s head they looked straight. Q. Yes. They were different from the bruises that you saw on the photographs… A. Yes. Q. …taken after the Wednesday night? A. The photographs were larger than… 36. That evidence cannot fairly be taken as an admission or basis for a finding that Kyle had more marks after he was handed over to the applicant on the Wednesday evening than at the time when he was handed over. The applicant’s evidence on that was to the contrary. The change in her answers to questions from the police before and after being shown the photographs could be regarded as reducing her credibility, but it does not go further than that. The fact that bruising on the photographs appeared larger than she remembered might have various explanations. 37. Claire Fisher said in her witness statement that on the Wednesday morning she was worried about Kyle’s bruises and so went to see him. She was shocked by what she saw. There was dark purple bruising on both sides of his head. On the right side there was a straight line as if he had hit his head against something straight. On the other side there were a number of bruises, dark purple in colour, not in a line, lower down than those on the right side of his head and nearer the front. When she saw Kyle at Hartlepool Hospital she could not see any other marks or bruises on him than she had seen on the Wednesday morning. Later in the PICU at Newcastle General Infirmary she noticed that he had a little bruise under his chin which she had not previously seen. She confirmed that statement in her evidence at the trial. 38. If the scallop shaped bruising on the right side of the head had been new bruising, caused by the applicant repeatedly striking Kyle’s head against the banisters, it is a pertinent question why Claire failed to recognise this as fresh bruising at a time when she identified the small mark on the chin, which the prosecution say was a grip mark. Moreover it was the prosecution’s suggestion that the scallop shaped bruising on the right and the straight line bruising on the left were caused simultaneously by Kyle’s head being thrust between the banisters (and it was their combination which Dr Sunter considered to be a particularly unusual pattern). That is hard to reconcile with Claire’s evidence of seeing the straight line bruise on the Wednesday morning. Mr Robertson properly acknowledged that this was something which weakened the force of Dr Sunter’s opinion that those marks were caused together. 39. Ellen Ashley’s evidence was that when she met Claire outside Claire’s mother’s house on the Wednesday evening Claire told her that Kyle had banged his head a few times. She did not say where or when it happened but said that he had done it that day. As Claire spoke she indicated with her hands to each side of Kyle’s temples. 40. The prosecution also relied on evidence of lies by the applicant. When first interviewed by the police, the applicant, Claire and Lesley all lied about where Claire had spent Tuesday night. They said that she had spent the night at the applicant’s home. The idea of telling this false story first came from the applicant. She claimed that her motive was to protect Claire. The medical staff at the hospital had said that social services were going to be involved. The applicant said that she thought that it might look bad for Claire that on the Tuesday night she had not come to look at Kyle and take care of him after he had hurt himself. The prosecution submitted that the object of the lie was to enable the applicant to accuse Claire of causing injuries to Kyle on the Tuesday evening, which had in truth had been caused by the applicant. The prosecution also suggested that the applicant and Lesley were continuing to lie in saying that on the Tuesday the applicant had gone out after Claire and Lesley had returned from the cinema, and in Lesley saying that Claire had been on her own upstairs with Kyle for 15 minutes, thereby creating a window of opportunity for Claire to have injured Kyle. If that were right, it would provide material to support a case that the applicant had injured Kyle on the Tuesday evening; it was not evidence of the infliction of fresh trauma on the Wednesday. 41. Put shortly, we have concluded that none of the circumstantial factual evidence provided a basis independent of the medical evidence for a finding that fresh trauma was inflicted after the applicant took charge of Kyle on the Wednesday evening. Even if we had concluded otherwise, the weight of such evidence would have had to be evaluated along with other factors (including the likelihood of the applicant behaving in such a way and the likelihood of Kyle showing no sign of fear or anxiety in her presence on the Wednesday if she had inflicted bruises on him on the previous evening). It would not have been possible for this court satisfactorily to carry out that kind of primary evaluation simply from a reading of the transcript and the court documents. It would have been an exercise for the jury on a proper direction. 42. In this case the effect of the medical evidence was to turn what was otherwise no more than a case of opportunity to commit a fatal assault into a certainty, if the jury accepted (as they plainly did) the opinion of the prosecution’s medical experts about the conclusions which could be drawn from Kyle’s injuries. In these circumstances the safety of the applicant’s conviction depends on whether there was a credible alternative medical explanation consistent with the applicant’s account of events. The medical issue 43. At the outset it is worth noting certain negatives which were apparent from Dr Sunter’s report and were highlighted by Dr Anslow. There was no evidence of any brain bruise. There was brain swelling, but that is a different matter. There was also no evidence of any scalp haematoma or scalp swelling. There was evidence that there had been trauma, because there were the external bruise marks identified by Dr Sunter and there was a subdural haematoma. But medically neither the bruise marks nor the subdural haematoma could in themselves be dated to any particular time. Dr Sunter accepted at the trial that he could not exclude the possibility that the subdural haematoma had been caused on the Tuesday. He said in cross-examination: “With a subdural haemorrhage you can’t say the injury took [place] so many hours ago, so many days ago. It’s a guess”. In the case of a subdural haematoma the accumulation of blood may be slow and in the meantime the individual may behave quite normally. 44. So it was not possible to identify primary medical evidence of a necessarily fresh injury. The cerebral oedema was secondary to something, and the question was what was that something. The prosecution’s case was that the only sensible inference was that it was secondary to significant trauma, and, if so, that the trauma must have been very recently inflicted, enabling the jury to find that the applicant’s account of events must be false. 45. It is in that context that the alternative medical explanation falls to be considered. 46. We return to the four propositions set out in paragraph 26 by way of summary of the alternative medical theory. 47. As to the first, it is accepted that Kyle suffered from a number of pre-existing brain abnormalities which predisposed him to an epileptic seizure. He had an abnormally large brain, nodules of ectopic neurones capable of generating epileptic activity and a scar involving the cerebral cortex as a result of previous trauma. These factors would have caused him to have an over 80% risk of exhibiting epileptic seizures. 48. As to the second, it is accepted as medically possible that the subdural haemorrhage resulted from whatever happened on the Tuesday and, if so, that this would have been an additional pre-disposing factor to epileptic seizure. 49. As to the third, the seizure described by the applicant during the 999 call may have been either clonic or tonic. Dr Rittey considered that it was likely to have been a tonic seizure resulting from brain stem compression, but he accepted the possibility that it was an epileptic seizure, which was Professor Guerrini’s opinion. 50. That leaves the critical issue whether it is a credible medical theory that the seizure may have led to hypoxic ischemic brain damage. 51. Professor Guerrini stressed that we do not know as a fact what were the dynamics of the relevant factors. Epileptic activity may affect a lone area of the brain or a combination of networks or the whole brain. During an epileptic seizure the vastly increased neural activity means that the patient will require a greatly increased amount of oxygen and blood in the brain. If Kyle already had a subdural haemorrhage, the drainage of blood and CSF may have been imperfect. 11 minutes or more was a long time for a clonic seizure during which he may have suffered a period of apnoea. In Professor Guerrini’s opinion it was possible that this caused cerebral oedema resulting in severe hypoxic ischemic brain damage. 52. Dr Rittey considered this explanation to be untenable. When proper account is taken of the recorded facts about Kyle’s condition at the time of the arrival of the ambulance and on Kyle’s admission to hospital, Dr Rittey did not consider that the suggested train of events and explanation had a sound theoretical basis. Further, it was unsupported by any empirical evidence to be found in the medical literature. 53. As to the theoretical argument, Dr Rittey argued that if the severe brain damage occurred during the seizure while Kyle was not breathing, it was inconceivable that he could have then started breathing again. Yet his rate of breathing and pulse were normal when the ambulance arrived. The fact that Kyle was unresponsive and his eyes were fixed confirmed that he had suffered very severe brain damage, which must have been a result of the trauma which pre-dated any seizure. Dr Rittey also argued that on the alternative theory Kyle must have been severely acidotic, but that blood taken on his arrival at hospital showed that he was not acidotic. As to the empirical evidence, Dr Rittey emphasised that there was no case reported in the medical literature of a seizure as short as 11 minutes causing damage of the severity suffered by Kyle. Insofar as Professor Guerrini had referred to papers in support of the suggestion that Kyle could have died as a result of the seizure, the cases reviewed in those papers were quite different from the present case, and Dr Rittey was critical of the way in which Professor Guerrini had sought to rely on that literature. 54. On the matter of breathing and pulse, Professor Guerrini responded that the centre which regulates respiration is at two levels in the brain, mid and lower. You could therefore have a situation in which the seizure activity in the brain stopped the individual from voluntary control of breathing, but at the end of that activity normal, but involuntary breathing and heartbeat could resume, because the oedema had not yet had fully affected the brain stem. As to the lack of response of the pupils to light, Professor Guerrini agreed when first cross-examined that if Kyle was in a post-convulsive coma when the ambulance arrived, his eyes should have been responsive to light. When re-called to give further evidence, he said that the response to light could have been affected if the oedema at that stage had been severe enough to affect the mid part but not the lower part of the brain stem. This was a new development and Mr Robertson was critical of the way in which it was advanced. As to acidosis, Professor Guerrini said that there is a chemical barrier such that the acidosis in the brain would not have been matched by corresponding acidosis elsewhere in the body. He made the point that on the prosecution’s own theory there had been acute hypoxic ischemic injury to the brain and that on either theory the acidosis would have been the same. The issue which divided the experts was what may have caused the hypoxic ischemic injury. 55. On the matter of empirical evidence, Professor Guerrini observed that in a clinical situation a patient would never be allowed to continue fitting for more than 5 minutes without medical intervention and therefore you would not have medical studies of people undergoing seizures of the length in the present case. Where patients died as a result of such a seizure, it would be away from hospital. He emphasised that although death during a seizure is rare, it does happen and there will not necessarily be a post-mortem. Speaking in general terms, Professor Guerrini said that his theory is one of the main theories advanced to explain sudden death in epilepsy. In this case the possible co-existence of a subdural haemorrhage would have been an unusual complicating feature. Dr Squire made the point tersely when she said that she had never seen a paper which considered the effect of seizure in the context of subdural haematoma. Conclusion 56. Dr Rittey acknowledged that Professor Guerrini is an internationally acclaimed expert in epilepsy and that any theory advanced by him on this subject is entitled to very careful consideration. 57. Conclusions of medical experts on the cause of an injury or death necessarily involve a process of deduction, that is inferring conclusions from given facts based on other knowledge and experience. But particular caution is needed where the scientific knowledge of the process or processes involved is or may be incomplete. As knowledge increases, today’s orthodoxy may become tomorrow’s outdated learning. Special caution is also needed where expert opinion evidence is not just relied upon as additional material to support a prosecution but is fundamental to it. 58. With these considerations in mind, we have concluded that the interests of justice make it necessary that we should admit the fresh medical evidence adduced by the applicant under s 23 of the Criminal Appeal Act 1968 . Having listened to the oral evidence called on both sides and evaluated it in the context of the case as a whole, we do not consider that we can safely dismiss the medical scenario advanced on the applicant’s behalf as definitely incredible. In R v Pendleton [2002] 1WLR 72 Lord Bingham commended it as wise for the Court of Appeal in a case of any difficulty to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict (paragraph 19). In our judgment it might, and therefore the conviction must be judged unsafe. 59. For those reasons we grant permission to appeal and quash the applicant’s conviction for murder. We add as a postscript that any re-trial will require a high level of case management. We draw attention, in particular, to the observations of this court in R v Harris [2006] 1 Cr App R 5 , at paragraph 273, regarding the powers of the court to make provision for experts to consult together and, if possible, agree points of agreement or disagreement with a summary of reasons.	{"ConvCourtName":["Crown Court at Teesside"],"ConvictPleaDate":["2005-03-08"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[35],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[2],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical expert testimony","Pathology report","Witness testimony"],"DefEvidTypeTrial":["Offender denies offence","Fresh medical expert evidence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Fresh medical evidence undermines original medical evidence; alternative medical explanation for death"],"SentGuideWhich":["s 23 of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Fresh medical evidence could have affected the jury's decision; conviction judged unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2017] EWCA Crim 457 Case No: 201604165/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 28 March 2017 B e f o r e: PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE McGOWAN DBE MR JUSTICE O'FARRELL DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v DEVINA CAROLINE CUMMINGS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr R Fitt appeared on behalf of the Appellant The Crown was not present and was unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MRS JUSTICE McGOWAN : On 20th July 2016 the appellant, Devina Caroline Cummings, changed her plea to guilty to a count of robbery on an indictment which also alleged an offence of theft. For the offence of robbery she was sentenced to 3 years and 7 months' imprisonment by Mr Recorder Kovats QC on 17th August 2016. She appeals sentence today by leave of the single judge who granted a representation order and Mr Fitt appears on her behalf. 2. On 27th February 2016, at about 10.15 pm the appellant, the co-accused, Mr Cochrane, and an unknown third person, a man, entered a family-run newsagents and off-licence in Hither Green. A fourth person apparently was waiting outside in a car. The complainant in this case, Mr Varatharaja, who ran the shop with his wife, was alone at the time. All three went into the shop, went up to the counter and began to talk to the complainant. There were various acts of pointing at items on the shelving behind the counter and it was clear that each of them was seeking to distract him whilst others began to help themselves to bottles of spirits from behind the counter. When Mr Cochrane, who picked up a bottle was challenged, he swung the bottle at the complainant. Whilst this was happening at one end of the counter this appellant was leaning over the counter at the other end trying to reach cigarettes and other smaller items. At one point she lent right over the counter and took items out from underneath it. It is safe to infer from the CCTV footage that that was the point at which the bag of cash was stolen. She persisted in her efforts to retrieve property from underneath the counter and at one stage lost her balance and fell headfirst across the counter. She stood up and continued to take more bottles and more cigarettes. Whilst this was happening Mr Cochrane and the other man were also helping themselves to various items from behind the counter. Mr Cochrane was still wielding the bottle in a threatening manner. They were not in the shop for terribly long but they left a scene of considerable mess behind them. They had also taken the key to the complainant's car. That car was in fact stolen by Mr Cochrane sometime the following day. 3. When the appellant pleaded guilty she put in a written basis plea which read: "1. I stole the cigarettes and alcohol from the shop on 27/2/16. 2. I did not use force or threaten violence. 3. There were no prior plan to use violence or threats. Cochrane waved the bottle at the shop keeper. This caused him to back away from me. I then opportunistically took advantage and carried on stealing. 4. Only on that basis do I accept that I am guilty of robbery." 4. This was clearly, as the learned Recorder observed, an incident in which three people acted in consort: they went in together; they tried to distract the shopkeeper whilst others of the group sought to steal property and indeed there were points at which the poor complainant was running up and down behind the counter whilst each of the two defendants (this appellant and Mr Cochrane) were attracting his attention. 5. He made a witness statement in which he said at page 2: "I was scared at this point and I took the spirit bottle to defend myself... [of one of the men he said] 'I'm going to kill you or knock you out' or something similar ... I was shaking with worry and panicking since the incident and I am not injured but it has been a bad experience." He also spoke of the loss of £1400 in cash, a quantity of cigarettes, alcohol and the keys to his car. 6. In approaching sentence the learned Recorder treated this as a joint enterprise offence. He put it in category B, "medium culpability" on the basis a weapon had been produced and there was a threat of violence. There is no challenge to that assessment of the culpability category. 7. Mr Fitt, in his skeleton argument and in oral submissions before us today, does take issue with the categorisation of harm. Category 3 in the Definitive Guideline of the Sentencing Council for Robbery, described as "street and less sophisticated commercial" identifies the feature of harm as "no/minimal physical or psychological harm" caused to the victim and "no/minimal detrimental effect on the business". 8. Those submissions were made in the court below and the learned Recorder considered them. He rejected the submission as, in the view of this court, he was properly entitled to do. This was a shopkeeper alone in an off-licence at about 10.15 in the evening, providing a public service. He was vulnerable to attack and he was attacked. He was shaken and scared and it was, on viewing the CCTV, albeit brief, nonetheless a frightening incident. 9. We do not accept the argument that this could not be described as more than minimal psychological harm. In any event in addition to the effect on him, there was clearly more than minimal detrimental effect on the business in the loss of £1400 in cash and items of property or stock. 10. This appellant has a bad record of persistent offending. She has previously served a custodial sentence and no criticism can be made once the offence is placed into category B2 of the learned Recorder's taking the proper starting point of 4 years. He then applied the correct level of credit for her late guilty plea and reduced that sentence accordingly. 11. The sentence imposed of 3 years and 7 months properly reflects the categorisation of this robbery. It is not unduly aggravated by the presence of previous convictions or indeed by the fact that, as is clear from the CCTV and all that can be known about this appellant, she was under the influence of either drugs or alcohol or both at the time of an incident in which three people went into a shop to carry out a robbery. 12. For all those reasons, despite the care and charm with which Mr Fitt has advanced his argument today, this appeal is refused.	{"ConvCourtName":[""],"ConvictPleaDate":["2016-07-20"],"ConvictOffence":["Robbery"],"AcquitOffence":["Theft"],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["3 years and 7 months' imprisonment"],"SentServe":[],"WhatAncillary":[""],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony"],"DefEvidTypeTrial":["Written basis of plea"],"PreSentReport":[],"AggFactSent":["Weapon produced","Threat of violence","Offence committed by group","Victim was vulnerable (alone at night in shop)"],"MitFactSent":["Guilty plea","No criticism for sentence reduction for plea"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Harm category should have been lower (minimal psychological harm and minimal business impact)"],"SentGuideWhich":["Sentencing Council's Definitive Guideline for Robbery"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Recorder was entitled to categorise harm as more than minimal psychological harm and more than minimal business impact; sentence properly reflects categorisation; correct credit for guilty plea; not unduly aggravated by previous convictions or intoxication"]}
No: 201302466 B4 Neutral Citation Number: [2015] EWCA Crim 1515 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 16th July 2015 B e f o r e : VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION LADY JUSTICE HALLETT DBE MR JUSTICE JEREMY BAKER MR JUSTICE KNOWLES - - - - - - - - - - - - - - - - - - - - R E G I N A v KYRONE DALEY - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr Moloney QC & Mr K Missouri appeared on behalf of the Appellant Mr W Boyce QC & Miss K Robinson appeared on behalf of the Crown J U D G M E N T 1. THE VICE PRESIDENT: Introduction On 16th April 2013, at the Central Criminal Court before His Honour Judge Kramer QC, the appellant was convicted unanimously of the offence of murder. On 17th April 2013 he was sentenced to custody for life with a minimum term of 22 years. His co-accused, Sanchez Thomas, was also convicted of murder and sentenced to life imprisonment with a minimum term of 25 years. The appellant appeals against conviction by leave of the full court. An application for leave to appeal against sentence has been adjourned to this court. 2. Prosecution case 3. Amir Tufail is the younger brother of the deceased Umar Tufail. They lived with their mother at Wharncliffe Road, Thornton Heath. Amir knew the co-accused Sanchez Thomas and had allegedly stabbed him during an argument. 4. On Sunday 15th July 2012, at about 4.30 in the afternoon, Umar, who looked remarkably similar to his brother, had just arrived back home, having been to the shops. He had delivered his purchases and was sitting in his red Vauxhall Corsa outside his home. A second Vauxhall Corsa, grey in colour, drew alongside. It was driven by Thomas. The appellant was the front seat passenger. Thomas and the appellant were very close friends. A shot was fired through the open front passenger window of the grey Corsa. The bullet went straight into the side of the head of Umar Tufail. The emergency services attended and he was taken to hospital, where he died the following day. 5. Expert evidence provided limited assistance on whether the shooter was the front seat passenger or the driver. A senior forensic scientist confirmed the shot came from within the grey Corsa and from the area of the nearside front passenger seat, but she could not say in which seat the person firing had been sitting. A pathologist stated that the gun would have been at least a foot away from the victim. 6. Following the shooting, the appellant turned off both his mobile telephones and disposed of them, his clothing and his footwear to thwart the police investigation. He travelled with Thomas by taxi to the home of Kyle MacDonald, where they remained for two hours or so. He then travelled with Thomas to the home of his girlfriend, Natasha Henry. 7. On numerous occasions after the shooting the appellant telephoned and met up with Thomas. He also resigned from his employment at JD Sports and obtained and partially completed an application for a passport. 8. The prosecution alleged that the shooting was an execution, a deliberate shot fired at almost point blank range, carried out in furtherance of an ongoing dispute between two rival gangs. Whoever was the gunman both men in the car were fully involved in the criminal enterprise to shoot and kill Mr Tufail. 9. Defence case 10. Although the appellant answered no questions in interview following his arrest on 6th August 2012, he did give evidence at trial. He denied any knowledge of the gun or of Thomas' intention. He claimed that Thomas had agreed to give him a lift. As they got into the car, Thomas slid something under the seat and placed a bag in the front passenger foot well. There was no-one else in the car. The two men set off. On the way, they stopped for petrol and he paid £5 towards it. To his surprise, Thomas then drove off their route and down Wharncliffe Road. He drove slowly and said "I swear that's Rems' brother's car". He drew alongside the red Corsa and spoke to the driver. Thomas worked himself up into a rage and moved the car so they were virtually touching. The next thing he saw was Thomas holding something black, which he realised was a gun. He froze and Thomas shot Umar in the head. This was the first he was aware there was a loaded firearm in the car. Had he known there was a gun, he would have got out and walked away. He would not have informed the police but he would have distanced himself. Thereafter he did as Thomas told him to distance themselves from the shooting because he was scared of Thomas. 11. Thomas' defence was that there was a third person in the car called Pauser and that it was he who leant forward and fired the shot through the open passenger window. Unfortunately for Thomas' defence, CCTV footage of the grey Corsa and DNA evidence undermined this version of events. 12. Trial Judge’s Directions on the law 13. The trial judge invited submissions as to the law before closing speeches. He had drafted provisional directions entitled "Murder and Joint Enterprise" and a separate document entitled "Guidance on steps to verdict". The judge proposed two routes to verdict, one for the gunman and one for the companion. The jury could convict the gunman of murder if he pulled the trigger intending to kill or cause really serious bodily harm, and the jury could convict the companion of murder if he was in the car with the gunman knowing the gunman had a loaded gun, helped or encouraged the gunman to fire it and intended to kill or cause grievous bodily harm. 14. The prosecution persuaded the judge to leave a third route to verdict, referred to as the Smith route after the decision in R v Smith (Dean Martin) and others [2009] 1 Cr App R 36 . The judge directed the jury in the following terms: They could convict the companion of murder if satisfied that he had (i) voluntarily joined or remained with the gunman; (ii) knowing that the gunman was armed with an illegal and loaded gun; iii) assisted or encouraged him to commit an offence other than murder, in this case the unlawful possession of a firearm and ammunition; and (iv) while doing so knew there was a realistic possibility that he, the gunman, might commit murder by firing the gun. The judge then expressly directed the jury that there must be knowing participation of some sort in what was expressly or tacitly agreed as joint enterprise, so that if the companion did not know the gunman was armed that person would be not guilty of murder. 15. Mr Moloney QC on behalf of the appellant, has argued three grounds in detail and mentioned a fourth in passing during today’s hearing. 16. Grounds 1 and 2 17. Grounds 1 and 2 were very much intertwined. Mr Moloney believes there is a very strong case that the jury must have chosen the third route to verdict and therefore convicted the appellant on the basis of ‘parasitic accessory liability’ and has focussed almost entirely upon it. He observed that the jury retired to consider their verdicts at 14.59 on 15th April 2013. At 15.34 on 16th April 2013 they retired to continue their deliberations after being given the answer to this question: i. "We seek clarification regarding route 3, 6(1). Does the question ask whether the companion assisted or encouraged the gunman to OBTAIN or possess the gun, i.e. did he help provide the murder weapon in the first place OR does the question ask whether the companion assisted or encouraged the gunman whilst they were in possession of the gun, i.e. they had the murder weapon already and was assisted in some way by a companion." 18. At the time no-one picked up on the jury's terminology. The judge understood the question to be focused on the point in time at which route 3 to verdict might be triggered. He believed the jury wanted to know whether they should focus on the issue of the companion’s role in obtaining the gun or his role in the car after the gun had been obtained. 19. The judge repeated his directions in full. He informed the jury that the second of the two alternatives they had posed in their question was the correct one for route 3. He directed them to focus on the time when the appellant and Thomas were in the car. 20. Mr Moloney, with the benefit of further reflection, now argues that the jury's question indicates confusion in the jury's mind as to route 3 to verdict, and claims the judge's answer to the question did nothing to resolve that confusion. The confusion, he says, is highly significant because of the timing of the question. If they followed the judge’s directions, the jury should only have considered route 3 if they were not convinced of the appellant's guilt under the first two routes. About half an hour after receiving the judge’s answer the jury returned their verdicts. This means they must have chosen the third route: parasitic accessory liability. 21. We spent some time during the course of oral submissions, and counsel spent some time in preparing their written submissions in addressing that issue. Here it was said that the crime of murder, crime B, flows from the joint commission of crime A, the possession of an illegal firearm and illegal ammunition. Mr Moloney advanced what he conceded was a novel proposition, namely that an offence of ‘Possession’ (be it drugs, firearms etc.) is unique because it is based on custody and control. If the Crown wished to found their case upon secondary accessory liability, it was not enough to prove that a defendant had assisted or encouraged the principal in possession of the gun, the prosecution had to go a stage further. They had to prove either that the defendant was a joint principal or that the defendant was an accessory and both the principal and he were in possession of the gun as part of a common purpose going beyond mere possession, for example, joint possession of the gun as part of a common plan to commit a robbery or to threaten. 22. Further, he insists, that the judge gave no guidance to the jury on how to determine whether an offence of joint possession has been committed. He complains that neither the concept of possession, let alone joint possession, was explained to the jury. The judge directed the jury that assistance or encouragement to the gunman to possess the gun was enough. Mr Moloney argued that was wrong in law. 23. On the directions given, Mr Moloney suggested it would be entirely possible that the jury equated assisting or encouraging the gunman in his possession with joint possession as a principal. Accordingly the appellant might have been convicted on the basis of his failure to denounce the possession, as opposed to his knowing participation in a crime. He postulated that the jury might have reached the conclusion that by remaining in the car, once he knew of the presence of the gun, and perhaps by saying, "It's your car, it's up to you", the appellant was thereby offering assistance or encouragement to Thomas in the possession of the gun. If so he was guilty of joint possession and became vulnerable to a conviction for murder. 24. Accordingly, he argued that the judge's directions were deficient in a number of respects. The jury should have been instructed: 25. That knowledge alone was not enough to establish joint possession. He referred us to the decisions in Searle [1971] Crim LR 592 and Montague [2013] EWCA Crim 1781 , where the court provided examples of what level of participation might be required for the offence of joint possession. 26. That presence, even with knowledge, is not enough to establish possession. (See Jacobs [2002] EWCA Crim 610 ). 27. That the passenger would be under no legal duty to get out of the car in circumstances where he was aware of the presence of the gun ( Jacobs). 28. That any assistance or encouragement had to be intentional. He relied upon a passage in Lord Kerr's dissenting judgment in Gnango [2012] 1 AC 827 , which he described as uncontroversial: i. "... for parasitic accessory liability to arise, Gnango and B would have to have a common intention to commit an affray, if affray is the crime on which Gnango and B are to be said to have jointly embarked. Whether or not a common intention is required for a joint offence of affray, it is most certainly required for parasitic accessory liability ... The essence of parasitic accessory liability is that there is a common purpose , and in the course of furthering that common purpose , the principle goes beyond what was agreed but the secondary participant foresaw the possibility of this occurring. The sine qua non of parasitic accessory liability, therefore, is the existence of a common purpose". 29. We have added emphasis to the words common purpose because Mr Moloney relied upon them, claiming that there must be a common purpose over and above mere possession of the firearm which the Crown has here failed to establish. 30. Mr Moloney also took exception to the examples that the judge gave the jury on what might constitute participation by the companion, for example keeping a look-out, preventing people leaving or intervening, and being present encouraging and ready to join in as and when required. Such examples may be relevant to the standard direction on joint enterprise but Mr Moloney would have preferred the judge to choose examples ‘better tailored’ to the facts of this case. 31. He claimed that at most the jury may have found the appellant guilty of possession of a firearm on "a legitimate journey with no target or additional crime in mind" and this is insufficient in itself to found a conviction for murder. He relied on another passage from Gnango . Lord Phillips, President of the Supreme Court, and Lord Judge CJ observed at paragraph 41: i. "We would consider it undesirable, however, if a practice developed of relying on the doctrine of parasitic accessory liability to charge with murder parties to an affray who had not themselves intended that it would result in serious injury." 32. Mr Moloney submitted it must be undesirable to extend parasitic accessory liability to the facts of this case and convict a man of murder who did not intend to commit any crime, let alone one of violence, beyond the joint possession of a firearm. Even in what he called the “foundational case of parasitic accessory liability”, Chan Wing-Siu [1985] AC 168 , the Privy Council did not envisage the doctrine being extended that far. At 177D-E Sir Robin Cooke observed: i. "Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences ..." 33. Mr Moloney interpreted those remarks to mean that they were limited to criminal enterprises such as robbery undertaken whilst carrying dangerous weapons, not criminal enterprises whose beginning and end was the possession of the weapon. Expanding the doctrine of parasitic accessory liability to include this appellant in this case would, he argued, cause enormous injustice and real public concern. 34. Ground 3 35. This ground was based on what is said to be a factual misdirection by the judge. In his summing-up the judge reminded the jury that the appellant had said that had he known of the presence of the firearm, he probably would not have told the police and he probably would not have got out of the car. This was based on the following passage from Mr Boyce’s cross-examination of the appellant: 36. Q: "Would you have got out, gone to a police station [to report]?". 37. A: "Probably not no". 38. In re-examination, the following questions and answers were recorded: a. Q. And you were asked if you would have reported Sanchez's comments to the police if you had found the firearm and you said no? b. A: Yes, that's correct. c. Q: Would you have done anything? d. A: I would have got him [sic] out of the car and I would've left him. I would've distanced myself from him." 39. Both Mr Boyce and Mr Moloney, for perfectly understandable reasons, misremembered Mr Boyce's entire question. They believed he had restricted his question to the one: ‘Would you have reported the gun to the police?’ Mr Moloney was, therefore, concerned about the way in which the judge left this evidence to the jury. He informed the judge that the appellant had said in cross-examination that he probably would not have told the police about the gun. He insisted, supported by Mr Boyce, that the appellant had not been asked about getting out of the car. 40. The judge then called the jury back in, as he thought, to correct the misdirection. He told the jury that in cross-examination the appellant had said that he knew about the gun, he probably would not have got out of the car and he probably would not have told the police, and in re-examination he had said he would have got out of the car. 41. Mr Moloney was not satisfied. He again invited the judge to amend the direction because he considered it to be important to the issues in route 3. The judge refused to do so because he felt the difference between what Mr Moloney was asking him to do and what he had already done was insignificant and the summary that he had given reflected his note of the evidence. 42. Mr Moloney maintains that this was a misdirection of fact which is highly significant: it had central relevance to the issue of whether the appellant was in joint possession of the firearm. The jury were incorrectly told that the appellant would have willingly travelled in a vehicle that contained a loaded firearm when his evidence was that he would have got out of the car. The jury may have noticed an inconsistency on a highly material matter; an inconsistency that they may have taken as a lie. Consistency is an important feature of credibility and the judge undermined the appellant’s consistency and therefore credibility on a false basis. 43. Ground 4 44. Somewhat belatedly, Mr Moloney sought leave to add an additional ground of appeal, namely that where “encouragement to a joint enterprise” is alleged, the judge should direct the jury not to convict unless they are sure that the defence knew the use of a fatal weapon was a “real probability”. He acknowledged that he had no arguments to advance under the present state of the law and he did not seek to develop this ground in his oral submissions. He wished "to preserve the position of the appellant whilst awaiting the decision of the Supreme Court in Jogee ". For those who are unaware, the Supreme Court will be considering an appeal in which the issue of the appropriate scope of the doctrine of joint enterprise may arise for determination. 45. Conclusion 46. We are indebted to Mr Moloney and Mr Missouri for their submissions, and to Mr Boyce and to Miss Robinson for their very full response. We do not need to refer in detail to the latter, but it was of great assistance. 47. Our conclusions can be summarised as follows: (i) The judge's directions on the law were sufficient. (ii) This was an appropriate case in which to leave open to the jury a verdict on the basis of parasitic accessory liability. (iii) Any misdirection, if there was one, on the facts was not significant in the overall context of the summing-up. (iv) Ground 4 is simply not arguable on the present state of the law. 48. Grounds 1 and 2 49. We are concerned only with the judge’s directions on the third route to verdict, parasitic accessory liability. We were not persuaded that route 3 was necessarily the route chosen by the jury but for the purposes of the appeal against conviction, we are prepared to accept that it may have been. 50. In our view, the judge’s directions on route 3 cannot be criticised. The judge left the route to them expressly on the basis that the companion knew the gunman was armed with an illegal loaded firearm and foresaw that he might use it to kill with murderous intent; nevertheless, he remained with the gunman and he encouraged him in its possession; the gun was then used to murder. Such a direction is in line with the relevant definitions of parasitic accessory liability in Gnango and its formulation follows Smith (Dean Martin) . 51. It is true that the judge did not specifically and in one sentence direct the jury that mere knowledge of the existence of the firearm was not on its own sufficient to establish joint possession, that the companion was under no legal duty to get out of the car, and that encouragement had to be intentional, in the way that Mr Moloney now wishes. It is also true that he did not separate out the concept of ‘possession’ and ‘joint possession’. But what he did do was set out in clear terms the elements of the offence and the findings of fact the jury must make to convict the companion. His directions, taken as a whole, were clear: the elements were cumulative and ‘passive participation’ namely knowledge of the existence of a firearm and voluntary presence would be insufficient to support a guilty verdict. 52. The examples the judge gave of what might properly amount to assistance or encouragement were pertinent because they were ways in which Mr Boyce had argued the appellant may have helped the gunman. The appellant may have been there as a look out so that it was no coincidence that the shooting occurred in broad daylight on a residential street at a time when there were no witnesses. We are satisfied the judge did tailor his directions and his examples to fit the facts of the case. 53. As far as the jury's question is concerned, we are not persuaded that it indicates any confusion. The use of the word "they" may have been referring to an individual and the use of the word "possession", as Mr Moloney appeared to concede, may well have been used loosely. We believe the judge was correct in his interpretation of the question. The jury wanted to know whether they should focus on the obtaining of the gun or on what happened in the car when considering route 3. The judge's answer was clear: the relevant time was when the two men were in the car and the weapon was in the car. 54. In any event, as Mr Boyce observed, there was ample evidence that the appellant had embarked upon a joint venture of possession of the loaded firearm and knowingly and voluntarily aligned himself with the gunman. He had a close and long-standing friendship with Thomas, he got into the car at the same time as Thomas placed the firearm and the ammunition into it, he knew there was a feud with Amir and that Thomas desired revenge, he and Thomas tracked the route taken by the victim for several miles, going out of their way to do so, they arrived on the same street within a matter of seconds or minutes of the victim and they ensured that the murder scene was free from potential witnesses. The appellant continued to associate with Thomas after he had witnessed, at close quarters, a cold blooded execution and they both then went to some lengths to cover their tracks. Finally, he told a large number of significant lies, including lies in relation to a memory card associated with his telephone, upon which there were images of a hand pointing a gun at someone's head. 55. In truth Mr Moloney’s complaint is not so much about the judge’s directions but about the very existence of parasitic accessory liability and its extension to cases involving possession of weapons. We reject the argument that ‘possession’ is a unique offence so that to found parasitic accessory liability the prosecution must go further and establish that both the gunman and the companion are joint principals in a criminal enterprise and or involved in a criminal enterprise above and beyond that of possession of the gun. There is no support for this novel proposition, either in the authorities or in logic. The examples given in Searle were merely examples of how, on the facts of that case, those involved might be said to be in joint possession of drugs. Montague is a very different case, as Mr Boyce pointed out, because the offence itself required not only possession of articles, but possession of articles with intent to use them to further fraud. 56. Further we reject the assertion that the principle of parasitic accessory liability should not be applied to cases involving possession of deadly weapons. Far from extending the principle too far, as it seems to us, this is exactly the kind of offence to which the principle (as long as it exists) should be applied. On the jury’s verdict the appellant lent himself to a criminal enterprise knowing a lethal weapon was to be carried and foreseeing it might be used to murder, as it was, and in his presence. 57. Whether or not the individual members of the court would have chosen to add a third route to verdict, of one thing we have no doubt, and that is that the judge was entitled to leave it on these facts. The significant feature of this case is that it involves a loaded gun. It should be remembered that the jury has rejected the appellant's case that he first knew of the gun when it was taken out and fired. They were satisfied that he was involved in a joint enterprise to shoot, or at the very least that he was involved in a joint enterprise to possess a loaded and unlawful firearm which was used to murder just as he had foreseen it might be. This was not some separate frolic of Thomas' own. The killing was very much linked to the crime of possession. There was here proved a joint unlawful venture from which the murder flowed. If, as Mr Moloney claims, (but about which we have our doubts) the prosecution could not prove that the victim of the murder or the time and place of the shooting had been identified, it would not undermine the appellant’s parasitic accessory liability. This appellant is in a very different position from those postulated by Mr Moloney who are either entirely innocent or have involved themselves in some low level criminal enterprise that they could never have foreseen would lead to murder. 58. Ground 3 59. In respect of the third ground, again we have our doubts as to whether or not there was an error in the direction. If there was, we note that when Mr Moloney first raised it, he considered it to be “a very small matter”, and it was only as his submissions developed that its importance seemed to grow. Further and most importantly, the judge summed up accurately the rest of the appellant's evidence on his knowledge of the existence of the firearm and what he would have done had he known of its existence elsewhere in the summing up. The judge reminded the jury that had he known of the firearm, the appellant claimed he would have left Thomas immediately. The part of the summing-up to which objection is taken must not be read in isolation but in the context of the summing up as a whole. 60. If there was an error, therefore, it was neither significant, nor material. It certainly does not undermine the safety of the conviction. 61. Ground 4 62. The present state of the law is clear: the prosecution do not have to prove the encourager knew that the use of a lethal weapon was a real probability. We refuse leave. 63. For all those reasons, the appeal against conviction is dismissed. 64. (Submissions followed on sentence) 65. Ground of Appeal against sentence 66. THE VICE PRESIDENT: We now turn to the application for leave to appeal against sentence. 67. The appellant is now 21. In 2009 he was cautioned for offences of criminal damage and assault. In 2010 he received a referral order for a public order offence. 68. The ground of appeal, as advanced by Mr Moloney in writing, is that the judge sentenced the appellant on the basis that he was culpable by way of route 2, rather than route 3. This interpretation, Mr Moloney argued, was at clear odds with that of the jury. Mr Moloney submitted that there could be no doubt that the jury must have convicted of route 3, in which case he was convicted on the basis he was in joint possession of the firearm with Thomas and foresee a possibility that Thomas might use the firearm with intent to kill during the journey. The judge was bound to honour that factual finding in sentence and, had he done so, he would have significantly reduced the culpability of the appellant and this would have resulted in a substantial reduction in sentence. He reminded us of the decision in Cairns [2013] EWCA Crim 467 , in which the court re-stated the recognised principle that a judge must honour the verdict of a jury after trial. 69. Conclusion on sentence 70. We considered those submissions before coming into court and Mr Moloney has not put anything further before us this afternoon. This is not a case where the jury has clearly followed one less culpable route. In any event, the evidence showed that this appellant lent himself to a criminal enterprise knowing that a potentially murderous weapon was to be carried, foresaw it might be used with intent to kill or cause grievous bodily harm and, far from disassociating himself, stayed with the gunman, even as the gunman became angrier and angrier, and encouraged the gunman in possession of the gun. He was involved in a gangland execution. The consequences for those who become involved in this kind of offence are severe. As young as this appellant was, we are satisfied that there is no arguable basis for concluding that the sentence imposed upon him of custody for life with a minimum term of 22 years was in any way excessive. Therefore the application for leave to appeal against sentence is also refused.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2013-04-16"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Custody for life with a minimum term of 22 years"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[20],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["CCTV","DNA evidence","Expert report/testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["offence committed as part of a gangland execution","use of a firearm","offender attempted to thwart police investigation"],"MitFactSent":["offender was young"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Misdirection on law regarding parasitic accessory liability","Misdirection of fact regarding defendant's evidence","Judge failed to direct jury on necessity of common purpose beyond possession","Judge failed to direct jury on intentional encouragement"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["offender lent himself to a criminal enterprise knowing a potentially murderous weapon was to be carried, foresaw it might be used with intent to kill or cause grievous bodily harm, and encouraged the gunman in possession of the gun"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["judge's directions on the law were sufficient","any misdirection on facts was not significant","no arguable basis for concluding that the sentence was excessive"]}
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IN THE COURT OF APPEAL CRIMINAL DIVISION Case No. 202202924 B2 Neutral Citation Number: [2024] EWCA Crim 212 Royal Courts of Justice Thursday, 18 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC REX V ARTIG MWAMI MAWEJA EMMANNUEL REPORTING RESTRICTIONS APPLY: THE 1992 SEXUAL OFFENCES ACT __________ Transcript prepared from digital audio by Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ No Representations _________ APPROVED JUDGMENT ( Transcript prepared using poor quality audio recording ) MR JUSTICE CHOUDHURY: The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Accordingly, no matter relating to the complainants shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as being the victim of these offences. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. 1 On 21 September 2022, in the Crown Court at Oxford before HHJ Daly, the applicant, then aged 24, was convicted of five offences of sexual assault. On 21 October 2022, the applicant was sentenced to 8 weeks’ imprisonment consecutive for each of the five counts of sexual assault, a further 8 weeks’ consecutive for another count of sexual assault on a different indictment and 2 weeks concurrent for another count of sexual assault. The total sentence was 48 weeks’ imprisonment. 2 The applicant seeks to renew his application for leave to appeal against conviction, leave having been refused by the single judge. 3 The background is as follows. In the early evening of 10 November 2020, four women who were out in the Wantage Road area of Didcot when they were unexpectedly approached by a person described as a black male, approximately 6 feet tall, who slapped or grabbed their bottoms. 4 On 12 November 2020, another woman complained that, whilst walking home from work in the Broadway, Didcot, her bottom was grabbed by a black male who asked if she wanted a kiss. He was described as being 6 feet tall and wearing a blue hoodie. 5 Following the various reports of sexual assault, police commenced patrolling the area on 13 November 2020. The applicant was observed wearing similar clothing and matching the description of the person responsible and was arrested. 6 On 15 November 2020, the applicant attended the police station; he confessed that he was guilty of the offences. He subsequently sought to retract that confession, stating that he only made it in order to protect his family from unwanted attention. 7 There was CCTV evidence placing the applicant in the vicinity before or immediately after the assaults had taken place. The applicant accepted that in many parts of the CCTV the image was of him but explained that he was simply out walking. 8 The complainants gave evidence, the details of which are contained in the Criminal Appeal Office Summary and are not repeated here. Clothing from the complainants was examined and found to contain no DNA from the applicant. The results of that examination are contained in a report prepared by Suzanne Winter of Cellmark Forensic Services (“the DNA Report”). Evidence as to the content of the DNA report was given at trial. The applicant denied the offences in police interview. 9 The issue for the jury at trial was whether they could be sure that the applicant was the person responsible for the assaults. By a majority of 11 to 1, the applicant was convicted. 10 He seeks leave to appeal against that conviction. He contends that the conviction is unsafe, principally because the DNA report was not placed before the jury. He also contends that the CCTV evidence did not show him committing any of the offences, that identification procedure was not conducted and that he was at a disadvantage at trial because he was unrepresented. 11 In refusing leave, the single judge said as follows: “The applicant is right that there is no DNA evidence against him, that there was no identification evidence against him and that the CCTV does not show him committing any offence. However, the CCTV evidence did show that he was in close proximity to each of the complainants shortly before or after each complainant says that she was sexually assaulted. If he is innocent, that is a remarkable coincidence. Although there was no DNA evidence, and the jury was reminded of that in summing-up, there was evidence that the lack of DNA material was not inconsistent with the complainants’ accounts. There was no identification evidence because the offender was masked. There was a sufficient circumstantial case against the applicant. His convictions are not arguably unsafe.” 12 Having reviewed the matter afresh, we agree entirely with the single judge that the applicant’s convictions are not arguably unsafe. The fact that there was no DNA evidence was made absolutely clear to the jury during the judge’s summing-up. Indeed, it was, at the applicant’s request, the final piece of evidence of which they were reminded before retiring to deliberate. The fact that they were not shown the actual report of the DNA findings would not assist them. Such evidence is rarely presented directly to the jury, but is the subject of live evidence, as it was in this case. That evidence was fairly summed-up by the judge. 13 For these reasons, leave to appeal is refused. __________	{"ConvCourtName":["Crown Court at Oxford"],"ConvictPleaDate":["2022-09-21"],"ConvictOffence":["Sexual assault"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Oxford"],"Sentence":["8 weeks’ imprisonment consecutive for each of five counts of sexual assault","8 weeks’ consecutive for another count of sexual assault on a different indictment","2 weeks concurrent for another count of sexual assault","Total: 48 weeks’ imprisonment"],"SentServe":["Consecutive","Concurrently"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[24],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["five"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Complainant testimony","Expert report/testimony"],"DefEvidTypeTrial":["Offender denies offence","No DNA evidence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["DNA report not placed before jury","CCTV did not show applicant committing offences","No identification procedure conducted","Applicant unrepresented at trial"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No DNA evidence against applicant, no identification evidence, CCTV showed proximity to complainants, lack of DNA not inconsistent with complainants’ accounts, sufficient circumstantial case, convictions not arguably unsafe"]}
Case No: 200406685/A9 Neutral Citation Number: [2005] EWCA Crim 1543 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 9th June 2005 B E F O R E: LORD JUSTICE PILL MR JUSTICE OUSELEY MR JUSTICE DAVIS - - - - - - - R E G I N A -v- PAIWANT ASI-AKRAM - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR T LODY appeared on behalf of the APPELLANT MR A PEET appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE DAVIS: The appellant, Paiwand Asi-Akram, is now 18 years old but at the relevant times for the purposes of this appeal was 17. On 27th October 2004, in the Crown Court at Derby before His Honour Judge Hamilton, he pleaded guilty, on rearraignment, to three particular counts on an indictment: the first two counts, counts 1 and 2, being counts of rape and the third matter, count 4 on the indictment, being a count of attempting to choke, suffocate or strangle with intent to commit an indictable offence (being rape) contrary to section 21 of the Offences Against the Person Act 1861 . He was sentenced on each of these counts to 14 years' detention. The judge exercised his powers under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 , the appellant being under the age of 18 at the relevant time. The judge in fact expressed himself as imposing a term of imprisonment but it is plain that he intended to impose a term of detention. In addition, the appellant was recommended for deportation and it was a consequence of the sentence that he was required to register indefinitely under the provisions of the Sexual Offences Act 2003 . 2. It may perhaps be noted that in the initial stages of the argument before the judge he clearly had in mind the possibility of imposing an indeterminate sentence. The judge, however, was persuaded by counsel that, by reason of the appellant's then age, he had no power in law to impose an indeterminate sentence. It is now conceded before us that the judge did have such a power. The point now is academic. But we think it worth noting that the judge, at least initially, had that prospect in mind. 3. Against the total sentence of 14 years' detention the appellant appeals, having obtained the leave of the Single Judge. 4. The facts may be briefly stated for present purposes. They are, to say the least, disconcerting. In the early hours of the morning on a day between 26th December 2003 and 1st January 2004 a prostitute was working in Derby when she came across the appellant. He asked her how much she charged for full sex and oral sex and an agreement was reached that she would perform oral sex upon him for £10. They both went to some bushes but when she started to perform the sex act on him, he immediately became aggressive and demanded full intercourse. When she refused he became violent, forced her to the ground, placed both hands round her neck and got on top of her. He then pulled her clothes off, placed his hand over her mouth so that nobody would hear her screams and then forcefully penetrated her vagina with his penis. So violent was he that she genuinely believed she was going to die. He ejaculated inside her without wearing a condom. After that, he asked her to accompany him home but when she refused he raped her again in exactly the same manner and then ran off. 5. She did not make a complaint to the police initially, because she feared she would not be believed because of her vocation. In the end she did make a complaint when she heard on the grapevine that another woman had been assaulted in a similar way, in the same area of Derby. 6. That other victim was approached by the appellant in the early hours of the morning of 11th January 2004 as she walked towards a shop. He tried to engage her in conversation and asked her if she did business. She replied that she did not, but he followed her into the shop, followed her out again and persisted in his conversation with her, making her feel uncomfortable. When they reached some bushes, he produced a knife, grabbed her by the arm, pulled her into the bushes and pushed her to the ground. When she tried to get up, he pushed her down again and at this point she pleaded with him repeatedly to stop and told him she was frightened that he would kill her. He then pulled her trousers off and used the knife to cut away her underwear. After that, despite her kicks aimed at him, he got on top of her, pinned her down, placed one hand round her neck and pressed hard down with it so that she had difficulty in breathing. The more she struggled by trying to scratch him, the greater the pressure he exerted on her windpipe. She passed out momentarily and the next thing she recalled was him vaginally raping her, placing his finger inside her anus and trying to kiss her. He did not use any condom. He turned her over to change position, and as he did this, she grabbed her opportunity to run off, leaving most of her clothing behind. She ran to a group of her friends who were nearby and told them what had happened. 7. Both victims subsequently identified the appellant at identity parades. So far as the second victim was concerned, DNA materials in semen and also by reference to skin under her fingernails were found, implicating the appellant. 8. Shortly after this second attack, the appellant left Derby and made his way to Teesside. In the early hours of the morning on 23rd January 2004, he approached a prostitute in Middlesbrough. An agreement was reached whereby he would pay her £10 to perform oral sex upon him. They walked down an alleyway and the victim produced a condom which she placed on him and she then started to perform oral sex upon him. However, as with the previous two incidents, he became aggressive and violent and demanded full intercourse. Initially she agreed to do that for a further £10. When she asked for the extra money he became extremely violent. He grabbed her by neck and pulled her to the ground, in a headlock. She asked him to leave her alone but his response was to say that he was going to kill her if she did not do what she was told. She was terrified. He placed both hands round her neck and began strangling her as she shouted for help. She tried to poke his eye but he banged her head on the ground, knocking her unconscious. By the time she came round the police had arrived. As it happened the police had been alerted by a man who lived nearby, who had heard groaning noises in the alley behind his home. When that man went out to investigate, he saw the appellant leaning over the victim, punching her and grabbing at her with both hands. 9. When the police arrived the appellant was standing a short distance from her, with his trousers and underwear around his buttocks. The victim was initially motionless and blood was coming from her head. In the event she came round quite quickly although it is clear that she was disorientated as a result of what had happened. She was taken to hospital for treatment for her injuries. This Court has seen photographs of the injuries to the last two victims. They are unpleasant. 10. When the appellant was arrested and interviewed he said that he had beaten the third victim after she demanded that he pay for sex with her, had stolen some money from him and then attacked him. He claimed that he had beaten her in self-defence. As to the first two attacks, he maintained that he knew nothing about those at all. 11. Before the sentencing judge was a psychiatric report which had been obtained. That noted that there were certain difficulties in making an assessment because of the appellant's poor grasp of the English language (the appellant is by birth an Iraqi Kurd). The report, understandably, dealt in some detail on what appear to have been significant traumatic experiences suffered by the appellant whilst in Iraq and before he came to the United Kingdom. In the course of the report, the psychiatrist noted this: "Most vigorously and repeatedly he protested his complete innocence with regard to all the index charges." The psychiatrist noted that he presented as a very sullen young man, and that he had certainly no delusions as to guilt and, on the contrary, that he saw himself as a good person. He was distraught that no one seemed to believe in his innocence. The psychiatrist concluded that there was no evidence of any psychopathic or personality disorder, although the appellant was likely to have been traumatised by his past experiences in Iraq. We might add that since sentence was passed a prison report has been obtained. That reports on the appellant in terms which, it has to be said, are generally unfavourable and records instances of him threatening other inmates. 12. In the course of his sentencing remarks, the judge indicated that, in terms of appearance, the appellant seemed to him to be more likely to be something in the region of 22 years old or thereabouts: although the judge made it clear that he sentenced the appellant as a 17 year old and one who had never before committed any criminal acts. The judge then dealt with the mitigation, including age; referred to the psychiatric report; dealt with the facts of the case; and then said this: "You are, in my view, a very great danger to women and, as I have already said, only a very substantial term of imprisonment is appropriate." The judge acknowledged the plea of guilty that had been tendered and then proceeded to impose a sentence of 14 years' detention in total, as already noted, as well as recommending the appellant for deportation. 13. Mr Lody, who appears on behalf of the appellant today as he did in the court below, does not in the course of his realistic submissions in any way seek to minimise the seriousness of this offending, which he rightly described as "dreadful". Mr Lody does not seek to dispute the judge's finding that the appellant is a danger to women. Mr Lody expressly accepted that there is a high level risk of repeat offending. Further, Mr Lody does not dispute that a campaign of rape of this kind indicated a starting point, after a contested trial, of 15 years, having regard to the guidelines given in the case of R v Millberry [2003] 1 Cr App R(S) 25 . 14. Mr Lody, however, submits that a custodial sentence of 14 years is of an order which, he suggests, one would expect (assuming that is, as he does, that a life sentence was not to be imposed) in the case of an adult offender, even allowing for the plea. We would very much query whether a judge (assuming he passed a determinate sentence) would be restricted to a sentence of a maximum of 14 years for an adult, given the circumstances. But that, at all events, was the submission of Mr Lody. 15. In particular, Mr Lody emphasises the observations of the Court of Appeal in Millberry at paragraph 30, where in dealing with young offenders the Court of Appeal said that, like the Sentencing Panel, it concluded that a sentence should be "significantly shorter for young offenders". Mr Lody emphasises this point: although he does also add to it the point that the appellant did plead guilty at what the judge accepted was to be regarded as the earliest practical stage and thereby spared the victims from the ordeal of having to give evidence. But Mr Lody's real point is the age of this particular appellant. 16. We should perhaps add, by reference to Millberry , that a little further on in the judgment the Court of Appeal stressed that the Court should not adopt a merely mechanistic approach to guidelines and should look at all the circumstances in the round. 17. These were indeed very grave offences: in our view, amongst the very worst of their kind. The appellant showed complete disregard for the victims in each case. Extensive and gratuitous violence was used in each case. In the first case the rape was repeated. In the second, which is perhaps the most serious of all, a knife was produced and used to cut the victim's clothing. There was an attempt to strangle her. In the third case, again there was an attempt to strangle and the violence lasted for a significant period. In all cases quite significant injury was caused. Inevitably all three of the women victims were absolutely terrified; inevitably all three of them feared for their lives. 18. Quite apart from this being a campaign of rape, directed by the appellant at prostitutes, or women whom he regarded as prostitutes, there were here, therefore, significant aggravating features which by reference to the putative starting point, had also to be taken into account. Further, the appellant is, as Mr Lody accepts, a danger to women. The psychiatric report seem to indicate that he has no regard for his victims and indeed the impression one rather gets is that that appellant seems somehow to have contrived to persuade himself that it is he who is in some way the victim. There is no doubt, in our view, that the judge was justified in imposing a very significant sentence indeed given the circumstances. 19. But there remains the matter of the appellant's age. As we have said, the judge and the prosecution were prepared to accept that the appellant was 17 at the relevant times. The question then is whether that particular matter was sufficiently reflected in the total sentence which the judge imposed. 20. In our judgment, the observation of this Court in Millberry at paragraph 30, that in the rape cases the sentence should, in the case of young offenders, be "significantly shorter" than otherwise be the case of adults is a broadly general observation, which nevertheless admits of exceptions. It was not, in our judgment, designed to be one of invariable and inevitable application. In all such cases youth will always be a relevant consideration. But the extent to which it calls for a reduction (and, specifically, a "significant" reduction), by comparison to a sentence which otherwise would have been passed on an adult, nevertheless remains to be assessed by the sentencing court by reference to the circumstances of the case. There are cases of rape where the youth of the defendant can be said, in one sense at least, to play an operative part in the offence. But this most emphatically is not such a case. We bear in mind, too, that there may be greater prospects of rehabilitation in the case of younger offenders as compared to older and perhaps more hardened offenders. We do also bear in mind the point, well made by Mr Lody, that it is a particularly daunting matter, as far as a young person is concerned, if a very long sentence is imposed. 21. However, as against that, in this particular case there is to be borne in mind the very important consideration that, in the context of a campaign of particularly nasty and violent rapes, the appellant was found by the judge (and as is accepted) to be a serious danger to women. Overall, while the sentence may have been a severe one, in our view it was justifiably so. We dismiss this appeal.	{"ConvCourtName":["Crown Court at Derby"],"ConvictPleaDate":["2004-10-27"],"ConvictOffence":["Rape","Rape","Attempting to choke, suffocate or strangle with intent to commit an indictable offence (rape)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on rearraignment"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Derby"],"Sentence":["14 years' detention"],"SentServe":["Concurrent"],"WhatAncillary":["Recommended for deportation","Required to register indefinitely under the provisions of the Sexual Offences Act 2003"],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["3"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","DNA match","Identification parade","Photographs of injuries","Eyewitness testimony"],"DefEvidTypeTrial":["Offender denies offence","Claim of self-defence"],"PreSentReport":["High risk of reoffending"],"AggFactSent":["Campaign of rape","Significant violence","Use of a weapon (knife)","Attempt to strangle","Victims were terrified","Significant injury caused","Victims feared for their lives"],"MitFactSent":["Offender's age (17)","No previous convictions","Plea of guilty at earliest practical stage","Spared victims from ordeal of giving evidence","Traumatic experiences in Iraq"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["Sentence too high for age of offender","Sentence should be significantly shorter for young offenders"],"SentGuideWhich":["section 91 of the Powers of Criminal Courts (Sentencing) Act 2000","Sexual Offences Act 2003","R v Millberry [2003] 1 Cr App R(S) 25"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Very grave offences with significant aggravating features","Appellant is a danger to women","Extensive and gratuitous violence","Campaign of rape","Significant injury and terror caused to victims"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence justifiable given the circumstances","Judge was justified in imposing a very significant sentence","Youth was considered but did not warrant a significant reduction in this case"]}
Case No: 201204054 C4, 201204061 C4, 201204058 C4, 201204057 C4 Neutral Citation Number: [2014] EWCA Crim 54 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Snaresbrook Crown Court His Honour Judge Pardoe T20117679, T20117485, T20117487 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/01/2014 Before : LORD JUSTICE FULFORD MRS JUSTICE COX DBE and HIS HONOUR JUDGE WAIT - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Shelton Harvey, Emmanuel Laurencin, Yasemin Tutar and Levi Defreitas - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss J Gow (instructed by Bailey Nicholson Grayson for Mr Harvey ), Mr P Mostyn (instructed by Harters for Mr Laurencin ), Mr N Paul (instructed by TV Edwards for Ms Tutar ) Mr T Smith (instructed by Lloyds PR for Mr Defreitas ) for the Appellants Mr L Mably (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 25 October 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford : Introduction 1. On 31 May 2012 in the Crown Court at Snaresbrook the four appellants were convicted by a majority (11:1) of a number of offences for which they were sentenced on 19 July 2012 by HHJ Pardoe Q.C. as follows: Harvey i) Count 1: aggravated burglary – 12 years’ imprisonment. ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – 7 years’ imprisonment on each count. iii) Counts 7, 8, 9 and 10: possession of ammunition without a certificate – 18 months imprisonment on each count. All the sentences were to be served concurrently with each other, making a total of 12 years’ imprisonment. Laurencin i) Count 1: aggravated burglary – imprisonment for public protection with a minimum term of 6 ½ years. ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – imprisonment for public protection with a minimum term of 6 ½ years. iii) Counts 7, 8, 9 and 10: possession of ammunition without a certificate – 18 months imprisonment on each count. All the sentences were to be served concurrently with each other resulting in a sentence of imprisonment for public protection (“IPP”) with a minimum term of 6 ½ years. Defreitas i) Count 1: aggravated burglary – imprisonment for public protection with a minimum term of 9 ½ years. ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – imprisonment for public protection with a minimum term of 9 ½ years. iii) Count 11: intimidating a witness – 4 years’ imprisonment. iv) Count 12: perverting the course of justice – 4 years’ imprisonment. All the sentences were to be served concurrently with each other resulting in an IPP with a minimum term of 9 ½ years. Tutar i) Count 1: aggravated burglary – 7 years’ imprisonment. ii) Counts 2, 3, 4, 5 and 6: possession of a prohibited firearm – 7 years’ imprisonment on each count. iii) Counts 7, 8, 9 and 10: possession of ammunition without a certificate – 18 months imprisonment on each count. All the sentences were to be served concurrently with each other, making a total of 7 years’ imprisonment. 2. They each appeal against these convictions with the leave of the single judge and Defreitas renews his application for leave to appeal against sentence following refusal by the single judge. The issues on the appeal against conviction 3. The central issue as regards the appeal against conviction is whether the judge erred in admitting into evidence the signed witness statements from two critical prosecution witnesses, Asha Charles and Marlon David, as hearsay evidence. 4. There are two additional grounds of appeal. It is contended, first, that certain material relevant to the credibility of these two witnesses should have been admitted as a “counterbalancing measure” under section 124 of the Criminal Justice Act 2003 , and second – although leave was not granted on this ground – that the summing up was unfair and unbalanced, most particularly on the issues relating to the evidence of Charles and David. Some subsidiary matters, for instance relating to severance, have also been raised, and it is suggested that the judge relied on information relating to gang association and notoriety that the prosecution had decided not to deploy in support of the hearsay application. 5. Therefore, Charles and David did not give evidence during the trial. The judge gave two rulings on whether to allow the prosecution to rely on their written statements: the first on 9/10 January 2012 and the second on 30 April 2012. He decided that they were absent from court through fear. Additionally, David could not be found. The detail of the judge’s rulings are considered later in this judgment. The facts The aggravated burglary and firearms-related offences 6. It is convenient to deal first with the aggravated burglary and the firearms-related offences (counts 1 – 10). Asha Charles’s account 7. Charles set out in his written account – as read to the jury – that on Saturday 4 June 2011 he was at his home (Flat 4, Marie Lloyd House, Murray Grove, Islington, London) with David, who was a friend. This is a one-bedroom property with a living room that opens onto a balcony. 8. He was involved in a casual sexual relationship at the time with the fourth appellant, Tutar, and they had arranged by telephone to meet at his address that evening. She told him that she would only visit if he was alone, and as a result he did not mention that David was there. She was speaking on her mobile telephone as she arrived; she walked into the bathroom and the bedroom, and then announced she was going to the local shop. Charles asked her why she had not done this beforehand, to which she replied she had forgotten because she had been making a telephone call. He thought she did not see David who was sitting in the living room. 9. Charles heard a knock at the front door when Tutar returned; however, when he opened it, three men confronted him whose faces were covered with bandanas, and who were each holding handguns. One of them ordered him to hand over a valuable chain necklace, but Charles responded that it had been stolen. He told the men he had no money or jewellery and they had made a mistake, he had a 9 to 5 job and he did not have any drugs or money in the flat. He was ordered to sit down. One of the men pointed a firearm at him whilst another rifled through a jewellery box. Charles could hear the sound of doors opening and closing, as other rooms were searched. The men repeated the demand for money and the shortest of them asked one of his companions whether he should shoot Charles. Tutar, who appeared worried – albeit, not excessively – was also restrained. 10. The short gunman suddenly panicked and said that the ‘feds’ were outside. They were all in the bedroom at this stage and the men removed their bandanas and gloves. They put one of the guns under the mattress. Charles was told to stay calm and he was instructed to inform the police that they were his friends. He nodded his agreement. 11. When police officers entered the flat, Charles initially told them that everything was fine and that there was no disturbance. However, he whispered to one of the policemen to search the bedroom and he was able to indicate the location of one of the guns. Thereafter, the police moved to arrest everyone in the flat including Charles and David, albeit Laurencin and Defreitas escaped. Marlon David’s account 12. David set out in his written account that he had spent the previous night at Charles’s flat and he was aware that Charles received a text or a telephone call from Tutar on the Saturday evening. Charles told David to stay in the living room for about 15 minutes while she was at the flat. David heard Tutar arrive and announce that she needed to get something from the shop. He went onto the balcony and then he returned to the living room. Thereafter, he tried to hold the living room door shut when he heard footstep, followed by shouting outside. However, one or more of the men who had entered the flat forced the door open – indeed, it came off its hinges. David fled to the balcony and attempted to gain access to the neighbouring flat via a bedroom window. He told the occupant (Dionne White) that there were men with guns robbing Charles’s flat. When she refused to assist, he slid down a drainpipe. He then informed a local shopkeeper, Ali Bilgili, that he had jumped from a flat that was being burgled by some men and he asked if he could use the telephone to call the police. Mr Bilgili refused. Finally, at a nearby kebab shop he was permitted to make a telephone call; however, instead of calling the police he panicked and called a friend, Lemar St. Marthe. David then left the kebab shop and intercepted a passing police car. He told PC McRea that his friend’s flat was being burgled. The officers went to the flat and knocked on the door. When they received no reply they forced their way inside, accompanied by David. The police evidence 13. The officers confirmed in evidence that on 4 June 2011 David approached a police car in Hackney, East London and said his friend’s flat was being burgled. When they forced their way inside because no one answered the door, Charles told them that he was with friends and that he did not need their assistance. The three male appellants were sitting on the bed in the bedroom, and when the police took their details only Shelton Harvey gave his correct name. 14. However, shortly afterwards PC Holland took Charles outside. He was shaking and he quietly asked to speak to the officer. Charles then told PC Holland that the men had entered the flat with guns which were hidden under the bed. The bedroom was searched and two handguns were found under the bed, and a third was discovered under the window. 15. Harvey and Tutar were arrested and cautioned, while Defreitas and Laurencin escaped via the balcony. Members of the public told the police the direction in which Laurencin had fled and they detained him. Defreitas was arrested on 7 June 2011 when he attended a probation appointment. 16. Laurencin answered questions in interview the next day, denying there had been a burglary and denying any involvement with, or knowledge of, the guns. He said he was in the area at the time and heard music coming from the flat. He went inside because he assumed there was a party. He fled when the police arrived as he had just bought some cannabis and did not want to risk apprehension, as he feared he would go to prison. 17. Harvey, Defreitas and Tutar did not answer any of the questions put to them interview. The initial accounts of Charles and David 18. Charles and David were held overnight in custody and were interviewed as suspects on 5 June 2011. Charles gave a full account and was released on bail. On the 24 June 2011 he was interviewed again when he made a statement under section 9 Criminal Justice Act 1967 and he was told that no further action would be taken against him. David gave a prepared statement but otherwise made no comment in interview. In his prepared statement and in his 5 July 2011 section 9 statement he indicated that he had no knowledge that firearms were present until told by the police. Other evidence 19. The police conducted a video identification procedure on 6 July 2011, and Charles identified Defreitas as one of the men who had entered his flat on 4 June 2011. He described him as the ‘loud one’. 20. During the course of the investigation, the police discovered that between 2 and 4 June 2011 a series of text messages has passed between Charles and Tutar. During this exchange, she asked when they were meeting up, and in reply he asked her when she was free. She told him she did not want to come to see him while his friends were at the flat. On the evening of 4 June 2011 Tutar was also in contact via text messages with Defrietas. Defreitas asked ‘is he alone?’ to which she replied ‘on his own’; Defreitas indicated ‘we need to get in’ and he asked ‘has he got his chain on?’ to which Tutar replied ‘he got his chain on’. These were sent 10 minutes before David approached the passing police car. 21. The firearms included a loaded Russian 9mm short calibre Baikal pistol with a silencer, a loaded German Weihrauch pistol (it had a fault with the trigger mechanism which meant that each shot required the trigger to be pulled several times) and a converted and loaded Russian 9mm short calibre Baikal gas pistol with a silencer. 22. The prosecution relied on the previous convictions of Laurencin and Defreitas. Intimidating a witness and perverting the course of justice 23. Counts 11 and 12 charged Defreitas with intimidating a witness and perverting the course of justice. Charles stated that on Friday 6 January 2012 he received a telephone call from Defreitas, who was in prison, during which the latter told Charles to draft and deliver a note to the judge explaining that his witness statement was false and had been made as a result of pressure from the police. On 11 January 2011 a mobile telephone was found in Defreitas’s laundry bag at Pentonville prison which had been in contact with Charles’s mobile telephone. The judge adjourned the trial, on the application of the prosecution, in order for these events to be investigated. The trial resumed on 23 April 2011 with a new jury and an application was granted to join a two-count indictment alleging the counts of witness intimidation and perverting the course of justice against Defreitas. We return to these events later in this judgment. Defence evidence at trial 24. Defreitas gave evidence during the trial. He said that Tutar had come to his house and told him there was going to be a small party at Charles’s flat, where there would be cannabis, drink and other drugs. She was intending to bring some friends, and she indicated she was prepared to have sex with him. He had been to similar parties with her in the past. As a result, he went to the flat with Tutar and Harvey, although Laurencin was not with them at that stage. On arrival they remained downstairs whilst Tutar checked if they could go up. He also wanted her to establish whether people of the “right type” were at the party. He explained that was the reason for the text Tutar sent suggesting Charles was on his own. When he indicated by text they would need to get in he was referring to the security downstairs and the word ‘chain’ this was a slang word for smoking weed or cannabis. He said that none of the appellants were responsible for the guns and they had not committed burglary. 25. As to counts 11 and 12, Defreitas said that a friend of Charles was in the same prison and lent him a mobile telephone. They spoke on several occasions and Charles offered to tell the truth in return for payment. The sum he mentioned was £10,000. Defreitas agreed to this proposal and they both worked out what he would say. 26. The other appellants did not give evidence; instead, they adopted the account given by Defreitas, and their defence was advanced on the basis that they had no knowledge of, or involvement with, firearms. In addition, reliance was placed on Charles’s suggested involvement with a criminal gang called ‘The Lordship Boys’ which was associated with firearms offences and drug dealing; the fact that cocaine was found in the flat; and his role in rap videos which extolled the virtues of serious crime. Against this background, it was suggested he had a motive to fabricate the account given to the police in order to gain an insurance policy against prosecution. The judge’s rulings on the statements of Charles and David 27. The prosecution applied for the statement of Charles (24 June 2011) and that of David (5 July 2011) to be admitted as hearsay evidence of their contents, under section 116 (1) and 116 (2)(e) of the Criminal Justice Act 2003 . Additionally, for David, the prosecution relied on section 114(1) (d) of the 2003 Act . The justification for the application was that on the date originally set for trial, 6 December 2011, Charles and David told the prosecution that they did not wish to give evidence because they were in fear. The case was adjourned to 8 th December 2011. The prosecution application was opposed by all defendants, who alleged the reason for the witness’s absence from court was not due to fear but because their witness statements were lies and they feared being exposed in cross-examination. 28. Charles made a further witness statement. He described how he had received indirect threats, suggesting that he should drop the case. In his judgment of 9/10 January 2012 the judge accepted that he was fearful of the consequences of giving evidence. Charles explained that his friends and family all lived in the Hackney area and if he attended court he would be “looking over his shoulder” for the foreseeable future. He indicated that he had had restless nights worrying about giving evidence; he had had to move home; and he covered his head with a hood when in public to avoid being recognised. Although special measures had been offered, his response was that: “I have considered giving evidence behind a screen, but as they know who I am it won’t help me. I am sorry that I can’t given evidence, but my life will be in issue if I do, or my family will get hurt, and I can’t have that risk … I do not wish to go to court.” 29. To begin with, Charles had been seemingly prepared to attend court, but he became ambivalent and by October 2011 fear on his part was markedly increasing. In particular, Charles spoke of his fear of reprisals from the Fellow’s Court Gang, of which he believed Laurencin and Harvey were prominent members, and Harvey especially was known as someone who was highly likely to involve himself in gang-related violence. Laurencin has a previous conviction for possession of prohibited weapons and ammunition. The judge concluded that both of these defendants have notoriety for violence such as to cause fear, and that Charles’s apprehension of reprisals from the Fellow’s Court Gang was objectively justified and well supported by evidence. Furthermore, Defreitas had been convicted of conspiracy to rob on 23 April 2007 and possession of a firearm with intent to endanger life on 25 June 2007, for which he received sentences of 4 and 7 years respectively. The latter offence was reported in the local press. He was released on licence on 25 March 2011. 30. David expressed concern about coming to court at the time he made his witness statement on 5 July 2011, and on 6 December 2012 he told the police that he would not attend court under any circumstances because he was fearful of reprisals. He indicated that if he gave evidence it would be unsafe for him to walk the streets of Hackney in the future. He intended to remain in Southampton until he believed it was safe to return to London. The judge found that he was a close friend of Charles and that the factors that caused Charles apprehension applied equally to David. On this basis, the judge concluded that his fears of reprisals if he gave evidence were objectively justified and were founded on sustainable evidence. That conclusion rendered it unnecessary for the judge to reach separate conclusions on whether David’s evidence should be admitted pursuant to section 114(1) (b) of the Criminal Justice Act 2003 . 31. Finally in this regard, the judge was unsure whether the fear on the part of Charles and David was attributable to actions of the three male appellants or others acting on their behalf, and his conclusions rested entirely on evidence of their notoriety that he considered, as just set out, was objectively justified and supported by the evidence. 32. Against the background of those conclusions, the judge addressed the provisions of section 116(4) of the Criminal Justice Act 2003 and Article 6(3)(d) of the European Convention on Human Rights, and in particular whether it was in the interests of justice to admit the content of Charles and David’s witness statements given both men were prevented by fear from giving evidence from the witness box. The judge engaged in a detailed consideration of the domestic and Strasbourg jurisprudence in this regard, and he focussed particularly on the decision of the Grand Chamber of the European Court of Human Rights in Al-Khawaja & Tahery v United Kingdom [2012] 54 EHRR 23, ECtHR (Grand Chamber) and the decision of the Supreme Court in R v Horncastle [2010] 2 AC 373 ; [2009] UKSC 14 (to be read with the Court of Appeal decision in the same case [2009] EWCA Crim 964 ; [2010] 2 AC 373 ). As the judge rightly acknowledged, he was bound by the decision of the Supreme Court. He concluded that the witness statements of Charles and David were not the sole evidence in the case against the appellants, in that there was other very significant evidence, and in particular he identified: (1) The res gestae statements of David to Dionne White and Ali Bilghili, made during the events on 4 June 2011. (2) Charles’s statement to PC Holland at the flat before the guns were discovered, when he was visibly shaking. This material, he concluded, was independently admissible under Section 120 of the Criminal Justice Act 2003 , and the content was wholly consistent with his witness statement. (3) The other corroborative evidence, such as the circumstances of Defreitas’s flight from the scene, and the CCTV footage showing David’s route from Dionne White’s balcony, through to the point when he approached PC McRae. (4) The fact that PC McRae heard the sounds of an argument from within the flat; and (7) The communication between Charles and Tutar and between Tutar and Defreitas. 33. The judge found that no offers of police protection and no offers of assistance to the witnesses to give evidence by way of special measures would have been effective. He identified a considerable body of material that was potentially admissible relating to the background and associates of the two witnesses, and Charles in particular. 34. In the result, the judge decided that it was consistent with Article 6 of the ECHR and the interests of justice to admit the statements of Charles dated 24 June 2011 and David dated 5 July 2011. 35. On 9 January 2012, while the judge was delivering his first ruling, Charles attended court with a note addressed to the judge in which he stated that the contents of his witness statement were false and that Defreitas was not guilty of any offence. Having completed his ruling on 10 January 2012, the judge adjourned the trial for further enquiries to be made. 36. The police took a statement from Charles in which he set out that Defreitas had made a series of telephone calls to him from prison using a mobile telephone that he should not have had in his possession. He said that Defreitas had told him to draft and deliver the note to the judge. As set out above, on 11 January 2012 a mobile telephone was seized from Defreitas’s laundry bag. 37. The trial was relisted on 23 April 2012 when the prosecution applied for leave to join a second indictment against Defreitas containing counts of witness intimidation and perverting the course of public justice. The application was unopposed and leave was granted. These counts became counts 11 and 12. The judge refused applications by Harvey and Laurencin to sever these additional counts. 38. On 30 April 2012 the judge reviewed his original hearsay ruling. A police officer gave oral evidence updating the court as regards the circumstances relating to Charles and David. In brief, the position was unchanged save that security at Charles’s home had been significantly increased, and the judge affirmed his original ruling, allowing the prosecution, additionally, to rely on the statement of Charles dated 10 January 2012. On 23 March 2012 Charles had been admitted to hospital with chest pains and breathlessness that was potentially attributable to stress. He remained fearful of giving evidence because of the risk of violence, and his concerns had been heightened because of the events concerning Defreitas. Charles additionally indicated that David did not want the police to have his telephone number because of the threats and the intimidation, and he wanted as few people as possible to know his mobile number. However, officers spoke with David on 28 March 2012 and 25 April 2012, when he said he was “entirely unwilling” to attend court because he was afraid of being shot. 39. Addressing Charles’s statement of 10 January 2012 the judge found that it was not the only evidence that Defreitas had been intimidating Charles and perverting the course of public justice. There was, in the view of the judge, ample independent evidence that Defreitas was involved in making illicit telephone calls. The judge’s rulings on the evidence relating to the character of Charles and David 40. On 4 May 2012, the judge ruled on the appellants’ application to adduce bad character material relating to Charles and David under sections 98 (a), 100 and 124 of the Criminal Justice Act 2003 . Broadly, the appellants sought to introduce material that related directly to the two witnesses and, additionally, evidence concerning their associates. The judge acceded to the appellants’ submissions as regards a broad range of material that was given in evidence via admissions (exhibit 4). By way of summary, this constituted Charles’s criminal convictions and a considerable amount of information concerning his life, including Charles’s known lawful sources of income; photographs of large sums of money on his telephone; the details of an anti-social behaviour order imposed on Charles in 2006 that revealed his membership of the Lordship South Gang, his involvement in drug dealing and instances of aggressive, annoying and intimidating behaviour on his part; reports relating to four similar events in 2006 (in relation to two of these events some considerable detail was provided); information about some of his associates, as revealed by the contacts on his telephone (one of whom was Lamar St Marthe who David telephoned when he escaped from the flat) – these included the criminal convictions for 5 of them (or offences with which they were charged) for supplying drugs, murder, possession of a firearm with intent to endanger life, affray, assault and possession of an offensive weapon; the character and background of Gavin Tuitt (linking him to the supply of heroin and gang violence) and further similar material relating to Lamar St Marthe, and David’s involvement in a violent gang-related incident in June 2009. 41. We need only focus on one aspect of this ruling, namely the complaint made of the judge’s approach in that it is suggested he applied an unduly narrow construction to section 124 Criminal Justice Act 2003 when he decided that bad character evidence in this context was admissible solely via the provisions of section 100 Criminal Justice Act 2003 . He said: “[…] section 124 is not to be taken to be permitting the admission of evidence going to the absent witness’ bad character or to the bad character of any other person. […] The absence of a witness does not allow the admission of evidence going to his bad character. ” 42. It is contended that as a result of the judge’s approach, four particular items of evidence were wrongly excluded: i) Evidence that on 12 October 2006 Charles had been involved “ in a very unpleasant gang street robbery and (he had) then made false allegations against the victim when apprehended”. In written submissions, the following facts are set out: “On 12/10/06 a male in Gosport Road E17 was followed by 3 young males, saying things like “this is our street you shouldn’t be here”. Three more males joined the group. The victim began to run but they punched and kicked him to ground taking his chain and iPod headphones. One of the attackers was believed to be holding a knife. The victim had grazing along the left side of his body and was still in a lot of pain the next day. Six days later he called the police and identified Asha Charles at a bus stop holding a blue bag as the main suspect. Charles was arrested and found to be in possession of very large knife. He denied the office stating that he had been with Lemar St Marthe the night before but couldn’t remember exactly what he was doing or where he was at the time of the robbery. He claimed that he had obtained the knife from a shop because he was in fear of being attacked by the male. Charles was living in the E17 area at the time, about half a mile from Gosport Road and was known to associate with others around the Gosport Road area. The victim later informed the police he did not want to pursue the case having previously stated that he was in fear.” It is to be noted that the complainant told the police he was worried for his life although he had not received any threats. He failed to attend at an identification procedure and he then made a withdrawal statement. The judge ruled that whether Charles was violent or was prone to violence was not an issue that arose in the case and the facts of this incident did not have any relevance to whether he had firearms in his possession. The judge then indicated: “There remains the issue of Asha Charles’ credibility, which is undoubtedly of substantial importance in this case. Whether this material potentially goes to Asha Charles’s credibility depends on whether this material is of substantial probative value in relation to that issue. To be that, it would have to, in my judgment, constitute evidence that Asha Charles had done was he is alleged to have done in (this) report. […] the complaint was made by someone who was not prepared to support it, and for the same reason given by Hughes LJ in Braithwaite at paragraph 20, I conclude that […] none of the material […] was any evidence that Asha Charles had committed the offences in question. I further conclude, therefore, that none of it is of substantial probative value as to Asha Charles’ character, and that […] this evidence is inadmissible.” ii) Evidence that the Lordship Gang, of which Charles was said to be a leading member, “ was linked to 5 firearms incidents over an 18 month period in 2005-6” . In written submissions, the following facts are set out: “The police intelligence report attached to the ASBO, links crime reports on the South Lordship estate to the Lordship South gang. It is noted that in 2005 there were 2 firearms incidents on the estate and that up to May 2006 there had been a further 3 firearms incidents. 26 “potential offenders” are listed, including: Chad Osbourne, Charles Leon St Marthe, Asher Adams (an alias of Asha Charles), Leonard Saunders, Dean Smith and Leon Hunt. Of these Dean Smith, Asher Adams, Leon St Marthe and Leonard Saunders are identified as “ASBO targets”.” The judge ruled: “[This] material […] is in the nature of bad character evidence, but cannot, in my judgment, be evidence of substantial importance in the context of the case as a whole because, again, it has the status of unproven and generalised allegation. The mere fact that it comes from a police intelligence report attached to the ASBO does not confer on it the status of reliable evidence against Asha Charles. In particular, the reference to guns […] appears to be a general observation as to the conditions on the estate. The expression ‘potential offenders’ speaks for itself. None of that material is admissible bad character evidence under section 100(1) (b). It is not admissible in evidence in this trial.” iii) “ Evidence from which it could properly and reasonably be inferred that Dean Smith, a close associate of Asha Charles, had been in possession of a firearm and ammunition in 2006 ”. In written submissions, the following facts are set out: “On 7 th October 2006 the police executed a firearms search warrant on 14 Ormond House, Hackney London N16 – the family home brothers Dean and Leon Smith. A loaded handgun was found in a closed basket outside the front door. In addition £760 cash, a bullet proof vest, digital scales and 13.8g heroin and a rock of crack cocaine were found in the flat. Leon Smith was not arrested till 22/3/07 at an airport after being refused entry to the USA. He was charged with possession of class A drug with intent to supply. Despite repeated attempts to arrest Dean Smith this was not possible until 17/7/07. He made no comment in interview but in a prepared statement denied living at the address. Neither brother was charged with possession of the firearm. The only other occupant was their mother Annette Smith.” Although we do not have a transcript of his ruling, it appears that the judge ruled in similar terms to the issues above, on the basis that R v Braithwaite [2010] EWCA Crim 1082 ; [2010] 2 Cr. App. R. 18 applied, and in particular paragraphs 17 and 22. iv) Evidence that Charles and St Marthe were stopped by the police on 17 June 2011 in a car hired under a false name, with masking tape around parts of the registration number in circumstances (given the character and background of both) from which it is suggested it could properly and reasonably be inferred that they were engaged in serious criminality. In written submissions, the following facts are set out: “On 17/6/11 a silver Ford Mondeo LR09 LCP hired under pseudonym was stopped on Forest Road, Waltham Forest at 0550. There was masking tape around the last three digits of the number plates and a strong smell of cannabis in the car. The three males in the car were Asha Charles (then on bail for the firearms offence in this case), “Lemar Peart” (an alias for St Marthe) and another. The three told the police they were on their way for a morning run.” The judge simply said: “ This discloses no material evidence at all. It is inadmissible.” The grounds of appeal against conviction 43. Mr Mostyn, for Laurencin, led the arguments for the appellants. He suggested, first, that the case depended overwhelmingly on the hearsay evidence from the two witnesses, which was “ very important ” and “ can properly be described as decisive ” in the sense that without it the Crown would not have had a case. He suggested that Charles and David could not be described as “ demonstrably reliable ”. They were not innocent bystanders, but instead had “ a decisive interest in the issue at the heart of the case – were the guns under Charles’s bed in his possession or had they been brought in by the defendants? ”. As Ms Gow for the appellant Harvey stressed, these two witnesses were potential offenders. It is contended that both men had been arrested as suspects and their history, background and associates made them witnesses who were both likely to be in possession of guns and to lie. The appellants observe that at least three demonstrable untruths have been established on the part of David: first, he misled Ali Bilgili and the kebab shop owner in his request to use a telephone to contact the police because he rang a “ criminal confederate St Marthe and (brought) him to the scene in breach of his bail conditions with £572 ”; second, he deliberately misled PC McCrae when he told him that a burglary was occurring and failed to mention that three guns were involved; and, third, he lied in his interview and witness statement when he denied knowledge of the guns. 44. The appellants accept that even if the hearsay statements are the “sole or decisive” evidence in the case that does not lead to its automatic exclusion, but it is noted that the importance of the hearsay evidence is a vital consideration when ruling on its admissibility and how it is treated. It is emphasised that the evidence must either be demonstrably reliable or its reliability needs to be capable of proper testing and assessment. The judge is required to consider the strengths and the weaknesses of the evidence against the background of its importance to the case as a whole, along with the tools available to the jury to test it. 45. Mr Mostyn submits that the judge erred when he observed “the more cogent the evidence of the absent witness, the less likely it is to be treated as decisive within the meaning of the rule, and therefore the more likely it is to be admitted into evidence at trial”. It is argued that instead the proper approach is to assess the importance of the evidence, and the greater its decisiveness “the more reliable (or capable of being properly tested as such) it must be shown to be if it is admitted”. Overall, it is argued that the judge focussed unduly and to the exclusion of other relevant considerations on whether the evidence of Charles and David was decisive. 46. It is suggested that the judge overstated the quality and extent of the independent evidence that supported the hearsay accounts. It is contended that the res gestae evidence was not free from the risk of concoction, distortion and fabrication, given particularly “ the apparent untruths uttered by David during and after the episode in question ”. It is argued that the early accounts from Charles should not have been viewed as providing independent support for the hearsay evidence because they came from the same impugned source. Mr Mostyn contends that the accounts of Charles and David could not be viewed as mutually corroborative because they shared a common motive or interest in lying. Indeed, the judge is criticised for his failure to address the issue of collusion in the summing up. It is suggested that the judge reached impermissible conclusions regarding the credibility, character and associations of Charles and David, and that improper reliance was placed on the gang membership of Laurencin and Harvey. 47. As regards the four items of evidence that were excluded, as set out above it is argued that the judge applied an excessively narrow approach. In essence, it is suggested that the introduction of bad character evidence relating to hearsay witnesses in this context is not dependent on satisfying the section 100 criteria, and that “ s.124 and the judgement in R v Horncastle clearly envisage a framework for the admission of material relevant to credibility that goes beyond the statutory bad character provisions and are explicitly intended event to place the defence in a better position than if the witness had been present. ” It is contended that the judge wrongly interpreted Braithwaite as curtailing the introduction of material of the kind excluded in this case. Furthermore, it is said that the judge wrongly focussed on the need for the evidence to have “ substantial probative value ”. The appellants’ contention is that there is greater scope for deploying material in these circumstances than if the witness had been present. 48. Turning to the criticisms of the summing up, it is suggested that the judge failed to provide the jury with a sufficiently robust caution as to the dangers of hearsay evidence of this kind and the extent of the disadvantages to the appellants in meeting evidence from witnesses who could not be questioned. It is contended that there was inadequate reference to the evidence that was to the discredit of the witnesses, to the fact that the evidence was not agreed and the need for the jury to take particular care with evidence of this kind. Mr Mostyn, for Laurencin, argues that this appellant’s case was inadequately summarised and there was improper focus on a suggested need for oral evidence when the jury were considering whether the prosecution case had been materially undermined. Discussion Admitting the hearsay evidence from Charles and David 49. The relevant statutory provisions are set out below. Section 116 Criminal Justice Act 2003 deals with cases where a witness is unavailable: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, (b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— […] (e) that through fear the relevant person is does not give (does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (3) For the purposes of subsection (2)(e) “fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard— (a) to the statement's contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and (d) to any other relevant circumstances. […] Section 114 concerns the admissibility of hearsay evidence: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)— (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it. (2) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings. Section 124 deals with credibility: (1) This section applies if in criminal proceedings— (a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and (b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement. (2) In such a case— (a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings; (b) evidence may with the court's leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; (c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself. Section 126(1) addresses the court's general discretion to exclude evidence: (1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if— (a) the statement was made otherwise than in oral evidence in the proceedings, and (b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. Section 78(1) and (2) Police and Criminal Evidence Act 1984 deals with the exclusion of unfair evidence (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.” Section 125(1) enables the judge to stop the case where the evidence is unconvincing: (1) If on a defendant's trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that— (a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and (b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury. 50. There are five central propositions, identified by Hughes LJ in R v Riat [2012] EWCA Crim 1509 ; [2013] 1 Cr. App. R. 2 at [2], that need to be addressed by judges when dealing with applications of this kind: a) the law is, and must be accepted to be, as stated in UK statute, viz the Criminal Justice Act 2003 (‘CJA 03’); b) if there be any difference, on close analysis, between the judgment of the Supreme Court in Horncastle and that of the ECtHR in Al-Khawaja …the obligation of a domestic court is to follow the former …; c) there are indeed differences in the way in which principle is stated, but these may well be more of form than of substance; in particular, the importance of the hearsay evidence to the case is undoubtedly a vital consideration when deciding upon its admissibility and treatment, but there is no over-arching rule, either in the ECtHR or in English law, that a piece of hearsay evidence which is ‘sole or decisive’ is for that reason automatically inadmissible; d) therefore, both because of point ii. and because of point iii., the Crown Court judge need not ordinarily concern himself any further with close analysis of the relationship between the two strands of jurisprudence and need generally look no further than the statute and Horncastle ; we endeavour to set out below the principal questions which must be addressed; e) however, neither under the statute, nor under Horncastle , can hearsay simply be treated as if it were first hand evidence and automatically admissible.” 51. The legal principles, reflected in 12 identified steps, that are generally to be applied in this context were summarised helpfully by Aikens LJ in R v Shabir [2012] EWCA Crim 2564 , as follows: 64. As a result of the decision of this court and the Supreme Court in R v Horncastle, and the decisions of this court in R v Ibrahim and R v Riat, the framework to be considered to decide whether hearsay evidence should be admitted pursuant to the statutory framework set out in Chapt er 2 of Part 11 of the CJA 2003 is clear. When it is sought to admit the hearsay statement because it is said that the witness will not give oral evidence at the trial “through fear”, so admission through the “gateway” of section 116(2) (e) is sought, the framework is, broadly, as follows: (1) The “default” position is that hearsay evidence is not admissible. (2) It is a pre-condition to the admission of a hearsay statement that the witness concerned is identified: section 116(1) (b) of the CJA. (3) The necessity to resort to second-hand evidence must be clearly demonstrated. The more central the evidence that is sought to be admitted as hearsay evidence is to the case, the greater the scrutiny that has to be undertaken to see whether or not it should be admitted as hearsay. (4) Although “fear” is to be widely construed in accordance with section 116(3) and, specifically, the fear of a witness does not have to be attributed to the defendant, a court has to be satisfied, to the criminal standard, that the proposed witness will not give evidence (either at all or in connection with the subject matter of the relevant statement) “through fear”. Thus a causative link between the fear and the failure or refusal to give evidence must be proved. (5) How it is proved that a witness will not give evidence “through fear” depends upon the background together with the history and circumstances of the particular case. Every effort must be made to get the witness to court to test the issue of his “fear”. The witness alleging “fear” may be cross-examined by the defence (if needs be in a voir dire), if necessary using “special measures” to assist the witness. That procedure may be possible but, in certain cases, may not be appropriate. (We interpolate to note that in R v Davies [2007] 2 All E.R. 1070 it was suggested that the courts are ill-advised to seek to test the basis of fear by calling witnesses before them, since that may undermine the very thing that section 116 was designed to avoid . ) (6) If testing by the defence is properly refused (after consideration) then “it is incumbent on the judge to take responsibility rigorously to test the evidence of fear and to investigate all the possibilities of the witness giving oral evidence in the proceedings”. The manner in which that should be done will depend on the circumstances of the case and upon the witness and will necessarily involve discussions with counsel as to approach and questions to be asked. For example, if a court cannot hear from a witness a tape recording or video of an interview on the question of his “fear” should, if possible, be made available. The critical thing is that “every effort is made to get the witness to court”. This issue is also linked to (7) and (8) below. 65. We continue with the framework. (7) In relation to the “gateway” of section 116(2) (e), leave to admit the statement will only be given if the conditions for passing through a specific “secondary gateway” are satisfied. They are set out in section 116(4) . Overall a court will only admit a statement under section 116(2) (e) if it considers that it is “in the interests of justice” to do so. In that respect, the court has to have specific regard to the matters set out in section 116(4) (a) to (c). (8) When a court considers section 116(4) (c), the court should take all possible steps to enable a fearful witness to give evidence notwithstanding his apprehension. “A degree of (properly supported) fortitude can legitimately be expected in the fight against crime”. A court must therefore have regard to whether (in an appropriate case), a witness would give evidence if a direction for “special measures” were to be made under section 19 of the Youth and Criminal Justice Act 1999. (9) In this regard it is particularly important that, before the court has ruled on the application to admit under section 116(2) (e), no indication, let alone assurance, is given to a potential witness that his evidence will or may be read if he says he is afraid, because that can only give rise to an expectation that this will, indeed, happen. If it does then the statement will have been admitted on an improper basis; the impact of the evidence will be diminished and that may have further consequences, e.g. an application to the judge under section 125 at the end of the prosecution case to stop the case. (10) When a judge considers the “interests of justice” under section 116(4) , although he is not obliged to consider all the factors set out in section 114(2) (a) to (i) of the CJA, those factors may be a convenient checklist for him to consider. (11) Once the judge has concluded that the specific gateways in section 116(4) have been satisfied, the court must consider the vital linked questions of (a) the apparent reliability of the evidence sought to be adduced as hearsay and (b) the practicality of the jury testing and assessing its reliability. In this regard section 124 (which permits a wide range of material going to credibility of the witness to be adduced as evidence) is vital. (12) In many cases a judge will not be able to make a decision as to whether to admit an item of hearsay evidence unless he has considered not only the importance of that evidence and its apparent strengths and weaknesses, but also what material is available to help test and assess it, in particular what evidence could be admitted as to the credibility of the witness and the hearsay evidence under section 124 . The judge is entitled to expect that “very full” enquires as to witness credibility will have been made if it is the prosecution that wishes to put in the hearsay evidence and if it is the defence, they too must undertake proper checks. 52. In R v Friel [2012] EWCA Crim 2871 , Gross LJ observed: 29. It is plain to us, therefore, that hearsay of any description is not to be nodded through or adduced as a matter of routine. There is no inflexible rule against admissibility of central (or sole and decisive) hearsay evidence, but, on a spectrum, the more central the hearsay evidence is, the greater the care required. Sometimes hearsay will be inadmissible or even if admissible the trial may need to be halted. But it is also necessary to keep in mind the public interest in securing the conviction of the guilty, as indeed it is always imperative to have regard to the acquittal of the innocent and the avoidance of miscarriages of justice. 53. Against that background, we note that the evidence that the two witnesses were in fear was of significant strength, and there was abundant material on which the judge could conclude that Harvey, Defreitas and Laurencin were all involved in, or connected with, violent gangs. Although it is suggested that the judge should not have relied on some of this material (because of the stance of the prosecution, as informally communicated to defence counsel), no submissions have been advanced to the effect that the information before the judge (which was extensive), and which he set out in his ruling on 9/10 January 2011, was inadmissible (as hearsay or otherwise), incorrect or misleading. Furthermore, when the judge revisited this issue in April 2012, the appellants then had the opportunity of reopening the basis on which the he reached his conclusions as to fear. Although the earlier stance of the prosecution was brought to the attention of the judge in a short written submission, seemingly there was no substantive attempt to persuade the court that the evidence in relation to gang membership and notoriety was unreliable. Furthermore, as Ms Gow for the appellant Harvey concedes, by that stage the telephone calls from prison by Defreitas were before the court. 54. We are unable to accept Ms Gow’s submission that the judge should have held a voir dire to establish whether responsibility for the existence of fear was restricted to only one of the appellants, because the judge would have been fully entitled to conclude that an important aspect of the underpinnings as regards the existence of fear had been established even if only a sole accused was responsible. In the context of alleged joint enterprise crimes of this kind, it is unrealistic to contend that the judge should have severed the case of the defendant in relation to whom there was credible evidence that he had been involved in recent and serious attempts to prevent a witness from giving evidence. The arguments in favour of a joint trial were strong – in all probability overwhelming – and an accused should not be able to secure a separate trial by perverting the course of justice and intimidating a witness. 55. Additionally, the police were regularly in contact with Charles (and less frequently with David who, for a period, was unavailable) and, contrary to Mr Smith’s submission on behalf of Defreitas, every reasonable effort was made to get them to court. The witnesses were unequivocal in their refusal to attend to give evidence, and given the precise nature of the fear they expressed – the straightforward and potentially dire consequences of testifying – the range of “special measures” that were available would not have alleviated their concerns, as the judge made clear in his ruling of 30 April 2012. The evidence before the judge as regards fear extended considerably beyond the issue of gang membership. There was a considerable body of relevant and admissible material that was directly relevant to the issue of the absence of the witnesses. We add there is a critical difference between taking all reasonable steps to secure the presence of the witness during the trial and not requiring him to given evidence during a voir dire for the purposes of investigating the suggestion of fear (see R v Davies , above). 56. As regards the significance of the evidence of these two witnesses, the judge clearly accepted the accounts from Charles and David constituted very important evidence in the case, and he concluded, in our view wholly correctly, that there was other, highly significant material in the case that corroborated the contents of their statements, which in turn were mutually supportive. Both witnesses had provided accounts of these events on 4 June 2011, in advance of making their statements on 24 June and 5 July 2011. David had spoken with Dionne White, the occupant of the adjoining flat. In her statement she set out the following: He was pacing and said ‘They’re robbing the house and they have got guns’. 57. Very shortly afterwards, David spoke with Ali Bilgili, who put the matter thus: […] (the) male came in and said ‘Please help me’. He was saying there men in the house with guns and were going to shoot him. He looked very scared and was in a panic. He said that he jumped down from the second floor. He asked to use my phone to call police. 58. PC McCrae was on duty in a police car in Murray Grove when: “ A man I now know to be Marlon David approached and tapped on the window of the marked police car I was driving. He looked very upset and out of breath. I asked David was wrong. He stated that his friend’s address was being burgled by a group of males who had forced their way in and he had jumped the balcony to escape and get help. David directed us to Flat 4, Marie Lloyd House. 59. The CCTV footage shows David descending a drainpipe from the upper floor of Marie Lloyd House and running into Mr Belgili’s shop, then going to the kebab shop and ultimately stopping Mr McCrae’s motorcar. 60. The judge bore in mind that in his prepared statement of 5 June and his witness statement of 5 July 2011, David denied knowledge of the guns. The judge concluded that this contradiction with his statements to Ms White and Mr Belgili did not diminish the reliability of the res gestae evidence because the original accounts were given before any possibility of distortion had arisen. The likelihood was that the falsehood came into the later statement, after David had spoken with Lemar St Marthe. 61. After the police entered the flat, two officers took Charles outside. PC Holland stated: Once outside, I could see that he was visibly shaking. He said ‘Can I talk to you?’ in a very quiet voice. I said ‘Yes, tell me what’s going on’. He replied (again, in a very hushed voice), ‘Those boys in there came in with guns. They’ve hid three under my bed’. 62. Laurencin and Defreitas then escaped via the balcony. 63. As set out above, the prosecution relied on the text messages between Tutar and Defreitas, set out above [20]. The cell site evidence places the four appellants “together” shortly before these events. 64. In his interview on 5 June 2011, Charles described how one of the men was wearing a black and white bandana and a hoodie, and there is DNA evidence that a bandana linked to Defreitas was found under the bed. 65. As regards the threats by Defreitas, there was strong supporting evidence that this appellant was in possession of an illegitimate telephone and that he had been in contact with Charles (the telephone records and CCTV evidence). The fact that by 9 January 2011 Charles was aware that his statement of 24 June 2011 was to be read does not affect the admissibility of his statement of 10 January 2011 in which he set out the recent intimidation and contact by Defreitas. Although the fact that the witness has been informed that his statement may be read is a relevant – indeed, frequently a determinative – consideration (see Horncastle [87]), it does not result in an automatic ban to introducing the hearsay statement. It is not suggested in this case that the police improperly informed Charles that his evidence was to be read, given Defreitas’s telephone calls – which prompted Charles’s second statement – occurred shortly before the commencement of the trial. Therefore, the need for an additional statement was the direct result of the actions of one of the appellants and the caution expressed by Hughes LJ does not apply on these facts: 87. […] it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the CJA 2003 based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all. 66. In all the circumstances, there was strong additional evidence that would have provided the jury with a proper basis for concluding that the accounts of Charles and David were reliable. It would have been open to the jury to decide that there had been no opportunity for the two men to construct a false account in advance of the statements they each made, and whilst these events were unfolding, because they did not have an opportunity to speak with each other. Therefore, although it was clear the res gestae evidence was to a significant extent dependent on what they each said – as the jury were wholly aware – this was of only slight, or indeed no, significance given the primary question the judge needed to ask when considering the admissibility of this res gestae evidence was whether the possibility of concoction or distortion could be disregarded ( R v Andrews (D.) [1987] A.C. 281 ). This was the judge’s entirely sustainable conclusion for if the risk of invention can properly be discounted, then the identity of the author of the statement is essentially unimportant. 67. The judge admitted a considerable body of material as regards Charles’s background and a more limited piece of evidence concerning David (as described above [40]) which would have assisted the jury in assessing important issues such as credibility and reliability. The jury would have been in no doubt that Charles, in particular, had links to individuals who had been involved in serious criminal offences, and this would have afforded the jury the opportunity of weighing the possibility that the guns had been brought to the flat by someone other than the three male appellants. The judge, by enabling the defence to establish this credible scenario, provided a critical protection for the appellants. 68. The judge gave all of these matters the most anxious and meticulous consideration. Although we agree with Mr Mostyn that decisiveness of hearsay evidence in this context does not diminish as its cogency increases (indeed, the opposite is likely to be the case), the judge clearly did not misdirect or mislead himself on this issue because he stated “[…] it is clear that decisive evidence does not as a matter of fact become less decisive because it is corroborated; it in fact becomes more decisive”. In all the circumstances – notwithstanding the allegation that Charles or David (or both) had been storing the firearms at the flat – he was entirely justified in deciding that it was in the interests of justice for the jury to receive this hearsay evidence: it was, prima facie , reliable and its strengths and weaknesses could be readily assessed. 69. As regards the four pieces of evidence that were excluded, the incident on 12 October 2006 in the Gosport Road area had no probative value, given the complainant had withdrawn his original allegation. There was no basis on which the jury could have concluded that his earlier (and discarded) account was to be preferred over his later withdrawal statement. The suggested link to five firearms incidents over an 18 month period in 2005-6 was equally lacking in any material substance: Charles’s was simply mentioned as a potential suspect without any evidence being provided to support the contention. This would have led to speculation on the part of the jury, and there was no proper basis on which they could have concluded that the police conjecture was properly founded. As regards the gun found outside 14 Ormond House on 7 October 2006, the Smith brothers were not charged with this offence and there was insufficient evidence for the jury to determine that either of them was responsible for this weapon: whether or not the gun was linked to the brothers was simply unknown. Finally, the fact that three men were in a car, hired under an alias, that smelt of cannabis on 17 June 2011 had no probative value as regards the issues in this case, and the known facts concerning that incident could not have led to the conclusion – as it is contended – that they were involved in serious criminality. 70. Mr Mostyn relies on the following part of the judgment of the Lord Phillips (with which all the members of the Supreme Court agreed) in R v Horncastle and Blackmore [2010] 1 Cr App R 17 ; [2009] UKSC 14 : 36. […] (i) Section 124 makes special provision for the admissibility of any material which it is contended challenges the credibility of an absent witness. The opposing party is enabled to put in evidence anything that which he could have put in if the witness had been present, but he may also put in material which, if the witness had been present, could only have been asked of him in cross-examination in circumstances where his answers would have been final; this puts the challenger to that extent in a better position than if the witness is present and is designed to help counterbalance the absence of cross-examination of the witness in person. 71. Counsel submits on the basis of this passage that anything that it can be contended tends to challenge the credibility of the witness is admissible. 72. Section 124 of the Criminal Justice Act 2003 is entirely clear on this issue: the accused is entitled to introduce “[…] any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings” and “evidence may with the court's leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party”. If the witness is present, the position is governed by section 100 (1) (b) of the Criminal Justice Act 2003 , the effect of which was explained by Pitchford LJ in R v Brewster and Cromwell [2010] 2 Cr App R 20 ; [2010] EWCA Crim 1194 : 21 […] the purpose of s.100 was to remove from the criminal trial the right to introduce by cross-examination old or irrelevant or trivial behaviour in an attempt unfairly to diminish in the eyes of the tribunal of fact the standing of the witness, or to permit unsubstantiated attacks on credit. […] 22. It seems to us that the trial judge’s task will be evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair-minded jury to reach a view whether the witness’s evidence is, or is not, worthy of belief. Only then can it properly be said that the evidence is of substantial probative value on the issue of creditworthiness. […] The question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair-minded tribunal upon the issue of the witness’s creditworthiness. […] It does not seem to us that the words “substantial probative value”, in their section 100(1) (b) context require the applicant to establish that the bad character relied on amounts to proof of a lack of credibility of the witness when credibility is an issue of substantial importance, or that the convictions demonstrate a tendency towards untruthfulness. The question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of the witness's creditworthiness. When the evidence is reasonably capable of giving assistance to the jury in the way we have described, it should not be assumed that the jury is not capable of forming an intelligent judgement whether it in fact bears on the present credibility of the witness and, therefore, upon the decision whether the witness is telling the truth. Jurors can, with suitable assistance from the judge, safely be left to make a proper evaluation of such evidence just as they are when considering issues of credibility and propensity arising from a defendant's bad character. 73. In our judgment, that approach applies when an absent witness’s credibility is in issue and for the reasons set out above, the evidence relating to the four items of excluded evidence was not reasonably capable of providing any substantive assistance to the jury: it was not sufficiently persuasive to be worthy of consideration on the issue of Charles’s credit. Evidence which, at best, can only provide a basis for speculation and which is incapable of leading to reliable conclusions will not materially contribute to the jury’s deliberations and should not be admitted. The judge’s approach was therefore, unimpeachable. 74. On the sufficiency of the summing up, it is argued that: i) the judge failed to indicate how the appellants were placed at disadvantage as a result of the absence of the witnesses; ii) there was inadequate reference to the material that discredited Charles and David; iii) the judge failed adequately to distinguish between the evidence that was agreed and the evidence about which there was dispute; and iv) the jury were not sufficiently instructed as to the care they should take over this evidence. 75. Additionally, it is argued that Laurencin’s case was inadequately summarised and there was an impermissible suggestion that only oral evidence was capable of undermining the impugned hearsay evidence. 76. We unhesitatingly reject these complaints. The judge made it clear that the appellants all challenged the statements provided by Charles and David, suggesting that they were untruthful accounts. He reminded the jury that their evidence had not been taken under oath in court, and it had not been tested by way of cross-examination. As a result he instructed the jury to examine their accounts with “ particular care”. He set out at considerable length the contents of the material that undermined the hearsay testimony (exhibit 4, as summarised above [40], and other related material contained in exhibits 12 and 13) and he described this material as being “ terribly important ” because “the credibility of the evidence of […] Charles and […] David in this trial is, I repeat, of the greatest importance and you will wish, as I have already said, to consider that question carefully”. Having read out the contents of much of this material to the jury (which formed part of their documents), he observed “ It is for you, looking at the evidence in exhibit 4 and exhibits 12 and 13, to assess whether and to what extent the previous behaviour of […] Charles and […] David may assist you in assessing their evidence. That, of course, is fundamental in resolving […] the fundamental issue in this case; whether the three male defendants before you did enter flat 4 as trespassers, having guns with them, as […] Charles says they did, having been let in by the fourth defendant Yasemin Tutar, or whether the defendants did not do that or may not have done that. The defendant’s case is that they had nothing to do with the firearms found in the flat by the police”. Later in the summing up, the judge, having reminded the jury of Ms White, said: “The other matter that I wish to draw your attention to is this. I addressed you, when I was considering the evidence of […] Charles and […] David, witnesses for the prosecution. I addressed you as to the care that you must take in relation to their evidence as prosecution witnesses who you have not heard giving evidence from the witness box”. 77. The judge at various junctures during the summing up reminded the jury that the defence of the accused was that they had not gone to the flat with guns and there was no attempt or intention to rob. It was suggested the guns were already in the flat before they arrived. The judge set out the appellant’s contention that David knew the guns were in the premises and that his account to Ms White and Mr Bilgili was designed to lay a false trail of lies to protect himself and Charles from any difficulty that may arise if the guns were later found at the flat. The weaknesses in the accounts of White and David, as identified by the appellants in argument, were rehearsed at length, and the judge highlighted the inconsistencies and the suggested deficiencies in their evidence, including in relation to other evidence in the case. 78. Finally, the observation by the judge that “[…] the only oral evidence before you capable of contradicting, undermining or explaining the case for the prosecution on Mr Laurencin’s part came from Mr Defreitas […]” was accurate: as set out above, Defreitas was the only appellant to give evidence, and it came immediately before a long section of the summing up in which the judge reminded the jury of Laurencin’s account to the police in interview; indeed, Mr Mostyn candidly made clear in his grounds of appeal that “the defence case for Laurencin was in line with his interview”. As we have just observed, the judge extensively rehearsed the potential weaknesses in the accounts of Charles and David, and in our view it is unsustainable to suggest that the jury may have been misled into considering that the prosecution case could only be undermined by oral evidence. The judge had made it entirely clear that the jury would need to look at the evidence of Charles and David with particular care in order to assess whether it was to be relied on. This was a careful and well-structured summing up, in which the judge reminded the jury of all the important matters of fact, and the law was set out with clarity. 79. In all the circumstances, these appeals against conviction are dismissed. Defreitas’s renewed application for leave to appeal against sentence 80. In passing sentence, the judge indicated that burglary by a group of four acting in this planned way with three of the offenders carrying loaded firearms, two of which had silencers and intending to rob the flat’s occupant, was an offence involving considerable violence. Bearing in mind the Sentencing Council’s guideline on sentencing for aggravated burglary, the judge concluded that there were two factors which indicated greater harm. The victim was at home at the time and violence was threatened by way of the three loaded firearms and the threats that were issued. As to culpability, four factors indicating higher culpability were present: the victim and his flat were deliberately targeted; there was a significant degree of planning; they acted as a group; and all three males carried a weapon, a fact of which Tutar was aware. The case fell into category 1 and it merited an upward adjustment from the starting point to twelve years. 81. Defreitas had relevant previous convictions and he had only recently been released from prison. Defreitas (and Laurencin) satisfied the criteria of dangerousness. Following his arrest for these serious offences Defreitas had deliberately sought to intimidate Charles and interfere with justice so as to abort the trial and avoid any risk of conviction. The judge concluded the offences were not sufficient to qualify for a life sentence, and an extended sentence would not adequately protect the public. Therefore the only sentence he could pass was imprisonment for public protection. Harvey and Tutar were given determinate sentences since they did not satisfy the criteria for dangerousness. 82. In summary, Defreitas submits that the increase applied in his case from 12 years to 15 years as a result of his previous convictions was excessive. Furthermore, it is highlighted that because the appellant was recalled to prison on licence for an earlier offence (see below) when he was arrested for the instant crimes, the period between 4 June 2011 and 19 July 2012 (when he was sentenced), to his detriment did not count towards the sentence that was passed. In the result, he received, it is suggested, a disproportionately longer sentence than his co-accused. Finally, it is contended on the basis of the principle of totality that the four-year sentence for counts 11 and 12 was excessive. 83. Defreitas had been convicted on 13 April 2007 at Harrow Crown Court of an offence of conspiracy to rob for which he was sentenced to four years’ imprisonment and on 25 June 2007 he was convicted of possessing a firearm with intent to endanger life, resulting in a sentence of 7 years’ imprisonment (and, as just set out, he was on licence from that sentence at the time of the present offences). This led to the three-year increase in his sentence. We agree with the single judge that the uplift imposed by the judge for his previous convictions and the breach of licence was entirely justified. His previous offending was relevant to the issue of determining the appropriate determinate term and in order to assess dangerousness for the purposes of an IPP. The type of sentence was entirely appropriate, as was the minimum term of 9 ½ years for the purposes of the IPP and the consecutive determinate terms of 4 years for intimidating a witness and perverting the course of public justice. 84. We refuse Defreitas’s renewed application for leave to appeal his sentence.	{"ConvCourtName":["Crown Court at Snaresbrook"],"ConvictPleaDate":["2012-05-31"],"ConvictOffence":["aggravated burglary","possession of a prohibited firearm","possession of ammunition without a certificate","intimidating a witness","perverting the course of justice"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Snaresbrook"],"Sentence":["Harvey: 12 years’ imprisonment (aggravated burglary); 7 years’ imprisonment on each count (possession of a prohibited firearm); 18 months imprisonment on each count (possession of ammunition without a certificate) – all concurrent, total 12 years","Laurencin: imprisonment for public protection with a minimum term of 6 ½ years (aggravated burglary and possession of a prohibited firearm); 18 months imprisonment on each count (possession of ammunition without a certificate) – all concurrent, total IPP with minimum 6 ½ years","Defreitas: imprisonment for public protection with a minimum term of 9 ½ years (aggravated burglary and possession of a prohibited firearm); 4 years’ imprisonment (intimidating a witness); 4 years’ imprisonment (perverting the course of justice) – all concurrent, total IPP with minimum 9 ½ years","Tutar: 7 years’ imprisonment (aggravated burglary); 7 years’ imprisonment on each count (possession of a prohibited firearm); 18 months imprisonment on each count (possession of ammunition without a certificate) – all concurrent, total 7 years"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["Mixed"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Witness statements (admitted as hearsay)","Res gestae statements","Police testimony","CCTV","Text messages","DNA evidence","Telephone records"],"DefEvidTypeTrial":["Defendant testimony (Defreitas)","Denial of involvement","Challenge to credibility of prosecution witnesses","Evidence of witness criminal associations"],"PreSentReport":[],"AggFactSent":["Burglary by a group of four","Planned offence","Three offenders carrying loaded firearms, two with silencers","Victim at home at the time","Violence threatened with firearms","Victim and flat deliberately targeted","Significant degree of planning","Acted as a group","All three males carried a weapon"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Conviction","Sentence (Defreitas only)"],"AppealGround":["Judge erred in admitting hearsay evidence of two prosecution witnesses","Material relevant to credibility of witnesses should have been admitted under section 124 Criminal Justice Act 2003","Sums up was unfair and unbalanced","Exclusion of certain bad character evidence","Sentence excessive (Defreitas)"],"SentGuideWhich":["Sentencing Council’s guideline on sentencing for aggravated burglary"],"AppealOutcome":["Dismissed (conviction)","Refused (Defreitas’s renewed application for leave to appeal sentence)"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Uplift for previous convictions and breach of licence was justified","Type of sentence and minimum term appropriate for dangerousness and seriousness"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge gave careful and proper consideration to admissibility of hearsay evidence","Sufficient independent corroborative evidence","Jury properly directed on how to treat hearsay evidence","Excluded bad character evidence lacked probative value","Sentencing uplift justified by previous convictions and dangerousness"]}
Neutral Citation Number: [2019] EWCA Crim 1575 No: 201901404/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 12 September 2019 B e f o r e : LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE MARTIN SPENCER R E G I N A v HARRY GOODMAN Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Miss A Byrnes appeared on behalf of the Appellant J U D G M E N T (Approved) MR JUSTICE MARTIN SPENCER: 1. This is an appeal brought with the leave of the single judge against a sentence of 32 months' imprisonment imposed by His Honour Judge Spragg in the Crown Court at Newcastle-upon-Tyne on 15 March 2019 for a single offence of being concerned in the supply of a controlled drug of class A, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant, born on 5 April 1998, pleaded guilty at the first opportunity on 11 July 2018. The reason for the delay between the date of conviction and the date of sentence was because the appellant's case awaited the outcome in relation to co-defendants. 2. The basis of this appeal is that the sentence reached by the learned sentencing judge before credit for plea was applied, namely four years' imprisonment, was too high and failed adequately to distinguish between the role of this appellant and the role of his co-defendants and that the learned judge was wrong in effectively treating all the three defendants (to whom we shall refer in due course) in the same way. It is submitted that the learned judge should have alighted on a sentence of two years or less and having done so the sentence should have been suspended. 3. The facts of this matter are that in the second half of 2017 undercover officers were engaged in the investigation of the supply of class A controlled drugs in Newcastle City Centre. Drugs were being supplied in association with the night life of the city which revolved around clubs and other licensed premises in the vicinity of the Cathedral. These clubs were supported by promotion companies which organised theme nights held throughout the week and the events were publicised by the promotion companies through social media, targeting in particular the young student population of the city. There were apparently seven such companies operating in Newcastle and the promoters had invitation lists for particular individuals, so as to ensure that the venues were busy and to encourage a feeling of exclusivity. 4. The appellant was a junior manager for one of these promotion companies. He was also a student at the university. His job was to stand outside one of the clubs on a Monday night and persuade customers to come in. 5. The undercover operation was a lengthy one involving many other defendants apart from the appellant. On Monday 18 September 2017, two undercover officers known as 'Kim' and 'Sarah' went to a club called Florita's. Outside the club they spoke with the appellant who was working there and asked him if he knew anyone from whom they could purchase drugs and he provided a phone number which was listed in his contacts as "coke". He asked them to take a screen shot of another number which was listed in his phone as "coke 2". He told them to ring the coke number and they would be met at the bus stop around the corner. 6. At 11.50 pm that night the undercover officer Sarah rang the number provided by the appellant and ordered two bags of cocaine which she was told would be £50 each and there would be a 15-minute wait before the drugs would be delivered in a black Vauxhall Corsa. The drugs were then delivered by one of the co-defendants, Sean Moulding, who called himself 'John'. He told Sarah to get into the car, saying he was conscious of the CCTV in the area. She got into the back of the car which drove off for about 100 yards, while Sean Moulding told the officers he was available to supply drugs up to 2 am on weekdays and 4 am on weekends. He supplied them with two bags of cocaine containing respectively 353 and 392 milligrams. 7. There were further exchanges of messages between the undercover officers and Paul Moulding on 24 and 26 September, and further drugs were supplied. Then on 2 October at 9.20~pm, the officers again went to Florita's where the appellant again was working. There was a conversation about the phone numbers of cocaine dealers previously supplied by the appellant to the officers and the appellant stated that the first number was the more reliable one; the second one was for a different dealer. The appellant told the officers that he was getting sorted from a mate who offered cheaper rates but he gave no further details at that stage. The undercover officer Sarah then contacted Paul Moulding and he supplied her with £50 worth of cocaine, again using the black Vauxhall Corsa motorcar. 8. There was a further supply of drugs on 11 October 2017 on which occasion the officers were met in a blue Nissan Qashqai driven by another co-defendant, Daniel Young. He told them he was a mate of Paul Moulding and that he might be working on Saturday. He supplied two plastic bags containing cocaine in exchange for £100. 9. On 17 October Sean Moulding supplied the undercover officers with £50 worth of cocaine from a white Fiesta motorcar. 10. On 25 October 2017 the officers tried the "coke 2" number but the call was diverted to voice-mail. Officer Sarah then received a text message asking who it was. She explained she got the number from Harry, whereupon "coke 2" replied asking her to get Harry to confirm that he gave her the number. So on 30 October the officers went back to Florita's and spoke to the appellant asking him to contact "coke 2", but he declined saying that "coke 2" often did not answer and he suggested that Sarah take down another number stored in his phone as "DD Kev". They were then later supplied with two bags of cocaine by Kevin Ashong who told them that he was available any time. There were further supplies of cocaine to the officers through Kevin Ashong through November and December 2017. 11. In addition, Paul Moulding sent out advertising messages so that on 22 September he texted "Charlie, MDMA and pingers let me know if anyone needs" and that was sent out to 21 different telephone numbers. This instigated over 400 drugs related messages exchanged between the Mouldings, Young and others on 30 September and 1 October 2017. 12. The appellant was arrested on 18 December 2017. In addition search warrants were executed at the homes of Paul and Sean Moulding. Paul Moulding was found in possession of eight packages of MDMA, two mobile phones and £1,300 in cash. Sean Moulding had a bag containing 339 milligrams of cocaine, a mobile phone and £310 in cash. A co-defendant, Kamar Hussain was arrested at the same time as Sean Moulding and a plastic pot containing five packages of skunk cannabis were found in his bedroom. A search warrant executed at a third address frequented by the Mouldings yielded 17 Ecstasy tablets, skunk cannabis, a quantity of MDMA, cocaine and other drug dealing paraphernalia. 13. The appellant was interviewed after his arrest and he immediately admitted passing the drug dealer numbers to the undercover officers. He did not ask for legal representation when interviewed by the police and he submitted his phone for analysis. 14. At the hearing the role of the appellant was characterised very differently by the prosecution and the defence in the course of their submissions to the learned sentencing judge. Counsel for the prosecution submitted the appellant was playing a leading role, asserting that he was "directing, organising, buying and selling on a commercial scale". Counsel said: "He has substantial links to and influence on others in the chain and he used his business as a cover. He provided facilitated contact between the undercover officers and the co-accused street dealers in the autumn of 2017." 15. Counsel for the appellant below submitted that the appellant was himself a purchaser of drugs, but also supplied the undercover officers with the numbers of those from whom he purchased. It was not accepted that the club was simply being used by the appellant as a cover for the supply of drugs. It was submitted that it was obvious from the undercover recordings and the statements of the undercover officers that the appellant played no part in how much was ordered, what the price was, where the location was and in any future contact. Those submissions have been renewed before us by Miss Byrnes. 16. He was portrayed below as a naive young man who in the drugs culture prevalent in Newcastle at the time did not appear to think that he would even be doing anything wrong. He asserted in interview that he was not a dealer. It was submitted that his role was a lesser one, or alternatively straddled the border between a lesser role and a significant role for the purposes of the definitive guideline on sentencing in drugs cases. It was submitted he was certainly not in a leading role as had been submitted by the prosecution. 17. In sentencing the appellant the learned judge accepted the submissions on behalf of the appellant in part but not wholly. He said: i. "I do not accept that the Crown have shown me enough to suggest that you were in a leading role, as you were not directing or buying and selling on a commercial scale and there is no evidence that you have substantial links to others in the chain, or for example that you were making substantial financial gain. You have, however, clearly played a significant role in this street dealing, providing numbers for those who wished to purchase Class A drugs and facilitating contact. There is no doubt that that is an operational role putting you squarely in the significant role category. You must have had some awareness of the scale of the operation and you were motivated by other advantage, if not financially in your role as a promoter for the club." 18. The learned judge thus placed the appellant within Category 3 of the definitive guideline with a starting point of four-and-a-half years' custody and a range from three-and-a-half to seven years' custody. 19. In sentencing the appellant, the learned judge said that in his view there was little reason to distinguish the appellant from the dealers as "without you they would not have had the customers." He said that: i. "... weighing up all the aggravating and mitigating features, the sentence [after a trial] would have been four years ... " 20. This was reduced to 32 months as the appellant was entitled to full credit having indicated a guilty plea at the earliest stage. 21. So far as the co-accused Sean Moulding was concerned, the learned judge also reached a sentence of four years' custody had there been a trial and after taking into account the aggravating and mitigating features in his case. He was entitled to only 25 per cent credit, thereby reducing the sentence in his case to three years' imprisonment. 22. The learned judge adopted the same approach in relation to Paul Moulding, but as Paul Moulding faced a cannabis charge which merited a consecutive sentence, the sentence for count 1 was reduced in his case to reflect the principle of totality. His overall sentence was three years and four months' imprisonment. 23. So far as Daniel Young was concerned, he pleaded guilty to count 1, conspiracy to supply class A drugs, namely cocaine, with Sean and Paul Moulding. His basis of plea was that he accepted supplying the undercover officers on one occasion only on 11 October 2017, and although he accepted sending messages to Paul Moulding on 30 September and 1 October he had not in fact supplied any drugs, but had simply, he said, sent the messages in the hope of impressing Paul Moulding. He was at home at the time and accepted supplying friends who were at home with him on 30 September. On the basis of that plea the learned judge considered that the sentence after trial for him would have been 33 months' imprisonment, which was reduced to 22 months after credit for plea. That sentence being less than two years was suspended by reference to the imposition guideline. 24. It is submitted by Miss Byrnes on behalf of the appellant that the learned judge was wrong in effect to treat him on a par with Sean and Paul Moulding. Thus in contradistinction to Sean and Paul Moulding the learned judge accepted that the appellant had not gained financially from his actions whilst it was clear that Sean and Paul Moulding were involved in an enterprise of supplying and selling class A drugs, as well as cannabis, on a commercial basis. 25. In written submissions on behalf of the appellant made by counsel who appeared below, it had also been submitted that the learned judge had failed to apply the sentencing guideline in relation to the reduction in sentence for a guilty plea. That guidelines state as follows: i. " Factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should not be taken into account in determining the level of reduction. Rather, they should be considered separately and prior to any guilty plea reduction, as potential mitigating factors." 26. It was submitted that the appellant's good character is one such factor but in addition, and distinguishing him from the co-accused, he should have had additional mitigation taken into account in relation to his co-operation with the police. Again, these submissions have been renewed attractively by Miss Byrnes in her submissions. 27. Thus it is said that in December 2017 this appellant travelled from the family home in Hertfordshire to attend as a voluntary attendant for interview in Newcastle. In the course of that interview he made admissions and cooperated with the investigation, answering all the questions put to him and voluntarily surrendering his phone so that it could be interrogated by the police. In contrast neither Paul nor Sean Moulding answered any questions in interview. 28. In granting leave to appeal, the single judge stated as follows: i. "It is arguable that in sentencing the judge erred in regarding you as, in effect, a co-conspirator with your co-defendants. You were not charged with conspiracy. Your offence was in supplying two undercover officers, at their request, with telephone numbers of dealers from whom they could buy cocaine. The undercover officers used those numbers to buy cocaine on a number of occasions, the drugs being sold and delivered to them by your co-defendants. You had no part in the actual sale or delivery of any drugs. ii. It is arguable that, in those circumstances, the judge should have placed your offending at a lower point in the Guideline. It is also unclear what allowance he made for your mitigation (youth, previous good character, remorse, assistance to police) prior to applying the full one-third discount for plea." 29. It is effectively upon those grounds that this appeal has been presented by Miss Byrnes. 30. We agree with the single judge and with the submissions that have been made to us that the learned sentencing judge erred in reaching the same sentence for this appellant as for Sean and Paul Moulding before applying the appropriate discounts for plea. In our judgment, insufficient regard was had not only to the actual role of the appellant as submitted to the learned judge on behalf of the appellant and as accepted by him, but also to the mitigating factors. Nevertheless, we consider that the learned judge was right to place this appellant in the significant role category and therefore within the sentencing range that he did. 31. In our judgment the appropriate sentence before reduction, taking into account the starting point which the learned judge reached for Sean and Paul Moulding, should have been at the very bottom of the category range, namely three-and-a-half years rather than four years. Reducing that by one-third to give credit for the guilty plea, that would have reduced the sentence of one of 28 months' imprisonment. To that extent therefore we set aside the sentence that was imposed of 32 months. We allow this appeal and we impose alternatively the sentence of 28 months' imprisonment. To that extent, this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Newcastle-upon-Tyne"],"ConvictPleaDate":["2018-07-11"],"ConvictOffence":["Being concerned in the supply of a controlled drug of class A, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at the first opportunity"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Newcastle-upon-Tyne"],"Sentence":["32 months' imprisonment","substituted with 28 months' imprisonment on appeal"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[19],"OffJobOffence":["Student"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Undercover officer testimony","Phone evidence","Text messages"],"DefEvidTypeTrial":["Admissions in police interview","No financial gain","No part in actual sale or delivery of drugs"],"PreSentReport":[],"AggFactSent":["Facilitating contact for supply of Class A drugs","Operational role in street dealing"],"MitFactSent":["Youth","Previous good character","Remorse","Cooperation with police","Admissions at interview","Voluntarily surrendered phone"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge failed to distinguish between appellant's role and co-defendants","Insufficient allowance for mitigation prior to guilty plea reduction","Appellant not charged with conspiracy","Appellant had no part in actual sale or delivery of drugs"],"SentGuideWhich":["Definitive guideline on sentencing in drugs cases","Sentencing guideline in relation to the reduction in sentence for a guilty plea"],"AppealOutcome":["Allowed","Sentence reduced to 28 months' imprisonment"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Insufficient regard to actual role and mitigating factors","Judge erred in reaching same sentence as co-defendants before discounts"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2011] EWCA Crim 1259 Case No: 201001697 B1 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRISTOL His Honour Judge Darwall-Smith T20087386 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/05/2011 Before : LORD JUSTICE LEVESON MR. JUSTICE OPENSHAW and HIS HONOUR JUDGE GOLDSTONE Q.C. (sitting as an additional Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : DL Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Peter Rouch Q.C. for the Appellant Mr Rupert Lowe for the Crown Hearing dates : 5 May 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. On 1 December 2008, in the Crown Court at Bristol, this appellant pleaded guilty to one count of conspiracy to commit wilful misconduct in public office. On 24 February, after a trial lasting 3 weeks, he was unanimously convicted before His Honour Judge Darwell-Smith and a jury of a further similar offence and, on 25 February, unanimously convicted of concealing criminal property. On 22 March 2010, he was sentenced respectively to terms of 12 months imprisonment, 2 years imprisonment concurrent and 2 years imprisonment consecutive, making four years in all. By limited leave of the full court, he now appeals against his conviction for conspiracy to commit wilful misconduct and seeks to renew his application for leave to appeal the conviction for concealing criminal property. On the basis that there are on-going proceedings, the full court made an order under s. 11 of the Contempt of Court Act 1981 prohibiting publication of the name of the appellant and his co-conspirator (to whom we shall refer as M); we also provide anonymity to others mentioned in the case. 2. The relevant facts can be shortly summarised. The appellant, a retired police officer, was working as a civilian employee in the Investigative Support Unit (“ISU”), which assisted frontline police officers in the investigation of criminal offences. A significant amount of the work was computer based. Over a period of time covert evidence, obtained from the appellant’s office computer and audio recordings from his ISU office, revealed that the appellant had passed confidential police information to two friends, namely, a private investigator (which led to the count of conspiracy to which he pleaded guilty) and a member of the criminal fraternity, M, whom the appellant had known for 30 years. 3. Relevant to the challenged conviction, during 2007, M was provided both with general updates of police activity as well as information on specific cases. Thus, on 28 July, the appellant made computer searches on M, who at the time was in Thailand. Telephone records revealed contact between the two the day before and two days after the search. The searches revealed intelligence that suggested that M was suspected of cannabis dealing. On 20 September the appellant told M about a number of search warrants being executed in parts of South Wales. On 11 October, at M’s request, the appellant had a search made of the Police National Computer (“PNC”) about a vehicle of interest to M and M was informed of the results. On 3 December the appellant and M provided each other with information about a local criminal called S. On 23 December M and his girlfriend, who had both been staying with the appellant, left for Thailand via Heathrow. At M’s request the appellant searched the PNC. The search revealed nothing that might lead to M being stopped at Heathrow. In the event he was stopped but allowed to continue to Thailand after money (£17,100) in his possession was confiscated. 4. On 22 January 2008, the appellant was arrested. A subsequent search of his home address revealed a cool box in the attic. In it were a number of plastic bags containing a total of £200,170 in sterling bank notes: this represented the concealed property. On forensic analysis one of the money bands around some of the bank notes revealed M’s fingerprint. A second fingerprint, found on one of the bank notes, belonged to another individual subsequently charged with drug offences. A later search at the appellant’s office revealed, in his desk drawer, a faxed copy of a letter from M’s solicitor to HMRC seeking the return of the £17,100. The letter had been faxed by the appellant. 5. The system in relation to the management of informants, established by the evidence, can also be summarised. In short, the introduction of a new scheme pursuant to the Regulation of Investigatory Powers Act 2000 required those who handled what are known as covert human intelligence sources (with the acronym ‘CHIS’) to be specifically authorised to do so. Furthermore, such persons also had to be authorised to act as such and could only be tasked to provide information by an authorised handler. Finally, providing an informant with police information was, in any event, in breach of basic source handling rules and was never permitted under any circumstances. 6. Against that background, the prosecution case was that the appellant had never been approved or acted as a specialist informant handler although he had received the relevant training in relation to covert human intelligence sources and so was aware of the rules. His job with the ISU had nothing to do with handling informants or receiving intelligence. Similarly, at all material times, M was not an authorised police informant: for some six years until May 2004, M had been authorised as an intelligence source but his authority was then revoked, with the result that he could not lawfully be tasked to provide information even by a registered handler. Nevertheless, there was an agreement between the appellant and his very good friend, M, the effect of which was that the appellant, whilst acting as a public officer, accessed intelligence databases held by the South Wales Police and deliberately passed on confidential information to M. His actions, which he knew to be wrong, fell far below the standard expected of him as to amount to an abuse of the public’s trust in him. 7. As for the property, the appellant had allowed a large quantity of money belonging to M to be stored in his attic. Evidence from the covert office recordings revealed conversations about “something” the appellant was keeping for M. This could only refer to the money which constituted in whole or part, M’s benefit from criminal conduct which the appellant knew or at least suspected constituted such a benefit. 8. Turning to the defence case, the appellant gave evidence and explained that his actions had to be seen in the context of his long standing cultivation of M as an informant; his association with M went back to the 1980s. M had provided intelligence, sometimes valuable, over the years. On that basis, information which the appellant did not believe was confidential had been given to M in the hope of receiving information back. He accepted that on occasion he had acted foolishly and inappropriately in his dealings but he knew that M was not a drug dealer; he was an ‘Arthur Daly’ character who bought and sold. The appellant admitted that M had given him £10,000 in cash which he had returned but he had no knowledge of the money in the cool box. 9. A number of witnesses were called to give evidence on behalf of the appellant including a chartered accountant who did not challenge the forensic work undertaken by the prosecution but said that it was not possible to say whether the sum of £200,170 in unexplained cash was legitimate or not. A serving police officer said that the appellant, who was conscientious and honest, had handled M for 11 years until 2005 and some of the intelligence consisting of drug related and general crime information was good. A retired police officer stated that there was a strong association between the appellant and M, who was an invaluable source of information. The appellant, whom he admired, was someone who knew how far to take matters. 10. The issue in relation to which the appellant proceeds with the leave of the full court concerns the ingredients of the offence of wilful misconduct. At the trial, an issue was raised whether it would be appropriate for the judge to leave the defence of reasonable excuse to the jury. Mr Peter Rouch Q.C., for the applicant, contended that absence of justification or reasonable excuse was an essential ingredient of the offence; the Crown submitted that there was no basis upon which the jury could find that there was a justification for any of the disclosures or a reasonable excuse for them. The judge dealt with the matter in a short ruling which we quote in full: “Count 1 is a conspiracy to commit wilful misconduct in a public place and there are, effectively, three ingredients. First, that he was acting as a public officer and, quite clearly, he was even though he was not a member of the police force at the time. Secondly, he has to wilfully or deliberately misconduct himself in his duties; that means simply not by accident or mistake or inadvertence. Thirdly, that he has to do so to such a degree that it amounts to an abuse of the public’s trust in the holder of that office and it seems to me that it is the members of the jury who decide whether he abused the public trust to that extent. The fourth matter is that he did so without reasonable excuse or justification. The submission is made that there was no reasonable excuse or justification that the jury need to consider in this case because he was, according to the prosecution case – if they accept it – giving information as someone who was not dealing with informants, he was giving information in a sense like a member of the public, although he was a public officer, to another member of the public who was not an informant, who was not authorised to be an informant and he was giving that information, and if the jury are satisfied that he was giving that information, then it is submitted that there cannot be a reasonable excuse or justification in respect of that. Of course, this offence is not the substantive offence; it is a conspiracy and it does contain a number of instances of misconduct which are not all the same but, being a conspiracy, the instances of misconduct of which the jury has heard are simply instances, or evidence of the agreement itself. So the question for me is: is it right, proper and possible in this case for the defendant to say, in a case where he says “I gave information to [M] in the hope of getting better information back again” that, for whatever reason, that is a reasonable excuse or justification? I have come to the conclusion that the prosecution are right. That is not a reasonable excuse or justification. There is no instance upon which someone who is not a handler of information to someone who is not an informant himself. If that information is being passed and the jury are satisfied so that they are sure about that, then there is no reasonable excuse for that behaviour and I do not propose to put that defence to the jury.” 11. True to his ruling, having directed the jury of each of the three ingredients which he accepted (including a direction that it was for the jury “to decide whether the deliberate leaking of confidential information which he knows he should not be leaking, falls far below the standard to be expected of the defendant as to amount to an abuse of the public trust in him”), the judge went on: “There is a defence that he did so without reasonable excuse or justification. Well, the defendant’s personal initiative to encourage [M] to give him intelligence by favouring him with confidential police information could never amount to a reasonable excuse or justification in this case for three reasons. First, the defendant was not a ‘chis’ handler. Secondly [M] could not be lawfully tasked to provide it because he was not authorised to operate as a ‘chis’ himself. Thirdly, ‘chis’ rules never permit the passing of police information to anyone in any circumstances. So you can therefore disregard any reasonable excuse or justification applying in this particular case.” 12. Mr Rouch argues that it was common ground before the court that the leading authority in relation to misconduct in public office was the decision in Attorney General’s Reference No. 3 of 2003 [2004] EWCA Crim 868 , [2005] QB 73 and that this authority makes it clear that it is an essential ingredient of the offence that it is committed without justification or lawful excuse. While confirming the “great variety of circumstances” in which the offence may be charged, it is certainly correct that this court analysed the history of the offence and that the head-note summarised the position (at page 73) in terms that: “The elements of the offence of misconduct in a public officer were that a public officer was acting as such, that he wilfully neglected to perform his duty and/or wilfully misconducted himself in a way which amounted to an abuse of the public’s trust in the office holder, without reasonable excuse or justification; that whether the misconduct was of a sufficiently serious nature would depend on the responsibilities of the office holder, the importance of the public objects which they served, the nature and extent of the departure from those responsibilities and the seriousness of the consequences which might follow from the misconduct; that to establish the mens rea of the offence it had to be proved that the office holder was aware of the jury to act or was subjectively reckless as to the existence of the duty; that the test of recklessness applied both to the question whether in particular circumstances a duty arose at all and to the conduct of the defendant if it did arise; and that the subjective test applied both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission. 13. As to the issue of reasonable excuse or justification, Pill LJ (giving the judgment of the court) said only (at para. 60): “The failure to meet standards must occur without justification or excuse, a further requirement, though not one which has been the subject of detailed submissions.” 14. Given the issues in that case (which concerned failure by police officers to ensure that an unconscious prisoner was placed into a ‘safe’ position with his airway clear and to obtain medical assistance), that short summary was entirely understandable but in order to understand its origins (and thus, whether the failure to leave the issue to the jury amounts to a material misdirection), it is necessary to delve further into an analysis of the authorities as to which we were not assisted either by Mr Rouch for the appellant or Mr Rupert Lowe for the Crown. 15. Pill LJ analyses the authorities dated from R v. Wyat (1705) 1 Salk 380 and R v. Benbridge (1783) 3 Doug KB 327 and R v. Borron (1820) 3 B & Ald 432, to the more modern enunciations of this court in R v. Llewellyn-Jones [1968] 1 QB 429 which concerned the misuse by a county court Registrar of funds under his control and R v. Dytham [1979] QB 722 which related to the failure of a constable to intervene in a fight outside a club during the course of which a man was beaten and kicked to death. This serves to underline the varied circumstances in which this offence can be committed. 16. In Dytham , Lord Widgery CJ dealt with the requirement of corruption or fraud and cited Stephen’s Digest of the Criminal Law (9 th edn, 1950) in these terms: “Every public officer commits a misdemeanour who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter.” 17. Lord Widgery went on to link the element of culpability to the degree that the misconduct is calculated to injure public interest. He said (at 727G): “The neglect must be wilful and not merely inadvertent; and it must be culpable in the sense that it is without reasonable cause or justification. In the present case it was not suggested that the appellant could not have summoned or sought assistance to help the victim or to arrest his assailants. The charge as framed left this answer open to him. Not surprisingly he did not seek to avail himself of it … The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.” 18. This decision was itself considered in Shum Kwok Sher v HKSAR (2002) HKCFAR 381 by the Court of Final Appeal in Hong Kong. As noted (at para 44) by Pill LJ in Attorney General’s Reference (No 3 of 2003) Sir Anthony Mason NPJ referred to English and Australian authority and said (at p 409): “84. In my view, the elements of the offence of misconduct in public office are: (1) a public official; (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4) culpably misconducts himself. A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification.” 19. Sir Anthony expressly stated that the words were not disjunctive. He also added that the misconduct complained of must be serious which was to be determined “having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities”. It is worth adding that, in agreeing with this judgment, Mr Justice Bokhary PJ expressed no doubt that the true definition of the offence was as Sir Anthony had stated which he expressed in these terms: “Accordingly, the offence of misconduct in public office is committed when (i) a public official (ii) in the course of or in relation to his public office, (iii) wilfully and intentionally (iv) culpably misconducts himself and the misconduct is serious.” 20. Although Pill LJ expressed difficulty in understanding the need for the conduct to be both wilful and intentional, he expressly approved of the view that the misconduct must be serious. In his summary of the constituent elements of the offence and, in particular, at para. 60, however, he did not explain that the words “without justification or reasonable excuse” only served as an expansion of the word “culpably”. In the context of acts of commission, focussing on the word ‘culpable’ rather than the words ‘without justification or reasonable excuse’, reverting to the approach of Lord Widgery, it is difficult to see how deliberate leaking of confidential information which a public official knows he should not be leaking and which falls far below the standard to be expected as to amount to an abuse of the public trust in him (which is how the judge left the offence to the jury in this case) could not be culpable. 21. It is no part of the purpose of this judgment to seek to revisit the formulation of the offence as enunciated in Attorney General’s Reference (No 3 of 2003) although that might, in the future, become necessary; indeed, consideration of the offence by the Law Commission would be of value. Suffice to say, for the purposes of this case, however, that it would have been appropriate for the judge to explain that the phrase “without justification or reasonable excuse” meant no more than acting culpably or in a blameworthy fashion. Bearing in mind that if the jury were to conclude (as they did) that the standard of the appellant’s behaviour fell far below that which was to be expected as to amount to an abuse of the public trust in him, it is impossible to see how the jury would equally not have concluded that the conduct was culpable. 22. Mr Rouch submits that the direction which the jury were given was not apposite because the appellant was not a police officer and was not bound by the rules relating to the handling of and requests for information from covert human intelligence sources and, furthermore, that the fact that M was not a covert human intelligence source was beside the point. We do not agree. The information which the appellant was imparting was information from police sources and he must have received it subject to the same scheme (itself governed by the Regulation of Investigatory Powers Act 2000 ) as did police officers. If anything, his position was even more constrained than that of police officers. Thus, although we conclude that the judge should have directed the jury to consider culpability, we do not accept that his failure specifically to direct that belief in the prospect of obtaining more worthwhile intelligence could constitute a reasonable excuse in the context of his direction that the appellant’s behaviour had to fall far below that which was to be expected as to amount to an abuse of the public trust in him renders the verdict unsafe. 23. In connection with the conviction for concealing criminal property, Mr Rouch seeks to renew grounds of appeal in respect of which leave was not granted by the full court in relation to the admissibility of evidence from three witnesses which was directed to supporting the contention that links existed between M and cannabis (thereby justifying the conclusion that the property belonging to M which was in the appellant’s possession was criminal within the meaning of the legislation). This concerned the total of £200,000 found in cash in a cool box in the appellant’s attic. Mr Rouch suggests that the evidence was tenous in nature, of prejudicial effect only and not such as the appellant could address. In his ruling, the judge acknowledged that: “they may be “very small pieces in a jigsaw puzzle but, put together, particularly when one remembers it is not just the link of that person with a criminal activity but the link of this money to criminal activities that it becomes important. And they become important pieces of evidence which when taken together are compelling. And if they are taken together they are compelling, they are of probative value, then they are admissible.” We agree with this analysis. We also agree that the prosecution was required to prove that the money came from criminal sources and that this was an entirely appropriate way of so doing. There is no arguable ground of appeal in relation to the admission of this evidence. 24. Finally, in his written grounds, Mr Rouch makes complaint of three errors of fact said to have been made by the judge during the course of his summing up. None appear to have been the subject of comment by counsel at the conclusion of the summing up but we have considered the points individually and collectively, bearing in mind that the jury had heard the evidence and speeches of counsel and had been directed specifically to consider the facts as they found them to be. We do not consider that this ground erects an arguable error sufficient to render the verdict on this count unsafe. 25. In the circumstances, this appeal is dismissed.	{"ConvCourtName":["Crown Court at Bristol"],"ConvictPleaDate":["2008-12-01",""],"ConvictOffence":["conspiracy to commit wilful misconduct in public office","wilful misconduct in public office","concealing criminal property"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes","No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Bristol"],"Sentence":["12 months imprisonment","2 years imprisonment concurrent","2 years imprisonment consecutive"],"SentServe":["Concurrent","Consecutive"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[0],"OffJobOffence":["Retired"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["covert evidence from office computer","audio recordings","telephone records","forensic analysis of money bands","fingerprint evidence"],"DefEvidTypeTrial":["defendant testimony","character witnesses","accountant evidence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["abuse of public trust","deliberate leaking of confidential information"],"MitFactSent":["offender showed genuine remorse","longstanding association with informant"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["trial judge misdirected jury on ingredients of offence","admission of prejudicial evidence","errors of fact in summing up"],"SentGuideWhich":["Attorney General’s Reference No. 3 of 2003 [2004] EWCA Crim 868, [2005] QB 73","Regulation of Investigatory Powers Act 2000"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["failure to leave issue of reasonable excuse to jury did not render verdict unsafe","admission of evidence was appropriate","no arguable error in judge's summing up"]}
Case No: 201501243 B1 Neutral Citation Number: [2016] EWCA Crim 751 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HHJ MORRIS QC T20077304 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2016 Before : LORD JUSTICE TREACY MR JUSTICE EDIS and RECORDER OF BIRMINGHAM HHJ INMAN QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between: Regina Appellant - v - Triston Walker Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - L. Mably (instructed by CPS) for the Crown B. Richmond QC (instructed by the Registrar of Criminal Appeals) for the Applicant Hearing date: 23rd June 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy: 1. This is an application for leave to appeal against conviction referred to the full court by the single judge. In addition there is an application for an extension of time of a little over 6 years. 2. The applicant was convicted of murder on 15th January 2009 at the Central Criminal Court. He was subsequently sentenced to life imprisonment with a minimum term of 27 years less time spent on remand. 3. The applicant was tried alongside his partner Simone Manning and Marlon Golding. Both of those defendants were acquitted of assisting an offender. A further co-accused, Lumsden, was convicted of assisting an offender. The facts of the case show that the victim was a 17 year old female member of a dance troupe called X-squad. Simone Manning’s sister was a member of that group and was in dispute with the other members. This led to a violent confrontation on 20th June 2007 referred to as the “Bruce Grove Incident”. The applicant and Simone Manning had actively taken the sister’s side. 4. In the small hours of 23rd June 2007 the applicant, the Manning sisters and Golding went to the Swan nightclub in Tottenham. The deceased arrived with members of X-squad at about 3.20 am. There was continuing animosity between the groups. The applicant was seen making gestures and movements suggesting that he had a gun in the waistband of his trousers. 5. At about 5 am a fight broke out between the two groups and the applicant became involved. He was seen by a number of witnesses to have a gun. This was also captured by CCTV footage. The gun was fired and the deceased was shot in the head, receiving fatal injuries. 6. Shortly after the shooting Golding drove the applicant and Simone Manning to an address in Purfleet. The applicant then travelled to Oxford where he stayed for a number of weeks at an address rented by Lumsden until his arrest on 20th July 2007. 7. In interview the applicant admitted presence at the nightclub. He initially lied, denying possession of the gun or shooting the deceased. He claimed that the shot had come from behind him and blamed a man named Akim. When shown the CCTV footage he made no further comment to questions. By the time of trial he admitted that his original account was untrue. His new account was that a man named Campbell had the gun and had produced it as he approached the applicant in the nightclub. The applicant’s case was that he struggled with Campbell and managed to disarm him whereupon the gun discharged accidentally. He had not deliberately fired the gun into the crowd. 8. The issues for the jury were whether they were sure that the applicant deliberately fired the gun killing the deceased and whether he had the requisite intention for murder. 9. The Crown’s case was a strong one. There were witnesses who said that the applicant had threatened to use a gun during the preceding dispute at Bruce Grove. There were witnesses who had seen the applicant with a gun in the nightclub both before and at the time of the shooting. There was evidence of a previous incident at the club in 2006 when the applicant was said to have pulled a handgun from his waistband in the course of a dispute with the licensee. The CCTV footage did not appear to be consistent with the applicant’s explanation at trial. In addition, the applicant disputed all the major points of evidence implicating him, meaning that a large number of witnesses as to separate events combined to put forward a false account. The judge gave an adverse inference direction in relation to the applicant’s change of account. 10. The co-accused Simone Manning, who had been present in the club gave evidence consistent with the applicant’s case. She had not seen the shooting itself but said that the applicant had later told her it was an accident. 11. Marlon Golding gave evidence, both as to the events in Bruce Grove and the club, which was consistent with the applicant’s case. In particular his evidence was supportive of the account given by the applicant in relation to Campbell and he said that the applicant had subsequently told him about the struggle with Campbell and accidental discharge of the gun. There was a difference in the evidence of the applicant and Golding as to the point in time that that conversation took place. Golding said it was during the journey to Purfleet, whereas the applicant described it as taking place after arrival there. 12. There are two grounds of appeal advanced before us by the applicant. Firstly, it is submitted that the proceedings against the co-accused Marlon Golding were a nullity in that he was sent for trial on the charge of assisting an offender on 22nd August 2007 but that the DPP did not give consent until 10th October 2007, prior to his first appearance at the Central Criminal Court on 29th October. 13. Mr Richmond relies on the decision in R v Welsh & ors [2016] 1 Cr App R 9 at [54] for the proposition that that the DPP’s consent must be obtained prior to a defendant being sent for trial pursuant to section 51 of the Crime and Disorder Act 1998 . Mr Richmond acknowledged that having regard to Welsh at [65] and [71]-[73], where more than 28 days have passed since conviction and an applicant requires an extension of time, such an extension will not be granted unless it can be demonstrated that it is necessary to cure a substantial injustice. He states that the issue as to nullity was unnoticed by Golding’s legal team or indeed any other party to the case. The applicant subsequently became alive to the potential issue through his own enquiries. 14. Mr Richmond submitted that Golding was improperly included on the indictment as a co-defendant at the trial of this applicant. He should not have been on the indictment at all. Although Golding’s evidence was broadly supportive of the applicant’s final case, their evidence had been contradictory in relation to the applicant’s post-shooting account of accident. This did collateral damage to the applicant’s case and was a situation which should not properly have occurred. If Golding had not been a co-accused it would have been a finely balanced decision as to whether to call him to give evidence. In the circumstances the applicant was significantly prejudiced and the verdict was unsafe. 15. The second ground of appeal relates to evidence which the jury heard to the effect that this applicant had a conviction for assault against Simone Manning and had also been cautioned on three occasions, once for assault. The point taken is that those elements of bad character should not have been admitted because they had no probative value with regard to the count on the indictment. We say at once that there is no substance at all in this further ground and Mr Richmond did not seek to argue it. The applicant had himself adduced those aspects of his bad character in the course of his evidence, presumably with a view to showing that he did not have any significant criminal record for violence. Whatever his motivation, the judge directed the jury in summing up that they should ignore those matters in reaching their verdict. In the context of the charge and the evidence in the case there is absolutely no prospect of the admission of those matters rendering the conviction unsafe. We reject this ground. 16. In relation to the first ground, Mr Mably, for the respondent, makes three overarching submissions: firstly that the consent of the DPP was not required because, on analysis, the proceedings were instituted by the DPP, thus satisfying the requirements of section 4(4) of the Criminal Law Act 1967 . This is for two reasons: (a) a Crown prosecutor made a charging decision in accordance with the statutory charging procedure before Golding was charged and before his case was sent to the Crown Court; (b) where a person is charged as a result of a decision under section 37B of PACE the proceedings are to be regarded as having been instituted by the DPP (by a Crown prosecutor exercising the DPP’s functions pursuant to section 1(6) of the Prosecution of Offences Act 1985) , and not by the police. 17. Where material, section 37B provides: “(2) the DPP shall decide whether there is sufficient evidence to charge the person with an offence; (3) if he decides that there is sufficient evidence to charge the person with an offence, he shall decide – (a) whether or not the person should be charged and, if so, the offence with which he should be charged … (4) The Director of Public Prosecutions shall give notice of his decision to an officer involved in the investigation of the offence. … (6) If the decision of the Director of Public Prosecutions is that the person should be charged with an offence … the person shall be charged … accordingly.” 18. Mr Mably’s second overall submission, by way of alternative, is that even if it were concluded that the proceedings in Golding’s case were not instituted by the DPP, the charging decision made by her (through a Crown Prosecutor) amounts to consent to institute proceedings for the purposes of section 4(4) of the Criminal Law Act 1967 . The charging decision involves a consideration of whether the evidence if sufficient to justify bringing a charge and whether a prosecution is in the public interest. It also involves the selection of the appropriate charge. The decision is notified to the police, and under section 37B(6) of PACE it must be implemented by them. This process constitutes more than mere consent: it is the actual decision to institute proceedings and a direction for its implementation by the police. As a matter of substance, reality and logic, the giving of consent is subsumed by or contained within that decision. Since the charging decision in Golding’s case constitutes consent to institute proceedings any separate later consent decision in October 2007 was superfluous. 19. Mr Mably’s third submission was that acceptance of either of his first two submissions would mean that the proceedings against Golding were not a nullity. Were the court to hold otherwise so that the charge against him was improperly joined and tried on the indictment involving the applicant, there is no tenable basis upon which it could be argued that the conviction is unsafe. If Golding’s charge was a nullity that would not bear on the validity of the charge against this applicant. Moreover the evidence against this applicant was exceptionally strong. Insofar as Golding’s position affected that of the applicant, his evidence supported the applicant’s case in all material respects that includes supporting the applicant’s account given after the event that the shooting had been an accident. The inconsistency of detail as to that was not a significant matter in the context of the case. Accordingly any nullity of the proceedings against Golding would not bear on the safety of the applicant’s conviction. 20. The relevant chronology in Golding’s case is that he was initially arrested on 27th June 2007 and bailed to 5th July. He was further bailed to 21st August. In the interim, a Crown prosecutor made a charging decision on 4th August 2007. In so doing he employed the threshold test set out under the Code for Crown Prosecutors issued by the DPP under section 37A of the Police and Criminal Evidence Act 1984 . This also encompassed a consideration of the statutory charging procedures set out in section 37B of PACE which provides that when a case is referred by police to the DPP, the DPP shall decide whether there is sufficient evidence to charge and if he does so it is for the DPP to decide which offence shall be charged and then to notify the police of his decision. The provisions of section 1(6) and 1(7) of the Prosecution of Offences Act 1985 mean that every Crown prosecutor is for these purposes to be treated as being in the shoes of the DPP. The charging decision of 4th August 2007 was recorded on an MG3 document. 21. As a consequence of this when Golding reported to his bail on 21st August 2007 he was charged by the police with the offence of assisting an offender. On the following day the case was sent by the magistrates’ court to the Central Criminal Court. 22. On 29th August the case was reviewed in accordance with the Full Code test once the police had submitted the full charging file. Thereafter on 10th October 2007 a separate written consent was confirmed by a Crown prosecutor. 23. We have seen the MG3 document relating to the charging decision of 4th August 2007. It shows that on that date a prosecutor delivered face to face advice on charging to the police. The prosecutor indicated that he had seen CCTV footage and applied the threshold test. He said there was a clear case to answer and specified the offence of assisting an offender as a charge in relation to Golding. There was thus a clear charging decision notified to the police for them to implement. It is true that the form included a section entitled “DPP consent” under which was entered the words “not appropriate”. Mr Richmond contended that this showed that the prosecutor on 4th August had not consented to the institution of proceedings. He supported this submission by the fact that a different Crown prosecutor had expressly given consent in relation to Golding on 10th October. 24. We have reviewed the documentation in relation to Golding and also that concerning his co-accused Manning and Lumsden. It is right to say that there are some apparently anomalous entries on the face of the documentation but we are entirely satisfied that on 4th August a Crown prosecutor considered the evidence, and made a charging decision which he then communicated to the police. We return later to the question of whether this constitutes a consent to the institution of proceedings in the light of Mr Richmond’s submissions that it does not. 25. Mr Richmond’s submissions are essentially based on 10th October as representing the date of the DPP’s consent. If he is correct in this then the decision in Welsh shows that where an indictable only offence is involved the appropriate consent must be obtained prior to a sending to the Crown Court under section 51 of the 1998 Act . Sending in this case took place on 22nd August. 26. In this context we note that both Welsh and the earlier decision of this Court in R v Lambert [2009] 2 Cr App R 32 were decided after this trial had concluded in January 2009 and are decisions on the question of when proceedings are instituted in the light of modern attempts to streamline the criminal justice system. Earlier decisions such as R v Elliott [1985] Cr App R 115, and R v Whale & Lockton [1991] Crim LR 692 applied the principle that proceedings were instituted when the accused came to court to answer the charge. In the case of an indictable only offence under older procedures that would not take place until arraignment at the Plea and Case Management Hearing. Whale & Lockton was relied on by the Crown prosecutor in giving the consent of 10th October. Therefore it appears that at the time which these proceedings were concerned matters proceeded on a basis consistent with the law as it was then understood prior to elucidation in Lambert and Welsh . In this context see [61]-[70] of Welsh from which it is clear that the modern procedural arrangements call for a re-appraisal of the point by which consent must be given. As was stated in R v Bull (1994) 99 Cr App R 193 at page 206: “When considering the question whether proceedings have been instituted by a specified person or by or with the consent of a specified person it is essential to have regard to the particular procedure adopted in the given case.” 27. If there was a failure to give or obtain the necessary consent before proceedings were instituted then there is no doubt that the subsequent proceedings would be a nullity – see R v Christopher Welsh (Jr) [2016] 1 Cr App R 8 at [14] and [15] and R v Pearce (1981) 72 Cr App R 295 . However if a count on an indictment is a nullity for want of consent that defect does not nullify other counts on the indictment or the overall proceedings. The indictment as a whole is not invalidated, only the count or counts improperly joined – see R v McGrath [2013] EWCA Crim 1261 at [33]. Mr Richmond did not argue to the contrary but submits that if the operative decision is that of 10th October, it came too late. 28. Section 4 of the Criminal Law Act 1967 deals with assisting offenders and subsection (4) provides: “No proceedings shall be instituted for an offence under subsection (1) above except by or with the consent of the Director of Public Prosecutions”. It follows from that that section 4(4) is satisfied if the proceedings are instituted by the DPP or if the proceedings are instituted with her consent. It seems to us that as a matter of statutory construction if the DPP institutes the proceedings the requirements of the subsection are satisfied and there is no need for a separate consent to be given. Consent is only required if some person other than the DPP such as the police institutes the criminal proceedings. 29. Since the statutory charging scheme at section 37B of PACE was introduced by the Criminal Justice Act 2003 following the recommendations of Auld LJ’s Review of the Criminal Courts , it is the DPP through Crown prosecutors who determines the charge and arguably initiates the prosecution. It seems to us that, having regard to the terms of section 37B cited above, a Crown prosecutor who has decided that there is sufficient evidence to charge and who has identified the relevant offence and notified the police of his decision has either instituted proceedings personally in which case no separate act of consent is necessary or, alternatively, has required the police to charge the offender, in which case notification of the decision constitutes the giving of consent. We are satisfied that the actions of the prosecutor on 4th August described above constitute consent. To consider the evidence, determine the charge and then inform the police that they must charge an accused with that offence necessarily connotes consent to the charge. 30. We therefore conclude that the prosecutor’s action of 4th August 2007 amounted to the necessary consent. This being a leave application, it has not been necessary for us to determine whether that giving of consent also constitutes the institution of proceedings as Mr Mably’s first submission contended, or whether proceedings were instituted by notification of the charge to Golding on 21st August 2007 when he was re-arrested after surrender to bail (see section 15(2)(c) of the 1985 Act ), or whether his sending to the Crown Court on the following day pursuant to the 1998 Act amounted to the institution of proceedings in the light of Welsh . Welsh is a decision concerned with the requirement for the Attorney General to consent to the institution of proceedings under the Criminal Law Act 1977 . It may be that in a future case that issue might need to be resolved. 31. However in the present case, the parties adopted the approach that on any view, if consent had been given on 4th August, it would have been a valid consent given at a relevant time with the consequence that there was no question of nullity in relation to the proceedings against Golding. We did not receive any submissions on the point raised in the preceding paragraph. 32. The later act of a Crown prosecutor on 10th October in purporting to give a consent which would have been valid as the law was then understood, is to be regarded as mere surplusage in the light of a previously valid consent having been given or obtained. Since we hold that there was no nullity involved, there can be no complaint about joinder of Golding, so that the assertion of unfairness to this applicant falls to the ground. 33. Even if we had been persuaded that Golding’s proceedings were a nullity we do not think that there is any arguable case that the applicant’s conviction is unsafe. We regard the strength of the evidence against this applicant as having been particularly robust. Moreover, the evidence given by Golding was broadly supportive of the applicant’s case as indeed was the evidence given by the co-accused Manning. In the context of the case as a whole we see no substance in the suggestion that Golding’s presence materially undermined the applicant’s case. To the extent that the Crown could point to a discrepancy in their accounts relating the applicant’s explanation of accident, this is not a factor that could render the verdict unsafe. In those circumstances where there has been no substantial prejudice caused to the applicant we decline to grant an extension of time since it has not been shown that one is necessary to cure a substantial injustice. For the reasons given we also dismiss this application relating to conviction.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2009-01-15"],"ConvictOffence":["Murder"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Life imprisonment with a minimum term of 27 years less time spent on remand"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Female"],"VicAgeOffence":[17],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Witness testimony","Evidence of previous incident (handgun)","Victim testimony"],"DefEvidTypeTrial":["Defendant's testimony","Co-accused testimony (Simone Manning, Marlon Golding)"],"PreSentReport":[],"AggFactSent":["Use of a firearm","Shooting in a public place","Fatal injury"],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Appellant"],"CoDefAccNum":[3],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Joinder of co-accused was a nullity due to lack of DPP consent","Admission of bad character evidence"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No nullity in joinder of co-accused; evidence against applicant was strong; no substantial prejudice; bad character evidence was adduced by applicant and jury was properly directed"]}
Neutral Citation Number: [2014] EWCA Crim 333 Case No: 201300864 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH HHJ MATTHEWS T20111443 Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday 4 th March 2014 Before : LORD JUSTICE DAVIS MR JUSTICE WYN WILLIAMS and HHJ KRAMER QC (Sitting as a Judge of the Court Of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : SHEARIF STEPHEN ELSAYED Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MISS RUTH JONES (instructed by FMW Law ) for the Appellant. MR MICHAEL TANNEY (instructed by Crown Prosecution Service ) for the Respondent. Hearing date: 20 February 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Davis : Introduction 1. This appeal raises a point about the valuation of benefit for the purpose of confiscation proceedings under the Proceeds of Crime Act 2002 (“ the 2002 Act ”). The context is drugs. The judge decided, in the circumstances of the case, that the value of the drugs obtained by the appellant was to be assessed on a retail basis. The appellant contends that the judge was wrong to do so. It is argued on his behalf that the judge was obliged to value the drugs on a wholesale basis. There perhaps is a little more to this case than first meets the eye; and it also may have implications for other cases of this particular kind. Facts 2. The background facts can, for present purposes, be very briefly summarised. 3. In August 2011 the police executed a search warrant at an address in Fulham, London. Some £39,500 in cash was found there, as well as quantities of cocaine, diazepam and cannabis. On examination of the cash the fingerprints of the appellant were found on some of the bank notes. In consequence, the appellant was arrested at his place of work, the Cromwell Hospital, where he was employed as a porter. His work locker was searched. It was found to contain 169 grams of cocaine and a small wrap containing just under 3 grams of cocaine, as well as a large number of bank notes totalling £56,510. His home premises were also searched. No cutting agents or wraps or bags were found at either location, but a set of scales and a scalpel were recovered. The 169 grams of cocaine were of 80% purity. The small wrap was of 5% purity. 4. In due course, the appellant pleaded guilty to counts of possession of class A drugs with intent to supply and possessing criminal property. He was sentenced to three years’ imprisonment by HHJ Matthews, sitting in the Isleworth Crown Court, on 15 February 2012. The appellant had sought to put in a Basis of Plea for the purposes of sentence. This was to the effect that the appellant had been in circumstances of financial and personal stress and had started to take cocaine. After a while his supplier asked him to look after drugs for him and he agreed to store them at his place of work. In return, he received small amounts of cocaine for his personal use and £500 per week. The drugs were not in wraps but in larger quantities: he would, as and when asked, weigh out what his dealer wanted and take them to him. His stated position thus was that he was a custodian of the drugs. He was (he said) also asked, and agreed, to store money for his dealer. 5. The prosecution did not accept this Basis of Plea. Its position throughout was that the appellant was dealing drugs at street level, and would have cut the 169 grams of cocaine down to individual wraps of 5% purity. The appellant did not seek a Newton hearing before being sentenced. The confiscation proceedings 6. The prosecution duly asked the Crown Court to proceed under s.6 of the 2002 Act . In its s.16 statement it ascribed a street value to the 169 grams of cocaine of £121,680: which was subsequently revised down to £108,160. The prosecution made clear that it was putting forward the street value as the relevant benefit amount, doing so on the basis of the estimated street value of a one gram deal being £40. 7. In addition, it was common ground that the criminal lifestyle provisions potentially applied to this case. 8. In his s.17 statement, the appellant, as he was entitled to do, sought to advance the version of events which he had previously put forward in his earlier Basis of Plea. He also disputed the valuation of the drugs advanced, saying that it was “based upon speculation” that the drugs would be cut to a purity of 5%. In that statement it was among other things said: “Benefit figure for the purposes of confiscation is derived from historic transactions and the value of actual property held in the defendant’s possession connected with the relevant offence, not what it ‘might’ be worth ‘if’ it was to be altered in some way.” It was further said that in any event there was no evidence that the drugs would be cut for onward sale in this case. The (wholesale) value of the 169 grams of cocaine was asserted to be £7,737 – subsequently revised down to £6,857. 9. At the confiscation hearing the judge received an amount of evidence, both written and oral, including the evidence of the appellant himself. The appellant was wholly disbelieved. The judge found his account “very incredible”. The judge further found that “the drugs were cut by him for onward sale at a figure of 5%” (that is how the transcript reads: but clearly the judge must have meant that the drugs would be cut for onward sale by the appellant). The judge accepted the prosecution case in relation to the benefit from the drugs, in the figure of £108,160. 10. The lifestyle provisions fell to be applied. Total benefit was valued in the amount of £335,459. There were significant available assets, including the equity in a property, sums in various bank accounts and other assets. These were agreed, overall, at £245,984. Since that figure was lower than the benefit figure, that was the amount in which the confiscation order, dated 17 December 2012, was made. Six months were given as the time for payment, with a default term of three years’ imprisonment. 11. The appellant’s present argument challenges the ascription of the value of £108,160 to the drugs. He continues to maintain that the true value of the drugs for confiscation purposes was the wholesale value of £6,857; and the total benefit should thus have been £234,156 necessitating in consequence a reduction in the recoverable amount to that figure. The statutory provisions 12. The statutory context is all too familiar. 13. Under s.6(5) the court must, where the defendant has benefited from criminal conduct, decide the recoverable amount and make an order requiring him to pay that amount. Section 7 relates to determination of the recoverable amount; s.8 relates to determination of the benefit; and s.9 relates to determination of the available amount. It is established by the decision of the House of Lords in May [2008] 2 CAR 28, [2008] UKHL 28 that a three stage process is called for. They are these. First, has a defendant benefited from criminal conduct? Second, if he has, what is the value of the benefit so obtained? Third, what sum is recoverable? These stages, as is established, require separate consideration. 14. By s.76(4) it is provided that a person benefits from conduct if he obtains property as a result of or in connection with the conduct. By s.76(7) it is provided that if a person benefits from conduct his benefit is the value of the property obtained. 15. Central to the argument of the appellant are the provisions of s.79 and s.80. In the relevant respects, s.79 provides as follows: “ 79 Value: the basic rule E+W (1) This section applies for the purpose of deciding the value at any time of property then held by a person. (2) Its value is the market value of the property at that time. …. (5) This section has effect subject to sections 80 and 81. ” Section 80 provides: “ 80 Value of property obtained from conduct E+W (1) This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision. (2) The value of the property at the material time is the greater of the following— (a) the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money; (b) the value (at the material time) of the property found under subsection (3). (3) The property found under this subsection is as follows— (a) if the person holds the property obtained, the property found under this subsection is that property; (b) if he holds no part of the property obtained, the property found under this subsection is any property which directly or indirectly represents it in his hands; (c) if he holds part of the property obtained, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands. (4) The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 79. ” “Property” is given a very wide definition in s.84. The parties’ submissions 16. The argument of Miss Ruth Jones on behalf of the appellant essentially came down to this. She conceded, in the light of the judge’s findings of fact, that the appellant was to be taken as having obtained the value of the drugs: an argument that he had not obtained even that (by reference to the decision in Allpress [2009] 2 CAR(S) 58, [2009] EWCA Crim 8) necessarily failed once his case that he was a mere temporary custodian was rejected. But she emphasised that the 169 grams of cocaine as seized were at 80% purity. By virtue of s.80(2)(a) the value of the property was to be assessed at the time the appellant obtained it. Accordingly, it was the value of those drugs that was to be decided. She submitted that was the wholesale value. It was incorrect, she said, for the judge to substitute the prospective retail street value. That would need, if to be achieved, the addition of cutting agents, division and packaging into wraps at 5% purity. That lay in the future and was to that extent speculative, she said. None of these things had been done when the appellant obtained the drugs; none of these things had been done at the time the police seized the drugs. The statutory emphasis, she submitted, was on what the appellant had obtained; not what he might thereafter obtain (since s.80(3) was not argued to apply in this case). 17. Mr Tanney, on behalf of the Crown, in the course of his submissions accepted that in confiscation proceedings drugs may frequently be valued on a wholesale basis. But all, he submitted, depends on the circumstances of the particular case. On the facts here, he submitted, the judge was perfectly entitled to adopt the retail valuation advanced by the prosecution. Disposition 18. In our judgment, the argument on behalf of the appellant is incorrect. It fails, we consider, to give proper effect to the provisions of s.79 and s.80 of the 2002 Act and it fails properly to reflect the findings of fact made by the judge. 19. In Waya [2013] 2 CAR (S) 20, [2012] UKSC 51 the legislative purpose behind the 2002 Act was stated by the Supreme Court to be one of ensuring that criminals do not profit from their crimes and to send a strong deterrent message to that effect (paragraph 2). It was further stated in paragraph 8: “….the task of the Crown Court judge is to give effect to Parliament’s intention as expressed in the language of the statute. The statutory language must be given a fair and purposive construction in order to give effect to its legislative policy.” 20. We do not accept Miss Jones’ submission that what the appellant was going to do with the 169 grams of cocaine (at 80% purity) was “speculative”. The judge made findings of fact, entirely open to the judge, as to what the appellant would do with those drugs. The appellant was found to be neither a custodian nor a wholesaler. On the contrary, he was going to sell them, cut and divided into wraps at 5% purity, as a dealer at street level. Those findings of fact, as we see it, necessarily bear on the value of the property obtained by the appellant: the market value, as specified in s.79(2) . The fact that the drugs had a purity of as high as 80% indicated, we can accept, that they had come to the appellant from a wholesale source. But that does not mean that such wholesale source prescribes the value of the drugs as obtained by the appellant as a retailer. It is perfectly consistent with the entire notion of “market value” that for particular property it may vary, depending for example on the time at which it is obtained or the capacity or role of the person obtaining it. 21. If it were not so, indeed, one would have thought that much of the basis of this confiscation hearing, and of the basis in which the appellant’s case was advanced in the s.17 statement, would have been academic. Had the appellant been found to be a wholesaler only, intending to pass on (let it be assumed) to another wholesaler “at cost”, the benefit which he obtained would, on Miss Jones’ argument, have been precisely the same as it would have been to him in his capacity (as actually found) of retail street dealer. That seems both surprising and artificial. Take another example. Suppose the police had made their seizure two days later when the appellant had cut and divided the 169 grams of cocaine into wraps of 5% purity for street sale. Miss Jones conceded that the value of the benefit would in such circumstances be £108,160. But it seems arbitrary to sanction such an outcome by virtue of the happenstance of the timing as to seizure, when the appellant’s role and intention at the time he obtained the drugs had been, and remained, precisely the same. And it also seems artificial and incorrect to resort prospectively to the provisions of s.80(3) of the 2002 Act (nor did counsel so submit). We thus conclude, given the judge’s findings of fact, that the value of the 169 grams, at the time the appellant obtained those drugs, was properly assessed by reference to the retail street value. That those drugs may have had a lesser market value to the wholesaler who previously supplied them to the appellant is in no way determinative of the value to be ascribed to them as obtained by the appellant himself. Accordingly, the judge’s conclusion reflected not simply the potential market value of the drugs (as Miss Jones’ arguments connote): they reflected the actual market value at the time when the appellant obtained them. 22. We consider that this conclusion, on the facts as found by the judge, flows from a “fair and purposive” construction of the relevant provisions of s.79 and s.80 of the 2002 Act . It also reflects the legislative purpose of the 2002 Act : to deprive a defendant of the benefit from his criminal conduct. 23. We further consider that such a conclusion accords with authority: albeit no case precisely corresponding on its facts to the present situation was cited to us. 24. We note that in Ascroft [2004] 1 CAR (S) 56, [2003] EWCA Crim 2360 (a decision discussed in Waya at paragraph 68) what was in issue was the value of stolen goods to the accused, as thief: a context, of course, very different from the present. The legislation concerned in Ascroft , it should be emphasised, was not the 2002 Act : in fact, under the statutory provisions there applicable (the Criminal Justice Act 1988 , as amended) the statutory provisions referred to the value of the property “to him”: words which do not appear in the 2002 Act . Thus the appellant had ingeniously sought in that case to argue that since he, as the thief, could only sell on the goods at a very reduced price compared to the open market value then that reduced prospective price was to be taken as the value of his benefit. It is true that it was said by the court (at paragraph 59): “The words ‘value of the property to him at the time he obtained it’ are, in our judgment, looking at the incoming value at the time rather than what the appellant might have got through a dishonest sale.” But that scenario simply does not reflect the facts of the present case. Besides, the Court of Appeal in Ascroft went on in terms immediately to say this: “In our judgment comparison with valuations in drug cases is neither relevant nor helpful.” We agree. At all events, we did not find particularly helpful purported analogous examples by reference to, for instance, real property and money as put forward by both Miss Jones and Mr Tanney in support of their respective arguments. It may, all the same, be observed that the Court of Appeal in Ascroft made clear that it would have ascribed different values to the goods, as obtained by the thief, depending on whether they were stolen from a wholesale outlet or from a retail outlet (see paragraph 60 of the judgment). This connotes an acceptance of the proposition that the value of particular goods may vary depending on the circumstances in which they are obtained. We agree with that in general terms. 25. We were referred by both counsel to the decision of the House of Lords in Islam [2010] 1 CAR(S) 245, [2009] UKHL 30 . That case was primarily concerned with the question of whether drugs could under the 2002 Act have a market value for the purposes of deciding benefit but not for the purpose of deciding the available amount. The majority decided that was the position: and that was not an issue in the present case before us. However, there are, as it seems to us, dicta pronounced in the course of the majority judgments in Islam which we think tell strongly against the appellant’s argument before us. Thus, Lord Hope said this at paragraphs 17 and 18 of this judgment: “17. …..On the one hand the court is looking for the value that the goods had in the hands of the defendant at the time when he obtained the benefit. It does not seem out of place in that context to look at the market to which he would have been expected to go to sell the drugs, even although this was an illicit one, especially as this was the only market in which he could have derived any significant benefit from them…. 18. ….The market that has to be contemplated for the assessment of the available amount under section 9 of POCA 2002 must be taken to be one to which the defendant can resort to realise his assets without acting illegally. But no such restriction applies at the stage of calculating the amount of his benefit under section 8. At that stage the nature of the goods and the market in which they are ordinarily bought and sold will determine the market to which it is proper to go to discover the amount that a willing buyer would pay to a willing seller for them.” Lady Hale said this at paragraph 25: “25. In applying section 79(2) , it seems to me entirely appropriate to ask “upon what market do we expect the value of this property to be raised?” When we are looking at the benefit which the malefactor has gained from his conduct, we look at the market in which he expected to dispose of the property in question. That is what it was worth to him.” Lord Mance said this at paragraph 35: “35. The assessment under section 80(2) (a) of the benefit consisting of the market value of property obtained looks simply to the objective value of the property if put up for sale on the market. Here, that means (under section 80(2) (a)) at the time when the defendant obtained it, i.e. at the moment of importation. In another case, it might (under section 17 80(2)(b) and (3)) mean at the date of the confiscation order. In either case, whether the importation is ever going to reach its intended market or the importation going to yield any profit at all would be irrelevant… There is nothing incongruous or inappropriate in this context about looking to the black market for each consignment of drugs; this was not just the only market but the market in which the respondent had intended to dispose of each consignment (even if only after splitting each consignment into smaller units).” 26. We accept that, as it happened, the value of benefit in Islam had been assessed by the trial judge by reference to the wholesale value. But that simply was not a point in issue in the House of Lords: indeed the case had, on its facts, involved an early interception by Customs officers of imported drugs. So in that regard the decision lends no authoritative support to Miss Jones’ arguments. On the other hand the above dicta, as we see it, support the prosecution’s argument in the present case. 27. Also against Miss Jones’ arguments are observations of the Court of Appeal (also dicta but clearly fully considered) in the case of Mejia [2009] EWCA Crim 1940 . There, the importation had been of cocaine impregnated doors from Panama. The doors were seized by Customs officers. The main argument of the appellants failed because of the intervening decision of the House of Lords in Islam and also because the further points sought to be argued on appeal had not been advanced in the Crown Court. 28. Nevertheless, the Court of Appeal went on to indicate that it in any event would have rejected those further arguments sought to be advanced on behalf of the appellants in that case: arguments which in many ways reflect those deployed before us by Miss Jones. It had there been submitted for the appellants that no attempts had been made, at the time of seizure, to extract the cocaine from the doors and that there was no market value for cocaine impregnated doors. As the court pointed out in paragraph 12, however: “It is absurd to suggest that no value is to be attached to a product containing 17.34 kgs of pure cocaine, brought into this country for the very purpose of extracting the cocaine and selling it on.” Having noted the argument that the cocaine had yet to be extracted, at a cost to be ascertained, from the doors at the time the appellants had obtained them, the court then said this: “On the other hand, [counsel for the prosecution] drew our attention to the fact that the actual calculation of value based on the wholesale market for cocaine at 100% purity was favourable to the appellants since, as the judge observed in his sentencing remarks, "once that had been cut to street level it makes approximately 52 kilograms of cocaine and puts the drug at a street value of approximately [£1.5] million" (the judge referred to £3 million, but £1.5 million would appear to be more accurate). Looking at the matter overall, on the basis of the limited information available, we do not think that the judge can be said to have been wrong to take the figure of £537,540 as the value of the property even if the correct focus was on the value of the doors rather than of the cocaine itself. The value of the cocaine was a reasonable indicator of the value of the doors, and it is hardly surprising that nobody thought at the time of drawing a distinction between the two.” The Court of Appeal went on roundly to reject an argument that the valuation should be made by reference to the cost price of the cocaine in Panama. It said (in paragraph 13): “The relevant question is the market value of the property in the United Kingdom, not its cost at source.” These various observations are thus also against the appellant’s arguments in the present case. They represent, in our view, a proper focus on an estimation of the benefit obtained by a defendant in a drugs case, applying the statutory provisions. Conclusion 29. We should add that the decision in Waya was referred to the judge, who took it into account. In agreement with the judge, we do not consider that the assessment of the benefit and the making of a confiscation order in this amount represents a disproportionate outcome or gives rise to any “fine”, given the circumstances of this particular case. 30. We would pay tribute to Miss Jones’ doughty arguments. But we are against them. Valuation of benefit is essentially a fact-driven exercise: and her arguments do not accord with the judge’s findings of fact. They do not accord with a fair and purposive reading of the provisions of s.79 and s.80 of the 2002 Act . They also do not accord with the indications given in the authorities. Since all the arrows point in one direction, that is the direction we propose to take. Accordingly we dismiss the appeal.	{"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":["2012-02-15"],"ConvictOffence":["Possession of class A drugs with intent to supply","Possessing criminal property"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Isleworth"],"Sentence":["3 years’ imprisonment"],"SentServe":[],"WhatAncillary":["Confiscation order (£245,984, 6 months to pay, 3 years’ default)"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Physical evidence (drugs, cash, scales, scalpel)","Fingerprint evidence"],"DefEvidTypeTrial":["Defendant's account (Basis of Plea)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Circumstances of financial and personal stress (claimed by defendant)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Confiscation order (valuation of benefit)"],"AppealGround":["Judge wrongly valued drugs at retail (street) value instead of wholesale value for confiscation benefit"],"SentGuideWhich":["Proceeds of Crime Act 2002 s.6, s.7, s.8, s.9, s.76, s.79, s.80"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's findings of fact supported retail valuation; statutory provisions and authorities support market value as retail value in this context; appellant was found to be a street-level dealer, not a custodian or wholesaler; all legal and factual considerations support the original order"]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. I N THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1408 Case No: 2022/03698/B5 Royal Courts of Justice The Strand London WC2A 2LL Thursday 9 th November 2023 B e f o r e: LORD JUSTICE MALES MR JUSTICE SAINI MRS JUSTICE STEYN DBE ____________________ R E X - v - DARREN DAWSON ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr J Dunning appeared on behalf of the Appellant Miss K White appeared on behalf of the Crown ____________________ J U D G M E N T ( Approved ) ____________________ Thursday 9 th November 2023 LORD JUSTICE MALES: Introduction 1. On 1 st December 2022, following a trial in the Crown Court at Great Grimsby before His Honour Judge Thackray KC and a jury, the appellant, Darren Dawson (then aged 33) was convicted of robbery. On the following day he was sentenced to seven years' imprisonment. 2. There were two co-accused, Zack Tingle and Thomas Mobbs, both of whom were also convicted. 3. The appellant now appeals against conviction by leave of the single judge. The Facts 4. On 19 th July 2021, at around 8 pm, Ian Clementson was subject to a violent attack by three men. He was caused significant injuries, and £40 in cash was taken from him. 5. Mr Clementson had been walking back to his accommodation from a local pub where he had had dinner, when he was hit from behind without warning. Two of the attackers punched him while the third pulled his bag from him. He was then escorted by the attackers to a nearby cash machine, where he was made to withdraw £40 in cash in exchange for the return of his belongings. 6. As part of the investigation, CCTV was recovered from the convenience store, Booze Master, where the cash machine was located and from a residential address on Teale Street, where the attack had occurred. 7. The CCTV footage from the cash machine showed the victim initially attending with a single male, who was wearing a blue puffer coat. The prosecution case was that this was the appellant, Darren Dawson. Two further males attended shortly afterwards. The CCTV showed the victim withdrawing cash which was handed to the first male, before all three males left together. 8. One of these men was the co-accused Zack Tingle. He was wearing a pale blue T-shirt with a design on the front, white shorts and black trainers. Similar clothing was recovered from a search of his address on 22 nd July 2021. During his police interview on 23 rd July, Tingle accepted that an incident had occurred at which he had been present but denied that he was involved. 9. The appellant was later identified as a suspect. During his police interview he denied being involved in the robbery and subsequently answered "No comment" to all questions asked. 10. On 3 rd August 2021, the co-accused Thomas Mobbs was identified from a still image by Detective Constable Wressell. He was arrested on 5 th September 2021. At the outset of his police interview he denied that he was involved and thereafter answered "No comment" to all questions asked. 11. CCTV footage was later obtained from Sheffield Street. It showed males, similarly dressed as the robbers, both before and after the robbery. The appellant lived at 42 Sheffield Street. 12. The footage from before the robbery begins at 7.20 pm and continues up to 7.50 pm. The CCTV footage at the cash machine was at 8.02 pm, and the CCTV footage from Sheffield Street after the robbery was at 8.20 pm, when the three men are seen returning, a minute after the victim is also seen on the same footage. The evidence was that it would take four or five minutes to walk from Sheffield Street to the location of the robbery. 13. The prosecution case was that the appellant and the two co-accused were the three males who jointly participated in the robbery. Their case was that CCTV footage from Sheffield Street showed the appellant leave his address with the co-accused Tingle a few minutes before the robbery and that all three co-defendants returned to the vicinity of the appellant's address within a few minutes after the robbery. In particular, the prosecution said that it was the appellant who was seen to leave the address on Sheffield Street where he lived. The Issues at the Trial 14. So far as the appellant was concerned, the issue was whether he was the person seen on the CCTV wearing the blue puffer jacket, who had taken a leading part in the robbery. To prove the case against him, the prosecution relied on the following matters: (1) The evidence of the victim, Ian Clementson. He described the force of the initial punch to his left temple and the subsequent punches by the attackers, one of which caused a fracture to his skull. He said that there were three attackers. Two of them were punching him and the third, the tallest of the three, tried to take his bag off his shoulder. He gave descriptions of all three attackers. The tallest was about six foot, slim with short dark hair and in his mid-30s. He described one of the other males as the youngest, around 25 years old, with short, light brown hair, five foot five or six inches tall and slim. The third male was five foot ten, with dark, cropped hair and slim. He was wearing a blue puffer coat. This man seemed to be the ringleader. The “tall guy” had handed his bag to the male in the blue puffer and the shorter male had wandered off. Mr Clementson confirmed that the three males shown on the CCTV near the cash machine were the three people involved. (2) The evidence of identification of DC Curry. She was the officer who arrested the appellant. She viewed the CCTV footage three times and identified the male in the footage as the appellant. (3) The CCTV footage from the cashpoint. (4) The CCTV footage from Sheffield Street, where the appellant lived. (5) The seizure of the distinctive clothing worn by the robber, namely a pair of blue jogging bottoms with a white stripe down the leg and a distinctive blue baseball cap with a logo on the front, both of which were seized from the appellant's address. This occurred some time after the robbery, when the appellant had been identified as a suspect. However, no puffer jacket was found at his address. (6) The fact that the appellant had a tattoo on his neck, similar to that seen on the male in the CCTV footage of Sheffield Street. (7) Evidence of the appellant's bad character as evidence of propensity. (8) Adverse inferences from the appellant’s failure to give evidence. 15. The appellant's defence was one of mistaken identification. He denied any involvement in the offence. 16. The co-accused Mobbs also denied presence. The co-accused Tingle admitted presence, but denied participation. 17. The appellant's defence relied on the following evidence to show that the identification of him was mistaken: (1) The fact that no identification procedure took place in respect of the appellant. This was an agreed fact which formed part of the evidence before the jury. (2) The fact that at an early stage of the investigation DC Belton had identified the man wearing the puffer jacket shown on the CCTV at the cash machine as a man called Nathan Norton. DC Belton made a witness statement in which he was firm in his identification of Nathan Norton. (3) The blue puffer coat and red T-shirt worn by the lead robber were not found at the appellant's address. The Application to Discharge the Jury 18. The jury retired to consider their verdicts at around 3 pm on 1 st December 2022. While the jury were in retirement, prosecution counsel (who had just herself been made aware by the officer in the case) informed defence counsel that, contrary to the agreed fact, there had after all been an identification procedure in respect of the appellant. The identification procedure was negative, in that the victim failed to pick out the appellant. 19. While counsel were discussing how to deal with this matter, the jury indicted that they had reached verdicts. The jury note is timed at 3.30 pm – no more than half an hour after their retirement. Before verdicts were taken, counsel raised the issue with the judge; and counsel for the appellant applied to discharge the jury. 20. The judge refused the application to discharge the jury without giving reasons at that stage, and proceeded to take verdicts. The jury returned unanimous guilty verdicts in respect of all three defendants and sentence was adjourned to the following day. 21. On 2 nd December 2022, prior to sentence, and having enquired what role the appellant's legal team played in the identification procedure, the judge gave his reasons for refusing the application to discharge the jury. After expressing his surprise that the defence agreed to the formal admission that no identification procedure had taken place, and commenting that it had been inappropriate for defence counsel to have asked the jury in his closing submissions to consider why there had been no identification procedure, when no such question had been asked of the officer in the case, the judge accepted that the prosecution should have disclosed that there had been a negative identification procedure and that this would have been a point on which the defence would have relied, but concluded that the point was of no significance whatever. He said that the likelihood of the victim being able to identify anybody was extremely low. He had been hit from behind to the side of his head, with significant force. His glasses were knocked off and he received further blows to the head with such ferocity that his skull was fractured. He was undoubtedly in shock while being escorted to the cash machine without his glasses. Accordingly, the fact that he had failed to identify the appellant carried no weight. Moreover, in the judge's view, the evidence against the appellant was overwhelming. He summarised this under eight headings: (1) The jury were able to see the CCTV footage of the man said to be the appellant at the cash machine. The judge described the footage as "of extremely good quality", and the jury were entitled to look at it repeatedly and to compare it with the appellant in the dock. (2) The jury were able to rely on the evidence of DC Curry, who identified the appellant from the same footage, having arrested him and transported him to the police station, where she interviewed him. (3) It was an inevitable conclusion that the man seen on Sheffield Street, where the appellant lived, was the same man, wearing identical clothing, who had escorted the victim to the cash machine. (4) The man seen on Sheffield Street was seen repeatedly to enter and to leave the appellant's address, as well as the house next door, which belonged to his sister. (5) Distinctive clothing, namely a cap and jogging bottoms with a blue stripe, was recovered from the appellant upon his arrest. (6) The man seen on Sheffield Street could be seen to have a tattoo on the back of his neck, which was red in colour and the same shape as the tattoo on the back of the appellant's neck (an Arsenal Football Club badge). (7) The appellant had not given evidence. (8) The appellant had previous convictions involving similar behaviour on two occasions, both involving violence. 22. The judge concluded: "… in view of the overwhelming mountain of evidence against the defendant, the significance of a negative identification parade by a man who was in shock, without his glasses and suffering from a fractured skull was neither here nor there and in my judgment, although of course I concede that disclosure of the negative identification parade should have taken place, whether the defence were involved or not before the trial or at the very least during the trial, its late disclosure after the jury reached their verdicts did not justify this jury being discharged." 23. In fact, the existence of the negative identification procedure was disclosed after the jury had retired, but before they reached their verdicts, although in view of the speed with which they did so, they had reached verdicts by the time the judge was notified of the position. 24. The judge added that, in reaching his conclusion, he had balanced "the interests of justice to the defence and the prosecution", taking account, among other things, of the fact that if he had discharged the jury, the victim would again have to give evidence several months in the future when a retrial could be arranged. The Submissions 25. For the appellant, Mr Dunning submitted that the judge should have discharged the jury once it came to light that a negative identification procedure had taken place, contrary to the agreed fact which was put before the jury. By that stage, as the jury had indicated that they had reached verdicts, it was too late to do anything else. The judge's view that the existence of a negative identification procedure would have made no difference, because the likelihood of the victim being able to identify anybody was extremely low, was a matter within the province of the jury, not the judge. The judge was wrong to describe the case against the appellant as "overwhelming"; again, this was a matter for the jury. 26. Mr Dunning submitted that the judge's reasoning may have been coloured by his implicit criticism of the defence, who should have been aware that the identification procedure had taken place. He submitted also (although he recognised that this was a subsidiary point) that weight should not have been given to the evidence of DC Curry, who had viewed the footage no more than about three times, and who had accepted in cross-examination that she was in no better position than the jury to identify the appellant from the footage. 27. For the prosecution, Miss White supports the reasons given by the judge in his ruling. Although she accepted that the fact of the negative identification procedure ought to have been disclosed and that in some cases such a failure would give rise to a successful appeal, she submitted that the conviction here was safe in view of what the judge rightly described as "overwhelming evidence" against the appellant. Decision 28. We accept, as did the judge, that the prosecution failure to disclose the fact of the negative identification procedure was a material error. The result was that a fact which was not true was agreed, and in that respect the case was put before the jury on a false basis. Despite this, we agree that this was an overwhelming case, substantially for the reasons given by the judge, and that the conviction is safe. Nevertheless, we have some reservations about his ruling, which we should mention. 29. First, it is evident that the judge was troubled by the fact that the appellant's solicitors, as he understood it, were aware that the identification procedure had taken place. It is not clear to what extent this concern affected his reasoning. He dismissed the application to discharge the jury before ascertaining what the solicitors knew, which suggests that it played no part in his reasoning; but, on the other hand, he did express his concern in the reasons which he subsequently gave. 30. For our part, we would not attach significance to this fact and do not regard it as a relevant consideration for the decision which the judge had to make. It was not suggested that the solicitor's knowledge of the negative identification procedure was deliberately suppressed for tactical reasons, and obviously that suggestion could not have been made, because it would have been to the appellant's advantage, at any rate to some extent, to deploy the point at the trial. In fact, what had happened was that there had been a change of representation, and the solicitors who were notified of the identification procedure had evidently failed to pass on that information to the new solicitors representing the appellant at the trial. As a result, neither the trial solicitors nor Mr Dunning, as trial counsel, was aware that the procedure had taken place. Nor was Miss White, as prosecution counsel, until after the jury had retired, when it was drawn to her attention by the officer in the case. We agree with the judge that if a point was to be made in closing submissions about the reason why no identification procedure had been carried out, the officer in the case ought to have been asked about it. If he had been, the true position would have been revealed. However, the judge dealt with this in his summing up. He warned the jury against speculation. The only question now is whether, despite the failure to disclose the negative identification procedure and the putting of a false agreed fact before the jury, the appellant's conviction is nevertheless safe. 31. Second, the judge said that the negative identification procedure carried no significance because the likelihood of the victim being able to identify anybody was extremely low. That may be so, but it has to be set against the fact that the victim was able to give descriptions of his attackers, which were borne out by the CCTV evidence, and the police evidently thought that there was some point in carrying out an identification procedure after the victim had been in the attackers' company for at any rate a few minutes. It was not, therefore, a fleeting glance. If the existence of the negative identification had been disclosed, there were points which the appellant would have been able to make about it to the jury, whose responsibility it would have been to assess their impact. On the other hand, there was a negative identification in the case of the co-defendant Mobbs, which was part of the evidence before the jury, and the jury had no difficulty in convicting him. 32. Finally, we are not sure what the judge meant by saying that in reaching his conclusion he had "balanced the interests of justice to the defence and the prosecution, the prospect and fairness to the defendants, not just [the appellant] but Mr Mobbs and Mr Tingle, who were no doubt anxious to know their fate, and the complainant who, if I had discharged the jury, would have had to give evidence at some time in the future when a retrial could have been arranged". 33. In our judgment, these were irrelevant considerations. The only question for the judge was whether, in the light of the new information provided to him, the conviction of the appellant would have been safe. That does not require any kind of balancing exercise such as the judge described and which, on his own account, influenced his conclusion. 34. In those circumstances we have considered the safety of the conviction for ourselves. Despite our reservations with some aspects of his ruling, we agree with the judge that the evidence against the appellant was overwhelming. For this purpose, we put to one side the evidence of DC Curry, which was one of the factors on which the judge relied and about which Mr Dunning made submissions. But in particular the CCTV evidence from Sheffield Street, where the appellant lived, shows three men only a matter of minutes before and after the robbery. That footage shows a man dressed in the same way as the principal robber, at the appellant’s address and in company with the co-defendants. It is particularly damning, as is the appellant's tattoo, which corresponds to what can be seen on the CCTV footage from Sheffield Street. So, too, is the recovery of the distinctive clothing seen on the footage from the appellant's address, despite the fact that no puffer jacket was seized on that occasion. 35. Taken in combination, this evidence leaves no room for doubt that the man in company with the co-defendants before and after the incident was indeed the appellant. The appellant gave no details of any alibi; and he elected not to give evidence. The overwhelming inference that he was indeed the robber was, therefore, effectively unchallenged. 37. Accordingly, the appeal against conviction is dismissed. _______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________	{"ConvCourtName":["Crown Court at Great Grimsby"],"ConvictPleaDate":["2022-12-01"],"ConvictOffence":["Robbery"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Great Grimsby"],"Sentence":["7 years' imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[33],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony","Expert report/testimony","Clothing identification","Tattoo identification","Bad character evidence"],"DefEvidTypeTrial":["No identification procedure (agreed fact, later found incorrect)","Alternative suspect identified by police officer","No puffer jacket or red T-shirt found at appellant's address"],"PreSentReport":[],"AggFactSent":["Violent attack","Significant injuries to victim","Robbery committed by group"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Jury was misled by agreed fact that no identification procedure took place","Negative identification procedure not disclosed to defence or jury","Judge failed to discharge jury after disclosure of new evidence"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Evidence against appellant was overwhelming","Failure to disclose negative identification procedure did not render conviction unsafe","CCTV and other evidence left no room for doubt"]}
WARNING: reporting restrictions apply to the contents transcribed in this document, as shown in paragraphs 2 and 3 of the judgment, because the case involved several children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202103752/A1 NCN [2022] EWCA Crim 400 Royal Courts of Justice Strand London WC2A 2LL Tuesday 8 March 2022 LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES MR JUSTICE COTTER REGINA V JACOB TALBOT-LUMMIS __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MS D ELLIS QC & MR N MURPY appeared on behalf of the Appellant. MS R KARMY-JONES QC appeared on behalf of the Crown. _________ J U D G M E N T 1. LORD JUSTICE HOLROYDE: This appellant, who was aged just 15 years 8 months at the time of his offending, was convicted of offences of attempted murder (count 1) and possessing a firearm with intent to endanger life (count 3). His victim (to whom we shall refer as "V") was another schoolboy of a similar age. The appellant was sentenced on count 1 to an extended determinate sentence of 29 years, pursuant to section 254 of the Sentencing Code, comprising a custodial term of 24 years and an extended licence period of 5 years. He appeals against his sentence by leave of the single judge. 2. We make clear at the outset that reporting restrictions apply to this case. The appellant may be named but three other young persons may not. They are the victim ("V"), a witness who was a schoolboy friend of the appellant (whom we shall call "W1") and a witness ("W2"), a young girl who witnessed the events. In the court below, HHJ Levett made an order pursuant to section 45 A of the Youth Justice and Criminal Evidence Act 1999 . That order continues in force. It relates to the three young persons we have just mentioned and the restrictions apply to the proceedings in this Court. 3. We therefore make clear that until further order (i) no matter relating to either V, W1 or W2 shall be included in any publication if it is likely to lead members of the public to identify any of them as being a person concerned in the proceedings and (ii) without prejudice to the generality of (i), the following matters shall not be included in any publication during the lifetime of V, W1 or W2 if their inclusion is likely to have the result mentioned in (i), namely his or her name, his or her address and any still or moving picture of him or her. 4. The appellant and V had known each other since they were at primary school. The appellant had reported to his mother and stepfather that he had over the years been repeatedly bullied by V. In the summer of 2020 he began to speak to his friend W1 about wanting to kill V. W1 regarded the plan, which included subsequent flight to Guatemala, as a fantasy on the appellant's part. 5. As a result of the Covid-19 pandemic, the boys had been absent for school for most of the time between March 2020 and the end of that summer term. The appellant's contact with V during that period had been very limited. They were due to return to school at the start of the autumn term on Monday 7 September. 6. It appears that the appellant's grandfather owned two shotguns, one being a double-barrelled shotgun which was larger and more powerful than the other. The appellant had on a number of occasions used the smaller shotgun to shoot at clay pigeons with his grandfather. He had also fired the larger shotgun on a few occasions. 7. On Sunday 6 September the appellant secretly moved the larger double-barrelled shotgun to his grandfather's garage, where he hid it with two boxes of cartridges. He then spent some time with W1, and told him that he planned to shoot V and then flee to Guatemala. 8. Very early on the Monday morning the appellant took the keys to his father's car. It appears that, despite his young age, he had unlawfully driven a car on a number of previous occasions. He went to his grandfather's house, where he collected the shotgun and cartridges from the garage. He then drove to a local forest, where he discharged the shotgun. He sent a message to W1 saying: "I am going to do it". 9. The appellant then drove to the street where V lived and parked near V's home. He waited there for more than an hour. He sent V a text message asking to meet him at 8.40 am. Around that time, V left his house ready to go to school. As he approached the car the appellant shot him in the face at very close range. The appellant told a passing schoolgirl (W2) to run. He then drove away, apparently believing that he had killed V. He discarded his mobile phone. He was intercepted by Police outside his grandfather's address. When arrested he said: "I've done what I wanted to do, as scummy as it is. I will 100% co-operate with you". 10. V suffered severe, life-threatening injuries. His life was fortunately saved by immediate and skilled medical intervention. He remained in hospital for a very long period and is left with permanent disability. His education has been adversely affected and his career plans abruptly ended. He is no longer able to play musical instruments, which were a very important part of his life. Although it is unnecessary for present purposes to go into further detail, there can be no doubting the seriousness of the injuries and their enduring consequences. 11. The indictment against the appellant included a charge of wounding with intent (count 2), which was an alternative to count 1; and a charge of possessing a firearm with intent to cause fear of violence (count 4), which was an alternative to count 3. Well before the trial date, the appellant pleaded guilty to count 4. The prosecution did not accept that plea and the trial proceeded. The appellant's defence was that he had not intended to kill or injure V but had intended to kidnap him, take him to the forest and fire shots close to him, so as to frighten him. The jury returned the guilty verdicts we have mentioned. 12. At the sentencing hearing on 1 November 2021, the judge was assisted by a substantial body of material. Victim personal statements from V and his family made clear that, in addition to the grave injury which V had suffered, his whole family had been severely affected by the offences, which were of course committed very close to the family home. Statements by the headteacher of the boy's school and by a senior police officer described the profound impact on the school and the wider community of this shocking incident. In the immediate aftermath of the shooting, when inevitably information was emerging piecemeal via social media, parents understandably feared for the safety of their children. Thereafter, staff and pupils were significantly affected by the events. 13. Suffolk County Council's Youth Justice Service had prepared three reports addressing the issue of dangerousness. The first described the appellant as being remorseful and having insight into the harm he had caused and concluded that he presented only a low risk of causing serious harm by further offending. This report was however open to criticism because it did not take into account the jury's rejection of the appellant's claimed intention to do no more than frighten V. The second report, prepared by a different author, assessed a medium risk that the appellant would cause serious harm by committing further offences but concluded that he was not "dangerous" as that term is defined for sentencing purposes. That report was open to criticism on the ground that the author had not spoken to the appellant at any stage. The final report, prepared by a third author, was based on, amongst other things, interviews with the appellant. The author reported the appellant as saying that he had become very anxious about the prospect of returning to school and facing further bullying. The author noted that the appellant had failed to share the full extent of that anxiety with his family, but pointed out that he was only 15. The report concluded that the appellant was unlikely to commit further offences of a serious nature. 14. The judge also had reports about the appellant from Dr Frank Farnham, consultant forensic psychiatric, and Dr Michael Watts, consultant forensic neuropsychologist. Dr Farnham referred to the appellant's history of significant childhood emotional difficulties, his father having been in prison for a number of years and his mother suffering from problems linked to depression and alcohol. He diagnosed the appellant as suffering, at the time of the offences and in the preceding months, from a depressive disorder of moderate severity. Dr Watts similarly spoke of the appellant's formative years having been marked by significant dysfunction involving an emotionally impoverished and unstable home environment. 15. Although those reports were of course prepared after the appellant had been convicted, it should be noted that there was also evidence from the appellant's general practitioner that the appellant had presented, many months before the shooting, with complaints of anxiety and stress. 16. The judge also had letters from the appellant's father and step-grandfather, making clear that the appellant's offending was out of character. To similar effect, evidence in the case appears to have shown the appellant to have been appropriately behaved at school before these dreadful crimes. 17. In his sentencing remarks the judge referred to the seriousness of gun crime and the need for deterrence. He also referred to the effects of violent video games of the kind which the appellant had enjoyed. He rightly gave weight to the victim personal statements. He described the offences as having been pre-planned and premeditated. He accepted that there had been a complicated relationship between the appellant and V, but did not accept that there had been bullying on the scale suggested. He noted that the appellant appeared to be fascinated by guns and to be entrenched in violent video games. 18. The judge took into account the views expressed in the reports of the Youth Justice Service and the prospect that the appellant would mature. He emphasised however that, unlike the authors of the various reports, he had heard all the evidence in the case. He concluded that the appellant met the criterion of dangerousness, in particular taking into account that he had intended to kill; he had done nothing to assist V after shooting him; he had shown no mercy or restraint in the shooting; and he had in effect ambushed V, deliberately firing at him from very close range. 19. The judge referred to the Sentencing Council's definitive guideline on overarching principles in sentencing children and young persons, and had regard to the guideline for offences of attempted murder committed by adults. He identified the offence charged in count 1 as falling into category 1A of the latter guideline, with a starting point of 35 years' custody and a range from 30 to 40 years. That offence was aggravated by the count 3 offence and by the fact that the shooting occurred in a public place, where it was likely to be and was in fact witnessed by one or more children. He referred to the fact that the appellant had no previous convictions and to other points of mitigation advanced on his behalf. He concluded that the appropriate sentences for an adult offender would be 36 years' imprisonment on count 1 and 18 years on count 3. To take account of the appellant's age he reduced those sentences to 24 years and 12 years respectively. He held that an extended determinate sentence was necessary to address the risk which the appellant posed. 20. On count 1 the judge imposed, as we have said, an extended determinate sentence of 29 years, comprising a custodial term of 24 years and an extended licence period of 5 years. As to count 3, he said the sentence would be one of "12 years' detention which will be concurrent". A question has been raised as to whether the judge intended to pass a concurrent extended sentence or a concurrent standard determinate sentence. We are satisfied that the judge intended to, and did, impose a concurrent standard determinate sentence of 12 years' detention on count 3. 21. As to count 4, to which it will be recalled the appellant had pleaded guilty, the judge said there would be no separate penalty. 22. In her grounds of appeal against the sentence on count 1, Ms Ellis QC, who represents the appellant in this Court as she did below, challenges the length of the notional adult sentence, the extent to which the judge reduced that sentence because of the appellant's youth and the finding of dangerousness. As to the length of the notional adult sentence, she submits in summary that the judge fell into the error of double counting when he moved upwards from the guideline starting point of 35 years; placed too great an emphasis on reducing gun crime by deterrence, a purpose of sentencing which would be consistent with statute when dealing with an adult but was of less significance when sentencing a child; and failed to give sufficient weight to the mitigating factors. Those mitigating factors, in summary, were these. First, the appellant's young age and lack of maturity at the time of the offences. Secondly, his remorse and regret, which had been assessed as genuine by the authors of the various reports. Thirdly, the fact that he had no previous convictions and had, as we have said, attracted favourable comments from a number of sources. Fourthly, the fact that he had been subjected to bullying by V over many years, a fact which Ms Ellis submitted was strongly confirmed by the independent account given to the police by W1 when first interviewed. Fifthly, the dysfunctional upbringing which the appellant had experienced and which had caused him, for example, to be embarrassed about bringing his mother into school, and in that way had inhibited his ability to disclose his anxieties and concerns to adults. Sixthly, his co-operative behaviour when detained by the police. And lastly, the mental disorder which was the subject of unchallenged medical evidence and which had been diagnosed as a problem both before and at the time of the offences. 23. As to the reduction made on grounds of youth, Ms Ellis draws attention to the overarching principles in the Children guideline, in particular paragraph 1.10, emphasising the court's duty to have regard to the principal aim of the youth justice system, which is to prevent offending by young persons, and to have regard to the welfare of the child. She submits that in applying paragraph 6.46 of that Guideline, which gives a rough guide to the application of an adult guideline where that is appropriate in the case of a young offender, the judge wrongly treated the appellant as being more mature than his peers, when there was no evidential basis for doing so. As to dangerousness, Ms Ellis accepts that the judge was not bound to adopt the views expressed in the Youth Justice Service reports, but points out that the appellant had no history of violence or offending. She submits that the judge had no reason to conclude that he was dangerous. Ms Ellis also challenges the sentence of no separate penalty on count 4, which of course does not affect the appellant's overall position but which was, she submits, unlawful. 24. We have also been assisted by submissions today by Ms Karmy-Jones QC, representing the respondent as she did at trial. She accepts that the sentence on count 4 was unlawful. With that exception, she submits that the judge correctly approached the difficult question of sentencing the appellant for his grave offences. She adopts a neutral position as to whether this court should reduce the length of the sentences imposed. 25. We are very grateful to both counsel for their detailed written and oral submissions. 26. It is convenient first to address the issue relating to the judge's pronouncement of no separate penalty on count 4. With respect to him, we are satisfied that the judge fell into error in taking that course. In R v Cole (1965) 49 Cr App R 199 and much more recently in R v Ismail [2019] EWCA Crim 290 , this court has explained that, where an offender pleads guilty to the lesser of two alternative charges, but is then convicted of the more serious offence, the effect of imposing no separate penalty for the lesser crime is that the offender then wrongly stands convicted of both offences despite the fact that they are alternatives. He should in such circumstances be convicted and sentenced only for the more serious offence. The appropriate course, therefore, is to order that the lesser offence should lie on the file and not proceed to sentence on that charge. An alternative course which would have been open to the judge would have been to direct that the guilty plea to the lesser evidence offence be vacated and that charge left to lie on the file. 27. We turn to the submissions relating to the sentence on count 1. It is only rarely that a court has to sentence such a young offender of previous good character for offending of such gravity. The judge was therefore faced with a very difficult sentencing process. We acknowledge the obvious care which he took in seeking to address the many points which fell to be considered. 28. As Ms Ellis has submitted, every court must when sentencing a child or young person have regard to the principal aim of the youth justice system and the welfare of the child offender (see section 37 of the Crime and Disorder Act 1988 and section 44 of the Children and Young Persons Act 1933 ). The Children guideline, at paragraph 1.2, indicates that while the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child as opposed to offence focused. At paragraph 1.5 it emphasises the importance of bearing in mind any factors such as immaturity which may diminish the child's culpability. In the present case, the evidence as to the appellant's emotional difficulties and depressive disorder were relevant in that regard. 29. The guideline goes on, at paragraph 4.5, to list some factors which the court will wish to consider in assessing culpability. The list includes the extent to which the offence was planned, the level of force that was used and the awareness of the child offender of his actions and their possible consequences. 30. In the present case, the extent to which the offence was planned was, in our view, exceptional for such a young offender. Where an offence committed by a child is aggravated by planning and premeditation, it will often be the case that the significance of that aggravating feature is reduced by the fact that the planning concerned was that of a young, immature person with limited appreciation of the consequence of his acts. In this case, however, the appellant had clearly formed a very clear plan to murder V and had gone to considerable steps to put himself in a position to do so. The secretive laying up of the shotgun and cartridges for later collection, and the long wait for his victim, show a worrying determination to carry out the plan. So too do his comments to W1 on the previous evening and his admission to the police when detained. 31. Given the unusual and very grave nature of the case, the judge was clearly entitled to have regard to the sentence which would be appropriate for a mature adult and then reflect the appellant's youth by making an appropriate reduction as indicated in paragraph 6.46 of the Children guideline. That paragraph says: "When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age. " 32. The offence charged in count 1 fell into category 1A of the relevant adult guideline because it involved the use of a firearm. The judge rightly took into account that the offence was also made more serious by the element of planning, which is a high culpability factor in the guideline. Given that the judge was imposing on count 1 a sentence which took into account the conviction on count 3, he was right to reflect both those features. He was also correct to regard as a significant aggravating factor the location of the offence in a street near a school where it was likely to be witnessed by children. 33. The youth of the appellant was largely to be reflected in the reduction from the adult sentence to which the Children guideline refers. 34. As to other mitigating factors however, we see force in the submissions made by Ms Ellis. We recognise that the judge, who had the advantage of hearing all the evidence, did not accept that the level of bullying by V had been as great as the appellant contended. Although that was contrary to the evidence not only of the appellant himself but also of W1, the judge was in the best position to assess the evidence, and there is no basis on which we could go behind his finding. What, with respect, he did not address however, was the full effect of the bullying, whatever its level may have been, on the appellant. In that regard, the evidence that the appellant had sought medical advice months before the offending, the evidence of W1 as to the appellant's frequent displays of anxiety and the expert evidence prepared for sentencing purposes pointed to the appellant suffering from a depressive disorder of moderate severity at the time of the offending. With respect to the judge, that important feature of the case was not reflected in his sentencing remarks. Having balanced aggravating and mitigating factors, the judge concluded that there should be a modest upwards adjustment of the starting point for an adult sentence from 35 to 36 years. In our judgment, that failed sufficiently to reflect features of the mitigation to which the judge did not refer. We take the view that, on a fair balancing of aggravating and mitigating factors, there should have been a modest downward movement from the starting point to a notional adult sentence of 34 years. 35. We then see considerable force in Ms Ellis's submission that the judge failed to make a sufficient reduction from that notional adult sentence to reflect the young age of the offender. There was, in our view, no basis for treating the appellant as being more mature than others of his age. Ms Karmy-Jones has helpfully confirmed that it was no part of the respondent's case to suggest that the appellant was. We therefore agree with Ms Ellis's submission that there was nothing to suggest that the appellant's emotional and developmental age was any greater than that of other boys with a chronological age of 15 years 8 months at the time of offending. 36. The Children guideline is of course only giving a "rough guide" in paragraph 6.46, but although the judge referred to that phrase in his sentencing remarks, he gave no specific explanation for reducing the adult sentence only to the extent which the guideline suggests would be appropriate to a young offender nearing the age of adulthood. Whilst of course the judge was not required to engage in an arithmetical exercise, he should, in our view, have reflected the appellant's young age and consequent immaturity by imposing a sentence closer to one-half, rather than two-thirds, of the notional adult sentence. 37. For those reasons we allow the appeal to this extent. We quash the sentences imposed below. We substitute for them the following: on count 1, an extended determinate sentence of 23 years, comprising a custodial term of 18 years and an extended licence period of 5 years; on count 3, a concurrent standard determinate sentence of 9 years' detention. On count 4, we direct that the count should lie on file and that the court do not proceed to sentence. 38. LORD JUSTICE HOLROYDE: Jacob, have you been able to hear that? Yes, thank you. Have you been able to understand it? Thank you. No doubt Ms Ellis or Mr Murphy will be speaking to you at some stage after this hearing. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 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Neutral Citation Number: [2012] EWCA Crim 2750 Case No: (1) 2012/02540B1 and 2008/04306B1 (2) 2011/06267C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM (1) LUTON CROWN COURT (2) TRURO CROWN COURT (1) Mr Justice Saunders (2) Mr Justice Burnett (1) T2011/7032: (2) T2008/7001; 2011/7034 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/12/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HON MR JUSTICE FULFORD and THE HON MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - Between : (1) Leigh George Clift -v- R Appellant Respondent - and - (2) Brian Leslie Harrison -v- Appellant R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A Jefferies QC for Clift S Laws QC and J Ticehurst for Harrison J Price QC for the Crown Hearing dates: 28 th November 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: Introduction 1. These otherwise unconnected cases, one an appeal against conviction, the other an application for leave to appeal against conviction, follow convictions for murder and require us to examine the proper ambit of s.74(3) of the Police and Criminal Evidence Act (the 1984 Act). 2. Both appellants (as, for convenience we shall describe the defendants), were convicted of murder several years after they had inflicted what eventually proved to be fatal injuries on their victims. Both were sentenced to life imprisonment. The minimum term in Clift’s case was 6 years and in Harrison’s case 16 years. While their victims were still alive both were convicted of violent offences against them contrary to s.18 of the Offences Against the Person Act 1861 . The criticism and the basis for each appeal is that earlier convictions based on the opinion of the juries, as expressed in their verdicts, were irrelevant and inadmissible at the subsequent trials. 3. Two statutory provisions are relevant. Section 74(3) of the 1984 Act provides: “In any proceedings where evidence is admissible of the fact that the accused has committed an offence, if the accused is proved to have been convicted of the offence – (a) by or before any court in the United Kingdom … (b) he shall be taken to have committed that offence unless the contrary is proved.” Section 78 of the 1984 Act, so far as material, provides: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears that, having regard to all the circumstances … the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”. 4. The context is the Law Reform (Year and a Day Rule) Act 1996 . This abolished the common law rule that an essential ingredient of the offence of murder was that the death of the individual wounded or injured should take place within a year and a day after the attack. Provided the actions of the defendant are proved to have caused death, the lapse of time between the unlawful actions of the defendant and the date of death is no longer material to guilt. This new provision is reflective of a number of different features, including the ability of medical science to extend life for very much longer than it once could, and the increasing expertise which enables convincing evidence to be adduced to demonstrate that the eventual death, even years after the original attack, was caused by or in the course of injuries inflicted at the much earlier date. Where, notwithstanding grievous injuries the victim is still alive, the hope is that he will survive. On the other hand, proceedings against the person responsible for causing or inflicting severe injuries cannot and should not be indefinitely postponed. The perpetrator should be brought to justice and trial. R v Clift 5. On 18 January 2002 Leigh Clift was convicted at Luton Crown Court before His Honour Judge Baker QC and a jury of wounding Jonathan Barton with intent to cause grievous bodily harm contrary to s.18 of the Offences against the Person Act 1861 . He was sentenced to 10 years imprisonment, from which he was released in January 2007. 6. The conviction arose from an attack by the appellant on Jonathan Barton on 8 September 2000. The appellant wielded a screwdriver which penetrated the left side of Mr Barton’s head and fractured his skull, causing a catastrophic brain injury. In convicting him the jury was satisfied that he had not been acting in self defence and that all the ingredients of this offence were proved. Mr Barton lived for the remainder of his life in a variety of hospitals and rehabilitation units and in a special extension built at his mother’s home, totally dependent for all activities of daily living on his carers. One of the consequences of his injuries was that he had to be fed through a tube. On 10 July 2009 the tube need to be re-inserted, but following an operation, a complication developed which resulted in his death in the early hours of 11 July 2009. 7. A post mortem was conducted a few days later by Dr Fegan-Earl. He concluded that the original attack in September 2000 and the death in 2009 were connected. Dealing with it in summary for the purposes of this case, the assault on Mr Barton led to the severe brain injury which meant that he had to be fed through a tube. Although this was correctly inserted, the complication identified as a small bowel volvolus, a condition in which the small bowel twists on itself, arose and compromised the blood supply, and leading in turn to oxygen deprivation to the bowel which dies and causes bowl obstruction. As a result of the obstruction of the bowel Mr Barton suffered a fatal cardiac arrest. After the post mortem the deceased’s brain was examined by a neuropathologist. The examination revealed significant and wide spread damage caused by the original injury. This would have led to yet more complications, particularly relating to feeding and respiration and contributed to Mr Barton’s death. His consultant, Dr Richard Smith, who had been treating him since 2006 agreed with the opinions of the pathologist. In effect, he concluded that Mr Barton’s death was caused by medical complications due to his condition which was in turn caused by the original catastrophic brain injury. 8. The appellant was duly charged with Barton’s murder. At trial the prosecution applied to adduce the appellant’s conviction of the s.18 offence against Barton in accordance with s.74(3) of the 1984 Act. Saunders J decided that the evidence that the appellant had indeed committed this wounding offence was admissible and relevant as part of the evidence which went to prove the murder. He also rejected the submission that it would be unfair for this evidence to be adduced and that it should be excluded under s.78 of the 1984 Act. The judge decided that the appellant’s original trial had been fairly conducted, and noted that there had been no appeal against that conviction. Therefore for the purposes of s.78 of the 1984 Act it was not unfair for the defendant to have to deal with the evidential consequences of the earlier conviction, including, of course, the shift in the burden of proof to the defendant to disprove the conclusions of the original jury. 9. The trial involved a close examination of the cause of death. The defendant gave evidence in support of his defence that he had acted in self defence. Saunders J directed the jury that the prosecution was required to prove the elements of murder beyond reasonable doubt. He then addressed the impact of the earlier conviction. A number of the matters to be proved to establish wounding with intent to cause grievous bodily harm were “the same as the matters that they (the prosecution) have to prove to prove murder”. The prosecution was not “required to prove those elements of the charge of murder again which they have already proved beyond reasonable doubt and proving the charge of wounding with intent to cause really serious bodily harm … you must assume that those matters are proved subject to the right of the defendant to prove the contrary if he can … it is a different burden of proof. It is not beyond reasonable doubt for the defendant. It is on the balance of probabilities”. 10. Carefully distinguishing between those issues which had been proved in the earlier trial and those which had not, committing ourselves to the issues which arise in this appeal, he directed the jury that before they could convict of murder they had to be sure that the injuries inflicted by the appellant on Mr Barton in September 2000 contributed significantly to his death in July 2009. If they were sure then • Was it more likely than not that the blow with the screwdriver which penetrated the brain of Mr Barton was inflicted accidentally rather than a deliberate act by the appellant? • If no, was it more likely than not that the appellant was acting in lawful self-defence when he inflicted the injuries on Mr Barton? • If no, was it more likely than not that the appellant did not intend to cause really serious injury when he caused the injury to Mr Barton? 11. The jury rejected the defendant’s case that, however the matter was examined, there remained the possibility that the small bowel volvolus might have occurred in some way which was unconnected with the original injury suffered in 2000. In short, they were sure that the appellant’s violence towards Mr Barton at that time caused the death which occurred some nine years or so later. The appellant was convicted of murder and sentenced to imprisonment for life, with a minimum term based on 6 years, taking full account of the sentence he had already completed following his conviction on the earlier occasion. Brian Harrison 12. Brian Harrison was tried at the Crown Court at Truro before His Honour Judge Elwen and a jury on a two count indictment. The first count alleged attempted murder of Neville Dunn on 31 st December 2007, the second, causing Mr Dunn grievous bodily harm with intent to do grievous bodily harm on the same occasion. On 11 July 2008 the jury acquitted him of attempted murder and convicted him of causing grievous bodily harm contrary to s.18 of the Offences against the Person Act 1861 . He was sentenced to imprisonment for public protection, with a specified minimum term of 6 years. 13. Dealing with the facts very briefly, the applicant was in an on/off relationship with Carla Dawson by whom he had had a child. In late 2006 and early 2007, while still involved in that relationship, Carla Dawson had a brief sexual encounter with Mr Dunn. The applicant found out about it towards the end of 2007. He believed that Mr Dunn had raped Carla. On 31 st December 2007 he decided that he would find out precisely what had happened between them. At about mid-day or shortly afterwards, Mr Dunn was fetched from his home and taken to Carla Dawson’s home. In the living room, according to the case for the prosecution, the applicant punched Mr Dunn to the head in an unprovoked attack which caused him to fall unconscious to the floor. Thereafter he kicked Mr Dunn in the head more than once as he lay on the floor. Thereafter, with assistance, he put Mr Dunn into his car and drove him to the home of Carla Dawson’s mother. When they arrived there he removed Mr Dunn from the car and threw him hard onto the pavement and again kicked him repeatedly in the head. During the next few hours the applicant visited a number of his friends, admitting that he had lost his temper and attacked Mr Dunn. He told one witness that he had beaten Mr Dunn and stamped on his head. He told another that he had lost his rag and that during the course of the attack on Mr Dunn he did not know when to stop. He told another witness that he had “murdered Mr Dunn” using his feet. He did however assert that he had not intended to kill or hurt him badly. 14. Mr Dunn suffered a very severe brain injury. He was hospitalised, and thereafter he remained minimally conscious and entirely dependent on medical assistance to sustain his life. He died on 17 October 2009 as a result of complications arising from the head injury sustained nearly two years earlier. 15. The defence case at the original trial was that he had struck Mr Dunn a single punch to the head which knocked him to the floor. He did not assault him any further. He did drive him away, intending to go to hospital, but changing his mind in a panic. At the home of Carla Dawson’s mother, while lifting Mr Dunn from the back seat, he accidentally dropped him, causing Mr Dunn to strike his head on the pavement. There was no intention to kill or cause serious bodily harm. In short, there was a single punch, in circumstances where he believed he was acting in lawful self defence, and no further act of violence, and the fall as he lifted Mr Dunn from the car was an accident. 16. In view of a specific submission which arises in this case, we shall identify some specific further features of the first trial. In discussion with counsel before the summing up, Judge Elwen expressed himself in unequivocal terms. The defendant (as he then was) “is not to my mind, whatever alternatives on the evidence may be open, here simply to be found guilty of something. It seems to me that the jury should consider only what is on the indictment.” 17. In due course the judge provided the jury with accurate directions about the ingredients of the two offences before them for consideration. He further directed them that even if they took the view that the applicant had been responsible for an unlawful attack on Mr Dunn, but without the intention to cause him grievous bodily harm, or if the traumatic brain injury may have been the result of an accident when Mr Dunn slipped from the defendant’s grasp, he must be acquitted. He returned to this issue shortly afterwards and directed the jury that they must exclude any question of self defence or accident. He continued “both counts require proof so that you are sure that the defendant had a specific intention to kill or cause really serious injury”. 18. The applicant sought leave to appeal against conviction. The main ground was that the judge had failed to leave open to the jury the possibility of a conviction of an offence contrary to s.20 of the 1861 Act . Consequently, it was suggested that on the basis of R v Coutts [2006] UKHL 39 , the conviction was unsafe. The single judge refused leave on the basis that “there was no reason, based on the evidence, for the judge to direct as to an s.20 alternative. The court had heard that you threw deliberately/threw aggressively/threw onto hard ground, the victim’s head, hitting it. … Merely because a jury had a convict/acquit option is not an indicator for including a lesser alternative. The Crown could argue, had such been included, that it was an inappropriate means to an improper compromise”. The application for leave to appeal against conviction was not renewed. 19. Following Mr Dunn’s death, the applicant was charged with and eventually tried for his murder. The prosecution successfully applied for the conviction of causing grievous bodily harm with intent to be adduced in evidence under s.74(3) of the 1984 Act. At the close of the evidence it was submitted that the issues of manslaughter on the basis of lack of intent should be left to the jury. Burnett J agreed, and did so. No criticism is directed at the summing up, the effect of which was that the prosecution had to prove that Mr Mr Dunn’s death resulted from the unlawful activities and consequent injuries of the applicant, and that they were required to exclude provocation. However in view of the earlier conviction, it was for the defendant to show on the balance of probabilities that the death did not result from a deliberate unlawful act by the applicant and that he did not intend to cause Mr Dunn really serious harm. 20. On 6 March 2012, in the Crown Court at Truro Harrison was convicted of murder. He was sentenced to imprisonment for life, with 16 years as the specified minimum term. 21. In relation to the conviction, there are two applications before us, the first, an application for an extension of time in excess of 3 years in which to renew an application for leave to appeal against his conviction in July 2008, and the second, for leave to appeal against the conviction for murder in 2012. Harrison also seeks leave to appeal against sentence. The applications in relation to conviction are connected. If the conviction at the first trial was unsafe, evidence relating to it could not have been adduced in the second trial, and if it is safe, it should have been excluded both because it was inadmissible at the second trial and if not, as a matter of discretion under s.78 of the 1984 Act. It was submitted that the effect of s.74(3) meant that, if admitted, and given effect in accordance with the statutory provision, the defence task at the trial for murder would, effectively, be impossible. The extension of time 22. Harrison has had ample time to renew his application for leave to appeal against the conviction for the s.18 offence. If it was to be pursued he could and should have renewed it as soon as it was refused, or within the normal time limit. He could also have sought an extension of time soon after he was charged with Mr Dunn’s murder. Thereafter there were a number of pre-trial hearings, the most important of which was the hearing at which Burnett J decided that the Crown could adduce evidence of the earlier conviction during the course of the forthcoming trial for murder. Still no attempt was made to renew the application for leave to appeal. It was not made until after the jury convicted him of murder. In his submissions Mr Laws QC suggested that there was no material to justify an attempt to seek to renew the application for leave to appeal until Burnett J decided, having heard the evidence adduced before the jury at the murder trial, that the issue of manslaughter should be left to them for consideration. Mr Laws submitted that that represented a turning point, and indeed that the decision by Burnett J to leave manslaughter to the jury meant that two different judges had in effect addressed the issue of whether the s.20 offence should have been left to the jury at the first trial and reached different conclusions. 23. The flaw in this submission is that it fails to acknowledge that these were indeed two distinct trials. Before the murder trial began the defence case statement stated boldly that the defendant did not intend to kill Mr Dunn or inflict serious bodily harm on him. At the second trial he gave evidence to this effect. Perhaps as a matter of caution, based on the consequences of a conviction for murder, perhaps as a matter of practice so deeply embedded that it has come to be treated virtually as a matter of principle, but certainly where the defendant gives evidence to this effect, the issue of intent is invariably left to the jury. That does not apply to the first trial where, as Judge Elwen put it, the issue before the jury was so stark that the interests of justice did not require a jury considering attempted murder and the s.18 offence to be confused by reference to a possible s.20 verdict on the basis that the defendant should be found guilty of “something”. 24. We know precisely how Judge Elwen approached the problem which arose in the context of the irreconcilable and major factual dispute between the prosecution and the defendant. On the one side, the Crown was contending that Mr Dunn had been the victim of a prolonged attack of some ferocity, with repeated violence, including kicks to the head while he was unconscious, and a deliberate action which resulted in his head striking the pavement. On the other side, the defence case was that Harrison struck Mr Dunn a single blow while he was conscious, and that any serious injury which he suffered occurred when he was accidentally dropped by the applicant. On this version it would have been wholly unjust for the defendant to be convicted of anything. The tortuous route to a possible s.20 verdict would have disadvantaged him, and in context for this verdict to have been left to the jury would not have been reflective of the real issues in the case. (See R v Foster and Others [2007] 1 Cr. App. R 38, explaining R v Coutts [2007] 1 Cr. App. R 6). 25. In our judgment Judge Elwen was entitled to approach the issues which arose at the first trial in the way he did. This approach did not lead to injustice to the applicant. Given that Burnett J decided to admit the evidence of the earlier conviction in the murder trial, there was an urgent imperative that if indeed the earlier conviction was unsafe, it should as quickly as possible, be set aside. In the trial for murder, if manslaughter on the basis of intent had not been left to the jury, that would have founded a ground of appeal against conviction. It does not however follow that the decision to leave manslaughter to the jury undermined the safety of the conviction at the earlier trial. It would be quite inappropriate for the necessary extension of time to be granted following the applicant’s conviction for murder at this late stage, in effect, as a satellite means of attacking the conviction for murder. In any event, for the reasons which now follow the substantive ground of appeal is without merit. This application for leave to appeal is refused. The admissibility of the earlier conviction 26. The submission on behalf of both appellants begins with the common law. In R v Hogan [1974] 1 QB 398 , the essential facts were very similar to those which obtain here, save that the victim of the section 18 offence died within five months of the violence which caused his death. Lawson J held that, on the proper application of estoppel principles, the defendant was prevented from questioning any of the matters decided against him at the trial of the section 18 offence. Although this decision was subsequently upheld in a different case by the Court of Criminal Appeal, it was emphatically reversed by the House of Lords in DPP v Humphrys [1977] AC 1 , a decision now heavily relied on by counsel for the appellants. 27. In Humphrys , notwithstanding his denials, the defendant was convicted of driving while disqualified. He was then charged with perjury, an allegation based on his false evidence at trial that he was the driver of the vehicle. Estoppel was held to apply. The House of Lords disagreed. Hogan was overruled. In agreement with Viscount Dilhorne, Lord Salmon, at 48A, spoke in trenchant unequivocal terms: “… there is not a spark of authority or commonsense to support the ruling that when A has previously been convicted of causing grievous bodily harm to B with intent to cause him grievous bodily harm, and subsequently B dies A should automatically be convicted of B’s murder if it is proved that B’s death was caused by the grievous bodily harm which A had formerly been causing. On a charge of murder the onus lies on the prosecution to prove their case, not by technical doctrine but by evidence, and the jury’s duty is to decide the case on the evidence called before them, which might be quite different to the evidence adduced in the previous trial”. 28. The technical doctrine to which Lord Salmon was referring was issue estoppel. In the criminal justice system such a principle did not exist. In short, a conviction for murder could not “automatically” flow from an earlier conviction of a s.18 offence involving the subsequent death of the same victim. 29. Counsel for the appellants drew attention to the views expressed in the Law Commission Report, L egislating the Criminal Code : the Year and a Day Rule in Homicide (1995 Law Com No. 230). Two observations were highlighted: “… the doctrine proposed in Hogan which was disapproved in Humphrys was issue estoppel , whereas s.74(3) creates a presumption of guilt. Academics who have discussed this issue assume that the prosecution could rely on s.74(3) to use the defendant’s prior conviction for a non-fatal offence with which he has subsequently been charged”. (footnote to paragraph 6.4) “We suspect that in practice judges might well be reluctant to allow the use of sub-section 74(3) in homicide cases where the defendant has previously been convicted of a related non-fatal offence. We consider making a recommendation that evidence of a previous conviction of a non-fatal offence should not be permitted to be used as evidence in a subsequent prosecution for a homicide offence arising out of the same facts. We believe, however, that the discretion given to the court under s.78 of the Police and Criminal Evidence Act 1984 amounts to an adequate safeguard. We have not found any evidence that shows that s.74(3) is being operated unfairly. In our opinion it is significant that only one of our respondents … commented on this sub-section at all”. (para 6.8) 30. Certainly, in his commentary on the earlier decision in R v O’Connor [1987] Crim LR 260 the late Professor Sir John Smith underlined “the justice of excluding the evidence of the conviction in these cases on familiar unfairness grounds in s.78 of the Act ”. Perhaps he was the respondent who made the comment referred to by the Law Commission. However, when the commentary is read as a whole, Professor Smith undoubtedly recognised that following the overruling of Hogan by the House of Lords in Humphrys , the conviction of causing grievous bodily harm would have been inadmissible on the murder charge, but that Hogan seemed to be: “… partly restored by s.74(3). There is still no estoppel by virtue of Humphreys but the conviction is now admissible in evidence at the murder trial and establishes that the defendant caused grievous bodily harm … on that day with intent to do so. The prosecution need only prove that death resulted from that harm and (if there is any evidence of provocation) that there was no sufficient provocation. It is then for the defendant to prove on a balance of probabilities, if he can, that he did not inflict the grievous bodily harm, or that he did not intend to do so”. 31. Nothing in the subsequent decisions of this court drawn to our attention suggest that this observation is open to question. Indeed on full analysis, rather than by reference to clauses or isolated sentences in individual paragraphs in the judgments, the approach of this court in R v Harry Harris [2001] Cr. L R 227,, R v Shanks [2003] EWCA Crim. 680 and R v Young [2005] EWCA Crim 2963 is consistent with it. 32. In R v C [2010] EWCA Crim 2971 this court identified: “… the stark principle … that any defendant is entitled to contest his guilt in accordance with the ordinary processes of the criminal justice system, and therefore to challenge or to seek to undermine the Crown’s case against him or to advance evidence in support of his own case”. On the other hand “Section 74(3) is uncomplicated and it means exactly what it says: … The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. (para 9)” 33. The enactment of s.74 of the 1984 Act reflected the views of the Eleventh Report of the Criminal Law Revision Committee (Cmnd. 4991 paras 217-220). In effect it extended the provisions of the Civil Evidence Act 1968 , abolishing the common law rule in Hollington v Hewthorn [1943] KB 587 , to the criminal justice process. It did not revive the doctrine of issue estoppel, but in circumstances like the present, the earlier conviction of the s.18 offence constitute admissible evidence to prove, following the death of the victim, that the defendant was guilty not merely of wounding or causing grievous bodily harm with intent, but of murder. The prosecution is not required to prove all the matters already proved to the criminal standard, and the defendant is not prevented or excluded from denying them. In relation to matters already proved against him, however, the burden of proof shifts to him. 34. The Law Commission believed in 1995 that these provisions would not impinge on Article 6 of the European Convention on Human Rights, and the right to a fair trial. At common law, the Criminal Law Revision Committee thought it “quite wrong, as well as being inconvenient, that the prosecution should be required to prove again the guilt of the person concerned”. In effect, it was recognising that the new statutory arrangements would not undermine common law principles relating to a fair trial either. 35. In relation to Lord Salmon’s observation in Humphrys , what would be contrary to commonsense and fairness would be for the jury trying the defendant for murder to be “automatically” confined to deciding the cause of death and, where it might arise, provocation. That is not what s.74(3) provides nor does it follow from its proper application. The defendant is fully entitled to advance his defence, and if he does, it remains open to the jury to acquit him. 36. There is, in addition, the separate safeguard under s.78 , which permits the judge to exclude the evidence. Fairness, of course, runs both ways: the exclusion of admissible evidence may well be unfair to the prosecution. Without seeking to curtail the valuable judicial weapon against unfairness in the criminal justice system embodied in and exemplified by s.78 , it would be something of a novel proposition for the exercise of this discretion to enable the court to exclude evidence when its admissibility stems from the enactment of a statutory provision deliberately designed to permit the evidence to be adduced. Accordingly, the evidence of the earlier convictions cannot be excluded on the basis of some nebulous sense of unfairness. If s.78 were used to circumvent a clear statutory provision for no better reason than judicial or academic distaste for it, the discretion would be improperly exercised. 37. In these trials neither judge could see any specific feature of the case, or the evidence, or the circumstances, to lead him to exercise the s.78 jurisdiction. In our judgment they were right. 38. The appeal against conviction is dismissed and the application for leave to appeal against conviction is refused. Harrison – application for leave to appeal against sentence 39. In his sentencing remarks the judge took account of the deliberate vicious and repeated nature of the attack on the deceased, an offence aggravated by Harrison’s long history of violent offending and his lack of remorse. The judge proceeded on the basis, in effect loyally following Harrison’s acquittal of attempted murder at the earlier trial that there was no intention to kill, and that he was motivated in part by his suspicions about the relationship between Mr Dunn and Carla Dawson. He recognised, too, that there had been good progress while in prison. Balancing all these considerations he decided that the minimum term should be 16 years, but that it should be effective with effect from 1 st January 2008, the date of Harrison’s arrest. 40. It is suggested that the minimum term is manifestly excessive. We do not agree. It carefully balanced all the relevant considerations, giving appropriate credit, but equally, not flinching from the realities of the violence to which Mr Dunn was subjected. This application is refused.	{"ConvCourtName":["Luton Crown Court","Truro Crown Court"],"ConvictPleaDate":["2002-01-18","2008-07-11"],"ConvictOffence":["Wounding with intent to cause grievous bodily harm contrary to s.18 of the Offences Against the Person Act 1861","Causing grievous bodily harm with intent to do grievous bodily harm contrary to s.18 of the Offences Against the Person Act 1861"],"AcquitOffence":["Attempted murder"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Luton Crown Court","Truro Crown Court"],"Sentence":["10 years imprisonment","Imprisonment for public protection with a specified minimum term of 6 years"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[0],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical evidence","Pathologist report","Witness testimony"],"DefEvidTypeTrial":["Defendant testimony","Self-defence claim"],"PreSentReport":["High risk of harm"],"AggFactSent":["Deliberate, vicious and repeated nature of the attack","Long history of violent offending","Lack of remorse"],"MitFactSent":["Good progress while in prison"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Earlier conviction was irrelevant and inadmissible at the subsequent trial","Judge failed to leave open to the jury the possibility of a conviction of an offence contrary to s.20 of the 1861 Act"],"SentGuideWhich":["s.74(3) of the Police and Criminal Evidence Act 1984","s.78 of the Police and Criminal Evidence Act 1984"],"AppealOutcome":["Dismissed","Application for leave to appeal against conviction refused","Application for leave to appeal against sentence refused"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Minimum term carefully balanced all relevant considerations, giving appropriate credit but not flinching from the realities of the violence"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No injustice in the approach of the trial judge","No specific feature to exercise s.78 discretion to exclude evidence","Earlier conviction was admissible under s.74(3)","No merit in the substantive ground of appeal"]}
No: 200601071/A1 Neutral Citation Number: [2006] EWCA Crim 1638 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 TUESDAY, 20th June 2006 B E F O R E: LORD JUSTICE MOORE-BICK MR JUSTICE BURTON THE COMMON SERJEANT (SITTING AS A JUDGE OF THE CACD) - - - - - - - R E G I N A -v- JEAN-PAUL HOLMAN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR R HALLOWES appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. LORD JUSTICE MOORE-BICK: On 17th January 2006 in the Crown Court at Isleworth before His Honour Judge McDowall this appellant pleaded guilty to one count of false imprisonment and one count of harassment. On 17th February he was sentenced to 3 years' imprisonment in respect of the offence of false imprisonment. No separate penalty was imposed in respect of the offence of harassment. In addition a restraining order was made preventing him from contacting his victim, a Ms Davis, or certain members of her family. He now appeals against sentence by leave of the Single Judge. 2. The circumstances giving rise to these convictions arose out of a relationship between the appellant and Ms Davis. On 12th September 2005 the appellant went to Ms Davis' home to look for his passport. After she had allowed him into the house he started to behave in a strange manner, ranting about his passport. He took her keys from her handbag, locked the front door, removed the key from the back door which was already locked and pulled the telephone cord out of its socket. He grabbed hold of Ms Davis' arm and forced her upstairs where he proceeded to open cupboards and empty their contents. Understandably she was very frightened. He then took her downstairs and ended up sitting next to her on the sofa. Shortly afterwards she saw her daughter's boyfriend walking up the drive to the house and she motioned to him to help her. When the young man entered the house the appellant pretended that there was nothing wrong. Shortly after that Ms Davis' daughter returned home from work and at that point the appellant left the house. 3. On 12th October 2005 a police officer from the Community Safety Unit contacted the appellant and told him he should not make any contact with Ms Davis or any member of her family. Despite that, he made a number of telephone calls to her and also sent her text messages. He visited her sister's address twice and her parents' address once. He was arrested on 23rd October 2005 and promptly admitted the offences in the course of his interview. 4. Our attention has been drawn to a number of authorities relating to sentencing for the offence of false imprisonment, particularly when committed in the context of a past or present relationship between the offender and the victim. In Spence and Thomas (1983) 5 Cr App R(S) 413 Lord Lane C.J. pointed out that the offence of false imprisonment varies very widely and that some offences at the lower end of the scale arising out of personal relationships may not call for a sentence of any more than 18 months’ imprisonment and in some cases less. However, later authorities suggest that the appropriate penalty is likely to be somewhat higher. 5. In the case of Brown (1994) 15 Cr App R(S) 337 the appellant pleaded guilty to false imprisonment and theft. He had lived with a woman for some years before their relationship came to an end. He behaved violently towards her on two occasions and was sentenced to a suspended term of imprisonment. The appellant went to her house and forced his way in through a window. When the woman tried to escape he dragged her back into the house and held her in a bedroom with the door barricaded until the police arrived and forced their way in. He was sentenced to 3 years' imprisonment for false imprisonment with the suspended sentence activated consecutively. The sentence was upheld on appeal. However, in that case there were aggravating features, both in the form of previous misconduct towards the complainant and in the nature of the offence itself which caused her a high degree of fear and led to a continuing state of anxiety. 6. In the case of Hibbert [2001] EWCA Crim 2847 , [2002] 2 Cr App R(S) 29, the appellant, a man aged 28, had known the victim for a considerable period of time. They met accidentally and began a relationship in the course of which they moved into a flat together. Following an argument the victim went out for an evening with a friend. When she returned home she found the appellant drunk and went to the bedroom locking the door behind her. The appellant kicked the bedroom door open, pushed her backwards and placed his hand over her mouth. The argument continued and the appellant again grabbed the victim. There was a short struggle and the appellant told the victim to go to sleep. He then lay down in front of the bedroom door preventing her from leaving the bedroom. She fell asleep and woke up after some hours finding the appellant asleep in front of the bedroom door. She wrote a note asking for help and pushed it out of the bedroom window. The appellant left the room on two occasions locking the door behind him. The whole incident lasted for about 13 hours before the appellant's former partner rang him and persuaded him to allow the complainant to leave. 7. Police then arrested the appellant, who admitted that he had detained the victim overnight. He was sentenced to three-and-a-half years' imprisonment. The sentence was upheld by this Court, although it is fair to say that the incident in that case had been prolonged and that the victim had been very frightened for her safety. 8. In Attorney-General's Reference No 2 of 2004 [2005] 1 Cr App R(S) 14 , the offender, who was aged 21 at that time of the offence, was convicted of false imprisonment. He had formed a relationship with a young woman of about the same age whom he had met about three weeks before the offence. She went to stay at his flat but the relationship ran into difficulties and she left taking her belongings with her. They subsequently arranged to meet at a public house and returned to the offender's flat where an argument broke out. When the young woman tried to leave the offender prevented her from doing so by sitting astride her, pressing her throat and slapping and punching her. The assault lasted about 45 minutes. He then pulled the young woman into his bedroom, stripped her naked and handcuffed her to the bed. He committed further assaults whilst she was handcuffed. She remained handcuffed for about 6 hours until she was released by the offender. The sentencing judge sentenced him to a community punishment and rehabilitation order requiring 100 hours work and 2 years supervision. The Attorney-General asked the Court to review the sentence on the ground that it was unduly lenient. The Court agreed, stating that the appropriate sentence in that case would have been somewhere between 2 and 3 years' imprisonment. 9. Finally, we were referred to the case of Attorney-General's Reference No 25 of 2004 [2005] 1 Cr App R(S) 14 . The offender pleaded guilty to one count of false imprisonment and asked for an offence of common assault to be taken into consideration. He had moved into the victim's house as a lodger having previously known her for some years. The victim went out with a male friend to celebrate her birthday and subsequently returned home with the friend. The offender became jealous. When the victim asked him what was wrong, he slapped her with his open hand and slapped her again when she struck him in return. The police were called and he was arrested. 10. The victim complained to the police that the offender had indecently assaulted her some days before and he was charged with that offence. He appeared at the Magistrates' Court and was bailed on condition that he did not enter the county in which she lived. Three days later the offender telephoned the victim and forced his way into her house, pushed another lodger out of the house and locked the doors. The victim tried to call the police but the offender tore out the telephone wires. He detained the victim until the police arrived about an hour-and-a-half later. He threatened to kill the victim and to commit suicide himself. He put the blade of a knife to her throat and another knife to his own throat. Eventually the victim was able to escape from an open first floor window. The offender was then overpowered by the police and taken to hospital. 11. The offender had various previous convictions for offences of dishonesty but none for violence. He maintained throughout that he intended no harm to the victim or her children. This was another case, therefore, in which there had been previous misconduct on the part of the offender in relation to the victim. It was also a case in which serious violence was threatened though little violence was actually employed. 12. The judge sentenced the offender to a community punishment and rehabilitation order with 100 hours work and 2 years’ supervision. The Attorney-General asked the Court to review the sentence on the ground that it was unduly lenient. Allowing the appeal the Vice-President, Rose LJ, said that, bearing in mind the very great anxiety which clearly must have been caused to his victim, if there had not been exceptional mitigating circumstances the appropriate sentence would have been of the order of 3 years' imprisonment following a guilty plea. 13. These authorities lead us to the conclusion that the appropriate sentence for a case of this kind, following a guilty plea, is between 2 and 3 years' imprisonment. 14. The judge in the present case described this, quite rightly, as a serious offence, but he did not think the appellant posed a significant risk of serious harm to the public so as to call for a sentence of imprisonment for public protection. 15. This appellant is a man of 47 years age. He has a problem with drink and drugs which sometimes cause him to behave irrationally. He had a moderate record of offending. Most of his recent offences have arisen out of relationships which become turbulent, resulting in his harassing and sometimes intimidating those with whom he had has been emotionally involved or their close relatives. It is a matter for particular concern that he has previous convictions for harassment and multiple breaches of restraining orders. The author of the pre-sentence report considered there was a high risk of his committing similar offences in the future as he becomes involved in new relationships. 16. In our view this was a serious offence which clearly called for a custodial sentence, but in the favour of the appellant it can be said that this was not an attack by a stranger. He was well-known to Ms Davis and although he behaved in an erratic and frightening manner he did not attempt to use violence against her. The ordeal as a whole did not last very long, perhaps no more than 30 to 45 minutes, and it appears to have had few lasting effects on her. We have no doubt this was a frightening experience for the complainant but we consider that the sentence was significantly too high following a guilty plea. We therefore quash the sentence of 3 years' imprisonment and substitute for it a sentence of 2 years' imprisonment. To that extent, this appeal is allowed.	{"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":["2006-01-17"],"ConvictOffence":["False imprisonment","Harassment"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Isleworth"],"Sentence":["3 years' imprisonment (original)","No separate penalty for harassment","2 years' imprisonment (substituted on appeal)","Restraining order"],"SentServe":[],"WhatAncillary":["Restraining order preventing contact with Ms Davis or certain members of her family"],"OffSex":["All Male"],"OffAgeOffence":[47],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["High risk of reoffending"],"AggFactSent":["Previous convictions for harassment","Multiple breaches of restraining orders","Most recent offences arising out of turbulent relationships","High risk of committing similar offences in the future"],"MitFactSent":["Not an attack by a stranger","No attempt to use violence against the victim","Ordeal did not last very long (30 to 45 minutes)","Few lasting effects on the victim"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentence was significantly too high following a guilty plea"],"SentGuideWhich":[],"AppealOutcome":["Allowed","Sentence reduced to 2 years' imprisonment"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Sentence was significantly too high following a guilty plea","Ordeal did not last very long and had few lasting effects on the victim"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2021] EWCA Crim 670 CASE NO 202100131/A3-202100133/A3 Royal Courts of Justice Strand London WC2A 2LL Wednesday 28 April 2021 LORD JUSTICE BEAN MRS JUSTICE FARBEY DBE RECORDER OF NEWCASTLE (HIS HONOUR JUDGE SLOAN QC) (Sitting as a Judge of the CACD) REGINA V JAMAL CONTEH CHERYL HAMAND Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) MS C WILDE appeared on behalf of the Applicant Conteh. MR D THOMPSON appeared on behalf of the Appellant Hamand. J U D G M E N T MRS JUSTICE FARBEY: 1. On 2 October 2020 in the Crown Court at Chester before HHJ Thompson, at an adjourned plea and trial preparation hearing, the applicant Jamal Conteh (then aged 22) pleaded guilty to four drug offences. On 14 December 2020 he was sentenced by HHJ Leeming to a total of 12 years' imprisonment. This total sentence had the following components: count 1 (possession with intent to supply crack cocaine on 12 December 2018) - 3 years' imprisonment; count 2 (possession with intent to supply heroin on 12 December 2018) - 3 years' imprisonment concurrent; count 3 (conspiracy to supply crack cocaine between 15 July 2019 and 9 July 2020) - 9 years' imprisonment consecutive; and count 4 (conspiracy to supply heroin between 15 July 2019 and 9 July 2020) - 9 years' imprisonment concurrent. A Serious Crime Prevention Order was made for a period of 5 years to which there is no challenge. 2. On 25 September 2020 the appellant Cheryl Hamand (then aged 43) pleaded guilty to counts 3 and 4. She was sentenced at the same time as Conteh to 31 months' imprisonment on both counts concurrently. The judge sentenced two other conspirators who had pleaded guilty to counts 3 and 4: Zakaira Ahmed (then aged 24) was sentenced to 7 years and 6 months' imprisonment; Oluwafemi Odumuyiwa (then aged 30) was sentenced to 44 months' imprisonment. They do not appear before us. Two other conspirators were indicted but not sentenced by the judge at that time, for reasons which we need not set out. 3. Conteh applies for an extension of time of approximately 19 days in which to renew his application for leave to appeal against sentence. Ms Hamand appeals against sentence by limited leave of the single judge. We understand that the delay in lodging Conteh's renewed application was caused by factors beyond his solicitor's control. We are therefore prepared to grant the modest extension of time which he seeks and turn to the facts of the case. Facts Conteh 4. On 12 December 2018 police officers stopped a vehicle in which Conteh was a front seat passenger. He was searched and found to be in possession of £576 cash and a burner phone, on which were found messages indicating drugs available for purchase. He was also in possession of 42 wraps of cocaine weighing 3.28 grams, valued at £420 (count 1) and 55 wraps of heroin weighing 4.56 grams, valued at £550 (count 2). He was released under investigation. 5. Counts 3 and 4 related to conspiracies to supply heroin and crack cocaine, in a “county lines” arrangement between Liverpool and Macclesfield between July 2019 and July 2020. During that time Conteh worked with the other conspirators with, it is agreed, no apparent hierarchy between them. They used two “graft” phones and during the lifetime of the operation. Each of them at various times controlled the principal graft phone which sent out “flares” and sought out customers. 6. Conteh often went to Macclesfield and was sometimes involved with hands-on dealing there. On other occasions he would stay at a location in Macclesfield directing others. He would then return to Liverpool to restock. 7. On 29 September 2019 Conteh travelled to Northamptonshire to collect three youths aged 16 and below. He drove them to an address in Farndale Walk in Macclesfield, which was then used as a base for supply. Some weeks earlier Conteh had been stopped by the police in the company of one of the youths. When spoken to by officers the youth provided his date of birth but made up a story about being Conteh's cousin which Conteh falsely confirmed. Several days later the youth was reported missing from home and was located by police in a bedroom of the Travelodge in Macclesfield. Subsequently investigation revealed that that room had been booked and paid for by Conteh. 8. On 30 September 2019 telephone evidence showed that Conteh was at an address in Macclesfield from which a taxi was booked to go to Farndale Walk where the three youths were located. That taxi was stopped by police. One of the youths was inside with £530 in cash and a phone. Prior to the taxi being stopped the youth had been seen among a group of local drug users. On 2 October 2019 Conteh was again in Macclesfield at the home address of Hamand. We will return to her involvement shortly. 9. On 3 October 2019 a search warrant was executed at the Farndale Walk address. Ninety-one wraps of heroin and crack cocaine were recovered together with £338 cash and three kitchen knives. The youths were at the address. Conteh and Ahmed were in touch with them at that time. 10. After the execution of the warrant Conteh changed his personal phone number and temporarily stopped travelling to Macclesfield although he resumed his visits on 7 October 2019. His involvement in the conspiracies continued until (on 21 June 2020) he was arrested in possession of 249 wraps of heroin and crack cocaine, valued at £2,490. 11. A police drugs expert concluded that between July 2019 and July 2020 the team sent out flare messages on 71 separate days. An established county lines dealer with a single line could expect to deal between 100 and 200 £10 deals per day depending on demand, location, product and rival dealing. Based on 71 days of dealing this indicated a potential overall value of between £71,000 and £142,000 and an estimated total quantity of Class A drugs of between 639 grams and 1.27 kilos. We have no reason to doubt that this expert evidence provides a useful guide to the scale of the criminal activity involved in these well-organised county lines conspiracies. Hamand 12. Hamand was part of the same conspiracies. We understand her to have been arrested in July 2020. In her written basis of plea (accepted by the prosecution and by the judge) she stated that she pleaded guilty to counts 3 and 4 on the following basis: "1. On 2 October 2019 the defendant was directed by a male she knows as 'Mitch' to deliver a package of drugs to 4 Farndale Road. 2. The defendant allowed 'Mitch' to attend at her address and 'unplug' drugs on his arrival into Macclesfield on a number of occasions. 3. The defendant was addicted to crack cocaine and heroin and was paid with Class A drugs, she made no financial gain." Judge's Sentencing Remarks 13. In relation to counts 3 and 4, the judge observed that the conspiracies reflected a tried, tested and well-planned county lines operation to supply crack cocaine and heroin from Liverpool to Macclesfield over a protracted period. Each conspirator sustained and supported the others in those deliveries and transactions in which they did not personally participate. Given the period of time over which the conspiracies were active, each of them was engaged in the knowledge that the conspiracies were wider than their individual acts. Conteh 14. The judge applied the sentencing guideline for the supply of drugs. In relation to culpability he concluded that Conteh's role was significant because he was involved in every aspect of the conspiracies and had exploited three children. In relation to harm the judge considered the indicative quantities of drugs, in accordance with the police expert evidence, and appears to have placed the offending in category 2. On this basis the starting point for the conspiracy offences was 8 years' custody and the category range was 6 years 6 months to 10 years' custody. 15. Having set out in detail the aggravating and mitigating factors the judge referred to a starting point of 12 years before discount for Conteh's guilty pleas. He applied a 25% discount to reach a sentence of 9 years on each of counts 3 and 4 which, as we have said, were to run concurrently. 16. In relation to counts 1 and 2 the judge observed that these offences warranted separate recognition and "an element of consecutive sentencing to mark the persistence and overall criminality" subject to the totality principle. Applying the sentencing guideline for possession of a controlled drug with intent to supply, he found that Conteh had a significant role and placed the harm in category 3. The relevant starting point under the guidelines was therefore 4 years 6 months' custody and the category range was 3 years 6 months to 7 years' custody. 17. Applying the principle of totality he imposed a sentence of 3 years on both counts to run concurrently with each other but consecutively to counts 3 and 4. Hamand 18. In relation to Hamand the judge took into consideration her basis of plea. However, he also referred to matters outside her basis of plea, saying that she had worked as a team with the others and answered a graft telephone on occasions, taking orders which would then be relayed to Conteh. He referred to her as resupplying drugs to the Farndale Walk address. 19. It seemed to the judge that Hamand was on the cusp of lesser and significant role. Having regard to the aggravating and mitigating factors the appropriate sentence was 42 months' imprisonment before discount for her guilty plea. Applying a 25% discount her sentence was reduced to 31 months concurrently on each count. Grounds of Appeal: Conteh 20. On behalf of Conteh, Ms Wilde submits in writing and orally that the starting point in relation to counts 3 and 4 was too high. Insufficient regard was given by the judge to Conteh’s young age of between 20 and 22 at the time of the offences. Insufficient regard was given to his young age of just 14 and 15 when he committed previous similar offences, which is indicative of exploitation. Ms Wilde submits that totality was not properly considered in imposing a consecutive sentence on counts 1 and 2 and that the judge failed to reduce the overall sentence to take account of the impact of custody in the present pandemic. 21. We disagree essentially for the reasons given by the single judge. Conteh was involved in a county lines operation to supply two different Class A drugs. The operation involved numerous other people. It was well planned. It was well organised. It was sustained for around a year. 22. There were additional serious aggravating factors in Conteh's case. He personally introduced and exploited three children to do the bidding of the conspirators. We are bound to conclude that such conduct is a grave aggravating factor which would alone warrant a significant upward adjustment to the overall sentence. He used the address of a drug user (Hamand) to unplug drugs. His offending continued even after he had been released under investigation. 23. Although there were elements of mitigation such as his age and troubled background, as well as the difficulties faced by prisoners in the pandemic, these factors could not outweigh the aggravating factors which amply justified the judge's approach to counts 3 and 4. Nor are we persuaded that the prison report, helpfully obtained by Ms Wilde's solicitors, about Conteh's progress in prison (which we have seen today) should persuade us to take a different view. 24. As for counts 1 and 2, the judge was entitled to mark this separate offending with a consecutive sentence. Given the seriousness of Conteh's offending, it is not arguable that he should have been sentenced differently. For these reasons Conteh's renewed application for leave to appeal is dismissed. Grounds of Appeal: Hamand 25. Turning to Hamand's appeal, we agree with Mr Thompson, who appears on her behalf, that the judge sentenced her on matters that fell outside her basis of plea. Having accepted her basis of plea he was not entitled, in our judgment, to impose a sentence that reflected these other matters. The basis of plea emphasised that Hamand took part in the conspiracies under direction, allowing her home to be used to unplug drugs but making no financial gain. On this basis the judge ought to have accepted that she performed a limited function under direction and ought to have sentenced her on the basis of a limited role. To the extent that he sentenced her on the basis of a significant role he fell into error. A sentence of 42 months, before discount for plea, was manifestly excessive and must be quashed. 26. The prosecution accepted that Hamand's offending fell within category 3 of the guideline. Category 3 lesser role has a starting point of 3 years and a category range of 2 years to 4 years 6 months’ custody. Hamand's comparatively limited previous criminal convictions provided some mitigation as did her mental health difficulties. In these circumstances we substitute a sentence of 30 months, which we reduce to 20 months to include both the 25% discount for guilty plea and the difficulties for prisoners in the current pandemic ( R v Manning [2020] EWCA Crim 592 ). 27. Applying the familiar table in the Overarching Guideline on the Imposition of Community and Custodial Sentences, we are not prepared to suspend the sentence. In our judgment, the seriousness of Hamand's offending means that appropriate punishment can only be achieved by immediate custody. The sentence on each of counts 3 and 4 is therefore 20 months immediate imprisonment to run concurrently. To this extent, Hamand's appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Chester"],"ConvictPleaDate":["2020-10-02","2020-09-25"],"ConvictOffence":["possession with intent to supply crack cocaine","possession with intent to supply heroin","conspiracy to supply crack cocaine","conspiracy to supply heroin"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":["adjourned plea and trial preparation hearing",""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Chester"],"Sentence":["Jamal Conteh: 3 years' imprisonment (count 1), 3 years' imprisonment concurrent (count 2), 9 years' imprisonment consecutive (count 3), 9 years' imprisonment concurrent (count 4), total 12 years' imprisonment; Serious Crime Prevention Order for 5 years","Cheryl Hamand: 31 months' imprisonment on both counts concurrently (original); 20 months' imprisonment on both counts concurrently (substituted on appeal)"],"SentServe":["Combination"],"WhatAncillary":["Serious Crime Prevention Order (Conteh)"],"OffSex":["All Male","All Female"],"OffAgeOffence":[22,43],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["phone evidence","police drugs expert evidence","search warrant evidence","cash and drugs found","messages indicating drugs available for purchase"],"DefEvidTypeTrial":["written basis of plea"],"PreSentReport":[],"AggFactSent":["offence committed while on bail (Conteh released under investigation)","exploitation of children (Conteh)","well-planned and organised operation","offending continued after release under investigation"],"MitFactSent":["young age of Conteh","troubled background (Conteh)","difficulties faced by prisoners in the pandemic","limited function under direction (Hamand)","no financial gain (Hamand)","addiction (Hamand)","comparatively limited previous convictions (Hamand)","mental health difficulties (Hamand)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[4],"AppealAgainst":["sentence"],"AppealGround":["starting point for sentence too high (Conteh)","insufficient regard to age (Conteh)","totality not properly considered (Conteh)","sentence imposed on matters outside basis of plea (Hamand)","role mischaracterised (Hamand)"],"SentGuideWhich":["Sentencing guideline for the supply of drugs","Sentencing guideline for possession of a controlled drug with intent to supply","Overarching Guideline on the Imposition of Community and Custodial Sentences"],"AppealOutcome":["Conteh: Dismissed","Hamand: Allowed & sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["sentence imposed on matters outside basis of plea (Hamand)","role mischaracterised as significant rather than limited (Hamand)","starting point too high (Hamand)"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["serious aggravating factors justified sentence (Conteh)","judge entitled to mark separate offending with consecutive sentence (Conteh)","not arguable that Conteh should have been sentenced differently"]}
No: 200504388 B4 Neutral Citation Number: [2005] EWCA Crim 3093 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 1st November 2005 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE OPENSHAW DAME HEATHER STEEL - - - - - - - R E G I N A -v- MICHAEL DOOLEY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR P MITCHELL appeared on behalf of the APPELLANT MS R DRAKE appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 17 March 2005 in the Crown Court at Oxford, before HHJ McIntyre, the appellant pleaded guilty on re-arraignment to six charges of an offence against section 1(1)(c) of the Protection of Children Act 1978 . That makes it an offence to be in possession of indecent photographs or pseudo-photographs of a child with a view to their being distributed or shown by himself or others. By virtue of subsection (2): “... a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by another person." 2. Prior to the trial, HHJ McIntyre was asked to give a ruling as to the meaning of the words "with a view to" in this Section. He gave that ruling. Following the ruling and in the light of it, the appellant pleaded guilty. He now submits that the judge erred in law in his interpretation of the words "with a view to". 3. The phrase "with a view to" can be found in hundreds of different statutory provisions. In so far as the criminal law is concerned, see, for example, section 92 of the Trade Marks Act 1994 ; section 1(2) of the Theft Act 1968 ; section 17 of that Acts (false accounting); section 20 and section 21 , which creates the offence of blackmail. In section 21(1) , it is provided: "A person is guilty of blackmail if, 'with a view to gain for himself or another or with intent to cause loss to another', he makes any unwarranted demand with menaces." 4. The phrase “with a view to” even appears in the Human Rights Act. Section 1(5) provides that a protocol means: "... a protocol to the Convention - (a) which the United Kingdom has ratified; or (b) which the United Kingdom has signed with a view to ratification." 5. The phrase also appears, for example, in the Obscene Publications Act 1964 and in the statutory provisions regarding Drug Treatment and Testing Orders. 6. We turn to the facts of this case. KaZaA is a peer to peer file sharing network that enables Internet users to share any type of computer file. Users become part of a network of other KaZaA members worldwide by downloading the necessary software from the Internet. All members have a "My Shared Folder" which contains files which, when the computer is connected to the internet, can be accessed by any KaZaA member. At any one time, there may be in excess of four million KaZaA members connected to the system. 7. KaZaA effectively functions as an enormous "library" with its contents stored on the computers of all its active members at any one time. A member wishing to find a particular type of file will enter a term into a search engine, which is part of the software. KaZaA will then search the "My Shared Folders" of all members currently connected to the Internet and provide a list of matching files. The person searching can then select a file and download to his "My Shared Folder". Unless it is moved from their "My Shared Folder" it becomes part of the "stock" of the "library" and can in turn be accessed by the other members. There is a facility for making the "My Shared Folder" inaccessible to others, but the appellant appears to have been unaware of it. 8. On 10th February 2004, the police searched the appellant's home and seized computer equipment. KaZaA was installed on the computer. There were many thousands of indecent images of children on the appellant's computer, many of which he had obtained via KaZaA. Of the thousands of images, only six were found in the appellant's "My Shared Folder". 9. The downloading of images from KaZaA will often take many days, the computer being left on for long periods of time. Rather than just download a few images, the appellant would download a very substantial number of images. The images, so we were told, could not effectively be accessed by others until such time as the "My Shared Folders" had the completed image. Thereafter, on the appellant's case, it was his "specific intention" to remove the photograph or image from the "My Shared Folder" to some other part of his computer, where it could not be seen by others. Because of the large number of images that were downloaded, it took him time to do that. In so far as the six images with which this case is concerned, we were told that they had actually been in the "My Shared Folder" for some ten days before the police intervened. It thus follows that they were available to be accessed by the many members of this "club" during those ten days. 10. It is perhaps unfortunate, with hindsight, that the judge was not presented with a clear set of facts or assumed facts in order to resolve the legal issue. In his ruling, the judge said: "It seems to me that what the prosecution needs to prove is that a participant downloads a particular photograph or image in the knowledge that it is likely to be seen by other participants who have access to same folder into which the image goes." 11. Mr Mitchell, of course, did not have the benefit of the transcript and tells us that, at the time, he did not understand the full impact of that sentence. We return to this passage later. 12. The judge then said: "If he downloads the photograph or image with that knowledge he is possessing it during the time it is in the My Shared Folder ‘with a view to’ its being distributed or shown by him to other members of the club. It may be that the defendant's specific intention is immediately to remove the photograph or image from the My Shared Folder to some other part of his computer where it cannot be seen by others, but whereas that may provide a defendant with a defence if the charge were possession with intent to distribute or show, it does not amount to a defence to possession with a view to its being distributed or shown in the circumstances. I think there is a difference between the meaning of the words 'with the intention of' and the words 'with a view to'. The fact that it may not have been a defendant's specific intention to distribute or show the photograph or image to others merely provides him with mitigation in respect of the charge he faces under Section 1(1)(c) . The words 'with a view to' have a wider meaning than 'with the intention of'. It follows that if a person charged with this offence did not know that as a result of using the particular software there was a likelihood of the image or photograph in the My Shared Folder' being accessed by others then he would have a good defence to a charge under Section 1(1)(c) . And going back to the analogy of the club: it seems to me that if you join a computer club knowing that its purpose is to make material downloaded by you accessible to all members so that there is a likelihood of that material being accessed by other members as a result of your downloading it, then in those circumstances you download it 'with a view to' its being distributed or shown by you to other members. I hope that ruling is clear. I think at the nub of it is the difference between 'with a view to' and 'with the intention of'." 13. The judge drew a distinction between the words "with a view to" and the words "with the intention of". In our view, he was right to do so. 14. Help for the meaning of the phrase (which has not, it appears, received much judicial attention) can be found in the 11th edition of Smith and Hogan's "Criminal Law", now edited by Professor Ormerod, page 807. There the meaning of the phrase "with a view to gain" in section 21 of the Theft Act 1968 is briefly examined. It is stated that, whilst it is probably not necessary to show that the defendant's primary purpose in making a demand was to make a gain for himself or another, it must one of his objectives. We agree that it need only be one of his objectives. In a case like the present, another way of approaching the issue is to ask whether one of the defendant’s reasons for leaving the images in the “My Shared Folder” was to enable others to access it. 15. Mr Mitchell submitted that the judge should have adopted this approach and decided that the defendant would only be guilty if one of his reasons for leaving the images in the “My Shared Folder” was to enable others to access the images in the Folder. 16. Ms Drake for the respondent submitted, first of all, that, on the facts of this case, it was sufficient if the defendant had knowledge that the images may be seen by others. She then adopted the judge's approach: “Did the defendant know that the images were likely to be seen by others?” She then changed that to: “Did the defendant know that the images were very likely to be seen by others?” She ended up with: “Did the defendant know that it was inevitable that the images would be seen by others?” before returning to the judge's approach. 17. In our judgment, although it may be very important to examine the defendant’s knowledge in the way in which the judge did, nonetheless the question which the jury will have to resolve is: “Was at least one of the reasons why the defendant left the images in the ‘My Shared Folder’ so that others could have access to the images in it?” If so he would be in possession of indecent photographs of a child with a view to their being distributed or shown by himself. One can envisage circumstances where a person foresees X as a likely consequence of doing Y, but does not do Y with a view to X. To take a far fetched example, a general may foresee the likelihood of his soldiers being killed in battle, but he surely does not send his troops into battle with a view to their being killed? We should add that it is not necessary in this judgment to refer to the debate about intention and foresight of virtual certainty (Smith and Hogan, pages 93 and ff). 18. We have considered carefully whether the conviction is safe. In the light of the judge’s ruling about the necessary knowledge, the appellant (we would have expected) must have pleaded guilty on the basis that he knew that the images in the “My Shared Folder” were likely to be seen by other participants. If so, on the facts of this case, it would seem to follow that at least one of the reasons why the defendant left the images in the "My Shared Folder" would be to enable others to have access to them. Mr Mitchell assures us that he understood the ruling to mean that it was not necessary for the prosecution to show that a reason for leaving the images in the folder was to enable others to access them. He tells us that his case was that the appellant did not leave the images there for that reason and he did not assimilate what the judge had said about knowledge. In the light of that assurance, we must quash the conviction. No retrial is sought.	{"ConvCourtName":["Crown Court at Oxford"],"ConvictPleaDate":["2005-03-17"],"ConvictOffence":["Possession of indecent photographs or pseudo-photographs of a child with a view to their being distributed or shown by himself or others (Protection of Children Act 1978, section 1(1)(c))"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on re-arraignment"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge erred in law in his interpretation of the words 'with a view to' in section 1(1)(c) of the Protection of Children Act 1978"],"SentGuideWhich":["section 1(1)(c) of the Protection of Children Act 1978"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["In the light of the judge’s ruling about the necessary knowledge, the appellant must have pleaded guilty on the basis that he knew that the images in the 'My Shared Folder' were likely to be seen by other participants. However, the appellant's case was that he did not leave the images there for that reason and did not assimilate what the judge had said about knowledge. In the light of that assurance, the conviction is quashed."],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
Neutral Citation Number: [2013] EWCA Crim 409 Case No: 2012/1609/D3, 2012/1608/D3 & 2012/1606/D3 IN THE COURT OF APPEAL CRIMINAL DIVISION Sitting at The Law Courts Cathays Park, Cardiff, CF10 3PG Date: Tuesday 12th March 2013 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE MITTING MR JUSTICE MALES - - - - - - - - - - - - - - - - - - - - - R E G I N A v KIERAN WELSH JOHN WELSH THOMAS WELSH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr B Treadwell appeared on behalf of Kieran Welsh Mr S Mihangel appeared on behalf of John and Thomas Welsh Mr D Mainstone appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LEVESON: On 20th January 2012 in the Crown Court at Caernarfon before His Honour Judge Hughes QC and a jury, these appellants were each convicted of causing grievous bodily harm with intent. They were each sentenced to a term of 12 years' imprisonment with time served on remand to count towards the sentence. Kieran Welsh appeals against conviction by leave of the single judge and all three appeal against sentence by leave of the single judge. 2. The facts can be stated shortly. At about 9.40 am on 28th May 2011, police officers were called to an address in Holyhead following a report that a man, Alan Haigh, aged 44, had been assaulted. Mr Haigh suffers from schizophrenia for which he is prescribed medication. He had been seen earlier that day at about 6.30 am behaving oddly and he was taken by the police to his sister's home. 3. When the police attended shortly after 9.40 am he was seen to be on the ground and had clearly been hurt. It was the prosecution case that the three appellants had all participated in an assault on Mr Haigh during which he was punched, kicked and struck with an iron bar while lying on the ground. It was alleged that Kieran Welsh had been in possession of the iron bar. 4. The appellants are related. Thomas and John (known as Jackie) Welsh are brothers. Kieran Welsh is Thomas's son. 5. In the case of Thomas and John Welsh, the defence was that Mr Haigh was chased by them having burgled Thomas's home. They denied behaving otherwise than in self-defence. Kieran Welsh denied his presence at the scene and relied on an alibi. 6. In order to understand the circumstances in which this appeal has been mounted, it is necessary to turn to the way that the trial took place. We start with a critical eyewitness. 7. At about 9.40 am on 28th May, Wendy Bailey-Williams was in her kitchen and heard shouting at the front of her house. She went through to the front living room and looked outside. She saw four men running towards her gate. She recognised Alan Haigh whose sister lives nearby. He was being chased. There were two men she knew, Tom and Jacky, and a third whom she did not know. Alan seemed to trip and he fell into the garden. Tom and Jacky began kicking him. Tom kicked him first into his chest and stomach. Tom also punched him about four or five times. Jacky then kicked him in the lower back about four or five times but did not deliver any punches. 8. While they were doing this a third man, whom she described in her evidence as "a lad", jumped over the wall and kicked Alan once or twice in the lower legs and then produced an iron bar. He hit him with this seven or eight times, using continuous blows. Alan was screaming in pain. It was over quite quickly and the third man was the first to leave, jumping back over the wall. Jacky left in the same direction. Tom stayed for a couple of minutes and crouched down and held Alan's coat with both hands, with his face in close proximity. He appeared to be talking to him. He then left in the same direction as the other two. 9. Miss Bailey-Williams telephoned the police and gave a running commentary of what she was witnessing. She went outside where a number of people had gathered and gave Alan a glass of water. He had blood on his face and was in a poor state. The incident lasted about five or ten minutes and it was a full-on attack. It was in broad daylight and she had a clear view of events. 10. When cross-examined she said Alan's body was wriggling around during the attack. She did not see him kicking out with his legs, but accepted that this was a possibility. On an identification parade she did not identify Kieran Welsh and picked out a volunteer as the third man. 11. Constable Davies arrived at 9.47 am. He found Alan Haigh on the ground screaming. At 10.05 a paramedic arrived. He saw a man lying in the gateway shouting in pain and saying that he had been hit by an iron bar. He was taken to hospital and was behaving then somewhat bizarrely, singing to himself and having a conversation with an imaginary person. 12. At 2.30 in the afternoon, Sergeant State arrived and saw Mr Haigh in the hospital. Mr Haigh told him he had been jumped by three males: Thomas, Jacky and Kieran. He went on that Kieran had caused most of his injuries using an iron bar. 13. Against that background we turn to the evidence of Alan Haigh. As we have recounted, he suffers from schizophrenia for which he has been prescribed medication. He has lived in Holyhead all his life and grew up with Thomas Welsh. They both attended the same school. He regarded him as a friend and had visited his house on several occasions. He also said that he knew Kieran Welsh, Tommy's son, and had known him since he was a young boy. 14. He gave evidence that on 28th May he went to his sister's house. He said that he did not know where he went after that and he could not recall what had happened thereafter. He could not remember talking to police officers and said that he was ill at the time. He was invited to consider the terms of his statement dated 7th June 2011, although it was well understood that during the course of the proceedings he had made a second statement informing the police to say that he could not now or then remember who had assaulted him on the day. Having looked at his statement (which recounts what happened in terms to which we will later refer), he said that he was ill and could not remember. 15. As a result, an application was made under section 3 of the Criminal Procedure Act 1865 to cross-examine Mr Haigh on the grounds that he was hostile. The Crown argued that he was making very little effort to engage in his statement and was being deliberately obstructive. The application was resisted by the defence with counsel submitting that the word "adverse" meant hostile, not merely unfavourable. 16. The judge referred to the mental health of the witness and his claim that he was suffering from an illness. The judge also took into account that a consultant psychiatrist, Dr Da Silva, had been made aware of his claim that he could not recall what happened that day and had expressed the opinion that there was no medical reason why he would lose his memory. 16.1. The judge said that it was important to have regard to this medical evidence since an interpretation which might otherwise have been placed upon the way in which he answered questions might have resolved the case in favour of the defence objection. 17. Having regard to the circumstances, however, the judge concluded that there was positive material which supported the attitude he displayed when asked questions which indicated he might well be hostile. He granted leave. That ruling is not the subject itself of appeal. 18. Of course, prior to the implementation of section 119 of the Criminal Justice Act 2003 , treating a witness as hostile who does not then adopt the statement that he made, does not make that statement of evidential significance. Section 119(1) of the Criminal Justice Act, however, provides: "(1) If in criminal proceedings a person gives oral evidence and— (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement made by him is proved by virtue of section 3 , 4 or 5 of the Criminal Procedure Act 1865 (c. 18), The statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible." As a result, the statement having been proved, it was admissible as evidence. Mr Haigh was cross-examined about it at length. In that statement he describes how he knew each of the three appellants. Thomas Welsh he had known since he was aged 11: "He was in the year below me. We were not friends at school", he said. He went on that he knew him socially and was aware where he lived and had visited him on occasions. He explained that he also knew Jacky Welsh, Tommy Welsh's older brother, again "for years". As for Kieran he said: "He is Thomas Welsh's son. He is about 20 years old. He is Julie Harvey's son. He is well-known in town and everyone knows he's Tommy's son. He does not work ... I have never had a problem with Kieran and we would often speak in passing." 19. He then went on to describe the incident which was the subject of his injuries. What is significant, without reading the entirety of the statement, is that (as is conceded) his description is consistent with the evidence given by the independent witness Miss Bailey-Williams. In particular, he describes how he feared for his safety and started to run. He went on: "I know Kieran was holding a weapon which I would describe as an iron bar. He later assaulted me with this bar." He went on: "The bar that Kieran had was a metal bar which I thought may be some kind of car jack, but I cannot be sure, I cannot describe it further. Kieran was hitting me on the arms, legs and body. He was also trying to hit me on the head with the bar ..." He goes on to the effect that the three were working together to inflict the attack: "It felt like it lasted over ten minutes". He said: "All of a sudden the attack stopped and the three of them ran off. I do not know what direction they left. I was in shock, in pain, and slipping in and out of consciousness. Lots of people in the street had seen what was happening. One lady gave me two pints of squash afterwards." He concludes his statement: "I had a clear and unobstructed view of the three males. The lighting was good and they were directly in front of me. There were no obstructions. I am in no doubt they were Thomas, Jacky [John] and Kieran Welsh." 20. Mr Treadwell on behalf of Kieran Welsh accepts that that statement was admissible as evidence of the truth of its contents, but he relies in particular on subsequent answers in cross-examination. When the statement was put to him, he said he could not remember what had happened, he could not remember telling Sergeant State that he had been hit by someone with an iron bar. In his subsequent statement he said that although he had named his attackers in his previous statement he simply could not remember who had attacked him. He was having an episode that day and was ill. When cross-examined he replied to all questions: "I don't remember." 21. It went further. His injuries, he said, could have been caused as a consequence of being hit by a car at Priory Lane. He went over the bonnet and sustained injuries to his arms, legs and body. He could not remember what happened after that, but he knew he went to hospital. He was psychotic that day and had not taken his medication. 22. As a result of the assault Mr Haigh suffered a broken elbow and a puncture wound to his right leg. He also had numerous cuts and bruises to his arms and legs. He broke a window in the hospital for which he was arrested and he was later sectioned under the Mental Health Act. 23. We turn to the arrests. Kieran was arrested, at home, later that day. During his interviews he made no comment to all questions. On 6th June 2011 he handed in a prepared statement which contained details of his alibi. We add that the judge also admitted evidence of Kieran Welsh's bad character in the form of convictions for violence. He did so on the grounds of propensity and also materiality on the grounds that Mr Haigh had initially identified a man who in fact had such a propensity and who also was related to the other two who had been identified by the independent witness. 24. Mr Treadwell submits, in a form slightly different from the grounds of appeal, that the judge should not have admitted evidence of bad character on the basis that the evidence was so thin that it was bolstering a bad or weak case. The precise articulation of the admission of the bad character has not been transcribed, but it is common ground that the judge gave as reasons those which we have summarised. 25. In our judgment, the evidence of Mr Haigh, if taken on its own, may well have caused the judge pause for thought given the issues as to the reliability or otherwise of his account. However, the judge did not have his account on its own, that is to say the account admitted pursuant to section 119 of the Act . He had that account supplemented by the detailed evidence of an eyewitness. In other words, the weakness of Mr Haigh's position, perhaps because of his ill health, perhaps because of his obstruction or unwillingness to give evidence, was substantially corroborated by the independent account, quite apart from the additional material also provided by Sergeant State on the day of the incident itself. In the circumstances, in our judgment, the judge was entitled to admit the evidence of bad character as going to propensity and for the reasons that he gave. 26. Mr Treadwell also submits that the judge should have concluded that there was no sufficient case for Kieran Welsh to answer relying on the well-known decision in Galbraith . In support of his application he submitted that where leave is given to treat a witness as hostile and the witness upon being cross-examined upon a previous statement says that its contents are true, it is incumbent upon the judge to warn the jury to approach any evidence given by the witness incriminating the accused after being treated as hostile with caution, pointing out that the evidence was only elicited as a result of cross-examination by prosecution counsel. 27. The authority upon which Mr Treadwell relied anteceded section 119 and it is now necessary to take the entirety of the evidence into account when considering whether this was a case for the jury or a case which the judge ought to have concluded was so weak as to be insufficient to justify or bear the weight of an adverse verdict. The judge simply articulated that he did not consider that the case fell within the second limb of Galbraith and so left it to the jury. 28. When it came to the summing up, however, the judge did accurately and adequately warn the jury about Mr Haigh's evidence in these terms. Having summarised what had happened during the course of the trial, he said: "... if you come to the conclusion that he is lying to you when he says he cannot remember, you may still have regard to, and act upon, what he said in his statement. But in those circumstances you would need to approach that statement with caution because it is a statement of someone who you will have decided was not telling you the truth in the witness box. Now, that does not mean that you could not act upon his statement providing that you are satisfied that what he told the police on 6th June (sic) is the truth, and in that regard you are asked to bear in mind that at 10.05, within a few minutes of the incident and when the paramedic arrived, he told the paramedic that he had been hit by someone with an iron bar, and that when Police Sergeant State went to [the hospital] at 2.25 pm that afternoon the same day, he told that officer that three fellas had jumped him and he named the three defendants, adding I quote, 'Kieran did most of it, he had the bar'. And so again it is a classic case for you as a jury to weigh up whether you accept or do not accept what you said in the witness box and/or what he said in his statement. Approach it with care if you have taken the view that what he said in the witness box to you is not true." In our judgment the judge dealt admirably with the difficult situation that had arisen during the course of the trial. Had there been merit in Mr Treadwell's submissions effectively section 119 of the Criminal Justice Act 2003 would not have achieved what the legislature intended that it do achieve. 29. When initially putting forward grounds of appeal, Mr Treadwell relied upon a further argument arising from a letter which had been written by Mr Haigh to the judge after conviction but prior to sentence in which he effectively admitted that which John (or Jacky) and Thomas Welsh had been saying, almost in the precise language of their defence, and went on that he saw Kieran with the other two in court and knew he was not the third person that was there. Given that his evidence to the jury was that he could not remember anything, it is quite difficult to see how he could remember three people or, more particularly, that one person was not one of the three. 30. In the original grounds of appeal this letter was relied upon as further evidence undermining the safety of the conviction. It has since been investigated by the police and Mr Haigh has provided an account of the circumstances in which he came to write it, which suggests a degree of intimidation to which it is unnecessary further to allude. Further evidence was served in answer to the application under s. 23 of the Criminal Evidence Act 1968 to the effect that, on 3rd July 2011, somebody had spray painted the word "grass" on Mr Haigh's flat door which might be rather more illuminative of the circumstances of his retraction of the evidence. 31. Suffice it to say, it is unnecessary to go further into the letter or the other material because although the original grounds of appeal intended to rely upon this material pursuant to section 23 of the Criminal Appeal Act, Mr Treadwell rightly abandons that effort and that submission in the light of the further material that is now available. We say he was right to do so because it is clearly not credible and adds nothing to the position that Mr Haigh had adopted at the time of the trial. In the circumstances the appeal against conviction is dismissed. 32. We turn now to sentence which encompasses all three appellants and raises different issues. Kieran Welsh is now aged 22 with convictions as a juvenile for battery, grievous bodily harm, possession of an offensive weapon and adult convictions for actual bodily harm both in 2010 and 2011. A pre-sentence report assessed him as causing a high risk of causing physical harm to the public and the victim. He stated that he had thoughts of harming himself every day and was tearful throughout the interview. Not surprisingly the probation officer who interviewed Mr Welsh informed the prison authorities of that risk, whereupon the author was informed that the appellant had returned to the wing laughing and joking and that there were no issues with his emotional well-being. 33. John Welsh, who is now aged 49, had previous convictions for assault occasioning actual bodily harm in 1982, 1984, 1986, 1995 and 1997, and for theft, using threatening words and behaviour in 1985, 1990, 1991 and 1998 and affray in 1992, 2001 and 2009. A pre-sentence report assessed him as at medium risk of reoffending. 34. Thomas Welsh is 44 years of age with previous convictions for affray in 1996 and public order offences in 1999 and 2008. On each occasion he received a fine. H34.1. e was assessed as posing a medium risk of harm to the general public and a medium risk towards the victim. 35. When passing sentence the learned judge said that he was unable to pinpoint which of them was the ringleader -- all three were in it together. He concluded that Kieran Welsh had attacked him with an iron bar and the other two had kicked and punched him whilst he was on the ground. He recognised that the injuries Mr Haigh received were not serious, but only in so far as in the context of the offence of section 18 of the Offences Against the Person Act. They were serious in themselves. He noted that all had convictions for violence and that Kieran Welsh had been released on home detention curfew only a week or so before this offence. 36. The judge went on that, having regard to the sentencing guidelines, there was a clear basis for the an assessment of greater harm, namely the fact that the victim was particularly vulnerable because of his mental illness (of which all three defendants were aware). There were also three factors indicating higher culpability. First, a clear case of premeditation; secondly, prior arming themselves for the offence; and thirdly, going out looking for Mr Haigh. He concluded that the offence came within category 1 of the guidelines issued by the Sentencing Council with a range of nine to 16 years and a starting point of 12 years in custody. In those circumstances, he concluded that the starting point was the correct sentence, namely 12 years in each case. 37. There is no doubt in our judgment that there are factors indicating greater harm in this case. First, Mr Haigh was particularly vulnerable because of his psychiatric illness. Secondly, there was a sustained or repeated assault upon him. We recognise, however, that the injury was not serious in the context of the offence and that the guideline underlines that, for category one, normally injury serious in the context of the offence must be present. As for culpability, there is equally no doubt that there was a significant degree of premeditation, the use of a weapon and the deliberate targeting of a vulnerable victim. In our judgment the judge was quite right to place this within category 1 of the guidelines. 38. As for where the case should fit in the guidelines, there is material in relation to Kieran for aggravating or increasing the seriousness by reason of his recent previous convictions. On the other hand, his age of 21 requires the court to have regard to this potential factor as reducing seriousness. In relation to all three, however, in our judgment the most important feature is the fact that there was an absence of serious injury in the context of the offence which must normally be present to fit the case within category 1 and which although not present could be taken as a circumstance to reduce the sentence within the range for this offence. 39. In our judgment, the proper sentence in each of these cases, there being no reason to distinguish between them for the reasons that the judge gave, is one of 10 years' imprisonment. To that extent therefore we quash the sentences of 12 years' imprisonment on each appellant and impose in their place sentences of 10 years' imprisonment. Thus, to that extent, these appeals against sentence succeed.	{"ConvCourtName":["Crown Court at Caernarfon"],"ConvictPleaDate":["2012-01-20"],"ConvictOffence":["Causing grievous bodily harm with intent"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Caernarfon"],"Sentence":["12 years' imprisonment (original)","10 years' imprisonment (on appeal)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[21,44,49],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[44],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Eyewitness testimony","Victim statement","Police testimony","Medical evidence","Identification evidence"],"DefEvidTypeTrial":["Alibi claim","Self-defence claim","Denial of presence"],"PreSentReport":["High risk of harm","Medium risk of reoffending","Medium risk of harm"],"AggFactSent":["Victim was particularly vulnerable due to mental illness","Sustained or repeated assault","Premeditation","Use of a weapon (iron bar)","Deliberate targeting of a vulnerable victim","Prior arming for the offence","Recent previous convictions (Kieran Welsh)"],"MitFactSent":["Absence of serious injury in the context of the offence","Young age of Kieran Welsh"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction unsafe","Appeal against sentence"],"AppealGround":["Admission of bad character evidence was improper","Insufficient case to answer (Galbraith submission)","Jury warning on hostile witness evidence inadequate","Letter from victim post-conviction undermined safety of conviction","Sentence too high given absence of serious injury"],"SentGuideWhich":["Sentencing Council guidelines for section 18 Offences Against the Person Act"],"AppealOutcome":["Appeal against conviction dismissed","Appeal against sentence allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Absence of serious injury in the context of the offence should reduce sentence within the range"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge was entitled to admit bad character evidence","Jury properly warned about hostile witness evidence","Victim's post-conviction letter not credible","Sufficient evidence for case to go to jury"]}
Neutral Citation No. [2017] EWCA Crim 2209 Case No:No: 201703707/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 14 December 2017 B e f o r e : LORD JUSTICE IRWIN MRS JUSTICE CHEEMA-GRUBB DBE HIS HONOUR JUDGE DEAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID TAYLOR - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A Waldman appeared on behalf of the Applicant Miss K Appleton appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LORD JUSTICE IRWIN: On 15th June 2017 in the Liverpool Crown Court, the applicant underwent a trial in relation to a single count of burglary before His Honour Judge Trevor Jones and a jury and he was acquitted by the unanimous verdict of the jury. 2. On 6th July 2017, before the same judge, he was made the subject of a restraining order for a period of three years with conditions firstly that he was not to contact the complainant, MW, directly or indirectly by any means whatever, secondly, that he was not to enter the Rose of Mossley Public House, and thirdly, that he was to pass by the road in which that public house is situated only in a vehicle. 3. The applicant sought leave to appeal against the sentence and the application has been referred to the full court by the Registrar of Criminal Appeals who granted a representation order for counsel. We grant leave to appeal. 4. The facts can be stated as follows. The complainant, MW was the landlady of the Rose of Mossley Public House and she lived in a flat above the pub, which was accessed via a storage area clearly marked for entry by staff only. 5. On the evening of 20th December 2016, following a private function in the pub, the premises were locked up and secured in the usual way and the burglar alarm was set. During the early hours of the next morning, the complainant was woken several times by the alarm going off. Each time she went downstairs and checked the premises, but eventually switched off the alarm system, since she considered that there was likely to be a fault in the system because it had gone off so often. She left the lights on. 6. At 8 o'clock in the morning the regular cleaner arrived, and the complainant left the door to her flat open whilst she assisted the cleaner clearing up the pub. 7. Just before 9 o'clock in the morning, a gas engineer attended and found the applicant in the storage area of the pub. He was initially observed by the gas engineer to be a bald man but he then put on a wig and glasses before leaving the premises. The complainant chased him, and as he ran away the applicant pulled off his wig and replaced it with a trilby hat. 8. When she returned to the pub the complainant found that the previous night's takings, which she estimated to be between £3,200 and £3,400, were missing from the safe which was located inside her flat. 9. At 9.30 or so in the morning the applicant was stopped by police. In the process of being detained he threw a set of keys over a wall, which were later identified as having been taken from the complainant's flat. He was found to be in possession of £3,305.25 in cash. He also had on his person a written note which described being locked up in the pub toilets, being unable to get out of the pub during the night and included an apology. 10. There was CCTV footage from inside the pub. The appellant was interviewed and he gave an account generally consistent with his account at trial. He had been drinking during the day, he said, and had accepted a cigarette from someone which he suspected had contained cannabis, that is to say while he was in the pub during the evening. When he saw the pub lights were on he went inside to use the toilet, but must have passed out. He awoke at 3 o'clock in the morning and during several attempts to leave, he said, he set the alarms off. When the landlady came downstairs to investigate, he hid so as not to frighten her. Next morning he found the keys and then took his opportunity to leave. He denied stealing any cash and he said that the cash which had been found in his possession was withdrawn recently from his bank. He was a man of means. 11. He did not give evidence in the trial himself, but he did call witnesses to confirm that he had been dressed oddly earlier in the evening. He also presented evidence of his means in the form of bank statements in the course of the trial. 12. Following the acquittal, the landlady made a second victim personal statement in which she expressed real concern about the appellant. Her concern was in our view very understandable. On any view he had hidden in her premises throughout the night, moving about and behaving rather bizarrely. Setting aside any question of financial loss, she was disturbed by the thought of him returning to the premises or indeed approaching them, or her. Her concern was raised because it transpired that the appellant's brother lives close by. Hence the prosecution responded by applying for the restraining order. 13. The application was very short. The judge of course knew the circumstances since he had conducted the trial. However, he was shown the very recently obtained victim personal statement (the second statement) which had only come to light on the day of the hearing. 14. The prosecution did not take the judge to the relevant section within the statute nor indeed to any authority. To be fair to Miss Appleton the prosecution had little time to prepare. As we shall see, however, this was an error and it did not help the court. 15. The judge was clearly sympathetic to the landlady, as anyone would be. In the course of the hearing counsel for the appellant, Mr Waldman, who appeared before us and who expressed his submissions in this case in an admirably clear way, objected to the proposed order in the following terms: i. "Section 5A of the Protection from Harassment Act, which relates to restraining orders on acquittal and the test within the statute itself is that a court before which a person is acquitted of an offence, if it considers it necessary to do so, to protect a person from harassment by the defendant, may make an order prohibiting the defendant from doing anything which proscribed the order." 16. Mr Waldman was paraphrasing, but accurately paraphrasing, the contents of the Statute. He went on: i. "Your Honour, there is no suggestion the defendant was known to the complainant at all before this incident. Of course your Honour decides the evidence having heard the evidence, but taken at its highest it was a one-off isolated incident. There is no suggestion that this complainant was targeted in any way and in fact the statement that has been drafted and sent this morning can set out no other incidents that relate to this defendant and so, in my submission, it is not necessary [by which Mr Waldman meant the standard 'necessary' specified in the section] because there is no evidence that there is harassment or would be harassment." 17. Mr Waldman maintains that challenge before us. 18. We turn to the law. The power to make an order following an acquittal is set down by section 5A of the Protection from Harassment Act 1997, as amended by the Domestic Violence, Crime and Victims Act 2004, section 12(5). The relevant text of the section reads as follows: i. "5A. (1) A court before which a person ('the defendant') is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order." 19. A number of authorities have considered this section and for our purposes the most notable is Smith [2013] 1 WLR 1399 , [2012] EWCA Crim. 2566 . In that case this court looked at the meaning of section 5A(1), and the relevant passage of the judgment reads as follows: i. "29. There are other fundamental problems with the order. Since the purpose of such an order is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of s1. Pursuit of a course of conduct requires intention ... ii. 30. Further, the power to make an order under s5A is circumscribed by the important words 'necessary ... to protect a person from harassment by the defendant'. The word 'necessary' is not to be diluted. To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful, on pain of imprisonment, is an interference with that person's freedom of action which could be justified only when it is truly necessary for the protection of some other person." 20. It is sufficient to refer to one other case, again a decision in this court and in this case it is the case of R v Jinny Jose [2013] EWCA Crim. 939 . In that case this court stated as follows: i. "9. From the judgment of this court in Smith [2012] EWCA Crim 2566 the following material principles emerge." 21. For clarity I read the principles only, rather than the paragraph numbers which divide them: i. "1. Since the purpose of an order under section 5A is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of section 1 of the Act. See Smith at paragraph 29. ii. 2. It does not follow that because references to harassing a person include alarming a person or causing a person distress, that therefore any course of conduct which causes alarm or distress amounts to harassment. Essentially harassment: iii. '... involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress.'. iv. See Smith at paragraph 24. v. 3. The power to make an order under section 5A is circumscribed by the important words: vi. 'necessary ... to protect a person from harassment by a defendant.' vii. The word 'necessary' is not to be diluted. To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful on pain of imprisonment is an interference with the person's freedom of action which can be justified only when it is truly 'necessary' for the protection of some other person. See Smith at paragraph 30. viii. In Lawrence [2012] EWCA Crim 1164 this court at paragraph 10 reiterated, following on observations made in Major [2010] EWCA Crim 3016 , the requirement that the judge is required to identify the factual basis for imposing an order and that it must not be overlooked that, absent a conviction, it may not be possible to determine such factual basis. It is always incumbent on the court imposing the order to state its reasons for doing so." 22. Mr Waldman argued and argues that it has not been established here there was any persistent conduct by the appellant towards the landlady, that there is no evidence that he knew of her before the night in question or singled her out in any way. Nor is there any other evidence of an intention to repeat this conduct. There is no evidence of past harassment, or a likelihood of future harassment, and thus no evidence upon which this court could properly conclude that it was necessary to make such an order. In addition, as the passage from Jinny Jose makes clear, there was an obligation on the judge to set out the evidence on which he relied. The failure to do so, says Mr Waldman, is an important procedural defect. 23. In response, Miss Appleton does suggest that this was bizarre behaviour, but concedes it took place over one night, that it was an isolated incident, that there was no real basis for repetition, that there was no evidence that the pub or the pub landlady was targeted in any coherent way, and it was not suggested in the course of the trial that it was a question of targeted behaviour. 24. It is unfortunate that Miss Appleton was not able to take the judge to the relevant authority. Looking at the transcript, she made the application in outline, the objections were lodged by Mr Waldman and the judge proceeded to indicate his intention to make the order without hearing any more from the Crown. It would have been better had Miss Appleton applied the judge's mind to the relevant authority, before Mr Waldman got up to object. But of course the judge could have himself considered the section and the authority in advance of hearing the application. 25. We consider that the criticisms by Mr Waldman are well-founded. Parliament has been careful to limit the circumstances in which such an order can be made, particularly since breach of the order is criminal. We restate the principles set down by this court in the earlier authority we have quoted. It is easy to understand the caution of Parliament and the limits of the power given to the courts by Parliament in the context of an individual who has just been acquitted of any offence. We have granted leave to appeal. The appeal succeeds and the order is quashed. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400	{"ConvCourtName":["Liverpool Crown Court"],"ConvictPleaDate":["2017-06-15"],"ConvictOffence":["Burglary"],"AcquitOffence":["Burglary"],"ConfessPleadGuilty":["No"],"PleaPoint":["Trial"],"RemandDecision":["No"],"RemandCustodyTime":[0],"SentCourtName":["Liverpool Crown Court"],"Sentence":["Restraining order for a period of three years"],"SentServe":["Single"],"WhatAncillary":["Restraining order"],"OffSex":["All Male"],"OffAgeOffence":[0],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[0],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["CCTV","Victim testimony","Physical evidence (cash, keys, note)","Witness testimony (gas engineer)"],"DefEvidTypeTrial":["Bank statements","Witness testimony (regarding dress)","Offender denies offence"],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["No evidence of harassment or likelihood of future harassment; order not necessary; judge failed to set out evidence for order"],"SentGuideWhich":["Section 5A of the Protection from Harassment Act 1997"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["No evidence of harassment or likelihood of future harassment; order not necessary; judge failed to set out evidence for order"],"ReasonSentExcessNotLenient":["Order not necessary as per statutory test; no evidence to support order"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Neutral Citation Number: [2016] EWCA Crim 1234 Case No: 201600763 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday 18th August 2016 B e f o r e : LORD JUSTICE GROSS MR JUSTICE KING MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - - - - - - R E G I N A v MARK ANTHONY POWELL - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Field appeared on behalf of the Appellant The Crown did not attend and was unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE SWEENEY : This is an appeal against sentence by leave of the single judge. On 18 March 2014, in the Sheffield Magistrates' Court, the appellant, who is now aged 24, pleaded guilty to three offences: dangerous driving, driving without a licence and driving without insurance. He was remanded on unconditional bail until 17 April 2014, when he was committed for sentence to the Sheffield Crown Court. At that court, on 30 July 2014, the appellant pleaded guilty to two offences: assault occasioning actual bodily harm and possessing a disguised firearm, the latter being an offence that carries a five year minimum term. 2. On 9 January 2015 the appellant was sentenced by Her Honour Judge Wright as follows: possessing a disguised firearm, five years' imprisonment; assault occasioning actual bodily harm, one year and nine months' imprisonment consecutive; dangerous driving, four months' imprisonment concurrent; driving without a licence, no separate penalty, licence endorsed; driving without insurance, no separate penalty, licence endorsed. The total sentence imposed was therefore one of six years and nine months' imprisonment. 3. In addition, the judge disqualified the appellant from driving for two years and until he passes an extended driving test, made him the subject of a restraining order until further order in relation to the victim of the assault, and also imposed the relevant Victim Surcharge Order. 4. The facts, in short, are these. 5. The appellant has a number of previous convictions, all in 2011 and variously for conspiracy to rob, common assault, possession of a bladed article in a public place and affray, for which he was ultimately and variously sentenced to periods of custody from four to eight months. 6. The driving offences were committed on 23 December 2013. At around 3.15 in the morning police officers saw the appellant driving a silver Toyota motor vehicle erratically in the street in Sheffield. The officers tried to stop the appellant, using their sirens and lights, but the appellant, appreciating that he had neither a valid licence nor insurance, accelerated away, driving at speeds approaching 60 miles per hour in a 30 miles per hour zone and weaving from side to side. Eventually the appellant swerved around a corner, lost control and collided with a metal post and wall. He was arrested at the scene. In interview thereafter he put forward a prepared statement admitting the offences. 7. As we have already indicated, on 18 March 2014 the appellant was remanded on bail in relation to those driving offences. Thus, he was on bail when he committed the other two offences a few weeks later. 8. The assault was committed on the appellant's former partner, Kiera Robinson, who lived in a rented house in Sheffield with her two children, a five-year-old son from another relationship and a five-month-old daughter by the appellant. On the morning of 9 April 2014 the victim returned from taking her son to school. She was pushing her daughter in her pram. As she pushed the pram through the front door, the appellant approached and followed her into the house. The victim went upstairs to feed her daughter. The appellant stayed downstairs and watched television. When the victim came downstairs, about 25 minutes later, she asked the appellant why he was there. He said that he had come for their daughter. The victim suggested he come back later as the baby was asleep. He refused to leave and the victim went back upstairs. 9. The victim was then breast-feeding the baby on the bed when the appellant came into the room. He wanted the victim to sign an agreement in respect of access to their daughter. The victim refused to sign, saying that they could sort it out in court. The appellant then knelt behind her on the bed and grabbed her hair, pulling clumps of hair out of her head. She did not react. On letting go of her hair, the appellant leaned forward and bit her cheek. He then slapped and punched her to the right side of her body and on her arms and legs. Throughout this the baby was in the victim's arms. Unsurprisingly, the baby became distressed. The appellant then prised her away from the victim. After saying that he was leaving Sheffield, the appellant handed back the baby and left the house. The victim went downstairs to look for the phone but could not find it. She put some frozen peas on her face where she had been bitten. 10. The appellant then returned to the house with some sandwiches. He offered a sandwich to the victim and said he was sorry. She said that she did not want the sandwich, which made the appellant angry again. 11. The victim went upstairs as the baby had woken up. The appellant followed her. At one point the victim was sitting on the bed and the appellant punched her in the stomach with force - such force that it caused her to urinate herself. He left the room and the victim removed her soiled trousers and looked for some clean clothes. The appellant returned while she was naked from the waist down. He verbally abused her, saying that she was fat and that no man would come near her. He then punched her to the side of the head. She fell to the floor and begged him to help her. He grabbed the inside of her thighs and tried to pull her legs open. The victim resisted and the appellant then scratched at her buttock. He then ripped her top off, leaving her naked. He grabbed her under her arms and said he would show the street how disgusting she was. He pulled her to the window and tried to open the net curtains in order to expose her naked to the street. 12. She managed to break free, but the appellant then grabbed her around the throat and squeezed hard for several seconds. He released the pressure and she screamed. He then applied more pressure. The victim managed to get away and ran downstairs into the kitchen. As she was looking for the phone, the appellant came up behind her and put his hand over her mouth. He took a knife from the knife block and put it to her throat, threatening to kill her. He then let go. His mobile phone rang and he answered it. He then went to get a bag from the lounge, came back into the kitchen, gave the victim a hug and left. A neighbour had heard the victim screaming and called the police. 13. The victim's injuries, comprising loss of hair and bruising and scratching to various parts of her body including her face where she had been bitten, were photographed and have been seen by the court. 14. The appellant was arrested at his home the following day. During a search of his bedroom the police found a taser disguised as a mobile phone. A police officer discharged the taser to make it safe. The process took about three minutes. The taser was later examined and found to be a rechargeable unit. The charging lead was also discovered in the appellant's bedroom. The taser, described technically as a conducted energy device, was designed for the purpose of discharging electrical current into the human body with the intention of causing debilitating pain, muscle spasm, shock and disorientation for the duration of the electric current being applied. It was, we repeat, possessed whilst on bail. 15. In a written basis of plea, not accepted by the prosecution in relation to the assault occasioning actual bodily harm, the appellant stated that he had been in a relationship with the victim for seven to eight years and that they had a daughter together. He had, he said, visited the complainant and his daughter regularly and was frustrated and annoyed when she refused to allow him to see his daughter. Despite their differences, the relationship had continued and was of a sexual nature. A condom seen in one of the photographs of the scene had been left by him at the house. Whenever he visited, he went home at around 11 pm by taxi. On 9 April he had visited the house and the complainant opened the door to him, wearing only a top. She regularly did not wear clothes in the house. An argument began when the victim picked up a kitchen knife and waved it at the appellant, threatening to stab him. He restrained her by taking hold of her arms and shaking them until the knife fell to the floor. In the course of the incident he sustained a cut to his finger. After the argument the victim asked if he loved her and tried to kiss him. 16. Thus he admitted that in the course of a domestic argument about contact with his daughter, he had: (a) slapped the victim on the right hand side of her backside; (b) bitten the victim on the cheek; and (c) grabbed her round the neck and held her for four to five seconds. He specifically denied that: (a) he had grabbed her hair and/or pulled clumps out of it; (b) slapped and punched the right side of her body; (c) punched her in the stomach; (d) punched her in the side of the head; (e) grabbed the inside of her thighs; (f) put a knife to her throat; and (g) dragged her to the window. 17. As to the taser, he admitted possessing a disguised firearm, saying that he had purchased it as he was terrified of repercussions after he gave evidence for the prosecution in a criminal trial in 2010/2011 that led to his two co-accused receiving prison sentences. He denied that he had ever used the taser or taken it out of his bedroom (where it was found by the police). There was no dispute as to the basis of plea in relation to the taser. 18. However, in the light of the areas of dispute identified in the basis of plea in relation to the assault, a Newton hearing was held on 9 January 2015, during the course of which both the victim and the appellant gave evidence. At the conclusion of the hearing the judge rejected the appellant's account, stating that she found the victim to be a coherent and fluent witness who had been consistent throughout her police interviews and in her evidence, whereas the appellant had been inconsistent and lacking detail in his accounts. The judge accepted the evidence given by the victim therefore in its entirety and found that the appellant had entered the victim's home uninvited, gaining entry when she was struggling to get through the front door with a pushchair, and that on a number of occasions during the incident the appellant had punched her, grabbed her hair (causing her hair to be pulled from her scalp), forcibly removed her top after she had removed her trousers having wet herself through fear, and that that was how she came to be naked when he pushed her towards the window. 19. There was a pre-sentence report in which the author indicated that it was evident that there was a pattern of domestic abuse and that the appellant minimised that - claiming that his violent and abusive behaviour was in self-defence and accusing the victim of lying. The appellant was assessed as presenting a high risk of serious harm to known adults and to the public. In particular, he was assessed as presenting a high risk of serious harm to children - the risk being his children witnessing his violent and abusive behaviour. The author observed that before the appellant could effectively address his offending behaviour, he needed to accept greater responsibility. A custodial sentence was inevitable. He would need a custodial sentence of at least three years to enable him to complete the Building Better Relationships programme on licence and the imposition of a restraining order was an imperative part of any risk management plan. 20. In her victim impact statement, the victim explained the considerable psychological effect upon her of the appellant's actions and her concerns about what would happen when the appellant was released. 21. In passing sentence, the judge rehearsed the facts, observing that the attack upon the victim had been sustained over a number of hours, and that both it and the weapon offence had been committed whilst the appellant was on bail. Given her findings against the appellant at the Newton hearing, he would receive less credit for his plea to the assault than would otherwise have been the position. The assault, she said, was a category 1 offence according to the relevant sentencing Guideline. There was significant psychological impact on the victim, who was vulnerable. It was a sustained and repeated assault. There was the use of weapons: teeth and a knife. The starting point was 18 months with a range of one to three years, but the offence was aggravated by the appellant's previous convictions, the fact that it was committed on bail, the location being the victim's home and the presence of his child during its course. He had relevant previous convictions for robbery in March 2011 and common assault, breach of a suspended sentence order, possession of an offensive weapon and affray. The judge noted the content of the pre-sentence report and indicated that the court accepted that he had given evidence against his co-accused in relation to the conspiracy to rob. He had acquired a taser when he knew that his erstwhile co-defendants were coming out of prison. It was clear that he wanted to leave Sheffield. 22. The judge indicated that she had been provided with the relevant case law in relation to the minimum sentence provisions and had considered the questions posed in Avis : namely, the sort of firearm, the use made of the firearm, the intention when using the firearm and the appellant's criminal record. Parliament, she said, had provided that disguised weapons fell within the provisions for a minimum sentence of five years' imprisonment and the appellant had deliberately acquired the taser knowing that it was illegal to possess it. He had an intention to use it, albeit in self-defence. It was a firearm that could cause significant injuries. Those factors justified a custodial sentence. He was not of good character and had relevant previous convictions showing a propensity for violence. 23. Having referred in more detail the authorities, the judge found that there were no exceptional circumstances in relation to the weapon, how the appellant came to possess it or his personal circumstances, such as to justify departing from the prescribed minimum sentence. 24. All of the offences, the judge said, were so serious that only custody was justified. The principle of totality, however, was borne in mind. The sentences for the assault and possession of the firearm had to be consecutive, but bearing in mind totality, and for that reason only, the sentence for assault would be reduced. The sentence for that offence after trial would have been in the region of two years. With appropriate credit, the appellant was sentenced to one year and nine months' imprisonment for the assault and to five years' imprisonment consecutive for the disguised firearm. Bearing in mind totality, he was sentenced to four months' imprisonment for the dangerous driving concurrent. It was against that background that the judge imposed the overall sentence to which we have already made reference. 25. As originally drafted, there was one ground of appeal, namely that a reduction in sentence of three months from two years to one year and nine months in relation to the assault was insufficient to properly reflect the principle of totality. The single judge was not minded to grant leave on that ground, but rather did so on a ground of his own composition as to the possible existence of exceptional circumstances in relation to the minimum sentence for the disguised firearm offence in the light of the decision of this court in Beaman [2016] EWCA Crim 801 – in which a minimum sentence was reduced on appeal. We have also heard argument as to the original ground. 26. On the appellant's behalf, Mr Field began with totality. He repeated the submissions made in writing as to three months being too short a period, but accepted that if the court read the judge's sentencing remarks as indicating that the sentence of two years after a trial itself reflected a deduction for totality, the his argument would lack force; the more so, he recognised, because the sentence imposed in relation to the offence of dangerous driving was imposed concurrently. 27. As to the single judge's ground, Mr Field recognised that he was in some difficulty in that in his advice on appeal, in which he analysed in admirable fashion the authorities then in existence in relation to minimum terms, he had concluded, for cogent reasons that he had set out, that this was not a case in which it was possible to argue that there were exceptional circumstances and thus to argue that the judge had erred in finding to the contrary. In what he engagingly described, in effect, as a forensic U-turn, he nevertheless sought to rely on the ground composed by the single judge and thus turned to the case of Beaman . 28. He pointed out certain factual similarities as between the two cases - certainly to the extent that the weapon was intended for use in self-defence, and that there was no dispute about the nature of the device, which was broadly the same in its potential to do harm as that in Beaman . He also pointed out that, unlike Beaman , the weapon in this case had not been taken out into the public arena but had simply been retained by the appellant in his room for a year. He therefore submitted that this court should prefer the single judge's analysis to his own insofar as the merits of the minimum term argument were concerned. 29. We deal with that argument first. The authorities make clear that the structured approach identified in Withers [2015] 1 Cr App R (S) 64 , is required, starting, as the judge did in this case, with the four questions posed in Avis [1998] 1 Cr App R (S) 420 , and leading to the ultimate question as to whether the circumstances relating to the offence and/or the offender are exceptional - which they will be if the imposition of five years' imprisonment would result in an arbitrary and disproportionate sentence. It is to be noted that in Attorney General's Reference No 115 of 2015 [2016] EWCA Crim 765 , this court underlined at paragraph 31 that the word "exceptional" is not to be diluted and that sympathy for the offender, if it applies, is not enough to prevent a judge from doing their statutory duty. 30. It seems to us that Beaman adds nothing by way of principle that is relevant in this case; rather, it was a case that was decided on its own particular facts. Applying the appropriate structured approach, as the judge did and for the reasons that she gave, we conclude that there were no exceptional circumstances in this case such as to require any reduction in the minimum term. Accordingly, this ground fails. 31. As to the original ground that too little discount was given to reflect the principle of totality, it seems to us to be clear that the judge recognised the importance of the principle. It is equally clear that the starting point of two years' imprisonment after trial that she identified itself involved, as she indicated, a reduction from what would otherwise have been appropriate precisely in order to respect the principle of totality. The assault was a particularly serious one. It was plainly a category 1 offence involving all three factors indicating greater harm and two factors indicating higher culpability. In addition, appropriately viewed, there were at least six other aggravating features, not least the appellant's previous convictions, the fact that the offence was committed on bail, the presence of the baby and the gratuitous degradation of the victim. 32. It therefore seems to us that from a starting point of 18 months, an actual sentence after trial, ignoring any issues of totality, in the order of three years' imprisonment would have been appropriate. Thus it is clear that the starting point which the judge took in itself represented a considerable reduction to reflect the principle of totality. It will be recalled, in this regard, that she imposed a concurrent sentence in relation to the dangerous driving offence. 33. In the result, we conclude that it is not arguable that the total sentence imposed for the three principal offences was outside the appropriate range and thus manifestly excessive. 34. In all those circumstances this appeal is dismissed.	{"ConvCourtName":["Sheffield Magistrates' Court","Sheffield Crown Court"],"ConvictPleaDate":["2014-03-18","2014-07-30"],"ConvictOffence":["Dangerous driving","Driving without a licence","Driving without insurance","Assault occasioning actual bodily harm","Possessing a disguised firearm"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":["at first court appearance","at Crown Court"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Sheffield Crown Court"],"Sentence":["Possessing a disguised firearm: 5 years' imprisonment","Assault occasioning actual bodily harm: 1 year and 9 months' imprisonment consecutive","Dangerous driving: 4 months' imprisonment concurrent","Driving without a licence: no separate penalty, licence endorsed","Driving without insurance: no separate penalty, licence endorsed"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":["Disqualified from driving for two years and until he passes an extended driving test","Restraining order until further order in relation to the victim of the assault","Victim Surcharge Order"],"OffSex":["All Male"],"OffAgeOffence":[22],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Photographs of injuries"],"DefEvidTypeTrial":["Offender denies offence","Written basis of plea"],"PreSentReport":["High risk of harm"],"AggFactSent":["offence committed while on bail","previous convictions","location being the victim's home","presence of his child during its course","use of weapons: teeth and a knife","sustained and repeated assault","significant psychological impact on the victim","victim was vulnerable","gratuitous degradation of the victim"],"MitFactSent":["gave evidence against co-accused in previous case","intended weapon for self-defence"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["insufficient reduction in sentence for totality","existence of exceptional circumstances for minimum sentence for disguised firearm"],"SentGuideWhich":["Sentencing Council's (definitive) Guideline for assault occasioning actual bodily harm","minimum sentence provisions for disguised firearm","Avis [1998] 1 Cr App R (S) 420","Withers [2015] 1 Cr App R (S) 64","Attorney General's Reference No 115 of 2015 [2016] EWCA Crim 765"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["no exceptional circumstances for minimum sentence","judge applied totality principle correctly","sentence not manifestly excessive","starting point for assault already reflected totality","assault was particularly serious with multiple aggravating features"]}
Neutral Citation Number: [2014] EWCA Crim 1244 Case No: 2014 01359 C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT DORCHESTER His Honour Judge Jarvis U20140025 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/06/2014 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MRS JUSTICE PATTERSON and SIR RICHARD HENRIQUES (sitting as a Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : JOSEPH ASHFORD 1st ACTIVE DRAINAGE LTD 1st ACTIVE LTD 1st ACTIVE CAR SALES LTD Applicants - and - SOUTHAMPTON CITY COUNCIL Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Kennedy Talbot (instructed by Kingsley Napley, London) for the Applicants Ethu Crorie (instructed by Andrew Forrest, Southampton City Council) for the Respondent Hearing date : 5 June 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P : 1. On 28 February 2014, in the Crown Court at Dorchester, His Honour Judge Jarvis dismissed applications brought by Joseph Ashford and 1st Active Drainage Ltd to vary and by 1st Active Ltd and 1st Active Car Sales Ltd to discharge restraint orders which he had granted ex parte on 24 September 2013 pursuant to s. 41 of the Proceeds of Crime Act 2002 (“POCA”). The application by Mr Ashford and the three companies for leave to appeal these orders has been referred to the full court by the Registrar. 2. In the days leading up to the hearing of these applications, both parties supplied further evidence in the form of updated witness statements and exhibits. Part 73 of the Criminal Procedure Rules deals with appeals under POCA and, 73.7 makes it clear that appeals are limited to a review of the decision of the Crown Court although there is power to conduct a re-hearing where it would be in the interests of justice. Having invited submissions, it was common ground that the applications sought a review of the decision of 28 February 2014: on that basis, it would not be appropriate to admit the fresh evidence although it is worthwhile pointing out that it would be open to either side to apply back to the Crown Court should new circumstances or evidence justify such a course. Background 3. Joseph Ashford owns an emergency plumbing business which, until January 2013, was operated through 1st Active Drainage Ltd, a company of which he is the sole director. Thereafter, the operation of the business was carried out by Fast Response Maintenance Ltd, another company of which he was also the sole director as he is in respect of other limited companies including 1st Active Car Sales Ltd and 1st Active Ltd. These last two were holding companies and there is no suggestion that the plumbing business operated through either. 4. In May 2012, after receiving a large number of complaints regarding 1st Active Drainage Ltd, and later Fast Response Maintenance Ltd, Southampton City Council Trading Standards commenced an investigation into Mr Ashford and his corporate entities. The complaints, of which there are said to be in excess of 200 between January 2010 and November 2012, included allegations of unfair business practices that may constitute offences under the Consumer Protection from Unfair Trading Regulations 2008 and the Fraud Act 2006. 5. These complaints (and it must be emphasised that, at this stage, that is all they are) include overcharging for work done, taking money from victims’ credit cards without their authorisation and telling victims that their properties needed work which was not in fact needed. The principal targets of the investigation concern Mr Ashford and 1st Active Drainage Ltd but the two other applicant companies are said to be under investigation for money laundering. Fast Response Maintenance Ltd is not being investigated. 6. Having been made the subject of the restraint order without notice, on 1 October 2013, Mr Ashford was arrested and the orders were served upon him. He was then released on police bail. At the time of the substantive hearing before Judge Jarvis (and, in fact, to date, that is to say over two years since the investigation commenced), no charges have been brought: that only serves to underline that, at present, Mr Ashford and the companies face no more than allegations. The Hearing before Judge Jarvis 7. On 24 September 2013, ex parte , Judge Jarvis made orders restraining the applicants from dealing with property said to be worth in excess of £1 million; orders were also made requiring disclosure of identified information. At the hearing on 28 February 2014, the application made by Joseph Ashford and 1st Active Drainage Ltd was to vary the restraint orders so that they were limited to assets with a value of £500,000. The other two companies applied to have the restraint orders against them discharged on the grounds that they could not be justified in law. 8. By his ruling, Judge Jarvis explained the difficulties experienced in single court centres in ensuring sufficient time is dedicated to the hearing of ex parte applications for restraint orders and accepted that there were deficiencies in the prosecution witness statements and draft orders, particularly in relation to 1st Active Ltd and 1st Active Car Sales Ltd, which had clearly been prepared by ‘cutting and pasting’ parts of the other applications and had not been sufficiently (or, arguably, at all) focussed on the corporate entities against whom they were brought. 9. In consequence, Judge Jarvis conceded, in hindsight, that there may not have been sufficient evidence on which to make restraint orders against 1st Active Car Sales Ltd and 1st Active Ltd at the time of the original hearing. He went on, however, to consider the evidence as it stood at the date of the application. By that time, there was a further witness statement from the investigating authority which alleged the existence of evidence of money laundering in these companies. He found that the significant mixing of monies between the appellants asserted in the statement was grounds for not discharging the orders against 1st Active Ltd and 1st Car Sales Ltd. 10. In relation to the application to cap the restraint orders on Joseph Ashford and 1st Active Drainage Ltd, the judge found that this was potentially a criminal lifestyle case and as such, without Mr Ashford and the companies providing information to explain the movement of money, the time was not right to fix a cap. The judge thereby dismissed both applications but made it clear that, when the further expected evidence became available, it would be open both to Mr Ashford and the companies to renew their applications. Statutory Framework 11. Part 2 of the POCA makes provision for confiscation orders following conviction and restraint orders to prevent prior dissipation of realisable assets by a person in respect of whom there is reasonable likelihood of a confiscation order being made. This purpose is reflected in the legislative steer provided by s. 69(2)(a) in these terms: “The powers— (a) must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;” 12. It is, therefore, a necessary consequence that restraint orders can be made both before and after proceedings have commenced but, if prior to the institution of criminal proceedings, s. 40(2) of POCA requires that: “(a) a criminal investigation has been started in England and Wales with regard to an offence, and (b) there is reasonable cause to believe that the alleged offender has benefitted from his criminal conduct.” 13. If the condition in s. 40 is satisfied, s. 41(1) provides that the Crown Court may make a restraint order prohibiting any specified person from dealing with any realisable property held by him. This is subject to application to vary or discharge (s. 42) and to appeal to the Court of Appeal by any person affected by an order refusing to vary or discharge whereupon this court may “(a) confirm the decision; or (b) make such order as it believes is appropriate”: see s. 43(3) of POCA. The 1st challenge: “reasonable cause to believe” 14. The challenge mounted on behalf of 1st Active Ltd and 1st Active Car Sales Ltd is that there was insufficient evidence before Judge Jarvis, both at the ex parte hearing and at the application to discharge, to justify the conclusion that there was reasonable cause to believe that these two companies had benefited from their criminal conduct. The relevant original evidence is said to be contained in the witness statements (dated 21 September 2013) of Rebecca Phillips, a financial investigator authorised by the Trading Standards Department of Southampton City Council, the authority in charge of proceedings in this matter. 15. Ms Phillips provided four statements, one in support of each application for a restraint order. Mr Kennedy Talbot, for the applicants, correctly identifies that the statements in relation to 1st Active Ltd and 1st Active Car Sales Ltd were nearly identical to that served in relation to Mr Ashford, and as a result included a number of references to Mr Ashford as the defendant. More particularly, these statements contain no reference to the offences the two companies are each alleged to have committed; it is asserted that the two companies were used by Mr Ashford “as the ‘vehicle’ to commit offences currently under investigation”. Based on this formulation, it is certainly arguably unclear whether the two companies were being investigated in their own right. 16. Although, when reviewing his original order, the judge recognised the paucity of this evidence, at the review hearing, he relied on the subsequent statement of Rebecca Phillips dated 22 January 2014 which provides a degree of elaboration. It suggests that 1st Active Ltd and 1st Active Car Sales Ltd are under investigation for money laundering and states: “9. From looking at bank statements for Mr Ashford’s personal bank accounts and the bank accounts of 1st Active Drainage Ltd, 1st Active Ltd and 1st Active Car Sales Ltd, there appears to be a significant level of mixing of the monies. As this stage of the investigation it has already been discovered that the turnover of the companies subject to the restraint orders is not separate from Mr Ashford’s finances. … c. Account number … in the name of 1st Active Drainage Ltd. Debits can be seen to 1 st Active Ltd and 1 st Active Car Sales Ltd. Debits can also be seen leaving this account to the Bank of Ireland and personal credit cards held by Mr Ashford. … 10. Given the flow of money between the bank accounts and the potential money laundering offences that Mr Ashford and his companies are investigation for, I do not believe that discharging the restraint orders against 1st Active Limited and 1st Active Car Sales Ltd should be permitted. Both of these businesses have received money from the account identified in ‘c’.” 17. Ms Phillips does not exhibit the bank statements in support of these assertions, nor does she provide any indication of the scale or incidence of the transfers in her statement. Neither does she reflect on the undeniably honest and substantial cash generating business that Mr Ashford was conducting. This situation is not akin to the mixing by a drugs dealer of the proceeds of his dealing with other money which it cannot be established is so tainted. Mr Talbot argued that, given the number of complaints and the turnover of the business (said to be over £8.5 million from 2010 to date), without more, an assertion of mixing of personal money or money from one business with that of another, does not necessarily lead to the inference of money laundering. 18. Mr Talbot went on that these assertions represented the extent of the evidence against the two companies. In response, Mr Ethu Crorie for the prosecution, sought to rely on the witness statement, dated 18 February 2014, provided pursuant to the disclosure order by Mr Ashford, on behalf of 1st Active Car Sales Ltd. In particular, he identified that in the period to 31 August 2011 1st Active Ltd received £110,000 from 1st Active Drainage Ltd and in the period to 31 August 2012 received £265,021 (see paras. 13-14). In his statement on behalf of 1st Active Ltd, similarly dated, he explained: “11. In the period since 1 July 2013 1st Active Ltd has received £79,000 from Fast Response Maintenance Ltd. 12. In the period to 30 June 2013 1st Active Ltd received £130,000, £75,000 from 1st Active Car Sales Ltd and £55,000 from Fast Response Maintenance Ltd 13. In the period to 30 June 2012 1st Active Ltd received £360,000 from 1st Active Car Sales Ltd.” 19. Mr Talbot pointed out that these statements were provided in response to an order of the court and to allow the prosecution to use them to bolster a weak case (or at all) would be a breach of the protection from self-incrimination afforded by the common law and Article 6 of the ECHR. We do not have to decide this issue because he further argues that, in any event, in the main, these payments were from companies which are not said to have been involved in the underlying criminal offences. With that proposition we agree. 20. It is important to bear in mind the appropriate approach to reasonable cause in cases of this nature. In R v Windsor and others [2011] EWCA Crim 143 , Hooper LJ recognised that certainty was not required at this preliminary stage of the investigation but that “uncertainly is not in itself a reason for making a restraint order” (at para. 53). He also made it clear (at para. 87) that: “We do not see how the judge can rely upon such a broad and unsupported statement to find “reasonable cause”. Without being too prescriptive, it is vital that the judge is given material on which he can reach the conclusion himself that there is reasonable cause. He cannot find it just because he is told that an investigation has confirmed the suspicions of the Belgian authorities”. 21. Based on the evidence we have recounted, we conclude that Judge Jarvis was being asked to accept that the investigators had concluded that there was reasonable cause, rather than being presented with evidence sufficient to reach his own conclusion to that effect. In any event, neither are we satisfied on the facts of this case (where there were undeniably substantial sums held by Mr Ashford or in at least some of the companies which could not be said to be emanating from the proceeds of the criminal conduct being investigated) that the assertion of mixing of monies, without more, creates a reasonable cause to believe that the two companies were laundering money. 22. In the circumstances, we grant 1st Active Ltd and 1st Active Car Sales Ltd leave to appeal and discharge the restraint orders against both companies. If further evidence is available, or emerges, it remains open to the Council to pursue a further application. Criminal lifestyle and the size of the restraint order 23. Without making any admission, Mr Ashford and 1st Active Drainage Ltd concede that there was sufficient evidence, at least by February 2014, to allow the judge to conclude that there was reasonable cause to believe they had benefited from criminal conduct and there was no objection to the imposition of the restraint order. On their behalf, however, Mr Talbot does challenge its current unlimited scope and submits that the judge was wrong to refuse to vary the restraint order against them and impose a cap of £500,000. 24. In refusing to vary the restraint orders against Mr Ashford and 1st Active Drainage Ltd, Judge Jarvis relied on indications that the investigation had the potential to generate a finding of criminal lifestyle pursuant to the provisions of s. 6(4)(a) POCA, whereupon the court must apply the relevant statutory assumptions in s. 10 of the Act when calculating the benefit figure for a confiscation order. 25. Given the number of allegations then being investigated, the judge was right to be alive to this possibility but it is important to consider the practical operation of the section 10 assumptions in a criminal lifestyle case. The assumptions place the burden on the defendant to prove that any property obtained by him after the relevant date was not a result of his criminal conduct. Mr Talbot argued that 1st Active Drainage Ltd completed nearly 16,000 contracts for work from January 2011 (the date of the 1st complaint in the prosecution schedule) to date and, therefore, the number of cases in which complaints had been made represented 1.5% of turnover only. 26. Mr Crorie confirmed that the 52 offences currently under investigation had a total value of £144,478. However, he submits that this was just a sample of the complaints the Council had received: at the time of the original application, these amounted to approximately 240. Although there has been reference to a seized file containing a larger number of complaints, it cannot be assumed that these relate to potential offences. Assuming that every complaint of the 240 is valid (or following a finding of a criminal lifestyle, the contrary cannot be proved) and given that Mr Ashford is likely to have a ready explanation for his income, for example by providing invoices for the work legitimately undertaken and in respect of which there are no complaints, the maximum value of a confiscation order in this case was five times the current value, approximately £720,000. 27. There has been no suggestion by the investigating authority that the offences for which Mr Ashford and 1st Active Drainage Ltd are being investigated represent a systemic policy of overcharging that could generate an adverse finding even in the absence of complaint. Thus, on the present evidence, at its most generous, and assuming that this investigation does indeed progress to a prosecution and conviction, it does not appear to us that there is a realistic possibility that a confiscation order will follow in excess of £720,000. In the circumstances, we would grant Mr Ashford and 1st Active Drainage Ltd leave to appeal and allow the appeal by imposing that cap (albeit in excess of the cap conceded by Mr Talbot). Other Grounds 28. In the light of the concessions made by Mr Talbot and our conclusions on the 1st two grounds, it is not necessary to deal extensively with the remaining grounds of appeal. 1st, Mr Talbot contended that the orders should not have been made at all because there was no risk of dissipation of assets. We note that where the alleged offences involve dishonesty, the risk of dissipation will generally speak for itself: see Jennings v CPS [2005] 4 All ER 391 at para. 61. Furthermore, where money is moved around corporate vehicles without apparent reason, the risk is even more obvious. 29. The second further ground concerns the procedural failings in the original Crown Court proceedings which Mr Talbot contended amounted to a serious procedural irregularity that, by itself, would require this court to allow the appeal. In particular, Mr Talbot argues that he was deprived of the opportunity to make a submission as to procedural unfairness because the transcript of the ex parte hearing was only provided to the Appellants (after considerable argument) on 28 February. Mr Crorie responded by submitting that either the failings did not apply to the hearing on 28 February or the Appellants did not take the opportunity to adjourn the hearing. 30. In the event, Mr Talbot accepted that this ground formed part of the background against which the court should determine the substantive issues that he raised and this court has proceeded on the premise of the material available for that hearing. 31. That is not, however, to say that we view the way in which the application was initially pursued with equanimity or that we are prepared to generate the belief among prosecutors that insufficient care in the original presentation of applications for orders such as these will be overlooked or not treated seriously. That is far from the case and it remains of the 1st importance that applications of this type are presented with scrupulous attention to the statutory requirements of the legislation, mindful that points which it is known can be made on behalf of an absent defendant are ventilated in the evidence. Equally, judicial scrutiny remains essential and courts recognise the absolute imperative that judges have sufficient time to master the papers in ex parte applications so as to be able to challenge prosecutors where appropriate and then to hear the application, setting out fully the reasons for its decision. 32. This case, unfortunately, is another example of the failure of investigating authorities and of the court in this regard: it is necessary only to repeat the observations of Lord Toulson SCJ in Barnes v The Eastenders Group and another [2014] UKSC 26 (at paras. 118-125), under the heading ‘Lessons for the future’. 33. Section 43(3)(b) POCA allows this court to make such order as it believes appropriate. In Windsor, where there was also fresh evidence, the court felt able to suspend its final order quashing part of the lower court’s decision in order to allow the prosecution to make a fresh application for restraint orders in the Crown Court. The court in Windsor confirmed that the quashing order would come into effect when the judge hearing the application announces his decision and, in any event, no later than a certain date fixed by the Court. Given that there is fresh evidence which we have not considered, subject to any representations to the contrary, we would be minded to make a similar order in this case. 34. Subject to the foregoing paragraph, these appeals are allowed in the cases of 1st Active Ltd and 1st Active Car Sales Ltd by quashing the orders in their entirety and in the cases of Mr Ashford and 1st Active Drainage Ltd by imposing a cap of £720,000 on the amount restrained. An agreed order should be submitted to the court; any issue remaining to be resolved (including costs) should be identified by skeleton arguments within 7 days and will be determined by the court in writing.	{"ConvCourtName":["Crown Court at Dorchester"],"ConvictPleaDate":[],"ConvictOffence":[],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Appellant"],"CoDefAccNum":[],"AppealAgainst":["refusal to vary or discharge restraint order"],"AppealGround":["insufficient evidence for reasonable cause to believe companies benefited from criminal conduct","restraint order should be capped at £500,000 not unlimited","procedural irregularity in original proceedings"],"SentGuideWhich":["section 41 of the Proceeds of Crime Act 2002","section 43(3) of the Proceeds of Crime Act 2002","section 6(4)(a) of the Proceeds of Crime Act 2002","section 10 of the Proceeds of Crime Act 2002"],"AppealOutcome":["Allowed in part: restraint orders against 1st Active Ltd and 1st Active Car Sales Ltd quashed; restraint order against Joseph Ashford and 1st Active Drainage Ltd capped at £720,000"],"ReasonQuashConv":["insufficient evidence to support reasonable cause to believe companies benefited from criminal conduct"],"ReasonSentExcessNotLenient":["no realistic possibility that a confiscation order would exceed £720,000; unlimited restraint order not justified"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 200601756/A1 Neutral Citation Number: [2006] EWCA Crim 1926 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 17th July 2006 B E F O R E: MR JUSTICE SIMON HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- LEE KRIS CHAPMAN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR R W J EVANS appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. Judge Rogers: On 28th February 2006, at the Crown Court at Reading, this appellant was sentenced in respect of two indictments. On the first of those indictments there was one count of attempted robbery, an offence committed on 24th August 2005, and the learned judge, His Honour Judge King, sentenced the appellant to three years' detention in a young offender institution. In respect of a second indictment, he had to be dealt with for three counts: first of all, attempted robbery, to which a sentence of four years' detention was imposed, count 2, racially aggravated assault by beating, eight months' detention; and finally for battery, count 3, four months' detention. All of those sentences were ordered to run concurrently, making a total of four years' detention in a young offender institution, the 155 days spent on remand being ordered to count towards the sentence. 2. He now appeals against that sentence by leave of the single judge. 3. The facts are as follows. On 24th August 2005 a 19 year old youth, Mr Lilley, was walking home along a public path between two roads when he came across a group of about seven youths, one of whom he recognised as a youth called Bottsford. One of the group called out "queer", or words to that effect, to Lilley, who, being a homosexual, was used to that sort of comment and ignored it. He tried to walk past the group, but his path was blocked by the appellant who stood in front of him and demanded money. Lilley tried to pass but the appellant blocked him again. Then Bottsford came up and punched him on the head. The appellant joined in that attack and Lilley fell to the ground where he was punched and kicked. Lilley eventually made his way home and contacted the police. 4. The appellant was arrested on 8th September. He declined to comment in interview. He was bailed. 5. Three weeks later, whilst still on bail, he committed the offences in the second indictment on 1st October. A man called Ahmed drove his BMW motor car to a general store and bought some sweets and drinks for his children. He was making his way back to his car when the appellant said, "Oi, mate, give us your keys". Ahmed ignored him. He then realised he had forgotten to purchase some chocolate for his children so went back to the shop. Whilst he did that he heard others saying to the appellant "don't do it". Ahmed realised that there might be trouble, so told the shopkeeper to be ready to phone the police before he made his way out of the shop again. 6. When he came back out of the shop he found the appellant right beside his car and the appellant said, "Give me your fucking car keys". Ahmed refused. The appellant had his hand in the pockets of his clothing and gave the impression he had a weapon of some sort. He said to Ahmed, "I've got a piece, I'm going to shoot you." Ahmed felt threatened by that but tried to reason with the appellant, but appellant responded by saying, "I'm going to stab you", and walked towards Ahmed who backed away from him. The appellant kicked out at Ahmed's legs and punched him in the face. He then started racially to abuse him, saying "Get in the fucking corner you Paki". He demanded Ahmed's keys again and kicked and punched him. By this time Ahmed thought the police had been called, so changed his tack and tried to get hold of the appellant, who ran off between some cars repeatedly shouting racial abuse. 7. A passer-by, Mr Franklin, intervened. The appellant said, "You're white, I'm white, you're not a Paki". He tried to hit Mr Franklin and spat at both Mr Franklin and Mr Ahmed. Members of the group the appellant had been with tried to calm him down. However he ran off and came back with a metal bar which he swung at Mr Franklin who managed to block the blow so that it only hit him on the left shoulder. The police arrived and the appellant ran into a public house where he was arrested. When interviewed, he declined to comment. 8. This appellant was born on 20th August 1987 and is thus 18 years of age. He has numerous previous convictions. They include four previous convictions for common assault, three for robbery, two for racially aggravated threatening behaviour, one for assault with intent to rob, one for witness intimidation, one for affray and one for battery. 9. The pre-sentence report assessed this appellant as demonstrating a high risk of the likelihood of re-offending and a high risk of harm to the public. There was a medium risk of harm based on the pattern of offending. He had expressed his remorse and admitted he was angry particularly when he had been drinking. He did not seem to understand the reason for his inappropriate behaviour and tended to minimise his offending. The court before sentence also had the opportunity of reading a letter which had been prepared by the appellant. 10. The learned judge in sentencing said that the appellant had to be sentenced for two offences of attempted robbery, one of aggravated assault and one of assault. The offences were committed on two separate dates and he was on bail for the first attempted robbery when he committed the second series of offences. He had an appalling record of offences involving either the threat or use of violence, including substantial offences of robbery, attempted robbery or assault with intent to rob. He had also committed further specified offences. Those who present a risk of serious harm to the public are likely to find themselves sentenced to life imprisonment or indeterminate sentences. It was hoped that it was becoming clear to the appellant of the risk he had put himself in by his violent, anti-social, aggressive and totally unjustified conduct. He undoubtedly posed a risk of harm by committing further specified offences, but at the present time he did not pose a significant risk of serious harm because he had not carried a weapon, and, although these were unpleasant and aggressive acts, they did not cause really serious harm. However, His Honour Judge King warned the appellant that on future occasions a judge would probably not come to the same view if he committed another serious specified offence. In determining the appropriate sentence account was taken of the principle of totality and his pleas. 11. The grounds of appeal relied upon by Mr Evans are effectively three-fold. Firstly, that bearing in mind the age of this appellant this total sentence was manifestly excessive. 12. Secondly, that there was no more than an attempt to rob, no robbery was actually committed and, although serious, this was not as serious as is often the case in offences of this kind. 13. Thirdly, Mr Evans drew our attention to the report of Attorney General's Reference No 28 of 2001 (Daniel Collins) [2002] 1 Cr App R(S) 250. In that case, in respect of four robberies, three committed whilst on bail, the court concluded that the appropriate sentence was one of three years' imprisonment. There are, however, two distinguishing features between that case and this appeal. In that case the defendant had "no previous similar convictions", and, secondly, in arriving at that figure of three years the court had to take into account double jeopardy. Thereafter a further reduction was made in respect of the period spent in custody. 14. In our judgment, His Honour Judge King rightly identified these offences as being very serious and sentenced taking into account that the three counts on the later indictment were committed whilst this appellant was on bail. In our judgment, although this sentence was severe, it was not manifestly excessive and cannot properly be criticised. In those circumstances, this appeal is dismissed.	{"ConvCourtName":["Crown Court at Reading"],"ConvictPleaDate":[""],"ConvictOffence":["Attempted robbery","Racially aggravated assault by beating","Battery"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[155],"SentCourtName":["Crown Court at Reading"],"Sentence":["Three years' detention in a young offender institution (first indictment, attempted robbery)","Four years' detention in a young offender institution (second indictment, attempted robbery)","Eight months' detention in a young offender institution (racially aggravated assault by beating)","Four months' detention in a young offender institution (battery)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[18],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[19],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["High risk of harm","High risk of reoffending","Medium risk of harm"],"AggFactSent":["Offence committed while on bail","Appalling record of offences involving violence","Threat or use of violence","Racial abuse"],"MitFactSent":["Offender showed genuine remorse","Account taken of principle of totality and pleas"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentence was manifestly excessive given age","No actual robbery committed, only attempt","Comparison to Attorney General's Reference No 28 of 2001"],"SentGuideWhich":["Attorney General's Reference No 28 of 2001 (Daniel Collins) [2002] 1 Cr App R(S) 250"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Sentence was severe but not manifestly excessive","Judge took into account seriousness and that offences were committed on bail"]}
Neutral Citation Number: [2014] EWCA Crim 227 Case No: 201205294 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Peter Thompson T20107250 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/02/2014 Before: LORD JUSTICE PITCHFORD MR JUSTICE WILKIE and MRS JUSTICE PATTERSON - - - - - - - - - - - - - - - - - - - - - Between: CHRISTOPHER BOUGHTON-FOX Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Richard Furlong ( instructed by Birds Solicitors ) for the Appellant David Wilson (instructed by the Crown prosecution Service ) for the Respondent Hearing date: 5 February 2014 - - - - - - - - - - - - - - - - - - - - - Judgment MR JUSTICE WILKIE: Introduction and issues. 1. This Court has to deal with the following issues: i) A renewed application by Mr Boughton-Fox seeking leave to appeal against his conviction. ii) The appeal with leave by Mr Boughton-Fox against the confiscation order made under the Proceeds of Crime Act 2002 on 21 st March 2012. iii) In the event of that appeal being allowed, the question in principle, whether this Court should consider making a substitute confiscation order pursuant to the Criminal Justice Act 1988. iv) In the event that this Court decides in principle to do so, to give directions for a substantive hearing on the question what the content of such substituted order should be. Brief Chronology of the proceedings. 2. Mr Boughton-Fox and Jonathon Mathew Parrish were tried on indictment at the Crown Court sitting at Ipswich for a period of 10 weeks commencing 24 th January 2011. Both were convicted of the single count of Conspiracy to Defraud and, on 27 th April 2011, Mr Parrish was sentenced to 5 years and 6 months imprisonment and Boughton-Fox to 7 years imprisonment. Both were disqualified from acting as company directors for a period of 7 years pursuant to Section 2 of the Companies Directors Disqualification Act 1986. 3. Mr Boughton-Fox sought leave to appeal against conviction and sentence. Those applications were refused by the Single Judge who characterised them as wholly without merit. Notwithstanding the warning that, were the applications for leave renewed, the court may direct that time spent in custody as an appellant should not count towards sentence, the applicant renewed his application for leave to appeal against both conviction and sentence. 4. Those renewed applications were considered by the Full Court on 4 th May 2012. In the course of her judgment, Lady Justice Rafferty summarised the renewed grounds of appeal against conviction in six short statements; four of them asserted that the summing up was deficient in various ways. The fifth was that inadmissible evidence was given, cross-examined and referred to in the summing up and the sixth was that Mr Boughton-Fox’s legal team failed to seek or to call any evidence in support of him; as a consequence his conviction was unsafe. 5. The Full Court refused the renewed applications for leave to appeal against sentence and against conviction and deducted 28 days from the time served. The application for leave to appeal conviction for a second time. 6. At that point, in accordance with conventional wisdom, Mr Boughton-Fox’s right to appeal would be assumed to have become exhausted save in the case of a further referral to the Court by the Criminal Cases Review Commission (CCRC). Notwithstanding that, Mr Boughton-Fox has made a second application for leave to appeal against conviction. That application was considered and refused by the Single Judge on the 28 th March 2013. The CCRC has, upon reference by Mr Boughton –Fox, refused to refer the matter to the CACD. The proposed new grounds are numerous and cover a range of issues which are helpfully summarised in paragraph 2.3.1 to 2.3.17 in the written consolidated argument on behalf of Boughton-Fox dated 13 th November 2013, filed by Mr Furlong of Counsel. 7. We have no hesitation in refusing leave. In our judgment, this court does not have jurisdiction, save in the most exceptional circumstances, which do not remotely arise in this case, to entertain a second application for an appeal against conviction, (other than by reference by the CCRC) where a first application for leave has been refused or an appeal against conviction has been dismissed. In R v Pinfold 1988 1QB 462 , Lord Lane CJ, the court having already referred to Section 2(1) of the Criminal Appeal Act 1968 said, “So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But in the view of this court, one must read those provisions against a background of the fact that it is in the interest of the public in general that there should be a limit or finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English. We have been unable to discover, nor have Counsel been able to discover, any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case. So far as the Criminal Appeal Act 1968 is concerned, there are perhaps two possible exceptions, or apparent exceptions because that is what they are to that rule: first of all, where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure the appellant has, on the first appeal being dismissed, suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or Counsel has been unable to attend, circumstances such as that.” 8. This issue has recently been revisited by this court in R v Barry Jones Strettle 2013 EWCA Crim 1385 . In that case this court considered Pinfold and the decision of the Court of Appeal of Northern Ireland in R v Walsh 2007 NICA 4 , in which the Chief Justice dealt with an application to re-open an appeal which had been refused by the Criminal Cases Review Commission. The Chief Justice had noted that Pinfold had been decided before the Criminal Appeal Act 1995 which established the CCRC and that the CCRC may refer a case more than once. The Chief Justice said at paragraph 31 of his judgment, “We have concluded that the power of the Court of Appeal to relist a case has not been removed by the 1995 Act. The occasion for the exercise of such a power will arise only in the most exceptional circumstances, however. In virtually every conceivable case it is to be expected that where the possibility of an injustice is reasonably apprehended, the CCRC will refer the case. If it decides not to refer however, the circumstances in which a challenge to that decision can be made are necessarily limited – R v CCRC ex-parte Pierson 1999 3 All ER 498 . Where CCRC have been invited to refer a conviction to the Court of Appeal for a second time and has declined, if this Court considers that because the rules or well established practice have not been followed or the earlier court was misinformed about some relevant matter and, in consequence, if the appeal is not relisted an injustice is likely to occur, it may have recourse to its inherent power to relist (or effectively, reopen) the appeal.” 9. In Strettle, the applicant for leave argued that Walsh constituted a gloss upon Pinfold which allowed him to sidestep the review undertaken by the CCRC without challenging that decision and to ask this Court to reopen the appeal. This court rejected that contention in the following terms in paragraphs 11 and 12, “11. We decline to accept that the jurisdiction is as wide as Mr McGuire contends, or that the Chief Justice of Northern Ireland was, in truth, providing any second route of appeal in the event that the CCRC were not prepared to become involved in recommending that this Court pursue a further appeal. In our judgment, the CCRC is by far and away in the best position to determine whether an appeal should be referred to this Court. It has the power to investigate allegations which otherwise this Court might be constrained to require it to investigate, having given leave on what might transpire was a false premise. 12. In our judgment the proper course is for the CCRC to be seen as, almost invariably, the only route whereby an appeal might be reopened. We say the “almost invariably” never to exclude every possible circumstance, but we believe that the examples given by Lord Lane CJ are far more to the point than those which include cases such as this.” 10. In the present case we observe that the CCRC has refused to refer this case to the CACD. We have no doubt that none of the grounds now sought to be advanced by Mr Boughton-Fox are remotely of the type which could conceivably fall within the very narrow category of case which, in Pinfold and Strettle, were identified as such that this court may, in wholly exceptional circumstances, agree to reopen an appeal against conviction, a first appeal having failed at whatever stage. 11. Accordingly, we refuse Mr Boughton-Fox leave to pursue a second appeal against conviction. The appeal against the confiscation order. 12. Mr Boughton-Fox has leave in relation to an argument that the confiscation proceedings should not have been brought, and the confiscation order should not have been made, under the Proceeds of Crime Act 2002 (the POCA scheme). He has raised a number of further proposed grounds of appeal against the confiscation order which have been referred to this Court but, in the light of our decision on the main ground, it is not appropriate to consider them. 13. The order made by the court on 21 st March 2012 was that the benefit figure was £1,316,057.42. The available or realisable amount was £179,102.75. A compensation order was made for £98,343.13 which was ordered to be met out of the proceeds of the confiscation order, which was fixed as £179,102.75. The appellant was given 6 months to pay the sum ordered. A default term of imprisonment of 2 years and 6 months was set. 14. It is common ground that, for the reasons we set out briefly below, the Crown Court erred in law in proceeding to conduct a confiscation order hearing pursuant to the POCA scheme. It should have conducted any confiscation order proceedings pursuant to the scheme established by the Criminal Justice Act 1988 (the CJA 1988 scheme). 15. The reason for this is as follows: The Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SA 2003 No 333 (C20)) (the 2003 Regulations) provides, in Article 3, that: “(1) Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in 6(2) was committed before 24 th March 2003.” Article 1(3) provides: “Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this Order to have been committed on the earliest of those days.” 16. In the present case the confiscation proceedings were in respect of a conviction for a single offence of conspiracy to defraud. The particulars of the offence in the indictment, as amended and as tried by the jury, alleged that the period of the conspiracy to defraud was from the 1 st March 2003 until the 1 st June 2008. 17. On that basis it is now common ground that, by virtue of the transitional provisions referred to, Section 6 of POCA 2002 did not apply to the offence of which the appellant was convicted and the Crown Court erred in law in applying the POCA scheme. This accords with the decision of this court in Evwierhowa [2011] EWCA Crim 572 . 18. It is, therefore, common ground between Appellant and the Respondent to the appeal, with which we agree, that, at the end of this appeal, the confiscation orders made by the Crown Court on 21 st March 2012 will have to be quashed. What course is now open to the Court given that the current confiscation order cannot stand? 19. The Respondent to the appeal contends that this court has the power to substitute a confiscation order made pursuant to the CJA 1988 scheme. It does so relying on the power given to this court by Section 11(3) of the Criminal Appeals Act 1968 which provides; “On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may- a) quash any sentence or order which is subject of appeal; and b) in place of it pass such a sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; but the court shall so exercise their powers under this sub-section that, taking the case as a whole, the Appellant is not more severely dealt with on appeal than he was dealt with by the Court below.” 20. It is common ground, again with which we agree, that, on the facts of this case, the power given to this court by Section 11(3A) of the 1968 Act to direct the Crown Court to proceed afresh under the relevant enactment does not apply. That power is limited to directing the Crown Court to proceed afresh under the scheme which the Crown Court applied at first instance. Where, as here, the Crown Court applied the wrong scheme, the power in this court to remit the matter to the Crown Court for a fresh decision does not arise. 21. Mr Furlong does not seek to argue that this Court has no power to exercise the Section 11(3) power so as to substitute a confiscation order made under the CJA 1988 scheme on his client. He contends that, on the particular fact of this case, it would not be fair or just for this Court to embark on such an exercise. He contends that to do so would be to permit the Prosecution to benefit from abusive conduct which ought not to be permitted and that, upon a proper reading of the facts, it would require the Court to engage in a speculative exercise which would be unjust. 22. At the heart of his argument lies his contention that a restraint order, made by the Crown Court upon application of the prosecution, was obtained in circumstances which amounted to an abuse of the process and that it would be unjust for this Court now to embark upon substituting a confiscation order under the CJA1998 scheme where it would have to be on the basis that the restraint order and its effects continue to be in play. The obtaining and maintaining of the restraint order. The POCA 2002 scheme 23. Section 40 provides that the Crown Court may exercise the powers conferred by Section 41 if any of a number of conditions is satisfied. Two of those conditions are contained in subsections (2) and (3), “(2)… (a) a criminal investigation has been started in England and Wales with regard to an offence, and, (b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct (3)… (a) proceedings for an offence have been started in England and Wales and not concluded, and (b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct 24. Section 41(1) provides, “If any condition set out in Section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him. …” 25. Section 69 of the 2002 Act concerns exercise of powers. Subsection 1 provides that, “This section applies to – (a) the powers conferred on a court by sections 41 to 59 …” 26. Subsection (2) provides, “The powers - (a) must be exercised with a view to the value for the time being of realisable property being made available (by the properties realisation) for satisfying any confiscation order that has been or may be made against the defendant; (b) must be exercised, in case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property …” 27. Section 88 provides, (6) The following paragraphs apply to references to orders- (a) a confiscation order is an order under section 6; (b) a restraint order is an order under section 41 28. Parallel transitional provisions exist in respect of making restraint orders as exist in relation to making confiscation orders. Article 5 of the 2003 Regulations provide, “Section 41 (Restraint Orders) … of the Act shall not have effect where – (a) the powers in those sections would otherwise be exercisable by virtue of a condition in Section 40(2) or (3) of the Act being satisfied; and, (b) the offence mentioned in Section 40(2)(a) … was committed before 24 th March 2003.” The underlying facts 29. The restraint order was made on 18 th November 2008 on application by the prosecuting authority, Norfolk County Council Trading Standards. The witness statement in support of the application was dated 17 November 2008 and was made by Geoffrey Baker, a financial investigator accredited by the National Policing Improvement Agency. He stated that a criminal investigation was started on the 28 th September 2007 concerning alleged offences relating to false or misleading statements in the course of a trade or business and fraud by false representation. He confirmed that no proceedings had yet been commenced, so the application was made pursuant to Section 40 (2) of POCA. 30. He said that information was received on 28 th September 2007 by Norfolk County Council Trading Standards that the appellant’s company was involved in supplying telecommunications systems to other businesses throughout the UK and included a significant number of complaints from various UK businesses claiming that the company, through its employees or representatives, had used false or misleading claims to sell long term leasing contracts for telecommunication systems. 31. He stated that witness statements had been obtained from 38 complainants which showed a period of alleged offending dating from the summer of 2005. The parameters of the investigation were restricted to complaints from small businesses and schools reported to Norfolk and Suffolk Trading Standards and situated within these counties. The investigators were aware of allegations made of suspected offences being reported nationwide. 32. He stated that, on the 29 th February 2008, Norfolk Trading Standards executed a warrant at the trading address of the appellant’s company. A significant amount of documentation was seized, together with information held on computers. That information was still being examined to assess its evidential value. 33. The trigger for the application appears to have been that the appellant had put his residence on the market. 34. On the day following the order, solicitors for the appellant wrote requesting consent to a variation to enable Mr Broughton-Fox to raise from Shire Leasing a loan of £150,000, secured by a charge on the property caught by the order, to provide funding for unwinding a number of clients from their lease agreements. This was said to be essential to the ongoing trade of the company’s business. Trading Standards refused such consent. 35. Criminal proceedings against the appellant were commenced on 14 th May 2009 by summons which was issued on 1 charge of conspiracy to defraud said to have been committed during the period between 1 st January 2005 and 28 th February 2008. The case was committed to the Norwich Crown Court for trial on an indictment charging the offence and its duration as described in the summons. 36. On 18 th September 2009 a successful application was made by the prosecution at the Crown Court to amend that indictment to widen the period of the alleged conspiracy to the period between the 1 st March 2003 and 1 st June 2008. The trigger for that amendment was the obtaining, on the 4 th February 2009, of a witness statement from a complainant, Cynthia Graves, who is a partner in a florist’s business, trading as Peter Graves Florist, from an address in Cambridgeshire. Her complaint concerned her dealings with the company which, she said, began in around early April 2003. This resulted in her entering a leasing agreement on 25 th April 2003. Her complaint, therefore, was of allegedly fraudulent activity occurring prior to 2005. Out of an abundance of caution the time frame for the conspiracy to defraud was pushed back, by amendment of the indictment, to the 1 st March 2003. In the event, Cynthia Graves was not called as a witness, though the dealings between her business and the company were included in a schedule of loss which was relied on by the prosecution and placed before the jury. The essence of the appellant’s case in respect of the restraint order. 37. At the heart of the appellant’s case is the assertion that the restraint order, obtained under POCA, should not have been granted because the conditions for granting it did not then exist. 38. As an alternative to that argument, it is said that the order was obtained inequitably by virtue of the absence of full and frank disclosure by the prosecuting authority which would have revealed that the court did not then have the power to make the order pursuant to POCA. 39. As a subsidiary argument, it is said that, even if the order was obtained properly, there came a time, either on the 4 th February 2009 (the date of Cynthia Graves witness statement) or the 18 th September 2009 (the date of amendment of the indictment) when the jurisdictional basis for obtaining the restraint order pursuant to POCA had ceased, such that it would be unjust for this Court to act as if the order continued in effect, even though no application was made to discharge it on the jurisdictional grounds now advanced. 40. The appellant argues that this Court, in considering whether, in principle, it should substitute a confiscation order under the CJA 1998 scheme for the invalid one made by the Crown Court under POCA scheme, should have regard to the abuses of process evidenced by any of: the initial impropriety in obtaining the restraint order; or the failure on the part of the prosecutor to take action to inform the Court, and then make appropriate application, when it became apparent that the jurisdictional basis for the restraint order had ceased. 41. The appellant argues that various consequences flow from that state of affairs. The first is that, if the restraint order never should have been made, Mr Boughton-Fox would then have been free to deploy his assets to proceed with a larger scale unwinding of customers leases than had occurred prior to the restraint order being made. The correspondence from his solicitors, immediately following its being made, evidences, he says, such an intention. 42. In that event, at its highest, the court should assume that substantial unwinding would have taken place so as to diminish the amount of benefit of Mr Boughton-Fox for the purpose of making a confiscation order. 43. Even if the court fought shy of making such an assumption, it is said that the nature and extent of the benefit, in those circumstances, would be so open to speculation, that the court ought not to embark on such an exercise and should set its face against substitution of a CJA 1988 scheme confiscation order for the invalid POCA scheme order. 44. A similar argument is said to be available to Mr Boughton-Fox were the court to be of the view that, after obtaining Cynthia Graves’ witness statement in February 2009, the jurisdictional basis for the restraint order had been removed. At that point, it is argued, Mr Boughton-Fox should have been free to deploy his assets and the same arguments would pertain so as to persuade this court not to proceed by way of substitution. 45. A similar argument is advanced in the event that the relevant date for removing the basis for a validly obtained restraint order under the POCA scheme was the 18 th September 2009. 46. As a discrete, and subsidiary, argument, it is pointed out that Mr Boughton-Fox was the subject of a bankruptcy order made by the Norwich County Court on 3 rd November 2010. His bankruptcy has since expired. In the event that it was our conclusion that, at any stage, the jurisdictional basis for the restraint order pursuant to POCA had ceased and in the event of our concluding that a similar order would not have been obtained pursuant to the CJA 1988 scheme, it is said that assets, which were then the subject of a restraint order, would have been available to the trustee in bankruptcy. In those circumstances it is said that to permit the prosecutor to obtain a substitute confiscation order would enable the prosecutor to gain inappropriately from conduct which constitutes an abuse of the process. It is said that we should not entertain a substitution which would permit such an unmeritorious gain. 47. It is accepted on behalf of Mr Boughton-Fox, however, that, given the fact that the bankruptcy has now expired, such a conclusion would leave Mr Boughton-Fox with his assets free from any inhibition, whether pursuant to the bankruptcy or pursuant to a restraint or a confiscation order. The POCA 2002 and CJA 1988 schemes compared. 48. The 2002 Act made three changes, of significance to this case, when compared with the CJA 1988 scheme. First, applications for a restraint order fall to be made to the Crown Court rather than to the High Court. Second, the Crown Court has jurisdiction to grant a restraint order where a criminal investigation had been started, even though no charge had yet been preferred. Under the CJA 1988 scheme, the powers of the High Court to grant a restraint order only arise where proceedings are instituted (Section 76(1)(a)). Third, the circumstances in which the statutory assumptions by reference to criminal lifestyle arise under the POCA scheme are different to those under the CJA1988 scheme. It was common ground in the Crown Court that they arose in this case under the POCA scheme. It is common ground that they do not arise, on the facts of this case, under the CJA1988 scheme. Applying the POCA scheme to the facts of this case . 49. On the face of it, the restraint order obtained from the Crown Court pursuant to Section 41 was properly made. The evidence before that court, from Mr Baker, was that there was a criminal investigation which had been started on the 28 th September 2007 and was not in respect of an offence committed before the 24 th March 2003. The offence being investigated, on the material then available, commenced in the summer of 2005. 50. We can find nothing in the material which has been placed before us from which any inference is to be drawn that Mr Baker was aware that the subject of the investigation was a criminal offence which had commenced prior to the 24 th March 2003. There is no material to contradict his assertion that the witness statements then obtained did not concern offending pre-dating the summer of 2005 and that the parameters of the criminal investigation had not extended beyond Norfolk and Suffolk. 51. We therefore reject the contention that the restraint order was originally obtained either invalidly, or as a result of a failure on the part of the prosecuting authority to make full and frank disclosure to the Court on that application. 52. Nor, we conclude, was that position changed by the receipt of the witness statement of Cynthia Graves on the 4 th February 2009. She made it clear that the earliest date she was making an allegation about was early April 2003. She referred to a customer order/maintenance contract dated the 3 rd April 2003 and the Shire Leasing Hire agreement dated 25 th April 2003. We are satisfied that there is nothing in that witness statement to have alerted the prosecuting authority to the possibility that a criminal investigation had been started in which the continuing offence of conspiracy to defraud being investigated was an offence which commenced prior to the 24 th March 2003, so as to disempower the Crown Court from granting a restraint order under Section 41 of POCA. Thus, in our judgment, there can be no question of the prosecuting authority being guilty of any abuse of process by assuming that the validly obtained restraint order continued, unaffected by the extension of the ambit of the criminal investigation. 53. Once proceedings had been commenced by the issuing of the summons in the Magistrates Court in May 2009 then, even if a subsequent change in the ambit of the investigation meant that there was a potential difficulty about the use of the POCA scheme, by that stage the alternative CJA 1988 scheme procedure would be available to the prosecuting authority under which it could make an application to the High Court for a restraining order. 54. On the 18 th September 2009 the indictment was amended to extend the period covered by the alleged offence of conspiracy to defraud to begin on the 1 st March 2003. 55. By that stage the power of the Crown Court to make an order under Section 41 would be based on Section 40(3) namely: that (a) proceedings for an offence had been started in England and Wales and not concluded; and (b) there was reasonable cause to believe that the defendant had benefited from his criminal conduct. The power under Section 41 is triggered whether the condition under Section 40 is satisfied under (2) or (3) is the relevant condition. But that power does not arise if the offence for which proceedings has been started in England and Wales, and not concluded, was committed before 24 th March 2003. 56. It follows, therefore, that once the indictment was amended, then the power of the Crown Court to make a restraint order pursuant to Section 41 of the POCA was unavailable to the prosecuting authority. The prosecuting authority, if at that stage it had wanted a Court to make a restraining order, would have had to make application to the High Court pursuant to the CJA 1988 scheme. 57. The prosecuting authority did not do so. It is clear that it did not then cross its mind that, by virtue of amending the indictment, the relevant confiscation scheme had changed from the POCA scheme, to the CJA 1988 scheme. By parity of reasoning, it did not then cross its mind that the restraining order obtained by it from the Crown Court under the POCA scheme was in any way affected. We have no hesitation in concluding, therefore, that permitting the restraint order to continue, without any application to the Court to discharge it, was not a deliberate act of wrong doing which could arguably be said to amount to an abuse of process. The case of RCPO v Hill 2005 EWCA Crim 3271 . 58. We were referred briefly, and in passing, to this authority both in the written argument and in oral argument, but not taken to the report of the case itself. In that case, though it was not necessary for the decision of the court, some consideration was given to the interplay between Sections 6, 40, 41, 69 and 88 of POCA. At paragraphs 4 and 5 of the judgment, Lady Justice Smith said, “4. The power to make restraint orders during the course of an investigation contained in POCA was new. Under the preceding legislation (…) a restraint order could be made in the High Court but not until criminal proceedings were about to begin. Restraint orders under both the old and the new legislation were and are intended to support confiscation orders. Section 69(2) of POCA provides that the power under Section 41 “must be exercised with a view to the value …of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that … may be made against the defendant” 5. A confiscation order is an order made under Section 6 of the POCA. Section 6 provides that, subject to certain conditions which are not relevant for present purposes, a confiscation order may be made if a defendant had been convicted of an offence by the Crown Court and he has benefitted from that offence.” 59. The reference to Section 69 and the requirement that the power under Section 41 must be exercised with a view to satisfying a confiscation order, and that means a confiscation order made pursuant to Section 6 of POCA, is based on the interpretation Section 88 of POCA subsection (6) of which provides, “The following paragraph applies to references to orders – (a) a confiscation order is an order under Section 6; (b) a restraint order is an order under Section 41.” 60. As was pointed out in Hill , Section 42(3) of POCA provides, “An application to discharge or vary a restraint order or an order under Section 41(7) may be made to the Crown Court by – (a) the person who applied for the order …” 61. Once the indictment had been amended on 18 th September 2009 no lawful confiscation order could be made pursuant to Section 6 of POCA. Thus, there could be no proper basis for the exercise by the Crown Court of the power to make an order under Section 41 as it could not be made with a view to preserving realisable property or satisfying any confiscation order made under Section 6. 62. In such an event, had an application been made, either by the prosecutor or the appellant, to the Crown Court for a discharge of the restraint order under Section 42(3), it is highly likely, if not inevitable, that such an application would have succeeded. We have little doubt, however, but that, in anticipation of such an application being made and succeeding, the prosecuting authority would, maintaining their consistent position vis á vis the property of the appellant, have made an application to the High Court for a restraint order, which would, on the evidence we have seen, have succeeded. Thus, the discharging of the Crown Court restraint order would have had no impact on the inhibitions on Mr Boughton-Fox dealing with the property the subject of the Crown Court restraint order. 63. None of these events happened, however, and it is common ground that, unless or until an application was made to discharge the restraint order, or until its natural life ended, that order, validly made, continued. The position, therefore, would be that, a valid and effective Crown Court restraint order would continue, but one which was vulnerable to be discharged. In fact we are informed that the restraint order was discharged by consent on 30 October 2013. 64. As we have indicated, we are satisfied that the failure of the prosecuting authority to have acted to remedy the position following the amendment of the indictment on the 18 th September 2009 was inadvertent, not giving rise to an abuse of process. It follows, therefore, that none of the arguments put forward by Mr Boughton-Fox that it would be inequitable for this Court to embark on an exercise by way of substitution of a CJA 1988 confiscation order for the invalid POCA order can succeed. Accordingly, on the issue of principle, this court may make such an order, having received written and oral submissions on what the content of such an order should be. The process of substitution 65. It was common ground in the Crown Court that the “criminal lifestyle” provisions of the POCA scheme applied such that a series of statutory assumptions informed the calculation of benefit. It was on that basis that the order made be the Crown Court included a benefit figure of £1,316,057.42. 66. It is also common ground that the different provisions of the CJA 1988 scheme preclude, on the facts of this case, the application of the statutory assumptions under that scheme. With that in mind the prosecuting authority has submitted a further statement pursuant to Section 73 of the Criminal Justice Act 1988 dated 9 th December 2013. 67. That contains a fresh calculation of benefit which is based on commission received by the company, as reflected in a schedule placed before the jury at the trial. That has resulted in a calculation of benefit in the sum of £259,986.05 as explained in that form. This is in substitution for a statement made in an undated Section 73 statement of Mr Baker that the total benefit derived by the appellant was £1.180 million odd. 68. In that undated statement an assessment had been made of total realisable property in the sum of £223,587.75. 69. The appellant produced a response to that undated statement in which he asserted that the benefit figure should be £7,902.08 and in which he set out his case in respect of specific items of property said to be realisable and their valuation. That resulted in realisable amounts accepted by him of £5,221.84 and, in respect of a pension, an estimated figure of £9,712.50. 70. In his further Section 73 statement of the 9 th December 2013, Mr Baker has commented, point by point, in respect of the appellant’s case on the realisable assets. He has produced a revised figure, particularised in that statement, of £166,321.43 and invites the court to make a confiscation order in that sum, pursuant to the CJA 1988 scheme, in substitution for the order made by the Crown Court pursuant to the POCA scheme. 71. We have not been addressed by either party on the details of these various contending calculations and the appellant has not had an opportunity to respond to the revised benefit figure calculated by Mr Baker in his statement of 9 th December 2013. We give directions in a separate document for preparations for a further hearing in which the court will consider making a substituted order and will decide what the figures for benefit, realisable amount, compensation, and confiscation order will be if it is minded to make one. Conclusions 72. In summary, therefore, we refuse Mr Boughton-Fox leave to appeal against his conviction. 73. We conclude that the confiscation order made by the Crown Court must be quashed at the end of the resumed hearing at which consideration will be given to making a substituted order pursuant to the Criminal Justice Act 1988. 74. We conclude that there is no “in principle” obstacle to the court, on the next hearing, making such a substituted order. 75. We give directions, set out in the annexe hereto, leading to a further hearing at which this court will consider making a substituted order pursuant to the Criminal Justice Act 1988. John Matthew Parrish 76. We record that the appeal of John Matthew Parrish against the confiscation order made against him pursuant to the POCA scheme has been disposed of by agreement which we have approved. Its full terms are in a separate order. We briefly summarise its terms: i) we quash the POCA order made on 21 March 2012; ii) for it, we substitute a confiscation order made pursuant to the Criminal Justice Act 1988; iii) its terms include that the benefit from criminal conduct is £159,770.48, the available amount is £304,991.87, and the confiscation order is £159,770.48; iv) the compensation order in the sum of £98,313.11, made on 21 March 2012, stands unaffected and is to be met out of the sum the subject of the substituted confiscation order; v) there are consequential orders as to costs and for repayment of a sum of £85,221.39 which had been overpaid by Mr Parrish pursuant to the, now quashed, POCA order. ANNEXE REGINA -v- CHRISTOPHER BOUGHTON-FOX DIRECTIONS The Court having ruled that confiscation should proceed under the Criminal Justice Act 1988: 1. Appellant to respond to Mr Baker's amended section 73 statement within 8 weeks of the handing down of this judgment, such response to include all evidence upon which the appellant proposes to rely. 2. Respondent to respond (if appropriate) 4 weeks thereafter. 3. Skeleton arguments to be exchanged and filed with the Court by 1 June 2014 with time estimates for a full hearing. 4. Hearing to be listed on first available date after 14 June 2014, parties to notify the Court no less than 7 days before the hearing if the time estimate has changed. 5. Representation order to be extended to cover all work by Birds Solicitors & counsel necessary for the preparation of the response to the section 73 statement, including attending upon Mr Boughton-Fox as necessary.	{"ConvCourtName":["Crown Court at Ipswich"],"ConvictPleaDate":["2011-04-27"],"ConvictOffence":["Conspiracy to Defraud"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Ipswich"],"Sentence":["7 years imprisonment","Disqualified from acting as company director for 7 years"],"SentServe":[],"WhatAncillary":["Disqualification from acting as company director for 7 years"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Company"],"VicNum":["38 complainants"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Witness statements","Schedule of loss"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction","Sentence","Confiscation order"],"AppealGround":["Sums up was deficient","Inadmissible evidence given and referred to in summing up","Legal team failed to seek or call evidence in support","Conviction unsafe","Confiscation order made under wrong statutory scheme"],"SentGuideWhich":["Section 2 of the Companies Directors Disqualification Act 1986","Proceeds of Crime Act 2002","Criminal Justice Act 1988","Section 11(3) of the Criminal Appeals Act 1968"],"AppealOutcome":["Leave to appeal conviction refused","Confiscation order quashed; substituted order to be considered under Criminal Justice Act 1988"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Court has no jurisdiction to entertain a second appeal against conviction except in most exceptional circumstances, which do not arise here","No abuse of process in obtaining or maintaining restraint order","Crown Court erred in law in applying POCA scheme to confiscation order; correct scheme is CJA 1988"]}
Neutral Citation Number: [2013] EWCA Crim 569 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/04/2013 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE CRANSTON and MR JUSTICE LEGGATT - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - JFJ Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - John McGuinness QC for the Appellant Adrian Waterman QC for the Respondent Hearing date: 7 March 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The President of the Queen’s Bench Division: Introduction 1. In this application under s.58 of the Criminal Justice Act 2003 , the Crown seeks to challenge the ruling of a Crown Court judge that the respondent, JFJ, was entitled to a stay of the indictment charging him with the offence of assault occasioning actual bodily harm on the basis of a plea of autrefois acquit . As we consider the plea does not arise, the prosecution will proceed. The reasoning of our decision turns essentially on issues of law; it is possible therefore to set out the background facts of the case in brief outline so that the judgment can be made public without risk of prejudice to the trial. The background facts 2. JFJ was arrested on 12 February 2012 on an allegation that he had in the early hours of that day assaulted his partner with whom he had been in a long term relationship. Later the same morning, he was charged with common assault; there was medical evidence of minor injury. He appeared at the Magistrates’ Court 9 days later on 21 February 2012. The charge was put and he pleaded not guilty. The case was adjourned for trial on 2 April 2012 before the same court. 3. Subsequent to that hearing the prosecution received medical evidence that showed that the alleged victim had received far more serious injuries than was at first apparent. The Crown Prosecution Service therefore wrote to the solicitors acting for JFJ on 21 March 2012 stating that the prosecution intended to add a charge of assault occasioning actual bodily harm under s.47 of the Offences Against the Person Act 1861 “in place of the common assault”. The letter stated a hearing would be arranged before the scheduled summary trial date of 2 April 2012; that at the hearing the mode of trial would have to be considered as, in the light of the new circumstances, the case was considered to be outside the sentencing powers of the Magistrates’ Court. 4. That hearing took place on 27 March 2012. The court proceeded under s.17 A of the Magistrates’ Court Act 1980 to put the charge under s.47 to him and to ask him to indicate his plea. JFJ indicated a plea of not guilty. The Magistrates decided that the matter was more appropriate for trial on indictment. They therefore adjourned the matter for committal and vacated the trial date of 2 April 2012. The CPS lawyer present then said that he would offer no evidence on the common assault charge. The Magistrates thereupon dismissed the charge of common assault. The court record states that the charge of common assault was “dismissed (no evidence offered).” On 22 May 2012 the matter was duly committed to the Crown Court at a further hearing before the Magistrates. 5. On 8 August 2012, at a hearing in the Crown Court, the point was taken on behalf of JFJ that the dismissal of the common assault charge gave rise to a plea of autrefois acquit ; the Crown Court should on the authority of R v G [2001] EWCA Crim 1215 , [2001] 1 WLR 1727 enter a verdict of not guilty on the indictment charging him with assault occasioning actual bodily harm. The Crown Court judge considered that R v G was indistinguishable, accepted the contention made on behalf of JFJ and stayed the indictment. The issues in this court 6. In the present case, there is no doubt that, if the prosecutor had instead of offering no evidence on the charge of common assault, asked that the trial of the common assault plea be adjourned sine die or had served notice of discontinuance under s.23(9) of the Prosecution of Offences Act 1985 , the plea of autrefois could not have been made. It has not and could not have been suggested that to proceed with the charge under s.47 was in any way unfair or unjust to JFJ, let alone oppressive to him. In short, if the judge was right the technical error of the prosecutor in offering no evidence on the common assault charge has the consequence that there can be no trial of the allegations made against JFJ. 7. There is no doubt about the fundamental principle that underpins the decision on this issue - a person is not to be harassed or prosecuted twice for a crime. Thus if a person has been convicted of the crime previously, he cannot be tried again ( autrefois convict); similarly if he has been acquitted of a crime, he cannot be tried again for the crime ( autrefois acquit). A well known expression of the principle is that of Black J in the Supreme Court of the United States in Green v United States 355 U.S. 184, 188 (1957) “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.” 8. However the application of the principle to the present case gives rise to three issues for our decision: i) What was the actual decision in Connelly v DPP [1964] AC 1254 ? a) Was it that the plea of autrefois should be narrowly confined to a case where the offences were the same in fact or law? or b) Was the plea applicable to cases where although the offences were not the same in law, they were substantially the same? ii) Was JFJ in peril given (1) the fact that the charge of common assault was dismissed as part of a reorganisation of the prosecution case to which the defendant did not object and (2) the stage of the proceedings at which the Magistrates dismissed the charge? iii) Is the court bound by the decision in R v G ? We have been greatly assisted by the excellent arguments both written and oral advanced by Mr McGuinness QC and Mr Waterman QC. Issue I: The scope of the decision in Connelly (a) The disputed issue 9. It might have been thought that there was no doubt about the scope of the decision in Connelly as to what was required in relation to the similarity of the crimes in law . Mr McGuinness QC on behalf of the Crown submitted that the law was clear; the speech of Lord Devlin set out the principle; the crimes had to be the same in law; if they were not, the plea of autrefois could not be established. Mr Waterman QC on behalf of JFJ contended that that was not the position, as three different cases had to be distinguished: i) A case where the acquittal was for exactly the same offence – the issues of law and fact were identical. ii) A case where two offences were not identical, but all the ingredients of one of the offences (the lesser offence) were ingredients of the other offence which had additional ingredients (the greater offence). iii) A case where there was an overlap of fact between the two offences, but the crimes were not the same and all the ingredients of one were not part of the ingredients of the other offence. In both the first and the second case, the crimes were the same for the purposes of the principle of autrefois ; Connelly was the third type of case. (b) Connelly 10. In Connelly , the appellant’s conviction for murder during a robbery was quashed as there had been a misdirection. Because of a rule of practice at the time of not joining other counts to an indictment for murder, a count of robbery had not been included. The Court of Criminal Appeal then had no power to order a re-trial and so the appellant could not be re-tried for murder. He was, however, tried again but only on a count of robbery. He was convicted. The Court of Criminal Appeal upheld the conviction. There were two relevant issues in the House of Lords: first did the principle of autrefois apply? Second, if it did not, did the court have power to stay as an abuse of process, and, if so, should the prosecution for robbery have been stayed? Although the House was unanimous in deciding the appellant could be tried for robbery and dismissing the appeal, the speeches contain two differing views as to the scope of autrefois which are principally set out in the speeches of Lord Morris of Borth-y-Gest and Lord Devlin. (c) The approach of Lord Morris 11. Lord Morris, after concluding that the preferring of a second indictment had not been an abuse of process, considered that there could be no bar to proceeding with a trial for robbery, unless the plea of autrefois could be invoked. He concluded that the plea could not be made. He set out what he believed the applicable principles to be at pages 1305-6. His first principle about which there was no disagreement was: “(1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted” 12. However in the other principles he expressed, there was a difference between his approach and that of Lord Devlin. It is only necessary to refer to four: “(2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted; (3) that the same rule applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted …. (7) that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings; (8) that, apart from circumstances under which there may be a plea of autrefois acquit , a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies;” 13. He added at 1309: “It matters not that incidents and occasions being examined on the trial of the second indictment are precisely the same as those which were examined on the trial of the first. The court is concerned with charges of offences or crimes. The test is, therefore, whether such proof as is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first charge there could be a conviction.” 14. Lord Morris then proceeded to an extensive review of the authorities. Most relevant to the issue, as refined before us, are two decisions which he considered at page 1315-17. The first is that of Coltman J in R v Walker (1843) 2 M & Rob 446 at the assizes at York. The defendant had assaulted two people, T and F, with a knife. The defendant was brought before Magistrates under s.27 of the Offences against the Person Act 1828 (9 Geo.4 c.31, Lord Lansdowne’s Act) (the 1828 Act). The Magistrates, after a hearing at which T and F gave evidence about the assault on them with a knife, found him guilty of assault and ordered him to pay £5 with imprisonment for two months in default. The defendant was then arraigned at the assizes for stabbing, cutting and wounding with intent to maim T and F, doing the same with intent to disable and doing the same with intent to do grievous bodily harm. The defendant relied on s.28 of the 1828 Act which provided that if a defendant was convicted and served his sentence or paid the fine, he should be released from all further proceedings for “the same cause”. The point was taken on behalf of the prosecutor that he had not been in jeopardy for the offence with which he had been charged at the assizes, because the charge at the assizes was not “the same cause” as that for which he had been convicted by the Magistrates who had no jurisdiction to try the more serious charges. Coltman J rested his decision partly on the 1828 Act and partly on a wider principle: “On a complaint for a common assault they were to determine whether such assault was accompanied with any felonious intention; on that question they have adjudicated, and their decision is final. They are like any other Court of competent jurisdiction. It is the same as if the party had been convicted by a jury of the assault. I see no difference in principle whether a party has been convicted or acquitted. Suppose a party had been acquitted by a jury of an assault, and he was afterwards indicted for the felony which involved that assault; it is clear, if he did not make the assault, he could not be guilty of that which includes and depends upon the assault. There is no difference in such a case whether the party was acquitted or convicted. In either case the felonious intention would be negatived, and the party could not afterwards be indicted for a felony. The question here at issue has, I think, been well raised by the demurrer.” 15. Lord Morris observed at page 1317: “Again the same test appears and was applied. Would the evidence which was necessary to support the indictments be sufficient to convict of the earlier charge? If the prisoner had been acquitted by the magistrates he could not have been later charged with the felony. To prove an assault with intent would involve proving an assault: but he would have been acquitted of an assault. Furthermore, a court having jurisdiction to decide the matter would have decided that there was no felonious intent. The same reasoning applied where there had been a conviction before magistrates. The prisoner could not later be convicted of the felony. That would be for two reasons: (1) that the felony would involve the assault: it would include and depend upon the assault: and he had already been convicted of the assault; (2) a court having jurisdiction to decide the matter would have held that there was no felony.” 16. The second relevant decision is R v Elrington (1861) 1 B. & S. 688. The defendant had been tried before Magistrates for an assault and had been acquitted. S.28 of the 1828 Act also provided that in such circumstances a person should be provided with a certificate, and, if so provided, should be “released from all further or other proceedings civil or criminal, for the same cause”. He was subsequently indicted in respect of the same facts, for (1) assault occasioning grievous bodily harm, (2) assault occasioning actual bodily harm and (3) common assault. In reliance on s.28 of the 1828 Act Cockburn CJ and Blackburn J held that the defendant could rely upon the express words of the statute. Cockburn CJ added: “We must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in more aggravated form.” Lord Morris observed at page 1315 that Cockburn CJ must have been referring to the principle of autrefois acquit. Lord Hodson (at page 1332) considered that Cockburn CJ was extending the narrow principle of autrefois and it might be called “the ascending scale principle”. 17. It was submitted by Mr Waterman QC that these two decisions not only made good the seventh and eighth principles set out by Lord Morris, but also covered the second type of case to which he referred as we have set out at paragraph 9 above. (d) The approach of Lord Devlin 18. Lord Devlin was of the view that the principle of autrefois should be narrowly confined and that the court should prevent a second trial where it was appropriate through the court’s inherent power to stay for abuse of process. His view on the narrow scope of autrefois is set out at p 1339-1340: “For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word "offence" embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law… I would add one further comment. [Lord Morris] in his statement of the law, accepting what is suggested in some dicta in the authorities, extends the doctrine to cover offences which are in effect the same or substantially the same. I entirely agree with [Lord Morris] that these dicta refer to the legal characteristics of an offence and not to the facts on which it is based: see R v. Kendrick and Smith. I have no difficulty about the idea that one set of facts may be substantially but not exactly the same as another. I have more difficulty with the idea that an offence may be substantially the same as another in its legal characteristics; legal characteristics are precise things and are either the same or not. If I had felt that the doctrine of autrefois was the only form of relief available to an accused who has been prosecuted on substantially the same facts, I should be tempted to stretch the doctrine as far as it would go. But, as that is not my view, I am inclined to favour keeping it within limits that are precise. ” 19. The other form of relief was the inherent power of the court to ensure that the processes of the court were used fairly which he summarised at page 1347. “The judges of the High Court have in their inherent jurisdiction, both in civil and criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice to ensure that the court’s process is used fairly and conveniently by both sides..... ... a general power, taking various specific forms, to prevent unfairness to the accused has always been a part of the English criminal law.” After determining that the courts had power to see a defendant was not oppressed by having the case against him spread over too many indictments, he then concluded (at page 1353): “In my opinion, if the Crown were to be allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, there would be a grave danger of abuse and of injustice to defendants. The Crown might, for example, begin with a minor accusation so as to have a trial run and test the strength of the defence. Or, as a way of getting round the impotence of the Court of Criminal Appeal to order a new trial when, as in this case, it quashes a conviction, the Crown might keep a count up its sleeve. Or a private prosecutor might seek to harass a defendant by multiplicity of process in the different courts.” 20. He treated R v Elrington as an example of this wider principle and not as the application of autrefois (see page 1357). The two principles should be treated as distinct as autrefois gave an absolute right to relief, where the other only gave a qualified relief. He concluded (at page 1359-60) that the inherent power enabled a court to provide protection. It could stay an indictment when the charges in that indictment were founded on the same facts as the charges in a previous indictment on which the defendant had been tried, or formed or were part of a series of offences of the same or a similar character as the offences charged in the previous indictment. In those circumstances it would be oppressive to have a second trial. However “.. a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient. The judge must then, in all the circumstances of the particular case, exercise his general discretion as to whether he accepts the general rule.” 21. An example Lord Devlin gave of the special circumstances was a case where the prosecution considered two trials of offences by preferring two indictments and the defence accepted the choice without complaint and availed itself of any advantage which might flow from it. 22. Lord Pearce treated Elrington as a case where the court’s decision was grounded in its inherent powers to prevent abuse (see pages 1364-7). (e) Our conclusion 23. It is well recognised that it is by no means easy to determine what the ratio in Connelly was: see the analysis of Professor Martin Friedland QC in Double Jeopardy (Oxford, 1969) . In our view the majority decision is contained in the speech of Lord Devlin. Lord Reid (at 1295) and Lord Pearce (at 1368) agreed with Lord Devlin, rather than Lord Morris, even though Lord Morris’ speech is sometimes treated as authoritative. It follows that the scope of autrefois is narrow and the offence, as well as the facts, must be the same for the plea of autrefois to apply. 24. That is what this court concluded in R v Beedie [1998] Q.B. 356 where Rose LJ, giving the reserved judgment of the court, accepted that the ratio of Connelly was expressed in Lord Devlin’s, not Lord Morris’ speech on the ambit of the plea of autrefois. In that case, a tenant had died of carbon monoxide poisoning; the landlord had pleaded guilty to offences under Health and Safety and other legislation. At a subsequent inquest the landlord gave evidence having been told that as he had been prosecuted he could suffer no prejudice. The inquest jury returned a verdict of unlawful killing and he was charged with manslaughter. The trial judge, Clarke J (as he then was) rejected the plea of autrefois on the basis that on analysis the majority of the House in Connelly identified a narrow principle of autrefois; it applied only where the same offence was alleged in the second indictment. This court held that the defence had been right to accept on appeal the correctness of that analysis. The Court allowed the appeal on the basis that the court had power to stay the indictment and should have exercised that power. There were no exceptional circumstances to permit a second trial. The subsequent indictment charging manslaughter should have been stayed since it was based on substantially the same facts as the earlier prosecution, but gave rise to a prosecution of an offence of greater gravity, in breach of the principle in Elrington. 25. Very recently in R v Bayode [2013] EWCA Crim 356 , this court reached the same conclusion; Hughes LJ, at paragraph 17, set out the reasons for concluding that the scope of autrefois was limited to that set out in the speech of Lord Devlin. 26. The view of this court in Beedie and Bayode and the view we have expressed to the same effect is the same as that of the Law Commission expressed at paragraph 2.3 of its Report entitled Double Jeopardy and Prosecution Appeals (2001), Law Com 267; see also Friedland (to which we have referred at paragraph 23 ), and Cross and Tapper on Evidence at page 98 of the 12 th Edition (2010): cf Blackstone (2013) at paragraph D.12.24 and at Archbold (2013) at 4-88 and 4-183-4. 27. We do not consider that the decisions in Walker and Elrington point to a wider scope for the doctrine of autrefois. If, as Lord Devlin stated, the scope of autrefois is narrow, then these cases turn on the wider principles through which the court ensured the just treatment of an accused. 28. The present case provides very compelling illustration as to the need to confine the plea of autrefois to a narrow basis. As Lord Devlin made clear at page 1347-8: “... I must observe that nearly the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accused. The doctrine of autrefois was itself doubtless evolved in that way.” 29. If the plea was not narrowly confined as set out in the speech of Lord Devlin, in the present case a technical error would result in injustice. It might be said that it was incumbent on the Crown to avoid such errors; but, as the cases to which we shall refer demonstrate, such a hope has, even in times past, never been reflected in experience. In any case where the narrow application of the principle would result in unfairness or injustice to a defendant amounting to oppression, the remedy lies in the power of the court to stay the proceedings. 30. No submission has been made, nor could it be made, that in the present case, the Crown’s conduct in seeking to have JFJ tried on a greater charge when he has technically been acquitted on the lesser charge is in any way unfair or unjust, let alone abusive or oppressive. Issue II: Was JFJ in peril? 31. If our view on the first issue is correct, then subject to the effect of the decision in R v G, the second issue identified by us at paragraph 8 does not arise and the appeal must be allowed. However, we have reached clear conclusions on those issues which would result in the allowing of the appeal, if we were wrong on the first issue. We therefore turn to consider the second issue, namely whether JFJ was in peril. 32. The principle is clear; it was expressed by Lord Devlin in Connelly at page 1353: “The doctrine of autrefois protects an accused in circumstances in which he has actually been in peril. It cannot, naturally enough, protect him in circumstances in which he could have been put in peril but was not .” 33. But what is meant by being in peril? In Haynes v Davis [1915] 1 KB 332 , Lush J, cited a passage in Russell on Crimes which set out three requirements for a person to be in peril – (1) the court was competent to try him for the offence (2) the trial was on a good indictment on which a conviction could be entered and (3) the acquittal was on the merits. He continued: “I quite agree that “acquittal on the merits” does not mean that the jury or the magistrate must find as a matter of fact that the person charged was innocent; it is just as much an acquittal upon the merits if the judge or the magistrate were to rule upon the construction of an Act of Parliament that the accused was in law entitled to be acquitted as in law he was not guilty, and to that extent the expression “acquittal on the merits” must be qualified, but in my view the expression is used by way of antithesis to a dismissal of the charge upon some technical ground which had been a bar to the adjudicating upon it. That is why this expression is important, however one may qualify it, and I think the antithesis is between an adjudication of not guilty upon some matter of fact or law and a discharge of the person charged on the ground that there are reasons why the Court cannot proceed to find if he is guilty.” 34. That was a dissenting judgment, but it expressed an analysis of the law which was little different to that of the majority. More importantly, it has been approved in the Court of Appeal Civil Division in Jelson Estates v Harvey [1983] 1 WLR 1401 as correctly expressing the legal principles and applied in several of the decisions to which we shall refer. 35. The application of these principles to the present case turns in our view on two questions: i) Was the defendant in peril if the charge was dismissed in the context of a simple reorganisation of the prosecution case in a manner to which the defendant did not object? ii) Was the dismissal of the charge of common assault done at a stage in the proceedings when the defendant could not realistically be said to be in peril? Re-organisation of the Crown’s case 36. The suggestion that action taken on a re-organisation of the Crown’s case (to which the defence did not object) did not put the defendant in peril was first considered in R v Dabhade [1993] QB 329 , (1993) 96 Cr App R 146 . The defendant was charged with obtaining by deception; he chose summary trial, pleaded not guilty and a date for trial was fixed. At the trial a charge of theft was preferred. The Magistrate declined to accept jurisdiction to try the case; instead he proceeded to consider committal to the Crown Court on the charge of theft. The prosecution offered no evidence on the charge of obtaining by deception. The accused was then committed by the Magistrate for trial at the Crown Court where he was convicted of theft. At the Crown Court he unsuccessfully advanced the plea of autrefois. The Court of Appeal in dismissing the appeal from the Crown Court reviewed a number of cases and set out a number of principles at page 341(and 154 respectively): the fourth principle was: “If, moreover, the context in which a charge is summarily dismissed is a rationalisation or reorganisation of the prosecution's case, so that, no doubt in recognition of the difficulties that may lie ahead in the successful prosecution of the original charge, it is decided to substitute therefor a new charge which is regarded as more appropriate to the facts, then the consensual dismissal of the original charge, upon the substitution of the new one, will not give rise to the application of the doctrine of autrefois acquit : Broadbent v High . Admittedly, the prosecution have not been put to their election; but that is merely because it is at their instance that the new and substituted charge is preferred. Apart from anything else, including the fact that to hold otherwise would be contrary to common sense, it is plainly undesirable that the prosecution should be obliged to keep alive a charge upon which they have no intention of seeking a conviction merely to meet any subsequent attempt to apply the doctrine of autrefois acquit in circumstances which are both technical and without merit.” 37. The late Professor Sir John Smith in a comment in the Criminal Law Review at [1993] Crim LR 67, gave his general approval to the fourth principle in that no injustice was done to the defendant, but pointed out: “The application of this principle may not, however, be sufficient if the acquittal on the first charge would be inconsistent with the conviction on the second. The record would then say both that the defendant was guilty, and that he was not guilty, of the conduct in question; and that does not seem tolerable. This was not so in the present case: the defendant was not guilty of obtaining the money by the deception alleged; and he was guilty of stealing it.” 38. Dabhade was followed in DPP v Riches [1993] COD 457; the only report now apparently available is that in the Crown Office Digest though a full report did at some stage exist. The accused was charged with stealing money from his employers over a 4 week period; the original charge covered the full period, but at a hearing prior to the trial the prosecutor preferred 4 charges, one covering each week. The accused agreed to a summary trial and pleaded not guilty to all charges. The prosecution then offered no evidence on the original charge. The matter was adjourned for trial; at the trial, the Magistrates accepted a plea of autrefois. The Divisional Court (Watkins LJ and Tuckey J) reversed the decision. They held that, although the accused and his advisers may not have expressly consented to the course the prosecution followed, it was apparent that what happened was consensual. The new charges (which self evidently covered the same ground as the original charge) were proffered and, immediately after the defendant’s plea had been taken, no evidence was offered on the original charge. The prosecution accepted he should be found not guilty of that charge and to that extent what happened was consensual. 39. It was also followed in this court (Russell and Pill LJJ and Turner J) in R v Brookes [1995] Crim LR 630. The defendant was charged originally with an offence of grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861 ; he pleaded not guilty before the Magistrates. Five weeks later the prosecution decided to proceed with a charge of grievous bodily harm with intent under s.18. At a hearing before the Magistrates, the prosecution offered no evidence on the charge under s.20 and immediately thereafter the charge under s.18 was laid. The defendant unsuccessfully relied on the plea of autrefois acquit and abuse of process . The brief report notes that the court held that the adjudication of not guilty did not reflect anything other than the prosecution decision already communicated to the defence. The court stated: “So far as the present case is concerned, the magistrates' court had not embarked upon a trial of the merits. The adjudication of not guilty did not reflect anything other than the prosecution decision, which had already been communicated to the defence, that they would not be proceeding with the charge under s.20 but would instead prefer the more serious charge under s.18. There is no possibility here that the defence were under any misapprehension as to what the procedure, mistakenly and wrongly adopted, was as a matter of fact intended to achieve … We have come to the clear conclusion that since there was no question of anybody being misled by what happened in the magistrates' court…, the decision of [the judge] not to uphold the plea in bar was entirely correct.” 40. This decision was the subject of a further comment by Sir John Smith who after referring to his comment on Dabhade, stated: “The present case goes farther. In Dabhade there was no inconsistency on the record: an acquittal of obtaining by deception contrary to section 15 of the Theft Act 1968 is not inconsistent with a conviction for theft contrary to section 1 of that Act on the same facts. But an acquittal of an offence under section 20 is inconsistent with a conviction of an offence under section 18 on the same facts. The greater offence includes the lesser. The justification is that the acquittal was not a “real” acquittal. Real or not, it was presumably recorded and the record is false.” We shall return to the decision in Dabhade, as this court overruled it in 2001 in R v G - see paragraphs 52 and following 41. Nonetheless Brookes was followed in DPP v Khan [1997] RTR 82. The defendant was charged in respect of the same incident with dangerous driving, careless driving and driving without due consideration. He pleaded not guilty to the charges. The prosecution asked for the charge of careless driving to be adjourned sine die; the Magistrates did so. The prosecution then offered no evidence on the charge of driving without due consideration; the Magistrates formally acquitted him of the offence. After hearing evidence, they convicted him of dangerous driving. He successfully appealed to the Crown Court which determined that on the charge of dangerous driving the Magistrates should have accepted on the charge of dangerous driving autrefois on the basis of what Lord Morris said in Connelly at page 1309 (see paragraph 13 above) . The Divisional Court (Schiemann LJ and Holland J) held that was incorrect, applying the decision in Brookes . It did not matter that the defendant had been deprived of the opportunity of being convicted of the lesser offence, as the court would do its judicial duty of convicting of the more serious offence only if it was strictly proved. 42. We do not need to refer to cases where the defendant may not be in peril for other reasons such as the deficiency in the charge as DPP v Porthouse (1989) Cr App R 21 or the more difficult decision in Broadbent v High [1985] RTR 359. They do not assist on the issues in this appeal. 43. When all that is being done is that the Crown is re-organising its case and no objection is taken, the decisions to which we have referred make it clear that it cannot be said that the defendant is in peril in such circumstances. This is fully in accordance with the reality that the defendant is not in such circumstances at risk of conviction of the offence which is not to be pursued. Although we see the force of the point made by Sir John Smith that the Magistrates’ Court record states there has been an acquittal on the charge of common assault, that does not mean he was in peril at the time. He plainly was not in peril. The formality of the record of the court should make no difference to the reality. The stage in the proceedings at which he becomes in peril 44. There is no doubt that in the Crown Court, the defendant is in peril when the defendant is put in charge of the jury. The position as to when the defendant is in peril in the Magistrates, Court is less clear on the authorities. 45. If the court sets a date for trial, the defendant attends and the prosecutor unsuccessfully applies for an adjournment of the trial, then the Magistrates are entitled to proceed with the trial. The defendant is then in peril. If the prosecution has no evidence to call, an acquittal by the Magistrates is at a time when the defendant is in peril for the purpose of autrefois. This is what happened in R v Swansea Justices ex p Purvis (1981) JP 252. After a plea of not guilty, the Magistrates adjourned the case for a trial. On the date fixed for the trial, the prosecution did not have its witnesses and sought an adjournment. The Magistrates, acting within their discretion, refused an adjournment. As the prosecution could not call any evidence against the defendant, they dismissed the charge. A fresh information was preferred. The Magistrates refused an application to dismiss the fresh information. In quashing the decision, Donaldson LJ (with whom Bingham J agreed) said: “In the present context “on the merits” is a phrase which distinguishes between where a court is in a position to convict but does not do so and the position where a court is unable to proceed to consider the question of conviction or acquittal because it has no power, or thinks it has no power, to adjudicate.” The decision by Judge David QC (a very experienced and distinguished circuit judge) in R v Pressick [1978] Crim LR 377 was to the same effect. 46. Those were cases where the trial had actually begun in the sense that the court was ready to hear the witnesses. It has, however, been suggested that a trial in the Magistrates’ Court begins when a plea is taken. In Dabhade, Wright J in giving the judgment of the court set out in his first principle: “For the principle of autrefois to apply, the defendant must have been put in jeopardy. Quite apart from all other requirements, he must demonstrate that the earlier proceedings that he relies upon must have been commenced - that is, by plea in summary proceedings, or by his being put in charge of the jury in a trial on indictment.” 47. A similar view was expressed by Rougier J giving the judgment of the Divisional Court in Williams v DPP [1991] 1 WLR 1160 . The defendant driver had been required to have samples of blood taken with the result under the legislation that the prosecution could not rely on the samples of breath. Nonetheless an information was preferred on the basis of the samples of breath. Before the driver pleaded, his solicitor obtained the dismissal of the charge on the basis he could not be convicted. A fresh information was laid on the basis of the samples of blood. He was convicted. The court held he had not been in peril as the earlier charge was dismissed before he pleaded: “Herein assistance is to be derived from two cases. The first is R v. Tonner [1985] 1 W.L.R. 344 , where it was held that on an indictment a trial starts, not upon the arraignment of the defendant but once a jury has been sworn and the defendant has been put in their charge. In dealing with a situation in the magistrates' court, in R v. Hammersmith Juvenile Court, ex parte O . (1987) 86 Cr.App.R. 343 , the court there held that a trial in a juvenile court begins when the plea is taken. It seems to me that in proceedings before justices, this is the logical moment whereat a defendant begins to be in peril of a conviction. Although it could be said that when a preliminary point is taken before plea, battle has been joined, as it were, yet all that is due to happen at that stage is that the point is decided either for or against the defendant; he is not in peril of conviction of the charge he is called upon to answer as a result of that decision. I am of the opinion that the decisions in various defendants' favour in most of the cases cited to us, and to which I have already referred, are explicable on the basis that the defendant has entered a plea of not guilty.” 48. The question whether the defendant was in peril in such circumstances was considered in Holmes v Campbell (1998) 162 JP 655. That was a prosecution by the Environment Agency where summary trial had been agreed and not guilty pleas entered. The defendants then indicated at a later stage in the proceedings that they would plead guilty. A date was set for the taking of those pleas at a hearing. An error was made by the prosecutor as to the time of the hearing. When she did not appear, the Magistrates dismissed the informations. The Agency preferred new informations which the Magistrates declined to hear. In the appeal to the Divisional Court the Agency did not contend that the hearing at which the Magistrates dismissed the original informations was a nullity. Although the Agency accepted that the decision amounted to an acquittal, the Agency contended it did not give rise to the plea of autrefois in respect of the new informations . The Divisional Court (Schiemann LJ and Brian Smedley J) held the Agency was correct. Applying the principles set out by Lush J in Haynes v Davis , the court concluded that the second and third conditions were not met, as on the terms of s.15 of the Magistrates’ Court Act 1980 (MCA), the court could not have convicted the defendants on the day that the Agency did not appear. They were therefore not in peril and there had been no acquittal on the merits. The court said in respect of the defendants’ contention that they were in peril from the moment they had tended a plea of not guilty: “One has to bear in mind now that there are distinct procedures to be gone through when a person is summonsed to face offences which are triable either way before the plea is taken, but he says that at the latest the accused is in jeopardy from the moment of plea. Support for that proposition is derived from the words of Rougier J in Williams v DPP [1991] All ER at page 659, where he says that when an accused is to be tried on indictment the moment when he is in peril is when the jury are sworn to try him and he is put in their charge. The fact that he may have been arraigned at some much earlier stage, (and frequently nowadays is), is irrelevant. Until the jury have been sworn although he may be acquitted by order of the Judge he cannot be convicted. That is certainly correct but why the position should be so different in the Magistrates’ court it is difficult to see. On the facts of the present case there was never any risk of the defendants being convicted by the court sitting on 12 th November unless they had entered pleas of “Guilty” and, probably not even then, unless the prosecution advocate was there.” 49. In ex parte O (to which Rougier J referred in Williams as we have set out at paragraph 47) the Divisional Court’s conclusion that a trial at the Magistrates’ Court began when the plea was taken was in part based on s.9 of the MCA and in part by analogy with the Crown Court: “If it be permissible to compare the situation with a trial on indictment, it would seem to be difficult to contend that the trial has not started when the accused has been arraigned and asked to plead to the indictment.” 50. Whatever may have been the position in the 1990s, it is clear that the pre-trial process in the Magistrates’ Courts and the Crown Court now have much greater similarity. A plea should ordinarily be taken in the Magistrates’ Court at the first hearing; directions are then given and a trial date fixed. In the Crown Court, there is a plea and directions hearing at which the plea is ordinarily taken and the trial date or trial window fixed either then or shortly thereafter. It is clearly right that a defendant is only in peril of conviction at the Crown Court when he is put in charge of the jury. S.9 of the MCA 1980 provides that at a summary trial the court shall put the information to the defendant and ask whether he pleads guilty or not guilty; the court, after hearing the evidence and the parties is to convict or dismiss the information. It does not mean that the trial always commences when the information is put and the plea made. There is no reason for treating the position in the Magistrates’ Courts as being different. The defendant can be in peril only when the Magistrates or District Judge are at a hearing for the purpose of determining whether the defendant is guilty; that can be the first hearing when the plea is put, but these days it is more likely to be the date fixed for the summary trial. Conclusion 51. In the present case, at the time that no evidence was offered, JFJ had been charged with assault occasioning actual bodily harm, the Magistrates’ Court had determined that the case should be committed to the Crown Court and the court had adjourned the proceedings under that charge for committal. No objection was taken to that course. In our view, JFJ was not in peril at the time the prosecutor subsequently offered no evidence and the charge was dismissed by the Magistrates. That was both because the defence had not objected to the reorganisation of the way in which the prosecution was to put its case and because in any event a stage in the proceedings had not yet been reached where he could be in peril. Issue III: Is the court bound by the decision in R v G? 52. In R v G , G was charged initially with various offences of affray, assault occasioning actual bodily harm on another and an offence of common assault on R. The matter was committed to the Crown Court. At a hearing in the Crown Court, the prosecution sought to amend the indictment to add a count of assault occasioning actual bodily harm to R because of the extent of R’s injuries. Counsel for the Crown said no evidence would be offered on the count of the common assault count in relation to R on the basis defence counsel “would not take any autrefois acquit point.” The Crown then offered no evidence. The Recorder entered a verdict of not guilty under s.17 of the Criminal Justice Act 1967 ( CJA 1967 ). That section provides that if the court enters a verdict of not guilty when the prosecution offers no evidence against a defendant arraigned on indictment “the verdict should have the same effect as if the defendant had been tried and acquitted on the verdict of a jury”. The matter was adjourned for trial. 53. New counsel for the defendant who appeared at the trial argued that a plea of autrefois did arise. The judge ruled against this on the basis of Brookes. On the appeal it was submitted on behalf of the defendant that the mens rea and actus reus of common assault and assault occasioning actual bodily harm were the same, the difference between the offences being whether injury had actually been caused to the victim. The defendant was entitled to rely on the defence of autrefois acquit where a verdict of not guilty had been entered in relation to common assault as the verdict meant an acquittal by virtue of s.17 of the CJA 1967 . 54. The court accepted this argument (see paragraph 18 of the judgment) on the basis there was no answer to the point on s.17 advanced on behalf of the defendant. The court concluded that Brookes was wrongly decided. In its view, the court in Brookes had overlooked s.27 of the MCA (which has the same effect as s.17 CJA 1967 ): s.27 of the MCA provides “Where on the summary trial of an information for an offence triable either way the court dismisses the information, the dismissal shall have the same effect as an acquittal on indictment”. 55. The court then went on to refer to the comment of Sir John Smith on Brookes to which we have referred at paragraph 40 above, adding “It seems fair to infer that Sir John Smith was not impressed with the court’s decision in R v Brookes ”. Although the court observed that that comment was not fatal to the decision, what was fatal was the failure of the court to take account of s.27 of the MCA. If that had been drawn to the attention of the court it was highly unlikely that the decision of the court would have been as it was. Brookes must, the court concluded, be regarded as decided per incuriam. 56. We regret that we cannot agree with the conclusion reached in R v G. It must be regarded as wrongly decided for a number of reasons which permit us to depart from it upon the well established principles set out most recently in R v Magro, Varma and others [2011] QB 398 . i) The offences were not the same in law, as they must be if the plea of autrefois is to be available. We have already set out our reasons for reaching that conclusion. Neither Connelly nor Beedie were drawn to the attention of the court in R v G . If they had been, the decision would have been different. ii) None of the line of cases to which we have referred at paragraphs 36 and following, except Brookes and Dabhade, was put before the court. Dabhade was not referred to in the judgment and the court did not consider whether the defendant was in peril either because the Crown was reorganising its case without objection from the defence or because of the point in time at which the decision to offer no evidence was made. Had it done so, it would not have reached the conclusion it did. 57. In any event R v G can be distinguished. The court relied very much on s.27 of the MCA. In the present appeal, s.27 has no application as common assault is not an offence triable either way. It is a summary offence to which s.40 of the Criminal Justice Act 1988 applies; common assault may be included on the indictment, but it remains under s.39 of that Act a summary offence. There is no equivalent to s.27 of the MCA which equates the dismissal of a summary only offence to an acquittal on indictment. 58. In the result, we do not consider ourselves bound by R v G, or if we were, it is distinguishable. We must decide the case on the well established principles we have set out, particularly the ratio of decision in Connelly. Conclusion 59. For the reasons we have given, the appeal must be allowed and JFJ tried as soon as possible in the Crown Court on the charge of assault occasioning actual bodily harm.	{"ConvCourtName":["Magistrates' Court"],"ConvictPleaDate":["2012-02-21","2012-03-27"],"ConvictOffence":["Common assault"],"AcquitOffence":["Common assault"],"ConfessPleadGuilty":["No"],"PleaPoint":["at first court appearance","at hearing for s.47 charge"],"RemandDecision":["No"],"RemandCustodyTime":null,"SentCourtName":["Crown Court"],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical evidence"],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Stay of indictment / plea in bar (autrefois acquit)"],"AppealGround":["Plea of autrefois acquit does not arise as offences are not the same in law and facts; defendant was not in peril; R v G wrongly decided"],"SentGuideWhich":["s.47 of the Offences Against the Person Act 1861"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. [2023] EWCA Crim 541 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202202152/A3 Royal Courts of Justice Strand London WC2A 2LL Wednesday 3 May 2023 Before: LADY JUSTICE CARR DBE MRS JUSTICE McGOWAN DBE THE RECORDER OF SOUTHWARK HER HONOUR JUDGE KARU (Sitting as a Judge of the CACD) REX V SYD GOSS __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR M TURNER KC appeared on behalf of the Applicant _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. On 18 May 2022 the applicant, then 22 years old, was convicted following trial before His Honour Judge Leonard KC and a jury of the murder of Lee Baxter ("Mr Baxter"). He was sentenced on 10 June 2022 to imprisonment for life with a minimum term under section 322 of the Sentencing Act 2020 of 29 years less 595 days spent on remand. 2. Two of his co-accused were also convicted of the murder. Jermaine Forrester, then 25 years old, was sentenced to imprisonment for life with a minimum term of 29 years, less time spent on remand. Ryan Graham, then 27 years old, was sentenced to imprisonment for life with a minimum term of 27 years, less time spent on remand. 3. This is his renewed application for leave to appeal sentence, for which purpose he has had the benefit of pro bono representation by Mr Turner KC. The central basis of challenge is disparity. It is said that the judge erred in assessing the culpability of the applicant as equivalent to that of Forrester and greater than that of Graham, reaching a sentence that was manifestly excessive as a result. The facts 4. In summary, the facts are as follows. On the evening of 9 October 2020, Mr Baxter, then 34 years old, and his brother drove to Pavilion Terrace in Ilford with the intention of purchasing a large quantity of cannabis. He had £5,000 in cash with him. The applicant, together with Forrester and Graham, were already at the scene, having been driven there by a woman named Demi Anderson. She stayed in her vehicle. 5. There was discussion amongst the group. Mr Baxter showed the men the cash. The cannabis, however, did not materialise. Mr Baxter and his brother began to leave, making their way down an alleyway, but followed by the applicant, Forrester and Graham. 6. Very quickly upon entering the alleyway, Forrester attacked Mr Baxter, placing him in a headlock. Graham joined in, helping to force Mr Baxter to the ground where Mr Baxter was then stabbed. The applicant produced a knife and chased Mr Baxter's brother, swinging the knife and only narrowly missing him. Mr Baxter's brother ran back to his car from where he witnessed the continuing attack on Mr Baxter. The applicant then joined in that attack which only stopped when Mr Baxter's brother returned towards them. The applicant, Forrester and Graham then fled. 7. Mr Baxter had been stabbed multiple times. There were 11 distinct incised wounds, two considered to be defensive, and nine stab wounds. The fatal wound passed through Mr Baxter's thigh through muscle causing damage to the femoral artery and vein. The total depth of this injury was 10 centimetres. It caused massive blood loss and, despite medical assistance, Mr Baxter tragically died at the scene. 8. Following the attack, Anderson drove the applicant, Forrester and Graham back to their respective addresses. The men then made efforts to cover up their involvement. One of the knives used was cleaned with bleach, communications on mobile telephones were deleted, and bloodstained clothes were disposed of or washed. The sentence 9. The judge concluded on the facts, amongst other things: (1) that all three went out ready to use knives against Baxter; (2) that the applicant used his knife to chase Mr Baxter's brother away, leaving Mr Baxter defenceless; (3) that Forrester was the first to stab Mr Baxter and was the principal stabber; (4) that the applicant had a knife with him but it could not be said with surety that he had stabbed Mr Baxter; (5) that it could not be said with surety that Graham was armed with a knife; (6) that the applicant was in general terms the ringleader due to his intelligence; (7) if the events had begun as a genuine agreement to sell cannabis, there came a time on the scene when the plan changed to one of robbery. The timing however made very little difference to the sentence; (8) that really serious harm, not death, was intended. Grounds of appeal 10. At the outset Mr Turner submits that the judge gave insufficient weight to two specific factors: first, the applicant's youth - he was only 22 at the time; and secondly, that the applicant did not stab Mr Baxter. 11. Separately and in any event, it is suggested that the minimum term of 29 years for the applicant was manifestly excessive when compared to the sentences on Forrester and Graham. In particular, Forrester was the principal and potentially only stabber who initiated the attack, and the applicant was to be treated as not having stabbed Mr Baxter at all. Secondly, the applicant was the youngest of the three men and not heavily convicted, especially when compared with Forrester who had previous convictions including for robbery and possession of a bladed article. Thirdly, if a common plan to rob Mr Baxter did arise, it did so on the spur of the moment. Fourthly, there was no safe basis on which to conclude that the applicant was aware in advance that Forrester would stab Mr Baxter. 12. Thus, it is suggested that the roles and culpability of the applicant and Forrester were not equivalent, and that Graham's culpability was no less than that of the applicant. Discussion 13. The judge sentenced the applicant without a pre-sentence report. We agree that one was not necessary and there has been no suggestion to the contrary. 14. It is usually difficult to establish that a sentence is manifestly excessive by reference to disparity alone. Disparity is rarely a successful ground of appeal: see R v Wilson [2017] EWCA Crim 1860, [2018] 1 Cr.App.R (S) 25 and R v Anderson and Black [2018] EWCA Crim 482. One sentencing error is not cured by making another. The sole statutory test on appeal is whether a sentence was wrong in principle or manifestly excessive. 15. It is rightly accepted that the judge correctly identified a minimum term of 30 years as the relevant starting point on the basis that this was a murder done for gain for the purpose of paragraph 3(2) of schedule 21 of the Sentencing Act 2020. He elevated it to take account of relevant aggravating factors, including the fact that this was a group attack, the background of drug dealing, and the efforts to dispose of clothing and knives. He then reduced it to accommodate the relevant mitigation, including the fact that the applicant had a young child and had ADHD. 16. He considered the applicant's age, in our judgment, with conspicuous care. He correctly focused on maturity and not age itself. Having heard the applicant give evidence and taking into account the applicant's background, he was entitled to conclude as he did, namely that the applicant was not "immature in any respect". The applicant was running a substantial drugs business and clearly capable of influencing what Forrester and Graham did. 17. There is in our judgment no arguable basis on which to impugn the resulting minimum term of 29 years as such. 18. Arguments by reference to disparity in such circumstances would not assist, for the reasons that we have already identified. In any event, the judge was well-placed after trial to assess the respective roles and culpability of those involved. This assessment was something to which he gave careful thought, as is clear from the face of his sentencing remarks. An exercise of detailed comparison between the various roles and circumstances of the three men proves unrewarding. 19. There were many matters of commonality. This was a joint enterprise, all three were ready to use knives against Mr Baxter from the moment they set out that evening. There was at some stage before going to the alleyway a joint decision to rob Mr Baxter of £5,000. Each offender had a young child. There were also differences, sometimes nuanced, between the respective positions of the applicant and his co-defendants. By way of example only, although the applicant was the youngest of the three men, the judge found that he was the ringleader within the group, an intelligent and high-functioning individual. This was a central and primary consideration in sentencing terms for the applicant. Graham, who had many positive good character references, was assessed as having special educational needs at school and had no previous convictions. He was also a follower and not a leader. Forrester had dyslexia which had held him back educationally and had a troubled family background. 20. In short, there is no real prospect of appellate interference with the judge's overall evaluative assessments of the individual roles and culpability of those involved, or the resulting sentence on the applicant that he imposed. Conclusion 21. For these reasons, we refuse this renewed application. We conclude, nevertheless, by repeating our thanks to Mr Turner for his assistance. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court"],"ConvictPleaDate":["2022-05-18"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[595],"SentCourtName":["Crown Court"],"Sentence":["Imprisonment for life with a minimum term of 29 years less 595 days spent on remand"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[22],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[34],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["group attack","background of drug dealing","efforts to dispose of clothing and knives"],"MitFactSent":["applicant had a young child","applicant had ADHD"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Disparity; judge erred in assessing culpability as equivalent to co-defendant Forrester and greater than Graham; insufficient weight to applicant's youth and that applicant did not stab victim"],"SentGuideWhich":["section 322 of the Sentencing Act 2020","paragraph 3(2) of schedule 21 of the Sentencing Act 2020"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["No arguable basis to impugn the minimum term; judge gave careful consideration to roles, culpability, and mitigation; disparity alone not sufficient ground"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No real prospect of appellate interference with the judge's evaluative assessments; judge was well-placed to assess roles and culpability; sentence not manifestly excessive"]}
Case No: 200805400 A6 Neutral Citation Number: [2009] EWCA Crim 319 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 27 January 2009 B e f o r e : LORD JUSTICE LATHAM VICE PRESIDENT OF CACD MR JUSTICE KEITH SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v F - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr H Southey appeared on behalf of the Appellant Mr S Kemp appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: On 26 August 2005, in the Crown Court at Liverpool, this appellant was convicted of two counts of rape of a child under 13, three counts of causing or inciting a child under 13 to engage in sexual activity, and one count of sexual assault on a child under 13. He was acquitted of two other counts of rape in that same indictment. On 17 October 2005, he was sentenced to 30 months' detention under section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000 on each count concurrent. 2. Having been convicted of those offences, the consequence of the sentence of 30 months' detention was that he was required to comply with the provisions of Part II of the Act, that is the notification provisions of the Act, for an indefinite period. On 16 January 2006, he was granted leave to appeal against that sentence by the Single Judge, but on 2 February 2006 that appeal was dismissed. 3. The matter returns to this court under a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 . The basis of the reference is essentially that the court did not take into consideration either at first instance, or on appeal, the consequences of a sentence of 30 months' imprisonment. Bearing in mind, in particular, the provisions of Article 8 of the European Convention on Human Rights, the consequences could be said to have been disproportionate in the context of the conviction of this appellant, considering, which is the critical feature, that this appellant was, at the time of the commission of the offences, 11 years old. He was 13 at the time of his sentence. 4. The Divisional Court considered an application for judicial review in relation to this case at the same time as this appeal first came before this court at the end of last year; and in a reserved judgment it held that the provisions of Part II of the Sexual Offences Act 2003 , in particular in so far as they related to sentences imposed on young persons, were not in conformity with the requirements of Article 8. The particular ground upon which this court considered that the provisions were not in conformity with the Convention were that neither in relation to adults, nor in particular in relation to children, was there any opportunity for those who had been sentenced to a sentence of 30 months, or more, to establish that the notification requirements were no longer a proportionate response to any danger that they may have presented, and accordingly were in breach of the requirements of Article 8. 5. The appellant today through his counsel, Mr Southey, submits that the reference is well made. He submits that despite the fact that this court, on 2 February 2006, held that a sentence of 30 months' detention was neither wrong in principle nor manifestly excessive, neither that court, nor indeed, as we have indicated, the sentencing judge had had drawn to its attention the consequences of that particular sentence in terms of the notification requirements. 6. It is submitted that had the courts in fact been made aware of those notification requirements they would have appreciated that the cutoff point of 30 months produced a disproportionate consequence, which would have resulted, it is submitted, in a lesser sentence. The lesser sentence, pursuant to Part II of the Act, would have been one whereby he would have been subject to a requirement to notify the police, that is the notification requirement, for a period of five years, as opposed to indefinitely. 7. Mr Southey does not shrink from arguing that we are, in a sense, consequent upon the decision of the Divisional Court, in a position where in order for this court to comply with its obligations under Article 8, required to take into account the notification provisions. In doing so, we must be driven, he submits, to the conclusion that it is inappropriate for the sentence to remain as it is. 8. In order to evaluate those arguments it is necessary to say something about the facts and, secondly, something about the position of the appellant both at the time of the original sentence and appeal, and now. The facts were that the appellant and the complainant were members of families who lived next door to each other. The complainant would go to the appellant's house and play with the appellant. The appellant was, at the time, for his age, quite a large young boy. The complainant was six years of age. One day when he came home the complainant told his mother that the appellant had wanted him to play a wrestling game. When asked what he meant the complainant said, "He wanted me to suck his willy". During further questioning from his mother he said that the appellant had asked him to play games such as "Lick the hairs" and "Willy up the bum". 9. The complainant's mother told the appellant's mother. The appellant was asked about it by his mother and denied it. His mother, nonetheless, thought the matter needed to be reported. That was much to her credit, although it must have caused her great distress. 10. The police therefore became involved. The complainant was interviewed. He said that the appellant had placed his penis in his (the complainant's) mouth on one occasion and in his anus on another occasion and the appellant had forced the complainant to do the same to him. The complainant described masturbating the appellant and said that the appellant had sucked his penis. The appellant was arrested. 11. When interviewed he denied committing the offences. He said that all he and the complainant had done was to play computer games together. He persisted in his denial to trial; but he was ultimately, as we have indicated, convicted. 12. It can be seen from the description of the offending that despite the appellant's age these were serious and significant sexual offences. They were offences which at the time that the judge originally dealt with the matter the appellant was still denying. In those circumstances it is not surprising that he concluded that the appropriate sentence was one of 30 months' detention. That was the conclusion of the Court of Appeal. 13. It should be said, however, that in the period of his detention the appellant had come eventually to admit what he had done, which was a significant step forward in terms of assessing the level of risk that he posed. It was clear, so long as he denied the offences, that the risk for the future was likely to be high. Nonetheless, the risk was such at the time of appeal that clearly the sentence of 30 months' detention remained appropriate. 14. There has, since the appeal, been a further evaluation of the risk that this young man now presents. He is, of course, now out of detention. He is at home and has had the opportunity to undergo some courses. The latest assessment that we have, which is, we believe, some six months old now, shows that he is considered to present a low to medium risk for the future. That, of course, remains a risk which is significantly higher than the risk which would be presented by any ordinary adolescent of this appellant's age. 15. We have to consider in those circumstances the extent to which we can accede to Mr Southey's submissions. The consequence of the decision of this court in Attorney General's Reference No. 50 of 1997 [1998] 2 Cr App R (S) 155 is that as a matter of principle the courts should not reduce a sentence to limit the extent of an offender's obligation to register under the Sex Offenders Act 1997 . That decision has been underlined in further decisions of this court. This principle was applied in the case of R v H [2007] EWCA Crim 2622 . The basis upon which that principle stands is that the court is the determining body as to the appropriate sentence; parliament has decreed what the consequence of that sentence should be in terms of the notification requirements, which do not form part of the penalty in the strict sense. 16. However, the Divisional Court in the application by this appellant made it plain that it concluded that Article 8 was engaged by the notification requirements. The consequence of the cutoff period of 30 months, particularly in relation to children, produced notification requirements which were disproportionate in all the circumstances. Repeating what we have said earlier, the consequence is that if the sentence is less than 30 months' detention the notification period is only five years, whereas if it is 30 months, or more, it is indefinite. One simply has to state that to show the extraordinary difference in consequence, which the Divisional Court concluded was unjustified in Article 8 terms. 17. What the Divisional Court's decision did not say was, however, that in circumstances such as this a period of five years was the appropriate consequence. That was not the function of the Divisional Court. The decision of the Divisional Court was based on the premise that, in particular, in relation to juveniles, there should be an opportunity for the offender in question to be able to establish that he, or she, no longer presented the sort of risk which justified a notification requirements remaining in place. 18. It follows that the argument of Mr Southey that we should reduce the sentence in order to produce compliance with Article 8 is not one which is compelled by logic. In our judgment we are required to conclude that the sentence, as this court has already said, is one which is a sentence that cannot be categorised as wrong in principle or manifestly excessive. 19. What we can do, however, is to underline the consequence of the Divisional Court's decision in this case, which is that the consequence of an indefinite notification period is one that is disproportionate in so far as it precludes an opportunity for review. For a person, who is a child of 11, who commits an offence, or offences, such as these to be required to be subject to the notification provisions for the rest of his or her life produces, albeit not strictly a penalty, a consequence which is disproportionately harsh. It was for that reason that the Divisional Court came to its conclusion. 20. We dismiss the appeal. 21. MR SOUTHEY: I just raise one matter with the court. I am conscious of the fact that obviously this is the Divisional Court of judgment on appeal. It is not impossible, depending on the outcome and importance of the issues raised, that it will go further. 22. LORD JUSTICE LATHAM: It might even go to the House of Lords. 23. MR SOUTHEY: What I have been contemplating is whether it would be appropriate, in those circumstances, for this court to certify a question not least because if that were to be done -- I am not necessarily suggesting that an appeal would be likely or would even necessarily be appropriate. If the Divisional Court's judgment does not go forward, but at the same time were the Divisional Court's judgment to go to the House of Lords, which is a possibility, it seems to me there would be some merit in both sides of the coin potentially being before the House of Lords. The House of Lords has jurisdiction in those circumstances, I am wondering whether it will be appropriate to certify a question. 24. LORD JUSTICE LATHAM: What question would you want to certify? You cannot say, "something like". We need to look at what the question is. 25. MR SOUTHEY: I recognise that. One of the difficulties I find myself in, in these circumstances, is on one's feet, having listened to the judgment, it is not the best time to draft question. What I would ask for is to have the court's leave to submit a draft within 14 days, bearing in mind the comments I have just made. The sort of thing I am thinking about would be something along the lines, "Is it open to a sentencing court to take account of the registration period when imposing a sentence in order to comply with Article 8 of the European Convention?" Something along those lines. 26. LORD JUSTICE LATHAM: Mr Kemp, do you have anything to say? 27. MR KEMP: Not at this stage, my Lord, no. 28. LORD JUSTICE LATHAM: Mr Southey, we will give you the opportunity to put before us a question which we can then consider. We will be grateful if you can please provide it within 14 days. Thank you very much indeed.	{"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2005-08-26"],"ConvictOffence":["rape of a child under 13","causing or inciting a child under 13 to engage in sexual activity","sexual assault on a child under 13"],"AcquitOffence":["rape"],"ConfessPleadGuilty":["No"],"PleaPoint":["at trial"],"RemandDecision":["No"],"RemandCustodyTime":null,"SentCourtName":["Crown Court at Liverpool"],"Sentence":["30 months' detention under section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000 on each count concurrent"],"SentServe":["Concurrent"],"WhatAncillary":["notification requirements under Part II of the Sexual Offences Act 2003"],"OffSex":["All Male"],"OffAgeOffence":[11],"OffJobOffence":["Child"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Male"],"VicAgeOffence":[6],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Low risk of reoffending","Medium risk of reoffending"],"AggFactSent":["serious and significant sexual offences"],"MitFactSent":["offender was 11 years old at time of offence","offender eventually admitted offences"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["sentence did not take into account disproportionate consequences of notification requirements under Article 8 ECHR"],"SentGuideWhich":["section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000","Part II of the Sexual Offences Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["court did not take into account the consequences of notification requirements for a child offender under Article 8 ECHR"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence was not wrong in principle or manifestly excessive; notification requirements are a consequence of statute, not part of the penalty"]}
Neutral Citation Number: [2020] EWCA Crim 407 Case No: 201904423 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2020 Before: Lord Justice Simon Mr Justice Fraser and Mr Justice Hilliard - - - - - - - - - - - - - - - - - - - - - Between: Regina Appellant and A Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Wayne Cleaver for the prosecution Mr Richard Dawson for the defence - - - - - - - - - - - - - - - - - - - - - Approved Judgment The provisions of s.71 of the Criminal Justice Act 2003 apply to these proceedings. [See para.2.3 at p.8 of the Practical Guide to Reporting Restrictions in CACD]. By virtue of those provisions, no publication may include a report of these proceedings, save for specified basic facts, until the conclusion of the trial unless the Court orders that the provisions are not to apply. In the present case, an issue of law is involved, and it is appropriate to lift the restrictions, in part, so that the decision may be reported, albeit anonymously. Lord Justice Simon: Introduction 1. This is an application by the prosecution for leave to appeal against a terminating ruling in the Crown Court, under s.58 of the Criminal Justice Act 2003. 2. The respondent faced two charges: count 1, causing death by dangerous driving and count 2, causing serious injury by dangerous driving. 3. She was jointly charged with a man (L) who pleaded guilty to these charges as well as a further count of causing serious injury by dangerous driving (count 3). 4. The circumstances giving rise to these charges arose from a collision on the M1 in November 2017. 5. The prosecution case was that in the early hours of the morning a truck driven by L struck the rear of a car driven by the respondent, at a time when the car was stationary on the hard shoulder, some 500 m from an exit slip road. 6. The respondent and her 3 friends (M, C and K) had been out clubbing. The respondent was the designated driver, and at the end of the evening her intention was to drive her friends back home. They set off at approximately 3.30 am and headed north up the motorway. In the course of this journey the respondent and M began to quarrel. The passengers were drunk and were beginning to annoy the respondent; and she became so irritated by them that she pulled over onto the hard shoulder of the motorway. She remained there for a few minutes before continuing on the journey, before again pulling onto the hard shoulder and remaining there for about 15 minutes. It appears that K got out of the car and would not return. The respondent remained in the driver’s seat. No hazard or other lights were displayed on the car. 7. At some point, another driver proceeding in the same direction (AC) had to take evasive action to avoid a collision with the open door of the respondent’s car. He swerved into the middle lane and sounded his horn to indicate the danger being caused. It appears that the door was then closed. 8. Another prosecution witness (S) described L’s truck passing him in the outside lane at about 70 mph, before suddenly swerving across the other lanes and into the hard shoulder. The truck struck the respondent’s car. C died as a result of the collision, and both M and the respondent suffered serious injury. 9. The prosecution was unable to say what had caused the truck to veer to the nearside, but it was believed that L had fallen asleep. 10. L and the respondent were jointly charged with causing death by dangerous driving (count 1) and causing serious injury to M by dangerous driving (count 2). L, alone, was charged with causing serious injury to A by dangerous driving (count 3) 11. The prosecution case was that both L and the respondent were responsible for the collision. Although the respondent’s car was not moving at the time, (1) as a matter of law the respondent was ‘driving’, (2) that driving was dangerous, and (3) it was a contributory factor in the collision. 12. In September 2019, an application was made on the respondent’s behalf to dismiss both charges against her under Schedule 3 paragraph 2(2) of the Crime and Disorder Act 1998 and Galbraith (1981) 73 Cr App R 124 . The Judge hearing the application ruled on the papers that there was sufficient evidence to prove each ingredient of the offence and therefore a case to answer. 13. At the close of the prosecution case at the trial which followed, a further submission of no case to answer was made before the trial Judge, who was not the judge who had heard the earlier application. The ruling 14. In his careful and considered ruling, the trial Judge dealt with the two key factors in issue: dangerousness and causation. 15. In relation to dangerousness, he rejected the respondent’s submission of no case in the following terms: … there is evidence upon which a properly directed jury could conclude that this was not an emergency or was one within the power of [the respondent] to control to an extent that would have allowed her to move on. The question of dangerousness is one for a jury. 16. Doubtless consideration of the relevant provisions of the Highway Code would inform an answer to this question. 17. However, the Judge accepted the respondent’s submission in relation to causation. 18. He referred to the case of Girdler [2009] EWCA Crim 2666 , to which we will return later in this judgment, and said this: There is evidence that [the respondent] had at one point her door open into lane 1 of the carriageway and was sitting with her legs out of the car, causing those in lane 1 to swerve or take evasive action. If the collision had in any way been connected to such action, then there would be a basis for the jury to reach an adverse finding. However, that is not the case. 19. Later, he added: In my judgment the prosecution evidence at its highest cannot provide a sound basis upon which a jury properly directed could conclude that it was reasonably foreseeable that a third party - at 4.30am on a Saturday morning when the traffic was very light - would be so distracted by tiredness or some other prevailing condition that he would suddenly at high speed career across all three lanes of the motorway and into the hard shoulder, coming to his senses too late to avoid colliding with [the respondent’s] stationary car … I am satisfied that in the very case-specific circumstances of these allegations, L’s dangerous driving can only constitute a free, deliberate and informed act, that is a new and intervening act that broke the chain of causation created by the presence of [the respondent’s] car on the hard shoulder, whether or not her presence there would be found by the jury to constitute dangerous driving. It is not open, in my judgment, for a jury properly directed to conclude that [R] caused (as in caused in law) the collision that led to the untimely death of [C] and the serious injury to [M]’ The grounds of appeal and response 20. For the prosecution, Mr Cleaver submitted (without risk of contradiction) that issues of fact were for the jury. In order to prove causation of death by the dangerous driving, the prosecution needed only to establish that the respondent’s driving was a cause, it need not be the cause, nor even the principal or a substantial cause of the collision. The respondent had created dangerous conditions by stopping where she did, and those conditions became increasingly dangerous the longer the car remained there. The longer this period, the more reasonably foreseeable it became that a collision would occur. The test of reasonable foreseeability was an objective one to be determined by the jury. Among the relevant factors was the action by C in sounding his car horn and taking evasive action to avoid a collision when the car door was open. 21. The Judge’s approach to the issue of what he described as ‘legal and imputable causation’ was too confined. A defendant does not have to reasonably foresee that a collision would occur in the precise circumstances in which it in fact occurred. It would be open to a jury to find that it was reasonably foreseeable that by stopping her car on the hard shoulder a collision might occur with a vehicle travelling in the same direction. 22. In resisting the prosecution’s appeal, Mr Dawson submitted that the Judge was correct to rule that there was no case to answer for the reasons he gave. It had always been accepted that the respondent’s driving needed only be more than a minimal contribution to the death and injury. The prosecution evidence, taken at its highest, could not provide a sound basis upon which a properly directed jury could conclude that it was reasonably foreseeable that a third party, at 4.30 am on a Saturday morning, when the traffic was very light, would suddenly cross from the outside carriageway onto the hard shoulder, and collide with the respondent’s stationary car. L’s dangerous driving had broken the chain of causation. His driving had effectively superseded the respondent’s driving as the cause of the death and serious injuries. The Judge had correctly interpreted the case of Girdler and the specimen direction formulated by the court in that case. Consideration of the arguments 23. Although the appeal is put in a number of ways they can be conveniently be stated in the form of two questions: first, whether the Judge’s interpretation of Girdler resulted in an approach to the issue of causation that was too confined; and if so, whether there was a case for the Jury to consider on the facts? 24. In Girdler , the court was concerned with a collision on a major road in different circumstances. The appellant had driven into the back of a taxi. The collision propelled the taxi into the fast lane leaving it broadside to the oncoming traffic. A car in the fast lane collided with the taxi, killing the driver of the car and the taxi. In that case the Court considered how a jury should be directed when, in a prosecution for causing death by dangerous driving, a defendant submits that he did not cause the death, but that the driver of another car did so. The context was the hearing of an appeal against conviction based on a misdirection by the trial judge. After a full review of authorities on what the court described as a ‘new and intervening act or event’, the Court said this at [43]: … We suggest that a jury could be told, in circumstances like the present where the immediate cause of death is a second collision, that if they were sure that the defendant drove dangerously and were sure that his dangerous driving was more than a slight or trifling link to the death(s) then: the defendant will have caused the death(s) only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur. The judge should identify the relevant circumstances and remind the jury of the prosecution and defence cases. If it is thought necessary, it could be made clear to the jury that they are not concerned with what the defendant foresaw. 25. The issue on this appeal is how to apply the words ‘in the circumstances’ in the phrase, ‘it could sensibly have been anticipated that a fatal collision might occur in the circumstances’ in which the collision occurred. 26. The respondent’s argument is that the Court must look at the particular circumstances or specific chain of circumstance in which the collision occurred. On this basis, in the the present case, the jury would have to be sure that it could be sensibly anticipated that another driver would, in the Judge’s words, ‘be so distracted by tiredness or some other prevailing condition that he would suddenly, and at high speed, career across all three lanes of the motorway and onto the hard shoulder.’ 27. In our judgment the law does not require that the particular circumstances in which a collision occurs should be foreseeable. 28. In R. v Maybin [2012] 2 SCR 30 the Canadian Supreme Court considered a case concerning two violent attacks on a victim. The defendant and his brother initially punched the victim in a bar room brawl rendering him unconscious. Soon after this, the bar’s bouncer punched him on the head. The victim later died of a brain haemorrhage. The medical evidence was inconclusive as to which blows had caused the death. The trial judge acquitted the brothers and the bouncer of manslaughter. The Court of Appeal of British Columbia allowed a prosecution appeal in respect of the brothers and ordered a new trial. The case was then taken on appeal to the Supreme Court, which dismissed the brothers’ appeal. 29. The judgment of the Court (LeBel, Fish, Abella, Rothstein, Moldaver and Karakatsanis JJ) was given by Karakatsanis J. Her judgment, which was closely reasoned by reference to principle, authority and academic opinion reached this view on causation: 34. In my view, the chain of causation should not be broken only because the specific subsequent attack by the bouncer was not reasonably foreseeable. Because the time to assess reasonable foreseeability is at the time of the initial assault, rather than at the time of the intervening act, it is too restrictive to require that the precise details of the event be objectively foreseeable . In some cases, while the general nature of the ensuing acts and the risk of further harm may be reasonably likely, the specific manner in which it could occur may be entirely unpredictable. From the perspective of moral responsibility, it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts. ... 38. For these reasons, I conclude that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct … (emphasis added throughout). 30. The judgment concludes: 60. Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility for manslaughter. These approaches grapple with the issue of the moral connection between the accused’s acts and the death; they acknowledge that an intervening act that is reasonably foreseeable to the accused may not break the chain of causation, and that an independent and intentional act by a third party may in some cases make it unfair to hold the accused responsible. In my view, these approaches may be useful tools depending on the factual context. However, the analysis must focus on first principles and recognise that these tools do not alter the standard of causation or substitute new tests. The dangerous and unlawful acts of the accused must be a significant contributing cause of the victim’s death. 31. Although the expressions ‘moral responsibility’ and ‘moral connection’ find little echo in the domestic approach to issues of causation, an argument that allows a defendant to avoid criminal responsibility on the basis of arguments about the particularity of circumstances would not appear to be consonant with the approach that is taken in this jurisdiction. 32. In Wallace (Berlinah) [2018] EWCA Crim 690 , this court was concerned with an argument about an intervening act in very different circumstances. However, the court referred to this statement at [84]; and, although it did not specifically endorse it, the approach was at least consistent with the direction that was proposed by the Court at [86] paragraph 3(b) . “(b) Are you sure that at the time of the acid attack it was reasonably foreseeable that the defendant would commit suicide as a result of his injuries? In answering this question consider all the circumstances, including the nature of the attack, what the defendant did and said at the time and whether or not [the victim’s] decision to undergo voluntary euthanasia fell within the range of responses which might have been expected from a victim in his situation. If your answer is yes, your verdict on count 1 will be guilty. If your answer is no, your verdict on count 1 will be not guilty. 33. Our view that the particular circumstances of a collision would not have had to be foreseen is supported by the editorial comment in Blackstone’s Criminal Practice 2020 at §A1.32: … even an accidental or unintended intervention may break the chain of causation if it was not reasonably foreseeable in the circumstances ( Girdler [2009] EWCA Crim 2666 ). This does not mean that the exact form of any such intervention must have been foreseeable at the time of the original assault etc. in order for the chain of causation to remain unbroken. If the general form and risk of further harm was reasonably foreseeable, it may not then matter if the specific manner in which it occurred was entirely unpredictable ( Wallace [2018] EWCA Crim 690 , [2018] 2 Cr App R 22 (325) at [84], citing Maybin 2012 SCC 24 (SC Canada)) (emphasis added). 34. Perhaps unsurprisingly, the views of the editors of Smith, Hogan & Ormerod 18th Ed, at p.71 are to similar effect. 35. What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the respondent’s parked car. It would not be necessary for the jury to be sure that the particular circumstances of the collision or ‘the exact form’ of the subsequent act was reasonably foreseeable. 36. It follows that, in our view, the Judge adopted too confined an interpretation of the Girdler formulation, and as a consequence he erred in his conclusion that there was no case to answer. 37. If a driver leaves a car, on the hard shoulder of a motorway for 15 minutes at 4.30 am on a November morning, without displaying any lights , a jury could properly conclude that some form of collision could occur, and that, if it were occupied, death or serious injury could be caused. 38. Accordingly, in the words of s.67 of the Criminal Justice Act 2003, the Judge’s ruling was either wrong in law or involved an error of principle. 39. In these circumstances, and as provided by s.61(4)(b) of the Act, we will order a fresh trial of the respondent on count 1.	{"ConvCourtName":["Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":[""],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["three (C, M, respondent herself)"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Witness testimony"],"DefEvidTypeTrial":[""],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[1],"AppealAgainst":["Terminating ruling (no case to answer)"],"AppealGround":["Judge misapplied law on causation; too confined interpretation of Girdler; should have left causation to jury"],"SentGuideWhich":["Girdler [2009] EWCA Crim 2666"],"AppealOutcome":["Allowed; fresh trial ordered"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Neutral Citation Number: [2019] EWCA Crim 1090 No: 201900380/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 20 June 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE SIMLER DBE MR JUSTICE BUTCHER R E G I N A v TOMMIE RAY SWEENEY Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr M Lewis appeared on behalf of the Appellant Mr S Heptonstall appeared on behalf of the Crown J U D G M E N T (Approved) MR JUSTICE BUTCHER: 1. On 2 January 2019 in the Crown Court at St. Albans the appellant, Tommie Ray Sweeney pleaded guilty on re-arraignment to four offences: three counts of robbery and one of attempted robbery. On 23 January 2019 he was sentenced by His Honour Judge Warner for the three counts of robbery to five years four months' detention in a young offender institution, those sentences to run concurrently, and for the count of attempted robbery to three years' detention in a young offender institution, that sentence to run concurrently with the sentences for the robberies. He now appeals to this court against sentence by leave of the single judge. 2. The facts may be summarised briefly as follows. In the early hours of 28 February 2017, the appellant with others robbed three young men, each aged 17 years, and attempted to rob a fourth. Those offences occurred in Cassiobury Park, Watford after a music event which was targeted at young people aged between about 16 and 19. In relation to the first robbery victim, he described being robbed by a group of men who had covered their faces with either balaclavas, hoods or scarves. His bag was searched before one of the men demanded his mobile telephone which he handed over. He was asked to provide his mobile telephone PIN number. Another male held a knife to his lower back. He was told to delete his iCloud details to prevent the mobile being traced and in fear he gave an incorrect passcode and was struck to the side of the face before being sprayed in the face with CS gas. The group pulled at his bag and demanded his belt. He ran away to a train station and one of his friends flagged down a passing police car to report the offence. In addition to the mobile telephone and belt, £25, his driving licence, phone charger, Oyster travelcard, cash card and sunglasses were stolen. The incident lasted somewhere between 10 and 30 minutes. The victim sustained a piercing to his lower back where the knife was held and burning to his face. He suffered ongoing psychological difficulties as a result, to which we will return. 3. The second victim was also approached by the group. They demanded his mobile telephone and wallet. At least one of the group was holding a knife. One of the group sprayed him in the face. He was pushed to the floor. While he was still on the ground members of the group rifled through his pockets taking his wallet and mobile telephone. He was kicked in the head before the group walked away. 4. The third victim was approached by five males, all in possession of knives. He complied with their demands for his mobile telephone. He was pushed and his bag snatched. Items including £5, his bank card and a provisional driving licence were taken from the bag, which was discarded before the group ran away. 5. The victim of the attempted robbery was followed by the group and grabbed from behind. One of the group held a canister towards him and said: "Do you want me to spray you?" Another was visibly in possession of a knife. The victim punched one of them and ran away to call the police. 6. Officers recovered two balaclavas and a canister of CS spray from a children's nursery situated next to Cassiobury Park. One of the balaclavas was found to have the appellant's DNA on it. When he was arrested his mobile telephone contained photographs of him at the relevant location at the relevant time wearing a face covering. 7. Certain victim personal statements were before the Crown Court. Of most significance was that of the first victim we have mentioned. He described how the incident had left long-term psychological effects on him, especially from the anxiety caused by being sprayed with CS gas and the recurring thought of "what if it had been acid?" His anxiety had led him to have suicidal thoughts for a while and had led to his developing involuntary tics. All of this had had effects on his family and friends, his mother worrying acutely about him when he was out lest he should become again the victim of such a crime. 8. In sentencing the appellant, the judge said that these were knifepoint robberies committed by a group and that it was a joint enterprise in which the appellant had played a willing and active part. He referred to the fact that the appellant was 17 at the time of the offence and 19 at sentence. He referred to the fact that the appellant had previous convictions for robbery. First, he had a conviction for an offence committed in January 2016. Secondly, he had been sentenced in September 2016 for two offences of robbery committed the previous month. The judge said that the circumstances of at least the latter two offences were similar to those with which the judge was dealing at that point, in that they involved robberies in a park. The judge recorded that a sentence had been imposed in September 2016 of a 24-month youth rehabilitation order and that the instant offences had been committed by the appellant during the currency of that order. The judge observed that the order had not acted as a deterrent. He did not re-sentence the appellant in respect of that order but treated it as an aggravating feature of these offences. The judge recorded that the appellant had pleaded guilty on the day of trial and that he would receive a 10 per cent credit as a result. The judge said that the offences were on the border between Categories 1 and 2 of the sentencing guidelines. He said that the offences alone merited a starting point of eight years' detention and that there were a number of aggravating features which increased the appropriate starting point to 10 years. In mitigation the appellant was a 17 year old at the time and this would be his first experience of custody. The judge said he had read the references provided and heard the appellant’s father's evidence. He said that he took into account the pre-sentence report and made no finding of dangerousness. He then imposed the sentences which we have mentioned, giving credit for the plea of guilty, which we have also mentioned. 9. As the judge said, the appellant was aged 19 at the time of sentence. He had convictions for seven previous offences. Those convictions included the three offences of robbery in 2016, to which we have referred. The appellant had also been convicted of a non-dwelling burglary in 2016, of being carried in a motor vehicle taken without consent in 2016, and of using threatening, abusive words or behaviour likely to cause harassment, alarm or distress, also in 2016. 10. It has been argued before us today that the sentence imposed by the judge was manifestly excessive. Mr Lewis has argued two grounds. He contends most significantly that insufficient account was taken of the fact that the appellant was 17 at the time of the offences. He also contends that insufficient consideration was given to the mitigating factors including the appellant's father's evidence which supported his remorse. Mr Lewis has also called attention to the fact that there was no re-offending during the period on which the appellant was on bail and that there have been no disciplinary reports while the appellant has been serving the sentence which Judge Warner imposed. 11. In relation to those matters, we consider that the appellant is indeed to be commended for the fact that he did not re-offend while on bail and the fact that there have been no disciplinary reports seems to us to show there are grounds for hope for the future for this appellant. Nevertheless, in relation to the sentences which this appeal is brought against, we consider that given the nature and number of the offences, the judge was entitled to impose the sentence which he did and it cannot be said to be manifestly excessive. He was entitled, in our judgment, to take a sentence for the robbery counts before allowing for the appellant's youth and other mitigating factors of 10 years. These were cases clearly involving high culpability and serious psychological harm or something close to it. The sentencing guidelines relate to a single offence. Here there were three robberies as well as the attempted robbery. This was thus a serious course of criminal conduct. There was clearly significant planning in that the gang had equipped themselves for the robberies and targeted an event where young people could be isolated. There was the fact of disguise; there was in addition to the use and the threat of knives the use of CS gas; there was the disposal of evidence. In the case of the appellant, furthermore, there was the very significant aggravating factor that he had previous convictions for offences of this type and that the present offences were committed while he was subject to the youth rehabilitation order imposed for the earlier offending. In our view, those matters justified a sentence of 10 years before considerations of youth, other mitigation and plea. 12. As to the reduction for youth and other mitigation, this was from 10 to six years. The appropriate allowance for age and immaturity is a matter of judgment and degree. The extent to which the age of a young person affects his culpability needs to be seen in the context of the offence of which he has been convicted. Here the appellant had demonstrated a considerable degree of criminal maturity with his record of previous similar offending and the sophistication of the execution of the offences for which he was being sentenced. We can see no basis for faulting the judge's allowance for immaturity and youth. No criticism is made of the credit he gave for the appellant's guilty plea. 13. In the circumstances, we do not consider that the sentence imposed was excessive and still less manifestly excessive. The appeal is accordingly dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at St. Albans"],"ConvictPleaDate":["2019-01-02"],"ConvictOffence":["Robbery","Robbery","Robbery","Attempted robbery"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on re-arraignment","on day of trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at St. Albans"],"Sentence":["5 years 4 months' detention in a young offender institution (three counts of robbery, concurrent)","3 years' detention in a young offender institution (attempted robbery, concurrent)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["three robbery victims, one attempted robbery victim"],"VicSex":["All Male"],"VicAgeOffence":[17,17,17,17],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","DNA match","Photographic evidence"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["offence committed while on youth rehabilitation order","previous convictions for robbery","use and threat of knives","use of CS gas","offence committed by group (joint enterprise)","disguise used (balaclavas, hoods, scarves)","targeted event where young people could be isolated","disposal of evidence"],"MitFactSent":["offender was 17 at time of offence","first experience of custody","references provided","father's evidence","no re-offending while on bail","no disciplinary reports in custody"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence was manifestly excessive","insufficient account taken of age (17 at time of offence)","insufficient consideration of mitigating factors"],"SentGuideWhich":["Sentencing guidelines (Categories 1 and 2 for robbery)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["given the nature and number of the offences, the judge was entitled to impose the sentence which he did and it cannot be said to be manifestly excessive","judge entitled to take a sentence for the robbery counts before allowing for youth and other mitigating factors of 10 years","cases involved high culpability and serious psychological harm","significant planning and aggravating features","allowance for age and immaturity was a matter of judgment and not faulted","no criticism of credit for guilty plea"]}
Neutral Citation Number: [2009] EWCA Crim 380 Case No: 200805151 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 20th February 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE LLOYD JONES MR JUSTICE CRANSTON - - - - - - - - - - - - - - - R E G I N A v JOSEPH BENJAMIN PULLEN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr S Taylor appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: Mr Justice Lloyd Jones will give the judgment. 2. MR JUSTICE LLOYD JONES: On 11th August 2008 at the Crown Court at Kingston upon Thames, the applicant pleaded guilty and on 15th September 2008, he was sentenced by His Honour Judge Samuels QC as follows: Count 1 for destroying property and being reckless as to whether life was endangered, imprisonment for public protection; Count 2 for common assault, four month imprisonment to be concurrent; Count 3 for dangerous driving, 15 months imprisonment to be concurrent. The total sentence was one of imprisonment for public protection. The period of 30 months, less the 105 days spent in custody on remand was specified under section 82 A of the Powers and Criminal Courts Sentencing Act 2000. He was also disqualified from driving for five years with a direction that thereafter he take an extended retest. 3. He now renews his application for leave to appeal against sentence following refusal by the single judge. He has been represented before us today by Mr Taylor of counsel acting pro bono and we are grateful to him for his submissions. 4. On 31st May 2008, the applicant went to see his girlfriend, who lived in New Malden and was employed as a nanny. She had been away with her employer as part of her job. This appeared to have made him jealous and angry and after she opened the door, he pushed his way past her and snatched her mobile phone from her before going back outside. She went after him in order to retrieve her phone, whereupon he slapped her on the cheek, causing pain and reddening. That gave rise to Count 2. 5. He then told her that he was going to her employer's home to cause trouble which would mean she would lose her job. He then drove off in his Land Rover Freelander. She followed him on her bicycle and he tried to hit her with his vehicle before he blocked the road, which caused an argument with another driver. Whilst that was happening, she was able to cycle away. 6. The incident was reported to the police and officers spent the remainder of the day looking for him. That evening he was seen to drive past the woman's home twice. At 11.40 pm, the applicant was again seen to drive past her home and on this occasion, the officers decided to stop him. They illuminated the lights on their car and indicated to him to stop. He pulled over and the police car stopped behind him. The officers alighted and approached the applicant's Freelander. As they did so, they heard him revving the engine and he then reversed at speed towards the police car, causing the officers to dive out of the way to avoid injury. He reversed into the police car, causing it to move back between five and ten metres and the front end to concertina. He then shouted, "Come on, if you want to make something of it" before he drove off. The officers summoned assistance. 7. Two other officers were driving a marked police car and were in the area. They commenced a search and as they drove round the roundabout, the applicant deliberately rammed the passenger side of their vehicle at speed. He did not stop but drove off at speed. As a result, one of the officers sustained minor injuries to his arm. That gave rise to Count 1. 8. The officers were able to give chase, in company with other police vehicles. During the ensuing chase, the applicant drove with complete disregard for the speed limit, traffic lights and other road users and on at least three occasions deliberately reversed his vehicle towards chasing police vehicles. 9. The chase took place along Kingston Road where he drove at 60 m.p.h in a 40 m.p.h per speed limit. In Ruxley Lane he drove through a red light, causing another vehicle to break and swerve to avoid a collision. He then started to reverse towards the chasing police car at speed, causing a police car to swerve out of the way to avoid being hit. He got within about a foot of the vehicle before driving off again towards the Ewell bypass, again driving in excess of the speed limit through red lights and causing other vehicles to stop or swerve out of his path. 10. Shortly after he had gone through a junction, he reversed his vehicle towards the police car causing the police car to have to reverse back through the junction in order to avoid being hit. Officers were fearful of the danger that they would have hit other road users or pedestrians by reversing. 11. He continued along the Ewell bypass, still driving in excess of the speed limit and through red lights, into a residential area around Tattenham Corner, where he reached speeds in excess of 80 m.p.h. At about this time he turned off the lights on his vehicle and turned onto Epsom Downs racecourse. He did so by driving into a car park and then smashing through a fence. By this time he was pursued by about three other police vehicles one of which he managed to ram. Whilst on the racecourse, he drove his vehicle in effectively ever decreasing circles in an attempt to ram the police vehicles that were following him by getting behind them. He still had his lights off at this time and he managed to hit at least one vehicle. 12. The police received an order to stop actively pursuing him but even after they had stopped pursuing him, he still tried to drive at them and ram them, and on one occasion drove deliberately and at speed towards the front of one of the police vehicles, still with his lights off, before switching to full beam as he got closer to the police vehicle, so that the driver of the vehicle was dazzled. The officers in that vehicle again feared that they would be hit, but managed to get out of the way. He then burst over a small embankment back on to the public roads, still driving with his lights off. 13. Eventually, his vehicle was brought to a halt when a stinger was laid across the road. He got out of his vehicle and ran off on foot but he was detained, arrested and taken to the police station. 14. In interview, he flatly denied assaulting his girlfriend and made no comment to all the other questions he was asked about his subsequent driving. However, he did say that he accepted that he had reacted stupidly and behaved like a fool. 15. The applicant was born in February 1965, so he was 43 years of age at the time of this incident. His previous convictions include six previous convictions for criminal damage, five for common assault, four for assault occasioning actual bodily harm, four for assault on the police, three for threatening behaviour, one for inflicting grievous bodily harm and one for an affray. 16. It is necessary to say something about two of those previous convictions. In February 2007 he was convicted of criminal damage and affray. He was sentenced to four years imprisonment for criminal damage with two years imprisonment concurrent for the affray. On appeal the sentence for criminal damage was varied by this Court to one of 45 months imprisonment to take account of a sentence for contempt of court which meant that he had, in effect, been sentenced twice for the same conduct. 17. These offences are particularly pertinent to the issues before us today. Immediately prior to those offences, Mr Pullen had lived with the victim. She had reported allegations of assault and threats to kill to the police. The applicant was arrested at the home that they shared as a result of these allegations. He was bailed on the condition that he stayed away from that address. One evening a month later, the complainant went out for the evening leaving her stepmother and one of her own children babysitting the younger children. At 10.45 pm, the stepmother heard a crash at the front of the house. Mr Pullen was found in the front room having gained entry through a window which he had broken. He commented that the house was his and that he was going to smash it to the ground and that he had come prepared. He called a taxi and removed the stepmother and the children from the property before starting to demolish the house. Mr Pullen, thereafter, continued in a two hour rampage of destruction, using the tools that he had brought with him for the purpose. Upon the arrival of the police, Mr Pullen continued smashing windows and other part of the house. 18. The occupants of the adjoining semi-detached property were evacuated. The Tactical Support Group arrived in company with an ambulance and the Fire Brigade. The Tactical Support Group finally forced their way into the property. The electricity was cut off and the place was in darkness. Mr Pullen then barricaded himself in the loft and threw down on the officers below television sets, furniture and a gas cylinder. There was a smell of gas and water was pouring down the walls. Mr Pullen admitted afterwards that had gone totally berserk. He smashed through onto the roof where he caused further damage to the property with a shovel and a hammer in his possession. 19. On that occasion, two psychiatric reports were prepared. They described him as suffering from severe depression, as a result of the breakdown in his relationship. That, they said, was the main factor relating to the above offences, coupled with provocation and enormous anger. 20. Mr Justice Rougier giving the judgment of this Court on his appeal against sentence in relation to those offences described him as having gone totally berserk. He described him as somebody who, in his view, was totally self centred and vindictive with no capacity whatever for controlling his temper in the face of opposition or when confronted with wrongs real or imagined. 21. The initial Pre-Sentence Report prepared for the sentencing hearing, in respect of the offences with which we are concerned today, recommended a suspended sentence order with requirements of supervision, two programmes and treatment for depression. 22. However, it later became apparent that the author of that report had not been aware of the details of the offences for which he was sentenced in 1997, to which I have just referred, or of the Court of Appeal judgment. As a result she was invited by Judge Samuels to review her report. She did so. In the addendum report, which she then produced, the author, Miss Douglas, concluded that she agreed with His Honour Judge Samuels that Mr Pullen did present a serious risk of harm to others, namely to females with whom he may commence further relationships and to members of the public in confrontational circumstances or in attempting to resist arrest. In those circumstances she said that she was unable to propose a community option as the court had already made clear that a custodial sentence for public protection was warranted. 23. In sentencing this applicant Judge Samuels observed that he would receive the appropriate credit for his pleas but he could not receive extensive credit as the facts spoke for themselves. His record clearly demonstrated that he had an anger management problem and that when he was frustrated he lost all self control. Until he satisfactorily addressed those characteristics, he posed a significant risk to members of the public of serious harm occasioned by his committing further specified offences. He had committed at least four previous specified offences. 24. The judge observed that the probation officer, who had not been aware of the details of the offences for which he was sentenced in 1997 or of the Court of Appeal judgment, had reviewed her report and now concluded that he did present a serious risk of harm to females with whom he might commence a relationship and to members of the public in confrontational situations. He continued: "I am thus satisfied that this is a case where the law obliges me to impose a sentence of imprisonment for public protection, not only for the protection of any partner with whom you might cohabit but police officers and members of the public foreseeably likely to be harmed by your reckless behaviour when you lose all self control. I add that this incident arose when, as far as I can see, this was the fourth victim of domestic violence who your behaviour has affected in this way." 25. The proposed grounds of appeal which are advanced by Mr Taylor before us today are, first, that the judge erred in concluding that only imprisonment for public protection was appropriate having found that the applicant was dangerous and having failed to consider imposing an extended sentence or other lawful sentence. Secondly, he submits that the judge erred in considering that the applicant's record showed that he posed a significant risk of serious harm. His previous offences were repetitive offending at a relatively low level, none of which resulted in serious harm. This, combined with a complete lack of previous convictions for serious offences, demonstrated that the judge's assessment was wrong. Thirdly, he submits that the judge placed undue emphasis on the assessment of the probation officer who had mistakenly thought the judge had already decided the applicant was dangerous. 26. We are totally unable to accept these submissions. The sentencing remarks do suggest that the finding of dangerousness must result in a term of imprisonment for public protection. Under the Criminal Justice Act 2003 , as amended, the judge was not obliged to impose a term of imprisonment for public protection, an extended sentence was an option that was open to him. However, we consider that in this case a sentence of imprisonment for public protection was the only appropriate sentence. This man presents a clear danger to members of the public of serious harm occasioned by him of further specified offences. He has a tendency to use violence against woman, he has shown a total inability to control his temper, when thwarted, and a total inability to learn from experience. 27. The second report, the addendum report, does appear to assume that the sentencing judge had already reached a conclusion on dangerousness. However, in that report, Miss Douglas, having reconsidered the matter, does come to the conclusion that he does present a serious risk of harm to others. The judge's sentencing remarks rely on the conclusion of Miss Douglas. The judge was entitled to rely on that. In any event, he was entitled to come to his own conclusion. There was ample material here to support that conclusion. 28. We are in entire agreement with the single judge that the submission made in writing that the damage caused on this occasion was, "an unfortunate and unintentional by-product of the driving and attempts to evade the police rather than a deliberate attempt to destroy property" is, in the circumstances which I have outlined, simply untenable. 29. In our judgment, the proposed grounds of appeal are unarguable. We refuse leave to appeal against sentence. 30. Finally, we note that the record sheet in this case requires to be amended to show that the offence of which the applicant was convicted on Count 1 was, in fact, destroying property being reckless as to whether life was endanger.	{"ConvCourtName":["Crown Court at Kingston upon Thames"],"ConvictPleaDate":["2008-08-11"],"ConvictOffence":["Destroying property and being reckless as to whether life was endangered","Common assault","Dangerous driving"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[105],"SentCourtName":["Crown Court at Kingston upon Thames"],"Sentence":["Imprisonment for public protection (IPP) (Count 1)","4 months imprisonment concurrent (Count 2)","15 months imprisonment concurrent (Count 3)","Disqualified from driving for 5 years with extended retest"],"SentServe":["Concurrent"],"WhatAncillary":["Disqualified from driving for 5 years with extended retest"],"OffSex":["All Male"],"OffAgeOffence":[43],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person","Individuals"],"VicNum":[],"VicSex":["All Female","Mixed"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of harm"],"AggFactSent":["offence committed while on bail","use of a vehicle to endanger police officers","previous specified offences","anger management problem","risk to public and partners"],"MitFactSent":["pleaded guilty","offender has depression"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["judge erred in concluding only IPP was appropriate","judge erred in considering applicant's record showed significant risk of serious harm","judge placed undue emphasis on probation officer's assessment"],"SentGuideWhich":["section 82A of the Powers and Criminal Courts Sentencing Act 2000","Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["judge failed to consider extended sentence or other lawful sentence","previous offences were repetitive at a low level, none resulted in serious harm","undue emphasis on probation officer's assessment"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence of imprisonment for public protection was the only appropriate sentence","ample material to support judge's conclusion of dangerousness","grounds of appeal unarguable"]}
No: 200800229 A1 Neutral Citation Number: [2008] EWCA Crim 855 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 22nd February 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE COULSON THE COMMON SERJEANT OF LONDON (HIS HONOUR JUDGE BARKER QC) Sitting as a Judge in the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL THOMAS KAVANAGH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss A Mousely (Solicitor Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: The appellant was charged in 1997 with committing, within the jurisdiction of the Central Criminal Court, a public nuisance in that he had made hundreds of explicit sexual telephone calls to a number of different victims. The offence was said to have been committed between 1st October 2005 and 24th July 2007. He pleaded guilty on 25th July 2007 and was committed for sentence to the Crown Court. On 9th November 2007 at the Crown Court at Southwark he was sentenced by HH Judge Testar to a period of 2 years and 6 months' imprisonment, with time on remand to be taken into account; an Anti-Social Behaviour Order was made for 4 years, effectively dealing with the kind of offending for which he had been prosecuted. He appeals to this court by leave of the single judge. 2. The facts 3. The facts are broadly as follows. It is accepted by the appellant that he made hundreds of explicit sexual telephone calls between October 2005 and July 2007. The matter appears to have come to light when female staff at a gym in basement premises close to the appellant's home started to receive phone calls of a sexual nature. The appellant initially said he was carrying out a survey for a well-known retailer, and suggested that participation would lead to free samples of underwear being despatched. 4. He asked about the type and colour of their underwear. Further calls were made which became increasingly sexually explicit. 5. The staff initially found these faintly amusing but became worried when they persisted. It became clear to the recipients of the calls at the gym that the maker of the calls could see them because he described their clothing. This caused the staff concern and anxiety. Some days he made a number of calls and then there might be a period when he made no calls. Between February and July 2007 it was established that he made a total of 315 calls to the gym, and it was established he could see the gym from the balcony of his flat. 6. He was arrested on 24th July. His phone records were examined and it was established that he had contacted other women purporting to be carrying out a survey for the same well-known retailer. Some calls were terminated by the women before he became sexually explicit. He typically asked them the colour of the underwear they were wearing. 7. When the matter was opened before the learned Crown Court judge, it was opened on the basis that there had been 15,000 telephone calls shown by the records of the appellant's telephone. It appears that no attempt was made to go into the precise number of phone calls (which fell within the offence with which he was charged), it being accepted they were in the bracket of hundreds rather than thousands. 8. There was one other matter which was much more serious. There was a suggestion in a few witness statements before the judge that there may have been at least one occasion when a telephone call was made to a child. It appears, however, that the defendant denied that; the judge proceeded on the basis that he would not deal with any of this public nuisance on the basis that there were calls to teenage girls. 9. It is, we would observe, unfortunate that that course was taken, because obviously telephone calls to teenage girls, or anyone under the age of 16, would have taken this offence into a very different sentencing bracket. It is something that should have been gone into and, had it been gone into, it may well have been that the sentence which could have been properly passed would have been much higher than the sentence which we shall indicate was in the appropriate range for this sort of sentence. We deal with the case therefore on the basis that we are dealing with calls to adults and not anyone under the age of 16. 10. When interviewed, the appellant initially declined to comment but when he was told of the impact of the calls on the victim he admitted making them. He said that he masturbated while making the calls and they were made for his own sexual gratification. There were victim impact statements before the judge; it is without doubt that a number of the recipients of the calls found them disturbing. 11. The approach of the judge 12. The judge in careful sentencing remarks explained why he was passing the sentence he did. He stressed the importance of the effect that some of the women described. He, for example, pointed to someone who had received persistent calls and became worried that the appellant might be outside her house and felt unsafe. Another pulled the blinds down, locked the door and insisted her husband came home. 13. In approaching offences of this kind, the learned judge was right to take into account the significant impact which activity of this kind has upon the victim. However, on the other hand, it was right for the judge to take into account the fact there was a plea at the Magistrates' Court, the fact that he had no relevant prior offending (such offences as he had committed were some considerable time ago); that he had expressed genuine remorse; and that he was essentially a person who was a drug addict, being dependant on cocaine, and an alcoholic and had suffered this condition for the past 13 years, being a man of the age of 40. 14. The previous decisions of this court 15. In approaching the sentence to be passed on him for this activity, we have been taken to two decisions of this court. The first in Harley [2003] 2 Cr.App.R(S) at page 15, [2002] EWCA Crim 2650 , that decision being given on 14th November 2002, and the decision of the court in Newton [2003] EWCA Crim 976 , [2003] 2 Cr.App.R(S) 437, that decision being given on 3rd February 2003. Those cases considered very different facts. In the first, the number of calls was very considerable but there were strong mitigating factors and there was no threat or hint of violence. This court reduced the sentence that the trial judge had passed of 21 months to one of 9 months' imprisonment. The other case , Newton , we do not find helpful as it is so different from this case, involving threats of violence. 16. The relevance of the SGC Guidelines 17. We consider a court should now look at those cases in the context of the Guideline for sexual offences under the Sexual Offences Act 2003 that has been issued by the Sentencing Guidelines Council. The Guideline on sexual offences is an extensive code, and it sets out ranges of sentences for the large number of sexual offences under the Act . It, however, does not cover this type of offence as it is not an offence under the Act but at common law. We think it right however that where an offence is of a sexual nature -- and there is no doubt that this offending was -- we ought to try as best as possible to relate it to the Guideline. It is, we think, impossible for anyone to contemplate fitting in every offence into the guidelines issued by the SGC, but it is important that where an offence is not within the guidelines but is an offence similar to those within the guidelines, an attempt should be made to see how best to relate that offence to those within the guidelines. 18. We take two different starting points. The first is to look at, on the one hand, the guidelines in respect of sexual assaults, and in particular the bracket of offending for contact between naked genitalia of the offender and another part of the victim's body where the range is 6 to 24 months, and voyeurism which on the basic offence would attract a community service order but with aggravating features it can attract a sentence of up to 24 months. 19. It seems to us that the offence to which this appellant pleaded guilty is a much more serious offence than many offences of voyeurism, because it involves not only the invasion of privacy but contact which can, and did in this case, put the victim in fear. It therefore seems to us that in a case which, as we have made very clear, does not involve anyone under the age of 16, a starting point for a sentence would be one of between 15 and 21 months. The court would have to take into account the effect on the women, the number of calls, the period over which it was done and the kind of questions asked. 20. The appropriate sentence in this case 21. In this case we give full credit for the plea in question. We take account of the fact that there has been considerable remorse and the fact that there is no mental element and no serious risk of re-offending in the future. But this offender did put the women concerned in fear and he did make a significant number of calls over a longish period of time. 22. Doing the best we can on the facts as they are before us, and giving the defendant the benefit of the doubt that must exist because the facts were not properly gone into, we consider that the sentence passed by the learned sentencing judge was far too high and the appropriate sentence in this case should have been one of 12 months' imprisonment. To that extent, and to that extent only, this appeal allowed. 23. There is obviously no appeal against the ASBO, is there? 24. MISS MOUSELY: No, my Lord. 25. LORD JUSTICE THOMAS: Time on remand to count towards sentence.	{"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2007-07-25"],"ConvictOffence":["public nuisance (making hundreds of explicit sexual telephone calls)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southwark"],"Sentence":["2 years and 6 months' imprisonment","Anti-Social Behaviour Order for 4 years"],"SentServe":[],"WhatAncillary":["Anti-Social Behaviour Order for 4 years"],"OffSex":["All Male"],"OffAgeOffence":[40],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["a number of different victims"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["phone records","witness statements","victim impact statements"],"DefEvidTypeTrial":["defendant denied calls to children"],"PreSentReport":[],"AggFactSent":["significant impact on victims","put victims in fear","significant number of calls over a long period"],"MitFactSent":["plea at Magistrates' Court","no relevant prior offending","genuine remorse","drug addict and alcoholic for 13 years"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence was far too high"],"SentGuideWhich":["Sentencing Guidelines Council Guideline for sexual offences under the Sexual Offences Act 2003"],"AppealOutcome":["Appeal allowed and sentence reduced to 12 months' imprisonment"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["sentence passed by the learned sentencing judge was far too high"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}

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