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Case No:
2012/02657 C5
Neutral Citation Number:
[2012] EWCA Crim 2434
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CAMBRIDGE CROWN COURT
His Honour Judge Hawksworth
T20117145
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/11/2012
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE GROSS
and
MR JUSTICE MITTING
- - - - - - - - - - - - - - - - - - - - -
Between :
R (Press Association)
Appellant
- v -
Cambridge Crown Court
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr M Dodd
on behalf of the
Press Association
Ms C Matthews
for the
Crown
Mr L Mably
(instructed by the Attorney General) as
Friend of the Court
Hearing dates: 6
th
November 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
This is an appeal by the Press Association (PA) against orders made by His Honour Judge Hawksworth at Cambridge Crown Court on 16 April 2012.
2.
On that date he made:
i)
an order (the initial order) under s.4(11) (plainly a typographical error for s.4(2)) of the Contempt of Court Act 1981 (the 1981 Act) imposing an indefinite prohibition on the publication of “anything relating to the name of the defendant which could lead to the identification of the complainant which could have serious consequences for the course of justice.”
This was followed shortly afterwards by:
ii)
an order superseding the initial order (the order) under s.1(2) of the Sexual Offences (Amendment) Act 1992 (the 1992 Act), again imposing a prohibition, unlimited in time, on the publication of “anything relating to the name of the defendant which could lead to the identification of the complainant which could have serious consequences for the course of justice.”
3.
A cursory glance at these orders underlines that the issue raised in the appeal is directed to the openness of the administration of criminal justice and the jurisdiction, if any, of the Crown Court to make an order restricting publication of the name of a defendant convicted of sexual offences for the purpose of protecting the interests of others, in particular the complainant.
4.
We shall briefly summarise the essential facts.
5.
On 14 February 2012 the defendant was found guilty of five counts of rape (counts 1-5) and four counts of breaching a restraining order (counts 6-9). The trial had taken place in open court and the case had been listed under the defendant’s full name. On 16 April a sentence of imprisonment for public protection, with a minimum term of 8 years and 273 days, was imposed on him.
6.
On that date counsel for the prosecution (Ms Matthews) and counsel for the defendant appeared before the judge. According to Ms Matthews she was not seeking an order which would prohibit the publication of the defendant’s name; she merely wanted to draw to the judge’s attention – and for him to alert the press – to the concerns which would arise if the defendant’s name were published. In this way, the ambit of any proposed reporting of the case would be clear and the risk that the media would inadvertently undermine the complainant’s anonymity by publishing the defendant’s name would be avoided. Whatever her intention, the judge plainly thought that Ms Matthews was seeking an order to impose a prohibition on the publication of the defendant’s name. The judge made the initial order under s.4(2) of the 1981 Act. Thereafter, however, a representative of the local press persuaded the judge that s.4(2) of the 1981 Act did not apply. The judge remained concerned about the consequences for the complainant if the identification of the defendant led to her identification. He was concerned, both about the possible impact on her health and wellbeing and about other risks (upon which it is unnecessary to elaborate) should the complainant’s family become aware of these offences and the defendant’s responsibility for them. We understand the concerns of the judge, and readily acknowledge that he was proceeding with the best of intentions, namely the protection of a woman who had been the victim of grave crime committed by the defendant. Thus informed, the judge weighed up the freedom of the press on the one hand and the consequences for the complainant on the other. He underlined that the press was free to publish the facts of the offences and the sentence passed on the defendant; he did not see how the public interest would be “further bolstered by simply the publication of the man’s name …”. Accordingly, having carried out the balancing exercise he believed appropriate, the judge decided to continue the initial order, but using a different section for this purpose: hence the order under s.1(2) of the 1992 Act.
The applicable statutory provisions
7.
Section 4(2) of the 1981 Act provides:
“In any such proceedings (i.e. legal proceedings held in public) the court may, where it appears necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.”
8.
Section 11 provides:
“In any case where a court (having the power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld”.
9.
The 1992 Act, as its preamble makes clear, makes provision relating to anonymity in connection with allegations and criminal proceedings relating to certain sexual offences. Section 1 provides, inter alia:
“(1) where an allegation has been made that an offence to which this Act applies has been committed against the 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 person against whom the offence is alleged to have been committed.
(2) where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed shall during the complainant’s lifetime be included in any publication”.
It is a criminal offence to contravene section 1 of the Act, whether by naming or enabling a “jigsaw” identification to be made. The ambit of the offence is not limited to the press. In short, it encompasses publication of prohibited material by anyone by whatever means publication occurs, and extends to bloggers and twitterers or any other commentators. However, we note that the sentence is confined to a financial penalty. Whether this is always a sufficient punishment for those who
deliberately
breach the anonymity of the victim of sexual crime appears to us to require urgent reconsideration.
The submissions
10.
PA’s ground of appeal, admirably addressed in writing (and developed briefly orally), by Mr Dodd, was that the judge had no power to make an order anonymising the defendant, whether under ss.4(2) or 11 of the 1981 Act or s.1(2) of the 1992 Act. So far as the 1992 Act was concerned, the responsibility for ensuring the lifelong anonymity granted to victims of certain offences under s.1, rested with the editors, and those reporting any trial, not with the court. The press was well aware that a breach of the anonymity provisions in the 1992 Act would give rise to a criminal offence and editors were reminded of their responsibilities by the Editors’ Code of Practice. He contended that Parliament having considered and rejected the reintroduction of anonymity for defendants in cases involving sexual crime, it was not open to the court to achieve the same result by way of injunctive result; there was no inherent jurisdiction to restrain publication in this way. Mr Dodd underlined that the interest of the PA did not lie in the particular trial itself, but the issue was of major importance to the press, and he expressed considerable concern at the apparent willingness of some courts to make orders that were unnecessary or beyond their powers.
11.
As we understand Ms Matthews for the Crown, she conceded that there was no power to make an order under the 1992 Act and that indeed the order in the present case was unnecessary. She submitted that the statute conferred automatic anonymity on complainants who were the victims of sexual crime. She likewise conceded that there had been no power to make the order under the 1981 Act, not least because there had been no reporting restrictions during the trial itself. All that accepted, she suggested that it was appropriate for the judge to give guidance and directions to the proper ambit of what could be reported. She added that the Crown Court was under a duty “to protect the anonymity” of a complainant which fell within the ambit of the anonymity principles, although in argument she was unable to elaborate how this might be fulfilled.
12.
Mr Mably, who was invited to make submissions as the Friend of the Court appointed by the Attorney General, submitted that the Crown Court is vested with power to order at the outset of proceedings that a defendant should not be named in two limited circumstances. First, that the interests of justice require it, and second, if the court is satisfied that there is a real and immediate risk to the life of the defendant. This can be achieved by ordering a trial in camera or withholding the name of the defendant. However, he agreed that the Crown Court lacks jurisdiction to make a free-standing order that the defendant is not to be named before, during or after the conclusion of proceedings simply because it appears to be desirable to do so.
The 1981 Act
13.
As we have indicated, the judge relied on s.4(2) of the Act when making the initial order. These orders are intended to avoid “a substantial risk of prejudice” to the proceedings to which they are made, or to linked or related proceedings, such as a subsequent trial involving the same defendants or witnesses. Other examples of the use of the power in s.4(2) can be found in prohibitions against the publication of evidence or argument before the judge in the absence of the jury and, after a successful appeal against conviction, when a new trial is ordered and, to avoid prejudice to any retrial, an appropriate order is made. An order under s.4(2) should, however, only be made when it is necessary to do so and as a last resort. Suffice it to say that here, at the time of the making of the initial order, the defendant had been tried, convicted and sentenced in public, without any order restricting publication of his identity, and there were no pending proceedings which might be prejudiced by the publication of his name. Essentially too, s.4(2) as its wording suggests, is aimed at the postponement of publication rather than a permanent ban. An order prohibiting publication for an indefinite period carries with it the natural inference not merely that the publication has simply been postponed, but that a permanent ban had been imposed. Accordingly, s.4(2) was, as the judge swiftly recognised, inapt for the making of the initial order.
14.
When making his ruling the judge made no reference to s.11 of the 1981 Act and, for completeness, it is plain that this section could not have been relied on as the foundation for the initial order. Section 11 does not arise for consideration unless the court, having the power to do so, withholds the name or other matter from the public in the proceedings before it (see
R v Arundel Justices ex parte Westminster Press Limited
[1985] 1 WLR 708
and in
Re Trinity Mirror plc
[2008] QB 770
). It was therefore a pre-condition to the making of the order on the basis of s.11 that the name of the defendant should have been withheld throughout the proceedings.
The 1992 Act
15.
We therefore turn to the provisions of the 1992 Act. Section 1 confers lifelong anonymity on complainants in cases which involve sexual offences to which the 1992 Act applies. What however cannot be found in the Act is the conferring of any express power on the court to make an order restricting publication of the defendant’s name in order to protect or enforce a complainant’s right to anonymity. There are, as it seems to us, a number of difficulties in reading any such power into the 1992 Act. First, the absence of an express power to make such an order is telling. All the more so, given that the only express power to make an order impacting on the complainant’s right to anonymity under s.1 is conferred by s.3, which provides that the judge may give a direction which lifts the anonymity of the complainant in a number of carefully defined situations where the interests of justice so require. Second, on the face of it there is no need for any such power. The complainant enjoys the protection provided by s.1, and a contravention of the complainant’s right to anonymity involves the commission of a criminal offence. Third, the absence of a judicial power to restrict publication provides a clear demarcation of responsibility. Decisions about what should or should not be published in a newspaper, or for that matter in the media generally, are left to editors and reporters. As we have explained, if section 1 is contravened, they face criminal prosecution.
16.
It is clear from this legislative provision that the responsibility for decisions relating to publication is aligned with risk, and it is for those responsible for publication to ensure that the provisions which protect the public identification of a complainant in a sexual case are obeyed. They do so, however, not because they are enjoined to do so by judicial order, but because that is a statutory requirement. In the matter of
B
[2006] EWCA Crim. 2692
, at paragraph 25, this court made plain that:
“The responsibility for avoiding the publication of material which may prejudice the outcome of a trial rests fairly and squarely on those responsible for the publication. In our view, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice. They have access to the best legal advice; they have their own personal judgments to make. The risk of being in contempt of court for damaging the interests of justice is not one which any responsible editor would wish to take. In itself that is an important safeguard, and it should not be overlooked simply because there are occasions when there is widespread and ill-judged publicity in some parts of the media”.
Precisely the same approach should be taken to the risks and responsibilities involved in publication of material derived from the trial which may identify a complainant who is entitled to anonymity.
17.
For these reasons we are wholly unpersuaded that any power which vests a judge with jurisdiction to make an order that a defendant should be given anonymity, even when the purpose of the order is to protect the anonymity of the complainant, can be read into the 1992 Act. Looking at the matter broadly, any such powers are not to be lightly inferred. There are very good reasons why defendants are not provided with anonymity, particularly after they have been convicted. For example, in
In
re
Trinity Mirror plc
. the defendant pleaded guilty to child pornography offences. In the Crown Court a judge granted an injunction to prohibit the identification of the defendant and his children in order to protect the children’s ECHR rights. A five judge constitution of this court allowed an appeal by news media organisations. The decision turned on the jurisdiction of the Crown Court. However we underline these observations:
“32. In our judgment it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime… From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case”.
Conclusion
18.
We are not here concerned with the kind of extreme case where the identification of the defendant would imperil his life or safety or that of his family. As Lord Rodger explained in
In re Guardian News and Media Limited
[2010] 2 AC 697
at para 26:
“… in an appropriate case, where threats to life or safety are involved, the right of the press to freedom of expression obviously has to yield: a newspaper does not have the right to publish information at the known potential cost of an individual being killed or maimed. In such a situation the court may make an anonymity order to protect the individual”.
Mr Dodd, rightly in our view, accepted that such a situation, or indeed a significant threat to the administration of justice, might lead to an anonymity order. This may arise at any time although we agree with him that the imposition of some anonymity on the identity of the defendant when his identity had not been concealed during the hearing would be extremely rare. More important, considerations like these did not form the basis for the anonymity direction in the present case.
19.
Neither of the present orders, whether made under the 1981 Act or the 1992 Act, can be sustained. The court lacked the necessary jurisdiction. It was for the press to decide how appropriately to report the case so as to ensure the anonymity of the complainant: it was not for the court to instruct the press how to do so by making an order which in effect imposed a blanket prohibition against publication of the defendant’s name.
20.
Having emphasised what we believe to be the essential principles, we can deal briefly with two further submissions made on behalf of the PA about the 1992 Act. It was suggested by Mr Dodd that for the judge to give any guidance to the press risked usurpation of the editor’s discretion about what and how to publish. There, we do not agree. The judge is entitled to express concerns as to the possible consequences of publication, and indeed to engage in a discussion with representatives of the press present in court about these issues, whether on his own initiative, or in a response to a request from them. The judge is in charge of the court, and if he thinks it appropriate to offer comment, we anticipate that a responsible editor would carefully consider it before deciding what should be published. The essential point is that whatever discussions may take place, the judicial observations cannot constitute an order binding on the editor or the reporter. It was also suggested that Rule 16.1 of the Criminal Procedure Rules is less clear and inappropriate because it suggests that the court had a “general open-ended power” to “vary” as well as to remove the protection conferred by s.1 of the 1992 Act. We do not agree. The rules are entirely clear, and we do not think that Rule 16.1 can be read as providing the court with a power which has not been conferred on it by primary legislation.
21.
This appeal will be allowed. | {"ConvCourtName":["Cambridge Crown Court"],"ConvictPleaDate":["2012-02-14"],"ConvictOffence":["Rape","Breach of restraining order"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Cambridge Crown Court"],"Sentence":["Imprisonment for public protection, minimum term of 8 years and 273 days"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Other"],"CoDefAccNum":[],"AppealAgainst":["Order restricting publication of defendant's name"],"AppealGround":["Court had no power to make an order anonymising the defendant under the Contempt of Court Act 1981 or the Sexual Offences (Amendment) Act 1992"],"SentGuideWhich":["Section 4(2) of the Contempt of Court Act 1981","Section 1(2) of the Sexual Offences (Amendment) Act 1992"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2011] EWCA Crim 1712
Case No.
2010/02112/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Thursday 30 June 2011
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE OWEN
and
MR JUSTICE WALKER
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
THOMAS DENNIS GREGORY
- - - - - - - - - - - - - - - - - - - - -
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 M Tregilgas-Davey
appeared on behalf of the Appellant
Mr R Tutt
appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. This is an appeal against conviction by Thomas Gregory, who, following a ruling made by His Honour Judge Field in the Crown Court at Swindon that
section 1(1) of the Firearms Act 1968
created an absolute offence, pleaded guilty on re-arraignment to possessing an altered firearm without a firearm certificate, contrary to
section 1(1)(a)
of the
Firearms Act 1968
, and possessing a firearm when prohibited, contrary to section 21(1) of the same Act.
2. On 17 March 2010, after a
Newton
hearing, he was sentenced to four years' imprisonment on count 1 and three years' imprisonment on count 2, to run concurrently. An appropriate direction in relation to time spent on remand was made.
3. The essential facts can be briefly summarised. On 12 August 2009 the appellant and his mother were observed going into a wood in Wiltshire. About an hour later they emerged. The appellant was the front seat passenger of the car driven by his mother. The car was stopped. In the boot of the vehicle a sawn-off shotgun was found. The prosecution case on count 1 was that the appellant had entered the wood to collect the sawn-off shotgun. As to count 2, he was prohibited from possessing a firearm because he had been sentenced to a period of four years' detention in June 2003.
4. When the case was listed Judge Field was invited to consider whether the offence alleged against the appellant was an offence of strict liability, or, without the precise refinements of the difference being analysed, an offence of absolute liability, and in particular whether the facts asserted by the appellant gave rise to any defence. In essence, and based on his interview with the police, the appellant asserted that he had stopped to urinate while walking in the woods and noticed a package which, on closer examination, he realised was a firearm. He said that he had picked it up, walked 100 yards or so back to his mother's car with it, and put it into the boot of her car. His original intention was to keep it, but his mother prevailed on him to hand the firearm in to the police. They were on their way to the local police station to hand in the weapon when they were stopped.
5. The judge ruled that
section 1(1) of the Firearms Act 1968
created an absolute offence and that the mental state of the appellant was irrelevant. The Act provided a number of different exemptions from criminal liability which were not covered. He continued:
"So notwithstanding the fact that the [appellant] said this is most unfair, that he was genuine in his intention to take the weapon straight to the police, once he is prosecuted he is bound up with this particular section which .... creates an absolute offence."
6. The judge therefore ruled that there was no defence to the charge, although he indicated that the circumstances would be highly relevant to sentence and that if the appellant pleaded guilty, the case would proceed to a
Newton
hearing for decision whether his account of these events was true, or whether, as the prosecution contended, the appellant had visited the particular spot with the specific intention of recovering the weapon and thereafter keeping it for himself.
7. Following the judge's ruling the appellant pleaded guilty and gave evidence at a
Newton
hearing, consistent with his account in interview. His mother, who had also been interviewed at the time when the car she was driving was stopped, gave evidence to similar effect. The judge made a number of findings of fact. The appellant had not come across the gun by chance. Nor had he proposed immediately to take it to the police station.
8. For present purposes, the outcome of the
Newton
hearing is not relevant. The submission is that in his ruling before the appellant pleaded guilty the judge erred in law when he concluded that on the basis of the facts disclosed during the police interview, there was no defence. The submission is that Parliament could not have intended to criminalise an individual who took possession of a firearm in order to hand it over directly to the police. That does not quite reflect what the appellant intended. He was certainly in possession of the firearm, and for a time at least he did not intend to hand it in to the police. He intended to keep it for himself.
9. The original basis for the appeal was that the judge was wrong to conclude that
section 1(1)
of
the 1968 Act
created an absolute offence and that the mental state of the appellant was irrelevant.
10. In our judgment the effect of the judge's ruling was correct, although it was wrong for him to describe the offence as one of absolute liability. To be in possession of a firearm without a firearm certificate is an offence of strict liability. The authorities are consistent and numerous. They are conveniently summarised in
R v Zahid
[2010] EWCA Crim 2158
, adopting
R v Deyemi and Edwards
[2008] 1 Cr App R 25
. In
Zahid
this court certified that a point of law of general public importance was involved in the decision. The point certified was:
"In a case where the defendant has accepted a package into his possession, and the package is found to contain prohibited ammunition, does the prosecution have to prove that the defendant knew that the package contained ammunition, or was reckless that the package might contain ammunition and nonetheless retained possession, in order to sustain a charge under section 5(1A)(f) of the
Firearms Act 1968
?"
Leave to appeal to the Supreme Court was refused. The Supreme Court has recently rejected the application for leave to appeal. The strict liability principle is unchanged.
11. The original hearing of the present appeal was postponed, pending the consideration of
Zahid
by the Supreme Court. In the light of that decision the original argument, as developed before Judge Field, and then in this court, was no longer pursued. Instead a new argument was developed: that the defence of duress of circumstances would have been open to the appellant; accordingly, the guilty plea was entered on a flawed basis, and the conviction is unsafe.
12. The defence of duress of circumstances is of strictly limited ambit. Nevertheless, it is possible to envisage circumstances in which, in the context of possession of a firearm, it, or a defence of necessity, might arise. In argument Walker J invited consideration of a situation in which a member of the public, witnessing a man firing a gun in a school room, disarms him and seizes hold of the weapon. A similar situation would arise if a bank robber drops his gun and a member of the public seizes hold of it and runs away with it to a safe place to keep it until the police arrive. We do not propose to give a ruling on these hypothetical cases. They must be decided in the light of their individual facts when they arise. We simply observe that in such extreme circumstances it may not be sufficient or fair to the public-spirited citizen to assume that because he or she would never be prosecuted and that, if a prosecution were mounted, the case would be disposed of by an absolute discharge, the possible duress/necessity defence would be bound to fail. But even these hypothetical facts do not exist here. There is and never has been any doubt that there was a time when the appellant was voluntarily in possession of the firearm, and that he remained in possession of it, intending to keep it for his own use. For a time, at any rate, even on the best possible view of his account, he had no altruistic or public-spirited intention, and there were no circumstances which created the slightest duress. None was suggested in his interview; none was suggested on his behalf prior to the judge's ruling; and in reality, even when he gave evidence at the
Newton
hearing, he did not suggest any duress of circumstances.
13. Accordingly the ruling made by the judge was not only correct in the context in which he was considering it, but, on the facts on which he based his ruling, no defence was disclosed. The plea was a properly informed and voluntary one. The conviction is safe.
14. We end by reminding ourselves that in this case the police and CPS never accepted for a moment that the appellant was in possession of the firearm for any altruistic motive. They had good reason for rejecting any such notion. The appellant was rightly prosecuted. His explanation was carefully considered at the
Newton
hearing. If Judge Field had not been sure that he should reject the evidence of the appellant and his mother, the sentencing outcome would have been very different. But at the conclusion of the hearing he rejected their accounts and he passed sentences which properly reflected the appellant's criminality.
________________________________ | {"ConvCourtName":["Crown Court at Swindon"],"ConvictPleaDate":["2010-03-17"],"ConvictOffence":["possessing an altered firearm without a firearm certificate, contrary to section 1(1)(a) of the Firearms Act 1968","possessing a firearm when prohibited, contrary to section 21(1) of the Firearms Act 1968"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on re-arraignment"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Swindon"],"Sentence":["4 years' imprisonment on count 1","3 years' imprisonment on count 2"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["judge was wrong to conclude that section 1(1) of the 1968 Act created an absolute offence and that the mental state of the appellant was irrelevant","defence of duress of circumstances would have been open to the appellant; accordingly, the guilty plea was entered on a flawed basis"],"SentGuideWhich":["section 1(1) of the Firearms Act 1968","section 21(1) of the Firearms Act 1968"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["the ruling made by the judge was correct in the context in which he was considering it","on the facts on which he based his ruling, no defence was disclosed","the plea was a properly informed and voluntary one","the conviction is safe"]} |
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
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 Number:
[2024] EWCA Crim 68
Case No:
2023/02409 A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25 January 2024
Before
:
LORD JUSTICE POPPLEWELL
MR JUSTICE CHOUDHURY
and
HIS HONOUR JUDGE ANDREW LEES
(sitting as a Judge in the CACD)
- - - - - - - - - - - - - - - - - - - - -
Between:
RICHARD LEE NORRIS
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J McNALLY (instructed by The Ringrose Law Solicitors) for the
Appellant
Mr J JANES (instructed by CPS) for the
Respondent
Hearing date: 25 January 2024
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 10.30am on 6 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Mr Justice Choudhury:
Introduction
1.
On 16 June 2023 in the Crown Court at Lincoln (before HHJ S Hirst), the Appellant (then aged 54) was convicted of murder. On 19 June 2023, he was sentenced to imprisonment for life with a minimum term of 27 years (less 194 days spent on remand). The Appellant appeals against that sentence with the leave of the Single Judge.
The Facts
2.
The background to this matter may be briefly stated as follows: in the early hours of 2 December 2022, the Appellant murdered Marcus Tott, then aged 47. Tott and Marie Edge had been in a volatile and sometimes violent relationship. The pair lived together at 11 Grosvenor Road in Skegness.
3.
On 28 November 2022, Marie Edge left Tott and went to stay with Petra Ross at 37A Grosvenor Road. Whilst there, Edge began a relationship with the Appellant and told him about her problems with Tott.
4.
At approximately 02:50 on 2
December, the Appellant, intoxicated with drugs and alcohol, took a knife from Ross’ home and went to 11 Grosvenor Road. Tott’s front door was unlocked, and the Appellant went inside. Tott was asleep on his bed. The Appellant stabbed Tott to the right side of his chest. The knife passed through muscles and a rib before incising the superior vena cava and left pulmonary artery. Tott collapsed and died a short time later.
5.
The Appellant returned briefly to Ross’ home before going back to the hostel where he had been living, disposing of the knife down a drain en route. At the hostel, the Appellant telephoned his mother and told her that he had stabbed Tott while Tott was asleep. He also told Ross that he had stabbed Tott.
6.
Tott was discovered lying on the floor by his landlord later that morning. Paramedics were called and he was pronounced dead shortly after 09:30. A post-mortem examination concluded that the cause of death was a single stab wound to the right side of the chest. The wound was consistent with the injury having been caused by a kitchen knife. The Appellant was arrested and denied all knowledge of the offence.
7.
The Appellant’s antecedents comprised 53 convictions for 184 offences spanning from January 1987 to 30 July 2020. His relevant convictions included offences of assault occasioning actual bodily harm (1987, 1988 and 2005), having a bladed article in a public place (1999, 2004 and 2007), possessing an offensive weapon in a public place (1999) and common assault (2003).
The Sentence
8.
In sentencing the Appellant, the Judge considered that the case fell within paragraph 4 of Schedule 21 to the
Sentencing Act 2020
because a knife was taken from Ross’ flat to the scene of the murder. That gave a starting point for the minimum term of 25 years.
9.
As to aggravating and mitigating factors, the Judge considered that whilst there was significant premeditation, this did not amount to a “significant degree of planning” within the meaning of paragraph 9A of Schedule 21 to
the
Sentencing Act 2020
(“
the 2020 Act
”). The Judge was sure that there was an intention to kill which meant that there could be no mitigation for the absence of such intent. The Judge then proceeded to consider further aggravating factors:
“The aggravating factors are, first, your previous convictions. You are heavily convicted for dishonesty, including receiving twenty-eight months in 2020 for two offences of burglary of non-dwellings. In addition, you have the following relevant convictions: 1987 assault occasioning actual bodily harm, 1988 assault occasioning actual bodily harm, 1999 possession of an offensive weapon, 2003 common assault, 2004 having an article with a blade, 2005 assault occasioning actual bodily harm and common assault, 2007 having an article with a blade. Second, the murder took place in the home of Marcus Tott. Third, the vulnerability [of] Marcus Tott since he was lying sleep in his bed. Fourth, the taking of some, albeit unsuccessful, steps to cover your tracks by trying to dispose of the weapon in a drain. Fifth, you blaming Petra Ross for the death of Marcus Tott from the time of your first defence case statement until the second defence case statement provided on the first day of the trial.”
10.
The Judge then referred to the mitigating factors:
“The mitigating factors are, first, you behaved in a way which was out of character for you in recent years and at a time when you suffered some recent losses. Second, there was no sophistication about what you did. Third, you killed Marcus Tott when you believed he had treated Marie Edge badly. Fourth, you struck a single blow, albeit a blow of severe force, rather than a sustained assault.”
11.
Taking all of these factors into account, the Judge sentenced the Appellant to a minimum term of 27 years less days spent on remand.
Grounds of Appeal
12.
The Appellant was permitted to appeal on the sole basis that the aggravating factors were insubstantial and should not have outweighed the mitigation so as to lead to an uplift from the starting point of 25 years. In granting leave, the Single Judge said as follows:
“I have considered the papers in your case and your grounds of appeal. The Judge was bound to take the starting point of 25 years for your minimum term and was entitled to find the victim was asleep when you killed him. I give leave on the basis it is arguable that the aggravating matters relied on by HHJ Hirst were, with respect, insubstantial and should not have outweighed the slight mitigation [a belief the deceased had been violent to your then-partner]. To consider the 5 matters the Judge relied on as aggravation:
(i)
Your previous convictions: your most recent conviction for violence was about 17 years earlier and not the most serious. It may be that your more recent numerous convictions for dishonesty are not very relevant to the sentence for murder.
(ii)
The murder was in the victim’s home: This is not a specified aggravating factor under schedule 21 of the Sentencing Act. While the schedule it is not an exclusive list, it is sadly a very common feature that people are killed in their own homes, yet Parliament has not seen fit to identify it as an aggravating feature.
(iii)
The victim was asleep. This is not a specified aggravating factor [in contrast to vulnerability through age or disability, which is]: that absence is not determinative, but I note paragraph 9(c) of Schedule 21 specifies “mental suffering inflicted before death” which could suggest that a prolonged attack on an awake victim is itself an aggravation. It is arguable that Judges imposing these very long minimum terms need to be cautious before identifying aggravating factors that are not in the Schedule.
(iv)
Taking steps to cover your tracks by dropping the knife down a drain: those who kill by stabbing very frequently do not keep the murder weapon thereafter and, once more, this is not a specified aggravating factor.
(v)Blaming another for the crime in a Defence Statement: It is wrong in principle to treat the nature of the defence run at trial [however unattractive] as a reason to increase a sentence, see for example
Lowndes
[2014] 1 Cr App R (S) 75
.”
Submissions
13.
Mr McNally, who appears for the Appellant, as he did below, submits that, whilst the Judge was entitled to take account of aggravating features not appearing in Schedule 21 to
the 2020 Act
, the aggravating features on which the Judge relied were either not aggravating features at all or, if they were, should have been afforded minimal weight. The previous convictions, he submits, were historic and of an entirely lesser order of seriousness, and the more recent dishonesty offences to which the Judge referred were of little moment in the context of this offending. As such, the previous convictions should not have been given any significance. He submitted that where it is rare for a knife to be left at the scene of a murder and where it is commonplace for a knife to be removed and disposed of upon leaving the scene, the dropping of the knife should not be treated as an aggravating feature. The blaming of Ross for the offence was not pressed by the Prosecution as an aggravating feature and it was wrong in principle to rely on that. The fact of the offence being committed in the victim’s home should not be regarded as an aggravating feature because the victim of a murder, unlike the victim of a lesser offence, is not left, post-offence, to suffer any ongoing dread or fear when at home. Mr McNally submitted that the fact that the victim was asleep did not render him particularly vulnerable in the way that age or infirmity might as per the example in paragraph 9 of Sch 21 to
the 2020 Act
. As to the mitigating factors, it was submitted that these should have been afforded more weight. As well as the fact of the offence being out of recent character, there was evidence of a violent incident between Tott and Edge which had been on the Appellant’s mind when he committed the offence. Finally, the fact that there was a single blow does provide some mitigation in circumstances where knife attacks often involve multiple blows or a frenzied attack. Stepping back and bearing in mind that the taking of a knife to the scene had already resulted in a higher starting point of 25 years, the sentence of 27 years was, he submits, manifestly excessive.
14.
Mr Janes, who appeared for the Crown as he also did below, submits that the Judge carried out an appropriate analysis of the aggravating and mitigating factors and reached a sentence which was just and proportionate. He emphasises that of the different circumstances in which the taking of a knife to the scene would engage paragraph 4 of Sch 20, the Appellant’s conduct in this case was at the more serious end of the scale, involving significant premeditation in deliberately taking the knife from one location to the victim’s home with the intention of killing him. Whilst the previous convictions and the dropping of the knife would not greatly aggravate the seriousness of the offence, the Judge was entitled to take these features into account. Mr Janes accepted that the blaming of Ross should not have been taken into account but contended that that would not undermine the Judge’s analysis overall. The two principal aggravating features, in Mr Janes’ submission, were the fact that the victim was at home and particularly vulnerable through being asleep. Taking all the factors into account entitled the Judge to increase the sentence from the starting point to 27 years.
Analysis
15.
Paragraphs 9 and 10 of Sch 21 to
the 2020 Act
set out a non-exhaustive list of aggravating and mitigating factors, detailed consideration of which “may result in a minimum term of any length (whatever the starting point) …”: paragraph 8 of Sch 21 to
the 2020 Act
. It is well established that Sch 21 does not seek to identify all such factors and that it “merely provides examples”:
R v Last
[2005] EWCA Crim 106
[2005] 2 Cr App R (S) 64
. A Judge sentencing an offender for murder is therefore entitled to consider and take account of aggravating and mitigating factors not specifically mentioned in Sch 21 if these are relevant to an assessment of the seriousness of the offending in question.
16.
In the present case, the Judge treated the Appellant’s attempt to blame Ross as an aggravating factor. However, in
R v Lowndes
[2014] 1 Cr App R (s) 75, it was held that lying about another’s involvement should not be treated as an aggravating factor in passing sentence (although it could be relevant when considering the value of a mitigating factor). We consider that, in view of the decision in
Lowndes
, the Judge should not have treated the Appellant’s attempt to blame Ross as an aggravating factor.
17.
We note that the Sentencing Council’s ‘General guideline: overarching approach’ (“the General guideline”) provides:
“Where the investigation has been hindered and/or other(s) have suffered as a result of being wrongly blamed by the offender, this will make the offence more serious.
This factor will
not
be engaged where an offender has simply exercised his or her right not to assist the investigation or accept responsibility for the offending.” (Emphasis in original)
18.
The second paragraph in the General guideline reflects the position set out in
Lowndes
. As for the first paragraph, there has been no suggestion in the present case of the investigation being hindered as result of the attempts to blame Ross or that Ross has suffered by reason of e.g. being investigated or charged (although no doubt she was discomforted by the Appellant’s attempt to make her a suspect). Furthermore, the progress of the trial was not significantly affected by the Appellant’s conduct as the allegation in respect of Ross was, we are told, withdrawn before the Prosecution’s opening.
19.
As to the other aggravating factors identified by the Judge, our views are as follows:
i)
Relevant previous convictions
: The Judge was entitled to have regard to these. However, the age of the convictions (the last one dating from 2007) and their less serious nature meant that their aggravating effect was, in the circumstances of this case, not very substantial. This was not a case where there was a pattern of recent, serious or escalating violent offending that would warrant a significant uplift from the starting point. Although it may be said that the age of the offending was taken into account by the Judge in that he referred to the Appellant’s offending behaviour to be “out of character for [him] in recent years”, that was said in the context of considering mitigation, and it remains unclear whether the age and nature of the previous offending were properly considered as diminishing any aggravating effect.
ii)
Disposing of the knife
: We do not accept Mr McNally’s contention that this should not be an aggravating feature at all. Notwithstanding its absence from Sch 21, an attempt to conceal or dispose of evidence is an aggravating factor. We agree that in the circumstances of the particular offence in this case, the weight to be attached to that factor would not be very substantial, as the Appellant’s act of dropping the knife down a drain was far from being a sophisticated or effective attempt at concealing or disposing of evidence.
iii)
Location
: The General guideline states as follows:
“In general, an offence is not made more serious by the location and/or timing of the offence except in ways taken into account by other factors in this guideline (such as planning, vulnerable victim, offence committed in a domestic context, maximising distress to victim, others put at risk of harm by the offending, offence committed in the presence of others). Care should be taken to avoid double counting.”
Whilst location will not generally render an offence more serious, it was not inappropriate for the Judge to have regard to the fact that the crime was committed in the victim’s home, as that is where a person is entitled to feel safe: see e.g.
R v Reeves
[2023] EWCA Crim 384
at [17]. This is a reflection of culpability and applies as much to a murder as to any other crime where the offender targets the victim in their home.
iv)
Victim asleep
: We reject Mr McNally’s contention that the victim being asleep did not render him particularly vulnerable. The state of sleep means that a person is, in that moment, defenceless against any attacker and highly vulnerable. The fact that the state of vulnerability is only transient does not diminish the culpability of the attacker.
20.
A factor not mentioned by the Judge, but which could also be treated as aggravating is the Appellant’s state of intoxication.
21.
The combination of these aggravating factors justifies some increase from the starting point.
22.
As to the mitigating factors relied upon, the Appellant was certainly not a person of good character, but the lack of any conviction for violence in the last 15 years (which caused the Judge to comment that the offence was “out of character for [him] in recent years) was a factor to which the Judge was entitled to attach at least some weight. The second factor, namely the absence of sophistication, is not a significant mitigating factor in this context, and would, in any event, have been taken into account in determining that there was not a significant degree of planning or premeditation over and above that which was inherent in taking the knife to the scene. The fact that the Appellant acted as he did because he believed that Tott had treated Edge badly is also not a significant mitigating factor. It cannot be said that there was any provocation involved or that his actions had the effect of defending Edge so as to diminish to any extent the seriousness of the Appellant’s offending. The final mitigating factor identified by the Judge was the fact that there was only a single blow. We do not consider that that can afford the Appellant any real mitigation at all in these circumstances where there was an unprovoked attack against a sleeping victim and where the Judge has formed the view that there was an intention to kill; at most the infliction of single blow means that the offence was not rendered more serious by the nature of the attack. In short, the mitigating features in this case can properly be characterised as insubstantial.
23.
It is important to keep in mind the guidance in
R v Jones
[2005] EWCA Crim 3115
[2006] 2 Cr App R (S) 101
and subsequent case law as to how the guidance in Sch 21 is to be applied. That guidance is provided to assist the judge to determine the appropriate sentence. The judge must have regard to the guidance, but each case will depend critically on its particular facts. The assessment of the aggravating and mitigating factors (whether set out in Sch 21 or not) and the resulting shift (if any) to a point above or below the starting point is a question of judgment based on those facts and is not a mechanistic exercise comprising the arithmetical summation of such factors.
24.
In our judgment, taking account of the factors identified above, the minimum term of 27 years imposed by the Judge in this case, whilst undoubtedly a severe sentence, cannot be said to be manifestly excessive. Accordingly, this appeal is dismissed. | {"ConvCourtName":["Crown Court at Lincoln"],"ConvictPleaDate":["2023-06-16"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[194],"SentCourtName":["Crown Court at Lincoln"],"Sentence":["Imprisonment for life with a minimum term of 27 years (less 194 days spent on remand)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[54],"OffJobOffence":[],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[47],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["Previous convictions (historic, not recent for violence)","Murder took place in victim's home","Victim was asleep (vulnerable)","Attempt to dispose of weapon (knife)"],"MitFactSent":["Behaviour out of character in recent years","No sophistication in offence","Belief victim had treated partner badly","Single blow rather than sustained assault"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Aggravating factors were insubstantial and should not have outweighed mitigation"],"SentGuideWhich":["Schedule 21 to the Sentencing Act 2020"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Aggravating factors not substantial; mitigation should have outweighed aggravation"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Minimum term of 27 years not manifestly excessive; judge entitled to consider aggravating and mitigating factors as he did"]} |
Case No:
2002/01181/Y5
2002/01310/Y5
Neutral Citation No
[2003] EWCA Crim 1765
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 20
th
June 2003
Before:
LORD JUSTICE PILL
MR JUSTICE GRAY
and
MR JUSTICE RODERICK EVANS
- - - - - - - - - - - - - - - - - - - - -
Between:
R
- and -
Kamlesh Kumar SONEJI
David BULLEN
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr N Valios QC and Mr C Meredith for the Appellants
Mr D Walbank for the Crown
- - - - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
Lord Justice Pill:
1.
On 24 March 2000 in the Crown Court at Southwark before His Honour Judge Focke QC, Kamlesh Soneji pleaded guilty to an offence of conspiracy to convert property and remove it from the jurisdiction knowing or suspecting it represented the proceeds of criminal conduct. On 3 April 2000 David Bullen pleaded guilty to the same offence. On 18 August 2000 Soneji was sentenced to 4½ years imprisonment, varied on appeal to 3½ years imprisonment, and Bullen to 6 years imprisonment, varied on appeal to 5 years imprisonment. On 28 January 2002, at the Central Criminal Court before the same judge, a confiscation order was imposed on Soneji. He was ordered to pay £75,350 payable within 18 months with 12 months imprisonment consecutive to be served in default. That order was varied on 7 February 2002 to payment of £30,284 with 9 months imprisonment in default. On 7 February a confiscation order was imposed on Bullen. He was ordered to pay £375,000 with 21 months imprisonment consecutive in default.
2.
A co-defendant Louis Everson was also convicted and on 18 August 2000 sentenced to 7 years imprisonment. An appeal against conviction was dismissed. On 7 February 2002 a confiscation order was imposed on him. He was ordered to pay £200,000 with 18 months imprisonment consecutive in default.
3.
Soneji and Bullen appeal against sentence, the confiscation order only, by leave of the single judge. This is yet another case in which the lawfulness of confiscation orders is challenged on the ground that they were made more than “six months beginning with the date of conviction”, a period of time mentioned in
section 72
A of the
Criminal Justice Act 1988
(“
the 1988 Act
”), as amended. Many authorities were cited to the Court. In the course of the hearing, further very recent cases were brought to the attention of counsel and it also became known that a five judge court had been convened to consider whether an earlier judgment which had been relied on was reached
per incuriam
. The Court has received extensive post-hearing written submissions from the parties. There can rarely have been such judicial output upon what would appear to be a comparatively straightforward question, that is, when, in relation to the date of conviction, a Court is entitled to make a confiscation order against the convicted person. There have been increasingly complex attempts, including submissions in the present case, to reconcile the authorities.
4.
Section 71(1)
of
the 1988 Act
provides, insofar as is material:
“(1)
Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court—
(a)
if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b)
if the court considers, even though it has not been given such notice, that it would be appropriate to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A)
The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B)
Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—
(a)
determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b)
make an order under this section ordering the offender to pay that amount.”
5.
By the
Criminal Justice Act 1993
, a new section,
section 72
A, was inserted into
the 1988 Act
. That section, as further amended and insofar as is material, provides:
“(1)
Where a court is acting under
section 71
above but considers that it requires further information before—
(a)
determining whether the defendant has benefited from any relevant criminal conduct; or
(b)
[
repealed
];
(c)
determining the amount to be recovered in his case …,
it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.
(2)
More than one postponement may be made under subsection (1) above in relation to the same case.
(3)
Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which:
(a)
by itself; or
(b)
where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,
exceeds six months beginning with the date of conviction.
(4)
Where the defendant appeals against his conviction, the court may, on that account—
(a)
postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify; or
(b)
where it has already exercised its powers under this section to postpone, extend the specified period.
(5)
A postponement or extension under subsection (1) or (4) above may be made—
(a)
on application by the defendant or the prosecutor; or
(b)
by the court of its own motion.
(6)
Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.
(7)
Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.”
6.
As already stated, Soneji pleaded guilty on 24 March 2000 and Bullen on 3 April 2000, those date being the dates of conviction for the purposes of
the Act
. Sentence was adjourned to await the outcome of the trial of Everson. He was convicted on 25 May and 18
th
August 2000 was fixed as the date when all three defendants would be sentenced. Each of the defendants was informed that there would be confiscation proceedings against him.
7.
The case was listed on 29 June 2000 for an application by counsel for Everson to break the date for sentence but the application was not pursued. Counsel for Soneji and Bullen were present at the hearing, though not counsel who had appeared at the trial or who now appear. The powers of the Court with respect to confiscation proceedings and their application to the facts of the case were considered at that and other hearings. Counsel for Everson (Mr Henry) requested a hearing in September and counsel for Soneji (though not counsel for Bullen) requested an early hearing. The following exchange occurred:
“MR HENRY:
Your Honour, may I deal with it in this way if I might; it has been helpful because all counsel have conferred this morning and have indicated that a final hearing, if it can be accommodated by the Court, or more importantly by your Honour, if it might be held in September. It is right to point out –
JUDGE FOCKE:
The answer is no.
MR HENRY:
Well your honour, it is right to point out.
MR WALBANK:
I am very sorry to interrupt but Mr Henry seems to be proceeding on a false basis about the likely date on which the hearing could be accommodated. It might have been wise, before addressing your Honour on the timetable, to have some discussions, which I have now had, with Ms Benjamin the listing officer.
I understand from her that the earliest date when the hearing could be accommodated would be some time in the two weeks after 30
th
October. That is the first occasion when your honour would be available to hear the confiscation proceedings.”
Mr Walbank told the court of what he understood to be the inherent common law power, in some circumstances, to adjourn or postpone for a period of more than 6 months from conviction but added that “to be completely safe, it would be sensible in my submission, to consider whether there were exceptional circumstances justifying delay”. Dates were fixed for the service of statements.
8.
At the suggestion of counsel for Soneji, the judge directed that the matter was to be mentioned again on the proposed date for sentence, that is 18 August. The judge said that he had “pencilled in” a date “at the beginning of November, the week of 30 October” for the confiscation hearing, a date more than four months away.
9.
On 18 August, the judge sentenced the defendants. Prior to sentence the confiscation hearing was formally postponed until after passing sentence and fixed for 30 October, that is outside the 6 month period mentioned in
section 72
A. The judge also ordered that the defendants should make any response to the prosecution’s statement upon the confiscation order. As the judge stated when he gave a further ruling on 3 November 2000, no enquiry was made on 18 August of the defendants either as to the postponement or as to the fixing of the date of 30 October. The judge added: “There was no analysis of the factors which might amount to exceptional circumstances on that occasion nor how they might separately affect each defendant”.
10.
On 30 October, the prosecution requested a further postponement until a date in the new year. The defendants Soneji and Bullen then objected to the confiscation proceedings on the basis that no proper application had been made within six months. The judge stated in a ruling on 3 November that it had been “plain, by the 18
th
August, that more information was needed in order to enable the confiscation hearing to proceed”. Nevertheless, the judge stated that “the purpose of the order [of 18 August] was not to facilitate the obtaining of further information but, more importantly, to cope with a listing problem and, as I say, listing problems are not sadly exceptional circumstances”. Having considered the authorities the judge stated that “listing difficulties are not exceptional, I am afraid they are somewhat commonplace”. The judge concluded:
“I must, however, before resorting to any common law power, be satisfied that it is not designed to circumnavigate the provisions of
Section 72
A or the intentions of Parliament. In the circumstances of this case I am satisfied that the inherent powers can be appropriately and were appropriately used, in that the direction on the 18
th
August was that an adjournment should take place because the hearing should be adjourned until the 30
th
October, pursuant to the Court’s inherent powers.
All parties, for some time before 18
th
August, knew of the listing difficulties and that the only practical solution was to fix the confiscation determination for a hearing on the 30
th
October, with perhaps the first two weeks in November being allocated for that hearing. I am satisfied that the order made directing that hearing on 30
th
October was, in all the circumstances, a just and fair order and the purpose of the order was not to facilitate the obtaining of further information but, more importantly, to cope with a listing problem and, as I say, listing problems are not sadly exceptional circumstances, but there has to be a just and fair solution to such matters and, in the circumstances, it seems to me fair to invoke, as I say, the inherent powers of the Court and, accordingly, I hold that the order made on the 18
th
August was a valid one.”
11.
In a further ruling on 8 March 2001, following the decision of this Court in
R v
Steele and Shevki
[2001] 2 Cr App R (S) 40
, the judge stated that “The standing over of the matter was not to enable more information to be gathered but it was simply because of the unavailability of a judge to hear the proceedings. I am satisfied … that the common law power is still alive and well in such circumstances”.
12.
As further refined in post-hearing written submissions, Mr Walbank’s submissions for the respondent are:
(i)
The unavailability of the judge until after the date six months from the date of conviction constituted “exceptional circumstances” within the meaning of
section 72
A(3) of the
Criminal Justice Act 1988
and, in accordance with the authority of
R v Chuni
, the requirements of that provision were therefore satisfied.
(ii)
In the alternative, if
section 72
A(3) of
the 1988 Act
was unavailable to the judge to enable him to list the confiscation inquiry according to his availability (either because that period of postponement was not fixed “for the purpose of enabling that [further] information to be obtained” or because the judge’s unavailability did not amount to “exceptional circumstances” within the meaning of the section), then the court’s inherent common law powers of adjournment were available to fill the statutory lacuna and the listing decision necessitated by the judge’s unavailability was taken pursuant to those common law powers.
(iii)
In the further alternative, once the statutory regime was “engaged” and the court was “acting under
section 71
” of
the 1988 Act
(as the Appellants concede it was, given that the defendants had been convicted of a relevant offence and the prosecution had served written notice) the court had by definition assumed jurisdiction to deal with the confiscation proceedings and it was not thereafter deprived of jurisdiction by any alleged failure to comply with either the requirements of
section 72
A or
the 1988 Act
or any common law requirement.
In support of submission (i), Mr Walbank argues that even though the judge had expressly held that there were no exceptional circumstances, listing problems not being exceptional circumstances, an analysis of the circumstances required or at least permitted a conclusion that there were exceptional circumstances for the postponement beyond the six months.
13.
There have undoubtedly been cases in which this Court has found a common law power to postpone beyond six months to exist, though a stricter view has been taken in other cases. Attempts have been made to reconcile decisions of this Court and in
Steele and Shevki
a comprehensive analysis of the situation was attempted, having regard to the statutory requirements and perceived common law powers. The Court, Judge LJ presiding, stated, at paragraph 58:
“Confiscation orders should normally form part of the ordinary sentencing process. For lack of appropriate information, this will often be impractical. If the conditions in
section 3(1)
or 3(4) [of the
Drug Trafficking Act 1994
] are satisfied, and within six months of conviction, the court may decide that the determination should be postponed. Unless the circumstances are exceptional this should not extend beyond six months after conviction. These decisions involve the court’s discretion, judicially exercised when the statutory conditions are present, taking full account of the preferred statutory sequence as well as the express direction in the statute that save in exceptional circumstances confiscation determinations should not be postponed for more that six months after conviction. So far as practicable, adjournments which would have the effect of postponing the determination beyond that period, or in exceptional cases, beyond the period envisaged when the decision to postpone was made, should be avoided. Nevertheless when the circumstances in an individual case compel an adjournment which would have this effect, then whether or not the information gathering process has been completed, it may be ordered, for example, to take account of illness on one side or the other, or the unavailability of the judge, without depriving a subsequent order for confiscation of its validity,”
A broad view was thus taken of what could be exceptional circumstances, the lengthy trial of a co-accused being given as an example at paragraph 33. In the earlier case of
Cole
(unreported 22 April 1998), Judge LJ again presiding, it was held that the illness of the judge could amount to an exceptional circumstance.
14.
In
R v Sekhon
[2002] EWCA Crim 2954
a comprehensive analysis was conducted, Lord Woolf CJ presiding. It was concluded (paragraph 29) that “we would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure”. The Lord Chief Justice added, at paragraph 37, that “the strict compliance with procedural requirements of this kind [postponement of confiscation proceedings] would not normally be expected to go to jurisdiction”. Failure formally to postpone the confiscation proceedings until after sentence was, however, held to be a requirement going to jurisdiction (paragraph 64).
15.
More recently in
R v Ruddick
2003 EWCA (Crim) 1961, Rose LJ, Vice President presiding, Morison J, giving the judgment of the Court, stated that
Sekhon
“is, and was intended to be, an authoritative ruling on the correct approach to the consequences of a breach of the procedural requirements of the legislation, and
section 72
A in particular”. The Court then made its own very detailed statement of the principles which are to be derived from
Sekhon
. These included, at paragraph 30(3)(c):
“Will a failure to hold a forfeiture hearing within 6 months make any forfeiture order a nullity? If without exceptional circumstances the defendant had not had a forfeiture order made against him within 6 months of the date of postponement, then in our view no such order could lawfully be made. The time limit is there to protect the defendant from unfairness through justice being unduly delayed. Like other limitation periods, Parliament has intended a cut-off date which, subject only to exceptional circumstances, entitles a defendant to be free from the risk of further punishment. The fact that the court is given a limited discretion to extend time beyond that date [‘exceptional circumstances’] supports this view. What are exceptional circumstances may well include administrative matters such as court availability, and judge and defendant availability. But what is ‘exceptional’ is not a matter that can be, or should, be further defined.”
16.
It was in
R v Simpson
[2003] EWCA Crim 1499
, that a five judge court, Lord Woolf CJ presiding, considered, amongst other things, the submission that the decision in
Sekhon
should not be followed because it was contrary to the earlier decision of the Court in
R v Palmer
[2002] EWCA Crim 2202
. The Court held that the law had been misunderstood and misapplied in
Palmer
and that the judgment in
Sekhon
should be applied.
Palmer
was a case in which defective notices under
section 72
of
the 1988 Act
had been served by the prosecution, a point that does not arise in the present case. In was held in
Simpson
that any defects in the notice did not deprive the trial judge of jurisdiction.
17.
We heard considerable argument as to whether, when postponing the confiscation hearing, the judge was acting under
section 72
A or at common law. In his rulings after 30 October, he claimed to have been exercising common law powers but Mr Valios QC, for the appellants, draws attention to the judge’s acceptance that on 18 August more information was needed to enable the confiscation hearing to proceed and submits that, in those circumstances, when the judge postponed that hearing until after sentence he inevitably engaged the statutory provisions. He submits that a common law power to adjourn is only available once the procedure in
section 72
A has been complied with, that is postponement of the determination to a date outside the statutory six month period due to exceptional circumstances.
18.
The statutory provisions not having been complied with, the confiscation orders must be quashed, it is submitted. Whatever was said at a later stage, the purpose of the prosecution application on 18 August 2000 was to postpone the confiscation process in order that further information could be obtained.
19.
In
R v Chuni
[2002] 2 Cr App R 371
, the judge who had tried the defendant and sentenced him was not available due to illness and another judge adjourned the confiscation hearing to a date more than six months after the conviction. The case was a complicated one and the defendant consented to the adjournment. Gibbs J stated:
“It is in our view plain from the decision in
Shevki
and the detail of the passage actually quoted from that decision that there could be no lawful postponement (a) unless there was an actual judicial decision to that effect and (b) if the judicial decision resulted in a postponement beyond the six month period, unless exceptional circumstances existed.
If those conditions were satisfied, was it necessary that the judge making the decision should use the words “exceptional circumstances” in order to render the decision lawful, or could it be enough that the judge relied on proper reasons and that those reasons in fact reflected exceptional circumstances whether that phrase was used or not?
Our answer is that, despite the absence of the words “exceptional circumstances” from the decision, the decision was capable of being lawful under
the Act
. It was lawful provided that a real judicial decision was made on good grounds and that those grounds were capable of, and did amount to, exceptional circumstances. In our judgment there were exceptional circumstances to be found in the reasons given by the judge. It is important to note that the postponements or adjournments were all with the consent of the appellant, as we have already observed. In the vital hearing of March 1999 it is true that the appellant was not present, but it is plain that counsel was instructed on his behalf, but as the decision in the case of
France
indicates, it is an important matter to weigh in considering whether exceptional circumstances existed. In our judgment it is necessary, in deciding the presence or otherwise of exceptional circumstances, to consider the purpose of the legislation. The legislation is plainly intended to protect a defendant in avoiding prejudice to him caused by undue delay in determination. If a defendant’s own interests dictate that the matter be postponed in order for him to obtain further information and make further enquiries, and if he indeed specifically requests an adjournment for that purpose, then that, in our view, is a strong indication that the circumstances are exceptional. In such a case the delay, assumed by the statute as being damaging to his interests, proves in fact quite the reverse. It is necessary in furtherance of his interests. Thus it represents an exception to the statutory assumption. We are satisfied that the judge, in postponing the matter in March 1999 for a period which took it beyond the six month period, was acting lawfully.”
20.
Until the insertion of
section 72
A, a confiscation order, if it was to be made at all, had to be made before “sentencing or otherwise dealing with the offender” (
section 71(1)
). That requirement was to an extent relaxed by the provisions of
section 72
A. It has been held that since the statutory relaxation in
section 72
A has been introduced there is also an inherent common law power to adjourn beyond six months. That the relaxation is a limited one has however been reaffirmed. At paragraph 27 in
Sekhon
Lord Woolf CJ stated:
“In relation to the procedural requirements which Parliament has imposed it is possible fairly readily to come to certain conclusions. These are as follows:
i)
Since
the 1988 Act
was passed, Parliament has been attaching increasing importance to courts being in a position to make confiscation orders. For that reason it has relaxed the requirements of the order having to be made as part of the original sentencing process. In
the 1988 Act
in its unamended form, the court was unable to proceed to sentence until the court had gone through the procedural steps and dealt with confiscation. The subsequent amendments gave the court power to adjourn sentencing but care was taken to specify the limits on the power to postpone its decision to order confiscation. (See
S.28
of
the 1993 Act
and the terms of
S.2
A of
the 1988 Act
inserted by
S.28
.) This process was continued by the 1995 Act which extended the court’s powers.
ii)
Parliament was intent on ensuring that wherever practicable the process of making a confiscation order and sentencing should be linked. It can be readily understood why Parliament should have adopted this course. After all, it is important that the defendant should know as soon as practicable what are the consequences to him of his conviction. Parliament, therefore, when it did relax the requirements did require the court to be satisfied that if it was to grant a postponement or extension there were ‘exceptional circumstances’ to justify this. (see
S.72
A(6))”
21.
In
Steel and Shevki
, Judge LJ, at paragraph 33, stated that the court “may not specify a period which ‘exceeds six months beginning with the date of conviction’ unless satisfied that the circumstances are ‘exceptional’.” The date of conviction remains “starkly relevant”. In
Ruddick
, Morison J stated that “In the absence of ‘exceptional circumstances’ forfeiture cannot be postponed beyond six months.” In
Chuni
, it was stated that there could be no lawful postponement beyond the six month period “unless exceptional circumstances existed”. In the earlier case of
R v Lingham
[2001] 1 Cr App R (S) 158
, relied on in later cases as establishing a more relaxed approach to postponement, it had been held that there were exceptional reasons for further postponing the proceedings (page 161).
22.
That the need for exceptional circumstances applies when the common law power is exercised was stated in
R v October
[2003] EWCA (Crim) 452. Giving the judgment of the court, Scott Baker LJ referred, at paragraph 19, to cases cited with approval in
Sekhon
“as supporting the proposition that the Crown Court retains a general power to postpone or adjourn confiscation proceedings for a period limited only by its own discretion as to whether or not there are special circumstances … .” Scott Baker LJ did refer, at paragraph 22, to an exercise of common law powers “to avoid falling foul of the rule that save in exceptional circumstances the confiscation inquiry must take place within six months of conviction and that an order for postponement cannot be made after the lapse of six months from conviction”. However, the Court’s conclusion, stated in paragraph 27, was:
“On our analysis what happened on 29 January 2001 was that the court exercised the common law power that we have identified earlier in this judgment. The fact that the judge may have thought he was making an order under
section 3
[of
the 1994 Act
] is nothing to the point. What matters is that he exercised his discretion to extend the time for the confiscation proceedings for a period of six months because there were exceptional circumstances. The judge was told that the trial of Bravo was still outstanding and that there were additional defendants involved. Also, there were further investigations in Luxembourg that were incomplete. Mr Casey, who appeared on both occasions for the appellant, expressed uncertainty about whether the incomplete investigations could amount to exceptional circumstances but said that he could not argue against the other point. The court accordingly exercised its powers under the common law, the appellant not yet having appeared to be sentenced, but applied the test prescribed by
section 3
.”
23.
The requirement for exceptional circumstances has thus been imported into the exercise of the common law power. (See also general statement in
Ruddick
cited at paragraph 15).
24.
Thus whether a power to postpone beyond six months from conviction is purported to be exercised under statutory powers or common law powers, there must be a finding of exceptional circumstances. A broad approach may be taken to the question of what may amount to exceptional circumstances (
Steele and Shevki
) and the expression “exceptional circumstances” need not be used (
Chuni
) but specific consideration of the reasons for postponement and a conclusion following that consideration which amounts to a finding of exceptional circumstances are required.
25.
What happened in this case on 29 June has been set out at paragraphs 7 and 8 of this judgment. In circumstances where two of the three defence counsel had requested an early hearing, prosecuting counsel informed the Court that, having spoken to the listing officer, the earliest date when the hearing could be accommodated would be the weeks after 30 October. That date was pencilled in by the judge. Given the importance attached by Parliament and the courts to the link between confiscation order and sentencing, there was no such enquiry as could justify a finding that exceptional circumstances had been established. The say-so of the listing officer is insufficient. That is not a criticism of the listing officer but a recognition of the need for judicial scrutiny of the circumstances before a finding of exceptional circumstances can properly be made. There is no evidence of any enquiry from 24 March 2000 onwards, into whether a space could be found, during the six month period, for a confiscation hearing.
26.
When the judge gave his ruling on 3 November 2000, that is after the six months had elapsed, he acknowledged, with admirable candour if we may say so, that on 18 August when the earlier decision was confirmed, no enquiry was made of the defendants as to the postponement and that there had been no analysis of the factors which might amount to exceptional circumstances. In his later rulings, the judge also candidly acknowledged, more than once, that there were not exceptional circumstances and to go behind that judicial finding would create a sense of injustice. Even if the judge’s finding may be construed as making a general point that listing difficulties are not an exceptional event, so that it might be said that the use of the expression was not itself fatal, the absence of any judicial enquiry and finding upon the circumstances meant that the requirement was not satisfied.
27.
Failure to address the question whether the circumstances could properly be described as exceptional and to make a finding to that effect is in our judgment fatal to the upholding of these confiscation orders. We would respectfully seek to sustain the principle that confiscation orders should not be quashed for mere defects in procedure. To give effect to the requirement that there must be exceptional circumstances, and if the expression is not to be a mere incantation, however, enquiry into the circumstances and the possibility and feasibility of a timely hearing, is required. The failure to address the question whether the general time limit of six months could be met, and the accompanying failure to find exceptional circumstances, was not in the same category as the defect in
Palmer
. To overlook these failures would be to nullify the statutory intention upheld in the cases. It is unfortunate when a confiscation order has to be quashed for defects such as these but it does not serve “the interests of justice and thus the public”, to adopt the expression used by Lord Woolf CJ in
Sekhon
, if the requirement for the existence of exceptional circumstances to justify a postponement beyond six months, is just ignored.
28.
Even if, contrary to the views expressed, the existence of exceptional circumstances is not invariably a pre-requisite of the exercise of the power to postpone or adjourn beyond six months of conviction, any exercise of the power must recognise, in the light of the authorities, the importance of promptness and the consequent need for a judicial appraisal of the circumstances, including those which it is suggested justify delay. A threshold of difficultness must be crossed. In this case, the lack of enquiry into listing difficulties following conviction and on 29 June, when the date of 30 October was pencilled in, and the lack of analysis of the situation then or, as acknowledged by the judge, on 18 August make it unfair to uphold orders eventually made in early 2002.
29.
The appeal is allowed. On the facts of this particular case, the confiscation orders cannot be upheld and must be quashed. | {"ConvCourtName":["Crown Court at Southwark"],"ConvictPleaDate":["2000-03-24","2000-04-03"],"ConvictOffence":["conspiracy to convert property and remove it from the jurisdiction knowing or suspecting it represented the proceeds of criminal conduct"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southwark","Central Criminal Court"],"Sentence":["Kamlesh Soneji: 4½ years imprisonment, varied on appeal to 3½ years imprisonment","David Bullen: 6 years imprisonment, varied on appeal to 5 years imprisonment","Kamlesh Soneji: Confiscation order £75,350 (varied to £30,284) with 12 months (varied to 9 months) imprisonment consecutive in default","David Bullen: Confiscation order £375,000 with 21 months imprisonment consecutive in default"],"SentServe":[],"WhatAncillary":["Confiscation order"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["appeal against sentence"],"AppealGround":["confiscation orders made more than six months after date of conviction; no exceptional circumstances found to justify postponement"],"SentGuideWhich":["section 72A of the Criminal Justice Act 1988"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["The confiscation orders could not be upheld because the statutory requirement for a finding of exceptional circumstances to justify postponement beyond six months was not satisfied"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Case No:
200400898/A6
Neutral Citation Number:
[2004] EWCA Crim 1795
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Wednesday, 9th June 2004
B E F O R E:
LORD JUSTICE JUDGE
(Deputy Chief Justice of England and Wales)
MR JUSTICE HOLLAND
MR JUSTICE COLMAN
- - - - - - -
R E G I N A
-v-
MARK ANTHONY MARTIN
- - - - - - -
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)
- - - - - - -
MISS J KINKADE
appeared on behalf of the APPLICANT
- - - - - - -
J U D G M E N T
1.
Mr Justice Colman: On 10th December 2003 before magistrates the applicant pleaded guilty to burglary and was committed to the Crown Court for sentence under
section 3 of the Powers of Criminal Courts (Sentencing) Act 2000
. He also pleaded guilty to driving whilst disqualified and using a vehicle without insurance. He was committed to the Crown Court for sentence under
section 6 of the Powers of Criminal Courts (Sentencing) Act 2000
. In addition he was in breach of an early release licence from a total sentence of three years' imprisonment imposed at Middlesex Guildhall Crown Court on 18th April 2001 for offences of burglary and handling stolen goods. On 22nd January 2004 at the Crown Court at Blackfriars he was sentenced by His Honour Judge Pontius as follows: for breach of the licence to serve a balance of three months' imprisonment; for the burglary offence, three years and six months' imprisonment consecutive; on the driving whilst disqualified offence, six months' imprisonment consecutive and disqualified from driving for five years and an extended retest to be taken. On the third offence of using a vehicle without insurance no separate penalty was imposed. The result was a total sentence of four years and three months' imprisonment.
2.
The applicant is now aged 31. He renews his application for leave to appeal against sentence and for a representation order after refusal by the single judge.
3.
As to the first offence, the burglary, the facts may be summarised as follows. On 29th September 2001 the occupier of a property in London W12 returned home to find it had been burgled. All the drawers of a desk in an upstairs room used as an office had been pulled out. The filing cabinet had been forced and there was blood on the desk. In the bedroom it was discovered that the bay window had been smashed and clothes and jewellery had been pulled out the cupboards. Glass was all over the room. There was also blood on a light switch in the downstairs hallway and on the curtains in the living room. Items to a total value of £1,053 were stolen. A DNA profile was obtained from the blood at the scene which matched that of the applicant.
4.
As to the driving whilst disqualified offence, on 9th December 2003 the applicant was stopped by a police officer on the Uxbridge Road while driving a moped. When questioned he initially told the police that the moped belonged to a friend. A vehicle check revealed it had been stolen. The applicant was asked if he was disqualified. He replied that he was and was arrested. He made no comment in interview to all questions.
5.
In the course of his sentencing remarks the judge observed that there was to be some credit for pleading guilty, but in view of the DNA evidence it was plain that there was no defence in respect of the burglary. As to the driving whilst disqualified offence, equally it was clear that the applicant knew that he was disqualified and there was no defence.
6.
As to previous convictions, the applicant had been sentenced for burglary of homes and for driving whilst disqualified in the past on many occasions. As to burglary, in 1994 he had received a sentence of 18 months, in 1996 of 30 months and in 2001 of two years. In 1997 and 1998 on two occasions and in 2002 he had received sentences for driving whilst disqualified: periods of imprisonment ranging from two months to five years.
7.
The offences in question were committed whilst he was on licence. The probation officer reported that, although the applicant was ready to undergo drug treatment, there were concerns about his current level of motivation. The judge said he was satisfied that there was an obvious lack of commitment on his part and that the public ought to be given as much protection as possible.
8.
It is submitted that the imposition of the six month sentence for driving whilst disqualified was excessive, because, although the judge was entitled not to give credit for the plea of guilty, nonetheless the effect of a six month sentence for this offence, it being accepted that the sentence of three and a half years' imprisonment for burglary was not manifestly excessive, was to increase the overall sentence to four years, the crucial borderline, and consequently the effect of the six month sentence was to increase the actual time to be served by the applicant by the substantial period of a further six months.
9.
Having carefully considered these submissions, we are not persuaded that the totality of sentence given in this case was clearly excessive. The applicant had a seriously poor record not only for burglary but particularly for driving whilst disqualified. He had offended again and again. In the view of this Court the judge was entirely justified in imposing a sentence, notwithstanding that, firstly, he did not give credit for a plea of guilty on the driving whilst disqualified offence and, further, that the effect of his not doing so was to take the totality of sentencing up to four years and three months.
10.
In these circumstances this application is refused. | {"ConvCourtName":["Magistrates' Court"],"ConvictPleaDate":["2003-12-10"],"ConvictOffence":["Burglary","Driving whilst disqualified","Using a vehicle without insurance"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Blackfriars"],"Sentence":["Three months' imprisonment (breach of licence)","Three years and six months' imprisonment (burglary)","Six months' imprisonment (driving whilst disqualified)","No separate penalty (using a vehicle without insurance)","Disqualified from driving for five years and extended retest"],"SentServe":["Consecutive"],"WhatAncillary":["Disqualified from driving for five years","Extended retest"],"OffSex":["All Male"],"OffAgeOffence":[31],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["DNA match"],"DefEvidTypeTrial":["No comment in interview"],"PreSentReport":[],"AggFactSent":["Offence committed while on licence","Previous convictions for similar offences"],"MitFactSent":["Credit for pleading guilty (burglary)","Ready to undergo drug treatment"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Sentence for driving whilst disqualified was excessive; no credit for guilty plea"],"SentGuideWhich":["section 3 of the Powers of Criminal Courts (Sentencing) Act 2000","section 6 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Total sentence not clearly excessive","Applicant had a seriously poor record","Judge justified in imposing sentence","No credit for plea of guilty on driving whilst disqualified offence justified"]} |
Neutral Citation Number:
[2023] EWCA Crim 1016
Case No:
202201554 B3
IN THE COURT OF APPEAL, CRIMINAL DIVISION
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
MRS JUSTICE McGOWAN
T20207051
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
04/09/2023
Before:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
LORD JUSTICE HOLROYDE
MR JUSTICE MORRIS
and
HH JUDGE ANGELA MORRIS
- - - - - - - - - - - - - - - - - - - - -
Between:
JAMES WATSON
Appellant
- and -
THE KING
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Jenni Dempster KC and Sally Hobson
(assigned by
the Registrar of Criminal Appeals
)
for the
appellant
John Price KC and Nathan Rasiah KC
(instructed by
CPS Appeals and Review Unit
)
for the
respondent
Hearing date: 13 June 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
WARNING: reporting restrictions apply to the contents transcribed in this document, as specified in paragraph 3 of the judgment. 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 Holroyde:
1.
Rikki Neave was strangled to death on 28 November 1994. He was just 6 years old. On 21 April 2022 this appellant was convicted of his murder. He was subsequently sentenced to detention at His Majesty’s pleasure, with a minimum term of 15 years. By leave of the full court, he now appeals against his conviction.
2.
The appeal was heard on 13 June 2023. The court indicated that it would give its decision and its reasons in writing at a later date. This we now do.
Reporting restriction
3.
The prosecution case at trial included evidence of an alleged sexual assault by the appellant upon a 6-year old boy in 1993. We shall refer to that boy as “C”. C is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during his lifetime no matter may be included in any publication if it is likely to lead members of the public to identify him as the victim of an alleged sexual offence.
Summary of relevant facts
4.
Rikki Neave lived in the Peterborough area with his mother Ruth Neave and his sisters. The family were known to the Social Services. Rikki left their home, wearing his school uniform and a casual jacket, on the morning of 28 November 1994. He did not arrive at his school. Around 6pm his mother reported him missing. At midday on 29 November 1994 his naked body was found in a wooded area adjacent to the Welland housing estate. It had been positioned in a star shape with arms and legs wide apart, in the manner of Leonardo da Vinci’s famous drawing of the Vitruvian Man. Post-mortem examination showed that the cause of death was strangulation from behind, and that Rikki had probably died on 28 November 1994.
5.
The appellant, then aged 13, frequently truanted from school. He did so on 28 November 1994. He went that morning to the Welland estate, where his father lived. A local resident, who knew both Rikki and the appellant, saw them together, walking towards the woods. Another local resident saw the boys together around 11am, watching diggers working on a building site.
6.
Rikki’s clothing and shoes were later found in a wheelie bin in a street near where the body had been found. The clothing included Rikki’s jacket, which the pathological evidence suggested had been used to strangle Rikki.
7.
Numerous items and samples were taken from Rikki’s body and clothing for scientific examination. These included fingernail and toenail clippings, and tape lifts from Rikki’s body and from his clothing. The use of DNA analysis in criminal investigations was then in its early stages, and the tape lifts were examined only for items such as fibres or hair. Examination of the shoes by a forensic palynologist supported the proposition that Rikki had walked into the woods but had not walked out. It does not appear that the lid of the wheelie bin was examined for fingerprints.
8.
The appellant was spoken to as a witness during the initial police investigation. He told the police that he spent a short period of time with Rikki on 28 November 1994. He accompanied the police to the Welland estate in order to point out where he had seen Rikki. He did not at that stage refer to any physical contact between him and Rikki.
The prosecution of Ruth Neave
9.
In 1995, Ruth Neave was charged with the murder of her son Rikki, and with offences of cruelty to Rikki and two of his sisters. It was alleged that her cruelty towards Rikki included hitting, kicking and throttling him, and threatening to kill him. She pleaded guilty to the cruelty offences but denied the charge of murder.
10.
In 1996, Ruth Neave stood trial on the charge of murder. She was acquitted. It appears that some of the police officers who had conducted the investigation believed the jury’s verdict to be against the weight of the evidence. No further investigation into Rikki’s death was pursued for many years.
11.
A few weeks after Ruth Neave’s trial ended, the police returned Rikki’s clothing to her. She subsequently disposed of it. The police also disposed of most of the exhibits which had been recovered during the investigation into Rikki’s death. The only scientific exhibits which were retained were the tapings taken from Rikki’s clothes, samples of his blood and swabs taken from his mouth and anus.
The prosecution of the appellant
12.
Nearly two decades later, there was a full review of the evidence. The tapings recovered from Rikki’s clothing were analysed using methods which had not been available at the time of the initial investigation. DNA with a profile matching that of the appellant was found on tape lifts taken from the back of Rikki’s trousers and from a sleeve of his shirt. The evidence indicated that the DNA on the trousers had been left by contact with the appellant’s hands; the DNA on the shirt might have been the product of secondary contact.
13.
The appellant was interviewed by the police in 2015. He was arrested and further interviewed in 2016. He said that at some point during the short time when he was with Rikki, he had lifted Rikki up to that he could look over a fence and watch the diggers at work.
14.
In February 2020 the appellant was charged with the murder of Rikki. His trial, before Mrs Justice McGowan and a jury at the Central Criminal Court, suffered a number of interruptions and delays, principally caused by the Covid-19 pandemic. In all, it lasted for 57 working days over a period of more than 4 months between 17 January and 21 April 2022.
15.
It is unnecessary, for present purposes, to go into detail about the prosecution evidence. Ruth Neave was called as a prosecution witness. The defence case was that she was the likely murderer, and that the stripping and positioning of Rikki’s body was explained by her interest in the occult. The defence relied on her possession of a magazine found in her home which showed the Vitruvian Man on its front cover.
16.
The judge made two rulings which are now the subject of grounds of appeal.
The challenged rulings: (1) abuse of process
17.
It was submitted on behalf of the appellant that his prosecution was an abuse of the process of the court because the unavailability of important exhibits meant that it was impossible for him to have a fair trial. It was argued that this case fell into the first of the two recognised categories of cases in which it may be possible for an accused person to argue that his prosecution should be stayed as an abuse of the process, namely cases in which it is not possible for the accused to have a fair trial. It was not suggested (and is not suggested now) that the case fell within category two abuse of the process, namely cases in which it would offend the court’s sense of justice and propriety to be asked to try the accused (see
R v Maxwell
[2010] UKSC 48
).
18.
Ms Dempster KC and Ms Hobson, then as now appearing for the appellant, submitted that there had been serious failings in the original investigation, including a failure to interview the appellant’s foster mother until 2015. They also submitted that the failure to retain exhibits, in particular Rikki’s clothing and shoes, had hindered the expert witnesses instructed by the defence to examine DNA material and the pathology and palynology evidence.
19.
Mr Price KC and Mr Rasiah KC, then as now appearing for the respondent, submitted that the
Criminal Procedure and Investigations Act 1996
(“
CPIA 1996
”) did not apply to the original investigation, that the failure to retain exhibits did not constitute a breach of any duty, and that in any event the absence of the exhibits did not cause any unfair prejudice to the appellant.
20.
The judge reminded herself that the burden was on the appellant to show, on the balance of probabilities, that he had suffered such prejudice that he could not have a fair trial. She said that case law established that the power to stay a prosecution was to be used sparingly, and only in exceptional circumstances.
21.
The judge held that, in view of the date on which the investigation into Rikki’s death began,
CPIA 1996
did not apply, and that the only duty to retain exhibits was the common law duty, which did not extend to a continuing duty to preserve exhibits. She also held, however, that she was in any event bound to consider the consequences of the loss of relevant material in assessing whether the appellant could have a fair trial. She rejected a defence submission that the police and the CPS should have predicted a change in the law which would allow Ruth Neave to be re-tried if fresh evidence emerged, and should therefore have retained the exhibits.
22.
The judge rightly considered the issues in the case. She noted that the defence case was that the appellant did not kill Rikki, but that Ruth Neave almost certainly did. She observed that any finding of DNA or other scientific evidence of contact between Rikki and his mother would establish nothing more than contact between mother and child living in the same house. She noted also that the appellant admitted physical contact with Rikki on 28 November 1994 and provided an explanation for the presence of his DNA on Rikki’s clothing; that the defence pathological evidence accepted the prosecution case as to the likely mechanism of the cause of death; and that the defence had been able to instruct a palynologist to opine on the finding of soil from the woods on Rikki’s shoes.
23.
The judge concluded that the defence had not satisfied her that the prosecution should be stayed: although very unusual on its facts, it was not an exceptional case such that it would be an abuse of the process to allow it to continue. She refused the application, but made clear that she would keep the issue of fairness under review as the trial progressed.
The challenged rulings: (2) bad character evidence
24.
The prosecution applied to adduce evidence of three matters as bad character evidence showing that the appellant at the material time had a sexual interest in young boys and in strangulation. The application was made pursuant to
section 101(1)
(d) of the
Criminal Justice Act 2003
(“
CJA 2003
”) on the basis that each of the three matters was relevant to an important matter in issue, in that it assisted to identify the appellant as Rikki’s murderer. The prosecution did not seek to rely on the evidence as being capable of establishing any relevant propensity. It was submitted that the circumstances of the murder, and the stripping and positioning of Rikki’s body after his death, demonstrated a sexual interest in young boys by the killer and a sexual context to the killing.
25.
The three matters were:
i)
First, evidence that in 1993 C’s mother reported that C, then aged 6, had told her that the appellant had touched his penis and rubbed it up and down. The appellant, then aged 12, was interviewed by the police. He denied any sexual contact, but said that he had shown C how to shake his penis after urinating. No action was taken against the appellant. By the time of the trial, C himself had no recollection of this incident. The prosecution therefore wished to rely on the hearsay evidence which C’s mother could give.
ii)
Secondly, evidence of Jean Larkin, who in 1994 managed a care home in which the appellant was a resident. She said that she found in the appellant’s bedroom the carcass of a dead bird, and a catalogue containing pictures of children and babies who were not fully clothed.
iii)
Thirdly, evidence of Nicola Lawson, who had a consensual sexual relationship with the appellant when they were both aged about 14 or 15. She said that he would sometimes put his hands around her throat and throttle her during intercourse. She also reported an occasion about a year after Rikki’s death when the appellant had killed a bird and had laid the carcass on its back with the wings spread out.
26.
The application was opposed by counsel for the appellant, who argued that the evidence was inadmissible, because even taking all three matters together it did not identify the appellant as the killer; or alternatively, that it should be excluded on grounds of fairness pursuant to
section 101(3)
of
CJA 2003
.
27.
The judge ruled that evidence of all three matters was admissible. She held that it was open to the jury to find that the killing had a sexual element. If accepted by the jury as true, the evidence, which all related to events close in time to the killing of Rikki, was capable of supporting the prosecution case that the appellant was the killer. She ruled that evidence of a sexual interest in C could assist in identifying the killer. So, too, could Nicola Lawson’s evidence of an interest in strangulation during sexual intercourse and of the killing and positioning of a bird. She held that the evidence of Jean Larkin might not have been admitted if it stood alone, but it provided further evidence capable of assisting to identify the appellant as the killer and –
“… it is supported by (and gives support to) the evidence of [C’s mother] and NL.”
28.
The judge also held that the remainder of the prosecution evidence showed a case strong enough to admit the bad character evidence in support, and that the admission of the evidence would not be “bolstering a weak case”. She accepted that the evidence was prejudicial, but held that it was no more so than other relevant and incriminating evidence and that its admission would not adversely affect the fairness of the proceedings.
The appellant’s evidence
29.
The appellant gave evidence in his own defence, denying that he had killed Rikki. He said that he had been in Rikki’s company for only a few minutes on 28 November 1994, during which time he had lifted him up to look over a fence. He did not dispute the evidence that DNA matching his own profile had been found on the tapings from Rikki’s clothing, but said that it could have been deposited in a number of ways, including when he lifted Rikki up.
30.
As to the bad character evidence, the appellant denied that he had sexually assaulted C; said that any admissions he may have made in that regard were unreliable; said that his foster mother worked for a catalogue business; denied that he kept a catalogue for any sexual reason; and denied the allegations of Nicola Lawson.
31.
The defence case also relied on evidence that Rikki had been seen alive on the afternoon and evening of 28 November 1994, and the fact that Rikki’s body had not been seen by a police officer who searched the woods that night.
The jury’s retirement
32.
The judge provided the jury with written and oral directions of law, and with a route to verdict which identified the issue in the case as being whether the jury were sure that it was the appellant who killed Rikki.
33.
The jury retired to consider their verdict shortly before midday on 6 April 2022. They deliberated in all for seven days, spread over a longer period. They sent a number of notes to the judge, some of which could not be shared with counsel because they contained indications of the jurors’ current division of views in relation to their verdict.
34.
On 11 April, the judge gave the jury a majority direction. After the jury had retired to continue their deliberations, she told counsel that she would not be giving the jury a
Watson
direction (see
R v Watson and others
(1998) 87 Cr App R 1
, to which we shall return later in this judgment).
35.
Through nobody’s fault, there were a number of interruptions of the trial over the following days, including a break over Easter. The trial was resumed after that break on 20 April 2022. Towards the end of that morning, the judge informed counsel that she had received a note indicating that the jury could not reach a majority verdict. She invited counsel to reflect and said she would hear submissions after the short adjournment.
36.
At 2pm, prosecution counsel invited the judge to give the jury more time. Defence counsel invited the judge to ask the jury whether, if given more time, they would be able to reach a verdict. The judge then called the jury back into court. She thanked them for their work and concentration over many weeks, referred to the time which had been lost during the trial because of Covid and other factors, and continued:
“In fact, although you first went out the week before last, we have not actually reached the point whereby you have been in retirement for six full days yet, and that would not necessarily be thought to be a particularly long time for a case of this length and its complexity.
Now, I know that you have been working hard and I know where you find yourselves at the moment. I also recognise that probably for some of you this is going to seem quite difficult. But what I am going to do is I am going to release you now for today, I am going to ask you to come back tomorrow, at 10.30am please, and I am going to ask you to try again. Do not worry. This is not, as it were, punishment. You are not locked up or anything like that until you do reach a verdict. But obviously this is an important case, it is an old case but it is incredibly important, and if we can reach a result that is the preferred outcome. If we cannot, we cannot, and we recognise that. But I am, I am afraid, going to ask you to give it one more go in the morning.
The usual thing, please: leave it behind, do not worry about it. I know you may be frustrated, some of you may be feeling tired because I recognise it is hard work, the twelve of you trying to reach an agreement. But please leave it here for today, we will pick it up again tomorrow morning at 10.30 am, and we will try, if it is possible, to reach a verdict which can be returned. If it cannot be, it cannot be. But that bit more time might help you.”
37.
After the jury had left, the judge informed counsel that at some stage on the following day she would ask the jury whether they could reach a majority verdict if given more time.
38.
At the start of proceedings on the following day, 21 April 2022, the judge considered with counsel what reporting restrictions would be appropriate if the jury were discharged and a retrial ordered. The jury were then brought into court. The judge addressed them as follows:
“Before I ask the jury bailiff to make her promise to the court again, I just want to say this so that you understand. We have asked you to come back today so that you have got another chance, a bit more time, to see if time will make any difference. That is not to mean that there is pressure on anybody. If time is going to help you to reach a verdict, then you have got as much time as you need. If, having spent some time this morning thinking about things again, you reach the conclusion that no more is going to help, then let us know. This is not, as it were, pressure on you, you have got to do something. It is simply the opportunity to have a little bit more time if that will help you reach the decision. If it does not help, that is the end of it. All right? So spend a little bit of time thinking about that and let us know. If you need time, you can have as much of it as you need. If more time is not going to help, then let us know.”
39.
The jury retired at 10.35am. At 2.19pm they returned a majority verdict finding the appellant guilty of murder.
The grounds of appeal
40.
It is submitted on behalf of the appellant that his conviction is unsafe. Four grounds of appeal were originally put forward. The full court granted leave to appeal only on grounds 1, 2 and 4. We need not refer to ground 3.
41.
Ground 1 contends that the judge was wrong to refuse the application to stay the proceedings as an abuse of the process. Ground 2 challenges the judge’s decision to admit the bad character evidence. Ground 4 contends that the judge’s remarks on 20 and 21 April 2022 placed undue pressure on the jury to reach a verdict.
Summary of the submissions
42.
In relation to ground 1, Ms Dempster accepts that
CPIA 1996
did not apply in this case, that the burden lies on the accused to show that a prosecution is an abuse of the process, and that a stay of proceedings is a remedy of last resort. She submits, however, that the non-availability of key exhibits (in particular, the fibre tapings and nail clippings taken from Rikki’s body) meant that critical enquiries could not be undertaken. She points out that, in relation to those exhibits, the defence were denied the opportunity to utilise the advances in DNA analysis on which the prosecution relied for its case against the appellant; and the police were deprived of the ability to investigate the possibility of other suspects. Ms Dempster relies on case law establishing that, even before
CPIA 1996
, the police were under a common law duty to preserve material which may be relevant during an investigation or trial, subject to a judgement by the officer in charge of the investigation to decide what may be relevant. She argues that, in a high profile case of great seriousness, the police repeatedly breached that duty. She submits that further serious prejudice was caused by the failure of the police to conduct obvious investigations such as examining the wheelie bin for fingerprints.
43.
Mr Price submits in response that there was no breach of duty by the police but, even if there was, it caused no prejudice which could not be ameliorated by the trial process. He relies on case law showing that the court should not speculate about what missing evidence might have shown, and that a fair trial does not necessarily require scientific evidence to be available.
44.
In granting leave on ground 1, the full court suggested that the hearing of the appeal may provide an opportunity for a review of the current case law relating to submissions that a prosecution should be stayed because of the loss of evidence or exhibits, and whether references in previous cases to exceptionality indicated a free-standing legal test or simply that the likelihood that abuse of process would be made out on this ground is low. Both counsel have assisted us with submissions on those matters.
45.
In relation to ground 2, Ms Dempster submits that the bad character evidence on which the prosecution relied was very close to evidence of propensity and that the prosecution’s argument as to admissibility – based as it was on an assertion that the killing was sexually motivated – involved some circularity of reasoning. She points out that there was no evidence that Rikki had been sexually assaulted (though she accepts that the absence of direct evidence that he had been so assaulted did not prove that he had not). She argues that the evidence in relation to C was vague and related to an allegation which was wholly different from the alleged murder of Rikki; that Nicola Lawson’s evidence was not capable of supporting a conclusion that the appellant was more likely than anyone else to be the killer; that the evidence of Jean Larkin was inherently weak and unreliable; and that the judge was wrong to find that Jean Larkin’s evidence supported the other bad character evidence. She submits that unfair prejudice was caused to the appellant by evidence creating a highly emotive picture of him as a sexual offender with strange tendencies.
46.
Mr Price points out that the challenge is to the admission of the bad character evidence, not to the terms of the judge’s direction about it, and that
section 109
of
CJA 2003
required the judge to assume, when deciding admissibility, that the evidence was true. He submits that the jury were plainly entitled to find that the killing was sexually motivated and committed by someone with a sexual interest in young children; and that the bad character evidence showed the appellant to have a sexual interest in young children, and showed him to have behaved a short time after the killing in a way which was similar to unusual actions by the killer. In relation to the sexual assault upon C, Mr Price relies on admissions made by the appellant in interview. He argues that Jean Larkin’s evidence was capable of rebutting the appellant’s suggestion in interview that the incident was merely youthful sexual experimentation.
47.
In relation to ground 4, Ms Dempster points out that the trial had exceeded its estimated length by four weeks. She submits that the judge’s remarks, particularly those on 20 April 2022, created a significant risk that jurors would feel themselves under pressure to compromise their oaths in order to reach a majority verdict, especially if some were indeed feeling frustrated or tired. She criticises the judge’s references to the jury’s retirement not being thought “a particularly long time”, and to the “preferred outcome”. She submits that the judge did in fact gave a partial
Watson
direction, but fell into the error of not following the precise wording of that direction.
48.
Mr Price submits in response that a judge has a discretion as to how to deal with a note indicating jury disagreement or even deadlock, so long as nothing is said which puts any juror under pressure to reach a particular verdict. He submits that nothing in the judge’s remarks placed the jury under any pressure to return a verdict. He points out that no complaint was made by defence counsel on either 20 or 21 April 2022.
49.
We are very grateful to all counsel for their written and oral submissions. We have summarised them briefly, but have considered all the points made on each side. Our analysis and conclusions are as follows.
Ground 1, and abuse of process in cases of “missing evidence”
50.
We begin our consideration of this ground of appeal by emphasising that we are concerned here only with category 1 abuse of process.
51.
With the assistance of counsel’s submissions, we have reflected on relevant case law relating to applications to stay a prosecution as an abuse of the process on the ground that relevant evidence or exhibits have not been seized, have not been retained or have been lost or destroyed. The burden is on the accused to show on the balance of probabilities that it is impossible for him to have a fair trial. In
DPP v Fell
[2013] EWHC 562 (Admin) at [15], the granting of a stay of proceedings was described as –
“… effectively, a measure of last resort. It caters for and only for those cases which cannot be accommodated with all their imperfections within the trial process.”
52.
The principles established by the case law have recently been summarised by this court in
R v ANP
[2022] EWCA Crim 1111
at [15]-[22], and we need not repeat all that was said there.
53.
In
R (Ebrahim) v Feltham Magistrates’ Court
[2001] 1 All ER 831 (“
Ebrahim
”) a video recording which had not been seized by the police had been taped over by the time of the trial. Brooke LJ emphasised at [25] that the trial process is equipped to deal with most of the complaints on which applications for a stay are founded. He went on to say, in a passage at [27] with which we respectfully agree:
“It must be remembered that it is a commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.”
54.
In
R v D
[2013] EWCA Crim 1592 the appellant had been convicted of sexual offences committed between 39 and 63 years before his trial. He contended that he could not have a fair trial because relevant records were no longer available and relevant witnesses were no longer able to give evidence. At [14], the court emphasised that it was not the length of the delay which was of crucial importance, but rather the effect of that delay on the fairness of the trial and the safety of the convictions. At [15], Treacy LJ said this:
“In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant's case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant.”
55.
In
R v PR
[2019] 2 Cr App R 22 the appellant had been convicted of historical sexual offences which had first been investigated in 2002, when no prosecution had been commenced. He contended that he could not have a fair trial in 2018 because in the intervening years important parts of the 2002 police file had been destroyed. Fulford LJ, at [65], said this:
“It is important to have in mind the wide variations in the evidence relied on in support of prosecutions: no two trials are the same, and the type, quantity and quality of the evidence differs greatly between cases. Fairness does not require a minimum number of witnesses to be called. Nor is it necessary for documentary, expert or forensic evidence to be available, against which the credibility and reliability of the prosecution witnesses can be evaluated. Some cases involve consideration of a vast amount of documentation or expert/forensic evidence whilst in others the jury is essentially asked to decide between the oral testimony of two or more witnesses, often simply the complainant and the accused. Furthermore, there is no rule that if material has become unavailable, that of itself means the trial is unfair because, for instance, a relevant avenue of enquiry can no longer be explored with the benefit of the missing documents or records. It follows that there is no presumption that extraneous material must be available to enable the defendant to test the reliability of the oral testimony of one or more of the prosecution's witnesses. In some instances, this opportunity exists; in others it does not. It is to be regretted if relevant records become unavailable, but when this happens the effect may be to put the defendant closer to the position of many accused, whose trial turns on a decision by the jury as to whether they are sure of the oral evidence of the prosecution witness or witnesses, absent other substantive information by which their testimony can be tested.”
56.
We respectfully agree with and endorse those statements of principle by Treacy LJ and Fulford LJ.
57.
In
Ebrahim
,
at [17], the court stressed that the residual and discretionary power of a court to stay criminal proceedings as an abuse of its process was one which ought only to be employed in exceptional circumstances, whatever the reasons for invoking it. In the present case, as we have noted at paragraph 20 above, the judge quoted that reference to “exceptional circumstances”. It is a phrase often used when discussing the principles applicable to applications to stay proceedings as an abuse of the process. In our view, however, it does not indicate a free-standing legal test. Rather, it reflects the fact that the cases in which it will be possible for an accused to show that a fair trial is impossible, and in which it is appropriate to grant a stay, are very rare. The surrounding circumstances may not always be such as to justify a label of “exceptional”: after all, particularly in cases involving historical allegations, the loss or destruction of relevant evidence or exhibits, whilst always regrettable, is far from unknown. But the fact that such a label may not be apposite will not in itself be a bar to a stay of proceedings if – very unusually – the accused can show that the effect of the absence of evidence or exhibits is to make it impossible for him to have a fair trial.
58.
In each of the cases to which we have referred above, the failure to retain evidence or exhibits breached a duty under
CPIA 1996
. In the present case, no such duty arose, having regard to date on which the police investigation began. The police therefore owed only the limited common law duty on which Ms Dempster relies.
59.
In
Ebrahim
it was held at [16] that a court considering an application to stay proceedings in a “missing evidence” case should first consider the extent of any duty upon the prosecutors to obtain and retain the evidence in question:
“If they were under no such duty, then it cannot be said that they are abusing the process of the court merely because the material is no longer available. If on the other hand they were in breach of duty, then the court will have to go on to consider whether it should take the exceptional course of staying the proceedings for abuse of process on that ground.”
60.
However, in
Clay v South Cambridgeshire Justices
[2015] RTR 1 (“
Clay
”) at [46]ff, Pitchford LJ (with whom Burton J agreed) doubted that approach:
“46.
With great respect to the court in
Ebrahim
, it seems to me that the question of whether the defendant can have a fair trial does not logically depend on whether anyone was ‘at fault’ in causing the exigency that created the unfairness.
47.
If vital evidence has as a matter of fact been lost to the defendant whether occasioned by the fault of the police or not, the issue is whether that disadvantage can be accommodated at his trial so as to ensure that his trial is fair.
48.
There is in this respect no difference between an unfair trial occasioned by delay and an unfair trial occasioned by the loss of vital evidence. …”
61.
Mr Price suggests that the statements in
Ebrahim
and in
Clay
can be reconciled because, he suggests, it is very difficult to conceive of circumstances in which there is evidence sufficient to prove an accused’s guilt but the loss of evidence, through no fault of the police or prosecution, can cause such prejudice to the accused as to make a fair trial impossible. We are not persuaded that that is correct, particularly when one considers cases in which many years have elapsed between the alleged offences and the first complaint, so that crucial evidence may have been lost long before the police are involved. But in any event, with all respect to the court in
Ebrahim
(a decision of the High Court which is not binding upon us), we regard Pitchford LJ’s approach as clearly correct. As we have emphasised, we are concerned here with a type of category 1 abuse of process, where the court must focus on the effect on the fairness of the trial of evidence no longer being available. Cases in which there has been no breach of duty, but a fair trial is impossible because of missing evidence, will be very rare; but we cannot say they will never occur. The staying of proceedings because of a category 1 abuse of the process is not a punitive jurisdiction, and we can see no reason why the exercise of it should necessarily be dependent on a finding of fault. Negligence or deliberate breach of duty on the part of the police or the prosecution may of course be relevant to the court’s exercise of its discretion, but it is not a necessary prerequisite of it.
62.
Applying those principles to the present case, we have no doubt that the judge was correct to reject the application to stay the proceedings. She rightly made a case-specific assessment of the effect of the unavailability of evidence, notwithstanding that there was no relevant breach of duty. It is not clear whether the judge made her decision on the basis of a test of exceptionality. If she did, we accept that she fell into error; but any such error can have made no difference to the outcome, because in the circumstances of this case the appellant plainly could not discharge the burden which lay upon him.
63.
What might have been revealed by testing which could not be carried out is, by definition, entirely speculative. The appellant cannot point to anything approaching what Treacy LJ referred to in
R v D
as “missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case”. The jury were aware of the history of the case, including the prosecution of Ruth Neave and the fact that evidence and exhibits were no longer available. Defence counsel was in the unusual position of being able to cross-examine the person whom the appellant alleged to be the likely murderer, and who had disposed of Rikki’s clothing after it was returned to her by the police. Defence counsel was also able to make submissions to the jury about the difficulties caused to the defence by the unavailability of evidence and exhibits; and the jury were directed about the relevance of delay, in terms which are not and could not be criticised. It must moreover be remembered that the prosecution had equally been deprived of the opportunity of applying modern scientific techniques to many more of the items and samples recovered in the original investigation; and it was of course the prosecution who bore the burden of proving guilt to the criminal standard on the basis of the evidence which remained available.
64.
We are therefore satisfied that the judge was correct to find that the appellant could and would have a fair trial. We accordingly reject this ground of appeal.
Ground 2: the bad character evidence
65.
Evidence of a defendant’s bad character is admissible pursuant to
section 101(1)
(d) of
CJA 2003
if it is relevant to an important matter in issue between the defendant and the prosecution; but by
section 101(3)
, the court must not admit such evidence if, on an application by the defendant to exclude it, it appears to the court that 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. By
section 103(1)
of
CJA 2003
, the matters in issue between the defendant and the prosecution for this purpose include, but are not limited to, the question whether the defendant has a propensity to commit offences of the kind with which he is charged.
66.
In the present case, the principal matter in issue between the prosecution and the defence was whether the appellant was proved to be the killer. Although there was no affirmative evidence of any sexual assault on Rikki, we accept the respondent’s submission that the jury could properly infer – principally because of the way in which Rikki’s body had been stripped of clothing and placed into an unusual and distinctive position – that whoever killed Rikki had a sexual motive for doing so and had a sexual interest in young children.
67.
That being so, evidence was admissible if it could properly be relied upon by the jury as showing that the appellant had a sexual interest in young boys, and/or that within a short time after Rikki’s murder he acted in ways which were similar to unusual actions by the killer (and which could not be regarded as “copycat” behaviour following newspaper reports of the killing, because the appellant’s case was a denial of acting in the manner alleged). Such evidence was in our view correctly relied on by the prosecution as going to the identification of the appellant as the killer, rather than as evidence of a relevant propensity. We accept that the distinction is, as Ms Dempster submitted, a fine one; but it was nonetheless a correct distinction.
68.
The evidence of C’s mother was admissible on that basis. There could be no successful objection to it based on its being hearsay, since C himself could not recall what had happened to him at a very young age, and his mother had contemporaneously reported to the police what C had told her. Furthermore, the allegation as to what the appellant had done to C was not disputed.
69.
Nicola Lawson’s evidence was admissible because it could properly be regarded as showing that the appellant had an interest in strangulation in a sexual context. It could also be accepted by the jury as showing the appellant behaving, in relation to a dead bird, in a manner similar to the conduct of the killer in relation to Rikki’s body.
70.
The evidence of Jean Larkin was admissible because it could properly support the prosecution case by rebutting the innocent explanation put forward by the appellant for handling C’s penis; because her evidence that the appellant was in possession of the catalogue could provide some support for the allegation that he had a sexual interest in children; and because her evidence of finding a dead bird provided some support for the evidence of Nicola Lawson (disputed by the appellant) about a dead bird. The judge therefore did not err in saying that Jean Larkin’s evidence supported and was supported by the evidence of the other two witnesses.
71.
For those reasons, we are satisfied that the judge did not err in admitting the bad character evidence. The weight to be given to the evidence was then a matter for the jury.
72.
Nor did the judge err in declining to exclude all or any of that admissible evidence pursuant to
section 101(3)
of
CJA 2003
: the limited prejudicial effect of adducing evidence of a few incidents during the appellant’s adolescence did not outweigh the probative value of that evidence or render the trial unfair. We would add that the judge in her directions of law rightly instructed the jury that, in relation to the incident with C and the appellant’s possession of the catalogue, they must first decide whether there was a sexual element to the killer’s acts: if not, then the evidence relating to those matters would be irrelevant and should be considered no further.
73.
We accordingly reject the second ground of appeal.
Ground 4: the judge’s remarks to the jury
74.
This was a long and complex trial, made longer and more difficult by Covid-related delays and other interruptions. It is unsurprising that the jury took a substantial period of time to deliberate. They sent notes to the judge, both before and after they had been given a majority direction, indicating that they were divided in their views.
75.
When a jury sends a note indicating what are often referred to as their current “voting figures”, it is for the judge to determine how best to proceed. Such a note may, of course, affect the judge’s decision as to when it would be appropriate to give a majority direction. Where the majority direction has been given, the precise terms of the note, and of any indication in it that the jury feel they may be unable to reach a verdict by the requisite majority, will be among the factors relevant to the judge’s decision. So, too, will be the submissions of counsel, who should generally be invited (as they were in the present case) to make submissions about what course should be taken. But in the end, the judge – who has presided over the trial, has been able to observe the behaviour and dynamics of the jury, and is in the best possible position to make the necessary assessment – must decide what is appropriate. This court will be slow to interfere with a judge’s decision unless some obvious error has been made.
76.
In the present case, the judge indicated that she would not give a
Watson
direction: that is, a direction of the sort approved by this court in
R v Watson and others
. That decision is not criticised; but it is submitted that the judge nonetheless gave what was in effect a
Watson
direction, or at any rate a partial version of it, but did so in inappropriate terms.
77.
In
R v Watson and others
a five-judge constitution of this court considered problems which had arisen as a result of the use of a form of direction approved in an earlier case,
R v Walhein
(1952) 36 Cr App R 167, which had been decided at a time when majority verdicts were not possible. The court emphasised, at p11, that jurors must be free to deliberate without any form of pressure being imposed upon them, and must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold. The court concluded that the
Walhein
direction should no longer be given, but held, at p12, that it would be permissible for a judge to direct a jury in the following terms:
“Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily, [10 of] you cannot reach agreement, you must say so.”
The court went on to say, however, that the judge had a discretion as to whether to give such a direction; that usually there would be no need to do so; and that variations which altered the sense of the direction should be avoided.
78.
In
R v Logo
[2015] 2 Cr. App. R. 17 this court emphasised that
R v Watson and others
remains binding on other constitutions of the Court of Appeal, Criminal Division. A
Watson
direction may therefore be given if a trial judge thinks it appropriate to do so in the exercise of his or her discretion. At [21]ff, the court summarised the principles as being that such a direction should only be given after a majority direction had been given and after some further time had elapsed; that there would usually be no need for such a direction; and that a judge should follow the wording in
R v Watson and others
.
79.
At [25], the court suggested that trial judges may wish to think long and hard before exercising their discretion to give a
Watson
direction. We respectfully agree with and endorse that observation.
80.
A judge who decides that it would not be appropriate to give a
Watson
direction will then have to consider what answer to give to the note received from the jury, and when to give it. Again, the submissions of counsel will be helpful, and should be invited. In some cases, it may be appropriate to ask the jury to consider amongst themselves whether, if given further time to deliberate, they believe they will be able to reach a majority verdict. In other cases, it may be better to defer the asking of such a question and instead to ask the jury to continue their deliberations. These are matters for the judge, who has the feel of the case, to assess and decide.
81.
In the present case, the very experienced judge decided, and was entitled to decide, to ask the jury to continue their deliberations for a little longer. We do not accept the submission that what she said to the jury on 20 and 21 April 2022 amounted to a partial
Watson
direction, and we therefore also reject the submission that she fell into error by departing from the precise terms in which a
Watson
direction must be given. We must nonetheless consider whether the judge’s remarks may have put pressure on some jurors to compromise their oaths.
82.
Ms Dempster particularly criticises three features of the judge’s remarks to the jury on the afternoon of 20 April: the reference to jurors possibly feeling frustrated and tired, and finding further deliberations quite difficult, which Ms Dempster submits could have caused jurors to feel under pressure to reach a majority verdict; the reference to the jury’s retirement not having been particularly long, which she submits could have caused jurors to feel that the judge thought they were not trying hard enough; and the reference to the preferred outcome, which was not accompanied by a reminder that they must remain true to their oaths and which she submits could have caused jurors to feel that inability to reach a majority verdict would be regarded as a failure.
83.
With respect to Ms Dempster’s submissions, we are not persuaded by them. In our view, the judge’s remarks that afternoon appropriately acknowledged the jury’s hard work; sought to reassure them that they were not the only jurors to spend several days considering their verdict in a long and complex case; reassured them that they would not be required to continue their deliberations until they reached a verdict; explicitly told them that a possible outcome would be that they would not reach a verdict on which a sufficient majority agreed; and released them well before the usual end of the court day so that they could return fresh in the morning and see whether “a bit more time” would help them reach a majority verdict.
84.
We accept, with all respect to the judge, that it would have been better for her not to speak of a “preferred outcome”. In the circumstances of this long trial, however, we do not think that the use of that phrase would have conveyed to the jury anything more than the obvious point that it was in everyone’s interests for the trial to conclude with a verdict, whether guilty or not guilty,
if
the jury felt able to agree upon one.
85.
In any event, the judge’s remarks on that afternoon must be read in conjunction with her remarks the following morning. Her direction to the jury, when sending them home on 20 April, was that they should leave the case behind until the following morning. The first thing the jury heard when they came back into court the following morning was a clear statement by the judge that they were under no pressure, that they were simply being given “a little bit more time” to see if that would help them to reach a decision, and that if it did not help they must let her know, and that would be “the end of it”. No specific criticism is made of those remarks, and none could be. Again, with respect to the judge, it would have been better if she had specifically reminded the jury of the need to remain true to their oaths; but that was implicit in the judge’s assurance that they were not under any pressure, that they did not have to “do something”, and that they could conclude that further time would not help them to reach a majority verdict.
86.
We would add that we see force in Mr Price’s submission that no contemporaneous complaint was made by defence counsel about the judge’s remarks.
87.
Taking the remarks collectively, we are satisfied that they could not have caused any juror to feel under any pressure to compromise his or her oath, and they do not render the conviction unsafe.
88.
For those reasons, this appeal fails and must accordingly be dismissed. | {"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2022-04-21"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Detention at His Majesty’s pleasure, with a minimum term of 15 years"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[13],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[6],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["DNA match","Witness testimony","Pathology evidence","Palynology evidence","Bad character evidence"],"DefEvidTypeTrial":["Offender denies offence","Alternative suspect theory (Ruth Neave)","Alibi/innocent explanation for DNA"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Refusal to stay proceedings as abuse of process due to missing evidence","Admission of bad character evidence","Judge's remarks to jury placed undue pressure"],"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 correctly found fair trial possible despite missing evidence","Bad character evidence properly admitted","Judge's remarks to jury did not amount to undue pressure or error"]} |
No:
200604242/C2
Neutral Citation Number:
[2007] EWCA Crim 3227
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 13th November 2007
B e f o r e
:
LORD JUSTICE GAGE
MRS JUSTICE COX DBE
DAME HEATHER STEEL DBE
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R E G I N A
v
SEHEBDEEP SINGH JOHAL
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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)
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Mr D Martin-Sperry
appeared on behalf of the
Appellant
Mr A Dowden
appeared on behalf of the
Crown
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Judgment
1.
LORD JUSTICE GAGE: Sehebdeep Johal is now aged 25.
2.
On 24th July 2006 at Isleworth Crown Court he was convicted of violence disorder, count 1, aggravated burglary, count 2, wounding with intent to do grievous bodily harm, counts 3 and 4 and criminal damage, counts 5 and 6. He was convicted by the jury on a majority in each case of 10 to 2. On 18th August 2006 he was sentenced to a total of 5 years and 6 months' imprisonment.
3.
There was one co-accused who appeared at the trial, that was his brother, Harkamaldip Johal. He was the younger brother. He was convicted by a majority of 11 to 1 on all counts and sentenced to a total of 7 years and 6 months' imprisonment. He was also made the subject of a licence condition in the same way as the appellant has been.
4.
This appellant now appeals by leave of the Full Court. It is right that we say at once that the Full Court gave leave to appeal on one ground and one alone. There were other grounds but in the course of giving the judgment of the Court, Davis J said of those:
"In presenting his case, Mr Martin-Sperry today has abandoned three of the four grounds alluded to in his written grounds. He had complaints about the way in which the evidence of DC Osler was dealt with concerning a complaint by Harpreet Kaur of intimidation by Inderpal Chana and also alluded to the possibility of wishing to adduce fresh evidence in that regard. He has not pursued that application to adduce fresh evidence and has accepted that there is nothing really in the point about the DC Ostler. He also in his grounds had alluded to what was said to be a failure by the trial judge to give sufficient directions as to separate treatment between the case of the brother on the one hand and this applicant on the other. It is clear, however, from the summing-up read as whole that the trial judge had given sufficient directions in that regard."
We mention that, at this stage, because although there is one ground before us on which leave was given, at some stage during the course of his submissions to the Court, Mr Martin-Sperry, who appears on behalf of this appellant, sought, in a skillful and attractive way, to resurrect the other grounds of appeal. We reject that invitation to deal with them. He has not got leave for them and they play no part other than as a final long stop to his ground of appeal, Mr Martin-Sperry invites this Court to say that this is one of those cases where it is has a "lurking doubt" as to the correctness of the conviction. We deal with that as and when we come to it if necessary.
5.
As will be apparent, the issue in the case was one of identification. The evidence disclosed the following facts. On the evening of 26th December 2005 the Chana family was attacked in their home at 29 Marlborough Road, Southall, in London. The attack was mounted by about 20 youths armed with various weapons including a sword, a knife, a baseball bat and sharpened hockey sticks. Inderpal Chana was stabbed (count 3). His mother, Resham Kaur Chana, was hit on the head with a hammer wrapped in a cloth (count 4). Substantial damage was inflicted on the Chana family car (count 5) and window frames of the house were smashed (count 6). The attack was witnessed by Inderpal's sister, Amarjit Kaur Chana. The motive for the attack appears to be, and was said by members of the Chana family, to have been a dispute over a burn on the carpet at 18 Marlborough Road, a house let by the Chana family to the Bajwa family of whom the appellant and his brother were members.
6.
All the members of the Chana family believed the Bajwa family consisted of parents and an older and shorter son, named Navjit (he is the appellant), and a younger and taller son, named Kuljit (he was the co-accused) and a 15-year old daughter, Harpreet.
7.
It was not in dispute that the appellant and Kuljit, as we shall refer to the co-accused, were in reality, as we have said, the appellant, Navjit, and his brother the co-accused Harkamaldip Johal, Kuljit. They were Bajwa nephews who lived with them at 18 Marlborough Road.
8.
The prosecution case was that the appellant and his co-accused were jointly responsible for organising and carrying out the attack. It was the defence case, so far as the appellant is concerned, that he was not present at the time of the attack on 26th December 2006. He said he had no knowledge of it. He had an alibi for that day, saying that he had been at home all day with his wife who was at the time pregnant. As we have said, the issue for the jury was whether they were sure that the appellant had been correctly identified as a person who was jointly involved in this attack.
9.
The appeal, therefore, in ground 1, for which leave has been given, centres on the judge's directions in his summing-up in respect of the identification evidence.In a little more detail the evidence before the jury was as follows. Inderpal Chana said that the major incident on 26th December 2005 was preceded by an incident the previous day which involved Kuljit. He and Kuljit had a confrontation in the street on that day. The incident ended with a threat made by Kuljit that "he would call his boys" and he, Inderpal, should do the same. Inderpal said that he immediately reported the matter to the police.
10.
The following evening he opened the front door to his house and was confronted by a group of young men. The disturbance then took place which forms the basis for the counts on the indictment.
11.
Inderpal said that he thought that Kuljit, whom he described as the younger son, had a knife and the appellant, who he described as the older brother, had a stick, which he believed the appellant had used to hit his mother. On 20th January he went to the police station and he identified the appellant and Kuljit as the attackers, although at the time of his statement he had not known the names of the brothers. He denied a suggestion that was put to him in cross-examination that Amarjit, his sister, had had a relationship with Kuljit and that Kuljit had spurned her offer of marriage. He also denied that he had on two occasions threatened Harpreet, the sister of the accused.
12.
Resham Kaur Chana gave evidence. She said that she had witnessed the incident between Inderpal and Kuljit on the previous day, that is the 25th December. The Following day, when the major incident occurred, she said that she recognised Kuljit as being one of the men who had forcefully entered her house and that he done so in company with a person whom she described as a "fat man". At trial she gave no evidence identifying the appellant.
13.
Amarjit Chana, the sister of Inderpal, gave evidence. She said that she too had witnessed the incident between Inderpal and Kuljit on 25th December. Her evidence about the incident on the following day was as follows. She said she saw Kuljit, or the man she knew as Kuljit and a "chubby fat man" breaking through the front door. She said that she also saw the appellant, whom she knew as Navjit, standing in the background, a bit behind his brother. However, she said that she had only seen the appellant for a few seconds. She said that she had been about 2 metres from the front door, and saw Kuljit stabbing her brother and the chubby man hitting her mother. She said she had regularly seen both the accused in Marlborough Road before the incident. She also said that she had attended an identification procedure on 28th January 2006 and that she identified the appellant and Kuljit as the people who had forcibly entered her home.
14.
In cross-examination it was suggested to her by Mr Martin-Sperry that in a statement that she had given to the police shortly after the incident, she had told them that Kuljit had entered the house first and that her view had been partially obstructed by the fat man of the other men outside. She told the police that she would therefore not be able to identify those men as she did not see their faces.
15.
In response to that cross-examination she said that, after she had made her statement, she had remembered that she had in fact seen the appellant for a couple of seconds outside the house and that the fat man had not been standing in one position all the time. She said she did not go back to the police station to correct her statement because the family were trying to forget about the incident. She also thought that she had done what was required of her by identifying the appellant at the identification procedure.
16.
At interview the appellant made no comment responses to all the questions asked of him and handed in a handwritten statement which foreshadowed the evidence that he was subsequently to give.
17.
He gave evidence. He said that on 26th December 2005 he had been looking after his wife at home who was experiencing a difficulty pregnancy. He recalled that his brother, Kuljit, had asked him to accompany him to a party that night but he declined that invitation. His brother gave him a DVD film which he and his wife had watched in their bedroom between 6.30 in the evening and 9 o'clock. He said that he knew the Chana family and would often say hello to them in the street. He said he had never had an argument with them and he knew nothing of a dispute with them over a burnt carpet. He also knew nothing of his brother's dispute with Inderpal.
18.
The appellant's wife, Amandeep Kaur, and his cousin, Harpreet, gave evidence confirming the appellant's account. His wife said that they had watched an Indian film in their bedroom that evening and Harpreet said that she had been in the house with the appellant all day. However, she also said that she had gone to sleep at about 8 o'clock, namely the time of the attack.
19.
As we have said, there is one ground of appeal. It is that the judge failed to draw to the attention of the jury the specific weaknesses in the identification evidence. Mr Martin-Sperry submits that the weaknesses were not small divergences but were central points. The judge ought, he submits, to have listed each of these specific weaknesses identifying them for the jury. As it was, his submission is that the jury had to pick its way through the evidence and sort out for itself what were the weaknesses.
20.
In his skeleton argument Mr Martin-Sperry has relied in support of these submissions to the decision of this Court in
R v Fergus
(1994) 98 Cr App R 313
, where it is said in the judgment of the Court at page 318:
"Generally, it has often been said that it is not essential that a trial judge should rehearse all the arguments of defence counsel:
McGreevy v Director of Public Prosecutions
... That is so. But in a case dependent on visual identification, and particularly where that is the only evidence,
Turnbull
makes it clear that it is incumbent on a trial judge to place before the jury any specific weaknesses which can arguably be said to have been exposed in the evidence. And it is not sufficient for the judge to invite the jury to take into account what counsel for the defence said about the specific weaknesses. Needless to say, the judge must deal with the specific weaknesses in a coherent manner so that the cumulative impact of those specific weaknesses is fairly placed before the jury."
In our judgment, there is little to choose between what is said in that case and what Steyn LJ, giving the judgment of the court said in
R v Pattinson & Exley
[1996] 1 Cr App R 51
. That decision is relied on by Mr Dowden who appears on behalf of the respondent. The passage most relevant is one that appears at page 56E of the judgment in which Steyn LJ says:
"The real question perhaps is did the summing-up sufficiently expose to the jury the weaknesses and the dangers of the evidence in general and in the circumstances of the particular case?"
21.
Mr Martin-Sperry has referred to the background to the case, namely one which involved two co-accused, both of whom were brothers, both of whom Mr Martin-Sperry stresses were completely different in their life-style, in what they did on the evening and their personal circumstances. Mr Martin-Sperry delicately but firmly points to the fact that his client's way of life was rather more respectable than that of his brother. Be that as it may, the main point that he relies on are the specific weaknesses which he submits appear in the evidence of the witnesses.
22.
So far as Inderpal Chana is concerned, he submits that there is a striking difference between his evidence and that of his mother's and his sister because both of them described "a chubby man" as striking his mother, whereas Inderpal describes the appellant as the one who struck his mother. Furthermore, he submits that there is further weakness in Inderpal's evidence because there is an internal inconsistency in his witness statement. In the earlier part of his witness statement he describes the appellant as the one who struck his mother; in the later part of the witness statement he describes the chubby man, the larger man as the person who struck his mother. Accordingly it is submitted those are two striking and specific weaknesses in his evidence. He further submits that when Inderpal came to identify the two accused, he may well have contaminated, that is caused the other two witnesses wrongly to identify this appellant.
23.
So far as Amarjit is concerned, Mr Martin-Sperry lists a number of specific weaknesses in relation to her evidence. Principally he relies on the fact that she, in her statement, was silent about the part played by the appellant in the attack. She does not describe him as doing anything, indeed she does not describe him as being there. Submits Mr Martin-Sperry, she goes further than that in her witness statement. In that statement she said she could not identify any of the other persons apart from Kuljit and the chubby man. However, when it came to her giving evidence, her evidence was that the appellant was a bystander to the attack on her brother and her mother. It is submitted that this had not been mentioned by her before, although she had attended an identification parade and had identified the appellant. He also submits that she said in evidence something which had not been said before, namely that she knew the appellant by sight and by name but she had not identified him in her witness statement. So it is submitted that there is a real possibility that there may have been some contamination between the evidence of her brother and her evidence. That, it is submitted, may have taken place when all three of the witnesses, Inderpal, Amarjit and her mother attended for the identification parade and were put together in one room.
24.
Bearing in mind all these specific weaknesses it is submitted that the judge ought to have given a careful direction drawing them properly to the attention of the jury. The fact that he did not means, it is submitted, that the conviction is unsafe and , as we have said, even if the Court is minded to take the view that the summing-up was adequate, there remains a lurking doubt as to the correctness and safety of the conviction.
25.
There can be no doubt that there was a conflict between the evidence of Inderpal, on the one hand, and, on the other, of his mother, Resham, and his sister, Amarjit, as to what, if anything, the appellant did on that evening. All three said in evidence that he was present. There is also no doubt that in her witness statement Amarjit made no mention of the appellant being present on the evening of the incident. Not only that, despite the fact that she knew the appellant by sight and by name, as she said in evidence, she said in her witness statement, positively, that she could identify none of the other members of the group other than the co-accused and the chubby man. These were weaknesses and specific weaknesses in the identification evidence.
26.
However the judge in his summing-up mentioned both matters. As to the former, although his recital of the evidence makes it clear that there is such a conflict the judge at no stage drew attention to the fact that the jury might think it was a specific weakness.
27.
So far as the second matter is concerned, the judge put this before the jury by reciting Mr Martin-Sperry's cross-examination of Amarjit. He said at page 35C of the summing-up:
"There was important cross-examination on behalf of Mr S Johal by Mr Martin-Sperry.
She was referred to her written statement [we interpolate Amarjit]. This is the statement she made to police shortly after the incident took place and she was referred to a passage in that statement which says this: 'Kuljit at first' this is alleged to be Mr H Johal, 'was partially obstructed by the chubby male and he was blocking the view of the other males involved of whom I would not be able to identify, as I did not see their faces at all.'
'So,' was the question, 'if you say that you did not see anybody other than Kuljit and in particular did not see Mr S Johal at the scene at all,' although she did not say that, she said: 'I did not see their faces at all, 'how is it you identify him now from the witness-box?"
The judge then went on to give her explanation for that matter.
28.
It seems to us that in that passage the judge was making it perfectly clear to the jury that it could and should consider this criticism carefully, namely the criticism which was made by Mr Martin-Sperry of that witness.
29.
So far as the other matter is concerned, the judge had given, in general terms, the standard direction which is given to juries in identification cases. He reminded them of the risk of injustice. He reminded them of the dangers of a witness recognising somebody who he or she says she knows. Mr Martin-Sperry submits this was not in reality a recognition case, although as the evidence turned out all the witnesses, at least Inderpal and his sister, Amarjit, both said that before the incident they had seen the appellant, and in Amarjit's case, the appellant himself in evidence accepted that he had seen her in the street.
30.
We have no doubt that this was not a case where the weaknesses in the identification evidence were such as ought to have caused the judge to remove the case from the jury at the close of the prosecution case. That submission is made in the skeleton argument on behalf of the appellant but was not specifically pursued before us this morning. It would, in our judgment, have been better if the judge had drawn the attention of the jury to the fact that there were specific weaknesses, nevertheless, the jury would have been well aware of what they were and of the inconsistencies, both between the witnesses internally and between Amarjit's evidence and that of the other witnesses. The judge had given them, as we have said, the main thrust of the identification direction in the first part of his summing-up on this point. He warned the jury specifically about the short time that Amarjit had the appellant in her sight. He warned the jury that the witnesses had given different accounts of how long the incident lasted. He warned them about the danger of mistaken recognition. He also, in a later passage, reminded the jury that Amarjit had given no description of the appellant in her witness statement and he reminded them of the inconsistency of her statement in relation to Inderpal's evidence. Of that he said, when dealing with the identification evidence, at page 39H of the summing-up:
"Now, so far as the identification procedure is concerned that Amarjit underwent. I just remind you that she did not ever give a description of Mr S Johal to the police, prior to the identification procedure in relation to Mr S Johal and what has been argued to you it is a matter for you, is that the identification officer might not have shown that parade to her because there had been no -- or, perhaps, should not have done so because there had been no previous description given of, Mr S Johal, by Amarjit to the police. It is a matter for you as to how reliable you think that identification evidence is."
Taken as a whole, in our judgment, the summing-up was quite adequate to point out the weaknesses in the identification evdence to the jury. Essentially the points made on behalf of the appellant are jury points which we have no doubt were made and forcibly made by Mr Martin-Sperry in the course of his final speach. In the circumstances, we are quite satisfied that the verdicts of the jury are safe.
We have considered the question of whether there is a lurking doubt and we have no hesitation in rejecting that submission as well. For those reasons this appeal must be dismissed.
31.
MR MARTIN-SPERRY: There was a small matter of detail in my Lord's judgment. I was tempted to be at my feet at that stage. Different courts have different approaches. It was this. My Lord said that all three of them, ie Inderpal, mother and Amarjit said in evidence that he was present.
32.
LORD JUSTICE GAGE: I am sorry if I did say that, and you may very well be right. She did not say that. I thought I specifically said she had not. I will check the transcript to make sure. Thank you very much.
33.
MR MARTIN-SPERRY: That was the only matter I wanted to raise. | {"ConvCourtName":["Isleworth Crown Court"],"ConvictPleaDate":["2006-07-24"],"ConvictOffence":["Violence disorder","Aggravated burglary","Wounding with intent to do grievous bodily harm","Criminal damage"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Isleworth Crown Court"],"Sentence":["5 years and 6 months' imprisonment"],"SentServe":[],"WhatAncillary":["licence condition"],"OffSex":["All Male"],"OffAgeOffence":[23],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["Chana family (at least 3 individuals)"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Identification evidence"],"DefEvidTypeTrial":["Alibi claim","Offender denies offence"],"PreSentReport":[],"AggFactSent":["Attack by group of about 20 youths","Use of weapons (sword, knife, baseball bat, sharpened hockey sticks)","Attack in victim's home"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge failed to draw attention to specific weaknesses in identification evidence"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Summing-up was adequate to point out weaknesses in identification evidence","Jury would have been aware of inconsistencies and weaknesses","No lurking doubt as to safety of conviction"]} |
Case No: 201600881A4, 201600970A4 and 201600969A4
Neutral Citation Number:
[2017] EWCA Crim 32
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HHJ KEMP
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
31/01/2017
Before:
LORD JUSTICE TREACY
MR JUSTICE NICOL
and
MR JUSTICE JAY
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
(1)
GAZMEND MULA
(2)
ILIR HASA
(3)
SAIMIR NEZAJ
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Anthony Heaton-Armstrong for Mula
Mr Ahmed Hossain for Hasa
Miss Sarah Lindop for Nejaz
Miss Rachel Beckett for the Crown
Hearing date: 24
th
January 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment
MR JUSTICE JAY:
Introduction
1.
This is the Judgment of the Court.
2.
These three appellants appeal with the leave of the single judge against sentences of imprisonment imposed by HHJ Kemp sitting at Lewes Crown Court on 28
th
January 2016.
3.
The appellant Gazmend Mula received a total sentence of 10 years’ imprisonment on his guilty plea, composed of 6½ years’ imprisonment for conspiracy to kidnap and 3½ years’ imprisonment for possession of a class A drug (cocaine) with intent to supply.
4.
The appellant Ilir Hasa was convicted of conspiracy to kidnap on 22
nd
December 2015. He was sentenced to 8 years’ imprisonment.
5.
The appellant Saimir Nejaz was convicted by the jury on one indictment on the same date as his co-accused, and pleaded guilty to a number of counts on another. In relation to his conviction, he was sentenced to 8 years’ imprisonment for conspiracy to kidnap and a consecutive term of 1½ years’ imprisonment for intimidation of a witness. In relation to his guilty pleas, he was sentenced to 2 years’ imprisonment for possession of a class A drug (cocaine) with intent to supply, and various concurrent sentences for possession of false identity documents. Thus, his total sentence was 11½ years’ imprisonment.
6.
This appeal is directed to the sentences imposed for the offence of conspiracy to kidnap. Subordinate submissions were made in the grounds of appeal about totality but these were not pressed in oral argument. The judge treated the culpability of all three appellants as being equal. His starting-point was 8 years’ imprisonment across the board, and he gave Mula 20% credit for his late guilty plea.
7.
The judge presided over the trial of Hasa and Nejaz, and was therefore well placed to assess their respective involvement. However, the case was opened to him at some length on 28
th
January 2016 – for the benefit of Mula. We have carefully considered the prosecution’s detailed opening as well as the factual narrations set out in the three advices of appeal.
8.
Given the focus of these appeals, our recitation of the essential factual background will focus on the kidnapping.
Essential Factual Background
9.
The victim of the kidnap was Ardi Murataj. His evidence was that he worked for Hasa and Mula in their drugs business. Later, he worked for Hasa’s cousin, Tony Sula. At the beginning of April 2015 he told his employers that he no longer wished to work in the ‘dirty’ world of drug dealing.
10.
On 12
th
April 2015 Murataj was contacted by a cousin of Sula, who organised a meeting in a pub with another person. Whilst there, the other man took a ‘phone call and said that they need to go and see a client. Murataj thought that they were going to meet someone to sell drugs. They left by taxi.
11.
On arrival at their destination, the driver stopped the taxi and Murataj got out. He was met by Nejaz – who was previously unknown to him – and another unknown male. Nejaz asked, “how much is it?” Murataj started to say “£50”, but then Hasa and Mula got out of a car parked on the opposite side of the road and attacked him. They hit him on the head, and Nejaz and the other man also joined in the assault. Murataj was then dragged across to a Ford Astra and forced into the back of it. Witnesses were able to provide the car’s registration to the police. Part of the incident was caught on a private CCTV camera.
12.
Whilst in the Astra, Murataj was seated in rear of the car between Mula and the unknown male. Hasa drove the car and Nejaz was in the front passenger seat. During the journey, Mula hit Murataj with a metal bar. Murataj had a wound to his head which was bleeding, and all the men in the car were threatening to kill him, telling him that he needed to continue working in the drugs trade. He was driven for about 15 minutes before the car stopped in a village. For much of the journey Murataj’s head was bowed, and Mula kept hitting him – repeating the threat that if he left work, they would kill him and his family. On Murataj’s account to the Jury, they also forced him to admit that he sold drugs and recorded him doing so on an iPhone. Murataj was told to keep working; and then was driven back into Brighton, released from the car, and left at the roadside. Overall, Murataj had been detained for about 2-3 hours.
13.
Enquiries were made regarding the Astra, and it was linked to Hasa. The vehicle was later discovered, and traces of Murataj’s blood were found, as was Nejaz’s DNA.
14.
Mula was arrested on 14
th
April 2015 when police officers stopped the hire car he was driving as he approached a Ford Mondeo which was parked and empty. The hire car was examined and it was noticed that the driver’s side window panel was loose. When lifted away, there were two socks in the void space. The first contained 15 bags of cocaine, total weight 10.4 grams with a purity of 21%. The second contained the key to the Ford Mondeo. In that vehicle were discovered 120 packages of cocaine, total weight 83.5g, with a purity of 28%. Given that the identity and whereabouts of the kidnapped individual were unknown, Mula was given a ‘safety interview’, and thereafter interviewed as a suspect with an interpreter under caution. He answered ‘no comment’ to all questions asked of him.
15.
By 20
th
April 2015 the police had an idea who Murataj was, and they attended his home address. They found a blood-stained jacket linked to the blood found in the Astra. Police attended the premises the following day when Murataj was present. He gave police a false account of the kidnapping, indicating it related to the murder of his uncle some years back. He was then arrested on suspicion of possession with intent to supply class A drugs. He was remanded into custody after charge, and subsequently pleaded guilty to drugs and money offences.
16.
Hasa had been the first to be arrested and was also safety interviewed. He stated that he had been the driver of the Astra. Murataj had been dealing drugs to his ex-girlfriend, and Hasa told him to desist. On Hasa’s account, Murataj was fine when he dropped him off. Hasa was later interviewed as a suspect, and largely went no comment save for saying that he had bought drugs from Murataj before, and Murataj had snatched his girlfriend, had been giving drugs to her, and had raped her.
17.
In respect of Nezaj, the police investigation continued. Although Murataj had been reluctant to speak to the police, he contacted his solicitors, who then contacted the police. They arranged to visit him in prison to obtain a full statement.
18.
Murataj told the officers about the kidnapping. He described Nezaj as one of the men who had kidnapped him, and said that he had seen Nezaj in the same prison a week before. Nezaj had been remanded in custody after being found in possession of a large amount of class A drugs, as well as false identity documents, on 19
th
August 2015. Located on his person was a bag containing 8 wraps of cocaine, 35g in weight, with a street value of between £750 - £1,750. Nejaz had approached Murataj and had threatened him, asking him why he had reported the incident to the police and why he hadn’t continued working for Sula, dealing drugs. He added: “We will kill you as soon as you will get out”. Murataj was so frightened that he could not sleep for a week.
19.
Thereafter, police were able to link the DNA found in the Astra with Nejaz. He was arrested in prison for conspiracy to kidnap. Nejaz gave through his solicitor a prepared statement in which he denied any knowledge of the kidnapping, and gave a no comment interview. It should be noted that text messages on the mobile phones found in Nejaz’s possession at the time of his arrest discussed the kidnapping and joked about his involvement in it.
The Course of the Proceedings at Lewes Crown Court
20.
As we have said, Hasa and Nejaz were both convicted after a trial on 22
nd
December 2015. The position regarding Mula is more complex, leading to the adjournment of this appeal on 29
th
November 2016. Following that hearing, transcripts have been obtained of the proceedings before HHJ Kemp on 22
nd
January 2016, as well as of the Crown’s opening and Mr Heaton-Armstrong’s plea in mitigation on 28
th
January.
21.
Mula entered a guilty plea on 24
th
September 2015. He then submitted a basis of plea unacceptable to the Crown. A
Newton
hearing was fixed for 22
nd
January 2016. Before it took place, Mula submitted a revised basis of plea which denied any actual violence to the victim, and also denied “any underlying implication of drugs”. The Newton hearing was not, in the event, pursued. We have considered the transcript of the exchanges between Mula’s Counsel, Mr Heaton-Armstrong, and the Judge. Counsel observed that there had been negotiations between the parties following which Mula had revised his position. He now admitted to using violence, but “disputes having previously used the victim to do his bidding, dealing in drugs-wise, or having threatened the victim with future violence if he did not revert to his old ways, that is helping the defendant with his drug dealing activities, as he had done in the past”.
22.
Thus, the dispute appears to have had two elements. First, Mula was denying any previous involvement in drug dealing with Murataj. Secondly, he was denying that he was involved in threatening the victim with further violence if he did not return to his previous role. This second limb of the denial related to the threats allegedly meted out in the back of the Astra where Mula and Murataj were seated next to each other. Clearly, the two limbs were interconnected but they were not entirely congruent.
23.
The judge had obvious difficulty with this explanation. Counsel observed that Mula’s perception was that the purpose of the kidnap was that Hasa had it in for the victim regarding “some sort of domestic scenario”. It was further submitted that it would be wrong in principle to sentence Mula on any wider basis of a previous conspiracy to supply, because that would entail a separate offence for which he had not been indicted.
24.
There then followed exchanges between Counsel and the Judge, from which it appears that they were not on the same wavelength. The Judge asked Miss Beckett, for the Crown, for her assistance; and she observed that both Nejaz and Hasan were saying in different ways that drugs were not directly behind the conspiracy to kidnap, although the Jury had found Murataj’s account to be credible. Miss Beckett noted that “it is the background”; and then the following appears at page 8G/H of the Transcript:
“JUDGE KEMP: It is background, and I am not, because there isn’t a Count on the Indictment to reflect it, sentencing for that.
MISS BECKETT: No, and it will not be a higher sentence for the fact that Mr Murataj said he was working for them.”
In our view, it seems fairly clear that both HHJ Kemp and Miss Beckett were referring only to what we have called the first element or limb of Mr Heaton-Armstrong’s disputed matters. They were not addressing his second limb. That said, the Judge was making it clear that the first limb was not capable of enhancing the sentence.
25.
The Judge then asked Mr Heaton-Armstrong about whether Murataj would have known Mula before they came to this country, but for various reasons this was thought to be unlikely. The following exchange appears on the Transcript (at 9G-H):
“JUDGE KEMP: Well again, for my part, unless the Crown says otherwise, it is background but it does not go to sentence.
MISS BECKETT: No, it does not. Your Honour, if the basis of plea’s withdrawn I do not think there is anything remaining that would affect sentence, so if the basis of plea is withdrawn we can simply adjourn to sentence”.
Again, this must have been a reference to the first aspect of the dispute, not the second.
26.
At page 11 of the Transcript the Judge confirmed that it did not sound as if there was anything left materially that needed to be resolved at a
Newton
trial.
27.
In oral argument Miss Beckett pointed out that it was her understanding on 22
nd
January 2016 that Mula’s revised basis of plea had been withdrawn, and she was clear that the Crown did not contend that the antecedent drugs matters were other than background for the Court, and irrelevant to sentence. She did not understand Mr Heaton-Armstrong to be going further – that is to say, putting in issue what we have called the second limb, being Mula’s denial that he was involved in the enforced confession. On our interpretation of the transcript, HHJ Kemp shared Miss Beckett’s understanding of the position. However, Miss Beckett accepted that she had misunderstood the dual aspects to Mula’s denial.
28.
When she opened the facts to the Judge some six days later on 28
th
January 2016, Miss Beckett summarised the history regarding the basis of plea, and observed that Mula now accepted “full involvement” (Transcript 3A). In effect, she opened the case on a “full facts” basis. She said in terms that all three appellants forced Murataj to admit that he sold drugs and that they told him to carry on working. Much later, Miss Beckett listed the aggravating features of the kidnap. She did not expressly state that the antecedent drugs history was an aggravating factor, although she again highlighted the fact that the victim was forced to admit to drug-dealing; and that this admission was recorded.
29.
When he mitigated his client’s offence before the Judge, Mr Heaton-Armstrong reiterated the position he had adopted before him the previous week, namely that he understood the background to be “something to do with a fall out over a girl”. He submitted that his client now admitted that, whilst in the car, he continued to offer violence to the victim – “not in order to threaten him to go back to drug dealing for him – I have dealt with that already – but because the victim was acting … resisting and fighting for his life”.
30.
It is noteworthy that Mr Heaton-Armstrong did not expressly contradict any aspects of Miss Beckett’s opening to the Judge: i.e. did not expressly complain about the “full facts” opening, including the enforced confession and the reasons for it. By the same token, Miss Beckett did not expressly contradict Mr Heaton-Armstrong’s mitigation.
31.
In his sentencing remarks, the Judge observed that all three appellants were effectively of good character. He also observed, in relation to Mula, that “the basis upon which I deal with you today has been embraced by you at a relatively late stage”. At page 3 of the transcript, there is some confusion as to which of the appellants was denying that Murataj worked for him in the drugs trade, although the Judge made clear that “I am not actually sentencing you for any drugs offences”. Crucially, the Judge said in terms that in his view all three appellants were equally involved in this conspiracy. He listed the aggravating features in these terms:
“In my view, this was a serious offence: it was clearly and carefully planned, you were mob-handed, you abducted this young man in broad daylight, in a very public place, you used violence to suborn him, and although in the event he was detained for a relatively short time, two to three hours, during that time you subjected him to violence and threats of further violence; and, in effect, in that film he was blackmailed to keep working for you and if he didn’t he was threatened with violence. The fact that “he”, like “you” – with the exception of Mr Hasa – was involved in the supply of class A drugs does not assist at all; indeed, if anything, it tends to aggravate the background to this case”.
Thus, the Judge specifically stated that all three appellants were involved in the threats of further violence.
Grounds of Appeal
32.
Hasa’s grounds of appeal are that a starting-point of 8 years’ imprisonment was manifestly excessive, given the limited violence exerted and the relatively short period of detention. Mr Hossain drew our attention to the decision of this Court in
R v Syed Ahmed
[2010] EWCA Crim 3133
, where sentences in the range of 9-11 years’ imprisonment were imposed for what he submitted were far more serious offences of this nature. It is contended that the appropriate sentence should have been 5-6 years’ imprisonment.
33.
Nejaz adopts Hasa’s grounds, and further contends that the Judge should have drawn a distinction between him and his co-defendants in respect of their roles in the conspiracy. The evidence was that Murataj was working for Hasa and Mula, not for Nejaz, whom he had never met or seen before. Thus, it must follow, submits Miss Lindop for Nejaz, that (a) the drugs background was irrelevant, and (b) he could have had no involvement in the preparation and planning. It was further submitted in writing, but not orally, that the Judge failed to make sufficient allowance for the fact that Murataj had voluntarily involved himself in the drugs world. However, that is tantamount to saying that Murataj took the risk that he might be subjected to violent criminal activity of this nature, and the Court should reflect that acceptance of risk in some way. We unreservedly reject that submission.
34.
Mula also adopts Hasa’s grounds. He contended in writing that the total sentence of 10 years’ imprisonment involved an element of double counting and disregarded totality, but as we have said that submission was not pressed in oral argument. Mr Mula’s main point on appeal is that the Judge was wrong in principle to sentence him on the basis of facts which he continued to dispute notwithstanding his withdrawal of his basis of plea. Mula was continuing to dispute (a) that any drug dealing formed the background to his involvement in the conspiracy, and (b) that he was involved in the enforced confession of the victim and/or that his intention was to compel Murataj to continue to work in the drugs world. Further, to sentence him on that basis (at least as regards item (a)) would entail sentencing him for further offences in respect of which he had not been indicted. Overall, it is said that Mula should have been treated differently from the other appellants.
Discussion and Conclusions
35.
It is convenient to begin with the submission common to all Appellants, namely that a starting-point of 8 years’ imprisonment was manifestly excessive. There are no sentencing guidelines relating the common law offence of conspiracy to kidnap, and – as the Judge rightly noted – these cases are very much fact-sensitive.
36.
Having presided over the trial of two of these appellants, the Judge had ample opportunity to assess the overall seriousness of this offending. The matters which he specifically identified in his sentencing remarks were, in our view, accurately listed; including the use of physical violence with a weapon, and the enforced confession (assuming, at least at this stage of the analysis, that Mula could properly be included in this aspect of the case). Given that Murataj’s evidence specifically implicated Hasa and Nejaz in the enforced confession, that the Jury must have accepted his evidence in order to convict them, and that the Judge in any event had presided over their trial, these two appellants cannot complain about being sentenced on that basis.
37.
Further, in relation to two out of the three appellants the Judge clearly treated drug-dealing as forming part of the overall context. He specifically excepted Hasa from this, although that exclusion did not serve to diminish Hasa’s sentence. The Judge did not specifically address Nejaz’s point that his drug-dealing was entirely separate, but we have to say that it was wholly implausible that it should be so regarded. The evidence was that Nejaz pretended to be a customer of Murataj’s and that the enforced confession related to future drug-dealing. Nejaz must have had an interest in seeking to compel the victim to continue to operate in this way of business. Very similar points may be made against Hasa, although the Judge did not expressly make them. Overall, neither Hasa nor Nejaz can complain about this.
38.
In any event (and in this respect the same point falls to be made in respect of the first limb of Mr Heaton-Armstrong’s submissions), the Judge may have treated drug-dealing as forming part of the background, but it did not serve to enhance the sentences. The Judge had made that point clear on 22
nd
January 2016 (when, admittedly, Hasa and Nejaz were not present), and he adhered to this on 28
th
January 2016.
39.
At page 7A of the Transcript of his sentencing remarks, the Judge
did
say that the involvement of Murataj, Mula and Nejaz in class A drugs was a matter which “if anything tends to aggravate the background to this case”. However, the Judge was not linking this to the preparation and planning of the conspiracy to kidnap. It was general background which, on a fair reading of the Judge’s sentencing remarks as a whole, did not serve to increase the starting-point.
40.
In our judgment, cases of conspiracy to kidnap are very much fact-specific, and little assistance may be derived from considering other decisions of this case – save in very general terms. The starting-point was undoubtedly severe, but in our judgment it cannot be characterised as being manifestly excessive.
41.
This leaves Mula’s further argument (viz. the second limb of Mr Heaton-Armstrong’s submission) that the Judge ought not to have sentenced him on the basis that he had any involvement in the enforced confession of Murataj. It was wrong in principle, so the submission runs, to sentence Mula on a footing which he was continuing to deny.
42.
Our starting-point is to agree with Mr Heaton-Armstrong that he did submit to the Judge on two occasions that his client did not accept that he was involved in the enforced confession. On the other hand, we consider that it is reasonably clear from the transcripts that neither the Judge nor Miss Beckett interpreted Mr Heaton-Armstrong in that way, and we obviously accept what Miss Beckett told us at the hearing about her state of mind.
43.
It is unnecessary for us to reiterate the basic principles set out by this Court, Lord Lane CJ presiding, in
R v Newton
[1982] 77 Cr App R 13. It would be more useful, and in the circumstances of this case salutary, to remind the parties and practitioners of the further guidance given by this Court, Sir Igor Judge P presiding, in
R v Underwood
[2005] 1 Cr App R 13
. The guidelines on the approach that the sentencer ought to take where an accused pleads guilty on a specific basis that the prosecutor may not accept have been helpfully listed in
Blackstone’s Criminal Practice
, 2017 edition, at paragraph D20.9. These include the requirement that any basis of plea must be reduced to writing and signed by both advocates
In Magistrates’ Court proceedings, any basis of plea must be in writing: see CPD Part 24.11(5). In the Crown Court, “the court may give directions for determining the facts on the basis of which sentence must be passed” (see CPD Part 25.16(4)) but there is no express requirement that the basis should be encapsulated in a document. However, in line with
Underwood
and good practice, such directions should require that any basis of plea be written and signed. We are not aware of the directions given in the present case, if any, but note that Mula’s bases of plea had been in writing, although the one version made available to us has not been signed.
. If the agreed basis of plea is not signed by advocates for both sides, the judge is entitled to ignore it. Further, at a Newton hearing the judge is entitled to decline to hear evidence about disputed facts if the accused’s case is absurd or obviously unreliable, but he should explain why he has reached that conclusion.
44.
The reasons for the requirement for putting a basis of plea in writing are clear. The Court needs to be satisfied that the plea is unequivocal and that the defendant is prepared to sign it. This has a dual purpose. First, there will be many cases, and this was one of them, where a defendant needs to be “pinned down” as to a clear and unambiguous version of events which cannot be subsequently gainsaid, unless of course the plea is withdrawn. Mula was not prepared to adhere to just one account, and he vacillated and prevaricated over a period of four months. Secondly, and connectedly, a signed basis of plea ensures that no-one misunderstands the position, whether it be the Court or the Crown. Unfortunately, that is precisely what happened here.
45.
It follows that Mr Heaton-Armstrong was remiss in not providing a written basis of plea which was signed, and that both Miss Beckett and the Judge were remiss in not insisting upon one.
46.
The absence of a written basis of plea is not necessarily fatal to Mr Heaton-Armstrong’s appeal on this aspect, but it does substantially weaken it. As we have said, he did not raise an objection to Miss Beckett’s opening on a full facts basis, and mitigated as if he could have full confidence that no misunderstandings could possibly have arisen. In any event, it is clear law that a judge would be entitled at a
Newton
hearing to reject an account which is manifestly absurd, and (as we have said) to refuse to hold such a hearing in such circumstances. Although the Judge did not say in terms that Mula’s assertion that he was not involved in obtaining the enforced confession was manifestly absurd, the procedural failings which have arisen in this case mean that we are entitled to reach our own view on this issue, drawing such inferences as are appropriate from the Jury’s acceptance of Murataj’s evidence.
47.
The position here is that Murataj was claiming all along that he worked for both Hasa and Mula. Mula’s perception that the dispute concerned a young woman was entirely implausible, not least on account of the overall background and because he must have been aware that Nejaz would pretend to be a customer of the victim. Mula was heavily involved in the infliction of physical violence in the car with a metal object, and was seated right next to Murataj when the specific threats were being made. It beggars belief that he was not fully aware of the purpose of the kidnap and was not fully complicit, if not directly involved in the enforced confession.
48.
Accordingly, we reject Mr Heaton-Armstrong’s submissions on what we have called the second limb of his case.
Disposal
49.
These appeals must be dismissed. | {"ConvCourtName":["Lewes Crown Court"],"ConvictPleaDate":["2015-09-24","2015-12-22"],"ConvictOffence":["Conspiracy to kidnap"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","No","No"],"PleaPoint":["Mula: late guilty plea (24 September 2015)","Hasa: convicted after trial (22 December 2015)","Nejaz: convicted after trial (22 December 2015), pleaded guilty to other counts"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Lewes Crown Court"],"Sentence":["Mula: 10 years' imprisonment (6.5 years for conspiracy to kidnap, 3.5 years for possession of class A drug with intent to supply)","Hasa: 8 years' imprisonment (conspiracy to kidnap)","Nejaz: 8 years' imprisonment (conspiracy to kidnap) + 1.5 years consecutive (intimidation of a witness) + 2 years (possession of class A drug with intent to supply) + concurrent sentences for possession of false identity documents; total 11.5 years"],"SentServe":["Consecutive","Combination"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","CCTV","DNA match","Blood evidence","Text messages"],"DefEvidTypeTrial":["Denial of involvement","No comment interviews","Prepared statement denying knowledge"],"PreSentReport":[],"AggFactSent":["Serious offence","Carefully planned","Mob-handed","Abduction in public place","Use of violence with weapon","Violence and threats of further violence","Enforced confession and blackmail to keep working for them","Victim involved in supply of class A drugs"],"MitFactSent":["All three appellants effectively of good character","Mula received 20% credit for late guilty plea"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Starting point of 8 years' imprisonment was manifestly excessive given limited violence and short detention","Judge should have distinguished between roles of appellants","Judge was wrong to sentence Mula on basis of facts he disputed"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Cases of conspiracy to kidnap are fact-specific; starting point was severe but not manifestly excessive","Judge had ample opportunity to assess seriousness","Aggravating features accurately listed","Drug-dealing was background, not used to enhance sentence","No error in treating all three as equally involved","Mula's denial of involvement in enforced confession was implausible and unsupported"]} |
No:
200406788/A0
Neutral Citation Number:
[2005] EWCA Crim 653
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 2nd March 2005
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE DAVID CLARKE
MR JUSTICE CHRISTOPHER CLARKE
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 141 OF 2004
(KENNETH KINCE THOMAS)
- - - - - - -
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)
- - - - - - -
MISS B CHEEMA
appeared on behalf of the ATTORNEY GENERAL
MR P ROWLANDS
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under
section 36 of the Criminal Justice Act 1988
, to refer a sentence said to be unduly lenient. We grant leave.
2.
The offender is 46 years of age, having been born in August of 1958. On 5th July 2004, at Wood Green Crown Court, he pleaded guilty to conspiracy to defraud. On that occasion his co-accused, a man called Charles, pleaded not guilty and sentence in relation to the offender was, in consequence, adjourned, both for reports and pending the trial of the co-accused. Charles absconded and he has never been tried. The offender was sentenced by Her Honour Judge Stern QC at Wood Green, on 1st November 2004, to a community punishment order of 220 hours.
3.
In outline, what happened was that the offender facilitated the creation and use of cloned credit and debit cards. The enterprise was on a large scale, and it persisted over a 2 year period, between September 2001 and September 2003. When the police raided addresses connected with the offender, they found a computer assisted factory, indent machines and a large number of credit cards. This conspiracy related to the fraudulent usage of compromised credit card numbers which resulted in a loss of approximately £150,000. The offender derived significant personal benefit, (said to have been of the order £2,500) but he was sentenced by the judge on the basis that he was neither the instigator nor the principal organiser of the conspiracy.
4.
In a little more detail, police officers searched the offender's home at 159 Bream Close N17 on 3rd September 2003. They discovered six mobile telephones, car hire documents with an address at 83 Grafton House E3, £1,000 in cash, receipts for high value expenditure, such as a credit card receipt in the sum of just under £4,000, computer disks, a swipe machine and a tenancy agreement and rent book for two other properties. There were credit and reward cards not in the offender's name, a blank Mastercard and six pieces of paper with printed and handwritten credit or debit card numbers upon them.
5.
In consequence, the police went to one of the other properties at 83 Grafton House. Charles was there. There was a credit card cloning factory with appropriate machinery in process there. Charles' fingerprints were found on a variety of equipment at that address.
6.
When he was arrested, the offender made no comment. Extensive investigations were carried out in relation to the card numbers and the offender was re-interviewed, subsequently. Again he made no comment. He entered a plea of guilty at the plea and directions hearing in July 2004, after all the evidence had been served. The basis of the plea relied on was that he was the tenant of 83 Grafton House but permitted others to live there and Charles to use it. From 2002, having discovered credit card cloning paraphernalia in the house, and turned a blind eye to it, he himself decided to use the cloned cards available to him and passed between 10 and 15 of those cloned cards to someone else. Thereafter he held materials and equipment for Charles and passed cards on to others for reward.
7.
After he had pleaded guilty he was remanded on bail.
8.
The offender's personal circumstances, so far as his finances are concerned, were healthy, notwithstanding that he was drawing jobs seeker's allowance. He had spent £16,000 on clothes in the 18 months immediately prior to his arrest and £9,000 on car hire during the same period.
9.
He has previous convictions but most are very old and relate to dishonesty and driving matters. The only conviction in the last 20 years or so is when, in October 1983, he was fined £100 by magistrates for handling.
10.
On behalf of the Attorney, Miss Cheema draws attention to what she, rightly, submits are three aggravating features: first, this was a large scale conspiracy with sophisticated equipment being used; it is of a character which undermines the integrity of the banking and credit system. Secondly, substantial profits were made in the enterprise and there was significant benefit (in financial terms) to this offender. Thirdly, the conspiracy continued for over 2 years and would no doubt have continued longer had it not been for police intervention.
11.
Miss Cheema draws attention to the mitigation to be found in the early plea of guilty, the fact that the offender was not the instigator of the offence and the absence of relevant, recent, previous convictions.
12.
She draws attention to two authorities,
Attorney-General's No Reference No 73 of 2003
(
R v Ranganathan
) [2004] 2 Cr App R(S) 337 and
R v Taj, Gardner and Samuel
[2003] EWCA Crim 2633
. The essential submission is that the non-custodial sentence which was passed was unduly lenient and failed to reflect the seriousness of the offence and the aggravating features present. She submits that a deterrent sentence ought to have been passed.
13.
Mr Rowlands, on behalf of the offender, submits that the authorities on which Miss Cheema relies do not support a contention that a sentence of 3 to 4 years would have been appropriate in relation to this offender. Mr Rowlands draws attention to the offender's subsidiary, non-organisational, role, to the relatively small personal gain by him, to the scale of the fraud in this case being less than that in the two authorities relied on, to the plea of guilty at the earliest opportunity and to the feature of delay in sentencing for a period of 4 months, by reason of the matters to which we have referred. Mr Rowlands points out, rightly, that the offender has carried out 87 hours of the community punishment order which was imposed.
14.
Mr Rowlands submits that the appropriate sentence, in the court below would have been one of 18 months to 2 years and, on that basis, he invites the Court, if that proposition is accepted, to exercise its discretion and not interfere with the sentence passed below. He also relies on the principle of double jeopardy. He refers, also, to the fact that the offender presently has custody of his 11 year old son, though Mr Rowlands accepts that, if the offender is to be incarcerated, the mother will be able to take custody of that child. Mr Rowlands also rightly stresses the fact that, during the period of delay between plea of guilty and sentencing, the offender went on a job seeker's course and he apparently has the prospect of a paid job, if he is not today incarcerated.
15.
We take all of these considerations into account. In our judgment, the relevant culpability and criminality of this offender called in the court below for a sentence of the order of two-and-a-half to 3 years. It follows that the sentence passed by the learned judge was unduly lenient. We have to have regard, however, to double jeopardy, that is to say that the offender is being sentenced a second time. We have regard to the fact that he has undertaken 87 hours of the community punishment order. We also take into account that a non-custodial sentence was passed initially and the efforts in relation to work which the offender has made. In all those circumstances, we quash the order made in the court below and the sentence which we pass in substitution for that sentence is one of 15 months' imprisonment. That sentence will run from the day on which the offender surrenders to custody.
16.
THE VICE PRESIDENT: Mr Rowlands, is there any difficulty in him surrender to custody today?
17.
MR ROWLANDS: There is not frankly. He has asked me if it is appropriate for him to say so that he might surrender tomorrow. That is an unusual request.
18.
THE VICE PRESIDENT: Bearing in mind the child, we shall permit him to surrender at noon tomorrow.
19.
MR ROWLANDS: Thank you very much. | {"ConvCourtName":["Wood Green Crown Court"],"ConvictPleaDate":["2004-07-05"],"ConvictOffence":["conspiracy to defraud"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at plea and directions hearing"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[0],"SentCourtName":["Wood Green Crown Court"],"Sentence":["community punishment order of 220 hours","15 months' imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[46],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Company"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Physical evidence (credit cards, machines, receipts, documents)","Police testimony"],"DefEvidTypeTrial":["Basis of plea"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["large scale conspiracy with sophisticated equipment","undermines integrity of banking and credit system","substantial profits made","conspiracy continued for over 2 years"],"MitFactSent":["early plea of guilty","not the instigator of the offence","absence of relevant, recent, previous convictions"],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["non-custodial sentence failed to reflect seriousness and aggravating features"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["non-custodial sentence did not reflect seriousness and aggravating features"],"ReasonDismiss":[""]} |
Neutral Citation Number:
[2016] EWCA Crim 794
Case No:
201601410 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 27th May 2016
B e f o r e
:
LORD JUSTICE DAVIS
MR JUSTICE GILBART
MR JUSTICE SOOLE
- - - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 39 OF 2016
- - - - - - - - - - - - - - - - - - - - -
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 J Hallam
appeared on behalf of the
Attorney General
Mr J Beal
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (As Approved by the Court)
1.
LORD JUSTICE DAVIS: On 26th February 2016, in the Crown Court sitting at Truro, the offender, Alan Hichens, who is now aged 52, was sentenced to a total of three years and eight months' imprisonment for a number of offences which he had committed against his former partner. He had pleaded guilty at an earlier stage, at a plea and case management hearing.
2.
The offences in question were an offence of arson being reckless as to whether life was endangered, in respect of which he received a sentence of three years' imprisonment; an offence of arson, in respect of which he received a consecutive sentence of six months' imprisonment; and three offences of breaching a suspended sentence order which had themselves been imposed for breach of a prior restraining order, in respect of which he received a concurrent sentence of two months' imprisonment for each such offence but consecutive to the overall term imposed.
3.
The Attorney General now seeks leave to challenge that overall sentence on the ground that it is unduly lenient. We grant leave.
4.
The background position is this. The offender and Maria Long had been partners for some 26 years. They had a son between them and they lived together in the family home, which was a semi-detached house in Camborne in Cornwall. Eventually, the relationship between the offender and Ms Long came to an end. She began a relationship with another man and the offender moved out of the Camborne address.
5.
The reaction of the offender to the ending of this relationship was, in effect, to begin a campaign of criminality directed at Ms Long and, in some respects, her new partner.
6.
In February 2015 he assaulted Ms Long and was sentenced to a community order and was also made the subject of a restraining order. In May 2015 he breached that order by uttering threats to kill against both Ms Long and her partner. For that the court saw fit to give him a conditional discharge. Thereafter, between 23rd June and 6th July he made numerous threatening telephone calls to Ms Long and her partner, and in consequence he was charged with three offences of breaching the restraining order previously imposed. He was remanded on bail.
7.
On 26th June 2015 Ms Long went on a two-week holiday. She left her car, which was an X registration BMW, parked on the driveway outside her home, behind a pair of closed electric gates.
8.
Shortly before 2 o'clock in the morning on 5th July 2015 that car was set alight by the offender. He then approached a nearby taxi rank and directed the driver past the burning car before directing him onwards to his own final destination.
9.
He was arrested in a pub in the evening of 6th July. Amongst other comments he made to the officers, he said this:
"I'm getting under your skin, aren't I? You hate me, don't you? What do you lot expect me to do when my wife of 20 something years has an affair with a lodger ... I'm not taking this from them."
10.
When he was interviewed he denied responsibility for the arson, claiming that he had been in Truro on the night in question and that the taxi driver who had seen him must have mistaken him for somebody else.
11.
On 8th July 2015 the offender was sentenced to a sentence of 12 weeks' imprisonment, suspended for a term of two years, for the offence of breaching the restraining order. He was re-sentenced in like terms for the earlier offences of battery and breach.
12.
When Ms Long returned home on 10th July, at the end of her holiday, she found that the electric gates were no longer working because the wires for them had been pulled away. Her car was a burnt-out shell. Because of the upset and anxiety which the arson caused her to feel, she did not consider that she could carry on staying at her home and moved away, telling her immediate neighbours but not broadcasting the fact widely.
13.
At around eight o'clock in the evening of Sunday 9th August 2015, her neighbours noticed the offender in the vicinity of Ms Long's home. They saw him walk away from the house at around 8.30 pm. A few minutes after that they heard the sound of an alarm and shortly after that they saw smoke rising from Ms Long's home. The fire services were called. They attended swiftly and extinguished the fire.
14.
The evidence was that the fire had been set in the hallway at the foot of the stairs. Various combustible materials had been heaped together in that region and a naked flame applied to them. Those materials included clothing, papers and shoes. The fire had caused damage to the hallway and staircase, and smoke from the fire rose up the stairs onto the first floor, where it caused extensive damage. Ms Long was not at the time insured against such damage. We were informed this morning that it is estimated that the total cost could be in the region of approaching £20,000.
15.
The offender was arrested at his own flat in Truro on 10th August. He had climbed onto the roof of a bay window and threatened to jump off, but was persuaded to desist. When he was interviewed he denied responsibility for the offence, saying that he had been in Camborne with his sister that evening.
16.
The offender is not a person of previous good character. He was born on 30th January 1964. He has ten convictions for 22 offences, spread over the years. A number of offences of violence had been committed in the late 1980s and early 1990s and he had received a custodial sentence. However, it is right to say that there was then a period of 21 years in which there was no offending until the offending which we have summarised and which commenced in 2015.
17.
The case was sent up from the Magistrates' Court. There were a number of hearings at the Crown Court until a formal plea and directions hearing on 2nd February 2016, where the offender entered acceptable guilty pleas.
18.
A pre-sentence report, quite rightly, had been obtained. The view taken by the Probation Service was that the offender was "extremely reticent" with them in interview. Amongst other things, this is recorded:
"Mr Hichens has said that he did not set fire to Ms Long's car. He said 'I pleaded guilty to it because I had no option but to plead guilty to it. The prosecution offered me a deal; they would drop other charges if I pleaded guilty to it'. When I asked him to clarify his position he said 'I definitely didn't do it'. Mr Hichens suggested that the fire may have been set by an accomplice of Ms Long to enable her to defraud her insurance company."
19.
There are further other statements by the offender in this interview with the Probation Service which indicate either minimisation or denial of his true responsibility. The view of the probation officer was that Mr Hichens, the offender, appeared to have little understanding of the harm that he had caused by his offending. The probation officer indicated, with no degree of understatement, that the offending "suggest[s] very worrying attitudes towards his former partner and to the end of their relationship". Understandably, given all these circumstances, the probation officer addressed the issue of dangerousness. This was said:
"Mr Hichens' attitude and recent pattern of behaviour suggest that he poses a significant risk to Ms Long and to any of her future companions ..."
20.
The sentencing hearing took place before the judge, His Honour Judge Carr, in the Crown Court at Truro in February 2016. Before that hearing the offender had sent a carefully and fully written letter to the judge by way of, in effect, mitigation. Amongst other things, he noted that he had filed complaints against the police in regard to what the offender regarded as malicious harassment of him by the police. He also, amongst other things, said this:
"I am not a violent man, I am a quiet man, as you can see. My actions were completely out of character and my time spent on remand has left me feeling ashamed upon reflection."
21.
The letter then asked for leniency and expressed remorse for what the offender had done.
22.
The offender in fact represented himself at the sentencing hearing and was to say that he had been depressed and, in effect, his actions had been "a cry for help". He reiterated that he accepted full responsibility for his actions and was ashamed of them; and he also referred to his suicidal thoughts and depression.
23.
An impact statement of Ms Long had been obtained and was provided to the court. She explained her understandable total devastation as a consequence of the fire in her home. She had been left so frightened of the offender that she was saying that once the repairs to the house were completed, she would sell up and move to an address where he could not find her. In the meantime, she was having to live in temporary accommodation.
24.
In the course of his sentencing remarks the judge recited the background facts. As to the culminating offence of setting the fire in the house, the judge said: "You seemed from the statements I have read to gain considerable pleasure from it". The judge then noted that it was more a matter of luck than anything else that there was prompt intervention by the fire service. The judge noted what the offender had said to the judge at the hearing and noted the contents of the pre-sentence report, and then said this:
"You have shown no remorse whatsoever. The position is that you still continue to see yourself as the victim as opposed to the person whose car you set fire to and the house you set fire to. I accept you pleaded guilty at the first opportunity for the purposes of sentence ..."
25.
The judge then preceded to pass the sentences which we have indicated.
26.
One only has to recite the facts as we have done to reach the view, with all respect to this judge, that this sentence, taking matters overall, was significantly too low and was unduly lenient. Indeed, Mr Beal, in the course of his excellent address to us this morning and having discussed the matter with his client in advance, has accepted that this was an unduly lenient sentence. Indeed it was.
27.
As Mr Hallam, appearing for the Attorney General today, has pointed out, this latter offending, first of arson and then arson being reckless as to the endangerment of life, was the culmination of a deliberate campaign of intimidation. The offence of arson with regard to the car was itself a bad one of its kind, committed at night during the currency of a community order and a restraining order and being borne out of revenge, he having travelled to his former partner's home for the purposes of burning her valuable car, which doubtless was very important to her. It was also undoubtedly designed to instill fear on her part.
28.
As to the offence of arson being reckless as to the endangerment of life, that also was a very bad case of its kind. This too had clearly been planned and was part of a premeditated revenge attack. Moreover, not only was the appellant not of good character but this further act was committed both whilst he was on bail and whilst he was the subject of the recently imposed suspended sentence order, as well as being in breach of the restraining order. It involved him unlawfully entering the house. Quite how he did is not entirely established, it may be that he broke in, it may be that he still had a key enabling him to get in, the point is he had no right to be there at all. Then, having got in, he proceeded to set fire to these combustible items, placing them near the foot of the stairs and not far away from the front door.
29.
Mr Hallam has submitted that the offender had no reason to think that Ms Long would be away from the house at the time, but we think that in this regard we should proceed on the footing that, being in the house at eight o'clock on Sunday, he would have taken the view that it was empty. The fact remains that what he did was very dangerous; and this of course was a semi-detached home so the occupants of the other part of the house would be put at risk, as would anyone, whether of the fire services or otherwise, who came to assist in putting out the blaze.
30.
The judge found that there was no true remorse; indeed the offender, rather grotesquely, seems to consider himself as being the victim here, which of course is a complete nonsense.
31.
Further, notwithstanding the judge's comments, it is not right to say that the offender had pleaded guilty at the first possible moment: because in fact there had been a number of hearings before he pleaded guilty, and of course he had initially denied the offence. In principle, we see no reason why he should be accorded anything more than a 25 per cent discount for his pleas of guilt.
32.
All that said, Mr Beal has today told us that the offender is seeking to make the best use of his time in prison, that he has reflected on matters, that he is now remorseful, as Mr Beal tells us, and that he himself proposes to move away when he is released from custody. Time will tell as to whether all that is or is not so.
33.
We should make one point. Quite properly, the pre-sentence report had addressed the issue of dangerousness. Clearly, there were grounds for concern here given the campaign of intimidation which we have outlined, culminating in this highly dangerous arson attack. For some reason, counsel then appearing for the prosecution (not Mr Hallam) did not raise this point with the judge; and the judge himself made no reference to this particular point. We have no means of knowing whether the judge consciously decided that dangerousness was not to be found and an extended sentence not to be imposed or whether the matter went by default. Be that as it may, and very fairly in the circumstances, Mr Hallam has indicated that he does not pursue in this court any finding of dangerousness or the imposition of an extended sentence. Nevertheless, we venture to suggest that the matter should at least have been expressly discussed in the court below.
34.
We were referred to one authority in this particular field, the case of
Attorney General's Reference No 68 of 2008 (Myrie
) [2009] 2 Cr App R (S) 48. That was a case which had some similarity with the present case, but also had some differences. In particular, as Mr Beal was entitled to point out, in that case the fire had been set in the early hours of the morning outside a house where the offender had reason to think there were people inside the house, although, fortunately they escaped unharmed. That is, of course, significantly different from the present case. On the other hand, in
Myrie
the offender was of previous good character and what occurred there was not the culmination of a campaign of intimidation, as was the case here. The court in the case of
Myrie
indicated in general terms that the usual starting point range for arson with intent to endanger life following a trial would be in the range of eight to ten years, and whilst in cases involving reckless arson the range might be rather below that, the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent was a fine one.
35.
We have to have regard to the circumstances of the offending, as well as the circumstances of the offender and the position of the victim. We also have to have regard to considerations of totality. The judge elected to impose determinate sentences and, for the reasons we have given, we will follow that particular course.
36.
In our view, on the count of arson being reckless as to whether life was endangered, we would have expected, given all the circumstances here, that a starting point of approaching eight years would have been taken had there been a trial. We would also observe that the six month sentence consecutively imposed by the judge for the arson with regard to the car was in itself, it can be said, a lenient sentence; one might well have expected a sentence in the order of 15 months on that count had there been a trial.
37.
In the circumstances of this case, and having regard to considerations of totality, we will quash the sentence of three years' imprisonment imposed by the judge on count 4 and will substitute for it a sentence of six years' imprisonment. We will retain the consecutive sentence of six months' imprisonment on count 2, being the count of arson. The sentence with regard to the breaches of the suspended sentence order of two months' imprisonment will stand, but will run concurrently to the other sentences. The overall sentence is therefore increased in total to six and a half years' imprisonment. The appeal is allowed accordingly. | {"ConvCourtName":["Crown Court at Truro"],"ConvictPleaDate":["2016-02-02"],"ConvictOffence":["Arson being reckless as to whether life was endangered","Arson","Breach of suspended sentence order (for breach of restraining order)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["plea and case management hearing"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Truro"],"Sentence":["3 years imprisonment (arson being reckless as to whether life was endangered)","6 months imprisonment consecutive (arson)","2 months imprisonment concurrent (each breach of suspended sentence order), consecutive to overall term"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[51],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address","Temporary Accommodation"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Witness testimony (neighbours, taxi driver)","Physical evidence (burnt car, fire damage)","Victim impact statement"],"DefEvidTypeTrial":["Denial of responsibility","Alibi claim"],"PreSentReport":["High risk of harm"],"AggFactSent":["Offence committed while on bail","Offence committed while subject to suspended sentence order","Offence committed in breach of restraining order","Premeditated revenge attack","Campaign of intimidation","Unlawful entry to victim's home","Victim left frightened and homeless","Significant financial loss to victim"],"MitFactSent":["Letter expressing remorse and asking for leniency","Offender claimed depression and suicidal thoughts","Offender accepted responsibility at sentencing"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence was significantly too low and unduly lenient"],"SentGuideWhich":["Attorney General's Reference No 68 of 2008 (Myrie) [2009] 2 Cr App R (S) 48"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Offence was culmination of campaign of intimidation","Offence committed while on bail and under suspended sentence","Premeditated and dangerous arson","Victim suffered significant harm and loss","Sentence did not reflect seriousness and totality of offending"],"ReasonDismiss":[]} |
Neutral Citation Number:
[2011] EWCA Crim 1130
Case No:
2011/1467/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 7 April 2011
B e f o r e
:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE TREACY
MR JUSTICE EDWARDS-STUART
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
P
APPEAL UNDER SECTION 3C COSTS IN CRIMINAL CASES REGULATIONS 1991
- - - - - - - - - - - - - - - - - - - - -
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 A Edis QC
appeared on behalf of the
Appellant Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (As Approved by the Court)
1.
THE VICE PRESIDENT: At the conclusion of a Crown Court trial in which the defendant was acquitted by the jury, the judge made an order that the Crown Prosecution Service pay costs. It is clear that he did so because he disagreed with the decision either to mount or to continue the prosecution. The Crown Prosecution Service appeals.
2.
The judge had given notice at the end of the trial that he had it in mind to make a costs order and he had adjourned to give the Crown Prosecution Service the opportunity to consider the position and attend to make representation. There was a hearing about four weeks later. At the conclusion of that hearing the judge announced his decision in the following terms:
"In my judgment, this case proceeded either because no thought or no proper thought was given to it and/or for reasons of political correctness and/or of fear of criticism. That is no basis upon which to proceed with a serious allegation or, indeed, any allegation of any kind of criminal conduct ...
I find that the CPS has incurred costs by way of unnecessary act, the bringing of this case at all. I direct that it pays for the costs of this case in its entirety. Effectively, that means costs incurred by the defence at the Crown Court and those incurred by the defence solicitors.
The costs incurred at the Crown Court have been considered by the court staff and, in round figures, are £3,000. The solicitors' costs should be ascertained and paid so long as they are reasonable."
3.
Subsequently, the Crown Court issued not one but two letters purporting to incorporate this order. The first directed the Crown Prosecution Service to pay £3,000 to "HMPG Woolwich Crown Court." It would appear that what was intended to be comprised there were legal aid fees payable to defence counsel which would have been paid no doubt via the Crown Court. The second letter directed the Crown Prosecution Service to pay £6,229.38 to the solicitors who had acted for the acquitted defendant under a representation order, which is to say on legal aid.
4.
Both of those letters bore the date 13th January 2011 which was the day of the hearing and of the ruling which we have quoted. In fact at least the second letter must have been written subsequently because it is apparent from the ruling that as at 13th January the amount of the solicitors' costs was not known. It may be, however, that the letters carried the date that they did because that had been the date of the judge's ruling.
5.
Neither order identified the statutory power under which it had been made. A subsequent written request to the Crown Court elicited the response by telephone that the order had been made under
section 19A of the Prosecution of Offences Act 1985
. No written document has ever identified the power.
6.
Leaving aside orders for the payment of costs of an acquitted defendant from central funds and orders for the payment of prosecution costs, there are three separate powers which the statute provides which
might
be applicable in this kind of situation. It is not necessary to set out the terms of the statute in full. They amount to these:
1. Under
section 19A of the Prosecution of Offences Act 1985
an order may be made against a legal representative that he pay "wasted costs". Wasted costs are costs incurred as a result of improper, unreasonable or negligent act or omission on the part of any representative or the employee of any representative. This is the power which according to the oral notification issued by the Crown Court, which was presumably on the authority of the judge, the judge was purporting to exercise. A legal representative is however fully defined in the section. It means "a person exercising a right of audience or a right to conduct litigation on behalf of a party". In the context of a criminal case, the parties are the Crown on one side and the defendant on the other. The legal representative is the advocate or litigator appearing or acting for one or other of those parties. In other words, in very simple terms this power to make wasted costs is a power exercisable against a lawyer personally.
2. Under
section 19
of the same Act and
Regulation 3
of the Costs in Criminal Cases (General) Regulations 1986, 1986/1335 made under that section, an order may be made that one party pay the costs of the other party to criminal proceedings. Such an order may be made when the judges is satisfied that the costs in question have been incurred by party A as a result of "an unnecessary or improper act or omission by or on behalf of" party B.
3. Under
section 19B
of
the 1985 Act
, an order may be made against a "third party" that he pay the costs incurred by any other party to the proceedings. This order can be made only when the third party has been guilty of "serious misconduct".
7.
It can thus be seen that the conditions for the making of such orders vary, as does the person against whom the order may be made. For this reason, as well as on the ordinary principle which requires any court order to be securely anchored to the power which authorises it, it is essential that the order identify the power being invoked. The
Criminal Procedure Rules 2010
expressly so provide at 76.2(4):
"If the court makes an order about costs, it must—
(a) specify who must, or must not, pay what, to whom; and
(b) identify the legislation under which the order is made, where there is a choice of powers."
8.
This order or orders comprehensively failed to make any attempt to meet those requirements as to identifying the power. We have asked ourselves whether it is nevertheless clear which power was being exercised.
9.
There can clearly be no question of the third power under
section 19B
applying. The order was made against the Crown Prosecution Service which was a party to the trial and not a third party.
10.
If the order was of the first kind, made under
section 19A
, as the Crown Court, apparently on the authority of the judge, has asserted and as the reference in the two letters to "wasted costs" would appear to suggest, then such an order is simply beyond the judge's power for the very elementary reason that the Crown Prosecution Service is a party and not a legal representative acting for a party.
11.
Other language used by the judge might suggest rather an order of the second kind, that is to say under
section 19
,
regulation 3
. This however is not the power which has expressly been invoked. It is true that an order that the Crown Prosecution Service pay the costs of defence counsel and defence solicitors might be framed in a way which qualified as a party and party order, if that second power had been invoked. On this hypothesis, however, and that is all it can be in this case, the order would still suffer from three significant defects. First, it could only be made payable to a party, namely the defendant. No doubt, however, if such an order were regularly and justifiably made the legal aid authorities would take steps to recover the costs paid and it would be right to make a provision for payment in the first instance either to the solicitors or some identifiable fund, in order to ensure that the money did not get lost in transit. This, however, was plainly simply never considered. Second, the amount of the solicitors' costs was clearly not specified by the judge, nor was it ever quantified by him although
regulation 3(3)
requires this. Third, the Crown Prosecution Service never had any opportunity as prospective payers to make any representations as to the amount of the second sum, the solicitors' costs. We accept that by itself the last defect might, if it had stood alone, have been capable of being cured, if, as we suspect, the costs are assessed by the relevant authorities on the basis of reasonably clear scales and if that had been the only defect no doubt the Crown Prosecution Service could and would have asked for an opportunity to make representations.
12.
It needs to be said that the difference between the statutory powers is also significant for the mechanisms available for challenging any order. An order of the first kind under
section 19A
is challengeable by way of appeal to this Court by the legal representative: see
regulation 3C
of the same regulations. By contrast, a party against whom an order of the second kind, under
section 19
and
regulation 3
is made, has no such right of appeal. His method of challenge would have to be by application for judicial review on the grounds that the order was defective in law. That is another reason why it is essential that the power which is being exercised must be identified.
13.
More generally, the making of a costs order against the Crown in circumstances such as this is a very serious and unusual matter. That it should be exercised even after adjournment in a manner which is, on any view, thoroughly flawed throughout is a matter of the greatest regret. Moreover, we are satisfied that this is an order which should never have been made. The decision to prosecute or not is a thoroughly difficult and delicate one. It is one on which two perfectly responsible lawyers may easily differ. It is only in the clearest possible cases that a decision taken by the appropriate authority in good faith could possibly justify a penalty in costs.
14.
We accept that there did exist in this case a number of potentially quite strong indicators which might, and possibly for all we know which should, have led the decision maker within the Crown Prosecution Service to reach the opposite conclusion from the one that she did:
A. The allegation was rape and the issue consent. There were a number of indications in the complainant's behaviour which might be argued to suggest consent, but those were probably equivocal and of the kind which will exist and be the subject of argument in a great many cases. However, a statement had also been taken from an older man who lived in the flat where the offence was said to take place. He was there at the time of the alleged offence. His evidence directly contradicted the complainant's assertion that she had screamed loudly. Further, he said that some time after the relevant act of sexual intercourse the couple had been found sleeping peacefully and apparently affectionately together. That evidence was also quite inconsistent with what the complainant said had happened. The Crown had disclosed his statement (properly) but they must therefore have anticipated that he would be called on behalf of the defendant, as indeed he was. Most people would, we think, conclude that this evidence, unless of course there was reason to doubt it, made acquittal more likely than conviction.
B. Crown counsel had advised that in her view the prosecution was unlikely to result in a conviction. It is a matter of no little regret that when the Crown Prosecution Service was invited by the judge to explain the position, it did so by means of a letter which did not state that this advice was given, nor did it decline to reveal whether it had been given or not, as might have been permissible; rather it carried the implication that there had simply been a discussion between counsel and the lawyer which did not involve such advice. The decision is no doubt that of the lawyer within the Crown Prosecution Service. It is possible no doubt for a trial advocate sometimes to be cautious about the likely outcome of a pending trial. However, counsel is instructed for his or her trial experience which will not necessarily be shared by the decision-making lawyer. Her considered opinion was highly relevant and it ought to have been accorded considerable weight.
C. Contrary to the submission which we understand to be made in writing on behalf of the Crown Prosecution Service, the fact that the judge determined, correctly, at the conclusion of the Crown case that there was a case to answer does not demonstrate that the decision to proceed with the prosecution had been right. As the Code for Crown Prosecutors makes very clear, the decision whether to prosecute involves an examination of the evidence as a whole and, critically, an assessment of whether a conviction is more likely than not - see paragraphs 4.5 and 4.6 of the Code. When a judge is deciding whether there is a case to answer, he is applying a wholly different test - see
R (B) v Director of Public Prosecutions
[2009] EWHC 106 (Admin)
,
[2009] 1 WLR 2072
at paragraphs 47 and 48. The judge is taking the Crown evidence -- and in a case like this that means the evidence of the complainant -- at its highest. Absent a case of evidence which no reasonable jury could possibly believe, the judge is not entitled to ask himself whether or not the jury is likely to accept the evidence. That, however, is exactly the question which a prosecutor is required by the Code to address. The prosecutor, in other words, is not doing her job properly if she simply says to herself "If the complainant is believed this is rape" and thinks no further.
15.
That said, the question in this case was not whether the decision to prosecute was right or wrong. It is simply not the judge's function to sit on appeal from a decision of the Crown Prosecutor. There may be very rare cases where the decision is wholly unreasonable.
R (Oddy) v Bugbugs Ltd
[2003] EWHC 2865 (Admin)
was a different case altogether. That prosecution was brought by a private interest group in pursuit of a commercial objective. The point at issue was one of pure law. It had been decided previously against the prosecution. There could have been a challenge to the ruling by way of appeal to the High Court but there had been none. Unlike that case, in most cases such as the present, there will be room for a legitimate difference of opinion. It is important that the making of that decision should not be overshadowed by the fear that if a prosecution is continued and fails there may be an order for the payment of costs. An acquitted defendant will normally receive his costs from central funds unless there is a good reason why he should not. We do not say that there will never be a case where a decision to prosecute is so unreasonable that a costs order is appropriate, but we are satisfied that this case was not arguably such. Here, the complainant's evidence
might
have been assessed as likely to be accepted. The flatmate's evidence
might
have been assessed as capable of disbelief. There was, we note, some material which perhaps suggested possible partiality. There were, it was said, some possible injuries to the complainant. We want to make it clear that we simply do not know whether the decision to prosecute was right or wrong. It is clear that it was made in good faith. Supposing, however, that it was a wrong judgment on a difficult issue, that is not enough to justify an order for costs and it would not have been even if the relevant powers had been properly considered. The judge's pejorative reference to political correctness was ill conceived and inappropriate. There was no basis for his conclusion that no thought had been given to this case.
16.
Accordingly, we allow the appeal and quash the orders apparently made without jurisdiction under
section 19A
. In order finally to resolve this matter and to avoid the need for expensive separate proceedings, we agree to the application to us to sit as a Divisional Court of Queen's Bench. All possible parties to the Crown Prosecution's application for judicial review have been notified that we might be asked to do so and none wishes to make any representations against our doing so, or against a grant of judicial review and an order quashing any order, if it was made under
section 19
. On the undertaking of the Crown to lodge a claim form for judicial review within 48 hours of today, we abridge all time limits, we grant permission to move for judicial review and on the application we quash any order that was made, if it was, under
section 19
of the Prosecution of Offences Act. | {"ConvCourtName":[""],"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":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Costs order"],"AppealGround":["Order made without jurisdiction under section 19A of the Prosecution of Offences Act 1985; alternatively, order defective under section 19 and regulation 3"],"SentGuideWhich":["section 19A of the Prosecution of Offences Act 1985","section 19 of the Prosecution of Offences Act 1985","regulation 3 of the Costs in Criminal Cases (General) Regulations 1986","section 19B of the Prosecution of Offences Act 1985"],"AppealOutcome":["Allowed & Order Quashed"],"ReasonQuashConv":["Order made without jurisdiction under section 19A; if made under section 19, order was defective in law for failure to specify power, quantify costs, and allow representations"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
Case No:
2006/00331/D3
Neutral Citation Number:
[2007] EWCA Crim 3052
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Monday, 26th November 2007
B E F O R E:
LORD JUSTICE MOORE-BICK
MR JUSTICE WILKIE
THE RECORDER OF CHESTER
(
sitting as a judge of the Court of Appeal, Criminal Division
)
R E G I N A
-v-
CHRISTOPHER MACIAN JONES
Computer Aided Transcript of the Palantype 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 G Elias QC
and
Mr ARF Vines
appeared on behalf of the
Applicant
Mr R L Thomas QC
and
Ms S Ferrier
appeared on behalf of the
Crown
J U D G M E N T
1.
LORD JUSTICE MOORE-BICK: On 19th December 2005 in the Crown Court at Cardiff, before the Recorder of Cardiff, His Honour Judge Griffith Williams QC, the applicant, then aged 21, was convicted of murder. On 21st December 2005 he was sentenced to life imprisonment, with a minimum term of 13 years. Also on 21st December 2005 the applicant's brother, Stewart Jones, then aged 31, having earlier pleaded guilty to the murder, was sentenced to life imprisonment with a minimum term of 15 years.
2.
The applicant applies for leave to appeal against conviction, his application having been referred to the Full Court by the Single Judge.
3.
The applicant, Christopher Jones, is one of three brothers: Stewart, who is known as “Sam”, Christopher, the applicant, and Matthew. Stewart Jones was referred to throughout the trial as "Sam" and we propose to do the same.
4.
The deceased, Mrs Shirley Oliver, had a grown-up daughter Stephanie who had some time previously been in a relationship with Matthew Jones. It appears that during that relationship Matthew had paid for some repairs to her car and may not have been reimbursed for them.
5.
On Friday 4th February 2005 Mrs Oliver went out for the evening, as did Sam and the applicant. Towards the end of the evening they were all at the same nightclub. At about 4.0 am CCTV cameras outside the nightclub recorded her, the applicant and Sam walking to a car park, where they all got into the applicant's motor car and drove off.
6.
About half an hour later, Mrs Oliver's body was seen lying in a side road. The police were called, but at the time they arrived, which was about 5.30 am, she was dead. Her neck had been broken.
7.
Meanwhile, the applicant and Sam had gone to Sam's flat and, after changing their clothes and showering, had gone to a garage, where they were again recorded by a CCTV camera. The applicant then drove to a shrubby area, where Sam hid Mrs Oliver's handbag.
8.
The applicant and Sam were both arrested and on 11th February were interviewed. Subsequently, they were both charged with the murder of Mrs Oliver.
9.
In due course Sam admitted that he had killed Mrs Oliver and on 7th September 2005 he pleaded guilty to her murder.
10.
The applicant did not dispute that Sam had murdered Mrs Oliver, but he denied having been a party to the crime. He was interviewed on no fewer than eleven occasions and in the course of those interviews he described how a row had broken out between Sam, who was sitting in the back seat of the car, and the deceased, who had been sitting in the front passenger seat, over the outstanding amount due in respect of the repairs that Matthew had carried out to her daughter's car. The applicant said that Sam had put his arm around the deceased's neck, strangling her, while he, the applicant, was driving. The applicant stopped the car in a narrow lane and pulled the lifeless body (as he then believed it to be) from the car.
11.
The applicant originally told the police that he had lent his shoes to Sam, but later he admitted that he had been wearing them. He admitted that he had lied about that because he was worried that there might have been blood on them.
12.
In the applicant's tenth interview, having had what he described as a ‘flashback’, he said that Sam had yanked Mrs Oliver's head back and that he had heard a crunching noise. He said he could do nothing to stop it. He said that by mistake or in panic he might have run on top of her body as it lay on the ground, but he said any contact with her was accidental and he thought she was by that time already dead. The applicant also said by way of explanation that he had been bullied by Sam for many years and was frightened of him. He said that throughout the whole of the incident he had obeyed Sam's instructions out of fear for his own safety.
13.
The trial at Cardiff Crown Court took place between 5th and 19th December 2005. A pathologist, Dr Derek James, gave evidence that the cause of death was blunt force to the neck. The injuries were consistent with strangulation and hypertension, which broke the deceased's neck, but other injuries were also found on the body, in particular serious bruising of the breast and ribs. Those, he said, were consistent with stamping and must have been caused before death. There were finely detailed marks of footwear on the deceased's body.
14.
Another expert witness, Dr Peter Williams, gave evidence that the footwear marks were consistent with the applicant's shoes. None of that expert evidence was challenged.
15.
The applicant, who was of previous good character, gave evidence. He said that Sam had bullied him for years, but he went about with him from time to time because he did not like going out on his own.
16.
He described meeting Mrs Oliver at the club. He said she was drunk and that he had offered her a lift home. He described the argument and said that he had just turned up the music and kept on driving.
17.
He then described how Sam had put his arm round Mrs Oliver's neck and with his other hand had yanked her forehead back. He said she sounded as though she was struggling for breath. Shortly after he heard a crunching sound and she stopped sounding as though she was struggling for breath. The applicant said that he had continued to drive in a state of what he described as panic, and largely at his brother's direction, until he was told to stop in a narrow lane. There he said Sam told him to get Mrs Oliver out of the car and he did so. He did not think that she was still breathing at that time.
18.
He said that as he was heading back towards the car he saw Sam staring nastily at him. He panicked and, terrified and hoping to avoid being hit by Sam, he stamped twice on Mrs Oliver's body, but not with full force. Again he said he thought that she was already dead at that time.
19.
He then described how he and Sam had driven to Sam's flat where they had both had a shower and he had changed his shoes. They had a smoke and went to their mother's house for the rest of the night.
20.
The applicant's mother gave evidence that the applicant had low self-esteem, poor concentration and had needed special schooling. She also confirmed that Sam had been abusive towards him and had bullied him from his youth onwards.
21.
The applicant's other brother Matthew gave evidence. He said that Christopher was hard to get on with and frightened of both his brothers.
22.
The issue for the jury in this case was whether or not the applicant had been a party to the murder with Sam. By their verdict they made it clear that they were sure that he had.
23.
The only ground of appeal which now remains is that new evidence has become available since the trial which casts such doubt on the applicant's guilt as to render the conviction unsafe. This is not an uncommon ground of appeal, but this case is perhaps unusual in as much as the evidence takes the form of new evidence from Sam describing the circumstances in which Mrs Oliver met her death.
24.
We have been provided with a written statement made by Sam on 10th January 2006 and two affidavits of Mr Neil Evans, the solicitor acting for the applicant, who also acted for him at trial. We have also been provided with copies of various documents brought into being prior to and in connection with the trial, including copies of proofs taken from Sam for the purposes of the trial and other material.
25.
To put the present application in context, it is necessary to say a little bit more about the background.
26.
On 10th February 2005, in the course of an interview, Sam read a prepared statement in which he admitted killing Mrs Oliver. He said that his recollection was patchy, but the description he gave of events that had occurred after leaving the nightclub was generally consistent with the evidence subsequently given at trial by the applicant. Following the receipt of advice from a consultant psychiatrist on 7th September 2005, Sam pleaded guilty to the murder of Mrs Oliver.
27.
On 12th September Mr Evans approached Sam's solicitor, Mr Malekin, with a request that he be allowed to interview Sam with a view to calling him as a witness for the defence. Mr Malekin said that he would have to speak to his client and to counsel before he could respond to that request. On 23rd September Mr Evans put his request in writing in the form of a letter to Mr Malekin, but he received no response. He wrote again on 11th November, but again received no reply. Eventually, however, on 28th November Mr Evans managed to speak to Mr Malekin, who said that he would be advising Sam about the disadvantages of giving evidence in support of his brother. Finally, on 6th December Mr Evans received a letter from Mr Malekin stating that both he and counsel considered that it would be inappropriate for him to approach Sam. Enclosed with that letter was a document signed by Sam and dated 4th November 2005 stating that he had been advised by his solicitor not to give evidence and appreciated the reasons for that advice.
28.
As a result of those exchanges Mr Evans considered that it would be unprofessional for him to seek to obtain a proof from Sam and no further steps were taken to call him as a witness at the trial. However, on 21st December 2005, after the applicant had been sentenced, Sam wrote a letter to Mr Evans saying he had not refused to give evidence but that his lawyers had advised him against doing so. That prompted Mr Evans to take further steps. In due course he took a statement from Sam on 10th January 2006 in the form that we now have before us.
29.
We considered that it would be of assistance for the court to hear Sam give his evidence in case we decided that it would be appropriate, after hearing legal argument, to receive it in support of the appeal.
30.
In his evidence Sam described what took place in the car after he and the applicant left the nightclub with Mrs Oliver. He says that he attacked her in the car after an argument, putting his forearm round her neck and strangling her from behind. The applicant, who had avoided becoming involved in the argument, had driven the car at his direction to a narrow secluded lane. When they reached the lane, he said the applicant had pulled Mrs Oliver out of the car and dragged her a short distance from it. He (Sam) then attacked her again. As he was leaning over the body the applicant approached him wielding what he described as a crooklock from the car in a threatening way as if to make him stop and grabbed him by the arm. Sam told us that he had pushed the applicant away and as the applicant moved away he turned and stamped twice on Mrs Oliver's torso, but not, he thought, very hard. Then the applicant drove off, while he made a further attack on Mrs Oliver. Sam said he then left on foot, following the route taken by the car and to his surprise found the applicant waiting for him with the car at the end of the lane.
31.
In the course of his evidence Sam confirmed that he had bullied the applicant throughout his youth and on one occasion had grasped him by the throat as if to strangle him. At that point he was pulled off by his brothers or his mother.
32.
Counsel submitted in the course of argument that the account given by Sam to this court was broadly consistent with the various accounts he had given throughout the period leading up to his plea of guilty.
33.
Section 23 of the Criminal Appeal Act 1968 provides, so far as material to this case, as follows:
"23. Evidence.
(1) For the purposes of an 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."
34.
Evidence from Sam concerning what had occurred after he and the applicant left the nightclub in the company of Mrs Oliver would, we accept, have been admissible at the trial. Indeed, apart from the applicant, Sam was the only person who could give direct evidence about the circumstances in which Mrs Oliver met her death. That leads to a consideration of whether the evidence he gave appears to be capable of belief, whether we consider that it may afford grounds for allowing the appeal and whether there is a reasonable explanation for the failure to adduce it at trial.
35.
We propose to deal first with the question whether there is a reasonable explanation for the failure to adduce the evidence at trial. In substance, what is said is that Sam through his solicitors had expressed an unwillingness to give evidence. It was therefore professionally or practically impossible to obtain a proof from him, and in those circumstances (in the words of Mr Elias) tactically inconceivable to compel his attendance at the trial by means of a witness summons.
36.
The question whether an appellant should be allowed to rely in support of an appeal against conviction on evidence from a co-defendant who could have been, but was not, called to give evidence at the trial has been considered by this court in a number of cases. We were referred to the case of
R v Boal and Cordrey
[1965] 1 QB 402, an appeal arising out of the prosecution of the Great Train Robbers, and to
R v Stokes
(unreported, 2nd May 1997).
37.
It is unnecessary to refer in detail to the decision in
Boal and Cordrey
, (although we found it helpful to have it drawn to our attention) because since 1965 changes to the statutory regime governing appeals have given the court wider powers to receive evidence in support of an appeal.
Stokes
, however, remains an important case as far as this application is concerned. In that case the appellant sought to challenge his conviction for importing controlled drugs by reference to evidence from a co-defendant, Quinton. Quinton had pleaded guilty and had therefore not appeared at the trial. At that stage he had been unwilling to give evidence in support of Stokes, mainly, it appears, because he was advised by his lawyers that to do so might adversely affect his own case when it came to sentence.
38.
Although Quinton was a competent and compellable witness, the defence decided not to compel his attendance by means of a witness summons because they knew he was unwilling to give evidence in support of their case. Judge LJ, giving the judgment of the court, noted that the evidence of Quinton would have been admissible and referred to the explanation for the failure to call it. He continued:
"The problem with this explanation is that it overlooks an essential principle, which is that there should be one trial and in the course of that trial each side must put before the jury the evidence on which it seeks to rely. When the defence is aware of a potential witness available to be called and elects not to call him merely because of an expressed unwillingness on the part of the witness to give evidence, there will very rarely be occasions when the court would regard that as a reasonable explanation for failing to call him."
39.
Judge LJ went on to explain why that should be so in the following terms:
"It is perhaps unnecessary in addition to spell out the obvious possibilities for manipulation and subversion of the entire trial process which could arise if it were possible for the defence to decide not to call a competent compellable witness to give evidence at the trial merely because of an asserted 'unwillingness' to be called, and then after conviction to seek after all to do so. This consideration applies with particular force to a witness who was involved in, or connected with, the crime of which the appellant has been convicted. One reason for not calling such a witness before a jury is that he may well be disbelieved by them, particularly if he has been convicted, whether on his plea or after a trial. Certainly his evidence would rightly be approached by the jury with considerable suspicion, and if less than utterly convincing would serve to tarnish the defence case in the eyes of the jury. In summary, even after the coming into effect of section 4(1) of the 1995 Act the defendant is not entitled to have the best of both worlds. Save in a very rare case he simply cannot decide not to call a witness at his trial and thereafter if convicted seek to call him as additional 'fresh' evidence before the Court of Appeal."
40.
Mr Elias QC submitted that the present case could be distinguished from
Stokes
because in that case there had been a good deal of contact between the appellant and Quinton during the period immediately prior to the trial, the assumption being that the appellant knew what Quinton was likely to say if called as a witness, whereas in the present case there had been no direct contact between the applicant and Sam, and the contents of Sam's police interviews suggested that he could not remember very much about those parts of the incident that were important to the applicant's defence.
41.
Mr Elias also reminded us that ultimately the question for the court is not whether there is a reasonable explanation for the failure to adduce the evidence at trial, but whether the conviction is safe: see
R v Jones (Steven)
[1997] 1 Cr App R 86.
42.
In his skeleton argument Mr Elias drew our attention to two cases in which, despite the absence of any reasonable explanation for failing to adduce the fresh evidence at trial, the court received it in support of the appeal and quashed the conviction. The facts of those cases are very far removed from those of the present case, but they serve to cast some light on the principles involved.
43.
The first of these cases was
R v Loughran
[1999] Crim LR 404. We have been provided, by the courtesy of counsel, with a copy of the transcript of that case. In that case the appellant had been convicted at a retrial of offences of rape and robbery. He said that there had been an attempt at sexual intercourse with the consent of the complainant, but the penetration had not occurred. He denied robbery. At the time of the alleged offence he was suffering from a physical condition which might or might not, depending on the reaction of the jury, have assisted his defence if they had been made aware of it. Both at the original trial and at the retrial the appellant had decided, on legal advice and for tactical reasons, not to place before the jury evidence of his condition. Despite that, the court received the evidence which it considered cast serious doubts on the credibility of the complainant, and quashed the conviction, emphasising that ultimately the question for the court is whether the conviction is safe.
44.
The second case was
R v Solomon
[2007] EWCA Crim 2633
(unreported). That was an even more unusual case. The appellant was charged with the rape and buggery of two girls under 16. At the trial he sought to rely on a video of their visit to his premises at which the offence was alleged to have been committed which itself showed nothing untoward taking place. However, the video had been edited and in due course it was exposed as a fake. The trial was abandoned and a new trial was ordered. At the retrial the appellant again sought to rely on the video as showing everything that had occurred between him and the complainants. He did not give evidence and was convicted.
45.
Some time after his conviction the appellant produced another video showing him indulging in consensual sexual activities with the girls, which did not disclose the offences of which he had been convicted but did disclose offences of a less serious nature. For tactical reasons he had attempted to escape conviction altogether by using the edited video, and for that reason had not produced the genuine video in his defence.
46.
When giving the judgment of the court Lord Phillips CJ recognised that, even where there is no reasonable explanation for a failure to produce evidence at trial, the court can, if so minded, admit that evidence in support of the appeal if it concludes that it would have had a significant effect on the proceedings. However, he also emphasised that it is only in quite exceptional circumstances that the court will admit fresh evidence on appeal where the evidence has been deliberately withheld at the trial for tactical reasons. The court in that case did consider the case before it to be quite exceptional, because, as a result of the appellant's suppression of the evidence, he had been convicted of offences carrying significantly more severe sentences than the offences that he had actually committed, and indeed had served the sentences imposed upon him.
47.
In our view, the present case is not of an exceptional nature. It is in truth simply a case in which the co-defendant, acting in his own best interests and in accordance with legal advice, decided not to give evidence at the trial on behalf on behalf of the applicant, but has since volunteered evidence that tends to exculpate him. In that respect it seems to us to be indistinguishable from
Stokes
.
48.
Once Sam had indicated that he would not give evidence voluntarily, those acting for the applicant were no doubt faced with a difficult decision. Apart from the evidence linking his shoe to the bruise on the deceased's torso, which suggested that he had been an active participant at that stage, the case against the applicant was almost entirely circumstantial and relied heavily on the lies that he had told, both to his mother and interview; the fact that he had not attempted to stop the attack; the fact that he had continued to drive the car to a secluded place; and the fact that he had helped remove the body; together with the evidence of the CCTV recording of his behaviour at the garage. In the absence of any evidence directly contradicting the applicant's account of what had happened, they may have thought that there was a good chance that the jury would not be able to be sure that he had participated in the murder. Without having a clear idea of what Sam would say if called as a witness, there was an obvious risk that calling him would do more harm than good.
49.
Nonetheless, this is not a case in which it can be said that the witness was not available, had the decision been made to call him. Indeed, it is a case in which it can be said that the decision not to call the witness was dictated by perfectly sensible tactical considerations. The applicant, or those instructing him, considered that on balance it was preferable not to call Sam as a witness than to call him.
50.
In our view, it is difficult to distinguish this case from
Stokes
. The court in that case does not appear to have based its decision on the fact that the appellant knew what Quinton would say if called, which is itself by no means clear. Indeed, whenever a co-defendant who has pleaded guilty is unwilling to give evidence there must be doubt about exactly what he would say if he were compelled to testify. Apart from anything else, he would have his own interests to serve, at least until sentence has been passed.
51.
Finally, in the conduct of litigation, including criminal litigation, finality is viewed as a matter of considerable importance and the courts have always been very reluctant to reopen final decisions on the basis of evidence that could have been, but was not, adduced at trial. The dangers of any other rule are obvious and were spelled out by the court in
Stokes
.
52.
If the court were to receive fresh evidence in this case, it could only be on one of two grounds: that whenever a co-defendant has refused to give evidence in support of the applicant there is a reasonable explanation for the failure to adduce the evidence at trial; or that it is one of those exceptional cases in which, having regard to all the circumstances, the evidence is of such importance that it clearly renders the conviction unsafe.
53.
As to the former, it is impossible in the light of the authorities to accept that a co-defendant's unwillingness to give evidence itself provides a reasonable explanation for the failure to adduce the evidence at trial. We have already referred to what was said in
Stokes
by Judge LJ on this point; the same point is made in other cases.
54.
As to the latter, the fact that the evidence tends to exculpate the appellant is not by itself enough, as again is clear from
Stokes
, in which the statement provided by Quinton purported to exculpate the appellant. There must be something which enables the court to be satisfied that, despite the failure to adduce it at trial, the evidence is of such importance that it clearly undermines the safety of the conviction and so makes it necessary or expedient to receive it.
55.
We have already summarised Sam's evidence, which we have to say we did not find wholly impressive. He was briefly but effectively cross-examined by Mr Thomas QC, who was able to expose serious weaknesses in his account viewed from the perspective of the applicant. In particular, Sam was unable to give any explanation for the applicant's stamping on Mrs Oliver's body and did nothing to undermine or explain the evidence of what had occurred after the murder, such as inexplicably finding the applicant waiting nearby with the car, his driving them both back to his flat, the subsequent visit to the garage to buy drinks and cigarettes, where the applicant was observed to be in a relaxed and jovial mood and the evidence of his acting generally in a manner that suggested he was supporting his brother.
56.
Mr Elias reminded us of the case of
R v Pendleton
[2002] 1 Cr App R 441
, in which Lord Bingham observed that it is for the court itself to determine whether the evidence is capable of belief and whether it appears to afford grounds for allowing the appeal, although in doing so it is entitled to take into consideration what effect the evidence might be expected to have had on a jury. Taking Sam's evidence as a whole, we recognise that much of it is consistent with what he said during the months prior to trial and we are prepared to accept that some parts of it, though not all, are capable of belief. But it does little to advance the applicant's case in relation to those aspects of the matter that were central to his defence. In particular, it failed to deal in a remotely satisfactory way with the matters that were put to him in cross-examination and to which we have just referred.
57.
Accordingly, we do not consider that this is a case in which it is necessary or expedient in the interests of justice to receive this new evidence, both because no reasonable explanation has been given for failing to adduce it at trial and because we do not think that it undermines the safety of the conviction or affords grounds for allowing the appeal.
58.
A second ground of appeal based on the learned judge's direction to the jury in relation to participation in the offence is no longer pursued. In those circumstances, the application must be dismissed.
59.
Mr Elias, thank you very much for your assistance. There is nothing else we need to deal with, is there?
60.
MR ELIAS: I think not, my Lord.
61.
LORD JUSTICE MOORE-BICK: Mr Thomas?
62.
MR THOMAS: No thank you, my Lord.
63.
LORD JUSTICE MOORE-BICK: Thank you very much as well.
______________________________ | {"ConvCourtName":["Crown Court at Cardiff"],"ConvictPleaDate":["2005-12-19"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Cardiff"],"Sentence":["Life imprisonment with a minimum term of 13 years"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[21],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["CCTV","Pathologist expert testimony","Footwear mark expert testimony"],"DefEvidTypeTrial":["Defendant testimony","Mother's testimony","Brother's testimony"],"PreSentReport":[],"AggFactSent":["offence committed with co-defendant","victim was stamped on after death"],"MitFactSent":["offender showed genuine remorse","offender was bullied by co-defendant","offender had low self-esteem and special schooling","offender was of previous good character"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["fresh evidence from co-defendant"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["no reasonable explanation for failure to adduce evidence at trial","fresh evidence does not undermine safety of conviction"]} |
2019/01064/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number:
[2019] EWCA Crim 1540
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 2 July 2019
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE NICOL
and
MR JUSTICE FREEDMAN
_________________
R E G I N A
- v -
CARMELO SPERDITO FARRUGIA
____________________
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__________________________
Mr B Clark
appeared on behalf of the Appellant
______________________
J U D G M E N T
(
For Approval
)
______________________
Tuesday 2
nd
July 2019
MR JUSTICE FREEDMAN:
1.
This is an appeal against sentence brought with the leave of the single judge.
2.
On 27 February 2019, in the Crown Court at Basildon, the Appellant was sentenced to 7 ½ years' imprisonment for an offence of aggravated burglary, contrary to section 10(1) of the Theft Act 1968, to which he had pleaded guilty at the plea and trial preparation hearing.
3.
On 6 August 2018, at about 11:00am, the victim was at home by herself. She was upstairs in the family home. She saw at the front door a person she believed to be a postman wearing a red hat with a Royal Mail logo on it. He indicated that a letter needed to be signed for. She opened the door. He barged through, put his hand over her mouth and forced her onto the ground in the porch. She struggled with him and struggled to breathe. She tried to scream and to kick. Two other men stepped over her and entered the house. She was pulled to her feet and passed to one of the intruders who threw her onto a sofa. She was told to shut up and to be quiet. A pillow or cushion was held over her head, face down. She could hear the other men walking around upstairs. They were apparently looking for something. She was marched upstairs and pushed into her own bedroom. One man ripped a panel off the bath. She was pushed into her parents' bedroom and then into the box room. She saw two of the men coming down from the attic. She was taken downstairs and there was a discussion about the shed. In the extension she was told to face the wall and to shut up. One man took two cable ties from his pocket which he used to bind her wrists behind her back. She thought that she was to be kidnapped, because the "postman" had a sheet. She was told to stay put. The men ran off. Within a minute, she freed herself. The incident lasted about ten minutes.
2
4.
A neighbour saw three men approach and go to a silver works van. She took a videorecording on her mobile. The van belonged to the Appellant. It had been bought from DEFRA and a tracker device remained operational. The van was abandoned at a football ground at about 11:45am that same morning.
5.
The Appellant was arrested the following evening as he was about to board a flight to Malta. He first claimed that he had sold the vehicle two days earlier, until he was shown a picture of him filling it up with fuel on the day of the offence. Thereafter, he declined to comment in interview.
6.
His case was that he was outside throughout, but part of a joint enterprise. Even if the plan had been to enter the property once the victim's father had left, the burglary continued, even when it was apparent that the home was plainly occupied, as the wearing of the postman's hat makes plain.
7.
The victim sustained grazes to her back and shoulder. Nerve damage to one foot has led to the loss of feeling. In her Victim Personal Statement, among other things, she explains her consequential severe anxiety and her time off work as a police constable due to worry and stress. She cannot be alone at home for fear of another attack. Her sleep is affected and she worries about going out at night.
8.
In seeking to minimise the impact of the Victim Personal Statement, it was suggested on the Appellant's behalf that improper pressure may have been applied on the victim by a colleague in connection with that statement. There is no evidence at all to support that suggestion and we
reject it.
9.
The Appellant is aged 32. He has previous convictions. His last sentence for theft led to a sentence of 23 months' imprisonment in 2011. In 2008 he was sentenced to 2 years' imprisonment for taking motor vehicles without consent.
10.
In his sentencing remarks the judge rejected the submission that this was a Category 2 case on the basis of lesser harm and higher culpability. It was Category 1 on the basis of greater harm and higher culpability. The victim's problems were ongoing and likely to remain so. Greater harm was established by her significant psychological injury, physical injury and the fact that the offence was committed in her home. Factors indicating higher culpability were: a significant degree of planning, the house was targeted, and it was a group attack.
11.
The starting point within the sentencing guidelines was 10 years' custody, with a range of 9 to 13 years. For this extremely serious aggravated burglary, the starting point of 11 years was appropriate, before any reduction for mitigation or guilty plea. The Appellant's mitigation was that in prison he had undertaken courses and had aided and assisted others. There were no recent previous convictions. The judge thus reduced 11 years to 10 years to reflect the Appellant's progress. A discount of 25 per cent for a guilty plea at the plea and trial preparation hearing further reduced the term to 7 ½ years' imprisonment.
12.
This morning the appellant repeats his argument as to category. Even if the offending fell into category 1, he says, it was at the lower part of the scale. He argues that the only indicator of greater harm was that the victim was at home and was moved around during the search. He argues that too much emphasis was placed on this. The burglary was committed over a relatively brief period during which the intruders were plainly more interested in finding something, rather than in the victim.
Conclusion
13.
This argument ignores the terrifying nature of the victim's ordeal and its consequences, which justified the judge's view that this was a Category 1 case. The alternative submission that even if the offending fell into Category 1, the starting point should be in the lower part is hopeless, as the judge's careful analysis makes plain. Indeed, it was generous to allow a reduction of 1 year to reflect progress in prison over a few months prior to sentence.
14.
There is nothing in the points raised before this court. This appeal against sentence is therefore dismissed.
_____________________________________
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Email: [email protected]
________________________________ | {"ConvCourtName":["Crown Court at Basildon"],"ConvictPleaDate":["2019-02-27"],"ConvictOffence":["Aggravated burglary"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["plea and trial preparation hearing"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Basildon"],"Sentence":["7 ½ years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[32],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Video recording (neighbour's mobile)","Vehicle tracker evidence"],"DefEvidTypeTrial":["Offender denies entering house","Claimed to have sold vehicle"],"PreSentReport":[],"AggFactSent":["Significant degree of planning","House was targeted","Group attack"],"MitFactSent":["No recent previous convictions","Progress in prison (undertaken courses, aided others)"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge wrongly categorised offence as Category 1; too much emphasis on victim being at home and moved around"],"SentGuideWhich":["Sentencing Council's (definitive) Guideline for Aggravated Burglary"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's categorisation as Category 1 justified by psychological and physical harm and circumstances; sentence reduction for progress in prison was generous; no merit in appeal arguments"]} |
Neutral Citation Number:
[2007] EWCA Crim 1239
Case No:
2006/00338D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CANTERBURY CROWN COURT
HIS HONOUR JUDGE VAN DER BIJL
T20050041
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
24 May 2007
Before :
LORD JUSTICE THOMAS
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE WYN WILLIAMS
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Cornel Tirnaveanu
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Nick Wrack
and Dean George
for the
Appellant
Anthony Prosser and A Walker
for the
Respondent
Hearing date: 8 March 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Thomas :
1.
After a two month trial, the appellant and his wife were convicted at the Crown Court at Canterbury before HH Van Der Bijl and a jury of various offences (including obtaining property by deception, forgery and facilitating illegal entry) relating to the illegal entry into the United Kingdom of Romanian immigrants. Sentences of varying duration, some of them consecutive, amounting in total to seven years were passed on the appellant.
2.
His application for leave to appeal against conviction, as originally formulated, contained a very significant number of grounds. That application was referred to the Full Court on the understanding that, if leave to appeal was granted, a full hearing would follow; we granted leave to appeal. The grounds of appeal were significantly revised and can be grouped under three headings
i)
The admissibility of misconduct on other occasions and the directions given in the summing up in the light of the bad character provisions of the
Criminal Justice Act 2003
(CJA 2003).
ii)
The need for a direction on unanimity on the forgery counts.
iii)
The validity of count 12 - the charge of facilitating illegal entry.
The most important of these, both to the appellant and generally, was the first.
3.
As can be appreciated from the length of the trial, the circumstances in which the offences were committed and the evidence adduced by the prosecution were complex.
The factual background and evidence
4.
However for the purposes of the appeal we consider the background circumstances can be summarised briefly.
i)
The appellant was a Romanian national. He came to the United Kingdom in August 1993; after marriage to a British national, he was granted indefinite leave to remain in this country. That marriage was dissolved. On 13 June 2002 he married his co-defendant; prior to the marriage, using the name of Denise Dupont, she had lived with him in the United Kingdom at 9a Chancelot Road, Abbey Wood, London from November 2000 until June 2003. From June 2003 the appellant and his co-defendant lived at 85 Chandlers Drive, Erith and then at 33 Wallhouse Road, Erith.
ii)
In September 2002 the appellant obtained from a bureau in London, by payment of £440, what purported to be a degree of Bachelor of Laws with Honours in Criminal Law granted by Trinity College, Delaware, USA. He was granted British citizenship in May 2003.
iii)
It was the prosecution case that he had become involved by December 2002 in illegal immigration and was posing as a solicitor. On his arrest there was found in his possession business cards with the inscription of the appellant’s name, and “LLb(Hons), solicitor, of Tiko Solicitors, 24 Hr. Criminal Emergency Services” with an address in Dartford. There were no such solicitors.
5.
He was not charged with conspiracy, but with a number of specific counts in the indictment. The essence of the main allegations can again be summarised briefly.
i)
In count 1 of the indictment, he was charged, with his second wife, of making, or procuring the making, of a false French identification card in the name of Denise Dupont. The evidence relied on for this was the discovery by the police when searching the premises at 85 Chandlers Drive of a document purporting to be a French identify card in the name of Denise Dupont; when it was forensically examined, it was found to be counterfeit. The prosecution case was that Denise Dupont was the appellant’s wife and that the appellant made or procured the making of the false identity card. There was no issue that it was counterfeit; the issue was whether there was a Denise Dupont or whether the person for whom the card was to be used was the appellant’s wife and who procured or made the false identity card.
ii)
In counts 8-12 of the indictment the appellant was charged with a number of offences in relation to Monica Halarescu;
a)
Obtaining two sums of £3,500 from her by deception.
b)
Making or procuring the making of a false British passport in the name of Monica Halarescu;
c)
Making or procuring the making of a forged certificate of British naturalisation in the name of Monica Halarescu (Counts 10 and 11);
d)
Facilitating the illegal entry of Monica Halarescu (Count 12).
It was the prosecution case that he had falsely represented to her that he was a qualified solicitor, worked for the Home Office, was authorised to facilitate her application for a certificate of British nationality and a British passport, could supply such documents and was acting in good faith. The prosecution called Monica Halarescu and Nicolae Bilbie as their principal witnesses. Monica Halarescu’s evidence was she had met through Nicolae Bilbie a man who had said he was “Cornel Tirnaveanu” and that he was a lawyer working at the Home Office. It was the prosecution case that this individual was the appellant. Various representations were made to her as a result of which she handed over a total of £7,000 to that man and received from that man a UK passport and UK certificate of naturalisation. She went to Romania using the documents. On arrival the fact that the documents were forged was discovered; the fact that they were forged was not in issue. Bilbie’s evidence was he had given Monica Halarescu photographs of himself and personal details. When the police searched the appellant’s address, photographs of Bilbie were found at his house. Bilbie never met the lawyer who was to obtain a British passport for him.
iii)
In counts 13 to 18 of the indictment, the appellant was charged with obtaining £5,000 from Stefan Iamandi, Irina Iamandi and Ion Iordache by making representations similar to those made to Maria Halarescu and attempting to obtain a further £5,000 from each of them. All three were Romanians who had entered the UK illegally in 1998. Their evidence was that they had been told of a lawyer with connections with the Home Office who could help obtain a British passport and certificate of naturalisation. In June or July 2003 they were introduced to a person they understood to be Cornel Tirnaveanu. The prosecution contended that this man was the appellant. The three had expected to meet an English lawyer but were surprised that he was a Romanian. He made various representations to them about his ability to obtain a passport and each handed to him £5,000 together with their passport photographs and details. They then learnt that a friend who had introduced them to Cornel Tirnaveanu and who had obtained a passport from him had been arrested for being in possession of a forged passport. When they were telephoned by Cornel Tirnaveanu with news that the passport was ready, they met him at a coffee shop but did not bring any money to the meeting. They were shown documents but on discovering that they had not brought the money Cornel Tirnaveanu refused to hand over the documents. When the police searched 85 Chandlers Drive they found details of these three together with photographs of Iordache. The police thereafter contacted them.
iv)
There were four further counts of facilitating illegal entry (counts 19, 20 and 21) and of forgery of a photocard driving licence (count 22). It is not necessary at this stage to refer to the details of those further matters.
6.
In his interviews with the police and in his defence case statement, the appellant denied each and every allegation. He put the prosecution to proof. He also claimed he was not involved. An elaborate conspiracy had been set up to “frame him” as the person who was acting as the lawyer. If he had been involved, then there was no dishonesty as those who paid him for documents, must have realised that it was all a “scam”. In the event, neither the appellant nor his wife gave evidence at trial.
7.
In addition to the evidence to which we have referred, a substantial number of other witnesses were called. It is in relation to that evidence that the first group of grounds of appeal arose.
(1)
Admission of evidence of misconduct on other occasions and the directions to the jury
(a)
The nature of the evidence
8.
In order to meet the appellant’s case that it was not him, but some other person, who was involved in the provision of forged passports or false documents or in the illegal assistance of immigrants, the prosecution primarily relied upon the evidence of those witnesses directly relating to the counts which we have set out above. However during a search of the appellant’s properties, the police discovered a significant amount of paperwork relating to other Romanians whom the prosecution contended were illegal immigrants. We have already referred to the paperwork in connection with Bilbie at paragraph 5 (ii) above and that in relation to Iamandi and Iordache at paragraph 5 (iii) above. No objection was taken to the admissibility of that evidence.
9.
However, the prosecution wished to go further and to adduce:
i)
Evidence in relation to other documents found at the appellant’s houses which contained details referable to illegal immigrants. The prosecution wanted to call, in connection with those documents, evidence from the immigrants and evidence from immigration officers in relation to such immigrants.
ii)
Evidence of others to show that the appellant was acting as a lawyer and dealing with illegal immigrants. This second category of evidence can be illustrated by the evidence of Colin Martin, a British national now living in Romania. He was involved, on his own admission, in assisting Romanians to enter the UK illegally. At the end of November 2002 8 out of a group of 10 illegal immigrants who were being brought into the UK by Martin were caught at Dover; a telephone call was placed to a lawyer called Cornel Tirnaveanu who subsequently met with Martin at Dover and gave him a document advertising a 24 hour non stop helpline which had on it the appellant’s telephone number and a business card with the appellant’s name on it to which we have referred at paragraph iii). It was Martin’s evidence that the person who met him admitted to Martin that he was involved in assisting the illegal entry of immigrants into the UK, including the provision of passports. The description given by Martin of the person he met did not coincide with the appellant; nor did Martin pick out the appellant at an identification parade. The prosecution sought, however, to prove that the person who met Martin was indeed the appellant by showing that the appellant’s mobile telephone (subsequently found at his address) was in Dover on the day when Martin met the lawyer at Dover. They also sought to prove that the appellant was the lawyer who, when visiting the Oakington Immigration Reception Centre, had assisted another illegal immigrant, Mocanu, whom Martin had brought into the country.
10.
The prosecution sought through this further evidence (examples of which we have set out) to prove that it was in fact the appellant who was engaged as a lawyer in assisting illegal Romanian immigrants and that it was not another person purporting to be the appellant as the appellant claimed.
(b)
The appellant’s contentions
11.
Submissions were made on behalf of the appellant that this further evidence should not be admitted. Although the judge ruled that some of the evidence was inadmissible, a substantial amount of the evidence was ruled to be admissible. That evidence was duly heard in the course of the trial and directions given in respect of it by the judge in his summing up.
12.
It was contended on behalf of the appellant that the judge was wrong to admit the evidence and, having admitted it, had failed to give proper directions to the jury. The ruling made by the learned judge was on 5 October 2005 and the summing up delivered on 13 December 2005. Although by that time the bad character provisions of the
Criminal Justice Act 2003
had come into force, there was little authority to guide the judge. Moreover, it is apparent, as was observed in
Chopra
[2006] EWCA Crim 2133
, that the sea change in the law effected by the CJA 2003 had not been fully appreciated. Since that time this court has given guidance on these provisions and we are grateful to counsel for their marshalling of the authorities.
(c)
The approach in the light of the CJA and the authorities
13.
It may be helpful therefore if we set out the way in which we consider the issue of admissibility and the summing up should have been approached in the light of those authorities and examine the effect of the judge’s ruling and the summing up on that basis. We do not think it necessary to consider the way in which the judge approached admissibility in detail; the issues can, we think, be addressed by 6 questions which we considered during the course of argument on the hearing of the appeal.
(i)
Was the evidence relevant?
14.
In approaching the evidential issues in this case, it was necessary first of all to establish that the evidence was relevant. It is usually essential, when seeking to establish relevance, to consider the specific issue in the case to which the evidence is relevant.
15.
In the present case it is clear that, as we have set out, the evidence in relation to the other immigrants was highly relevant to proving that it was the appellant who had committed the offences charged and not some other person posing as the appellant, as the appellant claimed.
16.
It was contended by counsel for the appellant before us that the prosecution did not need this evidence as it had the evidence of those who had been the victims of the specific conduct complained of. However as long as the appellant was putting forward the defence that it was some other person and not him, the evidence was plainly relevant and the prosecution were entitled to call other evidence to strengthen their case, provided it was admissible.
(i)
Was the evidence of “bad character”?
17.
Once it was established that the evidence was relevant, it was next necessary to consider whether the evidence was evidence of “bad character” as defined by Chapter I of
Part 11
of the
CJA
2003, because, if it was, that statutory regime governed all further issues of admissibility and abolished the common law rules. “Bad character” has a very far reaching definition.
18.
S. 98 of the CJA
2003 provides:
““Bad character”
References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –
a)
has to do with the alleged facts of the offence with which the defendant is charged, or
b)
is evidence of misconduct in connection with the investigation or prosecution of that offence.
S. 112 (1) defines misconduct as “the commission of an offence or other reprehensible behaviour”.
19.
There may initially have been some doubt as to whether an allegation of misconduct untested by a judicial finding was within the provisions. But as is clear from decisions of this court in
R v Edwards; R v Fysh
[2005] EWCA Crim 1813
(
[2006] 1 Cr.App.R.3
) at paragraphs 71 to 77,
R v Weir
[2005] EWCA Crim 2866
(
[2006] 1 Cr.App.R.19
) at paragraph 94,
R v Edwards and Rowlands
[2006] EWCA Crim 3244
([2006] 2 Cr App 4 at paragraphs 77-81 and
R v Leslie B.
[2006] EWCA Crim 2150
at paragraph 51, evidence that alleges the commission of an offence or other reprehensible behaviour is within the scope of the definition of misconduct.
20.
It was not in issue on this appeal that the evidence the prosecution sought to adduce was evidence of misconduct within the statutory definition.
(i)
Was the evidence “to do with the alleged facts of the offence”?
21.
S. 98 of the CJA
2003 excludes from the definition of bad character, misconduct on the part of a defendant which has “to do with the alleged facts of the offence with which the defendant is charged”. The contention of the prosecution was that the evidence was “to do” with the offences with which the appellant was charged. The consequence of that argument was that if the evidence was within the exclusion, then it was not for the purposes of the statutory provisions evidence of bad character and, as this court said in
R v Edwards and Rowlands
(at paragraph 1(i)) (as qualified in
Watson
[2006] EWCA Crim 2308
at paragraph 19), the evidence “may be admissible without more ado”.
22.
There is very little authority on the extent of this exclusion. In
R v Machado
[2006] EWCA Crim 1804
, the defendant charged with robbing a victim wished to use evidence that the victim had taken an ecstasy tablet shortly before the attack and immediately before the attack had offered to supply him drugs. This court held that the matters were in effect contemporaneous and so closely connected with the alleged facts of the offence and so were “to do” with the facts of the offence. In
Edwards and Rowlands
, this court observed at paragraph 23 that the term was widely drawn and wide enough to cover the finding of a pistol cartridge at the home of one of the defendants when it was searched in connection with the drugs offences with which the defendants were charged. In
McIntosh
[2006] EWCA Crim 193
, this court held that a matter immediately following the commission of the offence was “to do with the offence”. In
Watson
, an assault committed was held to do with the charge of rape committed upon the same person later in the day. Professor J R Spencer, QC in his useful monograph,
Evidence of Bad Character
at paragraph 2.23 suggested that it clearly covered acts which the defendant committed at the same time and place as the main offence and presumably covered acts by way of preparation for the main offence and an earlier criminal act which was the reason for the main crime.
23.
The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was “to do” with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce. In the commentary in the Criminal Law Review to
R v T
[2007] Crim LR 165, it was argued that the court in
Machado
and
McIntosh
had taken too narrow a view of s.98 thereby permitting prejudicial evidence to be admitted on the threshold test of relevance alone with no gateway having to be satisfied. We do not agree – the application of s.98 is a fact specific exercise involving the interpretation of ordinary words.
24.
We respectfully agree with Professor J R Spencer, QC
Evidence of Bad Character
at paragraph 2.23 where he suggests that there is a potential overlap between evidence that has to do with the alleged facts of the offence and evidence that might be admitted through one of the gateways in
section 101(1)
. As he observes in relation to the example he took of prior misconduct being the reason for the commission of the offence, such evidence could be admitted either as “to do” with the offence or as important explanatory evidence under s.101(1)(c):
“In practice nothing of any legal significance depends on which of these two routes it is by which the evidence comes in”.
(i)
Was the evidence admissible under one of the gateways in s. 101(1)?
25.
As the evidence was not “to do” with the alleged facts of the offence, then the next issue to consider was whether the evidence was admissible through one of the gateways in s. 101(1).
26.
It was not seriously disputed that the further evidence in this case was admissible under s. 101(1)(d), as it was relevant to an important matter in issue between the defendant and the prosecution – whether it was the appellant who had committed the offences and not some other person.
(a)
Would the evidence have such an adverse effect on the fairness of the proceedings that it ought not to be admitted?
27.
There are two relevant statutory provisions:
i)
S. 101(3) of the CJA
2003
“The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that 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.”
ii)
78(1) of the
Police and Criminal Evidence Act 1984
(
PACE
):
“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 the court ought not to admit it.”
As was made clear in
Highton
and
Weir
(at paragraph 44)
,
where the CJA 2003 does not permit s. 101(3) to be relied on, s.78 of
PACE
should be considered. In this instance the relevant provision is s. 101(3).
28.
The difference in the wording of the statutory provisions appears to relate solely to the question of whether the court has a discretion;
s 101(3) of the CJA
2003 provides that the court must exclude the evidence if the condition is satisfied whilst s.78(1) of
PACE
appears to give the court a discretion. However, as is clear from the decision of this court in
R v Chalkley & Jeffries
[1998] 2 Cr.App.R.79, this is a distinction without a difference as the court under s. 78(1) of
PACE
has no discretion once the condition is in its view satisfied: the court said at page:
“We have put the words “exercise of discretion” in this context in quotation marks because, as the court said in
Middlebrook and Caygill
(unreported), February 18, 1992, the task of determining (in)admissibility under section 78 does not strictly involve an exercise of discretion. It is to determine whether the admission of the evidence:
“having regard to all the circumstances, including the circumstances in which the evidence was obtained, … would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
If the court is of that view, it cannot logically “exercise a discretion” to admit the evidence, despite the use of the permissive formula in the opening words of the provision that it “may refuse” to admit the evidence in that event.”
29.
In
Weir
at paragraphs 38 and 46 the court gave guidance on how the issue under s. 101(3) is to be approached by a balancing exercise; in
Edwards and Rowlands
at paragraph 82, the importance of the broad nature of the judge’s function was emphasised and the undesirability of descending into satellite litigation. However, for the reasons we have given we consider, unlike the court in
Weir
(whose attention was not drawn to
Chalkley & Jeffries
), that there is no difference between that section and s.78(1) of
PACE
and the guidance should be the same.
30.
We have carefully considered the potential effect of the evidence on the fairness of the proceedings and the undesirability of the jury having too many other matters to consider as against the powerful evidence in relation to the issue as to who committed the acts charged in the various counts. We consider the judge was right to decide to admit the evidence and that he correctly performed the balancing act. It was powerful and important evidence which in our judgment did not in any way affect the fairness of the proceedings.
(vi)
Did the jury need help in the summing up as to how to use this evidence?
31.
As this court observed in
R v Hanson
[2005] EWCA Crim 824
(
[2005] 2 Cr. App. R. 21
) and in subsequent decisions, particularly
R v Edwards; R v Fysh
at paragraphs 3 and 77,
Highton
[2005] EWCA Crim 1985
(
[2006] 1 Cr App R 7
) at paragraphs 11 and 38-43,
R v Edwards and Rowlands
at paragraphs 1(ii) and 1(iv) and
MM
[2006] EWCA Crim 2317
at paragraph 14, it was important to consider, when evidence was admitted under the bad character provisions, what help by way of any directions needed to be given to the jury. The bad character provisions are most commonly used to admit evidence of previous convictions and, following the decision in
Hanson,
the Judicial Studies Board have provided guidance in relation to the directions to be given in such a case. Those directions primarily deal with the evidence which is relevant to propensity.
32.
But as the decisions of this court indicate, the important question that a court must consider, when deciding what help may be need to be given to the jury in the summing up, is the relevance of the evidence which was admitted. If the evidence has been admitted for a particular purpose, the jury may, depending on the circumstances, need to be told how they should use that evidence and the issue to which it goes.
33.
Furthermore, as is clear from the decision of this court in
Highton
at paragraphs 9 and 10, evidence admitted through one gateway can be used, once admitted, as relevant evidence on other issues. Moreover, as this court emphasised in
Chopra
[2006] EWCA Crim 2133
at paragraph 14, the provisions of the Act also have to be brought into account when considering directions on cross-admissibility of evidence on one count in relation to other counts. In short, when a court is dealing with evidence admitted under the “bad character” provisions, the relevance and purpose for which the evidence is being used by the end of the trial should be clear and, where appropriate, a direction in simple and clear terms given as to its relevance and the use the jury may make of it.
34.
In the present case, the prosecution did not rely upon the cross-admissibility of evidence between one count and the other. A direction was given by the judge to treat each count separately. No criticism was made of the judge in this respect. Nor did the purpose for which the evidence was admitted change; it remained evidence that went to the issue of whether it was the appellant or some other person who had committed the offences charged.
35.
The judge considered, prior to summing up, the nature of the direction to be given and it was raised with counsel. It is clear from the summing up that the judge considered that the appropriate direction he should give was one in relation to circumstantial evidence. Before referring to the further evidence in his summing up, he referred to it as “background and circumstantial evidence produced by the prosecution.” Much earlier in his summing up he had given a direction in relation to circumstantial evidence in terms based upon the guidance given by the Judicial Studies Board. He said,
“This simply means that the prosecution is relying upon evidence of various circumstances relating to the charges and to the defendant that you are dealing with, which the Crown say, when taken together, will lead to the sure conclusion that it was that defendant who committed the offence. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case.”
36.
It was submitted to us on behalf of the appellant that the judge should have told the jury that the evidence in question was evidence which the prosecution sought to rely upon to prove that it was the appellant who had committed the offences in question and not some other person; that the jury should first consider in respect of each piece of that evidence whether they were sure that it was the appellant who had been involved and it was only if they were sure that they should use that material in considering whether it was the appellant who had committed each of the offences with which he was charged.
37.
In our judgment the learned judge should have set out in clear and simple terms the relevance of the evidence of other conduct and the way in which the jury should have approached it; this could have been done in a simple sentence or two. However, in our view, there can be little doubt that at the end of a trial extending over two months the jury had at the forefront of their minds the relevance of the other evidence and the use they could make of it – namely to show that it was the appellant who was engaged in the offences charged and that it was not some other person purporting to be him. That that was the issue was also clear from the general directions given in the summing up; the judge told the jury that they had to be sure of the reliability of that other evidence before they could use it in determining the appellant’s guilt of the offences charged.
38.
It was also submitted to us on behalf of the appellant that the judge should have given a specific direction that the jury were not to use the evidence of the other conduct as evidence of propensity. It was submitted that a jury might feel that if they heard evidence of misconduct in relation to other matters they might consider that this showed the appellant was someone who is engaged in criminal activity and convict him on that basis.
39.
We do not consider that a direction in such terms was either appropriate or necessary. There was no doubt that the person who was in fact engaged in the conduct specifically charged in the differing counts in the indictment was guilty of the offences; the issue in the case was one of identity, not propensity. Moreover, the judge did in fact give a good character direction, as the appellant had no previous convictions.
40.
We therefore consider, approaching the issues on the basis of the six questions, that the judge was clearly correct in admitting the evidence. Although the judge should have given a simple and brief direction on the use the jury could make of the further evidence, in our view, it must have been very clear to the jury the issue to which that evidence went and that therefore the failure of the judge to give a specific direction did not make the conviction unsafe. This ground of appeal therefore fails
(2)
Was a
Brown
direction on unanimity necessary in relation to the forgery counts?
41.
In counts 1, 10 and 11 the indictment charged the appellant under
section 1 of the Forgery and Counterfeiting Act 1981
of making or procuring the making of a false instrument; in count 1 it was the identity card, in count 10 a passport and in count 11 a certificate of British naturalisation. The particulars to each of the counts were in the same form; taking Count 10 as an example, the particulars stated:
“Cornel Tirnaveanu, on a day between 1
st
day of January 2003 and the 27
th
day of November 2003 made or procured the making of a false instrument, namely a document purporting to be a British passport, in the name of Monica Halarescu, with the intention that she or another should use it to induce somebody to accept it as genuine and by reason of so accepting it to do some act, or not to do some act, to their own or another person’s prejudice.”
42.
We were told that the prosecution framed the particulars in that way, as it was unclear to them whether the appellant had been the principal offender by making the false instrument or a secondary party by procuring the making of it. It was submitted by them that the different ways of committing the offence were properly joined in the indictment on the basis of the decision in
Gaughan
[1990] 155 JP 235
.
43.
It was not disputed by the appellant that it was possible to join in the same count the allegation that the appellant had acted either as the principal in making the false passport or as a secondary party in procuring it, but contended, however, that this was a case when a direction should have been given of the kind set out in
R v Brown (K)
(1984) 79 Cr App R 115 as to the necessity of the jury being unanimous as to whether he was a principal or secondary party. The prosecution contended that such a direction was not necessary.
44.
In
Brown
, the court made clear it was a fundamental principle that in arriving at their verdict, the jury, even if they were not agreed as to part of the evidence, had to be unanimous that each ingredient necessary to constitute the offence had been established. The position was summarised by Eveleigh LJ at page 119:
“Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.”
45.
It was submitted that, as it was an essential ingredient of the offence that the appellant had either made the false instrument or had procured the making of the instrument, the jury had therefore to be agreed as to which it was.
46.
We do not accede to that submission. Where a person is indicted both as a principal and as a secondary party and the prosecution cannot say which, then the jury is entitled to convict if they are satisfied that he committed the offence as a principal or, if he did not, he was a secondary party (who procured or encouraged the commission of the offence). They can do so only if there is no relevant or material difference in relation to the issues between these alternatives. A
Brown
direction is in such circumstances not necessary. This it seems to us follows from the decision in
R v Giannetto
[1997] 1 Cr App R 1, where a defendant was charged with killing or procuring the killing of his wife. After an extensive review of the authorities, Kennedy LJ giving the judgment of the court concluded at page 8:
“Having considered the authorities with some care we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.
There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the
basis
on which the jury must be unanimous is that the defendant, having the necessary
mens rea
, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutors casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. But the facts of the present appeal are by no means an instance of that.
47.
In reaching its decision, the court referred, with approval, to a comment in the Criminal Law Review by the late Professor Sir John Smith QC at [1990] Crim.L.R. 881 on
Gaughan
, the case to which we referred at paragraph 42:
“It is fundamental that the defendant should be told as precisely as possible what he is alleged to have done and that he should not be charged with doing one thing and convicted of doing something else. There will be occasions, however, when it is impossible to specify the mode of participation before the trial and where the case may have to be left to the jury on the basis that the defendant was either a principal or an accessory. It has long been established that this is permissible:
Swindall v. Osborne
(1846) 2 C. & K. 230.”
48.
However, as is illustrated by the two cases to which we were referred by the appellant, a
Brown
direction may be necessary where there are two or more clear alternatives open to the jury where there is a relevant or material difference as to the issues and therefore the basis on which the jury might convict:
i)
In
R v Carr
[2000] Cr App R 149
, it was the prosecution case that the defendant had either karate kicked the deceased or struck him with his fist. On the facts of the case, if the crucial blow was the punch, then the issue for the jury was whether it was a punch but if it was the karate kick, the issue was one of identification. The Court concluded that in the circumstances the judge should have told the jury that they must reach a unanimous verdict on the deliberate act which they found proved and the unlawfulness of the act:
“There was in our judgment a real risk that some jurors might have found the defendant to have kicked the deceased and others found him to have delivered a punch, feeling themselves entitled to convict because the judge had told them that the defendant could be convicted on either basis. Had that happened there would have been six jurors not satisfied that the defendant had delivered the fatal kick and six jurors not satisfied that the deceased had been felled by a punch by the appellant. The absence of such a direction on the facts of this case was in our judgment a fatal flaw and we consider that that real risk existed.
We wish to make it plain that we are not seeking to lay down any general rule. There will often be minor differences between the facts alleged and the evidence given by various witnesses, and there is no need for agreement between all jurors on fine factual differences. Here, however, the difference between the two forms of assault did not depend on fine factual differences, but on a stark difference in the evidence of witnesses describing the two events, those two forms of assault giving rise to very different defences.”
ii)
In
R v D
[2001] 1 Cr App R 13
, a defendant was charged with indecent assault on various occasions. The counts particularised the different occasions, but not the four different ways in which the indecent assaults were said to have happened on some or all of the occasions. No
Brown
direction was given. As the court pointed out, the failure opened up the possibility of a conviction on one or more counts when not only might juror A and juror B have differed in their view as to what had happened on the particular occasion represented by the count, but the view of juror A as to what occurred might relate to a time or occasion different from that on which the view of juror B was based.
49.
In our view this was a case where there was no difference in the issues or the defence to the charges under counts 1, 10 and 11; the issue was who made or procured the making of the instrument and in addition, in relation to Count 1 whether there was a person called Denise Dupont. This was not a case where there were fine factual differences or other relevant difference between the alternatives where the jury could disagree as to the basis on which they might convict. As between the two alternatives of principal and secondary party, the position was that, if it was not the first alternative – making the false instrument- then it must be the second - procuring the making. There was no relevant difference in these alternatives. In such circumstances therefore there was no need for unanimity as to which of these alternatives it was; a
Brown
direction was not necessary. In our view this was a case which fell within the principles set out in
Giannetto.
The difference in the basis for conviction was immaterial for the reasons fully explained by the late Professor Sir John Smith QC in an article in the Criminal Law Review
, Satisfying the Jury
[1988] Crim LR 335, referred to recently by this court in
R v Morton
[2003] EWCA Crim 1501
. He took the facts of
Stapylton v O’Callaghan
[1973] 2 All ER 782
as an illustration of the applicable principle:
“But the hypothetical case was put, suppose half of a jury were satisfied that the defendant was the original thief and half satisfied that he was the subsequent receiver.”
It is now quite impossible to say that the jury is satisfied that he was the thief on occasion (a); and equally impossible to say that it is satisfied that he stole on occasion (b). Indeed, it follows by necessary implication that six jurors are satisfied that he was not the thief on occasion (a); and six are satisfied that he did not steal on occasion (b). The case is, however, distinguishable from that which arose in
Brown
. The jurors are all presumably satisfied that the property was stolen by someone on occasion (a) and that the defendant was soon afterwards found in possession of it. They are all satisfied as to the same primary facts. The whole jury has dismissed any innocent explanation of the incriminating circumstances the defendant may have offered and is satisfied that he acted dishonestly in the matter. It seems to follow that the jurors who are satisfied beyond reasonable doubt that he stole on occasion (a) are also satisfied that, if they are wrong about that, he stole on occasion (b); and vice versa. The whole jury is satisfied that he stole the property in question either on occasion (a) or on occasion (b). The situation is significantly different from
Brown
. The jurors there could not say, "But if deception (a) was not proved, then deception (b) was." It is true that the prosecution have failed to satisfy the jury as to which of two possible occasions was the occasion of the theft but it seems not unreasonable to regard that matter as immaterial. This, indeed, is the situation in
Stapylton v. O'Callaghan
itself.
Professor Sir John Smith QC concluded:
“It is submitted that the principle stated in
Brown
is right and of general application. It should not, however be stretched to situations like that in
Stapylton v. O'Callaghan
where, as demonstrated above, it does not properly apply. It does apply, however, when the prosecution allege more than one factual basis for the crime charged and it is not possible to say, "If it was not the one, then it must have been the other." When
Brown
applies then, it is submitted, the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both. In
More
(
[1988]1 WLR 1578
), having stated the requirement of unanimity, Lord Ackner added: "It is equally essential that a jury should be directed in a manner that is easily comprehensible and devoid of unnecessary complications."
No one could quarrel with that but the question remains, what is an unnecessary complication? Any complexity which is necessary to enable the jury to understand that they must be unanimous on any issue on which the law requires unanimity is a necessary complication.”
50.
For these reasons therefore the second ground of appeal also fails.
(3)
The validity of count 12 - the charge of facilitating illegal entry
51.
Until 10 February 2003,
s. 25(1) of the Immigration Act 1971
provided:
“Any person knowingly concerned in making or carrying out arrangements for securing or facilitating –
(a)
the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant;
(b)
the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an asylum claimant; or
(c)
the obtaining by anyone of leave to remain in the United Kingdom by means which he knows or has reasonable cause for believing to include deception,
shall be guilty of an offence, punishable on summary conviction with a fine of not more than the prescribed sum or with imprisonment for not more than six months, or with both, or on conviction on indictment with a fine or with imprisonment for not more than ten years, or with both.”
52.
With effect from 10 February 2003, s. 143 of the Nationality Immigration Asylum Act 2002 substituted a new s. 25 replaced s.25(1) and provided by the new (1) and (2):
“(1)
A person commits an offence if he –
(a)
does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,
(b)
knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and
(c)
knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
(2)
In subsection (1) “immigration law” means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to –
(a)
enter the State,
(b)
transit across the State, or
(c)
be in the State.”
53.
The penalty under the original s. 25 was 10 years; under the
section 25
substituted from 10 February 2003, the penalty was 14 years.
54.
Count 12 on the indictment charged the defendant with facilitating illegal entry into the United Kingdom contrary to
s. 25 of the Immigration Act 1971
. It gave the following particulars of the offence:
“Cornel Tirnaveanu between the 1
st
day of January 2003 and 27
th
day of November 2003 was knowingly concerned in making or carrying out arrangements for facilitating the obtaining of leave to remain in the United Kingdom by Monica Halarescu by means which he knew to include deception, namely by supplying her with a false British passport and a false certificate of British naturalisation.”
55.
As can be seen from the wording of the indictment the particulars of the offence related to the way s. 25 was framed prior to 10 February 2003, but the appellant was charged with an offence between 1 January and 27 November 2003. After 10 February 2003 the offence charged was different and therefore the particulars should therefore necessarily have been different.
56.
If Parliament had, instead of substituting provisions of s. 25, created a different numbered section, there should have been no confusion. One count would have charged the activity under the old provision and another count would have charged the activity under the new provision. The confusion that seems to have arisen in this case is because the section number remained the same but the offence was changed. That makes no difference to the principle involved. The alleged activity prior to 10 February 2003 should have been charged in one count and the activity after 10 February 2003 should have been charged in a different count, as it would constitute a different offence. A count spanning the period and charging in one count two quite different offences was impermissible.
57.
In
Pritchett & Langston
[2007] EWCA Crim 586
, an indictment charged the defendant with keeping a brothel contrary to
s.33A of the Sexual Offences Act 1956
between 5 October 1998 and 30 September 2005;
s.33A of the Sexual Offences Act 1956
was added to that Act by
s.53 of the Sexual Offences Act 2003
and only came into effect on 1 May 2004. The indictment therefore charged the two defendants over part of a period where the offence with which they were charged was not an offence at law. The court held that, although the indictment gave rise to an irregularity, the indictment was not a nullity as, if the prosecution could prove the commission of the offence between 1
May 2004 and 30 September 2005, the defendants could be convicted under the indictment. The court considered that there was sufficient evidence which had enabled the prosecution to do this. In our view the present case is very different in the way in which the indictment was framed for the reasons we have set out. Furthermore the prosecution did not suggest that they could in the present case prove that an offence had been committed on the basis set out in
Pritchett and Langston.
58.
We will allow the appeal on count 12 on this ground and quash the conviction on that count. We should add that other grounds were advanced in relation to this count, including the failure to give a direction on the meaning of the words “leave to remain”. No such direction was given. If count 12 had not suffered from the deficiency to which we have referred, there would have been a serious issue for our consideration as to whether the failure to give such a direction made the conviction unsafe, but it is not in the circumstances necessary for us to determine the point.
Conclusion
59.
We have considered the overall safety of the convictions and in particular the approach the jury may have followed which resulted in the acquittal on Count 7. We consider that the convictions are safe, except that on Count 12 where the indictment charged the appellant in an impermissible manner; on the other counts on which he was convicted there was compelling evidence which underpins the jury’s verdict. In the result, therefore, we consider that the conviction on count 12 must be quashed, but the appeal on the other counts is dismissed. As the sentence on count 12 was concurrent, this makes no difference to the overall term of imprisonment which the appellant must serve. | {"ConvCourtName":["Crown Court at Canterbury"],"ConvictPleaDate":[""],"ConvictOffence":["Obtaining property by deception","Forgery","Facilitating illegal entry"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Canterbury"],"Sentence":["7 years imprisonment (total, some sentences consecutive)"],"SentServe":["Combination"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Documentary evidence","Forensic examination of documents","Police search evidence"],"DefEvidTypeTrial":["Offender denies offence","Conspiracy to frame defendant"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction"],"AppealGround":["Improper admission of bad character evidence","Failure to give proper jury directions on bad character evidence","Failure to give direction on unanimity for forgery counts","Indictment on count 12 impermissibly charged two different offences"],"SentGuideWhich":["Criminal Justice Act 2003","section 1 of the Forgery and Counterfeiting Act 1981","section 25 of the Immigration Act 1971","section 143 of the Nationality Immigration Asylum Act 2002"],"AppealOutcome":["Allowed & Conviction Quashed (Count 12)","Dismissed (other counts)"],"ReasonQuashConv":["Indictment charged the appellant in an impermissible manner (count 12)"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge was correct in admitting the evidence","Failure to give a specific direction on bad character evidence did not make the conviction unsafe","No need for unanimity direction as to principal/secondary party on forgery counts"]} |
Neutral Citation Number:
[2010] EWCA Crim 1858
Case No:
2008/00803/B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
HH Judge Everard
T20067390
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/07/2010
Before :
LORD JUSTICE LEVESON
MR JUSTICE HOLROYDE
and
HIS HONOUR JUDGE STOKES Q.C.
The Recorder of Nottingham
Sitting as a Judge of the Court of Appeal (Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
ASIF IBRAHIM PATEL
ASIF IBRAHIM BHIKI
SAJID IBRAHIM BHIKI
SIKANDER PATEL also known as HOOSEN SHAIK
SOYEB PATEL also known as JUNED EBRAHIM
Appellants
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss Hayton
for
Asif Patel
Mr Rashid
for
Asif Bhiki
Mr D Friesner
for
Sajid Bhiki
Mr S Alfred
for
Sikander Patel
Miss P Radcliffe
for
Soyeb Patel
Mr D Herbert
for
the Crown
Hearing date : 16
th
July 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Leveson:
1.
In January 2008, in the Crown Court at Leicester, these Appellants were convicted by a jury of an offence of conspiracy to do acts facilitating the commission of breaches of immigration law by individuals who are not citizens of the European Union, contrary to
s1(1) of the Criminal Law Act 1977
. They now appeal against those convictions by leave of the full Court. Three of the Appellants, namely Asif Bhiki, Sajid Bhiki and Sikander Patel also apply for leave to appeal against their sentences.
2.
The charge of conspiracy was also faced by two other men. Shabbir Patel pleaded guilty (on a basis which was accepted by the prosecution) before the trial began; the other was acquitted. For the sake of completeness, we add that, on the same indictment, Sikander Patel and Soyeb Patel, were also charged with other offences. Sikander Patel pleaded guilty to four substantive offences arising out of his possession and use of a false South African passport and his entering into a sham marriage. Soyeb Patel pleaded guilty to two substantive offences arising out of his possession and use of a false South African passport. Nothing in these appeals turns on those convictions.
3.
The particulars of the offence tried by the jury were that between the 1
st
January 2003 and the 20
th
February 2007 the defendants “conspired together and with Inayat Musa Patel, Yusef Mewaswala, Asif Moosa, Shabbir Patel, Attaula Patel (also known as Imran Jadwat), Hasim Mohammed Moolla, Amritlal Bava, Nishaben Patel, Hitendra Patel and with persons unknown to do acts facilitating the commission of breaches of immigration law by individuals who were not citizens of the European Union, namely acts which facilitated the unlawful immigration into the United Kingdom of such individuals, knowing or having reasonable cause for believing that those individuals were not citizens of the European Union, and knowing or having reasonable cause for believing that the commission of breaches of immigration law by those individuals was thereby facilitated”.
4.
The fact that such a conspiracy existed was not in dispute during the trial. It was proved by the guilty pleas which had been entered by Shabbir Patel and (at an earlier trial) by Yusuf Mewaswala, Amritlal Bava, and others who were not specifically named as co-conspirators in the indictment. Thus the issue for the jury in relation to each of these appellants, considered individually, was whether the evidence proved so that the jury were sure that at some time during the period covered by the indictment he was a party to the conspiracy. It was the prosecution case, denied by all these appellants, that during the relevant period they had been involved in the illegal immigration of any persons into the United Kingdom from India via South Africa.
5.
This prosecution was the outcome of an investigation carried out between 2003 and 2007 by the Serious and Organised Crime Agency (SOCA) and known as Operation Coptine II. As its name implies, that investigation was the successor to, or continuation of, Operation Coptine I, the outcome of which had been the earlier trial to which we have just referred. HH Judge Everard conducted both trials and so had a complete picture of the entirety of the investigation when he sentenced all those who were convicted of the conspiracy.
6.
It is to those facts that we now turn. Mewaswala was the ring leader of the conspiracy in this country, with Bava being his right-hand man. In broad terms, two different methods were used to facilitate illegal entry into the United Kingdom, one involving the use of false UK passports created in this country, the other involving travel via South Africa and the use of false South African passports. Mewaswala was heavily involved in facilitating unlawful entry from India to the United Kingdom, including by the use of forged UK passports. His principal contact abroad was Inayat Patel, who was able by the use of corrupt officials to obtain false South African passports. The prosecution alleged that Inayat Patel provided accommodation in South Africa to persons who were making their way illegally from India to the UK. He then arranged for the provision of false South African identities and passports together with flights and escorts to enable unlawful entry into the UK for those willing to pay for that criminal service. There was evidence before the jury to the effect that would-be illegal entrants who had relatives in the UK would generally be provided with a false UK passport, which would be paid for in advance by the relatives in this country, whilst those with no relatives in the UK would generally be provided with a false South African passport.
7.
It was the prosecution case that these Appellants also used Inayat Patel to assist them with some of the arrangements needed to bring persons illegally into this country via South Africa. Asif Patel (also referred to in the evidence as Jilani) was alleged to have been a “money man” in the conspiracy, that is to say, one of those who transferred to others money which had been collected in the UK by way of advance payments from the relatives of illegal entrants. Asif Bhiki was a close friend of Inayat Patel: he and his brother Sajid Bhiki were alleged to been linked to Inayat Patel’s illegal arrangements, with Asif Bhiki being another money man. When the house which they shared in this country was searched, it was found that there was a man living in the loft who had entered this country illegally using a false South African passport. Soyeb Patel was alleged to have been heavily involved in the provision of a safe house, where illegal entrants were accommodated when they first arrived in the UK, and as a money man in collecting and transferring money paid by those entrants. His brother Sikander Patel was said to have become involved as time progressed, even if he may not have been a party to the conspiracy from the outset, and it was alleged that he provided his brother with mobile phones to assist in communications with Inayat Patel in furtherance of the conspiracy.
8.
A brief summary of some of the principal features of the evidence is as follows. On 5 August 2004 Inayat Patel visited Mewaswala in Leicester. They went into premises owned by one Omjeet Sidhu, another man who subsequently pleaded guilty to the offence of conspiring to facilitate unlawful immigration into the UK. The following day, Meswasala and Bava took Inayat Patel and his family to the home of the Appellants Asif Bhiki and Sajid Bhiki.
9.
Two days later, on 8 August 2004 Inayat Patel and his family travelled from Heathrow Airport to South Africa. They were taken to the airport in a vehicle registered to Sajid Bhiki. As a result of a search of Inayat’s luggage at the airport an address book and notebook (“the 2004 notebook”) were recovered by police and copied. The originals were then replaced in Inayat Patel’s luggage. Handwriting evidence confirmed the entries were written by Inayat Patel. The address book contained entries for the Appellants Asif Patel, Asif Bhiki and Soyeb Patel, and entries also for Mewaswala and Attaulla amongst others who could be linked to the conspiracy. The notebook contained approximately 120 names, of which 68 had various monetary amounts next to them. It was the prosecution case that this was a record of persons whose illegal entry into this country had been facilitated, or was being facilitated, in the course and furtherance of the conspiracy.
10.
By September 2005, a listening device had been placed in Meswasala’s vehicle. Thereafter a number of conversations were picked up, which the prosecution contended confirmed Mewaswala’s participation in the conspiracy. These included conversations in which Mewaswala was discussing his charges, expressed in pounds sterling, for providing forged passports, visas and stamps in passports.
11.
On the 4
th
April 2006 there were police searches of the homes of Inayat Patel and Mewaswala. At Inayat Patel’s home, in South Africa, the property recovered included an address book, and a 2006 diary containing entries which were shown by handwriting evidence to have been made by him. At Mewaswala’s home the property recovered included address books.
12.
The prosecution relied heavily on the contents of Inayat Patel’s 2004 notebook and 2006 diary. These books were said to contain a comprehensive record of many of the persons whose illegal entry into this country had been facilitated by Inayat Patel. Evidence was given during the trial by Wilhelm Vorse, Assistant Director in the Department of Home Affairs in South Africa. He had investigated 89 of the names found in Inayat Patel’s diary. All of them were false, in the sense that they were real people whose identities had been stolen. He explained to the jury how such identities were obtained. In many instances, a sum of money was entered in the notebook or diary next to the names listed in these records: the prosecution attached significance to the fact that these sums were expressed in pounds sterling.
13.
The Appellant Asif Patel was referred to (by his nickname or alternative name Jilani) on various pages of the 2006 diary, with some of the relevant entries referring to money. These included pages with columns headed “Asif Jilani I paid” and “Asif Jilani paid me”, in which were listed names and amounts of money. One of the names in the first column was that of a man who had pleaded guilty to the conspiracy. The Appellant Asif Bhiki was similarly referred to on a number of pages of the 2006 diary: two of those pages listed sums of money in columns headed “Asif Bikhi I paid” and “Asif Bikhi paid me”. The Appellant Sajid Bhiki was referred to numerous times in the 2006 diary. The Appellant Soyeb Patel was also referred to in the diary, it being accepted that the name “Soib” referred to him, and in Inayat Patel’s address book Soyeb Patel’s phone number was listed as “Soib London home”. One of the diary entries was relied on by the prosecution as showing that Soyeb Patel had collected a sum of £4,500 on behalf of Inayat Patel. Thus four of the five Appellants were incriminated by entries in Inayat Patel’s diary.
14.
The importance of the contents of those two books can be seen from the approach which all parties appear to have adopted during an unsuccessful submission by the defence that the books should not be admitted in evidence: it appears to have been common ground that if that submission had succeeded the prosecution case would have collapsed.
15.
In addition to general evidence about the activities of others alleged or proved to have been involved in the conspiracy, there were three further main areas of evidence on which the prosecution relied: the oral testimony of a witness called Yusuf Ameeji; financial evidence relied on as linking defendants to what were alleged to be the proceeds of facilitating illegal immigration; and telephone evidence showing contacts between the defendants and their alleged co-conspirators.
16.
As will become apparent, the witness Yusuf Ameeji is central to these appeals. He was relied on by the prosecution as providing a detailed insider’s perspective of how the illegal operation worked, and as being able to identify the persons he knew to be involved in that operation. It is therefore necessary to outline his evidence.
17.
Before doing so, however, it is necessary to mention some matters which the prosecution relied upon as important background to the Appellants’ submissions in this appeal. Shortly before the trial began, Yusuf Ameeji made a statement saying that his wife had been approached in India by members of the Bikhi family with a view to her providing a statement contradicting her husband’s evidence. Then during the first week of the trial, whilst legal argument was taking place, those acting for Asif Bikhi served a statement taken in India from Yusuf Ameeji’s wife in which she asserted that Asif Bikhi was not involved in unlawful immigration.
18.
Yusuf Ameeji said in evidence that he went to South Africa in 1998. A visa was arranged for him by a man called Yaseen Ahmed. In Johannesburg he was met by Inayat Patel. He said he had met him before when he saw Yaseen Ahmed in India: one of the many points made in the defence attack on his credibility was that Yusuf Ameeji initially failed to mention to the police that Inayat Patel was in fact his brother-in-law. Yaseen Ahmed had told him that Inayat would come and pick him up. They went to Rayburn Mansions, a five storey building with 70 flats, where other young men from India were living. Amongst those Yusuf Ameeji met during his three-year stay at that address were the Appellants Soyeb Patel and Sikander Patel, who are brothers, and Shabbir Patel (who, as we have said, later pleaded guilty to this conspiracy). They had travelled to South Africa in the same way as Yusuf Ameeji had done, and were also friends of Inayat Patel. They stayed in South Africa until 2001. Soyeb Patel would collect the rent from everyone.
19.
Yusuf Ameeji said that in 2002 he too decided to go to the UK. He was provided with a false passport and birth certificate. Inayat Patel arranged for him to travel to the UK with a female escort who posed as his girlfriend but was in reality accompanying him to assist him in dealing with customs or immigration officials. Yusuf Ameeji said he was aware that there were others travelling in the same way at the same time, also using false passports and accompanied by escorts. He went to a house in Monega Rd, Leicester, where Soyeb Patel, Sikander Patel and four others were living: the prosecution case was that this was one of the addresses which the evidence showed to have been used as a “safe house” in which many illegal entrants were accommodated upon their arrival in this country. He called Inayat Patel from Monega Road to say he had arrived safely. Thereafter, Yusuf Ameeji said, he got a job in a factory in Leicester. He would recognise faces he had met in South Africa. He lived for a time at St Saviour’s Rd, Leicester with 3 people from South Africa who had arrived in the same way as he had done. They were all using false names. Later, in 2004, he lived at 6 Bolsover St, Leicester where he was joined by Inayat Patel’s brother Attaulla, Attaulla Patel would collect money from people who came to the UK, and was involved with Asif Moosa. If someone wanted to come to the UK they would talk to Asif Moosa. Yusuf Ameeji said that in 2003 the appellant Asif Patel came to the UK and was “involved in all these things”.
20.
Yusuf Ameeji said he had also stayed at Mewasala’s house at Jellicoe Rd, Leicester. Attaulla Patel, Inayat Patel and the appellant Asif Patel would talk about money. On one occasion he saw Attaulla with £20,000, which he gave to Inayat who gave it to Mewasala. He once saw Asif Patel collect money from Attaulla, which ultimately went to Inayat. The witness also spoke of an occasion when the appellant Asif Bhiki invited him and his wife to his house for dinner because of Asif Patel’s friendship with Inayat Patel. On the same day he went to Soyeb Patel’s house on Monega Rd.
21.
Yusuf Ameeji further gave evidence that the Appellant Soyeb Patel helped Inayat Patel. Inayat used to ask Soyeb Patel to collect money from families that arrived from South Africa to the UK. He heard about that through Attaulla Patel as Attaulla and Soyeb Patel used to talk on the phone. Attaulla would ask Soyeb Patel whether a “container” had arrived, that being a word used to refer to a person illegally coming to the UK. Conversations were always about people rather than money.
22.
Yusuf Ameeji’s wife also came to this country. When she applied to the Home Office for leave to remain, the address of the appellant Asif Bhiki was given on her application. Asif Bhiki knew that Yusuf Ameeji and his wife were in the UK illegally.
23.
In April 2006 Mewaswala was arrested. Attaulla Patel was worried he would be arrested so they took him to Soyeb Patel’s house. Inayat Patel rang Asif Bhiki and asked him to take Attaulla to London.
24.
On the 16
th
November 2006 Yusuf Ameeji was arrested due to his possession of the false South African passport which he had used, and his staying in the UK. He pleaded guilty and on the 23
rd
December 2006 was sentenced to 12 months’ imprisonment, which he served at HMP Leicester. Mewaswala and Asif Bhiki were also in the same prison: each separately told him not to say anything to SOCA. SOCA did visit him in prison but he said nothing. After the visit, Asif Bhiki and Mewaswala again said to him, “Did you say anything to them about us?” and he said, “No”. When he eventually came to give evidence, it is relevant to note that Yusuf Ameeji’s evidence did not implicate either Sikander Patel or Sajid Bhiki in the conspiracy.
25.
In cross-examination Yusuf Ameeji confirmed that Attaulla Patel had introduced him to the appellant Asif Patel at 6 Bolsover St. This was the only day he saw him. Asif Patel came to collect some money from Attaulla. He agreed Asif Bhiki was being hospitable in inviting him and his wife together with Attaulla over for dinner. He agreed that calls he had made to Asif Bhiki were to do with clothing samples. He denied that Inayat Patel had told him to use Asif Bhiki’s address on his wife’s application to the Home Office. He said Asif Bhiki organised it, saying “You can use my home address”. He disagreed with the suggestion that Soyeb Patel had only collected the rent etc in Rayburn Mansions for a few months. He stated it was “for a long time”. He said that Attaulla Patel came to London in the middle of 2003: Yusuf Ameeji knew he was coming as he had heard Maksood talking to Soyeb Patel. Inayat had told Soyeb Patel first, Soyeb Patel informed Maksood and Maksood told him. It was suggested to him that he was trying to put a different picture on Soyeb Patel’s contact with Attaulla, but he denied this confirming he had heard Attaulla and Soyeb Patel talking about a container arriving. He confirmed that Soyeb Patel helped Inayat by letting people stay at his house. He admitted that on his own account he had told many lies when interviewed under caution following his arrest, but he denied that he was motivated in giving evidence by a desire to remain in the UK.
26.
It is not necessary for the purposes of this judgment to go into greater detail about the evidence of Yusuf Ameeji.
27.
When interviewed, the Appellant Asif Patel made no comment. Asif Bhiki denied involvement in the conspiracy, but said that he and his brother had been friends with Inayat Patel since childhood. Sajid Bhiki made no comment. Sikander Patel said he had been born in South Africa and had held a valid South African passport, but made no comment to many of the questions.
28.
Four of the five appellants gave evidence at their trial denying involvement in the conspiracy. Sikander Patel did not give evidence. It should be noted that in the course of his evidence, Soyeb Patel gave a clear description of how the system of illegal entry was operated, though he denied being any part of the conspiracy. He also gave evidence admitting that he had approached Inayat Patel with a view to obtaining a false identity for his wife so that she could travel to South Africa, though in the event this did not happen: the prosecution case was that he had been planning to bring his wife to the UK, and it was submitted that on that basis alone he was guilty of the conspiracy.
29.
Each of the appellants sought leave to appeal against their convictions. They advanced a number of disparate grounds of appeal. On 22
nd
January 2009, the full Court gave directions as to disclosure and as to the lodging of skeleton arguments. On 21
st
April 2010, a different constitution of the full Court dismissed all grounds of appeal except two relating to Yusuf Ameeji. These two grounds were originally put forward by the Appellant Soyeb Patel, but with the leave of the full Court have subsequently been adopted by all the other appellants.
30.
Briefly stated, the grounds on which all of these appeals are now put forward focus primarily on the allegation are that “the post-trial disclosure (‘the fresh evidence’) received from the Crown fundamentally undermines the reliability of the evidence given by the witness Yusuf Ameeji, thereby rendering the [convictions] unsafe”. Additionally, it is argued that the Judge’s direction to the jury to approach the evidence of Yusuf Ameeji with caution was insufficiently emphatic.
31.
In order to understand those grounds, it is necessary to summarise in chronological order certain matters which have arisen since Yusuf Ameeji gave his evidence at trial, which he did between the 28
th
November and 4
th
December 2007. It is also necessary to record that Yusuf Ameeji was during the relevant period subject to the witness protection scheme and in that way receiving some financial support.
a.
In May 2008 Yusuf Ameeji was due to give evidence for the prosecution in another trial, but failed to attend court. When subsequently asked why, he said he had been scared of being deported.
b.
By letter dated the 18
th
June 2008 the prosecution quite properly disclosed to defence solicitors the fact that Yusuf Ameeji had failed to attend that trial, and also disclosed information which had come to their attention, together with copies of relevant documents. This information was to the effect that in March 2008 Yusuf Ameeji had given instructions to a solicitor representing him in immigration matters, saying that he had been promised indefinite leave to remain in this country in return for giving evidence for the prosecution against these Appellants. The prosecution deny that any such promise, or even suggestion, was made.
c.
On the 19
th
January 2009 – just 3 days before the directions hearing to which we have referred – Yusuf Ameeji swore an affidavit in India in which he said:
“Whilst becoming the witness of the Crown I made certain statements which were false and I have realised that and it is playing with my conscience. I would like to correct all that and help the defence in the appeal of court against the conviction. By doing this it will help innocent victims that are convicted which is totally unjustified. The false statements actually played a big part in their conviction. I only gave those statements on the false promise of the crown prosecution. I have truthfully stated everything in my immigration application for leave to remain in the UK with regards to the statements I gave as a prosecution witness”.
The affidavit then continued with a number of specific examples of parts of his evidence which he was now asserting had been untrue, the majority of them relating to the Appellant Asif Bhiki. It concluded with a request to “the independent solicitor to release this statement to the Court of Appeal and Crown Prosecution Service and all the solicitors that are involved in this case”.
d.
This affidavit was indeed sent by both fax and post, by the Indian solicitor before whom it was sworn, to the solicitors acting for Asif Bhiki, who provided it to the prosecution at the directions hearing. Thereafter it was disclosed to the other defence solicitors. Asif Bikhi’s solicitors subsequently obtained a short statement from the Indian solicitor before whom the affidavit had been sworn: he said that Yusuf Ameeji had arrived at his office with the affidavit already typed out, and asked the solicitor to “register it”. The Indian solicitor said that he checked the passport and photograph provided by Yusuf Ameeji, and “made registration of the said affidavit in routine manner”. The Indian solicitor added that he did not find Yusuf Ameeji under pressure or stress, but gave no further details of this episode. We are bound to say that it must surely be an unusual event in the life of a solicitor for someone to attend his office with a typed affidavit admitting to perjury in a foreign court, and that in the view of this court the brief and bland terms of this statement raised more questions than it answered.
e.
On the 21
st
January 2009, the day before the directions hearing and therefore before the prosecution were aware of this affidavit, witness protection officers spoke to Yusuf Ameeji by phone: he said that everything was in order, and appears to have made no reference to the fact that he had sworn the affidavit two days earlier.
f.
On the 26
th
January 2009, having been made aware of the affidavit, witness protection officers again contacted Yusuf Ameeji, who was still in India. He said that he had been threatened, made to sign a statement and had had his photograph taken. He also said that the men who threatened him had told him not to tell anyone about it, and that he had not gone to the local police because he did not trust them. It was submitted to us on behalf of the Appellants that the details of this explanation were simply not credible.
g.
On the 6
th
February 2009 Yusuf Ameeji returned to this country. He brought with him his affidavit, which he provided to SOCA officers.
h.
On the 16
th
February 2009 Yusuf Ameeji unexpectedly contacted his witness protection officers, saying he wanted to fly back to India because his father was very ill. He did in fact fly to India that day, from an airport in the Midlands.
i.
Also on the 16
th
February 2009, Yusuf Ameeji swore a second affidavit, confirming his earlier one, giving details of another part of his evidence about Asif Bhiki which he now declared to have been untrue, and asserting that his statement to the court had been induced by a SOCA officer who “pressurised me and threatened me that if I did not give evidence in their favour they will put me in prison for a long term”. The affidavit ended with an assertion that it was made freely and without any pressure. Significantly, it also included this sentence: “I am willing to give evidence in the court again without any fear and favour”. This affidavit was sent via DHL, with no indication of the sender’s name, to the correct office of the Crown Prosecution Service, and to the solicitors acting for Asif Bhiki. The CPS disclosed it to other defence solicitors.
j.
The circumstances in which Yusuf Ameeji swore this second affidavit were later described in a statement by a solicitor who practises in east London and is a registered foreign lawyer. This solicitor said that Yusuf Ameeji came to his office and produced a pre-typed affidavit for him to sign. The solicitor satisfied himself as to Yusuf Ameeji’s identity, and noted that he did not appear to be under any form of duress. He further said in his statement “I do remember that when Mr Ameeji came to the premises he attested [sic] with a small Asian male who was aged about 40 years. This male remained outside the premises at all times. I also remember that Mr Ameeji was referred to me by other solicitors but I cannot recall which company”. Once again, we are bound to say that this strikes us as a remarkably bland account of what was surely an unusual and memorable episode in the professional life of a solicitor.
k.
We observe in passing that although the statement to which we have just referred was taken from the London solicitor by a SOCA officer, we reject the submission of Miss Radcliffe that the solicitor’s evidence had therefore “been tested by the Crown’s agents”.
l.
Three further features of this second affidavit must be mentioned. Firstly, it had been prepared in terms which not only referred to but also exhibited a copy of his first affidavit. Secondly, although Yusuf Ameeji flew out of the country later that day from an airport in the Midlands, and although the solicitor’s statement records that he produced a photocopy of his passport and explained that the passport itself was in Birmingham, he took the completed affidavit to a solicitor in east London in order to swear it. The prosecution pointed to the fact that the solicitor in question had his office in the part of east London where the Bhiki family lived. Thirdly, the completed document which he brought with him to that solicitor’s office was headed with the correct Court of Appeal reference number for the appeal of Asif Bhiki.
m.
On a number of occasions later in February Yusuf Ameeji spoke by phone from India to his witness protection officers. He reported that his father had died, and that he would not be able to return to the UK until after the necessary period of mourning. It is the appellants’ case that this was completely untrue, and that Yusuf Ameeji’s father is still alive to this day: we have seen some documents which purport to show that, though they are unsatisfactory in a number of respects.
n.
On six occasions in March and April 2009 flights were booked to enable Yusuf Ameeji to fly back from India. On each occasion he failed to board the flight, subsequently giving explanations to the general effect that his journey to the airport had been delayed and that he had missed the flight.
o.
It is relevant to note that on the 8
th
May 2009 the prosecution received from India, again via DHL, an affidavit sworn by the Appellant Soyeb Patel, who had by this time served his sentence and returned to India. The affidavit sought to exonerate the Appellant Asif Bikhi, and claimed that a part of Soyeb Patel’s evidence which had contradicted Asif Bikhi’s evidence on a particular point was incorrect. The prosecution submission was that this affidavit provided further support for the inference that some person or persons were seeking to manipulate evidence to the advantage of an appellant.
p.
On the 19
th
May 2009 Yusuf Ameeji made contact with his witness protection officers saying he wished to return to the UK and that there were “very bad people” in India.
q.
On the 9
th
November 2009 Yusuf Ameeji did fly back to this country. He was interviewed at length by SOCA agents about his two affidavits. He said, in very brief summary, that his evidence at trial had been true and that he had sworn his affidavits under pressure.
r.
On the day after those interviews he was told by a witness protection officer that he would have to leave a particular address. He responded by saying that what he had said in interview the previous day had been untrue. The prosecution submitted that this was no more than an angry reaction to some unwelcome news.
s.
On the 5
th
March 2010, about 6 weeks before this Court heard the applications for leave to appeal against conviction, Yusuf Ameeji swore a third affidavit, this time before a solicitor in Leicester. It confirmed the truth of his two previous affidavits, and asserted that in his November 2009 interviews he had been put under pressure and had not told the truth. Exhibited to it were copies of each of the two previous affidavits. A copy of this third affidavit was posted to the CPS: on the back of the envelope the sender was identified as Yusuf Ameeji, with an address in Leicester.
t.
The only information about the circumstances in which that affidavit was sworn was contained in a letter to Asif Bhiki’s solicitors dated the 22
nd
March 2010. It was on the letterhead of the relevant firm of solicitors in Leicester, though the author did not identify himself by name, initials or other reference. The author said he could “confirm, from my recollection, that Mr Ameeji attended our office on 5
th
March 2010 and presented a pre-prepared affidavit”. It is no doubt correct, as the letter went on to say, that “many people attend our offices and swear affidavits before us or have documents witnessed”. We repeat however that the number of persons who do so in order to admit to perjury must be small. We therefore take the same view of the adequacy of this letter as we do of the statements from the other two solicitors to whom we have referred.
32.
It will be apparent from that brief summary that there are two strands to the material referred to by the appellants as fresh evidence: material showing that for the purposes of immigration matters Yusuf Ameeji has said that he was promised assistance in obtaining leave to remain in this country in return for giving evidence for the prosecution; and material showing that since giving his evidence at trial he has on three occasions sworn affidavits asserting that he gave false evidence. We take the view that no distinction is to be drawn between those two strands in deciding the issues raised by this appeal.
33.
The submission of the appellants is that the overall effect of these matters is that Yusuf Ameeji is now so thoroughly discredited that it would be impossible for any jury to believe anything he said. The appellants submit that his evidence was of great importance to the prosecution case, in particular because it presented a coherent overall picture and filled gaps which would otherwise have existed in the prosecution’s evidence, and that the convictions cannot be regarded as safe.
34.
In response, the prosecution submit that the circumstances in which the affidavits were sworn indicate that some person or persons have been trying to manoeuvre matters to the unjust advantage of the Appellants. They submit that the affidavits should not be regarded as casting any real doubt on the veracity of Yusuf Ameeji’s evidence at trial. Their primary submission is that whereas the testimony at trial of Yusuf Ameeji was credible, his post-trial affidavits and other statements helpful to the appellants are not. In the alternative, they submit firstly, that the jury in any event heard a number of substantial challenges to Yusuf Ameeji’s credibility in cross-examination, and that “more of the same” would not have caused the jury to take a different view of his reliability; or secondly, that the convictions are safe even if Yusuf Ameeji’s evidence were regarded as wholly discredited, because the other evidence adduced by the prosecution was sufficient for the jury to convict each of the appellants.
35.
We start with first principles.
Section 23 of the Criminal Appeal Act 1968
(“
the 1968 Act
”) gives this Court the power, if it is thought necessary or expedient in the interests of justice, to receive any evidence which was not adduced in the proceedings below. By s 23(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.”
36.
There are two unusual features of the application made to us to receive fresh evidence in this case. The first is that there is no application for permission to call any witness before us: neither Yusuf Ameeji himself, nor even any of the solicitors before whom he swore his three affidavits. We are invited simply to look at the various documents to which we have briefly referred. So far as Yusuf Ameeji is concerned, submissions were made to us to the effect that at least some of the appellants were expecting him to be called as a witness before us by the prosecution, and that they wished that to happen so that they could cross-examine him. However, we were shown the relevant correspondence which was said to give rise to that expectation, and it seems to us that this submission is based on a misunderstanding. To put it at its lowest, there is nothing in the correspondence which states that the prosecution either would call Yusuf Ameeji or would ensure his attendance. Although at least one solicitor did assert that he was required to give evidence, the CPS made it clear that it was for the solicitor to make “the necessary application” to the Court. Thus, if any appellant really wished to call him, or to have him available at court with a view to inviting the Court to call him, the position (to such extent as it should ever have been in doubt) was made clear. Nothing has been put before us to suggest there would have been any practical obstacle to doing so. No such arrangements were made, despite the assertion in the second affidavit that Yusuf Ameeji was willing to give evidence.
37.
The second is that none of the three affidavits is relied upon by the appellants as being true: in what we may refer to as the lead skeleton argument, adopted and endorsed by other Appellants, Miss Radcliffe on behalf of Soyeb Patel made the position clear:
“The Appellant does not rely upon the oral and written statements of Ameeji to prove the truth of their contents, but rather to show that when the totality of his utterances are considered that this Court will be driven to conclude that he is inherently unreliable and that this undermines the totality of his evidence given at trial.”
38.
It is, of course, by no means unusual for this Court to be asked to receive fresh evidence of, or relating to, a retraction by a witness of his testimony at trial, and the giving by that witness of a new and different account of the relevant events. In such cases this Court is being invited to regard the new account as credible. But in this case no such invitation is extended. Instead, this Court is invited to conclude that nothing Yusuf Ameeji has said, or may say in the future, about these appellants is capable of being believed by a jury. We are invited to reach that conclusion on the basis of looking at the documents to which we have referred, and no more. We are, it seems to us, being asked to focus on the fact that differing accounts have been given by Yusuf Ameeji, without being given any opportunity to hear evidence and cross-examination as to the reasons why he has given mutually-contradictory statements. Taking an entirely hypothetical situation, simply to illustrate the position and not intended to be reflective of this case, it is not difficult to visualise circumstances in which a witness makes a second statement which undoubtedly contradicts his first, but does so at gunpoint: the fact of the inconsistency is not, of itself, sufficient.
39.
Counsel for the appellants were not able to identify any reported case in which the approach for which they contend has been adopted by this Court. Some reliance was placed on
R v Ishtiaq Ahmed
[2002] EWCA Crim 2781
, but in our view that case – in which a witness who had made post-trial statements retracting her testimony at trial did in fact give evidence before this Court, and explained in convincing terms that she had made her later statements as a result of threats or blackmail – cannot assist the appellants. On the contrary, it serves to highlight the importance of this Court having the benefit of examination and cross-examination of the relevant witness when making an assessment of the apparent credibility of fresh evidence. The Court is, after all, specifically enjoined by s. 23(2)(a) of
the 1968 Act
to focus upon whether what is described as the fresh evidence is capable of belief.
40.
We do not go so far as to say that such an approach could never be adopted by this Court, though we cannot at present envisage the wholly exceptional circumstances in which that might be done if only so that the issue of credibility can be tested. In the present case, however, we regard the course we are asked to take as wholly unsatisfactory. We have said enough to indicate that each of the three affidavits was sworn in circumstances which give rise to considerable suspicion, and which cry out for explanation. No such explanation has even been offered. No application has been made by any appellant that Yusuf Ameeji be called before us, even though in one of his affidavits he declared himself willing to give evidence in support of these appeals. Neither has there been an application to call even one of the three solicitors (two of them practising in this country) who might have been able to shed some light on those suspicious circumstances, but whose statements fail to provide the necessary illumination. We reject the submissions to the effect that those suspicious circumstances should be regarded as confirming Yusuf Ameeji’s unreliability: on the contrary, we regard them as pointing more probably to manipulation of his evidence by some person or persons seeking improperly to assist one or more of these appellants. If there be a satisfactory explanation for the suspicious circumstances, this Court has simply not been provided with it.
41.
Although counsel for the appellants have referred to the material which we have summarised above as “the fresh evidence”, and we have necessarily considered that material in order to evaluate the submissions of the parties, the reality of these appeals is that this Court is not being asked to find any fresh evidence capable of belief. The fact that Yusuf Ameeji has made contradictory statements, including written statements on oath to the effect that his oral testimony at trial was untrue, is clear; but the appellants do not submit that the statements admitting to perjury are themselves true. Indeed, as Miss Radcliffe made clear in her oral submissions, it is not even contended on behalf of the Appellants that Yusuf Ameeji was telling the truth when he gave instructions to his immigration solicitors that his evidence as a prosecution witness had been obtained by a promise of indefinite leave to remain in this country. The testimony at trial of Yusuf Ameeji lasted a number of days, and was of course subjected to cross-examination before the jury, and he was accused of having various motives for lying. The appellants now seek to undermine that testimony by putting before this Court material which is
not
said to be capable of belief, even though some of it is in the form of sworn affidavits, and which is presented to this Court in a way which avoids any possibility of detailed investigation or assessment.
42.
In our judgment, and having regard to the manner in which the post-trial material relied on as discrediting Yusuf Ameeji and as supporting the appellants’ cases has been put before us, there is nothing in that material which is capable of belief. It follows that there is nothing in the material which may afford any ground for allowing any of these appeals. We do not find it either necessary or expedient in the interests of justice to receive material which, had leave been sought to call it as evidence in the usual way, could have been tested before us. We therefore decline to exercise our power under s23 of
the 1968 Act
to receive any of this material.
43.
We add this. The circumstances of criminal litigation are of course infinitely variable, and each case must and will be considered on its merits: that is why leave was properly given in this case, so that careful consideration could be given to the submission that these appellants have been the victims of unjust convictions. But this Court will always be astute to the risk of post-trial manipulation of any witness (and particularly one of significance) who may by one means or another be persuaded to assert after the event that his testimony at trial was untrue. Without impugning any individual appellant, it is important that it is generally appreciated that the Court is most unlikely to be persuaded by an appeal based upon an approach similar to that which has been adopted in this case.
44.
It follows from what we have said that the first and principal ground of appeal fails. In the circumstances it is not necessary for us to consider the alternative ways in which, if our decision on the fresh evidence point had been different, the Crown would have sought to uphold the convictions. We merely observe that the familiar authority of
R v Pendleton
[2002] 1 Cr App R 34
would have presented a substantial difficulty for at least some of the Crown’s arguments.
45.
As to the second ground of appeal, it is sufficient to say that in our judgment the summing up by the learned trial judge was correct in law and contained a sufficient warning to the jury of the need for caution when assessing the credibility and reliability of Yusuf Ameeji’s evidence. We accept Mr Herbert’s submission on behalf of the Crown that the direction was adequate in the circumstances of this case (as, when granting leave, the full Court envisaged). In any event, the jury knew that Yusuf Ameeji had himself been convicted of offences relating to his illegal entry into this country, and had admittedly told many lies to the authorities in order to come to this country and remain here; the challenges to his credibility were based on grounds which were easily understood; and the possibility that he might have interests of his own to serve was obvious. We have considered the terms of the alternative direction which Miss Radcliffe helpfully drafted to support her submission as to the inadequacy of the direction in fact given by the judge. Whilst the proposed alternative is somewhat fuller than that which was given, and in particular is explicit in mentioning a possible motive for lying of fear of prosecution as a conspirator, we are not persuaded that demonstrates that the approach of the judge was wrong in law or that it would have caused the jury to take a different view of Yusuf Ameeji. We are satisfied that the jury can have been no doubt about the need to reflect carefully before accepting all or any part of Yusuf Ameeji’s evidence. They were entitled, having done so, to accept him as a witness of truth. We are not persuaded that the terms of the judge’s direction give rise to any doubt as to the safety of these convictions. This second ground of appeal accordingly also fails.
46.
We add, simply for completeness, that not all the jury’s verdicts were returned on the same day, that not all who were convicted were directly implicated by Yusuf Ameeji, and that one defendant was acquitted. It may be thought that those facts support the view that the jury did, as one would expect, approach their task conscientiously, and weighed the totality of the evidence with care before coming to their decisions. For those reasons each of these appeals against conviction is dismissed.
47.
We turn to the applications by Asif Bhiki, Sajid Bhiki and Sikander Patel for leave to appeal against their sentences. Each of the Bhiki brothers was sentenced to 5 years’ imprisonment, which was also the sentence passed on Soyeb Patel and Asif Patel. Sikander Patel was sentenced to 3 years 6 months’ imprisonment. That was because the judge in his sentencing remarks expressly accepted, having heard all the evidence, that Sikander Patel was less involved than the other defendants, and indeed less involved than the judge had initially thought.
48.
The grounds of appeal put forward by these three Appellants differ, but they have common features. It is submitted that the learned judge wrongly assessed, and unduly elevated, the role of each applicant in the conspiracy; that he passed sentences which were manifestly excessive having regard to the true criminality of the applicant concerned; and that the sentences were excessive when compared with others, in particular when compared with the sentence of 2 years 6 months passed on Shabbir Patel, who pleaded guilty but who is said to have been more seriously involved than each of the applicants.
49.
All those convicted of the conspiracy played their parts in a sophisticated, wide-ranging and well-organised criminal operation which continued for a period of several years and resulted in a substantial number of persons illegally entering this country. They did so for financial reward. The seriousness of the case as a whole is obvious, and the trial judge was the person best placed to assess the role and criminality of individual conspirators. It must be remembered that he had presided over not only the lengthy trial of these appellants but also the previous trial of others accused of the same conspiracy. That fact presents, in our judgment, an insuperable obstacle to each of these applications. Having considered the individual grounds of appeal against sentence, we are not persuaded that any basis has been provided on which we in this Court would be entitled, still less required, to go behind the assessments made by the judge. If Shabbir Patel was fortunate in his sentence – as to which we make no comment – that good fortune may well have been a product of his having the courage to plead guilty, and it affords no basis for regarding any of these sentences as unduly severe. We are not persuaded that any of the sentences was manifestly excessive: indeed, we do not accept that they could be regarded as excessive at all. Each of the renewed applications for leave to appeal against sentence is accordingly refused. | {"ConvCourtName":["Crown Court at Leicester"],"ConvictPleaDate":[""],"ConvictOffence":["Conspiracy to do acts facilitating the commission of breaches of immigration law by individuals who are not citizens of the European Union, contrary to s1(1) of the Criminal Law Act 1977"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Leicester"],"Sentence":["5 years' imprisonment (Asif Bhiki)","5 years' imprisonment (Sajid Bhiki)","5 years' imprisonment (Soyeb Patel)","5 years' imprisonment (Asif Patel)","3 years 6 months' imprisonment (Sikander Patel)"],"SentServe":[],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Handwriting evidence","Financial evidence","Telephone evidence","Oral testimony of Yusuf Ameeji","CCTV (implied by surveillance/listening device)","Expert report/testimony (Wilhelm Vorse, South African Home Affairs)"],"DefEvidTypeTrial":["Cross-examination of prosecution witness","Denial of involvement by defendants","Alibi claim (implied by denials and alternative explanations)"],"PreSentReport":[],"AggFactSent":["Offence was part of a sophisticated, wide-ranging and well-organised criminal operation","Offence continued for several years","Substantial number of persons illegally entered the country","Offence committed for financial reward"],"MitFactSent":["Sikander Patel was less involved than other defendants"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction unsafe","Sentence is manifestly excessive"],"AppealGround":["Post-trial disclosure undermines reliability of prosecution witness Yusuf Ameeji","Judge's direction to jury regarding Yusuf Ameeji's evidence was insufficiently emphatic","Judge wrongly assessed and unduly elevated the role of each applicant in the conspiracy","Sentences were manifestly excessive compared to others"],"SentGuideWhich":[],"AppealOutcome":["Dismissed (conviction)","Leave to appeal against sentence refused"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Sentences not manifestly excessive; judge best placed to assess role and criminality of individual conspirators"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No fresh evidence capable of belief","No application made to call relevant witness for cross-examination","Jury properly directed and could assess credibility of witness","Trial judge's assessment of roles and sentences was appropriate"]} |
No:
200502106/D2
Neutral Citation Number:
[2005] EWCA Crim 1722
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 16th June 2005
B E F O R E:
LORD JUSTICE PILL
MR JUSTICE HENRIQUES
MR JUSTICE DAVIS
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 42 OF 2005
- - - - - - -
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 J NORRIS
appeared on behalf of the ATTORNEY GENERAL
MISS B CHEEMA
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE PILL: This is an application by the Attorney-General, under
section 36 of the Criminal Justice Act 1988
. He submits that a sentence passed at the Reading Crown Court by Miss Recorder Bucknall QC, was unduly lenient within the meaning of the section.
2.
In November 2004 the offender stood trial on an indictment containing four counts of possession with intent to supply Class A drugs, namely heroin, cocaine and ecstasy. There were alternative counts of simple possession. On 22nd November 2004 the offender was convicted, following a trial before the learned Recorder and a jury of count 2, simple possession of 63.6 grams of heroin; counts 3, possession with intent to supply 9.65 grams of heroin. Count 5, possession with intent to supply 4.23 grams of cocaine and count 7, possession with intent to supply 24.5 ecstasy tablets.
3.
Sentence was adjourned for pre-sentence reports to be prepared. On 18th March 2005 the Recorder sentenced the offender to a Drug Treatment and Testing Order for 12 months on each count concurrently.
4.
David Cameron, the offender, is 25 years old. It was on 17th January 2003 that his home and car were searched by police executing a drugs warrant. They found heroin, cocaine and ecstasy, together with scales and other paraphernalia.
5.
It was during the search of the car that a sock containing 63.6 grams of heroin was found. In the house were found 24 prepared wraps of heroin containing the 9.65 grams, together with a single foil wrap of cocaine, and the 24.5 tablets of ecstasy.
6.
The police found a box containing £6,420 in cash, in a wardrobe and a further £630 in cash in a bedside drawer. A set of electronic scales was found.
7.
Scientific analysis revealed the offender's fingerprints on the foil wrap of cocaine. He denied all knowledge of the drugs on interview. He said that the money belonged to his wife and had been given to her. The offender named another man, who was alleged to be involved in the ownership of the drugs. That man was traced and interviewed and denied all knowledge of the drugs. The offender's mother denied that she had given money to the family as the offender had alleged.
8.
After conviction, the offender disclosed a serious drug addiction. The usual investigations, preparatory to a confiscation order, were made and a substantial sum of benefit was identified.
9.
While the offender had one previous conviction, he was treated, and rightly treated by the learned Recorder, as of previous good character.
10.
The author of the pre-sentence report concluded that there was a risk of reoffending if the offender did not tackle his drug addiction. A DTTO assessment report was prepared after several meeting with the offender in January 2005. Long-term drug abuse was admitted and a considerable daily sum of expenditure on heroin.
11.
The report detected a clear motivation to embark upon drug rehabilitation and recommended a structured 12 month DTTO with twice weekly drug testing.
12.
When sentencing the offender, the Recorder stated that the offender had been convicted of serious drug offences. She stated that:
"...the most important thing, from the point of view of both the public and your own rehabilitation, is that your dependency be addressed."
The Recorder added:
"...I have reached the conclusion that your offence is certainly seriousness enough to merit a community order and that the most appropriate method of dealing with you is to impose a drug rehabilitation requirement."
It was in those circumstance that the 12 month DTTO was made.
13.
On behalf of the offender, Mr Norris submits that the Recorder was justified in making the order she did for the reasons she did. He further relies upon the fact that the offender has made an excellent start to the programme of treatment for which the order provided.
14.
If the Court is against him on the custodial sentence, he submits that a discount should be made from what would otherwise be an appropriate sentence by reason of the double jeopardy in which the events have placed the offender and the shock to him and his family the substitution of a custodial sentence will involved.
15.
For the Attorney-General, Miss Cheema has referred us to well-known authorities in this field. She has referred to the case of
R v Twisse
[2001] 2 Cr App R(S) 9, a decision of this Court, Kennedy LJ presiding. Having considered authorities and heard evidence, Kennedy LJ stated, at paragraph 10:
"All indicate a sentencing bracket of between 5 and 7 years. In other words, as the judge said, an offender may expect about 6 years' imprisonment, which can be increased or mitigated in the way that he outlined."
The Court, "having anxiously considered" whether it was necessary to review the tariff, stated that it was not necessary to take that step.
16.
More recently, in the case of
R v Afonso
[2004] EWCA Crim 2342
, this Court, Rose LJ, the Vice-President, presiding, stated at paragraph 2:
"Nothing which we say is intended to affect the level of sentence indicated by
Dhajit
and
Twisse
for offenders, whether or not themselves addicts, who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of Class A drugs; and, as was pointed out in those authorities, as well as other authorities, the scale and nature of the dealing are important when deciding the level of sentence."
The Court went on in that case to consider a type of offender which, as Mr Norris realistically and inevitably accepts, is quite different from the offender in this case.
17.
More recently, in
Attorney-General's Reference No 66 of 2003
[2003] EWCA Crim 3514
, this Court, the Vice-President again presiding, considered circumstances in which a DTTO might properly be made. We need refer only to three of the circumstances considered by the Court at paragraph 14 of the judgment:
"(vi) the type of offence for which a DTTO will generally be appropriate is an acquisitive offence carried out to obtain money for drugs, though the fact that the motive was to feed drug addiction does not compel the conclusion that a DTTO should be made;
(vii) a DTTO may be appropriate even when a substantial number of offences have been committed;
(viii) a DTTO is unlikely to be appropriate for a substantial number of serious offences which either involve minor violence, or have a particularly damaging effect on the victim or victims. There must be a degree of proportionality between offence and sentence, so that excessive weight is not given to the prospect of rehabilitation at the expense of proper regard for the criminality of the offender."
18.
Making her submissions on behalf of the Attorney-General, Miss Cheema submits that a sentence of a DTTO failed adequately to reflect the gravity of the offences, which demonstrated that the offender was a commercial street level drug dealer. In particular, the sentence failed to have regard to the menace of Class A drugs in society and the need to pass deterrent sentences in cases of the supply of Class A drugs.
19.
We have referred to the submissions of Mr Norris. He accepts that this is a case which comes within the bracket indicated in the cases to which we have referred, if a custodial sentence is to be imposed. The sentence may be in the region of 6 years, subject to the double jeopardy point which counsel has raised.
20.
We accept the submissions of Miss Cheema. This was not a case, applying the guidelines and having regard to the issues involved, where a DTTO could properly be made. A custodial sentence was required. Accordingly, we allow the Attorney-General's application and go on to consider sentence.
21.
The proper sentence, had sentence been imposed in the Crown Court, would have been one of about 6 years. We have regard to the submissions made by Mr Norris and to the double jeopardy in which the offender has been placed. The sentence of the Court is one of four-and-a-half years' imprisonment.
22.
LORD JUSTICE PILL: Can you assist, Miss Cheema, there must be a distinction between the offences, must there not?
23.
MISS CHEEMA: Yes.
24.
LORD JUSTICE PILL: The DTTO, as I understand it, was made on each count.
25.
MISS CHEEMA: Made concurrently in respect of each guilty verdict.
(The Bench Conferred)
26.
LORD JUSTICE PILL: We have indicated the total sentence. That will consist of concurrent sentences of four-and-a-half years on all the offences involving possession with intent to supply and a concurrent sentence of 2 years for the possession of the Class A drug.
27.
Are there further applications?
28.
MISS CHEEMA: Would my Lord direct that the offender surrender to Reading police station by an appropriate time, say tomorrow, and then the sentence can take effect.
29.
MR NORRIS: I have no argument.
30.
LORD JUSTICE PILL: So be it. Administratively noon would be far better.
31.
MISS CHEEMA: Thank you. | {"ConvCourtName":["Reading Crown Court"],"ConvictPleaDate":["2004-11-22"],"ConvictOffence":["Simple possession of 63.6 grams of heroin","Possession with intent to supply 9.65 grams of heroin","Possession with intent to supply 4.23 grams of cocaine","Possession with intent to supply 24.5 ecstasy tablets"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Reading Crown Court"],"Sentence":["Drug Treatment and Testing Order for 12 months on each count concurrently (original sentence)","Four-and-a-half years' imprisonment concurrent on all offences involving possession with intent to supply (substituted on appeal)","2 years' imprisonment concurrent for possession of Class A drug (substituted on appeal)"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[25],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Scientific analysis (fingerprints on foil wrap of cocaine)","Physical evidence (drugs, scales, cash found in home and car)"],"DefEvidTypeTrial":["Offender denies all knowledge of the drugs","Named another man as involved (who denied involvement)","Claimed money belonged to wife"],"PreSentReport":["High risk of reoffending"],"AggFactSent":["Commercial street level drug dealing","Possession with intent to supply Class A drugs"],"MitFactSent":["Offender of previous good character","Motivation to embark upon drug rehabilitation","Excellent start to treatment programme"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence failed to reflect gravity of offences","Sentence failed to have regard to the menace of Class A drugs and need for deterrent sentences"],"SentGuideWhich":["Section 36 of the Criminal Justice Act 1988","R v Twisse [2001] 2 Cr App R(S) 9","R v Afonso [2004] EWCA Crim 2342","Attorney-General's Reference No 66 of 2003 [2003] EWCA Crim 3514"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":["DTTO failed to reflect gravity of offences","DTTO inappropriate for serious drug supply offences","Need for deterrent sentences for supply of Class A drugs"],"ReasonDismiss":[""]} |
Neutral Citation Number:
[2012] EWCA Crim 1605
Case No: 201103920 B2, 201105580 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 27 June 2012
B e f o r e
:
LORD JUSTICE PITCHFORD
MR JUSTICE LLOYD JONES
RECORDER OF BIRMINGHAM - HIS HONOUR JUDGE DAVIS QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - -
R E G I N A
v
ALWAYNE TONZARAH NATHANIEL BARNES
DALE BURTON
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2AY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr G Branston
appeared on behalf of the
Appellant, Barnes
Mr J Beck
appeared on behalf of the
Applicant, Burton
Mr R Thatcher
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE PITCHFORD: On 16 November 2010, the appellants appeared before HHJ Stokes QC, the Recorder of Nottingham, facing separate indictments alleging the supply of Class A drugs, cocaine and heroin. Barnes pleaded guilty to 18 counts, Burton pleaded guilty to 10 counts.
2.
Between 31 May and 8 June 2011, both men were tried upon an indictment alleging that they conspired to commit the offence of robbery, and that they possessed a firearm while committing a Schedule 1 offence, contrary to section 17(2) of the Firearms Act 1968. The judge directed the jury at the close of the prosecution case to find Burton not guilty of count 2.
3.
On 8 June 2011, after a very short retirement, Barnes was convicted upon both counts and Burton was convicted upon count 1. Two days later the Recorder sentenced Barnes to a total of 17 years' imprisonment, comprising ten years for the count 1 conspiracy, two years consecutive for count 2, possession of a firearm, and five years for the drugs offences concurrent with each other, but consecutive to the other sentences. Burton was sentenced to 11 years imprisonment, seven years in respect of count 1 and four years for each of the drugs offences concurrent with each other, but consecutive to the sentence imposed upon the trial indictment.
4.
The Recorder ordered that in Barnes' case 286 days should count for the purposes of section 240 of the Criminal Justice Act 2003, and in Burton's case, that 423 days should count for the same purpose.
5.
Barnes now appeals against conviction with the leave of the Single Judge upon one ground, namely that the judge wrongly admitted "reverse projection" evidence given by Mr Nicholas Coxon. Mr Branston seeks also to renew his second ground, namely that Burton's submission of no case to answer at the close of the prosecution case should have succeeded. If it had, that made the case against Barnes weaker. Accordingly he submits the verdicts of the jury were unsafe.
6.
Mr Barnes himself has submitted a document in which he raises two further grounds of appeal: first, that the prosecution abused the process of the court and second, that there were failures in disclosure which rendered the verdicts in his case unsafe.
7.
On behalf of Burton Mr Beck seeks to renew an application for leave to appeal against conviction on the ground that his submission of no case should have succeeded. Burton also seeks to renew his application for leave to appeal against his sentence.
8.
It is necessary to summarise the circumstantial case which emerged at trial. On 28 July 2009, CCTV at Porchester Road Post Office, Thornley Wood in Nottingham, captured Barnes and Burton entering the premises at about lunchtime. They appeared to be looking not only around the shop, but also at a card display, and they left after about nine minutes having made a purchase. The prosecution case was that they were carrying out reconnaissance in preparation for the events of the following day. It was, in particular, Mr Burton's case that he was buying a card for a close relative, whose birthday was the following week.
9.
At 12.25 the following day, Wednesday, 29 July, two men entered the post office wearing hooded tops and black bandanas covering their faces. The preponderance of the evidence was that one was about 5'7" tall and the other was about 6'. One of the men appeared to be holding a knife and the other a shotgun. The man with the shotgun went to the post office counter. The man with the knife stayed at the door. The gunman shouted "get down" and tried to smash the glass security partition by striking it several times with the barrel of the gun.
10.
Two shop assistants were retreating to the rear of the shop when they heard the shotgun being discharged at the glass partition. As a consequence, shards of glass were projected towards the shop assistants, both of whom were struck. Thankfully neither of them suffered any serious injury.
11.
Outside the shop a witness, Robert Leyton, was sitting in his parked Jeep Grand Cherokee. He saw a second Jeep Grand Cherokee, which he described as mid-grey in colour, with blacked out number plates pull up outside the post office. Two men got out of the vehicle, he thought from the rear, and went into the post office. One of them was holding a shotgun. Mr Leyton thought that there was a third man who remained in the driver's seat of the vehicle, but other witnesses disagreed. The two men returned and got back into the Jeep. The first call to the emergency services was made at 12.33pm. The Jeep turned left and was driven south along Porchester Road.
12.
Just before 12.46 a road traffic accident took place on Porchester Road to the north of the post office, in other words, in the direction opposite from the route taken by the getaway vehicle, but several minutes after the attempted robbery had taken place. At 1.15pm, or thereabouts, both Barnes and Burton were interviewed at the scene of the road traffic accident as witnesses. Barnes was arrested on Saturday, 1 August 2009, three days after the attempted robbery. Found in the left pocket of his jacket was a set of Jeep car keys and an immobiliser. The vehicle in respect of which those keys were held was never recovered and, the prosecution contended, was subsequently destroyed.
13.
Barnes gave inconsistent accounts of his possession of those keys. He said on arrest that he had just found them. In interview he said a hire company was going to change his hire vehicle so he had had to empty the hired Vauxhall Astra and the keys were found in it. In evidence he claimed that he had found the black hooded top he was wearing when he was arrested in the hall at number 29 Elgar Gardens, where he said he had been earlier on the day of his arrest. The keys were in the pocket of the hooded top.
14.
This change of account at trial gathered significance upon consideration of the forensic science evidence, to which we shall come in a moment. Burton on arrest said he knew nothing about any robbery. In interview he could not recall where he had been on the Wednesday, but he did recall that he had seen two accidents in one week.
15.
On 18 August 2009, the police executed a search warrant at 29 Elgar Gardens, St Ann's, Nottingham. The occupier was Lynette Burton, the applicant Burton's cousin. Underneath a plank in the overgrown front garden the police found a black plastic bag and, inside, side by side shotgun barrels with a cartridge in one barrel. Gunshot discharge and shards of glass were found on the barrels. A forensic science laboratory recovered from the black hooded top, worn by Barnes at the time of his arrest, several glass fragments which were chemically and physically indistinguishable from glass retrieved from the damaged post office security scene, and from glass fragments recovered from the side-by-side barrels.
16.
The forensic scientist gave evidence, from examination of the crime scene photographs, that glass had been projected forward towards the fleeing shop assistants who were hit by fragments and also was reflected backwards in the direction of the gunman, who had discharged the weapon. A mobile phone seized from Barnes contained stored photographs of a Jeep Cherokee taken on 26 July 2009. The vehicle was registered as purple or mauve.
17.
The learned judge in directing the jury referred to his impression that the photographs looked to depict a vehicle with a greyish colour, but warned them to be wary of acting on impression from imperfect images. Mr Branston, on behalf of the appellant Barnes, expressed his firm view that those photographs showed a mauve coloured grand Cherokee.
18.
Also recovered from the phone were text messages sent to a person called Nash on 31 July 2009, two days after the offence. One directed Nash to 24 Elgar Gardens, the other corrected the address to 29 Elgar Gardens. From the mobile phone recovered from Burton the police extracted a text message sent by Burton reading "Just havin a play in my Jeep ...". On 12 April 2011, six weeks before the commencement of trial, the prosecution served a notice of additional evidence comprising the evidence of Nicholas Coxon. Mr Coxon is an experienced CCTV manager employed by Nottinghamshire Police. He thus had experience of interpreting CCTV images.
19.
The appellant, Barnes, had in his defence statement asserted that the owner of the hooded top in which the glass fragments had been found was a man called Robert Taylor. Taylor, he asserted, was the gunman. Taylor's height was known to be 6'. Mr Coxon was asked to consider whether the height of the gunman to be seen in the CCTV film of the crime could be ascertained. Mr Coxon gave evidence to the effect that the CCTV camera within the post office operated from a fixed position. It was possible to select people of a known height to act out the movements of the gunman to be seen in the crime recording. The same CCTV camera in the same fixed position could be used to record the actor's movements. By comparing the images thus produced with the crime scene recording, it would be possible to form a view as to the approximate height of the gunman. In fact, in order to carry out this exercise a gentlemen of a known height of 5'7" and a gentlemen of a known height of 6' were selected for the purpose.
20.
Mr Coxon was able to prepare a photographic overlay for each of the acted recordings, which could be, and was, superimposed upon the crime scene recording. By this means a direct comparison could be made between the actor known to be 5'7" tall and the gunman, and between the actor known to be 6' and the gunman, while each of them was in the same position in the post office as was the gunman. For some reason this technique was described by Mr Coxon as "reverse projection". But it seems to us that far from being new science, it employed photographic techniques well-known to criminal courts; for example, facial mapping is routinely demonstrated by preparing images, one of which can be overlaid on the other. The technique requires that the two images are properly aligned, comparable, clear and undistorted.
21.
Indeed, in his submissions, which challenge the admissibility of Mr Coxon's evidence, Mr Branston is careful not to submit that Mr Coxon was either adopting a strange and new science, or that he was not qualified to adopt and adapt the technique which he was using. Mr Branston sought to exclude the evidence and at first the Recorder had some sympathy for his objection. Nevertheless, having considered the matter overnight, and in particular having viewed the photographic work for himself, he concluded that it was professionally produced and was admissible for the limited purpose of providing an approximation of the gunman's height. It was for the jury to assess the weight of the evidence, having been directed as to the caution which they should adopt.
22.
Mr Branston renews his criticism of the admission of this evidence. At first he objected that Mr Coxon had not provided any details to the court, as required by the Criminal Procedure Rules, Rule 33, of any literature or other information on which the expert had relied in making his report, nor was there a statement of the witness's understanding of his duty to the court. We note that in his oral submissions to us Mr Branston did not renew this particular part of his objection.
23.
As we understand it, Mr Coxon was not relying upon any technical papers produced by others, he was applying known photographic techniques with which he was familiar. All that was required was the production of film, which could provide a fair and reasonably accurate comparison with the crime scene recording. It was this exercise to which his evidence was directed.
24.
The judge concluded, having heard Mr Coxon's evidence, that he was a palpably, fair and careful witness. It was one of the matters to which he pointed in the course of his summing-up in order to direct the jury that they should be careful about accepting and acting upon the evidence of a witness who was, so palpably, fair and careful when it was not possible to guarantee absolute accuracy.
25.
Because absolute replication of choreography was not possible, Mr Coxon accepted that there was a margin for error. The appearance of the images created by the actors may, for example, be affected by footwear and a particular stance adopted by the actor when in the same position within the post office as was the gunman. However, the absolute accuracy of the choreography was not required for the purpose of the height comparison. What was required was that the actor stood in the same spot, as had the gunman, to enable a proper comparison to be made. The ultimate question for the jury was simply whether or not the gunman appeared to be 6' tall, as had been asserted by Mr Barnes, or whether he may have been in the region of 5'7". Indeed, Mr Coxon accepted that there was a margin for error and said that the gunman could have been, in his view, any height between 5'5" and 5'8".
26.
Mr Branston suggests that the investigation lacked objectivity because it involved a witness and actors who were employed by the Police Service. It seems to us that the objectivity, or otherwise, of the exercise was laid bare for the jury to judge. Actors of 5'7" and 6' in height were selected not just because the appellant himself was 5'7", but because several of the eyewitnesses referred to two men in the shop, one of whom was about 5'7", although there were variations, and the other about 6'. The exercise in which the jury was engaged was a consideration whether the gunman was the taller or the shorter man.
27.
The exercise was criticised by Mr Branston because no one had revealed to Mr Coxon that the police had available a CCTV recording of the visit by the defendants to the post office the day before. That was no doubt an unfortunate omission, but in our view it did not vitiate the exercise being carried out by Mr Coxon. His purpose was limited to a demonstration of whether the gunman in the crime scene recording was the taller or the shorter man. If there was any reason to think that an analysis of the CCTV recording of 28 July, and a comparison of the image of the appellant in the reconnaissance recording with the image in the crime scene recording, raised the reasonable possibility that they were not the same person, then we would expect that an expert would have been instructed, on behalf of the appellant, in order to ascertain whether there was evidence which excluded him.
28.
It is accepted by Mr Branston that the effect of Mr Coxon's evidence was that it was highly improbable that the gunman was 6' tall and it was highly probable that the gunman was between 5'5" and 5'8" tall. He complains that the evidence of Mr Coxon could have been even more discerning had there been a range of actors whose height was between say 5'2" and 6', in respect of whom this exercise was performed. We agree that the exercise could have been more discriminating than it was, but we do not consider that this affected the admissibility of the evidence since it was admitted for a very limited purpose, which was explained by the Recorder to the jury in straightforward terms.
29.
In our view this evidence was admissible. There was no attempt either at trial, or in this appeal, to adduce the evidence of any consultant to cast doubt upon the accuracy of Mr Coxon's work. As we have said, the Recorder of Nottingham took infinite care in his directions to the jury to ensure that they were not beguiled by the evidence, and no criticism is made of those directions. We consider, having regard to our summary of the evidence adduced during the course of the prosecution case, that there was a sound circumstantial case for the appellant to answer and Mr Branston does not contend otherwise.
30.
Mr Barnes submits in person that the prosecution abused the process of the court by changing the nature of its case against him. Both suspects were charged with attempted robbery. On 15 December 2010, at a mention hearing, the prosecution maintained that Barnes was the gunman and Burton was the man next to the door with a knife in his hand. It was on that day confirmed that the prosecution intended to proceed with the count of attempted robbery. However, counsel instructed for the trial, Mr Thatcher, took the view that the case for asserting that Mr Burton was inside the post office was unsustainable. Mr Burton is a white man. The witnesses said that both robbers were black, or that one of them was of mixed race.
31.
On 4 March 2011, the trial judge permitted an amendment to substitute for the count of attempted robbery a new count of conspiracy to rob. This enabled the prosecution to assert that even if Mr Burton was not present at the robbery he could be found guilty of the offence of conspiracy to rob. In our judgment, the prosecution's change of stance comes nowhere near supporting an abuse of process argument in the case of Barnes, and we do not give leave in respect of that ground.
32.
Mr Barnes also submits that the police failed to make adequate investigations, which may have assisted the appellant in his defence, including cell-site information from the use of mobile phones, any CCTV footage of the route taken by the appellant to the location of the road traffic accident, and fingerprint examination of the plastic bag containing the shotgun barrels.
33.
These were all matters, in our view, for investigation at trial, and that investigation indeed took place. The judge gave to the jury a specific direction that if they considered there were gaps in the evidence they should bear that in mind when asking whether the prosecution had proved its case so that they were sure. We refuse leave on the second ground advanced by Mr Barnes in person.
34.
We turn to Mr Beck's submission, supported on behalf of Barnes by Mr Branston, that there was no case for the applicant Burton to answer. There was, we have concluded, a sound circumstantial case against Barnes. If the jury concluded that Barnes was the gunman, then that was a fact which they were entitled to consider as relevant to the circumstantial case against Burton. He was with Barnes in the post office on the day before the robbery. There was evidence that there was a third man in the Jeep. Burton was with Barnes within minutes of the robbery. He had, depending on the jury's view, access to a Jeep. The weapon was found in the front garden of his cousin's home, an address to which Barnes had directed Nash.
35.
It was not, in our view, necessary before the jury convicted Burton upon count 1, that they had to be sure of the role, if any, he played in the attempted robbery. He may have been a lookout, he may have been a driver, he may have been an organiser or planner. The jury was required to be sure that the applicant was one of the conspirators with the intention that the robbery should be carried out by one or more of the conspirators. This was the law which the judge carefully explained to the jury.
36.
In support of Barnes' case, Mr Branston relied upon an observation, made by the learned judge in the course of submissions, that it might well be that at the end of the day the jury would return a verdict of not guilty in the case of Mr Burton. Mr Branston sought to erect an argument that if that was the judge's view, then he should not have permitted the jury to consider the evidence against Burton at all.
37.
In our judgment that was a hopeless proposition. The duty of the judge was to require the jury to reach a conclusion whether they could be sure of the guilt of the accused, provided that the evidence was such at the close of the prosecution case that they could safely return such a verdict. In our view, despite the submissions both of Mr Beck and Mr Branston on this issue, there was indeed a case for Burton to answer.
38.
In Burton's case the judge took the unusual step, favourable to Burton, of cautioning the jury against drawing any inference against his interests from his decision not to give evidence in his own defence. Having regard to the judge's view as to the state of the evidence concerning
Mr Burton, that was undoubtedly the fair way in which to approach the issue of adverse inference arising from a decision not to give evidence.
39.
As we have observed, the jury returned with their verdicts 20 minutes after they were asked to retire. We have found no errors of law in the judge's approach to the evidence and we see no sound basis for doubting the safety of the verdicts. Mr Barnes appeal against conviction is dismissed. We grant leave to Mr Burton, but we dismiss his appeal against conviction also.
40.
As to sentence, Mr Beck argues that the judge could not properly conclude that Mr Burton knew that a firearm would be discharged in the post office. We agree with him, but the judge did not find that he did know a firearm would be discharged in the post office. He said that the conspirators must have known that a weapon would be used in the course of the robbery. That is, it seems to us, self-evident from the reconnaissance carried out by the appellants the day before the robbery.
41.
We have considered page 11 of the Sentencing Guidelines Council's guideline on robbery and in common with the Single Judge we conclude that seven years' imprisonment after a trial, for an attempted post office robbery with weapons, is not arguably excessive and the renewed application for leave to appeal against sentence in Mr Burton's case is refused.
42.
MR BRANSTON: May I make one minor correction? Your Lordship said Mr Johnson QC appeared at trial, in fact it was Mr Thatcher who appeared at trial.
43.
LORD JUSTICE PITCHFORD: When I was reading from my list I was looking at prosecution counsel from the first appeal. I do apologise, Mr Thatcher.
44.
MR THATCHER: I think the apology is better directed at my learned friend, Mr Johnson. It is no embarrassment for me to be confused with him at all.
45.
LORD JUSTICE PITCHFORD: That will be corrected in the transcript, if it is not already corrected by the shorthand writer.
46.
MR BECK: My Lords have given leave in relation to the renewed application on conviction. Would my Lords therefore grant a representation order?
47.
LORD JUSTICE PITCHFORD: Yes.
48.
MR BECK: I am grateful. | {"ConvCourtName":["Crown Court at Nottingham"],"ConvictPleaDate":["2010-11-16","2011-06-08"],"ConvictOffence":["Supply of Class A drugs (cocaine and heroin)","Conspiracy to rob","Possession of a firearm while committing a Schedule 1 offence"],"AcquitOffence":["Possession of a firearm while committing a Schedule 1 offence (Burton only, directed acquittal)"],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":["2010-11-16 (Barnes: guilty to 18 counts drugs; Burton: guilty to 10 counts drugs)"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[286,423],"SentCourtName":["Crown Court at Nottingham"],"Sentence":["Barnes: 17 years imprisonment (10 years for conspiracy, 2 years consecutive for firearm, 5 years for drugs concurrent with each other but consecutive to other sentences)","Burton: 11 years imprisonment (7 years for conspiracy, 4 years for drugs concurrent with each other but consecutive to conspiracy sentence)"],"SentServe":["Combination"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person","Individuals"],"VicNum":["two shop assistants"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Forensic evidence (glass fragments, gunshot residue)","Eyewitness testimony","Text messages","Mobile phone photographs"],"DefEvidTypeTrial":["Defendant's account/denial","Alternative suspect theory (Robert Taylor)"],"PreSentReport":[],"AggFactSent":["Use of a weapon (shotgun and knife)","Reconnaissance prior to offence","Discharge of firearm in public place"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction","Sentence (Burton only)"],"AppealGround":["Admission of 'reverse projection' evidence (Barnes)","Submission of no case to answer should have succeeded (Burton)","Abuse of process (Barnes, in person)","Disclosure failures (Barnes, in person)","Sentence excessive (Burton)"],"SentGuideWhich":["Sentencing Guidelines Council's guideline on robbery (page 11)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Evidence admissible and properly directed by judge","Sound circumstantial case against both appellants","No error of law in judge's approach","Sentence not arguably excessive for attempted post office robbery with weapons"]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202200484/A3
[2022] EWCA Crim 1158
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 28 July 2022
Before:
LADY JUSTICE CARR DBE
MR JUSTICE FRASER
THE RECORDER OF LEEDS
HIS HONOUR JUDGE KEARL QC
(Sitting as a Judge of the CACD)
REGINA
V
RAVINDER SONI
__________
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 WOLKIND QC
appeared on behalf of the Applicant
_________
J U D G M E N T
LADY JUSTICE CARR:
Introduction
1.
This is a renewed application for leave to appeal against sentence for which a 29-day extension is required. Following his earlier guilty pleas, the applicant, now 31 years of age, was sentenced by Her Honour Judge Buckingham sitting in the Crown Court at Birmingham on 27 January 2022 to an extended determinate sentence of 13 years, pursuant to
section 279
of the
Sentencing Act 2020
, comprising a custodial term of eight years and an extended licence period of five years. The sentence was imposed for causing grievous bodily harm with intent, contrary to
section 18
of
the Offences Against the Person Act 1861
(count 1). Concurrent sentences were passed on additional offences as follows: inflicting grievous bodily harm, contrary to
section 20
of
the Offences Against the Person Act 1861
, two years' imprisonment (count 3); assault occasioning actual bodily harm, contrary to
section 47
of
the Offences Against the Person Act 1861
, 12 months' imprisonment (count 5); having an offensive weapon, contrary to
section 1(1)
of the
Prevention of Crime Act 1953
, 12 months' imprisonment (count 6).
The facts
2.
On 7 May 2021 the applicant and his brother Ajay Soni ("Ajay") had been in the Floodgate Bar in Digbeth, Birmingham. They drank significant amounts of alcohol. Covid-19 restrictions were in operation, meaning that they had to use a mobile telephone application to order drinks whilst seated. The applicant provided false details.
3.
During the evening a dispute arose between the two brothers and security staff including Nizar Minsaria (“Minsaria”), David Monterio (“Monterio”) and Nicholas Williams (“Williams”). At some point the mobile telephone belonging to one of the two brothers came into possession of the security staff and there ensued a verbal altercation, during the course of which Williams was punched to the face. Police attended and the applicant, Ajay and a third unidentified male left the bar. CCTV footage shows that the applicant had sustained a bleeding injury to his head.
4.
At some point between 10.50pm and 11.30pm Ajay obtained an Audi estate car in which he collected the applicant. The men then drove to the Floodgate Bar area. They had by now armed themselves with baseball bats or similar. CCTV cameras captured the vehicle driving up and down the road, evidently scouting for the security staff. When Minsaria had finished work, he waited to meet his family. He saw the applicant and Ajay in the Audi and, seeking to protect his family, ran away from them down the road. The Audi drove towards and struck Minsaria at speed. The applicant and Ajay exited the Audi and assaulted him with baseball bats as he lay injured on the ground. Other doormen, including Monterio and Williams, ran to Minsaria's aid. The applicant and Ajay got back into the Audi and drove towards them. Williams pushed Minsaria towards a wall, only then to be struck himself by the Audi. The Audi then struck Monterio, who was flung onto the bonnet before hitting the ground.
5.
Monterio declined to go to hospital but was badly bruised all over his body. Williams suffered a twisted ankle. Minsaria was treated at hospital and found to have significant bruising, a broken right hand requiring surgery and a fractured left ankle. He also required stitches to his scalp.
6.
Ajay and the applicant drove away at speed. The Audi collided with another vehicle in the vicinity of the Belgrade Middleway. The applicant checked with the female driver of that vehicle to see if she was all right before he and Ajay fled the scene.
7.
In the aftermath Minsaria realised that his security badge, watch, ring and mobile telephone were all missing. His security badge was found inside the abandoned Audi. The applicant's DNA recovered from the passenger side airbag led to his arrest. Ajay on the other hand remains at large.
8.
In his victim personal statement, Minsaria recorded his difficulties in sleeping and the fact that he was now taking medication for anxiety. Significantly, he was too scared now to return to work as a security guard on the doors. He had ongoing medical appointments, including physiotherapy. He described his life as having been completely changed.
9.
The applicant had seven previous convictions for 10 offences spanning between December 2009 and December 2020. Notably, those convictions included convictions for resisting or obstructing a constable, destroying or damaging property, two counts of affray in 2012, and in 2013 a conviction for causing grievous bodily harm with intent. For one of the two affrays he had received a sentence of 11 months' imprisonment. For the most recent offence in 2013 he had received a 12-year custodial sentence. The offending was markedly similar to the index offending: the applicant had lain in wait in a car, again with his brother Ajay. The two men had then attacked the victim with a hammer. The applicant had only been released on licence in 2019.
The sentence
10.
The judge reviewed the facts. She placed the offending on count 1 in Category A3 for the purpose of the Sentencing Council Guideline on Assault (“the Guideline”) and indicated that she would treat that offending as the lead offence in determining the overall appropriate sentence. She referred to the applicant's character references, the fact that he had obtained employment whilst on licence and formed a settled relationship. She would afford a 25% credit for guilty plea.
11.
She referred to the applicant's temper as being the cause of this latest offending, alongside what she described as "the toxic relationship" between him and his brother. On the night in question the applicant had been seeking revenge. It was pure luck that no one had been more seriously injured. Whilst it was unjust to impose a life sentence, she was entirely satisfied that the applicant posed a significant risk of causing serious harm from the commission of further specified offences. In those circumstances she imposed an extended sentence, as we have indicated, with a custodial period of eight years and a five-year licence period.
Grounds of appeal
12.
Mr Wolkind QC, who did not represent the applicant below, makes the overarching submission that the judge adopted a starting point on the lead offence (count 1) that was excessive. A term of 10 years and eight months before 25% credit for guilty plea was more than double the suggested starting point in the Guideline for Category A3 offending. In his submission, consistent with the submission of his predecessor, a nine-year term before credit for guilty plea would have marked adequately the presence of the additional counts of offending in counts 3, 5 and 6, and the gravity of the case overall. There was the extended five-year licence period, the maximum period, to be taken into account. Whilst clearly a serious case, Mr Wolkind contends is that the ultimate term arrived at “feels too high” and “was too high”.
Discussion
13.
This was a series of premeditated attacks on security staff at night using a car as a weapon and including a violent and brutal assault with a baseball bat on a victim lying on the ground. The CCTV footage which captures much of the events in question makes for shocking and harrowing viewing.
14.
There is and can be no complaint as to the categorisation of the offending on count 1 as Category A3 offending. Culpability was high because there was significant premeditation. A vehicle was used as a weapon, the victim was also hit with baseball bats in a persistent attack and this was a revenge attack. Harm caused fell into Category 3.
15.
A Category A3 offence has a starting point of five years' custody with a category range of four to seven years. However, the Guideline says in terms that multiple features of culpability can justify an increase from the starting point even before other aggravating and mitigating factors are considered. The offence here was aggravated further by the fact of the applicant's previous conviction for the same offence, also committed with Ajay, and an earlier serious affray. In addition, Minsaria had been working as a security guard, the applicant was under the influence of alcohol and on licence. The CCTV footage confirms that bystanders on the night in question were understandably terrified.
16.
The sentence had to reflect the applicant's overall criminality, including the attacks on two separate victims, again using a vehicle as a weapon. There was only limited personal mitigation. The judge took an overall term of 10 years and eight months' imprisonment before discounting it by 25% to reflect the applicant's guilty plea. We do not consider that that term, considering all of the applicant's offending, was arguably manifestly excessive. A sentence outside the category range for the single offence on count 1 was more than justified, given all the significant features of the offending. Indeed, Mr Wolkind fairly accepted that an ultimate sentence well outside the category range was justified, as reflected in the submission that a term of nine years before credit for guilty plea would have been justified. In our judgment, the total sentence was unarguably proportionate to the overall offending.
17.
It follows that we agree with the single judge that there is no arguable merit in an appeal. In the absence of any merit in an appeal and any good reason for the delay, that reason apparently being a change of legal team, we decline to grant the necessary extension of time. For these reasons, this renewed application is refused.
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Email: [email protected] | {"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":[""],"ConvictOffence":["Causing grievous bodily harm with intent (s.18 OAPA 1861)","Inflicting grievous bodily harm (s.20 OAPA 1861)","Assault occasioning actual bodily harm (s.47 OAPA 1861)","Having an offensive weapon (s.1(1) Prevention of Crime Act 1953)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Birmingham"],"Sentence":["13 years extended determinate sentence (8 years custody, 5 years extended licence) for s.18 GBH","2 years imprisonment (concurrent) for s.20 GBH","12 months imprisonment (concurrent) for s.47 ABH","12 months imprisonment (concurrent) for offensive weapon"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[30],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["3"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["CCTV","Victim testimony","DNA match"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Premeditated attack","Use of vehicle as weapon","Use of baseball bats","Revenge attack","Previous conviction for same offence","Offence committed on licence","Victim working as security guard","Offender under influence of alcohol","Bystanders terrified"],"MitFactSent":["Character references","Obtained employment while on licence","Formed a settled relationship"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Starting point for lead offence excessive","Total sentence too high"],"SentGuideWhich":["Sentencing Council Guideline on Assault","Section 279 Sentencing Act 2020"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence outside guideline range justified due to aggravating features","Total sentence proportionate to overall offending","No arguable merit in appeal"]} |
No:
200805322/A5
Neutral Citation Number:
[2009] EWCA Crim 160
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 20th January 2009
B e f o r e
:
LORD JUSTICE MOSES
MRS JUSTICE DOBBS DBE
MR JUSTICE GRIFFITH WILLIAMS
- - - - - - - - - - - - - -
R E G I N A
v
MARTIN GRAHAM COLLIER
- - - - - - - - - - - - - -
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 Smith (Solicitor-Advocate)
appeared on behalf of the
Appellant
- - - - - - - - - - - - - -
J U D G M E N T
1.
MRS JUSTICE DOBBS: On 19th May 2008 in the St Albans Crown Court, this 42-year-old appellant pleaded guilty to three counts of burglary and was sentenced to 7 years' imprisonment on each count to run concurrently. He appeals against sentence by leave of the single judge.
2.
The facts underlying these convictions are as follows. Miss Yagcioglu owned a flat in St Albans and she lived there with a friend, Miss Read. Miss Yagcioglu had been out on the night of 11th January with her boyfriend. They returned to the flat just after midnight. She noticed that the front fan light of the bedroom window was open, and on entering the flat, she noticed a beer bottle on the kitchen worktop, another beer bottle on the bedside table. She found that all her possessions had been rifled. Items in the lounge had been moved and nearly every drawer and cupboard in the bedroom had been searched. In particular, a photograph of herself at her graduation had been defaced and a penis had been drawn on it pointing towards her mouth. She also saw that somebody had been in her bed and had left a considerable amount of mud. Condoms had been taken from a private box of her valuables together with credit cards. Some days later, she found a condom which had been opened under her bed.
3.
She told her flatmate what had happened. It turned out that the flatmate had been in the flat in her room watching a DVD throughout the time of the burglary. The flatmate assumed that the noise she heard was that of her flatmate and partner returning to the premises. The police were called. The appellant's fingerprints were found at the point of entry of the fan light window.
4.
Distressed by what had happened, Miss Yagcioglu and her boyfriend went out the following night. Miss Read also went out that night and did not return. However, Miss Yagcioglu and her boyfriend did return to the property just after midnight. They saw that the same fan light had been interfered with and realised that the flat had been burgled again and that somebody was still inside. Miss Yagcioglu's boyfriend and a male friend chased the appellant but he made good his escape through the back kitchen door. On investigation, it transpired that the appellant had gone to Miss Read's room and had gone through her underwear drawers which had been rearranged. Numerous other items in the room had been moved. However, items of value had not been taken. Again, the appellant's fingerprints were found at the point of entry and on a CD case belonging to Miss Read.
5.
The third burglary took place on 26th January, some two weeks later, when the appellant burgled the house of Mary Cook in St Albans. About 4.30 am Miss Cook's boyfriend woke her saying that there was an intruder. He got up making a noise, confronted the appellant, who made off through the front door. The couple made a cursory check of the house and decided that, as apparently nothing was missing and the intruder had gone, they would not report the matter to the police at that time. However, the next morning, Miss Cook found a knife with a 4-inch blade lying on her daughter's bed. The daughter mercifully was away at the time. The knife had been taken from the kitchen. A search of the daughter's room revealed that it had been searched and items moved. A number of items downstairs had been stolen, including a handbag and a mobile telephone. A pack of cider had been moved and one of the cans was missing. An empty can was found in the kitchen. Later, Miss Cook's boyfriend discovered that a condom had been taken from his wallet and he found the condom wrapper on the floor.
6.
The appellant, it appears, had gained entry to the premises through a central panel of the conservatory. He was linked to the premises by his DNA on the can of drink, his shoe mark left at the point of entry and also a torch which had been used. Subsequent investigations revealed that the appellant had used the stolen mobile phone to ring a number of chat lines, some £30 worth of credit being used up. Also there were digital pictures found on the phone of the appellant's penis, his room and a photograph of the inside of the address of the premises which he had burgled. It appears that the appellant had stolen the mobile phone earlier, returned to his home address where the obscene photographs and telephone calls were made and then returned back to that address some time before 3.00 am, where he remained until he was disturbed.
7.
Dealing with the appellant's antecedents, he has 17 previous appearances for some 69 offences, including 19 offences of burglary. No offences for burglary have been recorded since 1994. There were three reports in front of the sentencing judge: a pre-sentence, psychological and psychiatric reports, the findings of which can be summarised as follows:
(a) the appellant denied that his offending was sexually motivated and blamed drink and drugs;
(b) all experts agreed that he presented a high risk of offending in the future;
(c) he was assessed as posing a high risk of serious harm to the public and in particular his previous partner;
(d) although he was not presently mentally ill such as to require detention under the Mental Health Act, he had a significant number of personality and anti-social behaviour traits consistent with a high level of psychopathy. These traits increased the risk of him committing offences which were thrill-seeking in nature, dangerous, violent and where no concern was shown for the victims. The sexual element of the offences was significant and should not be dismissed when considering sentence;
(e) Community based packages could not adequately manage the risk that he posed.
Sentence
8.
The judge in sentencing noted that the motivation for these offences was very troubling. The effect on the victims had been profound and no doubt would be long lasting. Whilst he accepted that the appellant was a lonely and struggling man, under the influence of alcohol and cocaine, he rejected the appellant's assertion that the offences were not sexually motivated. He found, that because the offences were so unusual, no help could be derived from the authorities which gave guidance on conventional burglaries. He noted, that although there had been no previous sexual offending and also there had been a fall off in offending in recent years, the appellant's record was still a serious aggravating factor. Credit was given for the pleas of guilty, although not full credit, due to the overwhelming evidence in the case. The judge noted that had the burglary been a specified offence, that the dangerousness provisions would have applied and an indeterminate sentence considered. As it was, the sentence had to be a determinate one, but protection of the public was the foremost consideration in this case, given the assessment that the risk of harm was potentially very great, as was the risk of further offending.
The Grounds
9.
Relying on the following factors the grounds as originally pleaded are that the sentence of 7 years is manifestly excessive because (a) the statutory maximum for a domestic burglary is 14 years and it is not a specified offence; (b) sentences of this level are consistent with the offence of aggravated burglary, where the maximum is one of life imprisonment; (c) the starting point under
McInerney & Keating
for a standard burglary, with a high level of aggravating features after trial, for an offender with two or more convictions is four-and-a-half years; (d) although it is accepted that there was a sexual element to the offences and that they were night-time burglaries with the occupiers being present, there was no threat or use of weapons. Save for where identified, there were no other high level aggravating features.
10.
With regard to mitigation, reliance was placed on the following: the appellant did not confront the occupiers when challenged; he pleaded guilty; he had shown remorse; the offences were impulsive; little or no damage was caused and little or nothing of value was stolen; the gap in offending in his record and at the time, he was suffering from depression and abusing alcohol and drugs. It is submitted that the judge failed to give sufficient weight to mitigation and gave too much weight to the aggravating features.
11.
As the judge correctly noted, this case is an unusual one on its facts and there is little by way of authority to assist. Counsel has drawn the court's attention to a number of cases, including the case of
R v Lunkov
[2008] EWCA Crim 1525
. In that case, the appellant pleaded guilty to two domestic burglaries, aggravated burglary and sexual assault. On three occasions over a period of less than four weeks the appellant entered the flats of three single women. In the first, the victim awoke to find the appellant at the bottom of her bed. She switched on the light and he fled taking £160. In the second, the victim awoke and the appellant hit her with a wine bottle occasioning injury requiring hospital treatment. In the third, the victim awoke to find the appellant standing over her. He hit her, put a knife to her throat and bound and sexually assaulted her and left taking £250. The appellant was of good character and pleaded guilty at an early stage. The sentencing judge passed an indeterminate sentence, but indicated that her starting point was one of 15 years. The Court of Appeal held that an appropriate starting point after trial in a case like that was one of 12 years. The case is more serious on the facts, but it does serve to give some context to the facts in this appeal.
12.
In the present case, the sentencing judge did not indicate the starting point. He did not give full credit for the pleas in light of the overwhelming evidence. It is to be assumed that he had in mind a sentence in the region of 9 years after trial. Counsel relied on the case of
McInerney
. Whilst it is correct that regard needs to be had to any guideline cases, there are occasions when the facts of a case are such that they do not fall neatly into the guideline cases. More importantly, however, it has been noted in the recent judgment of the Court of Appeal, presided over by the Lord Chief Justice together with Latham LJ and Hughes LJ, that
McInerney
is not a Definitive Guideline for the purposes of
sections 170
and 172 of the
Criminal Justice Act 2003
(
R v Saw & Ors
[2009] EWCA Crim 1
). The sentencing judge in this case was correct therefore to find that the authorities were of little assistance. Counsel properly concedes that the case of
Saw
casts a different light on this case and his submissions. The facts in the case of
Saw
need not detain us, but there are a number of principles which can be drawn from it. The judgment highlights the problems in
McInerney
and seeks to offer fresh guidance pending a Definitive Guideline from the Sentencing Guidelines Council. The judgment emphasises the seriousness of domestic burglary and the understandable fear and distress caused to victims of such offences. At paragraph 6 the Lord Chief Justice said:
"The starting point must always – we emphasise, always - be that burglary of a home is a serious criminal offence. The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person."
Emphasis is placed on the impact and broader effects on victims of domestic burglary and the need for protection of the vulnerable:
"Whether or not the ... burglar has any specific intention to cause harm, he runs the risk that the victim or victims may suffer serious adverse consequences. Where this happens, sentences should be reflective even of unintended consequences."
13.
A more comprehensive list of aggravating and mitigating features has been set out. In paragraph 20, it is noted that the distinction previously drawn in
McInerney
between high level and medium level aggravating features have often been shown to be artificial. This is particularly so in the case before us.
14.
Turning to the facts of the instant case, counsel places particular reliance on the mitigating factors, namely that the appellant pleaded guilty at an early stage although he accepts that it was not inappropriate for full credit not to be given in the light of the overwhelming nature of the evidence, but points to the fact that considerable anguish for the victims has been saved, first of all, in relation to certainty but also of course in relation to not having to go through the ordeal of giving evidence in the case. Secondly, that there has been some considerable time since his last conviction for burglary. Thirdly, importantly, comparing the cases on aggravating burglary, that no weapons were used or threatened during the offence and also the general mitigation. However, as we know, this appellant is a man with many previous convictions for burglary, despite their age. He has committed three domestic burglaries, committed at night, committed when the occupiers were present or could reasonably have been expected to be present. Two of the offences were committed against the same occupiers on consecutive nights, clearly targeting young women. That the occupants should have suffered once, only to be targeted again on the following day, is something which undermines the submission that the offences were impulsive and not premeditated. This is also a very significant aggravating feature when considering the impact of being a victim to the same predator on two consecutive days. Moreover further suffering has been caused to these victims, not only by the number but also the type of offence, namely the sexual elements of the offences on both occasions. The first offence was characterised by the appellant's despicable act of defacing a photograph of one of the victims with a depiction of a penis pointing towards her mouth, a distressing and humiliating scene for the victim to face. Not content with those two burglaries, having been caught out in the second burglary, two weeks later the appellant was doing the same thing. Not only were the occupiers' personal possessions gone through, but a similar sexual element can be discerned. Moreover a knife was taken from the kitchen and found in the daughter's room. Additionally there are the unappetising photographs taken on the stolen mobile phone which, mercifully, the victims were spared seeing, but would have been aware of. No one hearing a recital of these events can be in any doubt that these were the actions of a dangerous man, a conclusion confirmed in the reports before the sentencing judge. The judge's problem was that he had no power to impose an indeterminate sentence. There is no doubt that one was appropriate had the power been available.
15.
The impact of these offences on the victims is almost unquantifiable but it is without doubt, serious and long-standing as the judge found. He was correct in identifying that the public needed protection against the appellant and that a long sentence was merited. Even taking into account the mitigation, he was right to take that view.
16.
We have come to the conclusion in all the circumstances, that the sentence of 7 years, although very severe cannot be characterised as manifestly excessive. It follows therefore that this appeal against sentence is refused. | {"ConvCourtName":["St Albans Crown Court"],"ConvictPleaDate":["2008-05-19"],"ConvictOffence":["Burglary"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["St Albans Crown Court"],"Sentence":["7 years' imprisonment on each count to run concurrently"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[42],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Acquaintance","Stranger"],"VictimType":["Individual person"],"VicNum":["multiple victims"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Fingerprint evidence","DNA match","Shoe mark","Digital photographs","Stolen phone usage"],"DefEvidTypeTrial":["Offender denies sexual motivation","Blamed drink and drugs"],"PreSentReport":["High risk of harm","High risk of reoffending"],"AggFactSent":["Sexual element to the offences","Night-time burglaries","Occupiers present or could reasonably have been expected to be present","Targeting young women","Repeat victimisation on consecutive nights","Previous convictions for burglary","Knife taken from kitchen and left in child's room","Despicable act of defacing photograph in sexual manner","Photographs of sexual nature taken on stolen phone"],"MitFactSent":["Did not confront occupiers when challenged","Pleaded guilty","Showed remorse","Offences were impulsive","Little or no damage caused","Little or nothing of value was stolen","Gap in offending in record","Suffering from depression and abusing alcohol and drugs"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Statutory maximum for domestic burglary is 14 years and it is not a specified offence","Sentences of this level are consistent with aggravated burglary where the maximum is life imprisonment","Starting point under McInerney & Keating for standard burglary with aggravating features is four-and-a-half years","No threat or use of weapons","Judge failed to give sufficient weight to mitigation and gave too much weight to aggravating features"],"SentGuideWhich":["McInerney & Keating","R v Lunkov [2008] EWCA Crim 1525","R v Saw & Ors [2009] EWCA Crim 1"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence of 7 years, although very severe, cannot be characterised as manifestly excessive","Judge was correct to find that the authorities were of little assistance due to the unusual facts","Public needed protection and a long sentence was merited","Mitigation was taken into account"]} |
No:
200800826 A8
Neutral Citation Number:
[2008] EWCA Crim 3211
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 4th December 2008
B e f o r e
:
LORD JUSTICE STANLEY BURNTON
MR JUSTICE BENNETT
HIS HONOUR JUDGE STEPHENS QC
Sitting as a Judge of the Court of Appeal Criminal Division
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R E G I N A
v
KRISTOFFER MICHAEL BELL
- - - - - - - - - - - - - - -
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 R Tedd QC
appeared on behalf of the
Appellant
Mr P Cooke
appeared on behalf of the
Crown
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J U D G M E N T
1.
JUDGE STEPHENS QC: On 12th March 2007 in the Crown Court at Worcester, the appellant pleaded guilty to conspiracy to produce cannabis (Count 1), conspiracy to supply cannabis (count 2), and conspiracy to possess criminal property (count 4), all those conspiracies being committed between 1st December 2004 and 16th June 2006. On 18th January 2008 he was sentenced to 4½ years' imprisonment on count 1, 3 years' imprisonment on count 2 concurrent, and 30 months' imprisonment on count 4, to run consecutive to the 4½ years; that made a total of 7 years. He was also ordered to return to prison to serve 400 days out of the remaining period of 885 days of an earlier sentence from which he had been released on licence. He appeals against sentence by leave of the single judge.
2.
The charges arose out of a major investigation by West Mercia Police. 18 Linthurst Road, a house in a country road in Bromsgrove, had been used for the large scale cultivation of cannabis. The appellant was treated as the de facto owner of the house and the controlling influence, and he used family members to carry out the conspiracy.
3.
The entire property had been adapted for the cultivation of cannabis. An estimated outlay of £5,000 had been spent on equipment including seed trays, electric lights, extractor fans, and many metres of ducting. Different rooms contained plants at different stages of development. There were 587 cannabis plants in total, and it was estimated that the set up would produce three or four crops a year. If sold in kilos, the annual yield would have been worth £80,000 to £110,000. If sold in different ways, it could have been valued in the region of half a million pounds, or indeed, if sold for individual reefer cigarettes it would have been worth up to £900,000.
4.
The appellant's fingerprints were found on various pieces of equipment used in the cultivation of cannabis at the property.
5.
So far as count 2 was concerned, the appellant and two brothers called Lilley were seen regularly visiting a co-conspirator's home in Redditch. The Lilleys ran Hydro Power, an industrial brick cleaning business, and they were the appellant's notional employer. He received a wage from them which provided an apparently legitimate source for some of his outgoings. The company had started as a legitimate enterprise but was undoubtedly used by the appellant in connection with his drug related activities.
6.
He attended meetings with a Mr Brissett and when Mr Brissett's home address in Gloucester was searched, 12 grams of cocaine cut with benzocaine and other items were recovered. There were scales, two cash counting machines, a flak jacket and a Samurai sword was positioned behind the front door. The premises, it was said, had been used as a major repository for cash. On one occasion in March 2006 the appellant had sent a taxi driver to that address to fetch a large sum of money, and thus was his connection with that place established.
7.
So far as count 4 was concerned, the appellant, it was said, lived an extravagant lifestyle. Over a 15-month period he drove 18 expensive motorcars worth a total of £300,000. The home he shared with his girlfriend and co-conspirator, Hannah Brewster, had been furnished, improved and filled with the trappings of wealth. There was an excess of expenditure over legitimate income in the region of a quarter of a million pounds.
8.
The appellant's father, Mr Martin Bell, made false representations to obtain a mortgage on a property. Monthly repayments were channelled through Martin Bell's account via Brewster's bank account to further distance the appellant from the property. Mr Bell was the notionally insured for a number of the expensive vehicles driven by the appellant, to distance him from them. For the same reason, Chelsea Bell appeared as the notional purchaser on various finance agreements.
9.
Another matter which was drawn to the judge's attention was that the appellant had written a letter, whilst in custody serving his previous sentence, expressing his intention to get back on top and not to be deterred from pursuing criminality.
10.
The appellant has substantial previous convictions, the last being in December 2001. For causing grievous bodily harm with intent and perverting the course of justice, he had been sentenced to 8½ years' imprisonment. It was in relation to this sentence that he was on licence when he committed the current offences.
11.
A Pre-Sentence Report assessed him as constituting a high risk of harm to the public. He minimised his criminal involvement in the current offences. The writer of the report indicated that the appellant financed much of his lifestyle through dishonest offending. His family were supportive, despite the fact that his father, brother and partner had been convicted of linked offences. Obviously no alternative to custody was offered.
12.
The learned judge, His Honour Judge Cavell, made these observations in passing sentence. He refers, of course, to the appellant's previous detention and to the letter that he had seen. He found that he was the controlling influence behind the setting up of the operation, and the fact that his lifestyle had benefited in consequence. He referred to the purchase of 18 expensive cars worth £300,000 over a 15-month period, large scale improvements of his home and the expenditure which he had undertaken. The only real mitigation was that he had pleaded guilty. The sentences for the conspiracies to produce and supply cannabis would be concurrent because they arose out of the same facts. The sentence for conspiracy to possess criminal property would be consecutive. He explained then why he had reduced the portion of the unexpired part of the previous sentence because of the totality of the sentence that he was passing.
13.
We have had the benefit of written submissions from counsel for the defendant and also, albeit at the last minute, for the prosecution. Counsel who now represents the appellant, Mr Rex Tedd QC, submits, first of all, the sentence on count 4 of 30 months' imprisonment is wrong in principle. He argues that the criminal property referred to in count 4 was derived from the cultivation and sale of the cannabis which is the subject matter of counts 1 and 2.
14.
In his grounds of appeal, counsel says that the basis upon which deterrent sentences for production and supply of cannabis on a commercial scale are justified is by reason of the profits made, particularly by the organisers. In essence, he says that the sentences on counts 1 and 2 fully reflect the profits made by the production and sale of cannabis and the concomitant necessity of deterrence. So, he submits, the consecutive sentence on count 4 effectively duplicates the sentences on counts 1 and 2.
15.
We have been referred to the important case of
R v Xiong Xu
[2008] 2 Cr.App.R(S) 50, where this court gave guidance as to the appropriate levels of sentencing in cases of large scale production of cannabis. This appellant was treated as an organiser. In the ladder of responsibility there considered, the suggested starting point for an organiser is 6 to 7 years, depending on the quantity of cannabis involved, before taking into account any plea of guilty or personal mitigation. Deterrence, said the Court of Appeal, is the proper factor to be taken into account because such operations are so remunerative. Counsel conceded that the scale of the appellant's violation was typical of that referred to in
Xiong Xu
, but the judge clearly took into account the profits of the operation upon a deterrent basis in setting the sentences on counts 1 and 2. Moreover, he submits, he gave no reason for making the sentence for count 4 consecutive.
16.
Mr Cooke, representing the Crown, puts forward this proposition: that where the gravamen of the money laundering charge is different and adds to the conspiracy counts related to the production and supply of drugs, there is nothing wrong in principle in having consecutive sentences. He accepts, of course, that the sentences on counts 1 and 2 are properly concurrent but, he submits, count 4 extends the criminality and justifies the judge in passing the consecutive sentence.
17.
Two matters he refers to in particular which constitute the different gravamen, as he puts it, are: first, the ostentatious use of the wealth that the appellant demonstrated in his use of funds and the attitude demonstrated in the letter he wrote which sought to glamourise the nature of the criminal activity that he was taking part in; and secondly, counsel says (and this we think is a more significant argument) there is the defendant's cynical use of other people. He used close members of his own family and involved them in his activities, and in particular in the use he made of them in benefitting from the money that he was making from his drug related activities. He used his father in this way, the Lilley brothers, who had a legitimate business to begin with, and also his own sister who was used for the purpose of obtaining finance agreements in relation to the cars which distanced the appellant from the contracts involved.
18.
We have concluded that such activity did entitle the judge to pass a consecutive sentence on count 4. Each case depends upon its own facts and there will be cases where a money laundering charge may well not add to the overall criminality disclosed in drug related offences, whether conspiracies or specific charges. However, on the facts of this particular case, we have concluded that the judge was entitled to pass a consecutive sentence on count 4. In our judgment, the length of the sentence is not manifestly excessive, or indeed wrong in principle, and in those circumstances the appeal fails and the original sentence will stand. | {"ConvCourtName":["Crown Court at Worcester"],"ConvictPleaDate":["2007-03-12"],"ConvictOffence":["conspiracy to produce cannabis","conspiracy to supply cannabis","conspiracy to possess criminal property"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Worcester"],"Sentence":["4.5 years' imprisonment on count 1","3 years' imprisonment on count 2 concurrent","30 months' imprisonment on count 4 consecutive to the 4.5 years (total 7 years)","Ordered to return to prison to serve 400 days out of the remaining period of 885 days of an earlier sentence from which he had been released on licence"],"SentServe":["Combination"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Fingerprints on equipment","Financial evidence","Letter written by appellant","Surveillance of visits","Search and seizure of drugs and cash"],"DefEvidTypeTrial":["Minimisation of involvement (as per Pre-Sentence Report)"],"PreSentReport":["High risk of harm"],"AggFactSent":["Controlling influence behind the operation","Extravagant lifestyle funded by crime","Use of family members in criminal activity","Offence committed while on licence","Substantial previous convictions"],"MitFactSent":["Plea of guilty"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["Consecutive sentence on count 4 is wrong in principle; criminal property derived from same conduct as counts 1 and 2; sentences on counts 1 and 2 already reflect the profits and deterrence"],"SentGuideWhich":["R v Xiong Xu [2008] 2 Cr.App.R(S) 50"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge entitled to pass a consecutive sentence on count 4; length of sentence not manifestly excessive or wrong in principle"]} |
Neutral Citation Number:
[2024] EWCA Crim 103
Case No:
202300637 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
HHJ ARNOLD
T20200686
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/02/2024
Before :
PRESIDENT OF THE KING'S BENCH DIVISION
MRS JUSTICE CHEEMA-GRUBB DBE
and
MR JUSTICE SWIFT
- - - - - - - - - - - - - - - - - - - - -
Between :
GRAEME BROOKER
Appellant
- and -
REX
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr M Graffius KC
(instructed by
Cheesemans, Solicitors
) for the
Appellant
Mr G Burrows
(instructed by the
Crown Prosecution Service
) for the
Respondent
Hearing dates : 13 December 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 2pm on Tuesday 13 February 2024 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.
Dame Victoria Sharp, P.
Introduction
1.
On 1 December 2022, at the Crown Court at Lewes, the appellant, Mr Graeme Brooker, was convicted after a trial of two counts of theft (Counts 1 and 2). He was acquitted of a third count of theft (Count 3). On 13 January 2023 at the same court he was sentenced to three years imprisonment. He appeals against conviction by leave of the single judge, who granted an extension of time of 60 days.
2.
The appellant has three adult siblings: Cheryl Brooker (“Ms Brooker”), the appellant’s older sister), Tracey Brooker and Glen Brooker. On all three counts that he faced, the appellant was alleged to have stolen money from Ms Brooker.
3.
The appeal is concerned with the fairness of the trial. It is said that there was a clear challenge to Ms Brooker’s allegations by the appellant: in his interviews under caution, in his defence statement and in the evidence he ultimately gave in his own defence at the trial. Notwithstanding, the appellant’s former counsel, Mr Martin-Sperry took a decision at an early stage not to challenge Ms Brooker’s evidence by cross examination, a stance he maintained at trial in the face of a ruling from the judge that he was professionally obliged to do so. It is said in this appeal that Mr Martin Sperry’s professional misconduct and incompetence in this (and other) respects resulted in significant unfairness to the appellant such that it renders his conviction unsafe.
The factual background
4.
Ms Brooker had been a senior social worker. Since 2005 however she had suffered from ill health, including epilepsy. Between 2005 and 2012 she had a series of strokes which led to weakness on her left side and significantly reduced mobility as well as hearing loss. Ms Brooker took medical retirement in 2012. She had been prudent and saved for her retirement; she had also received a substantial lump sum from a critical illness policy as well as a pension and disability living allowance.
5.
Following her retirement, it was agreed evidence that the appellant had given up work to care for Ms Brooker and assisted her with managing finances, albeit there was a dispute about the degree of access and control he was given to her online banking and whether he had possession of her bank card. After about four years, the appellant returned to work and Ms Brooker reduced the amount that she paid him for looking after her. By the end of 2018, the relationship between the appellant and Ms Brooker had broken down: Ms Brooker wanted Tracey Brooker to move into a bungalow which the appellant had had built for Ms Brooker: the building of it was financed by Ms Brooker, but the bungalow was in the garden of the appellant’s family home, and he did not agree with Tracey’s lifestyle. Ms Brooker broke off relations with the appellant and turned more consistently to her other siblings.
6.
The indictment covered a seven-year period between the beginning of January 2013 and the end of December 2019. The thefts alleged had all taken place by March 2019. Count 1 alleged that during the indictment period, the appellant stole money belonging to Ms Brooker by drawing cheques on her Barclays bank account. Count 2 alleged that he stole from her by making online payments from the same account. Count 3 alleged that over the same period he had stolen money by making ATM withdrawals also from that account.
Ms Brooker’s account and the prosecution case
7.
The allegations first came to light in March 2019 when a police officer took an account from Ms Brooker in the presence of and with the assistance of her sister Tracey.
8.
In July 2020, an ABE interview was conducted with Ms Brooker. It lasted nearly three hours and formed the principal prosecution evidence at trial. Ms Brooker was accompanied by an appropriate adult (unrelated to her) to facilitate communication. Ms Brooker told the police that following her last stroke in 2012 she found numbers, spelling and reading difficult. She could not do maths anymore but had since learned to recognise her numbers up to 50. She had difficulty recognising or retaining
larger sums. Her spelling was phonetic and she needed help with shopping, housework and personal care as well as with managing money.
9.
Ms Brooker said initially her mother had taken care of these things for her. When her mother died in 2014 her the appellant took over her finances so she did not get into debt. She told the police that the appellant had wanted to look after her following her medical retirement because she had looked after their parents in the past. She said that he arranged for a power of attorney to be signed and he would give her money as she needed it, from her pension and her disability living allowance (it was not suggested by the prosecution that the appellant had ever used or abused the power of attorney). Ms Brooker said she wanted to try and help the appellant and his wife; and some payments were made to them with her knowledge, including money for the appellant’s Open University course. But over time they seemed to expect more money from her. There came a stage where they were asking for £30,000. She did not know what to do and it was then that Tracey had found her crying. She and Tracey had looked through the accounts and Ms Brooker then realised quite what sums she had been paying out - payments that had been made, she said, without her knowledge. Ms Brooker said she was paying sums to the appellant for things such as dog-walking and gardening but she did not need either of those services. She also said that the appellant held her bank card to use to withdraw cash, because she couldn't get to the bank herself and it was a weight off her mind that he was safeguarding her and ensuring that she got the money she needed. She believed her sister-in-law, Jen (the appellant’s wife) had also made cash withdrawals. The appellant’s wife was never interviewed by the police.
10.
Ms Brooker said that at the time she retired she knew certain payments were already set up, such as her utility bills which were met by direct debit. When her brother decided to build a bungalow on his property for her to live in, the invoices were sent to him, and he would pay them from her account. There was no evidence before the jury of how those payments, made using the faster payments system with internet banking, had been set up.
11.
The total disputed amount transferred to the appellant’s account was £74,617, including a single payment of £20,000 to the appellant’s young son with the son’s name as the reference. There was an issue in the case as to whether these payments had been put in place by the appellant or Ms Brooker herself. Ms Brooker was shown a number of cheques drawn on her bank account. She explained that the appellant held her chequebook. He wrote the cheques out because she could not write cheques anymore and she would sign them. Sometimes she signed cheques for him to make out later when they were needed. She was asked about a cheque used to pay off the appellant’s credit card bill but said she did not remember agreeing to do that. Including the credit card bill, the cheque payments in dispute totalled £13,932.
12.
The police obtained Ms Brooker’s bank statements and those of the appellant. A number of cash withdrawals, amounting to £84,492, were identified. The withdrawals had been made using cash machines at different locations, some of which were close to Tracey Brooker's address, where Ms Brooker had stayed from time to time. Other withdrawals were made close to the appellant's home. There was no CCTV evidence to show who had made these withdrawals. The cash withdrawals formed the basis of Count 3. At trial, the officer in the case expressed surprise that any charge had been pursued in respect of the cash withdrawals. As we have said, the appellant was acquitted on Count 3.
13.
On Counts 1 and 2 the prosecution's case was that the appellant had taken advantage of his sister who had obvious medical issues which made her vulnerable; and that under the guise of helping her manage her financial affairs he had set up payments which she did not authorise and had obtained her signature on cheques which were not for her benefit and which she would not have agreed to sign. By doing so he had used up most of her savings.
The appellant’s account
14.
On 6 September 2019, so some ten months before the ABE interview, the appellant was interviewed by the police. He said that he had given up work to look after his children and care for Ms Brooker and she had agreed to pay him on a monthly basis to be a stay-at-home dad. When the police pointed out that he received a carer’s allowance for her, he described the sums from his sister as gifts rather than payments. The sums she gave him were labelled by her in her bank account as being for “cleaner, gardener, laundry, shopping, loan repayment, dog walker, window cleaners” as well as for G&J Brooker which was his joint account with his wife. The appellant said these were Ms Brooker’s choice of descriptions and might have been to do with the way she claimed her benefits. Other direct payments were made over time for such things as his university degree fees which she had agreed to pay, contributions towards holidays they had taken together, to pay off his credit card and for him to buy a new car. He had never had access to Ms Brooker’s bank accounts and could not have set up direct debits on her account. She managed all her own bills, set up her own transfers and the only time he helped her write cheques would be at her request because her writing was illegible. He had made some cash withdrawals from the cash point on her behalf because of her limited mobility, but he would always give the card back afterwards. Other relatives including his son and his wife had also done this.
15.
In November 2017, the appellant had returned to work, and she had reduced the amount she was paying him monthly to £600. When their mother died he had decided to build a bungalow especially adapted for her to live in, on his own family’s property. It had two bedrooms, one for a carer to occupy should that become necessary in due course. Although Ms Brooker had paid for this, having sold her previous home, the appellant had not charged for the land, and he had since paid her back £250,000. No sums transferred in respect of this building project, which had come from Ms Brooker’s NatWest account, were the subject matter of the indictment.
16.
The appellant told the police that Ms Brooker had medical issues but was strong willed. She was in control of her bank account, and he did not control it for her. She was lying about him receiving money from her account without her knowledge and consent. He said this was probably because she did not want to reveal to their siblings the extent to which she had given money to him over the years. As well as the criminal investigation there was an ongoing civil dispute about the bungalow. He was content for the police to look into all his correspondence and the messages between him and his sister on all of these matters. He provided some documentary material including copy emails written by his sister which referred to some of the monthly sums for gardening and dog walking, as demonstrating her knowledge of the payments.
17.
There was, accordingly, a stark issue between the prosecution and defence as to whether, as the prosecution alleged, the appellant had taken effective control of all Ms Brooker’s financial affairs and abused his position to steal from her, or, as he claimed, she managed all her own bills and was fully aware of and in control of all payments made from her account by whatever means, even if he sometimes wrote out cheques for her to sign and took out money from cashpoints at her request.
The pre-trial proceedings
18.
The appellant had the benefit of a representation order held by Cheesemans Solicitors. Mr Martin-Sperry was instructed by Cheesemans by about September 2021. Mr Martin-Sperry was called in 1971 and has been in practise at the Bar for more than 50 years.
19.
On 10th December 2020, the appellant’s case was sent to the Crown Court. On 7 January 2021, he appeared for a pre-trial preparation hearing at which he entered not guilty pleas.
20.
On 13 January 2021, the prosecution made an application under section 16 Youth Justice and Criminal Evidence Act 1999, for a special measures direction for Ms Brooker: for her ABE interview to stand as her evidence in chief and for cross-examination to take place via a video link.
21.
The basis of the application was Ms Brooker’s health difficulties. She takes medication for epilepsy, Crohn's disease, high blood pressure, anaemia, depression and to prevent further strokes. Her GP had provided a statement to the prosecution on 5 October 2020, in which he summarised her history of strokes and described her has having ongoing anxiety and depression. He also said she suffered from “dissociative identity disorder” a condition which manifested itself when she was particularly stressed. Having known her for many years however, he expressed the opinion that she was alert and orientated, had a good memory for short- and long-term issues, the capacity to understand the long-term implications of giving away her life savings and she would remember authorising payments and transfers.
22.
The reasons why the special measures sought were likely to improve the quality of Ms Brooker’s evidence were expressed in these terms:
“The witness / victim has suffered a series of strokes that have resulted in certain physical and cognitive impairments. Walking is difficult and laborious for her. Her General Practitioner also states that stress can cause her to manifest dissociative and identity disorder. Cheryl is intelligent but can become confused when fatigued.
The witness / victim has a dissociative identity disorder used to be called "multiple personality disorder". An episode could result in gaps in the witness’ memory which would defeat the point of bringing her as a witness, and an episode could result in the witness acting completely contrary to her normal behaviour which would provide a greatly misleading impression on the judge and jury.”
23.
On 1 February 2021, the prosecution’s special measures application was granted. On 4 March 2021, following discussion with Ms Brooker, the prosecution made a second special measures application on the basis of fear and distress as well as disability. It also applied pursuant to section 28 of the Youth Justice and Criminal Evidence Act 1998 for pre-recorded cross-examination to take place. In this respect the application stated:
“Section 28 has been requested by witness care alongside the evidence in chief already approved. Pre-recorded cross examination will help achieve best evidence for Cheryl because her disabilities may impact the detail and quality of evidence she can give in an open court room with the knowledge the Defendant will be there. ”
24.
The second application was granted. On 22 April 2021, the Court made the standard section 28 directions required by the criminal procedure rules (Crim. PD 6.3): cross-examination questions to be submitted by defence counsel by 10 May 2021; a ground rules hearing to take place on 17 May 2021 and the cross examination to be conducted by defence counsel on 27 May 2021 with the appellant to attend. The court directed that the trial was to be listed for 29 November 2021, with a time estimate of 4 days.
25.
On 4 April 2021, the defence statement was served. Consistent with the appellant’s account in interview, most of Ms Brooker's evidence was denied. The defence case was that the appellant did not have access to her online banking; she would write her own cheques although he sometimes wrote them out for her; she set up online payments herself and he only withdrew cash for her when she gave him her card which he would return to her afterwards. The appellant asserted that although she had agreed to pay for a variety of things for him and his family, she arranged those herself, and she was in control of her financial affairs. The defence statement also included a table of ATM cash withdrawals which the appellant said could not have been made by him. Finally, the appellant invited the prosecution to consider whether Ms Brooker’s testimony was reliable in light of what was described as “a diagnosis” of dissociative identity disorder.
26.
Ms Brooker was a fully bound witness at trial. Few, if any of the numerous case management directions made by the Court had been complied with. The directions referred to in para 24 above were no exception.
No questions for cross examination were submitted within the timetable laid down (indeed none were ever submitted). The hearing on 17 May 2021 was listed for a mention only. An adjourned ground rules hearing was listed for the 13 September 2021.
27.
On 10 September 2021, the appellant’s solicitor, Mr Barry Cheeseman, sent an email to the court. This said:
“[W]e have advised David Martin-Sperry - trial counsel- of the position last week. He takes the view that he will not be cross examining the complainant due to her fragile medical condition. However, we have not had that confirmed in an advice yet. We have requested that he get back to us by 4:00 PM latest today so we may confirm the position in writing to yourselves and the CPS.”
28.
Mr Martin-Sperry telephoned the court the same day. He told an administrative officer that he had been instructed recently. A note was made of what he said: “it is not appropriate to cross examine the witness as she is very fragile and has had two strokes already and he will propose that her statement is read instead but will not cross examine the witness under no circumstances.” The Resident Judge ordered that the case be listed for mention only, rather than for the ground rules hearing which had been due to take place.
29.
Mr Martin-Sperry then served on the prosecution a note he had prepared, dated 11 September 2021. In the note (the first note) he urged the police to review the case: he said that in view of the witness’s medical history he was reluctant to cross examine her at all, even to suggest simply that she was wrong in what she said, if that ran the slightest risk of potentially triggering an adverse reaction in her health. He provided a copy of research he had carried out on dissociative identity disorder and said he believed that because of her mental state Ms Brooker may “in her own mind have adopted as factually correct what from her would be essentially hearsay material, being unable to distinguish between what she has worked out first hand for herself and what she may have been told by [other] siblings.” He concluded:
“That said, at any trial that takes place the defence proposal would be for the Complainant’s statement be read, but subject to an agreed resume/explanation of her various medical conditions, together with an opportunity for the defence to explain why it is undesirable that she be subjected to any cross-examination arising out of that statement. It may be that this would be an appropriate case for the Defence briefly to ‘set out its stall’ to the jury before any evidence in the case is called. I can in any event confirm that for my part, I will not be cross-examining Cheryl, allowing the s 28 hearing date now to be vacated.”
30.
The proposed date for the section 28 cross examination was then vacated. The prosecution obtained a statement from Ms Brooker dated 26 September 2021 to deal with the question of dissociative identity disorder. She explained that during stressful or traumatic times in her work as a social worker she would, “switch off the part of me that felt emotions and just be the other professional me until the situation was dealt with.” She had been told by a therapist (since deceased) that what she experienced was dissociation, a normal reaction to trauma, albeit with a risk that it could develop into dissociative disorder. On the therapist's recommendation she had spoken to her GP, but the GP could not find anyone to refer her to. She said, “I do have some difficulties with my short term memory that are due to the stroke, I don't have blank spots in my long term memory, I haven't had any hallucinations, and the only person in control of me is me.” In a further report dated 28 September 2021, her GP for his part, confirmed that Ms Brooker had told him in 2010 that a private psychologist had diagnosed her with dissociative identity disorder which was only an issue under severe stress or when she was very ill. He was unable to find a specialist to see her, but in treating her for over 22 years he had observed no variation in her personality, including at times when she was unwell and when he had to examine her in circumstances that caused her distress.
31.
On 8 October 2021, a further case management hearing took place attended by Mr Martin-Sperry. Amongst the case management directions that had still not been complied with, were the collation by the defence of any suggested edits to the ABE interview.
Mr Martin-Sperry maintained his stance regarding cross examination and the prosecution indicated that the case would be reviewed.
32.
On 29 November 2021, there was a further case management hearing attended by Mr Martin-Sperry. The prosecution said it intended to proceed. Mr Martin-Sperry sought disclosure of Ms Brooker’s medical records so an expert’s report could be commissioned. Further and extensive case management directions were made, including for the disclosure of Ms Brooker’s medical records
.
33.
On 19 January 2022, a further pre-trial review took place. A different counsel was in attendance for the defence. The prosecution said on this occasion that they had complied with the orders made and were ready to proceed. The case remained in the warned list for March.
The hearing before Recorder Roques
34.
On 2 March 2022, the case was listed for trial before Mr Recorder Roques (now HHJ Roques). The appellant was present in court. We commend Mr Recorder Roques’ approach to the case as it was presented to him. The parties were still not ready for trial.
The prosecution had not disclosed Ms Brooker’s medical records and no edits for the ABE interview had been proposed by the defence.
35.
Mr Martin-Sperry
produced a hard copy bundle of documents (many of which were eventually uploaded to the Crown Court Digital Case System (the DCS) and relied on at trial). The Recorder noted that very few of the previous directions had been complied with, either by the prosecution or the defence. The defence position was still that Ms Brooker could not be cross examined. Mr Martin-Sperry reiterated his request for the entirety of the witness’s medical records, maintaining this was the barrier to serving ABE edits, instructing a defence expert to report and making any other kind of progress in the case. He also suggested that “false memory syndrome” may be an area of expert evidence he would seek to explore. Mr Recorder Roques deprecated the failure of both sides to list the case for non-compliance or to mention the lack of trial readiness at the pre-trial review held in January 2022.
36.
Mr Recorder Roques summarised the situation concisely:
“..the Defence decided not to cross examine the witness at all, notwithstanding the fact that her evidence is challenged almost in its entirety. The reason for their having taken this stance is that Defence counsel unilaterally decided that to cross examine the witnesses would inevitably cause her stress and this may in turn have an adverse impact on her health….. There is no medical evidence in the hands of either party to indicate this is likely and the Crown take the view the complainant is both competent and more than fit enough to give evidence. As a result of the above the complainant has not been warned to attend and the Crown take the view that if she is to be called they will revert back to seeking a s28 timetable.”
37.
The Recorder observed that whether a witness is medically fit to be cross examined is a matter for the court to decide based on expert evidence and the availability of appropriate special measures, not for defence counsel. He noted that defence counsel had indicated he may wish to consult with the Bar Council and the Recorder had warned him that the court should be notified as a matter of urgency if counsel took the view that he should withdraw.
38.
The orders made by the Recorder included:
“10.
Today’s fixture broken.
11.
Whether the Complainant is medically fit to be cross examined is a matter for the court to decide based upon expert evidence and the availability of appropriate special measures, not for defence counsel.
NB- Defence counsel (Mr Martin Sperry) indicates he may wish to consult with the bar counsel ethics line. Counsel informed that it is a matter entirely for him but the court are to be notified as a matter of urgency if counsel takes the view he should withdraw. Defence agree that no such conversation will be able to take place until the experts have provided reports on the Complainant’s health (see orders below).
12.
Defence to upload a written list of outstanding disclosure requests with justification as to why items should be disclosed by 16
th
March 22. This document need not include medical records which are dealt with specifically below but should identify which bank account statements are sought and why.
13.
Prosecution Jury Bundle to be uploaded in digital form by 16
th
March 22 (hard copy given to defence today).
14.
Prosecution to serve the Complainant’s medical records on the Defence by 23
rd
March 22. These records are to include (unredacted) information that could impact her current state of health including any history of strokes, TIAs or epilepsy as well as entries about DID.
15.
Prosecution to serve an expert report in relation to whether the Complainant is suffering from DID and if so, what impact it has on her by 11
th
May 22.
16.
Prosecution to serve any intermediary report (if relied upon) by 11
th
May 22.
17.
Addendum Defence Statement to be served by 22
nd
June 22 outlining what issues the Defence will ask the jury to consider as potential explanations for the Complainant’s assertion that the Defendant has defrauded her.
18.
Any Defence expert to be relied upon by 22
nd
June. This is to include: any expert as to DID, any expert in relation to the Complainant’s health more generally and her ability to give evidence specifically, any expert in relation to False Memory Syndrome.
It is made clear that this defence will not be left to the jury absent expert evidence.
19.
Defence to supply ABE edits to Crown by 22
nd
June 22
20.
Defence Jury Bundle to be uploaded in digital form by 22
nd
June 22.
21.
Defence to notify the court in writing whether they seek to cross examine the Complainant and if not, what the legal basis for that decision is, by 22
nd
June 22.
22.
PTR fixed for 24
th
June with a time estimate of an hour. Trial counsel to attend (both confirm today they are available)….
24.
Trial fixed for 21
st
November 22 with a current time estimate of 7 days. This is on the basis that the Complainant will need to be called (whether via s28 or over a video link) and experts will be required on both sides.
25.
Either party is to notify the court as a matter of urgency if the orders above are not complied with…
39.
On 16 March 2022, Mr Martin-Sperry uploaded a further note to the DCS (the second note). He referred to the first note of 11 September 2021 and said that the appellant’s solicitors had written to the prosecution on 4 November 2021 drawing attention to it. He continued:
“The issue I was concerned about was not the complainant’s diagnosed DID [dissociative identity disorder] which is not in any sense a life threatening condition, but rather her history of suffering strokes: it is well established that strokes are in some instances capable of being stress induced, where such stress leads to an increase in blood pressure, the stroke then being occasioned by an interruption to the flow of blood to the brain. It is for this reason that the defence required the totality of her medical records to be disclosed, so that relevant documents could be seen by experts in these two fields - an expert in strokes to deal with the one condition, and a psychologist familiar with the dissociative identity disorder to deal with the other. It is not, in the first instance at least, anticipated that reports from either expert would require any further investigation to be conducted in person with the complainant herself.
The purpose of the former will be to quantify the risk, if such a risk exists, of a further ‘stroke episode’ being provoked by the very fact of the complainant being required to give her evidence-in whatever circumstances that may take place- and having to be cross examined about her account. Her evidence would of necessity be centred round a detailed examination as to whether the account she has given- and the surrounding circumstances of how she came to give it- is in any sense reliable. This might be expected, however conducted, to place her under some considerable stress: whether that can be conducted without occasioning any additional risk to her health will, with respect to the court, be a matter for medical and not legal determination.”
40.
In this second note, Mr Martin-Sperry went on to make further requests for disclosure of Ms Brooker’s full financial position, including records of every bank account in her name, together with copies of each and every cheque signed by her” which he said would demonstrate that she was largely in control of her own finances and would be inconsistent with the prosecution’s analysis of the financial and personal relationship between the appellant and his sister.
41.
On 5 May 2022
,
the prosecution disclosed Ms Brooker’s medical records.
42.
On 24 June 2022, HHJ Arnold conducted a further pre-trial review
attended by Mr Martin-Sperry. Mr Martin-Sperry maintained his refusal to cross examine
Ms Brooker.
The judge adjourned the case for 14 days directing that a letter from the Chief Crown Prosecutor detailing the failures on behalf of the Crown should be filed by 4 July, accompanied by a full timetable through to the trial date.
43.
On 1 July 2022, the appellant wrote to the Crown Prosecution Service by email asking for a review to be undertaken of the decision to prosecute him. He referred to the documentary material he had provided at interview and gave some specific details of cash point withdrawals which he said could not have been made by him because of their location at times when he was elsewhere. He expressed his frustration with the police and said:
“I have no previous experience of the legal system and have been shocked by the lack of interest in actually looking at the evidence and the amount of public money and court time that has already been wasted in this case….I am assured by both my solicitor and barrister that this is not unusual and that when the case finally gets to court the prosecution will not be successful, but as an outsider to the legal system it amazes me that the case has to run its course even though it does not pass the initial evidential stage.”
44.
On 4 August 2022, the prosecution served an expert report from Dr Roderick Ley, a consultant forensic psychiatrist. Dr Ley explained the distinction between dissociation, a perfectly normal process which may happen during a traumatic incident so that a person dissociates from the overwhelming event to escape fear pain or horror, and who may thereafter find it difficult to remember the details of the experience, and dissociative identity disorder, previously referred to as multiple personality disorder.
45.
Dr Ley expressed the firm conclusion that Ms Brooker did not suffer from dissociative identity disorder. He noted she had never been formally diagnosed with any mental health disorder despite having presented to health care professionals in the past with depressed mood, anxiety and emotional problems which she related to the impact of her work as a social worker. Nor could Dr Ley find any compelling evidence that she suffered from dissociative amnesia over the period of the indictment. Further, whilst recognising this was ultimately a matter for the jury, he expressed the view that her history of mental health problems would not alone render her testimony unreliable. The most likely diagnosis was a recurrent depressive disorder. He did note that she had problems with word finding, reading and an inability to process numbers and perform calculations.
46.
The prosecution subsequently obtained and served the report of an intermediary which identified a number of communication issues. The intermediary also assessed Ms Brooker as having significant problems with numbers and money, particularly with zeros. The intermediary described well known strategies, familiar to every Crown Court and defence advocate, which would enable the witness to give her best evidence.
47.
On 13 October 2022, in light of these reports, the prosecution made a third special measures application. This was for Ms Brooker to give her evidence at the trial with an intermediary, and through a live link from a police station where her mobility needs could be accommodated. On 7 November 2022, that application was granted.
48.
On 9 November 2022, the appellant sent an email to Mr Martin-Sperry
.
Privilege having been waived we have seen it. The appellant endorsed Mr Martin-Sperry’s decision not to cross-examine Ms Brooker. In that email, the appellant said:
“[M]y counsel Mr David Martin-Sperry has repeatedly made clear to the court his intention not to cross examine Ms Cheryl Brooker if there is a risk of it having a negative impact on her health and I fully endorse his decision to leave the courtroom should Ms Cheryl Brooker be asked to give evidence in any format.”
49.
On 10 November 2022, Mr Martin-Sperry made an entry on the DCS which said that if the prosecution insisted on calling Ms Brooker, he had his client’s full support to leave court while that happened. By then, the defence were in possession of Ms Brooker’s medical records, the expert report of Dr Ley and the report of the intermediary. Mr Martin-Sperry did not then or subsequently, provide any legal basis for his refusal to cross examine Ms Brooker. He reiterated his suggestion that Ms Brooker’s evidence should be put before the jury in writing and that evidence would be called by the defence to contradict it. On 17 November 2022, the defence uploaded to the DCS a number of documents. Some were inadmissible: others were introduced into evidence during the defence case. A further pre-trial review took place the week before the trial.
The trial
50.
The trial began on 21 November 2022. The jury was not sworn on the first day which was wholly taken up by legal argument, focusing, yet again, on the cross examination issue. We have the advantage of full transcripts.
51.
Mr Burrows who appeared for the Crown, as he does in this appeal, confirmed to the court that the case had been reviewed in light of the documents submitted on 17 November 2022 and his instructions were to proceed.
52.
Mr Burrows summarised the position with regard to Ms Brooker. In support of the submission that there was no bar to her cross examination using appropriate methods, he relied on the passage of time since her last stroke in 2012, the report of Dr Ley and the use of the intermediary. He submitted that if the defence case was not put in cross examination then then the defendant should be warned that an adverse inference would be drawn viz. that if in due course criticism was made of Ms Brooker’s reliability and truthfulness, the jury would be directed that she had not been given an opportunity to answer those points.
53.
Further, Mr Burrows submitted the defence approach was a deliberate one to avoid putting the case to Ms Brooker and allowing her to answer it as she had done in her ABE interview. The core of the prosecution case was that Ms Brooker had been paying the defendant about £1,000 a month over and above what she gave him for caring for her and those payments were described on her account as being for such services as gardening and dog-walking but she had not authorised them. He said whatever the family history, these matters called for an explanation from the defendant. Ms Brooker should have an opportunity to answer the defendant’s explanation that the defence was going to give the jury. This was an obligation defence counsel had which he should not be allowed to side-step.
54.
In his response, Mr Martin-Sperry said he had taken a personal and professional decision for the following reasons:
“[T]he defendant has a decade of experience with this particular person. She has had numerous transient ischemic attacks, TIAs, which are mini strokes. They have an effect on her, which is she then comes back to normal, but slightly less normal than before she had that particular one. She's had numerous of those. She has had a number of strokes and her medical history of strokes I don't think has been disclosed to the defence, but the defence knows precisely because he's been living with her and assisting her for quite some time. He knows what is liable to happen. In those circumstances I have taken advice. I am not prepared, and I’ve put down my marker very clearly.”
55.
He said that if he were to be criticised, he would withdraw from the case. He said that if it was to be suggested that the defence were taking advantage of Ms Brooker by not cross examining her, then he “would not stay on board in the case” because it was his decision. He said he had had a number of conferences with the defendant (i.e. the appellant) and the defendant’s wife and he had no intention of subjecting Ms Brooker to further medical examination or cross examination
–
implying thereby that his own assessment of the purported risk to Ms Brooker’s health was based on what he had been told by the appellant.
In the absence of any evidence from the defence on the issue, Mr Martin-Sperry nonetheless revisited the reference to dissociative identity order in the initial statement from Ms Brooker’s GP. He submitted that the prosecution was withholding evidence. When these submissions did not find favour with the judge, Mr Martin-Sperry said he intended to absent himself from the courtroom while Ms Brooker’s evidence was adduced.
56.
The judge did not give a formal ruling. Her conclusion however was that whether a witness is able to give evidence and be cross examined is a matter for the court. The judge said Ms Brooker was fit and available for cross examination with an intermediary using a video link and whatever the defendant might think, there was no (evidential) support for a fear of risk to her health if questioned. Mr Martin-Sperry said he would consider withdrawing from the case.
57.
The judge rose for a short period and then provided counsel with the draft of the material part of a written direction
s
he proposed to give to the jury in the event that Mr Martin-Sperry maintained his stance. This said: “you may conclude that there is no sensible explanation for Cheryl Brooker not having been afforded the opportunity to answer questions.”
58.
In further submissions that afternoon, Mr Martin-Sperry criticised the draft. He maintained that the appellant should not be held responsible by the jury when counsel had taken what he described as “a personal and professional” decision not to cross-examine Mr Brooker. He said he would ask the defendant himself to describe the strokes he knew her to have suffered. The judge pointed out that the defendant was not a medical professional and that he had agreed with his counsel’s decision. It followed that he knew the consequences of it. There then followed these exchanges:
“Mr Martin-Sperry: He hasn't agreed with it. I have simply told him, that is what I'm going to do.”
Judge Arnold: Well, I thought you'd indicated quite clearly this morning that he agreed with it.
Mr Martin-Sperry: Well, yes, but it’s not something – it’s not something I have negotiated with him. I have simply told him, this is what I am going to do, and if he doesn’t agree with it, he can withdraw instructions from me…. And he has not chosen to withdraw instructions.
Judge Arnold: well then, he agrees with it, I would imagine.
Mr Martin-Sperry: well, he respects it. I think there is a difference in language here. He respects the decision that I have taken. I have no doubt that the decision that I have taken is correct. If I thought it wasn’t correct, I would review it… and I have been in touch with the Bar Council a year and a half ago... on exactly this issue.
59.
In due course the judge spelled out her understanding of the defendant’s position.
“Judge Arnold: I hear you say that it’s your decision, [I]
respect that decision and the reasons you make it, but the defendant has a choice. You say he hasn't agreed, but you've made it plain to him that that course of action being taken by you, he could continue to give you his instructions or not, and he's decided to continue to give his instructions. So one assumes, therefore that he's happy with your decision and he has to bear the consequences of it, and one of those consequences, of course, it leaves untested the account before the jury. So far as the prosecution are concerned that may weigh against them. But, equally, the jury may conclude that, as I've indicated in the direction... there may be an alternative explanation.”
Again, a little later,
“Judge Arnold: …This defendant has chosen to continue obviously instructing you and on that basis he has to stand by the consequences of that decision… I am not saying it's the defendant’s fault. It's the defendant’s conscious decision to continue to instruct a lawyer knowing what the likely consequences might be from the decision taken not to cross examine her.”
60.
Mr Martin Sperry repeated that the reason he had made the decision he had was because of what the defendant knew from his experience with his sister, and he had taken it from the defendant at face value.
61.
Mr Burrows said that all of these matters had been rehearsed when the case was listed for trial before Mr Recorder Roques, and that there was no expert evidence to support the defence approach, despite the service of 500 pages of medical notes. In the circumstances, he said, if the decision taken by counsel was on the basis of what the defendant had said about his sister, the defendant could not hide behind it and it would be fair for him to bear the consequences.
62.
After a further adjournment for Mr Martin-Sperry to review the draft direction, the court sat to consider some amendments Mr Martin-Sperry had proposed. It is sufficient to say that the amendments were not agreed. Mr Martin-Sperry then repeated his intention to withdraw from the case if the prosecution insisted on a direction that was capable of leading to any form of adverse inference against the defendant. Nonetheless, the judge finalised her direction and having seen it, Mr Martin-Sperry must have decided he would continue with the case.
63.
The direction was delivered orally to the jury before the ABE interview was played. The judge also included the direction in her written legal directions delivered in the first part of her split summing up, the material part of which said:
“In a criminal trial a witness whose evidence is not accepted by the defence is called to give that evidence by the prosecution. The witnesses first asked questions by the prosecution so the jury hear the evidence which the prosecution say supports their case. Thereafter, it is the duty of the defence to put their case to the witness and so they will ask the witness questions - that is the process known as cross examination which is designed to expose, for example, inconsistencies, to demonstrate that the evidence is not true or that the witness cannot be relied on.
Whether a person is fit to give evidence (and that includes being asked questions in cross examination) is a matter for the judge. I have considered material in this case and have decided the witness Cheryl Brooker is fit to give evidence and to be asked questions in cross examination. The consequence of that is that the defence are required to put their case i.e. To give the witness the opportunity to answer what they assert. However, defence counsel has decided that he does not wish to risk putting any stress on the witness at all and so he will not ask her any questions. That is his decision, but it has important consequences for the defendant.
… the decision not to cross examine her means that you will not have the opportunity of seeing her account tested in front of you. There may in due course be other evidence from which it may be suggested you will be able to gauge the accuracy and reliability of what she has said to the police, but importantly you will not have been afforded, as a jury properly should be, the opportunity to form your own assessment by seeing and hearing her direct responses to questions put to her by the defence. In short, whilst the defence challenge her evidence, they do not seek to do so by what I have determined in this case to be the perfectly proper mechanism of cross examination.
Whilst you must not speculate, you are entitled to draw conclusions from the evidence you accept. The defence will suggest that the decision not to ask Cheryl Brooker questions is borne out of concern for the impact on her health notwithstanding my finding her fit to give evidence and be cross examined. The prosecution will contend that in those circumstances the only sensible conclusion for you to draw from that action is that the answers she would have given would have been such as to make you sure her evidence is true. It will be a matter for you to draw the conclusion you think appropriate when you have considered all of the evidence in the case.”
64.
The transcript of the delivery of legal directions prior to speeches includes a refinement of the penultimate sentence of the second paragraph set out above. We include that here for convenience. When the judge addressed the jury she said:
“.. defence counsel, for his own and perfectly good reasons - which I know he'll tell you about - didn't wish to put any stress on the witness, or indeed, risk putting any stress on her and so chose not to ask her any questions.”
65.
After the ABE interview had been played, some statements were read by agreement, including those of Ms Brooker’s GP and Dr Ley and police evidence was called. The jury was provided with summaries of the disputed payments, redacted copies of the Ms Brooker’s bank statements, cheques written on her account, a list of agreed payments and other documentary evidence as well as the defendant’s police interview transcript. There was no handwriting evidence or any evidence of how or by whom the payments from Ms Brooker’s account which she said she knew nothing about, had been set up.
66.
Mr Brooker was of good character. He gave evidence consistent with his account in interview that his sister was very much in control of her financial affairs and kept her own records. He produced a bundle of documents which was shown to the jury. It included a number of texts and emails written by his sister in her distinctive phonetic style of expression. In one text she referred to making a payment by bank transfer (BAC). In an email she wrote to West Sussex Council in February 2015, copied to the appellant, she appealed against a financial assessment of disability benefit and said that the sums allowed for her gardener and cleaner were insufficient because
“[b]oth my privetley employed peepawl charge more than this gardener £15 an ower, cleener/lawndry ladey £12 an ower.”
67.
He told the jury he had not seen his sister since 2018 and had not viewed her ABE interview until the trial. In his view she had deteriorated markedly in that time. He left his job in 2014 to care for her, along with caring for their mother who had since died. He said he had been paid by Ms Brooker to do so via standing order. He identified the standing order payments and how they had changed over time including when he returned to work himself. Other payments such as those described as being for domestic help, she had set up herself for her own purposes. Having looked at her cheques paid into his account he identified nine of the eleven as wholly in her writing. He repeated his belief that she had been compelled go to the police because she had fallen out with him, and their sister Tracey and brother Glen had gained influence over her.
68.
The handwriting on the cheques varied because sometimes he would write them out for her, not because he wanted to hide the payments from her. He told the jury that he had no access to her cheque books. All the online bank payments such as standing orders and transfers were made by her, and the descriptor references were hers. She gave him her bank card to withdraw money on occasion, but he always gave it back to her. The printouts of emails and correspondence involving his sister demonstrated how capable she was. Other evidence in the defence bundle included medical appointments, evidence of ill health of the defendant himself and other records which he said demonstrated he could not have made some of the cash withdrawals he was accused of making. Although he denied being the person who withdrew all the sums alleged from ATMs using her card, in general, the appellant did not suggest that his sister had not given him and his family the sums of money alleged. His case was that he had not stolen them and that at the time his sister had generously and freely given them to him. The issue for the jury on counts 1 and 2 was therefore whether the prosecution had proved he received the sums dishonestly.
69.
The appellant’s wife gave evidence supporting his account and a number of character witnesses were also called.
70.
In his closing address to the jury Mr Martin-Sperry explained his approach to the case. He began by giving an illustration of a child who was asked if he could see a squirrel in a tree, and through leading questions, the child purporting to describe a squirrel, which had not in fact been there. He then drew a distinction between someone who tells an outright lie and somebody who agrees with the suggestion despite not being confident that the suggestion is correct. His invitation to the jury was that they should determine the case on the background history and the reasons for the breakdown of the relationship between the appellant and his sister which were unrelated to any of the contested payments. He highlighted the influence that the appellant said his other siblings had had on Ms Brooker thereafter. Then came this passage,
“And so it is that our own perception – it can change. Now, I'm quite certain that all of you will have in your mind things that you think are correct from your past and maybe they're not, never mind what everyone's told you, and they become part of your memory. I'm no great memory expert. Recovered memory, false memory, it's a well known phrase, a well known topic. It does happen. It's not the sort of thing that you can call an expert and say, “That's a piece of false memory.”
71.
At this the judge interjected:
“Well, Mr. Martin-Sperry you're treading on dangerous ground suggesting false memory when there's been no evidence for it.”
72.
Mr Martin-Sperry continued:
“I may be treading on dangerous ground, much more dangerous if I don't tread there. I will not be giving evidence here, but the phrase false memory may be my own mistake. I have made some mistakes in this case, oh yes I have.”
73.
He referred to some minor errors in his reading of character witnesses’ evidence and returned to the topic he had been dealing with,
“But, be that as it may, the more important thing is that we come back to squirrels because what I'm going to investigate with you is whether there is any room for you even to consider that Cheryl was lying. I don't say she was lying at all. She's not a liar. We do know about liars in these courts and Cheryl Brooker is not one of them. I'm sorry to disappoint the crown but the crown seem to have missed the point and have said, “Well, she must be a liar. The defence must be saying that she's a liar,” and all the rest of it. You'll remember I got rather excited in the middle of all that and said, “That's not for the defendant to say”, and he doesn't say that she is a liar either. The crown can't quite follow it. She is no more a liar than the little child who saw or didn't see the squirrel. She is telling the truth about an image that she has in her mind.”
74.
Mr Martin-Sperry then moved on to the reasons he had not cross examined Ms Brooker. Having made reference to her medical history and the deterioration the appellant had described between when he had last seen her in 2018 and the ABE interview in 2020, he said:
“Her way of dealing with it - remarkable! I pay tribute to her and if you think that I am going to cross examine somebody like that in a court of law, Oh no, I'm not. I don't mind who tells me to. I'm not going to do it and the reason I'm not going to do it may well be selfish. Do you think I want on my record, “this is the very experienced barrister who cross examined a disabled person, caused them to have a stroke which killed them?” Oh yes, am I going to want that on my record? No, I am not and if I think there is any risk of that, I will simply drop anchor which is precisely what I've done and I dropped anchor at a very early stage and I said, “I'm sorry, we will have to find another way of dealing with her.”
75.
Later in his speech he reminded the jury of the appellant’s character, his selfless care of his sister and mother and made reference to the large amount of money that the appellant had returned to his sister in respect of the building of the bungalow. He also recalled the evidence of a police officer that when Ms Brooker made her first complaint to the police, her sister Tracey had done most of the talking. Finally, he mentioned, albeit not in detail, the correspondence and other material produced by the appellant (though he said he anticipated none of the documents in the case for either side would assist the jury) and the failure of the police to re investigate the case in light of that evidence.
The appeal
76.
Following conviction, Mr Brooker withdrew instructions from Mr Martin-Sperry and instructed Mr Graffius KC who mitigated at sentence and has argued this appeal. Legal professional privilege was waived in a letter to the appellant’s solicitors on 9 February 2023 and appeal counsel carried out the necessary enquiries with Mr Martin-Sperry. We directed that Mr Martin-Sperry and the appellant should make themselves available to give evidence on the appeal. In the event, both did so and were asked questions by Mr Graffius and Mr Burrows for the respondent.
77.
The grounds of appeal come to this: defence counsel’s incompetence resulted in identifiable errors in the trial process and rendered the convictions unsafe. No criticism is directed towards the trial judge. Mr Graffius relies on seven specific features of Mr Martin-Sperry’s conduct of the case.
78.
Firstly, his refusal to cross-examine Ms Brooker, due to his personal opinion that it could be dangerous for her, despite the fact that there was no medical basis for such a conclusion. Mr Graffius describes the decision as ‘seismic’ and the key factor in the trial. It meant the jury lost the opportunity fairly to assess the two principal witnesses, Cheryl and Graeme Brooker. Given that failure, which was not the fault of the appellant, he should not have suffered the consequences of the unusual direction drafted and delivered by the judge. He emphasises the fact that Ms Brooker had agreed to be cross examined and measures had been put in place to enable her to give her best evidence.
79.
In his evidence to the court Mr Martin-Sperry said he had reliable material to indicate that there was a substantial risk in subjecting the witness to stress. He could not identify that material. Eventually, he said it might have been what Mr Brooker told him. Mr Martin-Sperry agreed that directions had been made for service of defence medical evidence. He could not recall whether he had drafted an advice on evidence for his instructing solicitor; he said had difficulty reaching the solicitor on the telephone although he acknowledged that the solicitor may have tried to communicate with him by email. We gave him an opportunity after the hearing to provide any written advice he could find in his records. It is accepted that none has been identified.
80.
Mr Martin-Sperry told us that he sought agreement by email for this approach from his client shortly before the trial, because the situation was unusual. However, he did not accept the general proposition that if he failed to challenge a witness’s evidence if it was controversial, he would be taken to have accepted it. On 21 November 2022, prosecution counsel had made submissions in line with this general proposition. Mr Martin-Sperry told us he thought this was, “frankly, a disgraceful conclusion” to come to because it was his personal decision, not that of the appellant. He was asked whether he recognised the duty of barristers to promote fearlessly and by all proper and lawful means their client’s best interests. He said this was an irrelevant question because “trumping that.. is my overriding duty on both a personal and professional level not to put at risk the very life of a vulnerable prosecution witness.” He said he had decided not to seek medical evidence for the defence, despite Mr Recorder Roques’ order, because the interview for any report in his view, would have placed Ms Brooker under more stress and he was not prepared to do that.
81.
Secondly, the refusal to accept that the judge’s ruling that Ms Brooker was fit to be cross examined, despite his professional duty to do so and to put his client’s case. Mr Graffius relies on section 53 of the Youth Justice and Criminal Evidence Act 1999 which provides, as far as material:
53 Competence of witnesses to give evidence.
(1)At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2)Subsection (1) has effect subject to subsections (3) and (4).
(3)A person is not competent to give evidence in criminal proceedings if it appears
to the court
that he is not a person who is able to—
(a)understand questions put to him as a witness, and
(b)give answers to them which can be understood.
(4)A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
[Emphasis added]
82.
In a passage of quite remarkable evidence, Mr Martin-Sperry told the court this was not a matter of law but one of “medical fact” for him to make his own decision about; that he found the judge’s decision that the witness was fit to be cross examined “extraordinary” and he did not consider himself bound by it.
83.
Thirdly, the failure to advise the appellant that if Ms Brooker was not cross examined the judge may direct the jury to draw an adverse inference. The 9 November 2022 email from the appellant made no reference to his having been advised that any consequence may flow from the decision counsel had taken. In responding to a request for information from Mr Graffius, Mr Martin-Sperry supported the appellant’s evidence to us that he had not made the appellant aware that any adverse outcome would result; indeed he had not turned his own mind to the possibility until, at the earliest, the trial judge agreed with the prosecution’s submissions to that effect on the first day of trial. Later on in his evidence, Mr Martin-Sperry said that he did not recollect the proposed direction being confirmed until the close of evidence in the case. Still later, he conceded that he had seen the direction early in the trial, but he did not appreciate that it was the court’s decision which had important consequences for the defendant. He came to understand that much later in the trial: it had ‘got lost in the wash’ at the beginning of the case.
84.
In a statement prepared for this appeal and in an email of complaint against Mr Martin-Sperry which he sent to his solicitor after the trial, the appellant said that it had never been made clear to him how the judge and prosecution might react to counsel’s decision, or that it might lead to the suggestion, or inference that the decision had been taken to hide information from the jury. Mr Martin-Sperry had seemed to be very confident in the strength of the defence case and joked that he would jump of Westminster Bridge if Mr Brooker was convicted. As a lay person, he was wholly reliant on the professional support of a barrister with fifty years’ experience and trusted him to act in his best interests as well as in accordance with his professional obligations. The appellant’s evidence to us was that he may have had a copy of the direction or a draft and he was in court listening to what was being said but he did not fully understand it; during one of the breaks he had asked Mr Martin-Sperry what the impact was of what the judge had said. The appellant said he was told that cross examination was not important or necessary and defence counsel was still ‘buoyant’ because of the evidence the appellant himself had produced. The appellant encapsulated the position in this way: Mr Martin-Sperry “basically implied that the evidence I provided would outweigh the lack of cross examination.” Mr Graffius submits that the appellant could not be expected to follow the legal argument at the start of the trial and when he asked, he was reassured by his lawyer.
85.
Fourthly, the failure to withdraw from the case when the judge had ruled and despite the judge’s observation that if he did not wish to question the witness he should withdraw. Mr Graffius points out that this was foreshadowed by what had been said by Mr Recorder Roques. In failing to provide appropriate advice and, if so indicated, to return his instructions Mr Martin-Sperry deprived the appellant of proper, regular representation and this was grossly unfair. The appellant told us that at the time, he did not understand what was meant by ‘withdrawing instructions’ and similar phrases. He did not realise it would mean leaving him without representation. Mr Martin-Sperry’s evidence was that he believed he had his client’s confidence and Mr Brooker understood that if he did not like his decision not to question the witness he was at liberty to obtain alternative representation by speaking to his solicitor. He was taken by Mr Burrows to the passage in the transcript for the first day of the trial at para 58 above. He agreed that he must have given the appellant the choice to withdraw his instructions but the appellant had not done so. He added that he had little idea what was going on in the appellant’s mind at the time and he had no note or endorsement of any decision made.
86.
He said they spent a lot of time together in conversation, but it is not his habit to make notes of any conferences he has with his clients. He agreed that the normal course would be for a solicitor to be present at important conferences, for the protection of the barrister and the client, but this did not happen at any stage in his involvement with this case.
87.
Fifthly, a failure to ensure that the defence case was put fully and fairly to Ms Brooker and the witness challenged. Mr Graffius illustrates the simplicity with which Ms Brooker could have been cross examined by reference to the email she had sent to West Sussex Council in February 2015 in which she asked for greater allowance to be made for her payments to a gardener and cleaner, payments which went to the appellant’s account and which she told police she did not know about and had never authorised.
88.
Sixthly, making a closing speech in which he advanced his personal opinion first, that Ms Brooker may have false memory syndrome - despite the absence of any evidence of false memory syndrome; and secondly, that she may have believed she was telling the truth. Mr Graffius said the speech made by prosecution counsel had focussed the minds of the jury on the simplicity of the issue before them: either Ms Brooker was lying about somebody else having written the references on standing orders from her account and causing her to write cheques which she did not remember and would not have authorised, or the appellant had lied in his evidence when he asserted that his sister had no difficulties managing her finances and did so more or less independently. Defence counsel’s speech was at odds with the defence case. Much of what he said was entirely inapposite. He would have known that there was no evidence of false memory syndrome and the appellant’s account from start to finish was that his sister was lying to cover up her previous generosity to him and hide it from their other siblings. Mr Graffius suggests the effect would have been to confuse the jury at best, and at worst, to persuade them that the appellant had no real defence at all. Mr Martin-Sperry’s explanation to us was that false memory syndrome was a possible reason for the witness to say what she did. He thought the judge’s interruption of his speech at this point was “very odd.”
89.
Seventhly, undermining the appellant’s evidence in his closing speech, including dismissing the defence bundle of documents, rather than reminding the jury of the evidence of Ms Brooker’s apparent control over her finances and her ability to write. Although he referred to some of the material the appellant had produced. Mr Martin-Sperry said that the jury had probably not looked at either the prosecution or defence bundles very carefully and asked, “Why should you. They’re not going to help you.”
90.
Though he could not remember those sentences specifically, Mr Martin-Sperry’s justification of this to us, was that he wanted the jury to approach the case with an open mind; he also made what in our view was inappropriate and unattractive criticism of the biased attitude, as he saw it, of the foreman of the jury.
91.
Mr Graffius acknowledges that the judge summarised the defence case, including the appellant’s evidence effectively. She reminded the jury that the appellant had said from the start of his police interview that any money he received from his sister had been given to him freely and with her full knowledge and he did not have access to her online banking. However, the judge concluded her recital with a reminder that Ms Brooker had not been able to answer her brother’s contentions as they had never been put to her in cross examination and the jury would have to make of that what they could.
92.
The respondent agrees with Mr Graffius that defence counsel’s conduct of the trial was incompetent. Mr Burrows seeks however to uphold the convictions. He submits that the adverse inference direction adopted by the judge favoured the appellant more than it did the prosecution. Further, it could be seen that the appellant was not prejudiced by the direction because the jury acquitted him of one of the counts that he faced. The respondent submits that the true issues were put clearly before the jury and they must have applied the legal directions, the correctness of which are unchallenged, in deciding that the prosecution had failed to prove one count. So defence counsel’s closing submissions had not influenced the jury against him.
The approach
93.
In
R v Farooqi and others
[2013] EWCA Crim 1649, another appeal concerned primarily with what was said to be egregious misconduct by defence counsel, Lord Judge CJ delivering the judgment of the court, said at 100:
“In this jurisdiction it is axiomatic that every defendant has an absolute right to a fair trial.”
94.
The circumstances in which the quality of defence representation has been found by the courts to have led to an unfair trial are exceptionally rare. This is principally because there are many other guarantees of fairness in our adversarial system. These include the fact that solicitors instruct counsel, and can provide independent advice to the client when this is called for; the duty of prosecution counsel to act as a minister of justice; the role of the trial judge in ensuring proceedings at trial are fair to both sides and who can swiftly remedy any error which – uncorrected - may affect the fairness of the trial; and the role of the jury in determining contested issues of fact. Further, exceptionally high standards of conduct are required of advocates in our criminal courts. In consequence, it will be difficult for a convicted defendant to persuade this court that, despite the safeguards we have mentioned, his conviction should be overturned because his representation was incompetent. It certainly does not follow that a finding that there has been incompetence on the part of counsel necessarily leads to the conclusion that the conviction is unsafe, although in some circumstances, that may be the case.
95.
As Buxton LJ said in
R v Mark Darren Day
[2003] EWCA Crim 1060 at 15:
“While incompetent representation is always to be deplored it is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”
The failure to cross examine and put the defence case
96.
Mr Graffius who has presented this appeal moderately and with skill, realistically grounds his submissions on the effect of the decision not to cross examine the only important prosecution witness. However, what happened at the trial was predicated on defence counsel’s approach for over a year before the trial started. We agree that it would be obvious to any competent counsel that Ms Brooker had to be cross examined and challenged. There was no medical or other basis for refusing to question a witness whose evidence was directly contradicted by his client. The ABE interview had been served and was relied on. Having viewed it, we can understand that a tactical decision might have been made to limit the challenge so far as possible in order not to evoke sympathy for an obviously vulnerable witness. Another reason might be to reduce the damage to the appellant’s case that the answers provided in cross examination might cause. But that is not what Mr Martin-Sperry told us his approach was. He denied any element of strategy. He maintained that he had formed a firm view, based on some evidence which he could neither recall nor produce that there was a serious risk of harm if he were to ask the witness any questions.
97.
The only information upon which this view could have been formed is what the appellant may have told counsel Mr Martin-Sperry of his experience of Ms Brooker over the years he had looked after her. We allow for the possibility that this is what led counsel to form an early provisional view, one he expressed to his instructing solicitor and set out in writing in his note of 11 September 2021. Once matters had been fully aired in court however (which had happened as early as March 2022) and the medical records had been disclosed and the report of Dr Ley had been served it was clear beyond peradventure that Mr Martin-Sperry could have no justification whatever for maintaining his stance on cross examining Ms Brooker. In this context it is to be noted that he never did provide his instructing solicitors with an advice on this issue, even though they had asked him to do so as early as 10 September 2021.
98.
It is a well-established rule founded on justice, that in a criminal trial the case for the prosecution and for the defence must be fairly put and the witnesses challenged where possible. The general rule and the rationale for it is described in the current edition of
Phipson on Evidence
20th ed (2022) at 12-12:
“In general a party is required to challenge in cross examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point…
This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”
99.
The duties of counsel are spelled out in the Bar Standard Code of Conduct (the current version in force from 20 September 2023, but is not different in any material respect). Core Duty 1 is to observe the duty to the court in the administration of justice. The Code makes clear that this duty overrides any other core duty, if and to the extent that the two are inconsistent. Core Duty 2 is to act in the best interests of each client. Core Duty 7 is to provide a competent standard for work and service to each client. The core duties are supplemented by the conduct rules. Rule C7 could not be clearer:
“rC7 Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:
1.
you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person.
2.
You must not make a serious allegation against a witness whom you have had an opportunity to cross examine unless you have given that witness a chance to answer the allegation in cross examination.
3.
..
4.
You must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.”
100.
The treatment of vulnerable witnesses, whether called by the prosecution or the defence, has changed beyond all recognition in recent years. This has involved a shift in professional culture and all advocates who practise in the criminal courts are aware of the changes There are many tools available to enable all witnesses to give evidence to a satisfactory standard. The Criminal Practice Directions and the Criminal Procedure Rules provide the necessary framework. Counsel are expected to have developed the skill-set necessary to carry out fair and effective cross examination in accordance with ground rules set by the trial judge. Where pertinent, those rules can include requiring questions to be framed shortly in easily understood language, providing regular breaks in the evidence, allowing an independent communications expert (an intermediary) to intervene if questions are inappropriately worded and giving a witness a variety of ways of signalling the need for a break. A wide range of special measures can be deployed and objections to these are now rare. The consequence is that a far more compassionate and practical mode of examination of witnesses prevails, leading to a shorter and more focussed examination of vulnerable witnesses. There is however no diminution in the opportunity (or the professional requirement) to test disputed evidence within the parameters set by the court. Indeed with heat and emotion removed the genuinely probing question is capable of “hitting home” with greater effect.
101.
Returning to the case before us, the specific tools of pre-recorded cross examination under section 28 Youth Justice and Criminal Evidence Act 1999 and the use of an intermediary were available in this case. What was required was relatively straightforward. The lengthy ABE interview called for extensive editing which could have reduced its impact in a perfectly permissible way. Ms Brooker had to be challenged, sensitively, on her evidence that she had not known about any of the questioned payments. The appellant had provided counsel with a selection of emails she had sent concerning specific payments of money which, he said, demonstrated that at the relevant time she had full knowledge of where her money was being spent. Cheques which he said were in her handwriting, and certainly not his own were available. At least some of these documents should have been shown to her for her response. Furthermore, as the appellant intended to give evidence of what he said was her motive for the lies she had told the police, this should have been put to her for a response. None of this was beyond the skill of an averagely competent criminal advocate, newly qualified. All these matters could have been put to Ms Brooker as long ago as May 2021, as the prosecution and court originally envisaged.
102.
We deprecate the approach taken by Mr Martin-Sperry in relation to this issue. It was not a display of professional independence. It was recalcitrant and unprincipled. Mr Martin-Sperry is, in a word, unrepentant.
Refusal to accept the judge’s determination
103.
The competence of a witness can be raised by any party to proceedings or by the court of its own motion. When the issue is raised it is for the party calling the witness to satisfy the court on the balance of probabilities that the witness is competent, taking into account any expert evidence available. Once the court has ruled on the issue however, the parties are bound by the ruling.
104.
The transcript of the first day of the trial makes for concerning reading. It is plain that Mr Martin-Sperry simply refused to accept the trial judge’s decision that Ms Brooker should be cross examined, notwithstanding that he should have expected exactly that outcome. The duty to the court in the administration of justice is counsel’s paramount duty. In circumstances where Mr Martin-Sperry disagreed with the ruling, he had two options: to comply with the direction of the judge, and, in the event of a conviction, challenge the ruling on appeal; or to withdraw from the case and return his instructions. It seems that he considered this latter course but he did not pursue it. Thereafter, the only choice he had, consistent with the primary core duty of an advocate, was to cross examine the witness.
105.
Conduct rule C26 provides as follow:
rC26 You may cease to act on a matter on which you are instructed and return your instructions if:
1.
Your professional conduct is being called into question..
106.
In this case, it is obvious that the judge
was
calling Mr Martin-Sperry’s professional conduct into question. In circumstances where, according to Mr Martin-Sperry, the decision not to cross examine Ms Brooker was his and not that of the client, it was incumbent upon him to advise his client in clear terms of the options available and their different implications. Mr Martin-Sperry should also have referred the matter to his instructing solicitors, so as to ensure that the appellant, if he wished to have it, had access to his solicitor’s advice.
107.
Following the judgment of Fulford LJ in
R v Daniels
[2021] EWCA Crim 44, the Bar Council has provided revised advice on when counsel should withdraw during a trial. The guidance is called “Returning Instructions in Criminal Cases: R v Daniels – Feb 2022” and includes passages dealing with late returns of instructions and the obligation of advocates to comply with the cab rank rule in taking instructions even if there is limited time to prepare. This is illustrative of the pragmatic approach expected of advocates when matters of professional compromise arise.
The ‘adverse inference’ direction and withdrawal
108.
We reject Mr Martin-Sperry’s evidence that he did not realise until the first day of the trial that the appellant was in jeopardy of an adverse direction if he failed to challenge the evidence of Ms Brooker. It was, frankly, obvious that this might happen. We do not accept either that the direction drafted by the judge on 21 November simply “got lost in the wash”. It was the product of a full days’ argument in the absence of the jury. Given the unusual situation that counsel had himself engendered, it is inconceivable that he simply let this direction drift out of his mind.
109.
We also reject the appellant’s evidence that he did not realise that the discussion that took place on the first day of the trial concerned what was to be said
to the jury
about the decision not to cross examine his sister, a decision with which he had already agreed. Firstly, it is apparent from the material before us that the appellant was fully engaged with the issues raised by his trial and was taking the closest possible interest in them. Secondly, albeit that Mr Martin-Sperry’s submissions were on occasion, repetitive and discursive, the debate before the judge was generally clear and coherent. Thirdly, the appellant told us that a representative from Cheesemans was present on that day. No doubt the appellant could have spoken to that representative if he wished to do so and if he did not follow what was being discussed. Fourthly, the directions that emerged after the debate before the judge, namely that drafted by her, and the final version which went to the jury were provided to the parties in hard copy. Fifthly, as the appellant was eventually constrained to accept, he had seen a copy of the judge’s direction and was indeed aware that the judge intended to direct the jury that they could criticise the defence for the approach they had taken.
The closing speech
110.
It is trite that Counsel are not permitted to give evidence.
It is also trite that counsel should not allude in their closing speeches to (alleged) facts or matters which have not been the subject of evidence.
111.
Plainly, Mr Martin-Sperry should not have given the jury the benefit of his personal views and reasons for not cross examining Ms Brooker, nor should he have made the wholly speculative reference to false memory syndrome. The latter reference led to an intervention from the judge, the former did not (perhaps out of a concern that the effect, if any of the wrong decisions of his counsel, should not be visited upon the appellant). Beyond this however, we consider the various criticisms of defence counsel’s closing speech and their effect, if any, to be overstated.
112.
Counsel has a wide discretion in how to address the jury in closing. This includes for example deciding what evidence to refer to, the overall approach (be it a broad brush or a closely analytical one) and whether the prosecution case should be met head or attention drawn away from it. These are all matters of judgment on which reasonable professional advocates may disagree. The trial judge is responsible for ensuring that the defendant's case is left fairly to the jury. In doing so a judge may have to correct, distil and augment the points made by defence counsel, as this trial judge did. It is not suggested she fell into error in this connection, or that the way the jury had been addressed should have led her to discharge them. In this short trial, completed within nine days, the issues between the prosecution and defence were fairly placed before the jury in the written directions they were given and in a full summing up which has not been the subject of criticism. Whatever Mr Martin-Sperry had said in his closing speech, the jury can have been in no doubt as to the nature of the appellant’s case and his defence to the charges against him.
Outcome
113.
Mr Martin-Sperry was an unimpressive witness. It is a matter of regret that there are ample grounds for criticising his conduct is what was a relatively straightforward case.
114.
We do not find his unorthodox approach to counsel’s duty to put his client’s case is one that can be tolerated. The rationale for Mr Martin-Sperry’s approach was opaque and unsupported by material which we would expect experienced advocates to seek out before making such a significant decision about the tactical approach to a contested case. We are forced to conclude that he recognised the difficulty of successfully challenging the video recorded evidence of Ms Brooker and decided that the appellant’s best chance lay with his own account to the jury, as a man of previous good character, with as little attention being drawn to his sister’s account as possible. Mr Martin-Sperry fixed variously on dissociative identity disorder, Ms Brooker’s strokes and what the appellant was able to tell him about how his sister reacted when under stress. Having failed to persuade the prosecution and the judge that a transcript of the ABE interview should be provided to the jury rather than the footage (as suggested in his first note to the court) he sought to limit the damage her evidence might cause, by presenting the appellant’s oral and documentary evidence “fresh”, and unchallenged and uncontradicted by Ms Brooker. It follows that we find that Mr Martin-Sperry has not been frank with the court.
115.
In addition, behind this, there was a catalogue of elementary professional errors. Mr Martin-Sperry communicated directly with his lay client, including using his personal email address; he took no notes of those discussions or of the advice that he gave; he apparently ignored the request for advice from his instructing solicitors; he failed to comply with directions made at a series of preparatory court hearings and there is no indication that he ever analysed the extensive medical records disclosed during the case.
116.
In all the circumstances we are satisfied that his performance of his duties fell below the standard to be expected of a member of the Bar of England and Wales. We are not convinced that the accurate description is incompetence which implies a lack of skill. Here, having made an erroneous strategic decision on the basis of his personal judgment Mr Martin-Sperry, in his role for the defence, failed to comply with orders of the court before the trial and during the trial itself. He is a highly experienced advocate. It is hard to escape the conclusion that this was a deliberate course of conduct. It is regrettable that this is the position at the end of Mr Martin-Sperry’s long career.
117.
We turn then to the safety of the conviction. Notwithstanding the conduct of Mr Martin-Sperry we are satisfied that the appellant’s conviction is safe for a combination of reasons we can state shortly.
118.
Firstly, the rationale for the general rule on cross examination is that set out in
Phipson
i.e. it serves the important function of giving
the witness
the opportunity of explaining any contradiction or alleged problem with his evidence. The unfairness, if any engendered therefore was to the prosecution and not the defence. Ms Brooker was not given the opportunity to answer the appellant’s case against her, which was that her complaint of theft was made to disguise from her siblings how much she had given to the appellant. This meant the appellant then had a relatively free hand in giving
his
evidence unencumbered by what Ms Brooker might have said in response to the case as put to her, as did Mr Martin-Sperry in commenting on her evidence in his closing speech. Secondly,
the effect
of the adverse direction as finally delivered was fairly anodyne. It did not clearly identify the process of reasoning the jury should follow or the factors, if any, the jury had to weigh when deciding whether to conclude that questions were not asked because to do so would simply confirm the witness’s account. Nor did the direction suggest that a failure to cross examine Ms Brooker meant the defence accepted her evidence. When the final direction was repeated, shortly before counsels’ closing speeches, the judge told the jury that defence counsel had “his own and perfectly good reasons” for his approach, which they would hear about from him, thereby neutralising any adverse effect the direction may have had on the appellant’s case (as well as opening the door for Mr Martin-Sperry to explain himself to the jury, as he did). Thirdly, we are not persuaded that the appellant did not understand that an adverse inference might be given or that he could have changed counsel, if unhappy with Mr Martin-Sperry’s stance. The appellant was present to hear the debate in court, and we consider he understood what was being said, about the direction to the jury (he had seen a hard copy of it) and by Mr Martin-Sperry about the conversations he had had with the appellant regarding the withdrawal of instructions. In our view, his current stance is no more than “buyer’s remorse” in respect of the tactical decisions of his counsel which he fully supported at all material times. Finally, as we have already said, the judge’s summing up is not the subject of any criticism in this appeal. It was full and fair; it set out the appellant’s case in detail and can have left the jury in no doubt as to the issues they had to decide.
119.
For these reasons, the appeal against conviction is dismissed.
120.
We cannot leave this case however without making some observations arising from the procedural defaults with which it was replete, and the number of hearings these and other issues engendered. In this relatively straightforward criminal case, listed for four days, there were numerous pre-trial hearings of one sort or another and a catalogue of failures on the part of both parties to comply with court orders and/or to ensure that the timetable for case preparation was adhered to. This lamentably lackadaisical approach did not merely have serious implications for the progress of this particular case; it will have had an impact on the ability of the court to deal with other cases and was a waste of precious court resources.
121.
The Criminal Procedure Rules were introduced in 2005 as a result of a recommendation of Lord Justice Auld’s Review of the Criminal Courts of England and Wales. As the rules state in terms, each participant in the conduct of the case must prepare and conduct the case in accordance with the overriding objective; they must comply with the rules, practice directions and directions made by the court; and they must inform the court and all parties at once of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by the Rules, any practice direction or any direction of the court: see Crim. PR 1.2. It should not be necessary to state that the objectives Lord Auld identified of fairness, efficiency and effectiveness are more critical than ever to the working of the criminal justice system given the significant pressure under which it is now operating; or that the achievement of those objectives requires close attention and adherence to the rules.
122.
Although the particular circumstances of this case are unusual, the history we have set out above reveals some concerns of general and current importance. The current outstanding workload of the Crown Court is very high because of various events which have happened over the past few years. The level of receipts into the Crown Court is presently rising. This situation requires that cases are managed as efficiently as possible so as to use the limited resources of the system to the best possible effect. For this reason, the Crown Court Improvement Group was established by the former Lord Chief Justice and has met monthly over the last 2½ years to attempt to improve the functioning of this jurisdiction. All major executive agencies which contribute to the running of the Crown Court are represented on it. It is chaired by a judge. The efforts which have been made by all involved to run the Crown Court effectively require participants, including counsel, to assist in that end. Wasted hearings and trials which do not proceed when they should are to be avoided as far as possible. In this case the PTPH was on 7 January 2021. There were then 5 further hearings before the trial. One of these, on 2 March 2022, involved the case being listed for trial but not proceeding. When the trial did eventually start, the whole of the first day was taken up by legal argument about Mr Martin-Sperry’s approach to the evidence of Ms Brooker. This was the reason for all the delay, and this was compounded by a repeated failure, by both parties, to comply with the directions of the court. | {"ConvCourtName":["Crown Court at Lewes"],"ConvictPleaDate":["2022-12-01"],"ConvictOffence":["Theft (Count 1: by drawing cheques on Barclays bank account)","Theft (Count 2: by making online payments from same account)"],"AcquitOffence":["Theft (Count 3: by making ATM withdrawals from same account)"],"ConfessPleadGuilty":["No"],"PleaPoint":["at pre-trial preparation hearing (2021-01-07)"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":null,"SentCourtName":["Crown Court at Lewes"],"Sentence":["3 years imprisonment"],"SentServe":["Single"],"WhatAncillary":null,"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Retired"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["ABE interview (video)","Bank statements","Cheques","Expert report/testimony (Dr Ley, intermediary)","Police evidence"],"DefEvidTypeTrial":["Offender denies offence","Emails/texts from victim","Defendant's police interview","Character witnesses"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender showed genuine remorse","Offender has no relevant previous convictions","Returned £250,000 to victim for bungalow"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Defence counsel's incompetence (refusal to cross-examine main witness)","Failure to put defence case to witness","Failure to advise defendant of adverse inference risk","Failure to withdraw from case when required"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Despite counsel's failings, conviction is safe: unfairness was to prosecution, not defence; adverse inference direction was neutral; defendant understood consequences; judge's summing up was fair and full"]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202302075/A3
[2024] EWCA Crim 319
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday, 12 March 2024
Before:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
LORD JUSTICE HOLROYDE
MRS JUSTICE MAY DBE
HIS HONOUR JUDGE LICKLEY KC
REX
v
LOUISE LENNON
__________
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)
_________
MISS J BICKERSTAFF KC and MISS T SHROFF
appeared on behalf of the Applicant
_________
J U D G M E N T
(Approved)
1.
THE VICE-PRESIDENT: This applicant and her former partner, Jake Drummond stood trial at the Central Criminal Court on charges arising out of the death of the applicant's 15-month-old son, Jacob. The applicant gave evidence. She then pleaded guilty to an offence of cruelty to a person under 16 years (count 4). She was convicted of causing or allowing the death of a child (count 3). She was subsequently sentenced by the trial judge, Sweeting J, to 10 years' imprisonment for that offence, with a concurrent sentence of six years on count 4. Drummond was convicted of murder and wounding with intent. He was sentenced to life imprisonment with a minimum term of 32 years, less the days he had spent remanded in custody.
2.
The applicant applied for leave to appeal against her sentence. That application was refused by the single judge. It is now renewed to the full court.
3.
The facts have been fully set out by the Criminal Appeal Office in a document available to the applicant, and for present purposes the following very brief summary is sufficient.
4.
The applicant was aged 29 at the time of Jacob's death. She had no previous convictions. She had suffered domestic abuse at the hands of more than one former partner. She was the mother of two sons, the older of whom was then aged four. The boys had different fathers, neither of whom appears to have been actively involved in their care.
5.
In late 2019 she began a relationship with Drummond, whom she had known for many years. Over a period of weeks Drummond repeatedly inflicted serious violence on Jacob, causing injuries which the applicant knew about but did not prevent or report.
6.
On 27 August 2019 she made a 999 call requesting an ambulance. She reported that Jacob had not been breathing for some minutes. Jacob was taken to hospital but had plainly suffered serious head injuries and was pronounced dead a short time later. In the 999 call and subsequently, the applicant and Drummond jointly put forward a false explanation for Jacob's injuries. The cause of death was severe head injury in the context of two previous occasions of head injury. Observations when Jacob was first seen, and subsequent investigations, showed that he had suffered more than one impact-related and/or shaking injury to his brain. Some were several days or weeks old. That which had caused his death rendered him unconscious some hours before the ambulance was called. Consistent with those injuries, there were some 20 external injuries to Jacob's head and face. When admitted to hospital he was severely bruised in both eyes and his eyes were so swollen that they could not be opened. There was bruising to other areas of the head and face, some indicative of blows being struck. The entire skull was very swollen and of sponge-like consistency.
7.
Jacob's limbs and body had also been repeatedly injured. There was a 3cm laceration of his penis, possibly caused by forceful pinching or a bite, which had penetrated through the full thickness of the skin. There was an injury to his scrotum which had been inflicted with a sharp implement.
8.
The judge summarised what Drummond had done to a young and vulnerable child by saying that Drummond's conduct involved:
"... a course of conduct of a deliberate, cruel and sadistic nature. There was a pattern of behaviour. The penile and scrotal injuries can only be explained as sadistic in nature. They must have been excruciatingly painful. The other injuries show a deliberate course of conduct involving gratuitous violence."
9.
There was clear evidence that the applicant knew the injuries which Jacob had suffered and the judge in sentencing rejected the suggestion that she had been subject to any degree of coercive control by Drummond.
10.
In text messages passing between her and Drummond, Drummond referred to Jacob's bedroom as "the torture chamber" and the applicant described Jacob as "looking like a little madman" because of his bruises. The applicant nonetheless tried to cover up what had happened by putting forward false accounts of accidental injury and claims of an improvement in Jacob's condition. She lied to a close friend who saw Jacob at a time when the applicant herself described his head as "looking like a basketball". She lied to another friend to whom she sent a photo showing Jacob's bruised face. A few days before the fatal incident she lied to a social worker in order to avoid a planned visit at which the severe bruising to Jacob's head and face would have been observed. All those lies contributed to the continuing violence towards Jacob escaping detection by the authorities until after his death.
11.
The judge was assisted by a pre-sentence report and a psychiatric report. He accepted from the pre-sentence report that the applicant now recognised the extent of her guilt and was genuinely remorseful, and that she had suffered a difficult life. He took into account that the applicant's older son had been removed from her and adopted. He accepted from the psychiatric report that the applicant may have suffered from post-traumatic stress disorder at the material time. He did not consider that that condition impaired her ability to make rational choices, but did take it into account in considering the effect of the sentence upon her.
12.
The judge considered the Sentencing Council's relevant definitive sentencing guidelines. He placed the count 3 offence in category B1 of the guideline which gave a starting point of nine years' custody and a range from seven to 14 years. He found that the offence was aggravated by the prolonged suffering which Jacob endured prior to his death and by the applicant's attempts to cover up or conceal the offending. The count 4 offence also came within category B1 of its relevant guideline, with a starting point of six years' custody and a range from four to eight years. In those circumstances, he imposed the sentences to which we have referred.
13.
We have been assisted by written and oral submissions by Miss Bickerstaff KC and Miss Shroff who appear before us today, having represented the applicant at her trial. Miss Bickerstaff puts forward an over-arching submission that the total sentence is manifestly excessive. She advances a number of arguments. She no longer pursues an initial written submission that the principal offence should have been placed into category C1; rather, she accepts that the judge was entitled to place it into category B1, but submits that having done so, the judge should have made an initial downward adjustment from the starting point for that category. He should have done so, she submits, in particular having regard to these features of the offending: that the applicant's involvement was limited to a period of 12 days; that there was no suggestion that she had personally inflicted or witnessed the inflicting of any of the injuries; that she had made some efforts to assist Jacob; and that the visible injuries to him did not alert her to the very serious underlying brain injuries which Jacob was suffering.
14.
Miss Bickerstaff goes on to submit that if the judge was correct to treat it as a category B1 offence, he then fell into the error of double counting by treating Jacob's prolonged suffering as an aggravating feature. That is because one of the category B high culpability factors which the judge found to be applicable to the case is "prolonged and/or multiple incidents of serious cruelty including serious neglect."
15.
Next, Miss Bickerstaff submits that the only aggravating factor which should have been taken into account was the attempted cover-up but that, she argues, was balanced by the absence of previous convictions and the applicant's remorse. Furthermore, she argues, although the judge was correct to follow the guideline he did, he should have made an allowance for the fact that the offence was committed at the time when the statutory maximum penalty for it was one of 14 years' imprisonment, whereas the guideline had come into effect following an increase by Parliament to a maximum of life imprisonment.
16.
Finally, Miss Bickerstaff argues that the judge must have given insufficient weight to the personal mitigation and to the mental health position revealed by the psychiatric report in reaching what was, on any view, a severe sentence.
17.
We are very grateful to counsel for their submissions, the more so because they have been good enough to act
pro bono
in preparing and presenting this renewed application. We are not however persuaded by the submissions.
18.
We consider first the point made to the effect that the count 3 offence was committed before the statutory maximum penalty for such offences was increased but the relevant guideline came into effect after that increase. That fact cannot assist the applicant. As the single judge, Hilliard J, observed, the appropriate application of the guideline in circumstances such as these was stated by this court in
R v AZT
[2023] EWCA Crim 1277, in particular at paragraph 3. The judge here was obliged to give effect to the guideline, save that he could not impose a sentence which was longer than the statutory maximum in force at the time of the crime.
19.
Next, we observe that the guideline specifically applies both to offences involving the causing of death and to offences of allowing the death of a child. The facts and circumstances of individual cases of course differ, but the guideline does not assume or presuppose that an offence of permitting the death will always and necessarily be less serious than an offence of causing the death.
20.
As to the categorisation of this offending under that guideline, the applicant had failed to protect Jacob from offences in which at least three features of high culpability were present: multiple incidents of serious cruelty, sadistic behaviour by Drummond, and the use of very significant force by Drummond. The applicant had also deliberately disregarded her son's welfare. There can therefore be no successful criticism of the judge's decision to place the offence in category B1. With respect to the judge we accept Miss Bickerstaff's submission that there was an element of double counting in treating as an aggravating factor the prolonged suffering which was the inevitable result of the multiple incidents of serious cruelty. As against that, however, the presence of at least three high culpability factors would of itself have justified an upwards movement from the category B1 starting point. The judge would moreover have been entitled to treat as a further serious aggravating factor the impact of the offending on the applicant's older son, who has suffered the death of his younger brother.
21.
We have given careful thought to Miss Bickerstaff's submissions as to the weight properly to be given to the applicant's personal mitigation and mental health issues. We are not persuaded that there is any basis on which it can be argued that the judge failed to accord sufficient weight to these factors. It is important to note that the judge conducted the trial and had heard the applicant give her evidence. He was entitled to conclude that her PTSD did not materially reduce her culpability. He made plain that he took account of her mental health in terms of the impact on her of serving a custodial sentence. In our view, the judge plainly did take into account the personal mitigation. The sad reality however is, as the judge said, that the applicant had prioritised her relationship with Drummond over concern for her child.
22.
For those reasons, we reach the same conclusion as did the single judge. There is no arguable basis on which it can be said that the total sentence was manifestly excessive. Grateful though we are to Miss Bickerstaff, whose submissions have been as well made as they possibly could have been, this renewed application therefore fails and must be refused.
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Neutral Citation Number:
[2022] EWCA Crim 1259
Case No:
202201151 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON A REFERENCE ARISING FROM A PROSECUTION IN
THE CROWN COURT AT BRISTOL
His Honour Judge Blair KC
T20210063
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28/09/2022
Before:
THE LORD BURNETT OF MALDON,
LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE HOLGATE
and
MR JUSTICE SAINI
- - - - - - - - - - - - - - - - - - - - -
ATTORNEY GENERAL’S REFERENCE ON A POINT OF LAW
No. 1 of 2022
(pursuant to section 36 of the Criminal Justice Act 1972)
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Tom Little KC
and
Victoria Ailes
appear on behalf of
The Attorney General
Clare Montgomery KC
and
Blinne Ní Ghrálaigh
(instructed by
Hodge, Jones and Allen
) appear on behalf of
The Acquitted Person and Rhian Graham
Louis Mably KC
appears as
Advocate to the Court
Jude Bunting KC
and
Owen Greenhall
provided written submissions on behalf of
Liberty
Hearing Dates: 29 and 30 June 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 12 noon on 28 September 2022.
The Lord Burnett of Maldon CJ:
1.
This is a reference in which His Majesty’s Attorney General seeks the opinion of the court on three questions of law which are said to have arisen from a trial in Bristol Crown Court of four protestors for allegations of criminal damage to a statue of Edward Colston. The issue, in short, concerns the extent to which the European Convention on Human Rights (“the Convention”) sanctions the use of violence against property during protest, thereby rendering lawful causing damage to property which would otherwise be a crime. Causing damage to property is a criminal offence pursuant to the Criminal Damage Act 1971 subject to a defence of “lawful excuse”.
2.
On 5 January 2022 the jury acquitted the four defendants. A range of defences was run at trial. The defence with which this reference is concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest. We are not concerned with the other defences. It is impossible to know whether the jury acquitted on that basis or one of the others. This reference can, in any event, have no bearing on the acquittals.
3.
In submissions before us, both Mr Little KC for the Attorney General and Ms Montgomery KC for Ms Graham, one of the acquitted persons, (neither of whom appeared below) have referred to another of the defences advanced by the defendants. That defence was that the defendants used force in the prevention of crime pursuant to section 3 of the Criminal Law Act 1967 to prevent the public display by Bristol City Council of indecent matter contrary to the Indecent Displays (Control) Act 1981. The Attorney General did not refer a question relating to that defence because, in her view, the law is clear that the defence should not have been left. The reference procedure is not a mechanism to obtain a restatement of established law. We have not heard argument on the issue. Should the same issue arise again the point will need to be argued at trial and, if necessary, on appeal.
The Questions in the Reference
4.
The Attorney General refers the following questions for the opinion of the court pursuant to section 36 of the Criminal Justice Act 1972:
“
Question 1
Does the offence of criminal damage fall within that category of offences, identified in
James v DPP
[2016] 1 WLR 2118 and
DPP v Cuciurean
[2022] EWHC 736 (Admin), where conviction for the offence is - intrinsically and without the need for a separate consideration of proportionality in individual cases – a justified and proportionate interference with any rights engaged under Articles 9, 10 and 11 of the European Convention on Human Rights (‘the Convention’)?
Question 2
If not, and it is necessary to consider human rights issues in individual cases of criminal damage:
What principles should judges in the Crown Court apply when determining whether the qualified rights found in Articles 9, 10 and 11 of the Convention are engaged by the potential conviction of defendants purporting to be carrying out an act of protest?
Question 3
If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from a jury?”
Factual Background
5.
Edward Colston (1636 to 1721) was a Bristol-born English merchant. He accumulated a large fortune in a wide range of trading activities which included, through the Royal African Company, the transportation of African slaves to the West Indies and America. He was one of the biggest philanthropists of his day giving substantial sums for charitable purposes in Bristol and elsewhere. In 1895 a bronze statue of him was erected in Bristol to mark his philanthropy. In 1977 it was designated as a Grade II listed structure.
6.
The statue was about 2.5m high placed on top of a stone pedestal nearly 1m high which stood on a large, carved, octagonal stone base with plaques about 2.5m high. The top of the statue was thus about 6m above ground level. The statue was owned by Bristol City Council and held on trust for the people of Bristol. From the 1990s the continued presence of the statue and its plaque became a subject of controversy. Some campaigned for its removal from public display because of the tainted source of much of Colston’s wealth. The inscription on its plaque described Colston as “one of the most virtuous and wise sons” of Bristol.
7.
At around 14.00 on Sunday 7 June 2020 a peaceful march attended by about 10,000 began at College Green, Bristol. It was prompted by the Black Lives Matter movement. It was a community event with a friendly atmosphere. The majority of those peacefully protesting had passed the Colston statue when at about 14.30 a large number of people congregated around the statue, including three of the four defendants.
8.
Ms Graham and one of her co-defendants had brought ropes to the scene which were used to topple the statue. That is what happened after the ropes were tied around it and about 20 people, including Ms Graham, pulled it and its stone plinth to the ground. The statue was damaged. Ms Graham and two co-defendants were charged on Count 1 on the indictment with this conduct.
9.
A fourth defendant took part in rolling the statue through the streets to the harbour, where it was heaved into the water. This formed Count 2 of the indictment. Ms Graham was not involved in that part of the protest.
10.
Both counts alleged damage to property contrary to section 1(1) of the Criminal Damage Act 1971. The particulars of Count 1 were that the first three defendants:
“without lawful excuse jointly and together with others, damaged a statue of Edward Colston a listed monument belonging to Bristol City Council intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.”
The Proceedings in the Crown Court
11.
In advance of the trial, Ms Graham and a co-defendant made an application to stay the proceedings as an abuse of process. One of the grounds advanced was that the prosecution involved a disproportionate interference with their rights under articles 9, 10 and 11 of the Convention. Their submissions relied upon the decision of the Supreme Court in
DPP v. Ziegler
[2022] AC 408 as laying down legal principles of general application to any trial concerning conduct during the course of a protest engaging articles 10 and 11. They submitted that the prosecution amounted to a restriction interfering with those rights and so would not be justified unless necessary in a democratic society and proportionate in the light of a fact-specific evaluation of the circumstances of the case.
12.
In its written response to this application the prosecution submitted:
“The alleged offending in this case was neither peaceful or transient in its effect and, on that basis, this case [Ziegler] can be distinguished. Peaceful obstruction of the highway by protestors does not mirror the instant criminality alleged, which we note, was extraneous to the peaceful BLM march that preceded it”.
13.
At this point in their submissions the prosecution was making the straightforward point that the conduct in question was not peaceful and so not protected by the Convention. In the alternative the prosecution submitted that even if articles 10 or 11 were engaged, the trial process could accommodate the issue. The principal prosecution argument was founded on [69] of
Ziegler
where
Lord Hamblen and Lord Stephens summarised Strasbourg jurisprudence on conduct by protestors which falls outside the protection of the Convention. Article 11 only protects peaceful protest. By reference to
Kudrevičius v. Lithuania
(2016) 62 EHRR at [92] they noted that peaceful assembly:
“does not cover a demonstration where the organisers and participants have violent intentions. The guarantees of article 11 therefore apply to all gatherings except those where the organisers and participants have such intentions, incite violence or otherwise reject the foundations of a democratic society.”
They also noted the observations of the Strasbourg Court in
Primov v. Russia
(App No. 17391/06) at [155] that an individual does not lose the protection of article 11 in circumstances where, although the organisers had no violent intentions, there are sporadic acts of violence of others during a demonstration “if the individual in question remains peaceful in his or her own intentions and behaviour.”
14.
The judge rejected the abuse of process application. He did not rule on the prosecution’s first submission that the protest had not been peaceful and so fell outside the protection of the Convention altogether, but accepted that if there were an interference with Convention rights the jury could consider proportionality. It was on that basis that the defence was eventually left to the jury. The prosecution did not press its contention that the nature of the conduct was not peaceful. The judge was not invited to withdraw that matter from the consideration of the jury. There was discussion about which of the articles of the Convention were in play. That led to a focus on articles 9 and 10 (freedom of thought and freedom of expression) rather than article 11 (freedom of assembly). It is common ground before us that the principles in play are not affected by the analysis of which aspect of which article might be engaged: see
Zeigler
at [61]
et seq
.
15.
The judge dealt with this defence last in his route to verdict. The jury would only consider it if they had rejected the defence case on other issues. The final question was:
“Are you sure that convicting [the defendants] of criminal damage would be a proportionate interference with their rights to freedom of thought and conscience, and to freedom of expression?”
If the answer were “yes” the verdict would be guilty, otherwise, not guilty. In effect, the requirement for a conviction to be proportionate was treated as an additional, separate ingredient of the offence which the prosecution had to prove. The strict analysis was that the prosecution had to prove that the Convention did not provide a “lawful excuse” within the terms of the Criminal Damage Act.
A Preliminary Issue
16.
Section 36(1) of the Criminal Justice Act 1972 provides:
“(1) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal
on a point of law which has arisen in the case
, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it.” (emphasis added)
17.
Ms Montgomery submits that the court has no jurisdiction to give its opinion on any of these questions because none of them arose in the case. She suggests that the prosecution did not advance at the trial any of the points of law upon which the Attorney General now seeks to rely. In addition, Questions 2 and 3 are impermissibly broad. They invite consideration of a range of hypothetical situations to answer which would involve the court in writing a textbook rather than a judgment (
Attorney General’s Reference (No. 3 of 1994)
[1998] AC 245, 265F).
18.
In our judgment we have jurisdiction to deal with each of the three questions raised in the reference.
19.
Section 36 of the 1972 Act confers a power to refer a point of law, not in the abstract, but one which arose in a real case. “There is no power to refer theoretical questions of law, however interesting or difficult” (
Attorney General’s Reference (No.2 of 1975)
[1976] 1 WLR 710, 714E;
Attorney General’s Reference (No.4 of 1979)
[1981] 1 WLR 667, 672 G-H). That is not, in our view, what the Attorney General has done in this reference. At the heart of the case originally advanced by the prosecution was the proposition that the conduct in question did not attract any protection under the Convention. As we have noted, the judge did not rule on that issue when considering the abuse of process argument but proceeded on the assumption that Convention rights were engaged.
20.
All three questions raise issues of law which seek the opinion of the court on whether that underlying assumption was correct; and if not, how the matter should be dealt with. We agree with Mr Little that there is no principle which prevents the Attorney General from advancing a different (or developed) argument from that advanced by the prosecution at trial in relation to a point of law that was in issue.
21.
In the present case the prosecution had contended that the protest was non-peaceful and fell outside the scope of Convention rights. The submission entailed the proposition that the defence of “lawful excuse” did not arise for Convention reasons. That is at the heart of the submission advanced by the Attorney General and the questions of law we are asked to consider.
Criminal Damage
22.
The Criminal Damage Act 1971 Act followed the report of the Law Commission LC29 Criminal Law: Report on Offences of Damage to Property (1970). Its object was to replace the previous complicated sets of statutory provisions with a simplified code. The essence of the new offence was destruction of, or damage to, the property of another. Legal distinctions based upon the nature of the property or its situation, or the means used to destroy or damage it, did not affect the basic nature of the offence, but went to sentence (para. 13). The conduct to be penalised was as broad as possible, to cover the whole field of damage (para. 15).
23.
Section 1 of the 1971 Act provides:
“1.— Destroying or damaging property.
(1) 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.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson”
24.
The legislation provides a defence of “lawful excuse” for both subsections 1(1) and 1(2). In the case of an allegation under section 1(1), there is a partial definition of lawful excuse in section 5 regarding a defendant’s belief in consent to his conduct or his protection of other property.
25.
By section 4 the maximum punishment on conviction on indictment for an offence under section 1(2) or of arson is imprisonment for life. Otherwise, the maximum is 10 years’ imprisonment.
26.
Offences under section 1(1) are triable either way but by virtue of section 22 of the Magistrates’ Courts Act 1980 and schedules 1 and 2 thereto, where the value of the property destroyed or the value of the damage is £5,000 or less it must be tried summarily. The figure originally specified was £2,000 but was increased to £5,000 by section 46 of the Criminal Justice and Public Order Act 1994 with effect from 3 February 1995. It has remained unchanged despite inflation over nearly 30 years.
27.
In
Morphitis v. Salmon
[1990] Crim LR 48 Auld J (as he then was) held that whether damage is caused is a question of fact and degree. The term includes not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness. That approach was approved by this court in
R v. Whiteley
[1991] 93 Cr. App. R 25, 29. There a computer disc was held to have been damaged by the deletion and addition of files. That was “an impairment to the value or usefulness of the disc to the owner.”
28.
Thus, in accordance with the approach of the Law Commission, the courts have held that damage sufficient to support a charge of criminal damage can be minor or transient.
29.
The Divisional Court in
Roe v. Kingerlee
[1986] Crim LR 735 held that the justices had been wrong in law to hold that smearing mud graffiti on the wall of a police cell could not amount to criminal damage. In
R v. Fiak
[2005] EWCA Crim 2381 it was held that soaking a blanket and flooding three cells with water constituted “damage”, albeit that it was remediable. In
Hardman v. Chief Constable of Avon and Somerset
[1986] Crim LR 330 it was held in an appeal against conviction to the Crown Court from the Magistrates’ Court that water soluble whitewash used for paintings on a pavement had caused damage, even though it would be washed away by rain over time. It had nonetheless caused expense and inconvenience to the local authority. The potential breadth of an offence under section 1(1) of the Criminal Damage Act is something to which we will return when we consider the Attorney General’s primary argument that Convention rights are irrelevant to any prosecution for criminal damage.
30.
Mr Mably KC, appearing as Advocate to the Court, suggests that if by chaining himself to railings a protestor caused the paintwork to be scratched, that could amount to criminal damage. But whether a scratch would suffice must depend on the nature of the item affected. So, for example, in
Morphitis
the Divisional Court held that scratching a scaffold bar had not impaired its value or usefulness. That was “a normal incident of scaffolding components” and so did not amount to criminal damage.
Human Rights Act 1998
31.
Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”) provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. A public authority includes a court (section 6(3)). But section 6(2) provides:
“(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions”
32.
In relation to the interpretation of Convention rights, section 2(1) requires the court to “take into account” any judgment of the Strasbourg Court.
R (Ullah) v. Special Adjudicator
[2004] 2 AC 323 established the principle that, in the absence of special circumstances, a domestic court should follow the “clear and constant” jurisprudence of the Strasbourg court. That duty “is to keep pace with Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”: Lord Bingham of Cornhill at [20]
33.
In
R (Al-Skeini) v. Secretary of State for Defence
[2008] AC 153 at [106] Lord Brown of Eaton-under-Heywood observed:
“I would respectfully suggest that last sentence could as well have ended: "no less, but certainly no more." There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg”.
34.
In
R (AB) v. Secretary of State for Justice
[2022] AC 487 Lord Reed restated these principles at [54] to [59] and added that they do not preclude “incremental development” of Convention jurisprudence by a domestic court “based on the principles established by the European Court”.
35.
Section 3 deals with the interpretation of domestic legislation. Section 3(1) provides:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”
36.
Article 9 of the Convention provides:
“
Freedom of thought, conscience and religion
1.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2.
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”
37.
Article 10 provides:
“
Freedom of expression
1.
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”
38.
Article 11 provides:
“
Freedom of assembly and association
1.
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2.
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.
39.
Article 1 of the First Protocol (“A1P1”) to the Convention provides:
“
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
DPP v. Ziegler
40.
Ms Montgomery submits that the Supreme Court decided that a conviction for any offence arising out of a peaceful protest involves a restriction upon the exercise of rights under articles 9, 10 or 11 of the Convention and consequently, the prosecution must prove that the conviction would be justified and proportionate, through a fact-sensitive assessment applying the factors set out in
Ziegler.
In
DPP v. Cuciurean
[2022] EWHC 736 (Admin); [2022] 3 WLR 446 the Divisional Court rejected a similar submission, holding that the decision of the Supreme Court did not lay down any such broad principle, being concerned solely with section 137 of the Highways 1980 Act: unlawful obstruction of the highway. Ms Montgomery submits that
Cuciurean
was wrongly decided on that point.
41.
The arguments now advanced by Ms Montgomery formed part of an application to the Divisional Court in
Cuciurean
to certify points of law of general public importance for consideration by the Supreme Court and to grant leave to appeal. The Divisional Court did both and arrangements were made for the appeal to be heard in the Supreme Court before the end of July 2022. Mr Cuciurean decided not to proceed with his appeal. Nonetheless, points arising from the decision in
Zeigler
were argued in the Supreme Court in
Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill
on 19 and 20 July 2022. Judgments are awaited. We mention this only to put down the marker that whatever we may say or decide regarding the reach of
Zeigler
is likely soon to be subject to some clarification from the Supreme Court.
42.
Despite the skill and courtesy with which Ms Montgomery argued this point (two members of this court formed the Divisional Court in
Cuciurean)
we are unpersuaded that the conclusion in
Cuciurean
was wrong
.
We adhere to the conclusion at [89(1)] that
Zeigler
“does not lay down any principle that for all offences arising out of “non-violent” protest the prosecution has to prove that a conviction would be proportionate to the defendant’s rights under articles 10 and 11 of” the Convention, for the reasons given in the judgment.
43.
This argument resonates in this reference because the defendants contended that their conduct was peaceful and non-violent for the purposes of the Convention with the consequence, if that is right, that a proportionality exercise was necessarily called for.
DPP v. Cuciurean
44.
The main issue in
Cuciurean
was whether proof of the ingredients of the statutory offence of aggravated trespass without more made any conviction proportionate in Convention terms. If so, there was no need for a fact-sensitive assessment of the kind described by the Supreme Court in
Ziegler.
45.
The Divisional Court accepted that contention. The decision in
Bauer v Director of Public Prosecutions (Liberty Intervening)
[2013] 1 WLR 3617 dealt specifically with aggravated trespass and directly supported the prosecution’s submission: see
Cuciurean
at [54] to [56].
46.
James v Director of Public Prosecutions
[2016] 1 WLR 2118 distinguished between two categories of offence. First, offences where, once the specific ingredients have been proved, the defendant’s conduct has gone beyond what could be described as reasonable conduct in the exercise of Convention rights. “The necessary balance for proportionality is struck by the terms of the offence-creating provision, without more ado”: Ouseley J at [35] relying on
Bauer
as deciding that aggravated trespass was an example of such an offence. See also
Cuciurean
at [58]).
James
at [34] identified a second category of offence where conduct amounting to an offence engages the freedoms of expression and of assembly, but the ingredients of the offence do not in themselves render prosecution proportionate. Some legislation provides a defence which enables a fact-specific assessment of proportionality to be made in each case, and so is straightforwardly compliant with the Convention. Cases falling within this second category include
Norwood v DPP
[2002] EWHC 1564 (Admin);
Hammond v. DPP
[2004] EWHC 69 (Admin). Those cases concerned the offence of causing harassment, alarm or distress under section 5 of the Public Order Act 1986. They involved the use of words and/or the display of writing which was said to be threatening or abusive. Section 5(3) provides a defence where the accused’s conduct was “reasonable.”
47.
James
was concerned with a breach of a direction imposing conditions on a public assembly contrary to section 14 of the 1986 Act. The court treated that offence as analogous to
Bauer
and falling within the first category. A conviction depended upon the prosecution proving that a police officer had reasonably believed the assembly might result in serious public disorder, serious damage to property, or serious disruption to the life of the community or that the organisers were seeking to intimidate others and had imposed a condition appearing to him to be necessary to prevent such disorder, damage, disruption or intimidation. Proof of the ingredients of the offence as enacted by Parliament demonstrates the proportionality of the condition, non-compliance with which underlies a conviction for the offence (
James
at [38] to [43] and
Cuciurean
at [57] to [60]).
48.
Cuciurean
also referred to common law offences where proof of the ingredients of the offence without more renders a conviction proportionate to any interference with articles 10 and 11, in so far as those rights are engaged. In Scotland that applies to the offence of breach of the peace (
Gifford v HM Advocate
[2012] SCCR 751). In England and Wales the Court of Appeal endorsed a concession by counsel that this principle applies to the offence of public nuisance (
R v. Brown
[2022] 1 Cr. App. R. 18 at [37]).
49.
In
Cuciurean
the Divisional Court placed offences under section 137 of the Highways Act in the second category: [63]. A peaceful protest on a public highway engages articles 10 or 11 even if it involves some degree of obstruction. Section 137 criminalises wilful obstruction of a highway without lawful authority or excuse. Mere proof of wilful obstruction of a highway does not suffice by itself to address proportionality. Consequently, a fact-sensitive assessment is required.
50.
Given the nature of section 137, the Supreme Court in
Ziegler
had no need to address the line of authority which has established the first category of offence:
Cuciurean
at [65]. We do not consider that there is anything in the Supreme Court’s decision which casts doubt on the effect of that line of authority.
51.
Cuciurean
did not suggest that all offences, or even all public protest offences, can be placed into one of the two categories identified in
James
. There may be offences where articles 10 and 11 are engaged, but proof of the ingredients of the offence does not in itself satisfy proportionality and where there is no defence, such as lawful or reasonable excuse, through which proportionality may be assessed on the facts of the case. A mechanism may then be needed to enable a freestanding proportionality assessment to be made. In an appropriate statutory context, section 3 of the 1998 Act may provide an avenue to secure compliance with the Convention: (see e.g.
Connolly v. DPP
[2008] 1 WLR 276 at [18]). If section 3 does not enable a statutory offence to be interpreted compatibly with the Convention, then the question of a declaration of incompatibility under section 4 of the 1998 Act might arise: [69] to [72] at an appellate stage.
52.
A defence of lawful or reasonable excuse will provide a route by which a proportionality assessment may be carried out if the prosecution must prove that a conviction would be a proportionate interference with Convention rights. That becomes necessary only if (a) Convention rights are engaged in the circumstances of the case and (b) the ingredients of the offence do not themselves strike the appropriate balance so that a case-specific assessment is required.
53.
Ms Montgomery submits that
Cuciurean
and
James
were wrongly decided as a matter of legal principle. She says that the enactment of a criminal offence by Parliament may not be treated by the courts as a general measure which in itself addresses proportionality, thus making a case-by-case assessment unnecessary. She bases this submission in part upon the decision of the Supreme Court in
Ziegler
(e.g. at [59] to [60]). But, as we have explained, the Supreme Court did not lay down a general principle applicable to any criminal offence where Convention rights are engaged, thereby
sub silencio
overruling cases such as
Bauer
and
James
. Ms Montgomery also submits that
Cuciurean
and like decisions are inconsistent with Strasbourg case law on general measures, to which we now turn.
General Measures and Proportionality
54.
We begin with
Animal Defenders International v. United Kingdom
(2013) 57 EHRR 21. The Grand Chamber of the Strasbourg Court reviewed its jurisprudence on general measures. The case was concerned with the alleged incompatibility with article 10 of a statutory prohibition on advertisements for political purposes. It was agreed that the prohibition amounted to an interference with the applicant’s article 10 rights and that it pursued legitimate aims of preserving the impartiality of broadcasting and protecting the democratic process. The issue was whether the prohibition was necessary in a democratic society: [78].
55.
The court referred to the long-established principle that freedom of expression is one of the essential foundations of a democratic society. It includes pluralism and tolerance, even of views that are offensive or shocking. Exceptions to freedom of expression must be construed strictly and the need for any restrictions established convincingly: [100] and [101]. There is a strong public interest in broadcasting media imparting information and ideas on matters of public interest, which the public has a right to receive. Accordingly, the margin of appreciation for the state is a narrow one: [102] to [105]. Nevertheless, the Court concluded that the prohibition was a proportionate measure. There was no violation of article 10: [113] to [125].
56.
On the use of general measures, the Court said:
i)
A state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case, even if this might result in individual hard cases: [106]
ii)
The Strasbourg Court attaches particular importance to the quality of the parliamentary and judicial
review of the necessity of a measure: [108]
iii)
A general measure may be found to be a more feasible means of achieving a legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk
inter alia
of
significant uncertainty, or arbitrariness: [108]
iv)
The more convincing the justifications for a general measure, the less importance will be given to its impact in particular cases: [109]
v)
The central question is not whether less restrictive rules should have been adopted, or whether, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether in adopting the general measure and striking the balance the legislature acted within its margin of appreciation: [110]
57.
Ms Montgomery emphasises the importance attached by the Strasbourg Court in that case to the public consultation which had taken place and the reviews by Parliament and by the courts on the statutory prohibition of political advertising: [114]. She submits that it was significant that the 1971 Act had been enacted many years before the Human Rights Act and there was no suggestion the Parliament considered Convention rights.
58.
Although the Strasbourg Court acknowledged that the process of consultation and Parliamentary review had been exceptional in that case ([114]), two points should be noted. First, the court did not suggest that that level of Parliamentary review was necessary for establishing that a general statutory measure is proportionate. Secondly, the court attached no less importance to the consideration by domestic courts of Convention case law and proportionality issues: [115] to [116].
59.
The approach of the Strasbourg Court to Parliamentary materials in deciding questions of proportionality does not translate to domestic courts. The issue arose in the Supreme Court in
R (SC) v Secretary of State for Work and Pensions
[2022] AC 223
.
Lord Reed explained how the proportionality of a general measure enacted by Parliament should be assessed in the context of this country’s constitutional principles: [163] to [185]. These include Parliamentary process and privilege and the separation of functions between the Executive, Legislature and the Courts. The following points emerge:
i)
When a court assesses the proportionality of legislation the facts will often speak for themselves. But Parliamentary materials may provide additional background information on the “mischief” or social problem at which the legislation is aimed and thus its underlying rationale: [173] to [174]
ii)
The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it during a debate or by the subjective state of mind of individual ministers or members. It cannot be assumed that members necessarily agreed with statements made during a debate but may have had other reasons for approving legislation. Accordingly, recourse to Hansard will seldom be necessary: [175] to [176]
iii)
Lack of cogent justification during a Parliamentary debate does not count against the legislation on issues of proportionality. The court evaluates the proportionality
of the legislation
, not the adequacy of a minister’s exploration of policy options or his explanations to Parliament: [176]
iv)
The degree of respect to be shown by the courts to the considered judgment of Parliament will vary according to the circumstances. Relevant factors include whether the legislation is recent or dates from an age with different values, and whether Parliament can be taken to have made its own judgment on the issues which are relevant to the court’s assessment: [179] to [181]
60.
Then at [182]:
“It is of course true that the relevant question, when considering the compatibility of legislation with Convention rights, is not whether Parliament considered that issue before making the legislation in question, but whether the legislation actually results in a violation of Convention rights. In order to decide that question, however, the courts usually need to decide whether the legislation strikes a reasonable balance between competing interests, or, where the legislation is challenged as discriminatory, whether the difference in treatment has a reasonable justification. If it can be inferred that Parliament formed a judgment that the legislation was appropriate notwithstanding its potential impact upon interests protected by Convention rights, then that may be a relevant factor in the court’s assessment, because of the respect which the court will accord to the view of the legislature
. If, on the other hand, there is no indication that the issue was considered by Parliament, then that factor will be absent. That absence will not count against upholding the compatibility of the measure: the courts will simply have to consider the issue without that factor being present, but nevertheless paying appropriate respect to the will of Parliament as expressed in the legislation
.” (emphasis added)
61.
Lord Reed added two caveats. First, the courts should not go beyond considering
whether
matters relevant to compatibility with Convention rights were raised during the legislative process. Given Article 9 of the Bill of Rights 1688, it is not legitimate for the courts to determine the adequacy or cogency of any Parliamentary consideration of such matters: “a high-level review of whether a topic was raised before Parliament, whether in debate or otherwise, should suffice”. Secondly:
“the courts must not treat the absence or poverty of debate in Parliament as reasons supporting a finding of incompatibility”
62.
Accordingly, when a general measure is contained in legislation predating the 1998 Act a court may conclude that it adequately addresses proportionality in relation to Convention rights shown to be engaged, with the result that a case-specific assessment is not required. Equally, the fact that Parliament did not consider issues relevant to Convention rights or proportionality when enacting a criminal offence does not make it inappropriate to apply the principles based upon
James
and
Cuciurean
.
63.
Ms Montgomery submits that the approach taken in
Animal Defenders
is inapplicable to a prosecution and conviction for a criminal offence. Strasbourg case law suggests that when people are prosecuted for criminal offences where Convention rights are engaged, they may not be convicted unless the court decides that would be proportionate following a fact-specific evaluation. She relies upon the decision of the Grand Chamber of the Strasbourg Court in
Perincek v. Switzerland
(2016) 63 EHRR 6 at [275].
64.
In that case the applicant made statements at public conferences and a rally that the Armenian genocide had not taken place. He was convicted of an offence which included stirring up racial hatred and trivialising a genocide on racial grounds: [32]. The Strasbourg Court considered whether the Swiss authorities, including the courts, had struck a proper balance between the applicant’s rights under article 10 and the right of the Armenian people to protection of their dignity under article 8.
65.
At [102] to [106] the Court restated general principles on the protection of freedom of expression, as summarised in
Animal Defenders
. At [198] to [199] it addressed balancing articles 8 and 10. Despite the importance attached to freedom of expression, rights under article 8 “deserve equal respect”. The choice of the means to secure compliance with article 8 and the assessment of whether and to what extent an interference with article 10 is necessary are both matters falling within the individual state’s margin of appreciation.
66.
We see no reason why the same approach should not be taken where the balance falls to be struck between articles 9, 10 and 11 on the one hand and the protection of property, for example under A1P1, on the other.
67.
At [272] the court referred to
Animal Defenders
as one of two cases where the interference with article 10 rights resulted from a “regulatory scheme”. By contrast, interference in the form of a criminal conviction that could result in imprisonment, has more serious consequences for the citizen and calls for stricter scrutiny. A criminal conviction is one of the most serious forms of interference with the right to freedom of expression: [273].
68.
However, does “stricter scrutiny” mean that a fact-sensitive proportionality assessment must be carried out in every case where criminal conduct engages Article 9, 10 and 11 rights? Or can the call for stricter scrutiny be satisfied by a court deciding whether proof of the ingredients of a particular offence is sufficient for a conviction to be proportionate to the interference with the accused’s Convention rights? We conclude that the answers are “no” to the first question and “yes” to the second. But where the court decides that proof of the ingredients of a particular offence does not in itself demonstrate proportionality, then a fact-sensitive assessment will generally be required, unless that would be inconsistent with the statutory language governing the offence.
69.
Paragraph [275] of the judgment reads:
“When proposing the enactment of what would later become art.261bis(4) of the Criminal Code, the Swiss Government referred to the potential conflict between, on the one hand, the imposition of criminal penalties for the conduct outlawed under the intended provision and, on the other, the rights to freedom of opinion and association guaranteed under the Swiss Constitution of 1874, then in force, explaining that the two needed to be balanced in individual situations in such a way that only truly blameworthy cases would result in penalties. These concerns demonstrated that in applying that provision in individual cases the Swiss courts needed carefully to weigh the countervailing interests.
Indeed, an interference with the right to freedom of expression that takes the form of a criminal conviction inevitably requires detailed judicial assessment of the specific conduct sought to be punished.
In this type of case, it is normally not sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general terms; what is rather required is that it was necessary in the specific circumstances.” (emphasis added).
70.
Ms Montgomery emphasises the sentence we have italicised as laying down a general principle requiring a fact-specific proportionality assessment before a person may be convicted. We do not agree. The court went on to say “in this type of case” breach of a general measure is “normally” insufficient. The court did not lay down an absolute principle, nor did it indicate circumstances in which it would not apply.
71.
More importantly, the type of case which the court was considering was explained in the first part of [275]. In proposing the legislation the Swiss Government had recognised that the new criminal offence conflicted with freedoms of expression and assembly, such that the two would need to be “balanced in individual situations” so that “only truly blameworthy cases would result in penalties”. In other words, the promoter of the legislation accepted that proof of the ingredients of the offence would be insufficient to satisfy the proportionality balance without more. In addition, this was a case where the domestic courts had not addressed the balance themselves: [276] to [278]. Moreover, the prohibition was on expressing a view, rather than a restriction in the manner in which it might be expressed.
72.
Ultimately, the Grand Chamber considered that the conviction amounted to a violation of the applicant’s article 10 rights because his statements bore on a matter of public interest, did not amount to a call for hatred or intolerance and could not be regarded as affecting the dignity of members of the Armenian community.
73.
Ms Montgomery also relies upon
Handzhiyski v. Bulgaria
(App. No. 10783/14; (2021) 73 ECHR 15) where the Strasbourg Court said this at [52] citing
Perincek
:
“When an interference with the right to freedom of expression takes the form of a “penalty”, it inevitably calls for a detailed assessment of the specific conduct sought to be punished. It cannot normally be justified solely because the expression at issue was caught by a legal rule formulated in general terms”.
74.
That statement is caveated as before with the word “normally” and so cannot be said to lay down a clear-cut rule. The applicant had been convicted of an offence of “minor hooliganism” which was expressed in broad terms, including “showing an offensive attitude towards citizens, public authorities or society” which breaches public order and quietness: [23]. Mr Handzhiyski had placed a Santa Claus cap on the head of a statue of a political figure and a sack at its base as part of a protest against the government. The action taken by the authorities sought to criminalise conduct which amounted to nothing more than the exercise of article 10 rights by carrying out a peaceful protest, and a very modest one at that. One can well understand that proof of the ingredients of the offence would not render a conviction proportionate.
75.
Of more relevance for our purposes is the following passage at [53]:
“Public monuments are frequently physically unique and form part of a society’s cultural heritage. Measures, including proportionate sanctions, designed to dissuade acts which can
destroy them or damage their physical appearance
may therefore be regarded as “necessary in a democratic society”,
however legitimate the motives which may have inspired such acts
. In a democratic society governed by the rule of law,
debates about the fate of a public monument must be resolved through the appropriate legal channels
rather than by covert or violent means.” (emphasis added)
This is consistent with the proposition that a general measure may criminalise the destruction of, or significant damage to, a public monument, so that proof of the ingredients of that offence sufficiently addresses the proportionality of a conviction. Paragraph [53] does not suggest that a fact specific assessment is always required before a conviction may result for an offence of that kind.
76.
The Strasbourg Court decided that the applicant did not engage in any form of violence and did not physically harm the statue: [54]. At [55] it continued:
“When it comes to such acts – which, though capable of profaning a monument,
do not damage it
– the question whether it can be “necessary in a democratic society” to impose sanctions in relation to them becomes more nuanced. In such situations, the precise nature of the act, the intention behind it, and the message sought to be conveyed by it cannot be matters of indifference. For instance, acts intended to criticise the government or its policies, or to call attention to the suffering of a disadvantaged group cannot be equated to acts calculated to offend the memory of the victims of a mass atrocity. The social significance of the monument in question, the values or ideas which it symbolises, and the degree of veneration that it enjoys in the respective community will also be important considerations.” (emphasis added)
77.
The distinction between the principles set out in [53] and [55] was repeated and applied in
Genov v. Bulgaria
(App No. 52358/15). The clear implication of this passage is that prosecuting those who damage monuments and statues is proportionate.
78.
We conclude that the Strasbourg case law does not support the proposition that a general criminal measure may not, in itself, strike a proportionality balance. Rather, the overall effect of the case law is to the contrary. Accordingly, compatibly with the Convention, a criminal offence may comprise ingredients, the proof of which is sufficient to render a conviction proportionate to any interference with rights under Articles 9, 10 and 11. A fact-sensitive proportionality assessment is unnecessary for a person to be convicted of such an offence.
The scope of the protection given to protest by Convention rights
79.
The parties agree that any difference between articles 9, 10 and 11 has no material impact on the protection given by the 1998 Act to protest for the purposes of this Reference.
80.
It is a well-established principle that the rights to freedom of expression and assembly are not to be interpreted restrictively. The rights cover private meetings and meetings in public places, whether static or in the form of a procession, and may be exercised by both the organisers of, and participants in, a gathering:
Kudrevičius
at [91].
81.
Likewise, article 10 affords a broad protection to “expression”. This refers not only to verbal expression but also to “expressive acts” (
Women on Waves v. Portugal
(App No. 31276/05) at [30];
Alekhina v. Russia
(2019) 68 EHRR 14 at [197] and [202] to [206]).
82.
However, article 11 only protects the right to “peaceful assembly”. That term does not cover a protest where the organisers or participants engage in violence, have violent intentions, incite violence or otherwise “reject the foundations of a democratic society”:
Kudrevičius
at [92].
83.
Mr Little suggests that the protest in Bristol involved the rejection of the foundations of a democratic society. In Strasbourg case law that concept typically refers to expression or an assembly which is aimed at negating democratic principles (see e.g.
Vona v. Hungary
(App No. 35943/10) at [63]). That does not arise here.
84.
The rights of a peaceful protestor are not lost because of sporadic violence “or other punishable acts” committed by other persons during the protest if the individual in question remains peaceful in his or her own intentions and behaviour. The possibility of other persons with violent intentions joining a demonstration does not in itself take away the right of peaceful protest:
Kudrevičius
at [94];
Primov v. Russia
at [155];
Ziegler
at [69]). Individual conduct which is not peaceful or is violent does not attract the protection of the Convention.
85.
Ms Montgomery points to the principle that exceptions to the freedoms of expression and assembly must be interpreted narrowly (see e.g.
Kudrevičius
at [142] and
Navalny v. Russia
(2014) 68 EHRR 25 at [137]). Read in context those passages refer to “restrictions” on the exercise of Convention rights, in particular those set out in articles 10.2 and 11.2. Those passages were not dealing with matters which fall outside the protection of articles 10 and 11 altogether, such as violence or activity which is not peaceful.
86.
Furthermore, the Strasbourg case law distinguishes conduct which falls outside a Convention right from conduct which is protected by that right but does not lie at its “core”. For example, protest by physical conduct deliberately obstructing traffic on the highway and the ordinary course of life, in order seriously to disrupt the activities of others, engages Convention rights but it does not lie at the core of those rights. This is a factor which affects the proportionality balance. It may justify criminal sanctions:
Kudrevičius
at [97] and [101], [156] to [157] and [172] to [174];
Ziegler
at [67];
Cuciurean
at [36] to [38] and [76].
87.
The ordinary meaning of violence includes “the exercise of physical force so as to cause injury or damage to a person, property, etc” (Shorter Oxford English Dictionary). Violence is not confined to assaults on the person but may include damage to property; and neither is the concept of “peaceful assembly” defined by an absence of violence to the person or property. Indeed, it is not difficult to envisage a demonstration at which no violence to the person or property occurs, but which could not be characterised as peaceful, not least if it is intimidatory or causes alarm or distress. There is relatively little Strasbourg authority on cases of physical damage caused during protest. There is none to which our attention has been drawn that demonstrates that all damage to property, however trivial, would result in the perpetrator losing the protection of the Convention. Most of the cases concern damage to public property incidental to a demonstration. Several of the decisions focus on whether the punishment was disproportionate rather than the issue with which we are concerned, namely the proportionality of a conviction in Convention terms.
88.
Handzhiyski
at [53], to which we have already referred, includes the Strasbourg Court’s statement that the fate of a public monument must be resolved through “appropriate legal channels rather than by covert or violent means”. In our view the nature of the conduct leading to such destruction or damage may often not properly be described as “peaceful” and so fall outside the protection of the Convention altogether. In any event, measures criminalising the destruction of or damage to such a statue or monument are proportionate. It is, at least in theory, possible to cause significant financial damage to property without being violent. Smashing something with a hammer would be violent but it would be possible to cause as much financial damage to many objects by quiet and calm action. Either way, conviction for the conduct would not offend the Convention rights of the perpetrator. If it was violent and not peaceful it would fall outside the protection of the Convention altogether. If significant damage were caused, even if “peacefully”, it would not even be arguably disproportionate to prosecute and convict for criminal damage.
89.
Statues and public monuments are frequently the focus of protest, but the significance which the Strasbourg Court placed upon destruction or significant damage in
Handzhiyski
cannot logically be confined to public monuments. Setting fire to a building or vehicle during a protest, breaking windows, trashing property and the like should be considered in the same vein. We understood Ms Montgomery to submit that even in the face of such conduct a court would be obliged in every prosecution to undertake a proportionality exercise in accordance with the second part of the article of the Convention in question. That would include balancing the right to protest in this way against the property rights of owners before convicting. The Strasbourg caselaw does not support such an approach.
90.
Moreover, we do not accept the distinction which Ms Montgomery seeks to draw between violence to the person (which she accepts does not attract the protection of the Convention) and damage to property. The submission is founded on a comment in
Taranenko v. Russia
(app. no. 19554/05) at [93], where the Court said that “the protesters’ conduct, although involving a certain degree of disturbance and causing some damage, did not amount to violence.” That comment must be understood in the context of the complex facts and complaints in the case and the offences for which the applicant had been prosecuted and convicted. The First Section of the Strasbourg Court was not suggesting that damage to property could not be “violent”, a proposition which would have far-reaching consequences, not least in encouraging what on any straightforward view could be violent and destructive behaviour. That would negate the principles that underlie the Convention. The comment does, however, suggest that the court would not include all damage to property as necessarily being violent or non-peaceful for the purposes of the Convention. As it happens, the violation of the Convention found by the court did not relate to the applicant’s conviction for “participation in mass disorder” but to the sentence imposed.
91.
The Strasbourg Court has considered incidents concerning statues in several cases. None of them involved destruction or significant damage.
92.
For example, in
Ibrahimov v. Azerbaijan
(App. No. 63571/16) the applicants sprayed graffiti on the statue of the former President who was the father of the incumbent President. The actions were in protest against the government of Azerbaijan. They were not charged with any offence to do with that conduct. They were detained and prosecuted for fabricated drug related offences as punishment for their political protest. The Strasbourg Court found violations of article 5 (arbitrary detention) and article 18 (improper use of restrictions permitted by the Convention). At [171] the court decided that the prosecution amounted to an interference with the applicant’s article 10 rights having concluded that spraying graffiti on the statue was a form of political expression: [165] to [167].
93.
It was common ground that spraying graffiti on a statue (which would at least put the state to the expense of cleaning it) “to express … dissatisfaction with government policies” was conduct which fell within the ambit of article 10 of the Convention. Having decided that there was an interference with the applicants’ article 10 rights it was for the state to show, in accordance with article 10.2, that the interference was “prescribed by law”, pursued a legitimate aim and was proportionate. They failed to do so in fundamental terms. The finding of a violation of article 10 was summarised as follows:
“173.
… In the present cases the Court observes that the applicants’ criminal prosecution was not formally related to their having sprayed graffiti on the statue (compare
Murat Vural,
para. 55, and
Shvydka,
para 39 …). Instead of acting within the constraints of the law, the authorities chose to prosecute the applicants for drug-related crimes in relation to their actions. The Court considers that such interference with the applicant’s freedom of expression was not only unlawful, but it was also grossly arbitrary and incompatible with the rule of law …
174.
There has been accordingly a violation of Article 10 of the Convention.”
94.
The implication of these observations is that, had the prosecution related to spray-painting the statue, a conviction for an appropriate offence would have been treated differently.
95.
In
Murat Vural v. Turkey
(App. No. 9540/07) the applicant was convicted of “dirtying” statues of Atatürk. The offence in question prohibits public insults to his memory. The applicant was dissatisfied with a decision of the Ministry of Education refusing to appoint him to a teaching post. He poured paint over the statues in protest at that decision and more widely at the way the country was governed.
96.
The Strasbourg Court discussed the wide protection article 10 provides to the way in which ideas are expressed ([44] et seq) before concluding:
“52.
The examples referred to above show that all means of expression are included in the ambit of Article 10 of the Convention. The Court has repeatedly stressed that there is little scope under Article 10.2 of the Convention for restrictions on political speech or on debate on questions of public interest. … In the same vein, it considers that an assessment of whether an impugned conduct falls within the scope of Article 10 of the Convention, should not be restrictive, but inclusive.
54.
… in deciding whether a certain act or conduct falls within the ambit of Article 10 of the Convention, as assessment must be made of the nature of the act or conduct in question, in particular of its expressive character seen from an objective point of view, as well as of the purpose or the intention of the person performing the act or carrying out the conduct in question.”
97.
It was significant that the applicant had not been convicted of vandalism but of having insulted the memory of Atatürk. The conviction and sentence amounted to an interference with the applicant’s article 10 rights: [55] and [56]. The court continued by noting that the applicant’s complaint was that “his actions had been severely and disproportionately punished”. At [60] the court found that the interference was prescribed by law and pursued a legitimate aim. The question was one of proportionality. At [65] the court recognised the “iconic” status of Atatürk and the choice made by Parliament to criminalise insulting his memory. At [66] it noted the “extreme severity of the penalty” and said:
“ … In principle the court considers that peaceful and non-violent forms of expression should not be made the subject of the threat of imposition of a custodial sentence. … While in the present case, the applicant’s acts involved a physical attack on property, the Court does not consider that the acts were of a gravity justifying a custodial sentence …
68.
… the Court concludes that the penalties imposed on the applicant were grossly disproportionate to the legitimate aim pursued and were therefore “not necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention.”
98.
Once more, the implication of these observations is that a conviction founded on the physical attack would have been proportionate subject to the penalty imposed. Furthermore, criminalising insults to the memory of Atatürk would not in itself be a disproportionate interference with Convention rights.
99.
Shvydka v. Ukraine
(App. No. 17888/12) concerned the applicant’s conviction for “petty hooliganism”. She had removed a ribbon from a wreath laid at a monument by the President Yanukovych bearing his name and title, to express her opposition to him: [5] to [8]. The wreath itself has not been damaged although the ribbon was. The Strasbourg Court treated her act as a form of “political expression” ([38]) and decided that a sentence of 10 days detention had been disproportionate and therefore a violation of her article 10 rights.
100.
In
Genov
the applicants were convicted of “hooliganism”, defined broadly as the carrying out of indecent actions grossly infringing public order and showing overt disrespect towards society. The applicants had spray-painted a public monument as a political protest against the government. The paint was later cleaned from the monument. The Strasbourg Court applied the distinction in
Handzhiyski
between measures prohibiting the destruction or damaging of a monument and acts which, although capable of profaning a monument, did not damage it. Accordingly, the court said that the first question was whether the statue had been damaged: [75] to [77].
101.
The court concluded that the spray-painting caused “some inconvenience and expense to eliminate” but did no harm to the monument. Indeed, the court which convicted the applicants had found that there was no pecuniary damage and there was no evidence of the cost involved in cleaning. The fines imposed on the applicants were not compensatory. The applicants’ act had “not affected the monument to a degree sufficient to consider that it damaged it”: [78] to [80]. The issue whether it was necessary to penalise their acts had to be assessed in the light of the context-specific factors referred to in paragraph [55] of
Handzhiyski
. That context included expressing disapproval of the government’s parliamentary record, a condemnation of its role during the communist period in Bulgaria (which had been condemned by the legislature as “criminal” and “aimed at suppressing human rights and the democratic system”). The court decided that the convictions and penalties had not been necessary in a democratic society: [81] to [84]).
102.
This review of Strasbourg authority has concerned cases of protest or political expression aimed at governments and involving public property rather than private property. In the context of public property, damage inflicted in a violent or non-peaceful manner attracts no Convention protection against prosecution and conviction; and nor does causing significant damage because its infliction could not sensibly be thought of as peaceful, alternatively prosecution and conviction would necessarily be proportionate. Moreover, there is no “clear and constant” jurisprudence of the Strasbourg Court that suggests that damaging private property during protest attracts the protection of the Convention in the first place or, in the second, that prosecution and conviction for damaging private property would be disproportionate even if it did. That is unsurprising because in addition to the usual questions about the applicability of a Convention right and then proportionality the A1P1 rights of the non-state owner are in play. We find it difficult to imagine that the Convention could ever be used to avoid conviction for damaging private property, even if very rarely it might be when considering damage to public property which is not significant. For domestic purposes, in our view, that is the position.
103.
Our attention was drawn to
Olga Kudrina v. Russia (
App. No.
34313/06)
. It
is factually complicated and concerned with a protest in August 2004 at the Ministry of Health and with a protest in May 2005 at the Rossiya Hotel in Moscow. Inferentially, the Court proceeded on the basis that the hotel was privately owned: [51]. The applicant denied being present at the protest at the Ministry. The only evidence attesting to her presence was a written statement from a witness which was later retracted. She complained that her trial and conviction in connection with that protest for “gross breach of public order committed by an organised group and involving the use of weapons, and intentional destruction and degradation of others’ property in public places” was unfair and in breach of article 6 of the Convention. The Court found a violation of article 6 resulting from the failure of the criminal court to allow various witnesses to be questioned about whether she was present at the Ministry: [41].
104.
The applicant admitted taking part in the protest in May 2005 at the Rossiya Hotel for which she was convicted of the same offence. The applicant was one of two who climbed out of the window of their room at the hotel using rock-climbing equipment and hung an 11-metre poster saying “Go away Putin” on the outside wall of the hotel. They then started to wave signal flares and throw firecrackers and leaflets, which contained a series of political demands. After 40 minutes they were arrested. They offered no resistance. Some damage was caused although its extent is not described in the Court’s judgment. There had been evidence at trial that it had been paid for promptly by the applicant: [23].
105.
The applicant was sentenced to three and a half years in prison.
106.
The court discounted the first conviction when considering whether the punishment was proportionate because of doubts about the applicant’s presence at the ministry. It focused on the events at the hotel: [47]. In the discussion that followed between [51] and [55] there was no finding that her conviction for an offence arising out of the conduct at the hotel was disproportionate. Her arrest pursued the legitimate aim of preventing disorder and protecting the rights of others. Citing
Taranenko
at [78],
the court reiterated that article 10 does not bestow any freedom of forum for the exercise of that right and does not require the creation of rights of entry to private property or even to all publicly owned property, such as government offices and ministries. Since the everyday activities of the Rossiya Hotel were disrupted because of the protest, the police were justified in interfering with the expression of political opinions by the applicant with a view to restoring and protecting public order.
107.
At [53] the Strasbourg Court dealt with the proportionality of the conviction:
“The Court notes that the District Court condemned methods employed as being proscribed by the law (throwing firecrackers onto the street, attaching rock-climbing equipment in the hotel room in order to climb out of the 11th-floor room onto the exterior wall of the building, waving signal flares from side to side near flammable objects, and damaging the property of others). Seen from this angle
, the prosecution and conviction of the applicant were justified by the need to attribute responsibility for committing such acts and to deter similar crime, without regard to the context in which they had been committed
. Therefore, the Court accepts that the applicant’s conviction was based on relevant and sufficient reasons.” (emphasis added)
108.
However, the punishment was disproportionate. The court noted that the applicant’s conduct, although involving disturbance and causing some damage to property, did not incite or amount to violence. The sentence was “grossly disproportionate”.
109.
This is a recent decision of the Court (albeit not Grand Chamber), becoming final in July 2021. It recognises that the arrest of protesters will be necessary if there are public order implications or the rights of others to go about their business are being significantly disrupted. The facts giving rise to the prosecution in connection with the Rossiya Hotel protest show that the hurdle to be surmounted before a prosecution and conviction will be disproportionate despite interfering with rights to protest is not high. The words emphasised in [53] of the court’s judgment are unequivocal.
110.
More generally, this review of the Strasbourg jurisprudence shows that articles 9, 10 and 11 of the Convention do not protect conduct during a protest which causes damage to property from prosecution and conviction, regardless of the nature or extent of the damage caused. The conduct may not be peaceful, or conviction may be obviously proportionate. Equally, the jurisprudence does not support the proposition that the protection of the Convention is lost (alternatively prosecution and conviction would always be proportionate for an offence of causing damage) when
any
damage is intentionally (or recklessly) inflicted on property during protest, however minor. The approach of the Strasbourg Court is fact and context specific. Causing damage which is transient or insignificant has not been treated as placing the perpetrator outside the protection of the Convention altogether. In those cases, prosecution, conviction and punishment are considered as part of the proportionality exercise, the focus most often being on punishment.
The Domestic Context
111.
The question whether somebody should be prosecuted for criminal damage, leaving aside the rare possibility of a private prosecution, is a matter for the Crown Prosecution Service independently exercising its powers. It makes its decision applying the well-known evidential and public interest test to the question whether to prosecute. It produces publicly available guidance on the circumstances in which it will prosecute including “
Offences during Protests, Demonstrations or Campaigns”
. It must be sensitive to the Convention rights of protesters and its guidance demonstrates that decisions to prosecute will respect those rights. It is generally not the function of the trial court to second guess a prosecutorial decision and decisions to prosecute (or not) can be challenged in judicial review proceedings only exceptionally:
R (Corner House Research) v SFO
[2009] 1 AC 756 at [30] to [32]. The criminal court determines guilt or innocence (the function of the jury in the Crown Court) and imposes sentence in the event of a conviction.
112.
The common law has always been sensitive to the position of protesters when it comes to both prosecution and sentencing. Lord Hoffmann distilled the principles in
R v Jones (Margaret)
[2007] 1 AC 161 at [89]:
"89. My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions.”
113.
This is important because it demonstrates two things. First, the restraint shown by prosecutors should avoid prosecutions which are themselves disproportionate in Convention terms; and, secondly, disproportionate sentences are an unlikely outcome.
Question 1
114.
The first question asks whether once the prosecution has proved the two main ingredients for the offence of criminal damage under section 1(1) namely (a) that the defendant destroyed or damaged property belonging to another and (b) did so intentionally or recklessly, no question of proportionality under the Convention can arise. Mr Little submits that the answer is yes and the offence should be treated in a similar way to aggravated trespass in
Cuciurean
. He submits that the qualification in section 1 of the Criminal Damage Act 1971 (without lawful excuse) is not concerned with proportionality under the Convention but with other matters. Ms Montgomery submits the answer is no and that every prosecution for criminal damage arising out of a protest requires a proportionality assessment to be carried out by the fact-finder.
115.
We have concluded that prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the Convention either because the conduct in question was violent or not peaceful, alternatively (even if theoretically peaceful) prosecution and conviction would clearly be proportionate.
116.
The offence of criminal damage encompasses causing damage which is minor or temporary. Were a prosecution for criminal damage of that degree to be initiated arising out of a protest, the Strasbourg caselaw suggests that there would need to be a case-specific assessment of the proportionality of conviction at least in connection with damage to public property. We would expect that such prosecutions would not be launched because they too would be a disproportionate reaction to the conduct in question. Thus, scrawling a message on a pavement using water soluble paint might technically be sufficient to sustain a charge of criminal damage (see [29] above) but to prosecute or convict for doing so as part of a political protest might well be a disproportionate response. It follows that the answer to the first question is that the offence of criminal damage does not automatically fall within the category of offences identified in
James
and in
Cuciurean
whereby proof of the relevant ingredients of the offence is sufficient to justify
any
conviction as a proportionate interference with any rights engaged under articles 9, 10 and 11, without the need for a fact-specific proportionality assessment in individual cases. That said, the circumstances in which such as assessment would be needed are very limited.
Questions 2 and 3
117.
It was common ground before us that it would be convenient to deal with these two questions together. Question 2 is a broad one asking what principles judges in the Crown Court should apply when determining whether the qualified rights found in articles 9, 10 and 11 of the Convention are engaged by the potential conviction of defendants for acts of damage during protest. Question 3 asks in what circumstances the question of proportionality should be withdrawn from the jury.
118.
When considering whether an issue should not be left to the jury, we have well in mind two principles. First, the judge may not direct a jury to convict. But that prohibition is to be distinguished from circumstances in which a judge is entitled to withdraw an issue from the jury, or where an issue does not arise on the evidence and so no direction need be given about it to the jury (
R v. Wang
[2005] 1 WLR 661 at [3] and [8] to [14]). Secondly, a judge may withdraw an issue from the jury if no reasonable jury properly directed could reach a particular conclusion (e.g. that the defendant might have acted under duress (
R v. Bianco
[2001] EWCA Crim 2516 at [15]); that the defendant might have a “reasonable excuse” (
R v. Nicholson
[2006] 1 WLR 2857 at [9];
R v. G
[2010] 1 AC 43, 87D); or loss of self-control (
R v. Martin
[2017] EWCA Crim 1359 at [39]).
119.
The context of these issues is a trial in the Crown Court in respect of damage which exceeds £5,000 in value.
120.
The Convention does not provide protection to those who cause criminal damage during protest which is violent or not peaceful. Neither does it provide protection when the damage is inflicted violently or not peacefully. Articles 9, 10 and 11 are not engaged in those circumstances and no question of proportionality arises. Moreover, prosecution and conviction for causing significant damage to property, even if inflicted in a way which is “peaceful” could not, in our view, be disproportionate in Convention terms. Given the nature of cases that are heard in the Crown Court it is inevitable that, for one or both of these reasons, the issue should not be left to the jury. That will be because the conduct in question was on any view not peaceful, alternatively the damage was significant, or both.
121.
It is at least theoretically possible that cases involving minor or trivial damage to property may arise in the Magistrates’ Court albeit that the threshold of “significant damage” would be crossed a long way below that statutory divide. In those circumstances, the Strasbourg case law suggests that conviction may not be a proportionate response in the context of protest although sentence has been the focus in determining proportionality. Whatever may be the position with public property, we cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial. It is essential that prosecutorial discretion on whether to proceed to trial be exercised carefully, applying the Code for Crown Prosecutors in the context of the principles governing articles 9, 10 and 11 with a clear eye on the proportionality of prosecution and conviction.
This case
122.
Although this case did not involve the destruction of the statue, the damage that was caused was clearly significant. Pulling this heavy bronze statue to the ground required it to be climbed, ropes attached to it and then the use of a good deal of force to bring it crashing to the ground.
Handzhiyski
makes it clear that the debate about the fate of the statue had to be resolved through appropriate legal channels, irrespective of evidence that those channels were thought to have been slow or inefficient, and not by what might be described as a form of criminal self-help.
123.
The circumstances in which the statue was damaged did not involve peaceful protest. The toppling of the statute was violent. Moreover, the damage to the statue was significant. On both these bases we conclude that the prosecution was correct in its submission at the abuse hearing that the conduct in question fell outside the protection of the Convention. The proportionality of the conviction could not arise for consideration by the jury. We emphasise that this is not to suggest that the defendants were in fact guilty of the offence of criminal damage. We have explained (see [2] above) that the jury was concerned with a range of defences. | {"ConvCourtName":["Crown Court at Bristol"],"ConvictPleaDate":["2022-01-05"],"ConvictOffence":["Criminal damage to property contrary to section 1(1) of the Criminal Damage Act 1971"],"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":["Organisation"],"VicNum":["1"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[3],"AppealAgainst":["Point of law"],"AppealGround":["Whether conviction for criminal damage during protest is a disproportionate interference with rights under Articles 9, 10, 11 ECHR"],"SentGuideWhich":["section 1(1) of the Criminal Damage Act 1971","Articles 9, 10, 11 of the European Convention on Human Rights"],"AppealOutcome":["Opinion given (reference answered)"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
No:
200805019/A4
Neutral Citation Number:
[2009] EWCA Crim 173
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 3 February 2009
B e f o r e
:
LORD JUSTICE STANLEY BURNTON
MR JUSTICE TREACY
MRS JUSTICE SLADE DBE
- - - - - - - - - - - - - -
R E G I N A
v
GAVIN LEE ELLIS
- - - - - - - - - - - - - -
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 R J Hallowes
appeared on behalf of the
Applicant
- - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE STANLEY BURNTON: This is a renewed application for leave to appeal against a sentence imposed on Gavin Lee Ellis, a young man aged 28, who, on 5 August 2008 at Guildford Crown Court, pleaded guilty to an offence of aggravated burglary and agreed that one other offence of burglary was to be taken into consideration, and who, on 5 September 2008, was sentenced by His Honour Judge Critchlow to seven years' imprisonment.
2.
The facts of the very nasty aggravated burglary involved in the index offence are these. The complainants were Jason Boyce and his girlfriend, Leanne Oliver, aged 21 and 20 respectively. Boyce lived with his mother and his eight year old brother in South Godstone.
3.
Just before 8.00 am on 20 May 2007 Boyce was at home in bed with Miss Oliver. His eight year old brother was asleep in another bedroom. There was a third empty bedroom of his mother. Boyce and Miss Oliver were awoken by two men who came into the bedroom. Miss Oliver woke to see a man, who is described in the summary as male 1, wearing a balaclava and holding what she described as a meat cleaver. The second man, who according to the Crown was the applicant and which he admits, did not have his face covered. He stood over Boyce holding a long thin carving knife. Both men had been told there might be money in the premises. They demanded £30,000. Boyce said he did not have that kind of money. Male 1 said, "Show me where the safe is." Boyce had a small safe next to his bed which contained items of sentimental value. He was told to open it and did so.
4.
Male 1 then left the room, leaving the applicant with Boyce and Miss Oliver, who at that stage remained in the bed. Male 1 went into Boyce's mother's bedroom and took from there a tin which contained a small amount of cash and jewellery. He brought it back to the bedroom where the others were. He said something to the effect of that was not what they had come for, implying that there was more for them to take away. Male 1 left the room again and returned to the room with a safe that he found in the airing cupboard. The safe belonged to Boyce's sister who did not live at the address. He threw the safe on the bed and demanded that Boyce open it. Boyce stated it did not belong to him and he did not know the code. He offered to telephone his sister to find out the code but male 1 told him in a threatening way not to be so stupid and that he would not be telephoning anyone.
5.
Male 1 left the room again. The applicant then demanded that Boyce remove the wires to his PlayStation 3 games console so he could take. Boyce got out of bed and did as he was told. The applicant emptied a sports bag and told Boyce to put the PlayStation and some games into the bag which he did.
6.
Male 1 returned. At some stage there were threats made to harm Boyce's eight year old brother. They were not made directly to the boy who was still in his bedroom but to Boyce who was told that if he did not co-operate and give them the money they were after they would effectively take it out on the younger brother. Male 1 (that is to say, not the applicant) then said, "No, no, don't do that. I have children of my own. We're not going to touch the young boy."
7.
Throughout what took place the eight year old boy was in his own bedroom, appearing be to asleep. He had no knowledge of what was going on, so, although there was a threat, it was not in any way implemented. However, the threat having been made, Boyce said that there was a safe in the loft. Boyce was told to retrieve the safe. The applicant and male 1 then left with the safes, which were assumed to be small portable, mobile telephones that belonged to everyone in the house money and jewellery. It was thought that about £2,000 in cash was stolen but there was nothing from the complainants to indicate the amount of money or the loss.
8.
The matter was reported to the police. The applicant's fingerprint was recovered and on 3 June 2008 he was arrested. On interview he made no comment. In an identification parade he was identified by both Boyce and Miss Oliver. Male 1, the other offender, was never identified or arrested.
9.
In her victim impact statement Miss Oliver said she had permanent feelings of fear, especially if she was in the dark. She was not happy staying at the Boyce's house anymore and as a result the relationship had suffered. In his statement Boyce said he could not sleep and he had been very worried and scared since.
10.
There was a basis of plea in this case to this effect.
11.
1. At the material time the applicant had a serious addiction to crack cocaine. He was in debt to his dealer to the extent of £500 to £600. His dealers was pressurising him to repay the debt. He could not.
12.
2. In order to pay the debt [he] was instructed to commit the aggravated burglary with the other man (someone he did not know). He believed there would be adverse consequences for him or his family if he did not do as he was instructed. He was promised an additional £500 if successful.
13.
3. He and the other man were told that Jason Boyce's brother-in-law was involved in drug dealing and that there would be about £29,000 on the premises. He had never met Jason Boyce before.
14.
4. The only person that he expected to be in the premises was Jason Boyce. He would never have harmed anyone in those premises, least of all the eight year old boy (he has a seven year old daughter of his own). They shut the eight year old's door during the incident. He never woke up.
15.
5. He received £500 from the proceeds and his debt was cleared.
16.
The offence taken into consideration was a domestic burglary in Warlingham, Surrey. The applicant admitted having stolen a laptop computer, DVD player, a mobile telephone, items of jewellery and cash. The value of the property taken was not known but clearly they included items of value. £500 damage was caused.
17.
The applicant is heavily convicted. He has 33 previous convictions. The majority are for driving offences and failure to surrender but they also include four other offences of burglary (all residential), one of attempted burglary (not residential) and one of handling stolen goods.
18.
There was a pre-sentence report, in the course of which the applicant stated, as he had by the basis of plea, that the offence resulted from the duress of a drug dealer to whom he owed money. He admitted offending to fund his drug use.
19.
The probation officer stated that his offending history indicated deficits with problem solving and consequential thinking and concluded there was a medium risk of reoffending. There was a risk of harm. He had not previously carried weapons or directly approached victims, but this was a step up from his previous offences.
20.
There is a good prison report. There is a letter from the applicant's partner, supporting his story that he was coerced into committing the offence, and a supporting letter from her mother. We have taken those into account.
21.
The authorities on violent domestic burglary or robbery in the home were recently reviewed by this court, differently constituted, in
Attorney General's Reference Nos 38, 39 and 40 of 2007 (Crummock, Stell and Campbell)
. The judgment of the court in that case was referred to, and implicitly approved, by this court in the recent case of
Saw
. In that case there was a violent robbery in a home, violence was actually caused and injuries suffered by the victims. Indeed one of them died as a result of the offence.
22.
Having reviewed the previous authorities on the level of sentencing in cases such as the present, the court said in paragraph 30:
"30. We take the view that, following a trial for these robberies, a person with no previous conviction should be sentenced to a period of imprisonment in the region of seven to seven and a half years. Such a sentence would be consistent with our suggested sentence for a category 2 robbery with the additional aggravating feature of the robbery taking place in the victim's home.
31. In our view, the appropriate sentence for all three offenders after a trial, given their individual aggravating circumstances, was in the region of eight to eight and a half years. The sentences of two years six months and two years nine months were unduly lenient. Taking into account the early pleas and reducing the sentences by a small amount to reflect the aspect of double jeopardy, we substitute sentences of five years' imprisonment concurrent for offenders 1 and 3 and five years' detention in a young offenders institution concurrent for offender 2."
23.
We do not consider it helpful to measure in minute detail the comparative gravity of the offence in that case and that in the present case. The victims in the present case were understandably terrified by the weapons brandished by the applicant and the second man and whatever was said by them at the time the victims must have thought there was an obvious risk they would be used otherwise there would be no reason for the burglars to have them. There is the further aggravating factor of the threat to injury a young boy. We accept that the applicant was an unwilling offender on this occasion, but that, in our judgment, does not justify a substantial decrease in a sentence otherwise appropriate.
24.
He initially denied the offence but is entitled to credit for his plea of guilty. The other mitigating factor is the fact that in the end no violence was inflicted on anyone; but that may well be a reflection of the weapons used and the fear of the victims that they might be used.
25.
Having said all of that, we nonetheless consider that the sentence of seven years was on the authority that we have referred to somewhat excessive. We consider that the appropriate sentence in this case is one of six years' imprisonment. In those circumstances, we grant leave to appeal. Unless within seven days the applicant notifies the court that he wishes the matter to be considered again, the sentence of seven years will be quashed and replaced with a sentence of six years' imprisonment. The applicant will be aware that any further representations are unlikely to be considered to be meritorious or effective. To the extent therefore the appeal, as it now is, succeeds.
26.
MR HALLOWES: In those circumstances may I ask for a representation order?
27.
LORD JUSTICE STANLEY BURNTON: Certainly.
28.
MR HALLOWES: Grateful.
29.
LORD JUSTICE STANLEY BURNTON: Thank you. | {"ConvCourtName":["Guildford Crown Court"],"ConvictPleaDate":["2008-08-05"],"ConvictOffence":["Aggravated burglary"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Guildford Crown Court"],"Sentence":["7 years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[28],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["Mixed"],"VicAgeOffence":[21,20,8],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Fingerprint evidence","Identification parade"],"DefEvidTypeTrial":["Basis of plea","No comment interview"],"PreSentReport":["Medium risk of reoffending"],"AggFactSent":["Weapons brandished","Threat to injure young boy"],"MitFactSent":["Plea of guilty","No violence inflicted","Offender was coerced due to drug debt"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentence excessive compared to authority","Mitigating factors not sufficiently considered"],"SentGuideWhich":["Attorney General's Reference Nos 38, 39 and 40 of 2007 (Crummock, Stell and Campbell)"],"AppealOutcome":["Allowed and sentence reduced to 6 years' imprisonment"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Sentence of 7 years was excessive based on authority; appropriate sentence is 6 years"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2003] EWCA Crim 2405
Case No:
2002/3307/Z4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand London, WC2
Date:
Friday, 18 July 2003
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE ASTILL
THE COMMON SERJEANT
(HIS HONOUR JUDGE PETER BEAUMONT QC)
(Sitting as a Judge of the CACD)
- - - - - - -
R E G I N A
-v-
DAVID ARTHUR PRICE
- - - - - - -
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)
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MR J BARNARD
appeared on behalf of the APPELLANT
MR S CONNOLLY
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T (As Approved by the Court)
1.
LORD JUSTICE CLARKE
: On 21st May 2002 in the Crown Court at Kingston upon Thames before His Honour Judge McGregor-Johnson and a jury, the appellant was convicted of indecent assault and on 26th July 2002 he was sentenced to a community rehabilitation order for three years with a condition to attend an accredited sex offenders programme as directed by his supervising officer. He appeals against conviction by leave of the single judge, Langley J.
2.
The complainant, Miss C, was the sales manager of an apartment block. On 4th April 2001 the appellant asked to inspect the largest apartment. Miss C was alone and felt uneasy and said he could go up on his own. He went through the door leading to the staircase but she believed he did not go up because she could still see a shadow. He returned, saying it was what he was looking for and had £500,000 to spend. He gave the name of Smith. He said he had visited previously and had been told that if he came back Miss C would take her shoes off. He said that if he could walk around the apartment carrying her boots it would help him to decide. He then knelt in front of her, causing her to become afraid regarding his intentions. He began to stroke her legs just below the knee over her trousers with both hands before stroking her boots, which he repeatedly asked her to remove. She eventually agreed that she would remove them the next day if he returned. She described his manner as "weird" and "child-like". He left and she locked the doors and called the police. The following day on his return she locked the doors and again called the police. She accepted he only seemed interested in her shoes.
3.
The appellant admitted to the police that he had used the name of Smith the previous day and said that he had come from the bank where he was arranging a loan of £100,000. Following his arrest, but before he was interviewed, he was asked if he suffered from any mental problems, to which he replied "Only the shoe fetish." He was asked about the shoe fetish in interview and said it made him happy to touch women's shoes, it reminded him of his sister. He denied obtaining any sexual satisfaction. He had gone to look at the apartments out of curiosity and noticed her boots on his return and asked if he could touch them. She moved around causing him to believe she was permitting him to touch. He crouched down and touched the boots and denied touching her legs below the knee. He did not remember any conversation about removing the boots. He had returned the next day to apologise in case he had frightened her. The appellant gave evidence at the trial, substantially in accordance with what he had said in the interview.
4.
Four grounds of appeal are advanced:
(1)
The judge misdirected the jury as to indecency.
(2)
The judge failed to direct the jury as to the possibility that the appellant had touched the complainant by mistake. (3) The judge misdirected the jury as to the relevance of the complainant's state of mind.
(4) The judge wrongly admitted a reference to the appellant's "shoe fetish". We take these in turn.
(1)
Indecency.
5.
Mr Barnard submits on behalf of the appellant that the mere removal or attempted removal of a girl's shoe cannot amount to an indecent assault. He relies on
R v George
[1956] Crim.L.R 52, as confirmed in the House of Lords in
R v Court
[1989] AC 28
at 42D to F, per Lord Ackner. We assume for the purposes of this appeal that that submission is in principle correct. Mr Barnard further submits that any removal or attempted removal of a girl's shoes must inevitably involve touching the lower leg and that the facts of this case cannot sensibly be distinguished from
R v George
. Mr Connolly submits that that is not so.
6.
We accept that the removal of a shoe will inevitably involve some touching of the lower leg but we are unable to accept that on the complainant's evidence that reflects what occurred in this case. In the course of his summing-up the judge described the complainant's evidence in this way at page 8:
"She said that the defendant, kneeling down, began to stroke her legs just below her knee and you will remember that she demonstrated to you how he did it with two hands, stroking over her trousers and then moving his hand down to touch one of her boots. The stroking was for a matter of seconds and then he stroked the boots. She was, as I say, sitting sideways at that stage, he was leaning in front of her."
7.
In our judgment that is not a description of the appellant attempting to remove the complainant's boots and incidentally touching her leg. It is a description of him stroking her legs just below the knee, as apparently demonstrated to the jury, even though we recognise that the stroking lasted only a few seconds. In our view that evidence, if accepted, was capable of amounting to an indecent assault. The judge ultimately made it clear to the jury at page 14 of the summing-up that "If it were simply a question of touching the boot then that would not be an indecent assault on its own." We are unable to accept ground 1 of the appeal.
(2)
Mistaken touching.
8.
Mr Barnard submits that the judge failed to direct the jury that if the appellant touched the complainant's lower leg by mistake thinking it was her boot, which may have happened because it was not possible to tell the height of the boot under her trousers, he was not guilty of indecent assault. Mr Barnard does not suggest that such a mistake would afford any defence to the assault element of the count, but he submits that it affords a defence to the "indecent" nature of the assault.
9.
The judge summarised the ingredients of what is indecent in this context at page 6 in this way:
"To try to summarise that, you have to be sure either that this touching was such that, irrespective of motive, it was indecent in the way that I have described. Or you have to be sure that it was such that it is capable of being indecent and was indecent given the defendant's intentions in touching her in the way that you find he did."
10.
The point that is put, if we have understood it correctly, is that the defendant's intentions have to be judged by what he thought the facts were and if he thought he was touching the boot, albeit outside the trousers, then such a touching cannot have been indecent, by parity of reasoning with the conclusion in relation to the boot and in essence he is not guilty because of the mistake.
11.
The problem with this submission is that it was not the way in which the case was debated at any stage during the trial. It is based, in part at least, upon the fact that in the course of his cross-examination Mr Connolly asked the appellant this question:
"Did you think that they were high boots up to the knee?"
He did not answer that question. His evidence was entirely to the effect that the only thing he had touched was her boot at the foot. Accordingly, there was no factual basis for the suggestion that he even might have thought that he was touching a high boot up to the knee or indeed that he thought that she had high boots. There was simply no evidence about that at all. We have already set out the nature of her evidence. In short, she said that the defendant stroked her legs just below the knee with two hands. The judge summed up his evidence at page 10 and that passage includes the following:
"He said that he then crouched down and touched her boots. You will remember that he demonstrated just putting his hand on the top of the boot, just the fingertips. He denies that he touched or stroked her leg below the knee".
12.
In our view there was simply no room for the jury to consider as a possibility that the defendant might have stroked the trousers of the complainant below the knee while thinking that what was underneath the trousers was a boot. In our view that is a possibility which was never raised throughout the whole of the course of the trial. In these circumstances there was no reason whatever for the judge to introduce any such consideration in the course of his summing-up and he is not to be criticised for not doing so. It is not a matter which he could possibly have been expected to do off his own bat, as it were. We are unable to accept this second ground of appeal.
(3)
Complainant's state of mind.
13.
The third ground is that the judge misdirected the jury in relation to the evidence of the complainant's state of mind. He set this out in the passage immediately before his description of the defendant kneeling down and stroking her legs. The judge said this at page 7E:
"She said that he knelt in front of her. She described herself as frightened by what he was doing. You will remember, in cross-examination that she said she had no idea what he was going to do. She was afraid that he might rape her and push her into a deep cupboard that was apparently just behind where she was. Members of the jury, so far as her fears are concerned, which perhaps you can understand in the circumstances and indeed she is not criticised at all, in one way what she feared is neither here nor there, it is not suggested that the defendant did any of those things that she was afraid of. The only relevance of it is if it throws any light on the manner in which he was behaving, and that is for you to assess."
14.
It is fair to say that in that passage the judge told the jury that, save in one respect, her fears were neither here nor there and he stressed that it was not suggested that the defendant did any of the things that she feared. The question is whether the judge should have said that her state of mind was relevant if it throws any light on the manner in which he was behaving and that is for you to assess. We have reached the conclusion that he should not have included that sentence in the course of his summing-up.
15.
However, we have also reached the clear conclusion that that error did not affect the safety of the conviction, essentially for this reason. The judge made it quite clear that the first question they had to decide was whether they accepted her evidence that he began to stroke her legs, or whether they thought that his evidence that he might simply have touched the end of her toe was correct. Thus the judge summarised the questions for the jury at page 10G:
"There it is members of the jury, you are going to have to decide, how did he touch her? Was it just on the boots or was it also on the leg? Was that done deliberately? Was it done without her consent? Was it done without him believing that she was consenting and was it done in a way which you consider, on the test that I have given you, to be indecent? As I have already said those are the elements of the offence. The prosecution's job is to make you sure of those elements."
It is plain from the jury's verdict that they accepted her evidence that he stroked her legs just below the knee and that the jury formed the view that that was indecent on one or other of the two bases left to them by the Crown. We do not think that that sentence, which should not have been included, can have affected the safety of the conviction. That leaves the last point.
(4)
The Shoe Fetish.
16.
It is submitted that the judge should not have permitted the Crown to adduce evidence relating to what the appellant said about the shoe fetish. The facts are as already stated. Before the appellant was interviewed he referred to the shoe fetish in answer to the custody sergeant's question whether he had any medical problems. In the course of the interview he then said that it made him happy to touch women's shoes.
17.
We do not think that the custody sergeant is to be blamed for the question which he asked. The information was proffered voluntarily by the appellant. In those circumstances we can see no reason why it should not have been admitted by the trial judge. We do not think that it made the trial in any way unfair to the appellant. In all the circumstances we have reached the conclusion that the conviction is safe and that the appeal against conviction should be dismissed. | {"ConvCourtName":["Crown Court at Kingston upon Thames"],"ConvictPleaDate":["2002-05-21"],"ConvictOffence":["Indecent assault"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Kingston upon Thames"],"Sentence":["Community rehabilitation order for three years with a condition to attend an accredited sex offenders programme as directed by his supervising officer"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Defendant's police interview"],"DefEvidTypeTrial":["Defendant's testimony","Denial of touching leg"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge misdirected jury as to indecency","Judge failed to direct jury as to possibility of mistaken touching","Judge misdirected jury as to relevance of complainant's state of mind","Judge wrongly admitted reference to appellant's 'shoe fetish'"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No misdirection as to indecency; evidence supported conviction","No factual basis for mistaken touching direction","Error regarding complainant's state of mind did not affect safety of conviction","Reference to 'shoe fetish' did not make trial unfair"]} |
Case No:
2015 03526 B4
Neutral Citation Number:
[2016] EWCA Crim 1844
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CROYDON
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
9 December 2016
Before:
LORD JUSTICE SIMON
MR JUSTICE SWEENEY
and
HH JUDGE AUBREY QC (sitting as a Judge of the Court of Appeal)
- - - - - - - - - - - - - - - - - - - -
Between:
The Queen
and
Osagie Ehi-Palmer
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Mathew Sherratt
for the
Appellant
Mr Richard Hearnden
for the
Crown
Hearing date: 20 October 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Simon:
Introduction
1.
On 2
July 2015 in the Crown Court at Croydon (before HHJ Tanzer and a Jury) Osagie Ehi-Palmer was convicted (by a majority of 11.1) on a charge of attempted rape. On 20 August 2015 (at the same Court) he was sentenced to 5 years’ imprisonment.
2.
Leave to appeal against the conviction was referred to the Full Court by the Single Judge; and we grant leave.
3.
Although the grounds of appeal relate to what occurred during the latter stages of the trial, it is necessary to describe shortly the nature of the prosecution case and some of the evidence.
4.
At the material time the Appellant worked in a nightclub in London. At the end of July 2014, while working there, he and his manager met the complainant (MM) and her friend (MY), who were both Swedish nationals. They spent the evening together, got on well and ended up at the Appellant’s flat. MM and MY stayed the night as his guests without incident. Over the course of the next week, the Appellant and MM were in regular contact and occasionally met each other. On 5 August 2014, MM and MY returned to the nightclub, and during the course of the evening became highly intoxicated. The Appellant later took them both back to his flat.
5.
At about 6.00 am on the following morning, MM woke up. She was lying face down on the Appellant’s bed, with the Appellant leaning over her. She became hysterical and made accusations of rape. She and MY left the flat and she then made a 999 call.
6.
The Appellant was arrested and interviewed. He denied the allegation in its entirety. Intimate swabs were taken from him and MM. There was no semen in her vagina but traces of MM’s DNA were found on the shaft of his penis. He was re-interviewed but continued to deny that any sexual contact had taken place. Following charge, he provided a defence statement in which he said that he and MM had had sexual contact on the dancefloor of the nightclub.
7.
The prosecution case was that while they were together in his bedroom, the Appellant had attempted to rape MM while she was lying on the bed in a state of intoxication. The prosecution relied on (1) messages that he had sent to MM which were said to show his possessiveness and wish to advance what he hoped would become a sexual relationship; (2) MM’s evidence that she did not dance with the Appellant in the nightclub and therefore this could not explain the transfer of DNA; (3) the omission by the Appellant to mention that he had danced intimately with MM until he was confronted with the DNA evidence; (4) the content of the 999 call; and (5) the DNA evidence.
8.
The defence case was that the Appellant, a man of good character, had been called by MM and MY for help at the end of their night out because they were drunk; and that he had taken them to his flat as an act of hospitality. MM came into his room and fell asleep on his bed. When she began to talk in her sleep he leant over her and tapped her several times on the shoulder. She woke with a start and jumped to the wrong conclusion. He had done nothing wrong.
9.
Among the issues for the Jury was whether the finding of MM’s DNA on the Appellant’s penis was due to his inserting his finger into her vagina on the dance floor of the nightclub or as a result of him attempting to rape her whilst she lay on his bed; and whether the Appellant had tried to have sexual intercourse with MM while she slept or whether she had woken suddenly and come to a false conclusion.
The trial
10.
Early in the trial MM, who gave her evidence from behind a screen, told the Jury that she and her friend, MY, had come to London to enjoy themselves. She had targeted the Appellant as a way of getting free entry to clubs and free drinks while there. She said they messaged each other after the initial meeting, although these messages showed no more than a light-hearted and flippant relationship. She said that on the night in question she did not dance in the nightclub and that the last thing she remembered was sitting at a table in the nightclub. She had never had such a memory loss before.
11.
In cross-examination she said that no matter how drunk she was, she would never have allowed the Appellant to have touched her beneath her underwear. When she woke up, he was making sexual movements towards her. She was lying on her stomach with her face to the side. Her skirt had been pulled up and her knickers had been pulled down. The Appellant was lying on her back and she could hear him breathing. She did not know where his groin was and she could not feel anything in her vagina, but she felt scared and disorientated. She did not notice whether the Appellant was dressed or not. She had pushed him away and said, ‘What are you doing? Why are you raping me?’ He had told her that she was being paranoid and should calm down. She said that she was 100% sure that he was trying to rape her but she did not know how far he had got.
12.
The prosecution called a forensic scientist who described
a DNA profile matching that of MM on the Appellant’s penis. In her opinion it had been transferred through fluid, in other words via saliva or vaginal fluid rather than dry cells, but she was unable to say whether it was a primary transfer (by his penis touching her vagina) or secondary transfer (by touching her vagina and then touching his penis).
13.
It is necessary at this point to return to an event which took place shortly before the end of MM’s evidence; and, before doing so, it is important to note that it is common ground the Appellant had not shown any previous signs of mental disturbance.
14.
On Wednesday 24 June 2015, towards the end of MM’s evidence, a recording of her 999 call tape was played to the court. At this point the Appellant became hysterical, broke down in tears and became highly anxious, with the appearance of a panic attack. He was so distressed that the court had to rise and he was taken to the cells, where his counsel (Mr Sherratt) attempted to calm him. He was described lying on the floor at one point, screaming hysterically.
15.
On Thursday 25 June, in the absence of the Jury, Mr Sherratt raised a number of concerns with the Judge. The Appellant was worried: that the Jury selection was not random, that it was not MM who had given evidence from behind the screen, and that the recording of the 999 call was in fact a 911 call, using an American emergency call number. During this discussion the Appellant again became extremely anxious, and Mr Sherratt requested extra time to speak to him. The Judge gave appropriate reassurances to the Appellant; and there is no criticism of the way in which the Judge dealt with his concerns. However, this incident, following the hysterical outburst the day before, is relied on by Mr Sherratt as indicating evidence that something was wrong with the Appellant’s mental state.
16.
On Friday 26 June, a prison health care assistant (Ms Tanya Whittle) noted that the Appellant was, ‘medically fit for court appearance…no medical concerns raised at this time’. The court day was spent dealing with interviews and the prosecution then closed its case.
17.
On Monday 29 June, the Appellant began to give evidence in his defence. He said that when MM came to the nightclub on 5 August 2014, he ignored her as she was becoming jealous and he wanted to play things cool. Later in the evening he danced with her. They kissed for about 20 minutes and she touched his penis. He then touched her vagina for 5 minutes with his right hand. He said that she liked it. Later that night she called him and asked him to get her home. He met MM and MY and took them back to his flat (rather than their hostel) as they were so drunk. He denied doing anything improper. MM had come into his room as she wanted to smoke. She lay next to him fully clothed whilst he watched television and then fell asleep. After about an hour she started speaking Swedish in her sleep and he got up and tapped her on the shoulder three times. He asked her to wake up and, at this point, she started to shout. He told her to relax and asked her what was going on. She said that someone had touched her. He told the Jury that he had never lain on top of her, nor had he touched her skirt or knickers. When she got to the front door, she told him that he had tried to rape her, to which he replied, ‘Why would I do that when you were drunk?’
18.
No particular concerns were noted at the time as to his ability to give his evidence in chief. Counsel for the Prosecution (Mr Hearnden) told us that he seemed normal and composed, although Mr Sherratt thought that he was hesitant in his answers.
19.
In any event the main focus in this appeal was directed to the evidence he gave during the afternoon of Monday 29 June, while being cross-examined. The transcript shows that the initial stages of the cross-examination were unremarkable. The Appellant gave rational answers to the questions he was asked, describing how he had watched television while MM lay asleep on the bed and how he had woken her because she was mumbling in Swedish in her sleep. However, two recurrent themes began to emerge: first, his evidence that she had called a 911 number, and second his assertion that there was a tape which would reveal what occurred. The Appellant asked for ‘the tape’ and repeatedly asked for the Jury to hear ‘the tape’. He also went on to state ‘was there a camera in my room then?’ And later, ‘…can the Jury see the pictures please…was someone watching me in my room?’ He also said that there was a CCTV camera in his bedroom, ‘…I think they (police) may have been tracking me, they have been watching me for a long time’.
20.
Although it is clear from the transcript of the Appellant’s cross-examination that there are passages when he appeared entirely lucid, there are other passages which show that Mr Hearnden was exasperated by what he considered to be deliberately unresponsive and evasive answers referring to tapes and cameras. It is also apparent that the Judge, very properly, encouraged the Appellant to answer the questions he was being asked.
21.
The cross-examination was brought to close with the following exchange:
Judge Tanzer: I think you could probably leave it, Mr Hearnden.
Mr Hearnden: I did say I was going to call time on this farce.
Witness: I knew there was a camera in my room. I can tell there was a camera in my room.
Mr Hearnden: No further questions.
22.
There was a brief re-examination during which Mr Sherratt accepts that the Appellant understood, and coherently answered, the questions he was asked.
23.
On Tuesday 30 June 2015, the Appellant was admitted to the inpatient healthcare unit in HMP Highdown after observations of increasingly bizarre responses to auditory and visual hallucinations. The matter was raised with the Judge by Mr Sherratt and there was a discussion as to how the trial should proceed. Mr Sherratt referred to the Appellant’s evidence the previous day and submitted that there should be an assessment to see whether he was ‘under an impediment.’ He indicated that if a psychiatrist were to find that his client was mentally ill he would apply to discharge the Jury, while recognising that a psychiatric assessment might conclude that the Appellant was (as he expressed it) ‘effectively, putting it on’. Mr Hearnden accepted that there should be a request for a prompt psychiatric assessment, and the Judge agreed, while noting that there had been no indication of any prior psychiatric problem. The Jury were told that the Appellant was not well and were sent away for the day.
24.
The Court reconvened later that day in the absence of the Jury to consider information from HMP Highdown that no psychiatric report could be prepared before Thursday 2 July. In the light of this information and following submissions from counsel, the Judge ruled that the trial should continue in the Appellant’s absence.
25.
He directed himself by reference to the current edition of
Archbold
at §3-222 and the case of
R v. Jones (Anthony)
[2003] 1 AC 1
(HL), recognising that continuing a trial in the absence of a defendant was an exceptional course. He summarised the prosecution evidence, all of which the Appellant had heard, and noted that he had given evidence in his defence. His conclusion was that there was ‘no disadvantage to the defendant in not being present from now on,’ no risk of the Jury reaching an improper conclusion from his absence and a public interest in the trial proceeding. He also noted that a short adjournment would not necessarily help, since the Court had been informed that the Appellant could not be seen by a psychiatrist until Thursday at the earliest, and it was likely that there would be further delays while additional information was obtained and a report was prepared. In effect, the Judge concluded that an adjournment would have the effect of aborting the trial. He indicated that he was making ‘no finding whatsoever’ as to whether this was an endeavour by the Appellant to evade the consequence of the trial.
26.
On Wednesday 1 July 2015, the Court received information from the prison nursing staff that the Appellant had been admitted to the inpatient healthcare unit in the early hours of Tuesday having displayed a bizarre deterioration of his mental state: ‘He had been observed responding to unseen stimuli and auditory/visual hallucination. He will be urgently [seen] by our consultant psychiatrist tomorrow.’ Mr Sherratt repeated his concerns about this information.
27.
The trial continued in the Appellant’s absence. We were told that the Judge informed the Jury that the Appellant was still unwell and that they should not hold his absence against him.
28.
Mr Hearnden’s notes of his speech to the Jury show that he began by highlighting how bad the Appellant had performed when being cross-examined, describing it as, ‘So appalling it could only help the prosecution prove its case’. However, he then went on to add that the Jury should consider all the evidence they had heard and should not ‘place too much emphasis on the shortcomings of the [Appellant’s] testimony.’
29.
The Judge summed up the case to the Jury, but said nothing further about the Appellant’s absence. He did, however, make a further observation in the context of his direction on lies, see
R v. Lucas
[1981] QB 70
.
… lies of themselves are not evidence of guilt and that is because an innocent man may lie for a number of reasons. For example, to try and bolster a defence or out of panic or confusion, and you have seen this defendant suffer from an at least an alleged panic attack. You make up your own minds about that.
30.
The Jury retired at the conclusion of the summing up, during the afternoon of 1 July, and resumed their deliberations on the following morning, Thursday 2 July.
31.
By this time, the Appellant had been assessed by Dr Shriti Burgul (a locum consultant psychiatrist) attached to HMP Highdown. In a report (dated 2 July) she set out her findings that the Appellant appeared to be highly distressed and agitated. He was again observed responding to unseen stimuli, laughing inappropriately and shouting. He had flooded his cell, put his mattress on the floor and appeared to be incontinent of faeces. At §3 she set out her opinion and recommendations.
[The Appellant] appears to be suffering from a probable drug induced psychosis which will require urgent treatment with antipsychotic medication. Such treatment is likely to alleviate deterioration of his current mental state if he is able to comply with this.
He will require such treatment as in-patient due to both the nature and degree of his illness, his lack of insight and capacity, and his unpredictable and aggressive behaviour. We will therefore be requesting an urgent hospital transfer to his local Medium Secure Forensic in-patient unit via a s.47 MHA …
He is currently not fit to stand trial and not fit to plead.
32.
There was a discussion of this report between Counsel and the Judge, and Mr Sherratt applied again for the Jury to be discharged. The Judge refused the application, following which Mr Hearnden raised the possibility that the Jury might, exceptionally, receive the evidence of Dr Burgul’s ‘on the spot diagnosis’ notwithstanding their retirement. He referred to
R v.
Iqbal Khan
[2008] EWCA Crim 1112
. The Judge dismissed this suggestion on the grounds that the diagnosis was provisional, and related to his current condition rather than his condition at trial.
33.
Later that day, the Judge gave a majority direction and the Jury retired again at 1.13. At 2.27 the Judge received a note that the Jury could not reach either a unanimous or a majority verdict and did not think that they would be able to do so. Against the objection of Mr Sherratt, the Judge directed them to try to reach either a unanimous or a majority verdict. He did not give a
Watson
direction, see
R v. Watson
[1988] QB 690, with its concluding words: ‘If, unhappily, [ten of you] cannot reach agreement you must say so.’
34.
At 4.25 the jury returned the verdict of guilty.
Subsequent events
35.
On the following day, Friday 3 July 2015, the Appellant was observed by prison staff lying naked on his cell floor and responding to unseen stimuli; and the next day, he was reported to be lying on the floor of his cell, incontinent of urine and unresponsive. Urgent blood tests were taken which indicated signs of renal failure and he was immediately transferred to Epsom Hospital.
36.
On 5 July 2015, he was diagnosed with sepsis and renal failure, and treated with fluids and antibiotics. He was taken to an Intensive Care Unit as a medical emergency, and placed in a medically induced coma. His treating physicians questioned whether he might have taken an overdose of anti-depressant medication. It was not until 15 July 2015 that his condition had improved sufficiently for the sedation to be removed, and he was able to breathe spontaneously.
37.
His condition was reviewed again by Dr Burgul on 21 July 2015, when she prescribed sedative and antipsychotic medication. Dr Shubelade Smith (consultant forensic psychiatrist at River House Medium Secure Unit) stated in an email, ‘This really sounds like an organic/medical problem. This man was in renal failure in ITU and now presents with delirium. By definition this is not therefore psychosis.’
38.
On 27 July Dr Burgul carried out a further review on the Appellant’s return to HMP Highdown. She found his mental state to be stable, with ‘no evidence of any psychotic phenomena’. She further noted, ‘He admits to having used spice recently and states this was the first time he has tried this’. His limbs were stiff on examination and it was felt he was experiencing residual symptoms of his metabolic brain lesion. By 30 July Dr Burgul noted that there were no longer psychotic symptoms and set out her view that he had suffered from a drug induced psychosis.
39.
He was discharged from the prison health care unit on 31 July 2015; and it is common ground on this appeal that he no longer suffers from any symptoms of mental illness.
The medical evidence on the appeal
40.
We admitted and heard evidence under s.23 of the Criminal Appeal Act 1968 from two Consultant Forensic Psychiatrists: Dr Guy Hillman (called by the Appellant) and Dr Scott Mackenzie (called by the Prosecution). Each was well qualified, had seen the Appellant and had prepared reports for the assistance of the Court. There was a large measure of agreement between them. First, it was agreed that the Appellant had no history of contact with psychiatric services or of substance abuse before the summer of 2015; secondly, that he had suffered from an abnormal mental state from 24 to 29 June during the course of the trial, exhibiting symptoms of anxiety, odd behaviours and paranoid beliefs; thirdly, that thereafter (from 30 June) he suffered a marked deterioration in his mental and physical health which eventually led to him being placed in a medically induced coma. There were some issues on which they disagreed: the operative cause of his abnormal mental state, its effect and, in particular, his ability to participate in the trial.
The argument
41.
Although he developed a number of submissions, Mr Sherratt’s argument rested on three main and interlinked grounds.
42.
First, he argued that the Judge should have obtained a full psychiatric report in order to assess whether the Appellant was under a disability. The Judge had erred in giving undue weight to the likely delay and to the risk of losing the Jury over the Appellant’s right to a fair trial. Although Mr Sherratt accepted that the Judge had a discretion in the matter, he submitted that the Judge gave insufficient weight to the fact that the Appellant had not voluntarily absented himself, to the risk that the Jury might reach a false conclusion about the Appellant’s absence and to the possibility that he might have been under a disability when he gave evidence; and failed to undertake any enquiry as to what delay would have been incurred if the Jury were discharged.
43.
Secondly, Mr Sherratt submitted that the Appellant was wrongly deprived of the opportunity to adduce medical evidence to explain his symptoms to the Jury. Such evidence would have placed his behaviour in the witness box in its proper context.
44.
Thirdly, he submitted that, at least by 30 June (if not before) it had (or should have) become apparent that the Appellant could not make a proper defence, having regard to the
Pritchard
test, see
R v. Pritchard
(1836) Car. & P. 303 KB. At that stage the Judge should have withdrawn the case from the Jury and proceeded under the provisions of the Criminal Procedure (Insanity) Act 1964, as amended (‘the 1964 Act). In any event, the provisions of the 1964 Act should have been applied before the Jury returned their verdict. Mr Sherratt referred to and relied on the decisions of this Court in
R v. John M
[2003] EWCA Crim 3452
and
R v. Marcantonio and another
[2016] EWCA Crim 14
.
45.
For the Prosecution, Mr Hearnden argued that the Appellant had participated in the trial and completed his evidence without relevant incident. The Judge was entitled in the exercise of his discretion to decide (during the afternoon of 30 June) to continue the trial when it became apparent that no medical report would become available within a reasonable time. There was no unfairness to the Appellant and the conviction was safe.
Our conclusions
46.
As set out above, the first issue on which the psychiatrists disagreed was their view of the cause of the Appellant’s abnormal mental state. In our view this is now clear: at some point the Appellant, who had never previously exhibited any signs of mental disturbance, had used spice (a synthetic cannabinoid) while in prison. It was this that had caused the mental disturbance. This was the view of Dr Mackenzie and is supported by Dr Burgul’s initial opinion, as well as the Appellant’s later admission to her.
47.
The second issue involves an assessment of the drug’s effect. It is probable that the Appellant took the drugs during the course of the trial, and that his behaviour on 24 and 25 June was the initial reaction to taking them. We accept Dr Mackenzie’s opinion that, at this point, although his mental state was abnormal, and resulted in him acting oddly and expressing paranoid beliefs, this did not have a substantial impact on his ability to participate in the trial. The position became clearer (at least in retrospect) while he was giving evidence on 29 June. During his cross-examination he intermittently exhibited paranoid beliefs, although he did not lack insight into his situation. He was able to give evidence and participate in the trial and, except for the intermittent digressions while being cross-examined, exhibited few symptoms of psychosis.
48.
The third issue is whether (and, if so, the extent to which) he was able to participate in his trial thereafter. In agreement with both doctors, we have concluded that he was not fit to participate in his trial after 29 June.
49.
We turn then to how the matter was dealt with at the trial. Although, there had been incidents on 24 and 25 June which prefigured his breakdown, as we have noted, he appears to have been able to give a clear account during examination in chief and in re-examination. The Jury heard from him that he had not attempted to rape MM, that she had misinterpreted his actions and that the presence of her DNA on his body was explicable other than as a consequence of an attempt to rape her. Viewed overall his evidence was, for the most part, coherent, although there were the incoherent answers and digressions in cross-examination that we have noted.
50.
By 30 June his evidence had concluded; but there was now information which alerted the Court to the possibility that he would no longer be able to participate in his trial. In our view the initial view that a psychiatric report should be obtained was correct; and it was unfortunate that, when told of the possible delay in obtaining such a report, the Judge decided to continue with a trial. While we recognise the pressures of work in the Crown Court and the need to avoid keeping Juries waiting, the decision to seek a medical report was based on principle while the decision to proceed without one appears to have been based on expediency.
51.
Once a decision to continue had been made, in our judgment specific consideration should have been given as to what the Jury should be told about his absence, and whether an agreed fact could be placed before them with a view to explaining his absence.
52.
Mr Hearnden was entitled to make the points he did in the closing speech to the Jury on the basis of what he knew immediately after the cross-examination. However, in the light of the Prosecution support for the obtaining of a psychiatric report during the discussions in the morning of 30 June, it might have been prudent to have adopted a more cautious approach. The Judge’s comment to the Jury that the Appellant was ‘still unwell’ did not raise the possibility that the quality of his evidence on which the Prosecution had placed emphasis might be related to the reason for his non-attendance.
53.
In the course of 2 July, while the Jury was in retirement, Dr Burgul’s report became available. This plainly put in issue the Appellant’s ‘fitness to stand trial’ or perhaps more accurately his ‘fitness to participate in the trial,’ see
R v. Orr
[2016] EWCA Crim 889
, at [23].
54.
Where an issue as to fitness is raised the Judge is required to address the point, see s.4(4) of the Criminal Procedure (Insanity) Act 1964, with a requirement of careful case management, see Crim PR 25.10. When the issue is raised the Judge must consider whether to discharge the Jury and give directions for the determination of the issue, see s.4(5) of the 1964 Act. Section 4(6) provides that such a determination cannot be made except on the written or oral evidence of two or more registered practitioners, at least one of whom is duly approved.
55.
In
Marcantonio
(see above) the Court, having considered the
Pritchard
criteria as reinterpreted in
John M
, made clear at [7] that:
An assessment of whether a defendant has the capacity to participate effectively in legal proceedings should require the court to have regard to what that legal process will involve and what demands it will make on the defendant. It should be addressed not in the abstract but in the context of the particular case.
56.
We note that in
Taitt v. State of Trinidad and Tobago
[2012] UKPC 38
,
[2012] 1 WLR 3730
[16], Lord Hope of Craighead (giving the judgment of the Board), cited
R v. Robertson
[1968] 1WLR 1767 and
R v. Berry
(1977) 66 Cr. App. R. 156, in support of his observation that the fact that a person suffers from delusions or from a high degree of abnormality does not mean that he is not fit to be tried.
57.
The context in the present case was that the issue arose at short notice during a late stage of the trial, after the Appellant had given evidence. Dr Burgul’s opinion appears to have been based on a single observation on 2 July, without the benefit of any background information; and although the contents of her report justified her view that the Appellant was (at that point) unfit to participate in the trial, there was no other evidence from a registered medical practitioner.
58.
A similar situation arose in
R v.
Ghulam
[2010] 1 WLR 891
, where an application was made during the course of the summing up on the basis of a letter from a single registered practitioner specifically directed to the
Pritchard
criteria. Having set out the facts in that case the Court said this:
21. Applying those conclusions to the situation which the judge found himself, in our judgment the judge was, in the exercise of his discretion based on the evidence before him, entitled to consider whether or not the defendant was unfit to plead. He could not have made a determination that the defendant was indeed unfit to plead without the medical evidence of another doctor, and that doctor would have had to be an approved psychiatrist, as required by the Act. However, he was entitled to consider what he had observed as to the conduct of the defendant and his ability to defend himself at the trial. He was, in our judgment, entitled on that basis to consider whether or not he could accept the evidence put before him at the last stage of a single doctor.
22. Having found that his observations were inconsistent with those of the doctor, he was entitled, in those circumstances, implicitly to make a determination that the defendant was fit, and had been fit, to plead, and therefore to refuse to discharge the jury and to allow the trial to be completed. The matter was entirely for him in his discretion. Given the circumstances in which the application was made and the very strong evidence that he had seen that the defendant was indeed fit to plead, in our judgment he was entitled to decide as he did. It follows that the appeal is dismissed.
59.
In the circumstances in which he found himself, we have concluded that, in the exercise of his discretion and based on the evidence before him at the time, the Judge was entitled to refuse the application. Although there was material which indicated that the Appellant would be unfit to participate in the rest of the trial, it was raised very late (after the evidence had concluded) and was not supported by the required evidence.
60.
It follows that we reject Mr Sherratt’s third ground. We turn then to the first and second grounds which we can take together.
61.
Before considering these arguments, we think it important to bear in mind some of the observations in the speech of Lord Bingham of Cornhill in the case of
R v.
Jones (Anthony)
referred to above, with which the other members of the House of Lords agreed. In that case a judge of the Crown Court at Liverpool had concluded that the appellant had deliberately absented himself from the trial and ordered that the trial take place in his absence. In his summing-up the judge warned the jury not to hold the absence of the defendants against them. Lord Bingham set out a number of principles which applied in such a case. At [6] he stressed the important of what was both a right and an obligation of a defendant to attend his trial on indictment, while noting that:
… for many years problems have arisen in cases were, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine or intermittent illness of the defendant (as in
R v. Abrahams
(18950 21 VLR 343 and
R v. Howson
(1981) 74 Cr App R 172); or misbehaviour (as in
R v. Berry
(1897) 104 LT Jo 110 and
R v Browne
(1906) 70 JP 472
); or because the defendant has voluntarily absconded (as in
R v. Jones (Robert) (no.2)
[1972] 1 WLR 887 and
R v. Shaw (Elvis)
[1980] 1 WLR 1526. In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.
62.
In the final sentence Lord Bingham draws a clear distinction between a defendant suffering from an involuntary illness or incapacity, on the one hand, and a defendant who has made a voluntary decision not to be present.
63.
At [11] he referred to the difficulties faced by a defendant who does not attend his trial: no cross-examination, no evidence from defence witnesses and no speech to the jury on his behalf. Lord Bingham’s answer to the argument that such a process was unfair was that:
… one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.
64.
The distinction between a voluntary and involuntary absence is raised again in [13] and [15].
65.
In the present case, the Appellant did not have any of the disadvantages identified in [63] above. Although his absence was due to a developing psychosis, his condition was, as we have found, due to a voluntary decision to take drugs during the course of the trial. The position is similar to a defendant who (if he had the opportunity in prison) had consumed large quantities of alcohol and was suffering from its effects. Both voluntary acts might have the consequence that the defendant would not show himself to best advantage before the Jury, but neither would give him good cause to complain about it.
66.
Viewed in this light, Mr Sherratt’s complaint must be that the Appellant was wrongly deprived of an opportunity of putting the full picture before the Jury: that he was absent due to a mental condition caused by his consumption of drugs in the course of the trial.
67.
In our view to have imparted this information would not, on the facts of this case, have assisted the defence, and the Judge cannot be properly criticised for simply warning the Jury that the Appellant was still unwell and they should not hold this against him.
68.
The Judge’s reference to ‘an alleged panic attack’ during the
Lucas
direction on lies was unfortunate, at least in retrospect, although it may have been the result of something said in the course of the defence speech. However, we are not persuaded either that there was unfairness to the Appellant in the course of the trial or that the conviction is unsafe. There was abundant material, as we have noted at [7] above, upon which the Jury could be sure of his guilt.
69.
For these reasons, the appeal is dismissed. | {"ConvCourtName":["Crown Court at Croydon"],"ConvictPleaDate":["2015-07-02"],"ConvictOffence":["Attempted rape"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Croydon"],"Sentence":["5 years’ imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["DNA match","Victim testimony","999 call recording","Forensic expert report","Text messages"],"DefEvidTypeTrial":["Offender denies offence","Alternative explanation for DNA"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no relevant previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Trial continued in absence of defendant due to mental illness","No psychiatric report obtained before continuing trial","Jury not told about reason for absence","Defendant not fit to participate in trial"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge entitled to exercise discretion to continue trial","Absence due to voluntary drug use","No unfairness to appellant","Conviction is safe"]} |
Case No:
2013/01959B1
Neutral Citation Number:
[2013] EWCA Crim 773
IN THE COURT OF APPEAL CRIMINAL DIVISION
ON APPEAL FROM NOTTINGHAM CROWN COURT
MRS JUSTICE THIRLWALL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/05/2013
Before
:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE ROYCE
MR JUSTICE GLOBE
- - - - - - - - - - - - - - - - - - - - -
Between :
ITN News and Others
Appellants
- and -
R
Defendant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms H Rogers QC and Mr C McCarthy
for the
Appellants
Mr D Farrer QC and Mr J House
for the
Crown
Miss G Irving QC
for the (
Intervener on behalf of Lisa Willis, the Mother)
Mr Ian Wise QC
for
Derby City Council (Intervener on behalf of the Children)
Hearing dates: 1
st
May 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
This is an application under
s.159 of the Criminal Justice Act 1988
(
the 1988 Act
), alternatively an application under
s.46(10) of the Youth Justice and Criminal Evidence Act 1999
(
the 1999 Act
) by a number of media organisations for leave to appeal against an order made by Thirlwall J at Nottingham Crown Court during the course of the notorious recent trial of Michael and Mairead Philpott and Paul Mosley.
2.
Following the deaths of the six children of Michael and Mairead Philpott who were killed following a fire on 11 May 2012 in their home at 18 Victory Road, Derby, they were charged with manslaughter. In due course they were convicted by the jury.
3.
One of the witnesses called by the prosecution was Lisa Willis (the mother). She had five children, four of them by Philpott. For several years she had lived at the same address, 18 Victoria Road, with Michael and Mairead Philpott. Several months before the fatal fire she had left that address. When she moved away from the area a dispute broke out between her and Philpott about the arrangements for the children. Philpott’s involvement in the fatal fire stemmed from a determination to demonstrate that the mother was unfit to care for the children, and so, the night before the case was listed for a hearing, the fire was started. The intention was that she should be blamed for it. Thus she was a crucial witness at the trial.
4.
Long before the tragic events of May 2012, the life style of Michael Philpott and the women in his life, and his very large number of children, had been the subject of extensive media coverage and public interest. Photographs and images of the mother and her children appeared on television and in newspapers. She herself had appeared in three television programmes speaking about her relationship with Michael Philpott and the family’s living arrangements.
5.
The first was the Jeremy Kyle show in 2006, entitled “Father to Fifteen … Wife and Girlfriend Pregnant Again”. The mother appeared with Michael and Mairead Philpott, answering questions about her relationship and the living arrangements before a live studio audience.
6.
The second was “Tales of the Unaccepted – the Philpotts”. This programme was broadcast on ITV Central Television on 12 April 2007. The programme followed births of children to both Mairead Philpott and the mother of whom Michael Philpott was the father. The mother was filmed with her children. She spoke directly to the camera. The film showed the beginning of her labour at home and, after the birth of her baby in hospital, showed the baby handed to her immediately after the birth.
7.
The third was “Ann Widdecombe vs the Benefit Culture”, broadcast on ITV 1 on 22 August 2009. This was an hour long documentary in which Ann Widdecombe MP explored and challenged the attitudes of the Philpott family, and the arrangements by which they were all living in the context of claims for benefits. The mother was seen from time to time throughout the documentary, and so were her children, and photographs of them all were widely published.
8.
The events covered by the subsequent trial at Nottingham Crown Court attracted worldwide coverage and international interest. The coverage included images of the mother, which remain widely available on the internet, and on websites outside the jurisdiction.
9.
Before the start of the trial, the Crown applied for and in accordance with s.23(1) of
the 1999 Act
was permitted the use of special measures. This took the form of protective screens when the mother gave evidence in court. The application was based on a statement from the mother herself, updated in oral submissions about her fearful state of mind. She was content to give her evidence, but had a number of concerns about the hearing. She was worried that her physical identity would be revealed at court. She had already taken measures to avoid any risk that anyone connected to Philpott should know of her whereabouts or know what she looked like. She was now living with her children in a house in an unknown location. She had changed their surnames and altered her appearance. If she gave open evidence she was scared “that someone will either see me and then make efforts to locate me and follow me to where I live with my children”. She said that she would tell the court the whole truth about the case, and continued that it would “be a lot easier if I cannot see Mick Philpott and he and his family and friends cannot see me”. She had been offered a number of “special measures”, but she did not wish to give evidence or answer questions by video. She wished to give evidence in court personally, but she would feel “much more comfortable and be able to give my evidence more freely” if she could be behind screens. Hence the application, supported by the Crown.
10.
On 12 February 2013 an order made by Thirlwall J under
s.4(2) of the Contempt of Court Act 1981
prohibited the publications of photographs of the mother or any of her five children until 5 March 2013. At the end of the day, the judge was asked whether, in the light of her order, it was permissible for newspapers or broadcast media to publish photographs of the mother and her children that evening, and in any event before she gave evidence. The judge gave a short ruling underlining that her concern was the “integrity of the criminal trial”. It was submitted to her by the Crown that any photographs appearing in the media just as she was about to give evidence would undermine the entire purpose of the order for special measures which had been made. Thirlwall J did not accept the entire breadth of the submission, but she recognised that the purpose of the order enabling the mother to give evidence behind a screen was that she would be able to give it away from the public gaze, and that public focus on her and her children would undermine her ability to give evidence. The judge noted that the publication of any such photographs would “torpedo her attempts not to be recognised, reinforcing her fears for herself and her children”. She therefore made an order postponing publication of any photographs of Lisa Willis or her children, and further ordered that any photographs that had already been published during the course of the hearing should be withdrawn.
11.
The judge considered the impact of the order on the entitlement of the press to report court proceedings fairly and accurately. She concluded that written and verbal reports were sufficient to represent the public interest, and she could see no public interest in the publication of a photograph or photographs or images of the mother or her children. In any event if photographs of the mother were published the children would be immediately identified.
12.
On 13 February, after an opportunity to consider the relevant statutory provisions overnight, Thirlwall J concluded that the order under s.4(2) of the Contempt of Court Act was, as she described it, “a rather clumsy and possibly erroneous route to preserve the position”. The proper route was via
s.46 of the Youth Justice and Criminal Evidence Act 1999
. She was satisfied that the witness was eligible for protection within the context of the Act, and that the quality of her evidence would be diminished by reason of fear at being identified as a witness in the proceedings. The order reflected the logical consequence of the attempts being made by the mother to rebuild her life and without it, all her efforts would come to nothing. The order should therefore be made in the interests of justice.
13.
The order made on the previous day was revoked, and replaced by an order under
s.46 of the Youth Justice and Criminal Evidence Act 1999
. The order provided that:
“(1) no photograph, pseudo photograph or other image of
(a)
Lisa Willis
(b)
Her children or any of them (with or without Lisa Willis)
Shall be published in any way which connects them or any of them (whether through reports of these proceedings or otherwise howsoever) to the case of
R v Michael Philpott
,
Mairead Philpott and Paul Mosley
”.
The press and media were given liberty to apply for amendment or revocation of the order on 24 hours notice.
14.
Immediately after the order was made, the mother began her evidence. So as to avoid any disruption of the trial, the media postponed their application for the revocation of the order until the end of the evidence, after closing speeches were underway. The evidence of the mother was given in open court, and was widely reported throughout the media. No one has suggested that the media was unable to report her evidence in meticulous detail, or inhibited, let alone prevented from doing so, by Thirlwall J’s order.
15.
On 3 April the media application for revocation of the order was heard and dismissed. In her judgment next day Thirlwall J made clear that she could not, and that she did not believe that anyone listening to the case would, find it “easy to understand the purpose” of publication of photographs or film of the mother and her children. After considering submissions on behalf of the media and the Crown which in effect were repeated before us, she concluded that the jurisdiction to make the order prohibiting publication of the photographs was based on or created by s.46 of
the 1999 Act
, and that notwithstanding that an internet search would produce images of the mother on websites outside the jurisdiction, the order should not be revoked. She reflected on the Article 8 rights of the witness and the Article 10 rights of the press, without regard to the Article 8 rights to the children. She concluded that there was not “the slightest doubt” that such publication would have “a very damaging effect” on the mother and her children.
Section 46
of
the 1999 Act
16.
Every court in England and Wales conducting criminal proceedings may make a reporting restriction order applicable to any adult who is a witness in the proceedings (other than a defendant). The protection of child witnesses is ensured by
s.39 of the Children and Young Persons Act 1933
.
17.
Section 46(6)
defines a reporting direction as:
“A direction that no matter relating to the witness shall during the witness’s life time be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.”
18.
Publication of the name and address of the witness, any educational establishment attended by the witness, the identity of any place of work, and “…(e) any still or moving picture of the witness”
may be prevented.
19.
The order may only be made in support of a witness eligible for statutory protection. The “eligibility” requires the court to be satisfied:
“3(a) that the quality of evidence given by the witness, …
is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings”.
20.
In deciding whether any particular witness qualifies for eligibility the court must:
“(4) … take into account, in particular
(a) the nature and alleged circumstances of the offence to which the proceedings relate;
(b) the age of the witness;
(c) such of the following matters as appear to the court to be relevant namely
(i) the social and cultural background and ethnic origins of the witness
(ii) the domestic and employment circumstances of the witness, and
(iii) …
(d) any behaviour towards the witness on the part of
(i) the accused,
(ii) members of the family or associates of the accused, or
(iii)”
In addition to these specific matters, the court must also “consider any views expressed by the witness”.
21.
Provided the witness is eligible for protection and that it is appropriate for a reporting direction to be made, before making the order, the court must consider:
“(8) …
(a) whether it would be in the interest of justice to do so, and
(b) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.
22.
If the eligibility test is met, the court may also impose a reporting direction which is subject to “an excepting” directions, dispensing with restrictions which might otherwise be thought appropriate. Dealing with it broadly, the effect is that the court may limit the reporting direction, as it did here, to a photograph or film of the witness. In short the effect of any restriction should be limited to those which are reasonable bearing in mind the context of the public interest in the reporting of proceedings.
23.
The reporting restriction may be revoked by the court of trial or an appellate court, that is “court dealing with an appeal … arising out of the proceedings …”. (s.46(12)
The application
24.
The first issue is to identify the basis on which Thirlwall J’s decision may be considered by this court. When she refused to revoke the restriction decision, the main submission was that the s.46 order was made without jurisdiction and that accordingly it should be revoked under s.46(10). There is no doubt that a reporting restriction may be revoked by the appellate court in any “proceedings” before this court. However, the present application, of course, is confined to the restriction order. The court is not otherwise concerned with any proceedings between any of the three defendants at trial and the Crown, or indeed any issue arising from it.
25.
Section 159(1)(a)
and (b) of
the 1988 Act
enable an applicant to apply to this court for leave against a reporting restriction order made in relation to a trial or indictment under s.4 or s.11 of
the 1981 Act
and s.58(7) and
s.58(8) of the Criminal Procedure and Investigations Act 1996
.
Section 159
goes on to provide that the application may also extend to:
“…
(b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and
(c) any order restricting the publication of any report of the whole or any part of the trial on indictment or any such ancillary proceedings …”
26.
These provisions are designed to enable the media or any member of the public aggrieved by an order restricting access to a trial in the Crown Court to invite this court to interfere with, amend or revoke the order. Given the importance attached to the principle that criminal justice should, so far as possible, be exercised in public, it should therefore be given the widest possible construction. In our judgment a reporting restriction within s.46 of
the 1999 Act
falls within the ambit of
S.159(1)(c)
of
the 1988 Act
, and does so even when the restriction on reporting is confined, as this order was, to photographs or film. If the order should not have been made, and in particular if there was no jurisdiction enabling the order to be made, it should be revoked whether or not any other proceedings are before this court.
27.
In the event of an appeal against conviction or sentence (or indeed a Reference by the Attorney General) then, in accordance with s.46(12) of
the 1999 Act
the jurisdiction of the Court of Appeal to revoke any restriction or “excepting” order would be immediately engaged without the need for further reference to s.159 of
the 1988 Act
. However where there is no such appeal, but the media remains aggrieved by the restriction order, s.159 provides the route to a remedy.
28.
The issues raised on behalf of the media merit attention in this court, and accordingly leave to appeal under s.159(1)(c) is granted.
The decision
29.
Stripped to essentials, the submission by Ms Heather Rogers QC is that the meaning given to reporting direction in s.46(6) did not extend to the order made by Thirlwall J, notwithstanding that the order itself was very limited in its scope, confined as it was to any photograph, pseudo photograph or other image of the mother and her children. Naturally enough, Ms Rogers began her submissions by underlining the importance of the principle of open justice. We agree, and need no anxious repetition of the many statements of principle to demonstrate the reasons why we do agree. Her next submission was that the Crown Court had no powers at common law to make any such order. The power to do so was contained in statute. We agree. She submitted that an order for special measures did not of itself justify the reporting direction, and that the reporting direction should not automatically follow any special measures order. Again, we agree.
Section 46
provides a distinct power which may be exercised alongside a special measures direction, but also, separately from it. Eligibility for such a reporting restriction does not automatically follow from the need for special measures. It requires a distinct fact finding decision. Yet again, we agree. She suggested that the protection of the children of the adult witness did not arise in the context of s.46. These were issues better addressed, and more important, properly addressed, in family courts. Dealing with it generally, we immediately recognise the force of the submission that in relation to the identification of children (taken separately from that of their parent) the Family Division is normally the appropriate venue. Nevertheless the criminal courts must control their own processes, and the fact that the family court may protect the identity of the children, is not sufficient on its own to deprive the Crown Court of the jurisdiction under s.46. The eligibility conditions may be established as here, where publication of the photographs of her children would be likely to lead to the identification of the mother, and the risks would be likely to impact on the quality of the mother’s evidence at trial. As Mr David Farrer QC for the Crown observed, the order offered “reassurance to a witness to preserve the integrity of his or her evidence”. In our view reference in the order to the children was integral to the eligibility test as it applied to their mother.
30.
The crucial difficulty is at the last stage of Ms Rogers’ submission. She submitted that the mother has already been identified by previous publications, television programmes, and the internet. Indeed the name of Lisa Willis, and her identification as the mother of children of whom Philpott is the father is effectively common knowledge. She gave her evidence as Lisa Willis. In that sense she was and is fully identified as a witness.
31.
The difficulty with this submission arises from the reality that in the overwhelming majority of cases the “identity” of every witness is known. If the jurisdiction to make an s.46 order were restricted in the way suggested, the “eligibility” test would be virtually confined to the rare case of the anonymous witness. Anonymity, however, is an entirely distinct and extreme form of special measure for which a separate statutory system is in place. Without repeating s.46(7) it seems clear that it extends beyond the bare naming, that is the identifying, of the witness. Thus a still or moving picture of the witness may be prohibited if the “eligibility” test is satisfied, whether or not the name and identity of the witness is otherwise known. This approach is reinforced by analysis of the wide ranging “excepting” direction in s.46(9). This sub-section anticipates that the ambit of the reporting restriction may be much wider than the mere naming of the witness. It anticipates that the reporting restriction may impose substantial restrictions on reporting which, in the context of the public interest, are unreasonable. If Ms Rogers were right neither the provisions in s.46(7) nor those in s.46(9) would be necessary. As it is they demonstrate that the ambit of the reporting direction is much wider than she suggested, but s.46(9) also underlines that even when a reporting restriction is appropriate, it should be no wider than necessary to avoid any diminution in the quality of the evidence to be given by the witness.
32.
In our judgment this order was appropriately made. The appeal is accordingly dismissed. | {"ConvCourtName":["Nottingham Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Manslaughter"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Nottingham Crown Court"],"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":["Other"],"CoDefAccNum":[2],"AppealAgainst":["Reporting restriction order"],"AppealGround":["Order under s.46 of the Youth Justice and Criminal Evidence Act 1999 was made without jurisdiction; order should not have been made as identity of witness already public"],"SentGuideWhich":["s.159 of the Criminal Justice Act 1988","s.46 of the Youth Justice and Criminal Evidence Act 1999"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Order was appropriately made under s.46; eligibility test satisfied; restriction not wider than necessary; public identification does not preclude s.46 order; open justice principle considered"]} |
No:
04/2015/A4
Neutral Citation Number:
[2004] EWCA Crim 1015
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday 21 April 2004
B E F O R E:
LORD JUSTICE KAY
MR JUSTICE RODERICK EVANS
and
MR JUSTICE PITCHERS
- - - - - - -
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 CRIMINAL APPEAL ACT 1995
R E G I N A
-v-
DELROY CARL MELADY
- - - - - - -
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 ADAM PEARSON
appeared on behalf of the APPELLANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE RODERICK EVANS: This appellant appeals against a sentence imposed upon him at the Crown Court at Nottingham on 10th January 2003. His application for leave to appeal against sentence was refused by the single judge on 3rd April 2003 and was not thereafter renewed. The matter now comes before the court following a reference by the Criminal Cases Review Commission.
2.
The matter which gives rise to the reference is how time spent in custody by a defendant following administrative revocation of a licence from an earlier sentence should be regarded when the defendant appears for sentence for offences committed during the 'at risk' period of that earlier sentence and the court wishes to exercise its powers under
section 116 of the Powers of Criminal Courts (Sentencing) Act 2000
.
3.
In order to understand the way in which the present problem has arisen it is necessary, albeit briefly, to set out the relevant parts of this appellant's history of offending and sentences.
4.
On 20th April 2001 Mr Melady was sentenced to serve six months' imprisonment. On 24th May 2001 he was sentenced to serve two years' imprisonment. That was ordered to run consecutively to the earlier six-month period. Under the terms of
section 51(2) of the Criminal Justice Act 1991
the two periods of imprisonment were to be treated as a single term of imprisonment. The total length of sentence was therefore two years six months' imprisonment. The Prison Service calculated this to be a total of 764 days, which was adjusted for time spent by the appellant in police custody.
5.
The appellant was therefore a short-term prisoner for the purposes of section 33 of the Criminal Justice Act. Under the terms of section 33(1)(b), the Secretary of State was under a duty to release him on licence after the appellant had served one-half of his term of imprisonment.
6.
On 15th March 2002 Mr Melady was conditionally released on licence. At the date of his release, the following were the significant dates in relation to the original sentence. The licence expiry date was 19th September 2002 and the sentence expiry date was 30th March 2003. That meant that at the time of his conditional release on licence the appellant had 188 days left on his licence and the unexpired period of the original sentence was 380 days.
7.
The charges which gave rise to this present prosecution arose firstly on 5th April 2002 when Mr Melady was observed to run away from an abandoned vehicle which had been stolen. He was subsequently arrested and bailed.
8.
At the time of his arrest, he had 167 days to run on his licence and 359 days was the unexpired portion of the original sentence.
9.
On 6th May 2002 Mr Melady failed to attend the police station in answer to his bail and on 14th May 2002 the Secretary of State exercised the powers granted to him by section 39 of the Criminal Justice Act and revoked the appellant's licence administratively.
10.
On 17th May 2002 the police were involved in a high-speed pursuit of a stolen vehicle. That vehicle was driven by the appellant, and the appellant was eventually arrested.
11.
At the time of that arrest, Mr Melady had 125 days to run on his licence and the unexpired portion of the original sentence was 317 days.
12.
On 17th May Mr Melady started a period of imprisonment as a licence revokee. At the same time he was also on remand for the new offences. This state of affairs existed until 19th September 2002, when the licence period expired. The period between 17th May and 19th September 2002 amounted to 125 days. From 20th September 2002 to 9th January 2003 the appellant was remanded in custody pending trial for the new offences. The total time during which the appellant was held solely on remand was therefore 112 days.
13.
On 10th January 2003, following the entering of guilty pleas, the appellant appeared before Her Honour Judge Hampton to be sentenced. In relation to the new offences, that is those offences committed on 5th April and 17th May 2002, he was sentenced to a total of three years' imprisonment. The judge considered the fact of the appellant committing offences during the unexpired portion of the original sentence. She was informed by the Crown that as at 17th May 2002 there was an unexpired portion of the original sentence of 317 days. The judge exercised her powers under
section 116
of
the 2000 Act
and ordered the appellant to serve 315 days of the original sentence before he started to serve the three years imposed for the new offences.
14.
Following his remand to prison, the Prison Service calculated the date upon which Mr Melady was to be released. On 7th February 2003 the authorities at Ashwell Prison calculated that the conditional release date would be 23rd April 2004. In so doing, the prison authorities gave Mr Melady credit for 236 days which he had spent on remand and during his period in police custody. Included within that period of 236 days was the 125 days which Mr Melady served during the period when his licence had been revoked.
15.
When later transferred to a different prison, the prison at Ranby, the authorities recalculated the release date. The prison on that occasion gave Mr Melady credit for 104 days, which was time that he had spent on remand, and calculated his conditional release date to be 2nd September 2004. The prison then refused to give Mr Melady credit for the 125 days served during the period of licence recall.
16.
When the judge passed sentence, she made no allowance when fixing the 315-day period which the appellant was to serve from his last sentence for the fact that he had already served 125 of those days.
Section 67 of the Criminal Justice Act 1967
authorises the Prison Service to reduce sentences of imprisonment to reflect certain periods of time spent in custody. However, periods spent in custody which are attributable to the administrative revocation of a licence do not come within the ambit of
section 67
. The result is, as in this case, that the 125 days cannot be deducted from the 315 days, nor can it be deducted from the subsequent sentence of imprisonment - in this case the three-year term - as that period refers to different offences.
17.
In the case of
Sharkey
[2001] 1 Cr App R 409
, Lord Bingham said that, in circumstances similar to those that exist in the present case, the court would in the ordinary way wish to make allowance for any time spent by a defendant following administrative recall under his licence.
18.
In this case credit should have been given for the 125 days spent in custody. As the appellant is a short-term prisoner, each day spent in custody equals two days imposed by way of a sentence. Therefore, in giving allowance at this stage, the 125 days falls to be doubled. Therefore from the period of 315 days imposed by the judge we deduct 250 days and impose instead of the 315-day period a period of 65 days. Therefore the sentence will be 65 days, followed by three years. To that extent this appeal is allowed. | {"ConvCourtName":["Crown Court at Nottingham"],"ConvictPleaDate":["2003-01-10"],"ConvictOffence":["offences committed on 5th April and 17th May 2002 (involving stolen vehicles and high-speed pursuit)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[112],"SentCourtName":["Crown Court at Nottingham"],"Sentence":["315 days imprisonment (to serve from original sentence) followed by 3 years imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["time spent in custody following administrative revocation of licence should have been credited"],"SentGuideWhich":["section 116 of the Powers of Criminal Courts (Sentencing) Act 2000","section 67 of the Criminal Justice Act 1967"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["no allowance was made for 125 days already served during licence recall"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Case No:
2002/4612/B4
&
2002/5482/B4
Neutral Citation Number:
[2004] EWCA Crim 2100
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURRT
HHJ HAMMOND
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 30
th
July 2004
Before :
LORD JUSTICE LATHAM
MR JUSTICE BEATSON
and
SIR CHARLES MANTELL
- - - - - - - - - - - - - - - - - - - - -
Between :
RONALD KEVIN BENN & SYLVIA BENN
Appellants
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr CH Blaxland, QC and Mr J Gregory
(instructed by
Stephensons
) for the
Appellant Kevin Benn
Mr AF Jennings QC and Maya Sikand
(instructed by
Stephensons
) for the
Appellant Sylvia Benn
Mr David Barnard & Mark Stanger
(instructed by
HM Customs & Excise, Prosecution Group
) for the
Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Latham :
1.
On the 29
th
October 1997, these two appellants were convicted of conspiracy to evade the prohibition on the importation of Class A controlled drugs. Ronald Benn was sentenced to 9 years imprisonment, and Sylvia Benn to 6 years imprisonment. On the 10
th
December 1998, the full court refused both appellants’ renewed applications for leave to appeal against conviction which were based upon criticisms of the summing-up. They now appeal following the referral of their cases to this court by the Criminal Cases Review Commission (the Commission) under the
Criminal Appeal Act 1995
. The two grounds for referral to which we will refer in more detail later, were that on the one hand expert evidence had been obtained which threw doubt upon certain crucial findings relating to the presence of cocaine on items of theirs, and on the other that there were deficiencies in the judge’s summing-up relating to the effect of
Sections 34
and 36 of the
Criminal Justice and Public Order Act 1994
on the appellants’ refusals to answer questions in interview or provide an explanation of certain items of property when arrested.
The Prosecution Case
2.
The case against the appellants was entirely circumstantial. Customs and Excise had noted that between July 1994 and November 1995 the appellants had made a total of thirteen trips from Hull to Rotterdam several being for very short periods, with various different return routes. On two occasions they had been stopped and on one occasion Mr Benn had given an account of their movements which was untrue. On the 30th November 1995, they were stopped at Hull in Mr Benn’s BMW motorcar. When questioned, he denied that he had any cash in the car. But when they searched the car, customs officers found a green holdall containing just short of £63,000 in bank notes. He gave an account as to where the money had come from, which the prosecution was able to establish was untrue.
3.
The notes were examined and found to be significantly contaminated with cocaine. The main issue in this reference is the question of what inference or inferences can properly be drawn from the level of contamination found. But this evidence was only one part of the prosecution case.
4.
As a result of the finding of cocaine on the notes, customs officers went to the appellant’s home on the 19
th
March 1996. Officers examined a safe and its contents, which consisted of bundles of money; both the inside of the safe and the money were contaminated with cocaine. A vacuum cleaner was examined. The dust in the dust bag was heavily contaminated with cocaine. Five suitcases were seized and found to be contaminated with cocaine. The BMW motorcar was examined; and contamination was found in the boot and in the passenger compartment.
5.
In addition to this forensic evidence, an analysis of the appellants’ financial position showed that it improved markedly after each of the trips to the continent which the Customs and Excise were able to identify. In particular, after a journey in 1994, substantial sums of money were paid into their bank account, they discharged a number of credit card debts, paid off a large part of their mortgage, and some outstanding judgment debts, and paid for building work. They bought cars and enjoyed an expensive lifestyle which appeared to be financed by cash.
6.
When interviewed on the 17
th
April 1996, they made no comment to the questions that they were asked. Each had a solicitor while interviewed. Before each interview the solicitor read a prepared statement stating that he had advised his client to make no comment firstly because there were so many documents that had been seized questions could not be answered adequately, and secondly, because the appellants had lost confidence in the integrity of the procedures regarding the seizure of the £63,000 and the application for its forfeiture.
The Defence Case.
7.
The appellants accepted the forensic evidence as to the finding of cocaine contamination on the notes, but asserted that it was either innocent, in the sense that there was no reason to believe that the contamination on the cash was other than contamination which could have occurred during the lifetime of notes in ordinary circulation, or alternatively was the result of contamination by the handling by the customs officers or in the course of the forensic investigation. As far as the safe, the money in the safe, and the suitcases were concerned, that contamination was also either innocent or the result of contamination by those who were examining the items. As far as the dust in the vacuum cleaner was concerned, that was a cleaner which had been used at a hotel in which Mr Benn had an interest in Blackpool, and must have been contaminated there. In turn, that could have contaminated the interior of the BMW. The five suitcases had been contaminated during the investigation.
8.
As far as the money found with them in Hull was concerned, the appellants’ case was that was for the purchase of camper vans and consisted partly of his own cash and partly cash from three other individuals, including £12,000 from a Mr Garner. Mr Garner, however, did not support that account when he gave evidence. As far as the apparent transformation in the appellants’ lifestyle was concerned, they accepted that that was the result of the trips they made in 1994 and 1995 to the Continent, but said that the money came from the illicit sale of Sky Cards for Satellite Broadcasts and subsequently dealings in camper vans.
The forensic evidence at trial.
9.
The prosecution relied on the evidence of Dr Sleeman. He is a forensic chemist employed by Mass Spec Analytical Ltd, a company which has for many years specialised in chemical analysis using a method known as mass spectral analysis. The technique is extremely sensitive. It can detect one nanogram of a drug, that has been described in layman’s terms as being approximately one million times less that a single grain of sugar, but it cannot identify the precise quantity of the drug, although it can determine orders of magnitude. Scientific evidence for the appellants was given by Dr Young, also a chemist who was familiar with the technique used by MSA Ltd and who did not seek to dispute the validity of the technique or the reliability and accuracy of its findings, but merely the inferences which could or should be drawn from those findings.
10.
Unfortunately, there is no transcript of the evidence of either Dr Sleeman or Dr Young. We have been provided, helpfully, with typed copies of the notes made by prosecution junior counsel, which do not pretend to be a complete or verbatim record. Otherwise, we are dependent upon the judges’ summing up and the comments which have been made on it by Dr Sleeman and counsel.
11.
Dr Sleeman described to the jury the way in which mass spectral analysis was carried out, and in particular the method used to obtain the debris which was subject to this technique. As far as the notes found in the car were concerned, these were subjected to two investigations. The first was by what was described as batch analysis. This involved using a hand held vacuum cleaner with a specialised collection system, called a disposable brush-cartridge assembly (DBCA). The results obtained from each batch were then compared with a database obtained by another employee of MSA Ltd as a result of the examination of batches of used notes obtained from the Bank of England. The comparison showed the level of cocaine contamination on the batches of notes taken from the appellants was on average ten times higher than the cocaine contamination on the Bank of England notes, and that on some batches the level was 25 times that of the batches from the Bank of England. Individual notes were then subjected to a technique which vaporised any contaminants on the notes: The contamination levels were then compared with the levels on a data base taken from 3000 notes obtained by MSA Ltd from High Street Banks. The findings on this investigation confirmed the findings using the DBCA method.
12.
Dr Sleeman’s evidence was that there was extremely heavy contamination, “very much higher than is typical” and that one possible explanation was that they had been in intimate contact with drugs. He accepted that there was the possibility of innocent contamination, although the checks that were made during the examination procedure suggested that it had not occurred. He was unable to rule out the possibility of contamination, but the level of contamination was not in his opinion capable of being explained by external or innocent contamination. Dr Young agreed that the level of cocaine contamination was significantly higher than notes from general circulation, but he was concerned that this might have happened purely by chance, alternatively it might have been the result of contamination during the investigation, in which case the results should be ignored.
13.
In his summing, the judge correctly stated that Dr Sleeman and Dr Young were agreed as to the primary findings, and correctly reminded the jury that the evidence of both of them was to the effect that cocaine had a propensity to stick to bank notes, and that, at the time, it was thought that at least 80% of all bank notes in circulation would be contaminated with cocaine to some extent. He continued:
“Now, members of the jury, both Dr Sleeman and Dr Young agree that the mere fact, or the mere finding from the testing of large amounts of contamination on notes cannot itself determine by whom or when or what circumstances that contamination came to be deposited and common sense would tell you that. But if you have got a very large sum of money, say the prosecution of sixty odd thousand pounds, the prime piece of evidence in this case and so much of it in different containers, plastic bags, as you know different wrappings and the contamination distributed throughout the bundles in large amounts as you have seen from your graphs and the documents put before you, then it is really going a lot further than simply notes taken at random and it points very strongly, says Dr Sleeman, to the person holding those notes being very close to the sources of contamination, and the sources of contamination are drug users and drug dealers.
The defence say, through Dr Young and Mr Riordan (counsel for Mr Benn) reminded you of this, but this is not good enough, there is another explanation possible, it is not the sole explanation. Well members of the jury, the analogy of the lottery, you may think, is apt. I tried to do the calculation during the course of the trial. I think Dr Young agreed it is more than a thousand million to one that we need but that somebody usually wins but then everybody else loses, but it is a thousand million to one.
Perhaps if you think of one note turning up in the volumes of notes in circulation, then you get notes of practically all of £62,000 worth of notes, 10, 20s, and so on then the coincidence is, the prosecution suggest, very striking indeed and whilst it is possible to find another explanation if you stretch your imagination a long way, that is not reason really reasonable; it is going too far, to stretching human incredulity far too far indeed. Members of the jury, Mr Riordan used the phrase “consistent”. It certainly is consistent with it coming from drug dealers. The question you have to address is are you sure it is not consistent with something else.”
14.
As far as the safe and its contents were concerned, both Dr Sleeman and Dr Young noted that the officer who obtained the samples had gone into the appellants’ home, together with other officers without protecting clothing. Samples taken from the protective suit which he ultimately put on before examining the safe and its contents showed traces of cocaine. These were only at about one tenth of the level found inside the safe; and was significantly less than the findings on the notes in the safe. The notes, however, showed levels of cocaine contamination which, although not as high as the notes found in the car, were nonetheless higher than the levels found on the Bank of England notes. Dr Sleeman, in his evidence, accepted that the method used to obtain the samples from the safe and its contents was flawed and that the findings should be viewed with some caution. He repeated this in cross-examination; and in re-examination said that although contamination was unlikely, he could not rule it out completely. Dr Young concurred. But it should be remembered that he took the view that if there was any risk of contamination, the results should be ignored.
15.
In his summing-up, the judge correctly reminded the jury of the deficiencies in the examination and continued:
“But members of the jury, you are entitled to use your own common sense as well and ask yourselves the question; “which is the more likely source of the contamination, the suit with the lower level or the inside of the safe the higher level?” you have to consider that one.
However, there is another question to be addressed. Mr Unsworth had gone through the house, other people were in the house. Did other people have contamination on them or not? Is that a possibility? Is it a realistic possibility? Is it one that you feel you cannot exclude bearing in mind that the prosecution must prove the case. What all this comes down to is what Mr Riordan was talking about when he talks about the integrity of the sampling and so you must look at all aspects of the case.
The money that came from that safe was independently, at least the sampling was tested, and that was shown to have levels not as high as the £62,000, you will remember, but still significantly higher than the levels of contamination to be found on money in general circulation.
You will also remember the criticism that advance of Mr – I forgot the officers name – the officer whose notebook you have in your bundles suggested that he may have been adding something to his notes to suggest that the safe had been unlocked and the key retained safely by someone else then only then again opened for Mr Unsworth. In other words you have to consider the question of whether it is possible for someone else by going into that safe had perhaps inadvertently or otherwise contaminated the contents of that safe.”
16.
As far as the contents of the bag of the vacuum cleaner found at the appellant’s home were concerned, there was no dispute. They were heavily contaminated, but not in nanograms; the calculation carried out by Dr Sleeman, which was not challenged by Dr Young, was that approximately 34 milligrams of cocaine was distributed among the contents. This level suggested that the vacuum cleaner “hoovered up cocaine which had been spilt on the floor”. The issue for the jury was whether or not the appellants’ explanation might be true, namely that the vacuum cleaner had at one stage been used at the hotel in which Mr Benn had an interest, so that the contents could have been the result of its use there.
17.
In his summing-up, the judge said:
“Then we come to the vacuum cleaner. Members of the jury, much in this case depends on the history of that vacuum cleaner. All that Customs did was to inform Mr Hughes, seize the first vacuum cleaner bag that was there on the basis, well we always do that because we are looking, we don’t know what we are going to find. Having seized it and the contents were subject to analysis. I think something like, was it, 3.4 mmgs by extrapolation of cocaine were found distributed throughout the various bits of, in other words, inside the totality of the dust and in that vacuum cleaner. Now that is not random traces, that is not nanograms that is a quantifiable amount of cocaine.
The suggestion will be, how does cocaine get in somebody’s vacuum cleaner unless it has been used to vacuum something with cocaine on it like a carpet, may be something has been spilt. Members of the jury that is very cogent evidence. So very much depends on the history of the vacuum cleaner, where has it been, where has the cocaine come from, if it is a vacuum cleaner which is normally in the house, never been out of the house, it has quite serious import. So the history of the vacuum cleaner, how long has it been there, where has it been, becomes important.”
18.
The evidence relating to the suitcases, and the use made of it, is somewhat less clear. There is no doubt that traces of cocaine were found on all five suitcases. However, there is also no doubt that as far as two of the suitcases were concerned, controlled samples suggested that there may have been contamination either during the storage or investigation process; and it was accepted by the prosecution that their storage, which was in Manchester Airport, was not ideal and could have given rise to contamination. We have been told that the suitcases ultimalty played no part in the prosecution’s case. However it is to be noted that Dr Sleeman answered some questions about the suitcases in examination in chief, and in one answer suggested that the most likely explanation in relation to one of the suitcases was that it had been used to carry cocaine. But he accepted the risk of contamination in his cross-examination; and Dr Young stated that that contamination should be ignored.
19.
The judge in his summing up said:
“As regards some of the suitcases, well those suitcases had in fact been stored in the warehouse but not in plastic bags. When they came out and the foil was tested in two of the cases the foil gave a reading, not a very high one but still gave a reading. What both Dr Sleeman and Dr Young said as regards those two suitcases “Well you have got the reading of the controlled of the foil which showed contamination, please ignore the finding about the suitcase because you can’t rely on it.”.
20.
He did not mention the other suitcases at all in the course of the summing up.
21.
Finally as far as the forensic evidence was concerned, there were findings of contamination in the BMW. As we have said, the examination of the BMW, using the DBCA collection method, showed the presence of cocaine in the boot, and in the passenger compartment. Dr Sleeman accepted that it was possible that the contamination could have been the result of the vacuum cleaner having been carried in the boot of the car, and that some contamination might have occurred if the vacuum cleaner was used to clean the inside of the car. He also accepted that contamination could have occurred when customs officers were examining the car and its contents in Hull. However, he did not consider that the levels of contamination were consistent with that. Dr Young confirmed the risk of contamination accepted by Dr Sleeman, and said, as he had before, that where there was the risk of such contamination, the results should be ignored.
22.
The judge in the summing-up said:
“Members of the jury, Dr Young in dealing with that said that if the vacuum cleaner had been brought back from Blackpool, depending on where it had been, if it was already itself contaminated, it is a possibility that contamination would have been transferred across into, for example, the boot of the car. As regards the other parts of the car, if the vacuum cleaner had been used, for example, to clean using its tools and the same tools had been used to vacuum the inside of the car, then there is a possibility of a transfer across.
No one has given any evidence to that vacuum being used to clean the car but evidence was given by Mr Benn that he brought it back in the boot of his car. So that would be an explanation for the contamination in the boot of the car but not an explanation for contamination anywhere else. And this is what the defence say here is that that car was rummaged by customs officers and those customs officers were not wearing any protective suits in November when they rummaged that car and is it not a possibility if they, being customs officers, had come into contact with others with drug money with cocaine upon them or other things that had cocaine upon them when they searched the car could have transferred it from those persons to the car. That is a fact you will have to consider”
23.
The judge further reminded the jury of the evidence that the BMW had only been in the possession of the appellants for about three months before November 1995 and that it, indeed, remained registered in the name of its previous owner, Mr Jackson at the time of its seizure in March 1996.
The decision of the Commission
24.
The Commission referred Mr Benn’s conviction to this court on the 31
st
July 2002 solely on the basis of evidence that had been submitted by Mr Bottomley who is a chemist employed by what is described as the Laboratory of the Government Chemist Ltd. This is a potentially misleading title as it is a private company, although a substantial proportion of its work is undoubtedly for Government Departments, and, from the information provided to us in Mr Bottomley’s statement would appear to have some statutory role in certain areas. His report raised a number of concerns about the techniques used to obtain samples and about the machine used to test the resulting samples. He pointed to a considerable amount of documentation suggesting that significant doubts had been raised about the accuracy and reliability of the technique used by MSA Ltd, particular using the DBCA method for collecting samples which apparently showed a number of “false/positive” results. The Commission concluded that the risks of contamination disclosed by this material had not been known to the defence at the trial and had therefore not been subjected to evaluation during the course of the evidence.
25.
Mr Bottomley also raised concerns about the possibilities of innocent contamination having occurred to the notes during the course of their handling by Customs and Excise whilst they were being collected, stored and examined. He also raised issues as to the possibility of similar contamination of the samples from the safe, the cleaner bag, the suitcases and the car. Finally Mr Bottomley raised concerns about the validity of the comparison between the level and the distribution of cocaine on the notes found in the car, and the level of distribution of drugs on the notes “in general circulation”.
26.
The Commission concluded that Mr Bottomley had indeed raised issues in relation to possible innocent contamination of the items that had been examined which were new and which justified a reference even though the issue of contamination in general had been considered during the course of the trial. It considered that the issue as to the validity of the inference to be drawn from the level of cocaine on the notes found in the appellant’s possession and the databases which were used for his comparison by Dr Sleeman was a new issue which in itself would justify a reference to this court. It referred the cases on the basis that there was a real possibility that this court would admit his evidence under
Section 23
of the
Criminal Appeal Act 1968
and that there was a real possibility that the conviction would, as a result, not be upheld.
27.
As we have already indicated, in the case of Mrs Benn, the reference, which was on the 16
th
September 2002, was on the additional basis that there had been a misdirection by the judge in relation to the inferences which the jury would be entitled to draw from the appellant’s failure to answer questions, under
Sections 34
and 36 of the
Criminal Justice and Public Order Act 1994
.
The Appeal
28.
The grounds of appeal reiterated the issues raised by the Commission in its references, that is the doubts as to the validity of the methodology employed by MSA Ltd, the doubts as to the robustness of the findings because of the risks of innocent contamination, the use made of the results of examinations which were, or are now, accepted to be matters which should not have been put before the jury, and the validity of the inferences drawn from the comparison between contamination on the notes in question and those in the data bases. Both appellants submit that the judge misdirected the jury in relation to
Sections 34
and 36. And, at the hearing, Mr Blaxland QC, on behalf of Mr Benn sought to raise as a ground of appeal the fact that the judge did not give to the jury any direction in his summing up as to their approach to their lies told by Mr Benn. In support of their grounds of appeal in relation to the forensic matters, they sought leave under
Section 23
of the
Criminal Appeal Act 1968
to call Mr Bottomley, Dr Evett, and Professor Laycock. The prosecution sought leave to call the evidence of Professor Monaghan, Dr Sleeman and Professor Brereton. We considered that it was expedient in the interest of justice to admit the evidence of all those witnesses, although for reasons which will become apparent, we did so in relation to Mr Bottomley without enthusiasm. Each of the witnesses provided us with extensive written material, for which we were very grateful, and which constituted their evidence in chief; and each was cross-examined.
The evidence
Mr Bottomley:
29.
His first statement is dated the 24
th
January 2003, it contains an extended critique of the methodology used by MSA Ltd and a detailed examination of the circumstances which could have given rise to innocent contamination accounting for the traces of cocaine found by Dr Sleeman. His conclusions were set out in paragraph 22 as follows:
•
“The detection limit for the identification of a compound using the mass spectrometry is of the order of a few thousand millionths of a gramme. It is possible to detect particles which are invisible to the naked eye.
•
It is
not
possible to say
how
a trace of a particular drug comes to be deposited on a certain item.
•
By using sensitive techniques such as mass spectrometry it is possible to detect traces of drugs in items many months or even years after they have originally been in contact with drug particles.
•
It is
not possible
to determine the
origin
of the traces of any controlled substance found on items such as a bank note and then compare it with any larger seizure of drugs found elsewhere.
•
It is possible for traces of drugs to be present on an item or motor vehicle without the owner of the item knowing about them.
•
Very careful precautions will be required in order to prevent the inadvertent contamination and/or cross-contamination of items during the transfer, secure storage and analysis of seized items.
•
If the reported results are to have any evidential value, then the possibility of accidental cross-contamination of the bank notes by Customs Officers or other people must be excluded.
•
From the evidence which I have seen in this case there does not seem to be any direct evidence to link Mr & Mrs Benn with the larger quantity of controlled drugs.
•
There is a possibility that the inadvertent use of a domestic vacuum cleaner may have resulted in the cocaine contamination found at Mr & Mrs Benn’s house and in their BMW motor car.
•
The cocaine found in the vacuum cleaner dust bag may well have originated somewhere other than at 153, Leander Drive.
•
The removal and seizure of the vacuum cleaner dust bag by Mr Brian Hughes and its subsequent handling by the Exhibits Officer, Mr Riley, may have resulted in other items handled by Mr Riley becoming contaminated by dust and drug particles.
•
In my opinion the re-analysis of the bank notes by MSA Ltd using the relatively new “individual Bank Note Technique” after the bundles of notes had already been sampled by officers of HM Customs and Excise may have given the impression that the bank notes had a higher frequency of contamination as was in fact the case due to the redistribution of drug traces during the original handling and sampling.
•
The use of the hand held vacuum sampling system by officers of HM Customs and Excise may have resulted in drug particles being removed from articles sampled and subsequently being blown out of the vacuum and into the air thereby resulting in the contamination of other items.”
30.
In his second statement of the 13
th
June 2003, he raised the question of the validity of the comparison between the level of contamination on the notes in the appellant’s possession, and the notes in the data bases. His summary was as follows:
•
“The number of cases undertaken by MSA Ltd prior to the Benn case was extremely limited. The Benn case was only the third case of this type undertaken by MSA.
•
The number of “background studies” carried out on bank notes from general circulation at the time of the Benn case was also limited and the only significant study related to 97 bundles of notes as detailed in Fletcher Burtons MSc Thesis dated October 1995.
•
The data contained in the Fletcher Burton MSc Thesis seems to indicate that different denominations of bank notes have different levels of cocaine contamination on them.
•
The data contained in the Fletcher Burton MSc Thesis also seems to indicate that there may be geographical differences in contamination levels found on bank notes taken from “general circulation” and notes collected from London may have different levels of cocaine contamination on them.
•
There is no definition of what constitutes “general circulation” bank notes and the history of bank notes taken from High Street banks and the cash collections centres is unknown.
•
The MSc Thesis also concedes that a larger study needs to be undertaken to further validate these findings and concludes that a detailed statistical study of the data may reveal further information.”
31.
This second report raises the issues upon which the main focus of the evidence before us was directed. He pointed out that the data base which was used as a comparator with the batch analysis of the notes taken from the appellants was one which was created by Mr Fletcher Burton, an employee of MSA Ltd, obtaining 97 bundles taken at random from used notes returned to the Bank of England. The other data base consisted at the time that the comparison was made, of 3,000 notes which had been obtained by MSA Ltd from High Street banks, mainly their own bank in Bristol. The point being made by Mr Bottomley was that neither data base was, in his opinion, sufficient either in number, or as being relevant and representative as a sample of used bank notes, to be capable of providing a data base from which any secure conclusions could be reached. There was insufficient evidence to establish that they represented notes in “general circulation”; and, in particular, the absence of any data to show what level of contamination could be expected on notes handled by those involved in drug dealing. There was no material which could enable the jury to determine the significance of the findings made by Dr Sleeman.
Dr Evett
32.
He is a consultant forensic scientist and has been a member of the Forensic Science Service for many years. He is primarily a statistician, concerned with the presentation of forensic material to a court, and in particular the appropriate way in which to relate such material to the issues in a case. He provided two statements, of the 19
th
June 2003 and the 15
th
June 2004. In the first statement, he considered that the criticisms made by Mr Bottomley of the databases used appeared to him to be persuasive, although he accepted that it was not his field. His main concern, however, was in relation to the statement in the summing-up to which we have already referred, that Dr Sleeman’s view was that the comparison made between the notes and the data base “points very strongly …. to the person holding those notes being very close to the source of contamination, and the sources of examination are drug users and drug dealers.”.
33.
In his opinion, that assertion could not be justified on the evidence, in the absence of any material to show the level of contamination which was the result of the handling of notes by drug users and drug dealers. In his second statement, he adhered to that view, making clear that it was only a criticism of Dr Sleeman if and in so far as the summing-up accurately reflected what Dr Sleeman had said.
Professor Laycock
34.
Professor Laycock is Emeritus Professor of Statistics at UMIST Manchester. He has provided three reports, dated the 18
th
May 2004, the 11
th
June 2004, and the 2
nd
July 2004. He was highly critical of the use made of the two data bases. In his view they were wholly inadequate for the purposes of determining whether or not any given level of contamination was higher than normal in the general circulation. He pointed out that they constitute entirely random samples which have therefore no more statistical significance than that. In order to seek to establish what might be described as a normal level of contamination it would in his view be necessary to construct an appropriate sampling method so as to remove, or at least minimise the distortions which random sampling may produce. He accordingly concluded that no meaningful comparison could be made between the level of contamination on the notes and that in the two data bases.
Dr Sleeman.
35.
Dr Sleeman has provided two reports, the first dated the 7
th
November 2003 and the second dated the 16
th
July 2004. In the first he was concerned to defend in the first instance the methodology of MSA Ltd and in particular the use of the DBC sampling technique as a reliable means of obtaining samples for the purposes of analysis. He accepted, as he had done at the trial, that innocent contamination was a relevant consideration and that the risk of innocent contamination was a matter which had to be taken into consideration when evaluating his findings and conclusions. He accepted, in particular, that he could not rule out the possibility that the officers who searched the car at Hull could have been responsible for the contamination found on the money and the car, but considered this extremely unlikely bearing in mind the high levels of cocaine in the car which would require the customs officers to have been contaminated to a high degree themselves to have produced those results; he said the same in relation to the risk of contamination of the bank notes. He further accepted, again as he had at the trial, that there was the possibility of contamination of the safe and the money in it, but that it was more likely that the protective suit was contaminated by the contents of the safe rather than vice versa. He further accepted that it was not safe in the light of the findings of contamination on the controls, and the unsatisfactory storage of the suitcases, to rely on the finding of contamination on the suitcases.
36.
As far as the use of the data base was concerned, he considered that there was sufficient in each data base to entitle him to make a comparison between the two. He accepted that it was impossible to come to any statistically valid conclusion. In his view, he was, however, entitled to say from the material that he had that the higher the levels of the contamination, the more likely one is to be close to the source. He does not believe that the words used by the judge in the summing-up accurately reflected what he said; and there is certainly nothing in the notes of evidence which we have to that effect. In his view, the level of contamination was such as to justify his assertion, which was the limit of the importance which he placed upon that piece of evidence.
Professor Monoghan:
37.
Professor Monoghan is the Professor of Chemistry at the University of Edinburgh. He provided two reports the first dated the 23
rd
January 2004 and the second the 18
th
June 2004. The first was essentially concerned with the methodology of the techniques used by MSA Ltd. In the second he stated that the validity of a data base depended on the purpose to which it was put. He considered that the data bases were sufficient for the purpose for which Dr Sleeman used them. He supported the robustness of the technique, whilst accepting that a court would have to look critically at the circumstances surrounding the taking of the samples in order to evaluate the risk of innocent contamination. In cross-examination, he accepted that the value of the data bases was limited but pointed out that there were no other data bases available at the time. He did not accept they had no value; and believed that they supported what Dr Sleeman had said.
Dr Brereton
38.
Dr Brereton is a chemist with a specific interest in the statistical evaluation of chemical analyses. He provided the court with two reports, the first dated April 2004, and the second dated the 14
th
July 2004. In both reports he concluded that the databases, whilst limited, provided valid comparators, within their limits. He accepted that the statement attributed to Dr Sleeman by the judge in his summing-up overstated the case. But in his second report, he made the point that the extent to which contamination on the notes found in the appellants’ possession was such that there was, in his view, overwhelming evidence that the notes were close to the source of contamination. The question that had to be asked was whether or not the database was sufficient for the purpose of whatever comparison was being made. The comparison that was being made in this case was a very crude comparison for which the databases were sufficient.
Conclusion
39.
It will be apparent from this recitation of the evidence at trial, the material before the commission, and the evidence before us, that there are three separate areas that need to be addressed. The first is the criticism of the methodology of the technique used by MSA Ltd. Mr Blaxland, QC expressly abandoned any argument based upon this criticism. He was right to do so. In
R –v- Compton
[2002] EWCA Crim 2835
, this court had to consider criticisms made by Mr Bottomley of the evidence of MSA Ltd, again given by Dr Sleeman. In that case, as here, his criticisms fell into three parts, first contamination, second methodology, and third the database. In paragraph 16 of the judgment of this court given by Buxton LJ, the court said:
“…. When reading Mr Bottomley’s report, and hearing his evidence in chief, we had the greatest difficulty in discerning how in fact he criticised MSA’s methodology; and in cross-examination it became clear that he did not do so. In response to Mr Shay Mr Bottomley confirmed that he had no criticism of the techniques used by MSA; no criticism of the scientific competence of MSA’s scientists; and no reason to doubt the accuracy of the readings obtained by MSA. ….”
40.
As this judgment was given as long ago as the 11
th
December 2002, it is perhaps unfortunate that there was no recognition of the conclusions of this court in any of the material provided to this court by Mr Bottomley. And it is significant that the criticism forms a major part of the reference by the Commission of the cases of these appellants to this court.
41.
As far as contamination is concerned, we note that, despite the views of the Commission, none of the evidence before us suggests that there is any new material or criticism available to the appellants beyond that which was available at the trial and which was made by Mr Young and acknowledged or dealt with by Dr Sleeman in his evidence. It is said on the appellant’s behalf that Dr Sleeman has now made three important concessions. First, that there was the possibility of contamination of the car and the notes at Hull; second that the risk of innocent contamination in relation to the findings in the safe and its contents was such that these findings should be discounted; and third that the findings in relation to the suitcases were such that they should not have been used as part of the prosecution case at trial.
42.
As to the first two, we consider that the submission overstates the concessions made by Dr Sleeman. Although he acknowledged the possibility of contamination by the customs officers at Hull, he considered that that possibility was highly unlikely. Equally, as far as the findings in relation to the safe and its contents were concerned, his evidence made it clear that they remained of evidential value subject to their evaluation, which was a matter for the jury, which had before it the criticisms which were acknowledged at the trial by Dr Sleeman and properly recorded in the summing-up by the judge.
43.
The suitcases remain something of an enigma. Although Dr Sleeman told us that they formed no part of the prosecution case, it is apparent from the notes of his evidence that he placed some reliance on them. However, it is noteworthy that the judge did not refer to any of the suitcases apart from the two which he expressly reminded the jury should be ignored. Despite the further evidence from Mr Bottomley as to the possibility that there may have been some cross-contamination between the bundles of notes found in the appellants possession, a point clearly available to Dr Young at the trial, we do not consider that any of this material would have had any effect on the jury’s verdicts.
44.
This leaves, in relation to the evidence that we have heard, the issue relating to the data bases. We accept entirely the evidence of Professor Laycock that these could not properly provide any statistical basis for a conclusion as to the provenance of the suspect notes. But as he himself accepted in cross-examination, the question of the validity of a data base depends upon the purpose which is to be served. In the present case, the comparison made between the notes in the appellants’ possession and the data bases was merely part of the prosecution case showing a connection between the appellants and the cocaine. That was in the context of the other evidence which pointed, in the absence of any innocent explanation, to the fact that the appellants were involved in illicit activity which resulted in substantial financial gain. We do not consider that a jury, even confronted with the evidence of Professor Laycock, could have come to any other conclusion but that the levels of contamination here were significant. In
Compton
the court said this as to the argument in relation to the data base which was developed in that appeal:
“27.
The difficulty that we found with these arguments, was that if they were seriously to be pursued, they needed to be supported by the evidence of a statistician, which Mr Bottomley plainly was not. Dr Sleeman explained that Lloyds was used because it was MSA’s own bank, and notes could therefore be obtained in the ordinary course of business; and that it could be assumed the ordinary process of circulation of notes through the banking system produced notes from a variety of sources. We found these observations convincing. Since the evidence on the part of the appellants amounts to no more than an appeal to common sense, we apply our own common sense to conclude that the range and weight of MSA’s database is sufficient for comparisons safely to be based on it.
28.
There is, however, a further reason why we do not accept this part of the appellant’s argument. In this case, the difference between the levels of contamination found on the appellant’s money and the levels found on the money in ordinary circulation is so striking that even if some attack could be made on the margins of MSA’s database the discrepancy would still cry out for an explanation. For that reason, the explanations were properly required of the appellants at the trial explanations that the jury did not accept.”
45.
It is true that we have now had the benefit of evidence from statisticians. But that evidence does not, in our view, detract from the common sense views expressed in those paragraphs, and in particular in paragraph 28. They echo the evidence given to us by Professor Monaghan and Dr Brereton. We return to the point we have made about the context in which this evidence was adduced. The evidence as to contamination was not limited to the notes in the car. A critical feature of the case for the jury to evaluate was the evidence in relation to the contents of the vacuum cleaner and the contamination in the car. As the judge said, much in the case depended on the history of that vacuum cleaner and the jury’s assessment of the evidence given by the appellants in relation to it.
The Real Issue.
46.
It seems to us that the real issue which we have to determine is that which is raised, although perhaps not squarely, by Dr Evett. There were two aspects of the summing-up which would appear to have misstated the prosecution case. Dr Sleeman has disavowed the evidence attributed to him by the judge in his summing-up; and in the immediately following passage, to which we have already referred, the judge raised the question of the lottery in a way which may have suggested that it was part of the prosecution case that the coincidences required for the appellants’ case to be credible were such as to be equated to winning the lottery. We have no reason to doubt Dr Sleeman’s evidence to us that he did not make the statement attributed to him. Equally, there is no doubt that the judge was wrong to have sought in any way to suggest that the appellants’ case was somehow analogous to requiring the jury to assess the likelihood of their account being correct in that way. But the fact of the matter is that the prosecution case was, in our view, overwhelming. As we have said, all the evidence pointed to the appellants having been engaged in illicit activity. The finding of cocaine contamination, in particular in the dust in the vacuum cleaner and in the car pointed clearly to that illicit activity being drug, in particular cocaine, related. Accordingly we conclude that the evidence that we have heard, subject to the matters to which we now turn, was a secure and safe basis for the verdicts of the jury.
The Judge’s directions as to
Sections 34
and 36.
47.
The summing-up in the present case was given by the judge before this court had given detailed guidance as to the way in which the jury should be directed when considering these provisions. It is perhaps helpful to give the full passage in the summing-up in which the judge dealt with this matter. It starts at page 10:
“Each of the defendants as part of their defence have relied upon explanations of information or assertions of fact. Can I list those: as to the source of the money seized at Hull Mr Benn has given explanation which are also relied upon by |Mrs Benn as to where that money came from; as to how cocaine could have contaminated the interior of the vacuum cleaner which was seized on the 19
th
March 1996, the vacuum cleaner which may have been at a hotel in Blackpool and become contaminated there; as to how the BMW car which was tested on the 19
th
March may have been contaminated by transporting the same vacuum cleaner, itself already perhaps contaminated with cocaine from Blackpool; and as to how the money was earned which was deposited in bank accounts or used to discharge Barclaycard Account liabilities, discharged part of the mortgage, the judgment debts and the costs and to pay for expensive building work, motor cars and support an expensive life style and allow for the accumulation of large sums in cash, and that, of course, is the sale of pirate video cards; as to the purpose and frequency of foreign travel and perhaps being accompanied by children on occasions.
Now the two defendants both admit that they did not mention any of those facts when they were questioned under caution by the Customs Officers on the 20
th
March and I think 16
th
April – I cant remember, 17
th
April sorry, I was a day wrong members of the jury. Now the prosecution case is that in the circumstances when each of them were questioned he or she could reasonably have been expected to mention those facts. Each defendant has said that they could have given those explanation. Indeed one, Ronald Benn went so far as to agree with the prosecution’s suggestion that he was itching to give those explanations. But each say that they were precluded from doing so because of advice from their solicitor Mr Gareth Hughes, or in the case of Mrs Benn, Gareth Hughes through his agent Mr Laverton who was actually with her at those interviews that she gave.
But the law is, members of the jury, that a suspect person, a defendant I suppose ultimately, cannot be made to answer questions, that is his or her right . Frequently that is called the right to silence. But because in the past some defendants have been thought to have been sprung defences on the prosecution and the courts, that is to say kept silent until the day of the trial and then revealed the defence which was too late to check up on and to verify, Parliament has enacted now that the person being questioned must be given a new form of caution. That caution amounts to this: that if he or she fails to reveal something when questioned, something which he or she later relies upon in court, it may harm their defence. The is the first thing.
It is the law, members of the jury, that you as the jury trying the case may draw such inferences as appear proper from his or her failure to do so at that time.
Now, members of the jury, failure to mention a fact on its own cannot prove guilt, there must be some other evidence which also points against the defendant before any inference can be drawn from silence. But depending on the circumstances, members of the jury, you may hold it against a person when deciding whether he or she is guilty, that is take into account some, additional support for the prosecution case, but you are not bound to do so and it is for you to decide whether it is fair to do so.
Now, members of the jury, each of the defendants have told you they relied on Mr Hughes advice in making their no comment answers. At the beginning of each interview Mr Hughes in his case – against Mr Benn – Mr Laverton his agent in the case of Mrs Benn, read out what was obviously a pre-prepared statement in identical terms as to why they were giving that advice.
Now members of the jury, advice from a solicitor not to reveal facts when questioned is on its own not a sufficient reason for failing to do so. Members of the jury, if that were the case any competent solicitor could render
the Act
of Parliament wholly nugatory. Parliament has said that if a person fails to reveal something when questioned, if it is reasonable to expect him to do so and he fails to do so, then inferences can be drawn against him by the jury. And if a solicitor simply said “Don’t answer that question”, the whole Act of Parliament has completely gone out of the window and solicitors do not have that competence.
The defendant Ronald Benn has told you that he explained all the facts to Gareth Hughes, his solicitor, before that advice was given. Sylvia Benn has merely said that she had to act on her solicitor’s advice. You have not heard from Gareth Hughes or Mr Laverton as to the basis for the reasons for the advice they gave. If the assertions made by the solicitor before the commencement of the interviews are to be taken at face value, what they were saying was two things: first that there were many documents which had been seized and that made matters too complicated to answer the questions adequately; and two, that the Benn’s had lost confidence in the integrity of the proceedings regarding the seizure of the £62,000 or thereabouts and the application for its forfeiture.
Now neither of the Benns have made any assertion that second proposition was true, they’ve not supported it by any evidence. As to the first proposition, you are aware of the questions that were asked and answers which have now been given in evidence before you. So the question you have to address is this; whether in all the circumstance which existed at the time that the questions were asked could either person whose case you are considering Mr or Mrs Benn, reasonably be expected to mention those facts.
Now the defence invite you not to hold it against them that they did not mention those facts or on that basis. If you think it amounts to a reason well then you shouldn’t hold it against them that they failed to do so. If on the other hand it does not provide an adequate explanation or you are sure the real reason for the failure to mention those facts was that he or she at that time no innocent explanation to offer, then you may hold it against him or her.
Now all of that I have just said applies equally in relation to the defendants failure to give any explanation at the time about the presence of cocaine contamination both in the vacuum cleaner and in the safe and the contents of the safe and in the car because the Customs officers specifically asked for an explanation of the presence of cocaine in those places and in those vehicles. The defendants failed to answer.
Now, members of the jury, failure when an officer has reasonable suspicion to ask questions, he has got cause to ask those questions, he wants an explanation – lets go outside this case just to explain what I mean. If a police officer investigating, shall we say a murder or a stabbing finds a man with a knife in his hand and blood on his clothing and sees him in circumstances which leads the officer to conclude that person might have something to do with it, he can ask him, “now would you explain that knife in your hand, that blood on your clothing”. If he fails to do so and there is other evidence against that person as well, it may not necessarily amount to very much but to some evidence against him outside that, if he fails to give an explanation the jury may think it right to hold that against the defendant if he fails to do so.
And as regards the cocaine – the presence of the cocaine in the vacuum cleaner, in the car and in the safe, neither defendant, when specifically asked as to specifically warned gave any answers about that members of the jury what I said previously about inferences that you, the jury, may draw, if you think it is proper to do so if you are satisfied that there is no proper explanation may draw an inference as an additional material in support of the prosecution case.”
48.
It is submitted there are two main vices in that direction. The first is that as this court made plain in
Condron –v- Condron
[1997] 1 Cr App R. 185, the judge must make it clear to the jury that before any adverse inference may be drawn, there has to be a case for that defendant to answer. Silence or a refusal to answer questions is not enough. That can never be a proper foundation for a conviction. The second is that the judge failed to direct the jury that they could only draw an adverse inference if satisfied that silence meant that they had no explanation or no explanation that would survive questioning.
49.
There is no doubt that the judge in the present case failed to direct the jury as to this requirement in the way now recommended by the Judicial Studies Board. The nearest that he came to doing so in relation to the first requirement is in the passage where he said failure to mention a fact on its own could not prove guilt and there must be some other evidence which also points against a defendant before any inference can be drawn from silence. Further, he referred to the fact that the other evidence “may not necessarily amount to very much but to some evidence against him”, which was also a direction which was insufficiently clear in this respect. The fact of the matter is however that in this case there was an abundance of evidence which established that the prosecution had surmounted the hurdle of establishing a case to answer. The judge in the passage where he set out the matters which cried out for an explanation clearly makes that point. The jury was bound to have come to that conclusion had they been fully and properly directed.
50.
The real question, it seems to us, is whether the judge dealt properly with the second of the two main requirements, namely that he should have given the jury proper assistance as to the approach it should take to the fact that the appellants had received legal advice not to answer any questions. There is no doubt that he was right to direct the jury that they could take into account the reasons given by the solicitors for their advice. The jury were entitled to take those reasons into account when determining whether or not their reason for refusing to answer the questions was in truth because of that advice. But in
Condron –v- UK
(2001) 31 ECHRR 1 the European Court of Human Rights made it plain that an adverse inference could only properly be drawn if their refusal to answer questions was because they had no answer or none that would stand up to cross examination. Although this trial took place before the enactment of the
Human Rights Act 1998
, we accept that that is a principle which should nonetheless be adopted in determining whether or not the direction adequately protected the appellants’ rights to silence.
51.
In
R –v- Betts & Hall
[2001] 2 Cr App R 257
, this court said that the effect of this decision on a case where an appellant had received legal advice not to answer questions, was that it was the genuineness of the decision which is relevant and not its quality. In other words the jury had to determine whether or not the real reason for the appellant’s silence was because of the legal advice that he or she had received or was in truth that they had no or no adequate explanation to give to the case against them. In
R –v- Hoare & Pierce
[2004] EWCA Crim 784
, Auld LJ said in giving the judgment of this court:
“The question in the end, it is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because he had no or no satisfactory explanation to give. For this purpose, but only for this purpose,
section 34
in its provision for the drawing of an adverse inference qualifies a defendants right to silence.”
52.
It is submitted on behalf of the appellants that the judge did not adequately direct the jury in this fundamental respect. It is said that in the passage to which we have referred, the judge sought to undermine this principle in particular by his remarks about the effect that solicitors advice could have on Parliament’s intentions. It is said that the judge in effect directed the jury to consider the reasonableness of the appellants’ decision not to answer the questions, and not its genuineness. The critical passage is the passage in which he said:
“On the other hand if it does not provide an adequate explanation or you are sure that the real reason for the failure to mention these facts was that he or she at that time had no innocent explanation to offer, then you may hold it against him or her.”
53.
The disjunctive “or” is said to deprive that passage of the necessary quality of ensuring that the jury understood that it was only the latter circumstance which could entitle it to draw the adverse inference.
54.
There is no doubt that this passage is capable of criticism. But in reality, it seems to us, the jury was there being directed that the important question was what the real reason for their failure to answer the questions was, and that that was the touchstone for determining whether they had an adequate explanation for failing to answer the questions. Accordingly, although the direction is not in the form which is now recommended so as to avoid any doubt as to the matter, this passage adequately reflects the requirements that the courts have constructed to protect the right to silence.
55.
A subsidiary matter was raised by Mr Jennings, QC on behalf of Mrs Benn, namely that the judge was wrong to identify the questions as to how the cocaine could have contaminated the vacuum cleaner used at the Blackpool hotel, and how the BMW could have been contaminated by transporting the vacuum cleaner from the hotel to the home as being facts on which the appellant’s relied at trial and failed to mention in their interviews. It is said that these amounted to speculation. We fail to understand this submission. The appellants were made aware of the cocaine found in the dust bag of the vacuum cleaner. They knew if they were telling the truth, that the vacuum cleaner could have been the one used at the Blackpool hotel and therefore could have been transported in the BMW. Those were explanations which they could have given in answer to the questions, alternatively, if they were at the time in doubt about the matter they could have expressed their doubts in those terms. If they were in such doubt they could have explained that to the jury as a reason for not mentioning those facts. It would have then been for the jury to evaluate their answers.
Lies
56.
As a late addition to the case, Mr Blaxland, QC as we have already said, pointed out that there was no direction to the jury as how to approach any lies which they may have found the appellants to have told. It is true that no such direction appears in the summing up. The problem is that that is a matter which could and, if it was a proper complaint, should have been made either at the trial, or at the time of the first appeal, or during the course of the reference to this court. We think that it is too late to raise that issue now. There may well have been good reasons for that direction to have been omitted. In those circumstances, it does not appear to us that it can form any part of the grounds of appeal which we should consider.
57.
For all these reasons, these appeals are dismissed. | {"ConvCourtName":["Manchester Crown Court"],"ConvictPleaDate":["1997-10-29"],"ConvictOffence":["Conspiracy to evade the prohibition on the importation of Class A controlled drugs"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Manchester Crown Court"],"Sentence":["Ronald Benn: 9 years imprisonment","Sylvia Benn: 6 years imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["Mixed"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Forensic evidence (cocaine contamination on money, safe, vacuum cleaner, suitcases, car)","Financial analysis (unexplained wealth, lifestyle)","Travel records","Testimony of Mr Garner (did not support appellants' account)"],"DefEvidTypeTrial":["Expert evidence (Dr Young) challenging inferences from forensic evidence","Alternative explanations for contamination (innocent/environmental, handling by officers)","Explanation for cash (purchase of camper vans, sale of Sky Cards)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction"],"AppealGround":["Doubts as to validity of forensic methodology and findings (risk of innocent contamination, database validity)","Misdirection by judge regarding inferences from silence under Sections 34 and 36 of the Criminal Justice and Public Order Act 1994","No direction on approach to lies told by Mr Benn"],"SentGuideWhich":["Sections 34 and 36 of the Criminal Justice and Public Order Act 1994","Section 23 of the Criminal Appeal Act 1968"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No new material or criticism beyond what was available at trial","Jury had sufficient evidence to convict","Judge's directions, though not in current recommended form, were adequate","No miscarriage of justice found","Late ground (lies direction) not considered appropriate for appeal"]} |
No:
200404908/B3
Neutral Citation Number:
[2005] EWCA Crim 1284
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 3rd May 2005
B E F O R E:
LORD JUSTICE TUCKEY
MR JUSTICE DAVID STEEL
MRS JUSTICE GLOSTER
- - - - - - -
R E G I N A
-v-
GLENN MICHAEL SIMONS
- - - - - - -
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 BENNETT
appeared on behalf of the APPELLANT
MR VAN DER ZWART
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MR JUSTICE DAVID STEEL: The appellant is now aged 37. Prior to the matter which is the subject of this appeal he had no convictions. On 22nd July 2004, in the Crown Court at Hull, before His Honour Judge Jack, the appellant was convicted of four counts of making an indecent photograph of a child and one count of possessing indecent photographs of children. He was sentenced to pay a fine of £300 on each count, the fine to be paid within 2 months and also ordered to pay £1,339 towards the costs of the prosecution. Thus, the total sentence was £1500 or 45 days' imprisonment in default and payment of costs. He appeals against conviction by leave of the Single Judge. The grounds on which the Single Judge did not give leave are not pursued before us.
2.
The background is that in 1999 the appellant's personal details were found on a database of an American portal or a gateway called "Landslide" that had been closed down by the American authorities. The portal had been used to access various websites on the Internet. The database was forwarded to the police in this country. The appellant's details had been used to access five web sites within that site on different occasions between April 1999 and August 1999. The details used to access these sites were the appellant's name, his correct address, including postcode, his correct email address, with the user identification and correct credit card number and passwords.
3.
Two of the sites that were accessed contained indecent images of children. The sites were called "Children for God" and "Children Forced to Porn".
4.
As a result of the information received from the United States, on 3rd December 2002 the police searched the home address of the appellant. They found two computers, one old and one current. The hard drive of the new computer contained 15 indecent images of children in the form of thumb nails, that is to say small images that had not been enlarged on the screen or the hard drive. The images were located in free space indicating they may have been deleted and emptied from a recycled bin. The images were classified as level 1 and were of girls aged under 16 and as young as 10 posing naked or part naked. The computer containing the child images had been purchased on 29th May 2001, that is to say well after the "Landslide" site had been closed down.
5.
Prior to the purchase by the appellant, it was accepted that the hard drive was new and clean and had not been used. When a "Landslide" site was accessed an email confirming access and the user identification was received. However, no emails from "Landslide" were found on this current computer.
6.
A notebook was found at the appellant's address which contained two user names that matched the entries found on the extract for "Landslide" database that was sent to the police. The user names were GS 221 and G 720 and they were associated the password "Griff". These were the user's names for "Children of God" and "Children Forced to Porn" web sites. It was common ground that the entries in the notebook were in the appellant's handwriting. As regards the old computer which had been in use in 1999, no images of child pornography were found nor emails from "Landslide".
7.
The police also seized the applicant's collection of adult pornographic videos and DVDs. Although the videos and DVDs showed disclaimers that everyone depicted was over 18, the titles suggested that people involved were or at least looked young. The appellant's credit card was seized and showed two payments to "Landslide" in April 1999 and May 1999.
8.
The prosecution case was that the appellant knowingly made and possessed the indecent photographs of these children. Although there was no evidence that any of the 15 images found on the appellant's computer came from the "Landslide" site, the prosecution asked the jury to consider the "Landslide" evidence to show that the appellant had accessed the site and had a general interest in child pornography, despite his denials in interview. The precise purpose for which the prosecution deployed this evidence is a matter to which we will revert.
9.
The appellant's DVD collection was adduced also because it suggested an interest in pornography involving people that appeared to be young, and as a counter to the suggestion that he had obtained the images which were contained on the hard drive accidentally.
10.
It is the "Landslide" evidence and the DVD material which are at the heart of this appeal.
11.
The defence case was that the images could have appeared on the hard drive because they had randomly "popped up" on the appellant's computer, or received as unsolicited or spam emails that he had unwittingly opened.
12.
As regards the latter, it was, if they had been contained in such emails, possible, so the defence ran, that the images never appeared on the screen, or if they did, they were immediately deleted by the appellant, as soon as he realised they contained child pornography. Another possibility canvassed by the defence was that the images were accessed by an internal program called a Trojan, that controls the computer remotely. As such he did not knowingly possess or make the images.
13.
As far as the "Landslide" material was concerned, the defence case was that someone else had accessed the child pornography sites using the appellant's stolen identity, including his usual password. As regards the DVD collection it was simply asserted that the material was legal.
14.
The evidence adduced by the prosecution primarily centred on two police witnesses. Firstly, Police Constable Girling who was the case officer and gave details of the investigation. And Detective Inspector Pugh, who gave supplementary evidence on his examination of two computers. In particular, he explained that he had never come across a Trojan putting child pornography onto a computer, nor unsolicited emails contain child pornography.
15.
As regards the appellant's interview, it will be necessary to look into some of the details in due course, suffice for the moment to say that the appellant gave the same overall account as he did in evidence, but answered no comment to some questions. He said that he checked his credit card statements. He failed to mention the unsolicited emails may have contained child pornography. However, the applicant said that he looked at child pornography from a site out of curiosity and had seen pictures of children on his computer screen, although he had never distributed them.
16.
The appellant gave evidence. He denied that he was the person who accessed the child pornography sites on "Landslide". At the time the "Landslide" entries appeared on his credit card statement, he had five or six credit cards and he was on holiday during the middle of May 1999 and would not have subscribed to the website just before going away. He did not take out a subscription and had never queried entries on his credit. He had only checked the credit card statement to make sure it balanced with his banking figures. He accepted that the notebook that the police found belonged to him and mostly contained his writing. He had merely recorded details of adult pornography sites that he had viewed.
17.
The appellant accepted that he wrote the two pass words in the note book that the police found. He believed he had copied them from emails received on his computer, reconfirming that the "Landslide" website had been accessed. He would have made the entries after his holidays abroad in May. He could not explain why he would write down the passwords if he had not been the person to access the site. He indeed accepted that "Griff" was a password that he had used on many occasions.
18.
He denied admitting the offences in interview, saying that his comments about looking at images from "Landslide" had been misinterpreted. He answered no comment to some questions because he was told by his legal representative not to answer questions specifically about child pornography. In cross-examination he denied having lied to the police. He said he had a healthy interest in sex with preference to young adults. Someone else must have used his details to access "Landslide". When in his interview he said he had looked at images out of curiosity, he was not referring to child pornography. He did not receive sexual gratification from children.
19.
In accord with the leave given by the Single Judge, Mr Bennett takes two points primarily directed at the "Landslide" evidence. First, that the material was inadmissible as solely going to an issue of propensity. Alternatively, if he was wrong about that and the material was admissible, the jury were given no adequate direction as to how the material could be used. We start with his submissions with regard to admissibility, and they can be summarised as follows. First, it was not part of the prosecution case that the level 1 images on the new computer had come from a "Landslide" site. Two, the evidence relating to "Landslide" visits was used solely to provide evidence that the appellant had strong tendencies to paedophilia. Three, such was not permissible, since at the time of the trial, evidence of propensity was not admissible, save with certain exceptions which did not apply.
20.
In that respect, he draws the Court's attention to two relatively recent decisions of this Court, which themselves are based upon the well-established underlying principle contained in the decision of the Privy Council in
Makin v The Attorney Journey for New South Wales
[1894] AC 57
. Lord Herschell said this, at page 65:
"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried.... the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."
The matter was considered in some detail in a decision of this Court in
R v Wright
(1990) 90 Cr App R 325
, in a reserved judgment given by Mustill J, as he then was. The case concerned a headmaster who was charged with gross indecency. The prosecution introduce incriminating articles in the form of a book and video. The booklet, in particular, suggested homosexual leanings. The video showed homosexual activity between adults. At page 328, Mustill LJ, with some prescience to the recent enactment of the
Criminal Justice Act 2003
, said this:
"To anyone but a lawyer it might seem obvious that in general this kind of evidence ought to be admitted. Here was a man accused of homosexual activities on the occasions for which he was indicted. He denied having done any such thing, making out the boys to be liars. Why should he be allowed to say this, and what is more, to assert that they were themselves a clique of buggers and yet remain silent about his own proclivities?
Here we find his advisors setting out to conduct the case on the basis that it was immaterial to the questions which the jury had to decide whether he was a homosexual or not, and that nothing mattered except the narrow issue whether he had done the homosexual acts complained of. The appellant's position was therefore that he would say nothing about whether he was heterosexual, homosexual, bi- sexual or asexual. No questions could be asked of him to elicit this information, nor could any evidence (such as the incriminating articles) be layed before the jury might enable them to form an opinion on a matter which surely must have been foremost in their minds. Surely, so it might strike the layman, this cannot be fair.
It is not uncommon to find in judgments a suggestion that a particular proposition might appeal to logician, but not to the ordinary man; or vice versa. In the present instance it might be said that to allow the appellant to run his case in this way would appeal to neither. Naturally we had in mind the rule, now well established for more than a century, that evidence of disposition may not in general be led against an accused person..."
At page 331 the learned judge continued:
"One must begin by asking whether, in a case where the issue is whether the act alleged by the complainant ever took place at all, evidence is admissible that the defendant had done similar acts in the fast, or could be shown through the possession of incriminating articles or otherwise, to have a leaning towards such acts.
It is not hard to imagine legal systems in which such evidence would not only be admissible, but would be regarded as having high probative value. Nevertheless, this has never been the policy of t he English criminal law, not so much on the grounds of logic, but because it is considered that to entrust it to a jury would be too greater a risk. It is unnecessary to cite any more authority for this proposition that the oft-quoted opinion of Lord Herschell in
Makin v the Attorney-General
...."
The learned judge goes on to identify the exceptions that might arise with regard to that principle, prior to the alteration of the law and, in particular, the question whether it might be admissible in cases where the defence was one of accident.
21.
That decision in Wright was followed in
R v B(RA)
[1997] 2 Cr App R 88
, where the appellant was charged with indecently assaulting his grandson and evidence of homosexual magazines was admitted. That was held to be inadmissible material. Rose LJ, in giving the judgment of the Court, referred to
Wright
and expressed the view that it was a decision which should be better known. We shall revert to that decision briefly in a moment.
22.
Fourthly, to complete the summary of the argument presented on the appellant's behalf, the evidence was in fact introduced entirely as regards propensity and such is established by the terms of the summing-up. In that respect, Mr Bennett refers to three specific passages in the summing-up. Firstly at page 13:
"So if you take those three pieces of evidence together, Members of the Jury, the extracts from the Landslide database, the credit card statement entries, and the entries in the notebook, the prosecution say that that is powerful evidence that this defendant was accessing child porn websites via Landslide in 1999, and that, say the prosecution, shows that he has an interest in child pornography."
Then at page 14:
"The relevance of this Landslide evidence, say the prosecution, is simply that it shows that the defendant had an interest in child pornography. The prosecution say that not only does he have an interest in child pornography as shown by that evidence but there's evidence that he had lied to you and lied to the police because he denied that it was he who accessed those sites."
Then finally and perhaps most telling, having given the conventional direction with regard to the good character of the appellant, he went on:
"Of course, Members of the Jury, against that you have to set the evidence depending on what you make of it as to his other interest in child pornography. The Landslide evidence, if you were sure it was the defendant who was trying to subscribe to child porn sites on Landslide and the evidence about the videos was suggested names, suggesting under age sex on them, you have to put that into the balance, Members of the Jury, when considering whether his good character means that he's less likely to have committed these offences."
23.
Mr Van Der Zwart, for the Crown, challenges the applicant perception of the relevance of the material. Whether or not it went to propensity, he made it plain that the Crown were relying upon it in two respects. Firstly, to demonstrate that the appellant was lying in interview when he asserted that he was not interested in child pornography. His interview contained passages such as the following, and I read from the first page of the opening interview:
"Initially SIMONS is reminded of the reasons for his arrest in relation to offences of attempting to incite in distribution of child and the making of indecent photographs of children. When invited to comment, SIMONS states he is completely shocked and 'gobsmacked' stating he isn't a paedophile and has never tried to distribute, or had an interest in child pornography."
There is a similar exchange at pages 6 and 7 of the interview, where he having had his attention drawn to the titles of the various DVD and videos denies any propensity on his behalf for younger women and states that he viewed the disk believing he was watching people over the age of 18.
24.
Secondly, Mr Van Der Zwart says that material was deployed to counter the suggestion that it was mere accident that the activities of a third party led to the images being present on his computer. The prosecution concluded that that submission had to be viewed against the background of his personal details, password and credit card being used to access "Landslide" some years earlier and the record of user names sent to his email address by "Landslide" which are contained in his notebook.
25.
In considering these competing submissions it has to be noted, perhaps at the outset, that despite being represented by experienced counsel, no objection was taken to admissibility of the evidence at the trial, either in principle or by reference to section 78. Whilst not remotely determinative, this presents a significant obstacle, particularly with regard to any challenge to the exercise of the judge's discretion. Nor would it appear that the lack of objection was founded on a misunderstanding as to the asserted relevance of this material. The defence requested the judge to give a Lucas direction so that the jury might pause for thought in considering any lie about the use of "Landslide".
26.
The approach adopted by the Court in directing the jury is summarised at pages 13 to 14 of the summing-up, where the judge said this, having referred to the "Landslide" database and the credit card statements and the notebook, and asserted that that was on the prosecution's case powerful evidence that the appellant had an interest in child pornography. He goes on:
"The defendant -- defence say, on the other hand, no, firstly, it wasn't him. He's given evidence to say it wasn't him who accessed those websites. In any event it's suggested he wouldn't have subscribed to websites just before going away on holiday... the defence point to the fact that there is no evidence of downloaded child porn images on the computer which the defendant was using at the time....
Well, Members of the Jury, it's a matter for you to consider. You consider all of that evidence and make of it what you think is right. In any event, as the defence points out, this is not the central issue in this case. As Mr Ferm said on more than one occasion, this is not a Landslide case. In other words, there is no evidence that the images that we are directly concerned with - that is the 15 images on the new computer - there's no evidence that those images came from Landslide websites.
The relevance of this Landslide evidence, say the prosecution, [the passage I have read], is simply that it shows that the defendant had an interest in child pornography."
27.
To the extent that this is indeed the way in which this evidence was deployed, we are quite unable to accept that it was properly so deployed. Indeed, as we understand it, Mr Van Der Zwart disclaims that the material could be properly deployed in this way. The interrogation of the appellant as to the "Landslide" material should have been excluded from the interview altogether. If the appellant had admitted access to the "Landslide" site, it would not be relevant in any respect to the charges that he was facing. It makes it more no more relevant or admissible simply because he denied it.
28.
That circularity of argument is demonstrated by the judgment of Rose LJ in B (RA) to which we have just referred. Towards the end of that judgment, at page 92, Rose LJ said this:
"Mr Bright sought to submit that because, as he claimed, the appellant gave a dishonest answer in relation to his sexual proclivities, it was open to the prosecution to adduce evidence tending to show that he was a homosexual, because that went to credit. The difficulty with that submission is that, if it were correct, a person who habitually burgled house who in interview denied that he ever burgled houses could have adduced before the jury evidence of his previous convictions. That situation would simply not arise because the answers given in relation to proclivities with regard to burgling people's houses would, as it seems to us, properly be excised from the evidence of that which had transpired in interview. So, in the present case, in our judgment, the questions and answers bearing upon the appellant's alleged homosexual proclivities should have been excised from the interview; and there should have been excluded from the evidence which was led before the jury the magazines relating to male adult sexual activity of a pornographic nature which were found in his possession. The reason for this is that neither the answers nor the magazines were probative of anything save propensity; and that, in the judgment of this Court, following the judgment of Mustill J in
Wright
, is not a proper basis to render them admissible."
29.
Although the point was only touched on briefly during the course of argument, it is no answer, in our judgment, that the material could have been deployed in cross-examination under section 1 of the Criminal Evidence Act 1898. First, the material would have been excluded from the interview and therefore would not be led as part of the prosecution case. Secondly, it cannot be assumed that the appellant would have led evidence in this regard. Thirdly, even if he had, he would presumably have denied access to "Landslide" and there the matter would have rested. Fourth, if the question of rebuttal evidence was raised by the Crown, we would regard it as extremely unlikely that it would have been admitted.
30.
It strikes us that the material might well have been admissible by virtue of one of the exceptions to the rule in
Makin v the Attorney General
as being relevant to the issue of accidental making or presence of the photographs. In fact, it was not so deployed in that context, save perhaps with regard to the videos.
31.
Even if that was the manner in which the prosecution intended to deploy it, it was certainly not the way in which the jury were directed to consider the material. Even if, as regards the video evidence, it was suggested that it touched upon the question of whether the images that had been obtained accidentally, nonetheless it is necessary, in those circumstances, to consider whether sufficient care had been taken in presenting a material to the jury.
32.
In this regard, Mr Bennett rightly refers to the decision in
R v Lewis
(1983) 76 Cr App R(S) 33, where the applicant was charged with indecent assault and raised offences of accident. At the trial the evidence of his interest in paedophilia was led. This was challenged on appeal. The judgment of the Court was given by Donaldson LJ, as he then was. At page 37 of the judgment, he touched on the manner in which the material had been commented on by the learned judge in the course of his summing-up. Donaldson commented as follows:
"This leaves the question of whether in the exercise of his discretion the judge excluded the evidence. Clearly could have an unduly prejudice effect if true impact and significance was not most carefully explained to the jury."
Then a little bit later on he quotes from the summing-up, which contained the following passage:
"You are entitled to refer to the documents which have you have seen or you've heard about, what you're not entitled to do, members of the jury, is to assume that any way, if you come to the conclusion that he does hold these opinions, we makes these statements or he possesses this sort of literature, that evidence goes to prove these charges of itself, it does not. If there is no adequate evidence that the alleged events occurred, you acquit him, whatever opinion he tolds. If you are satisfied on the evidence the events which the prosecution alleged did occur, then his attitude, opinion, literature, letters may be relevant in considering the effect, first of all what he said to the police about what it then meant and considering whether the matters you are satisfied did occur were accidental or innocent... The fact that a man has certain views, the fact that a man is admitted homosexual for instance, does not mean, that necessarily he's accused of it he's necessary committed an homosexual act with a boy."
33.
The complaint that is made in the present case is that the jury were given no indication whatsoever of the significance of the "Landslide" evidence, and was in particular not told that if they concluded that the appellant had accessed the "Landslide" site, that he could not necessarily be viewed as having committed these offences.
34.
We agree and indeed, as we understood Mr Van Der Zwart did not really challenge this proposition. The judge did not give an adequate explanation of the significance of the "Landslide" evidence or of the use it could be legitimately be put.
35.
We turn, lastly, to the safety of the conviction. The appellant's explanation for the presence of the photographs was at best unconvincing, the more so given the prosecution evidence with regard to Trojan and spam emails. Nonetheless the "Landslide" evidence and the titles of the videos were much at the forefront of the case and very much at the forefront of the summing-up. Its influence on the case was significant. We appreciate the "Landslide" material might be potentially admissible in any retrial pursuant to 101 of the
Criminal Justice Act 2003
. However, for all the reasons we had adumbrated, we have reached the conclusion that the conviction is unsafe and must be quashed.
(Submissions re: retrial)
36.
LORD JUSTICE TUCKEY: We do not think it fair to order a retrial in the criminal case again. We will not order retrial. Nothing we say will or should affect the course of any disciplinary proceedings which are in the process or contemplated against the appellant.
37.
My Lord, I understand. Thank you very much. | {"ConvCourtName":["Crown Court at Hull"],"ConvictPleaDate":["2004-07-22"],"ConvictOffence":["Making an indecent photograph of a child","Possessing indecent photographs of children"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Hull"],"Sentence":["£300 fine on each count (total £1500) or 45 days' imprisonment in default and payment of costs","£1,339 costs"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[36],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[10,16],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Database evidence from 'Landslide'","Credit card statements","Notebook with user names and passwords","Police testimony","Computer forensic evidence"],"DefEvidTypeTrial":["Offender denies offence","Alternative explanations (Trojan, spam emails, accidental download)"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["No previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Improper admission and use of 'Landslide' and DVD evidence as propensity evidence","Jury not properly directed on use of such evidence"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Conviction unsafe due to improper admission and use of propensity evidence and inadequate jury direction"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2019] EWCA Crim 1464
No:
201901929/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday 9 August 2019
B e f o r e
:
LORD JUSTICE HOLROYDE
MR JUSTICE GOSS
MR JUSTICE KNOWLES
R E G I N A
v
STEVEN ROWLANDS
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 C Rees
appeared on behalf of the
Appellant
J U D G M E N T
(Approved )
1.
LORD JUSTICE HOLROYDE: On 26 April 2019 in the Crown Court at Cardiff, this appellant was sentenced by Her Honour Judge Jones to a total of three years four months' imprisonment, for two offences contrary to
section 46 of the Serious Crime Act 2007
to which he had pleaded guilty at an earlier hearing. He now appeals against his sentence by leave of the single judge.
2.
The appellant is now aged 35. His only previous conviction was for driving with excess alcohol as long ago as 2006. He has dealt admirably with a number of difficulties and set backs in his life and is highly regarded by those who know him. Unfortunately, at a time when it seems he was under some financial pressure, he fell into conversation in the course of an evening out with a cocaine dealer. That conversation led him to decide that he could make money by acting as a middleman in selling benzocaine to drug dealers. He knew that benzocaine was used by drug dealers to dilute the purity of cocaine and other white powder drugs. He had a contact through whom he was able to buy benzocaine from China, paying the Chinese supplier in Bitcoin. He advertised the product on eBay, passed on orders to his supplier and arranged for delivery to be made direct to the customer. His profit was around £130 per kilogram of benzocaine.
3.
The appellant was arrested in July 2018. His most recent transaction was the sale of one kilogram of benzocaine destined for a female customer, which was being delivered in a package falsely declaring the contents to be bath salts. Examination of the appellant's mobile phone linked him to a number of customers around the United Kingdom, including a man in South Wales whose home was searched by the police and found to have within it two kilograms of cocaine, benzocaine, £34,000 in cash and valuable watches and jewellery. That man was subsequently sentenced to nine years' imprisonment. He had stored the appellant's phone number in his own phone as "Benzo boy".
4.
In interview, the appellant made full admissions. He admitted that in addition to the transaction which was intercepted, he had supplied about 21 kilograms of benzocaine over a period of about seven months. We note that that course of activity was brought to an end by the intervention of the police, rather than voluntarily given up by the appellant.
5.
The appellant was charged on an indictment containing two counts. Count 1 related to the intercepted package destined for the female customer. Count 2 was a specimen count covering the supply of 21 kilograms of benzocaine. The particulars of each count were in identical terms as follows:
i.
"Steven Kelvin Rowlands between the 31st day of December 2017 and the 3rd August 2018 did an act, namely, sourcing and supplying benzocaine, which was capable of encouraging or assisting the commission of one or more of a number of offences, namely the supply of Class A or Class B drugs, believing that one
or more of those offences would be committed and that his act would encourage or assist the commission of one or more of them."
6.
The appellant pleaded guilty to both counts at the earliest opportunity. There was evidence before the court that the benzocaine could be used to dilute or cut cocaine in the proportions of one part benzocaine to three parts cocaine. Thus, if all of the benzocaine sold by the appellant had been mixed with cocaine, it would have resulted in well over 80 kilograms of cocaine at the level of purity sold on the streets.
7.
A pre-sentence report was prepared. It assessed the appellant as presenting a low risk of re-offending. It recorded his expressions of shame and remorse for what he had done. The judge was provided with a most impressive bundle of testimonials. She was also assisted by sentencing notes helpfully prepared both by prosecution and defence counsel. She was referred to relevant case law.
8.
The judge treated the appellant as a man of good character. She referred to the very strong personal mitigation which had been advanced on his behalf. She noted that there is no definitive sentencing guideline applicable to offences contrary to
section 46
of
the 2007 Act
. At page 3G to 4C of her sentencing remarks she explained her approach as follows:
i.
"I must start at a point which is that of the maximum sentence for the most serious offence. The most serious offence here must be the Class A offence, so as if you were supplying Class A drugs. I am then obliged to calibrate the sentence, considering that you knew that the benzocaine could be used with either supply of Class A or Class B drugs, but that you did not actually supply those drugs and you did not actually know for certain whether they would be Class A or Class B. But the reality is that you sold the benzocaine on, not caring, or not bothering to enquire and not being concerned, whether they would be used for cutting Class A or Class B drugs.
ii.
There is clear evidence here that the benzocaine was used to assist and facilitate the supply of drugs because a known drug dealer, a convicted drug dealer, was in touch with yourself.
iii.
I am concerned that it was during a conversation with a cocaine dealer, a Class A cocaine dealer, that you got the inspiration to commence the enterprise. You know cocaine is a Class A drug.
iv.
I have looked at the Sentencing Guideline for Class A and Class B drugs. I am trying to be as fair as I possibly can to you, but I
cannot get away from the fact that you believed that that benzocaine could be used for Class A or Class B."
9.
The judge assessed the appellant' culpability as a significant role, performing an essential function within a chain and doing so for financial reward. She assessed the level of harm as amounting to Category 1 under the guidelines relating to offences of supply of both class A and class B drugs. She accepted that the appellant had been very naive in becoming involved in this offending and was now genuinely remorseful. She concluded that the appropriate total sentence before giving credit for the early guilty pleas would have been five years' imprisonment. In those circumstances, she imposed concurrent sentences of three years four months' imprisonment on each count.
10.
In his helpful written grounds of appeal and oral submissions, Mr Christopher Rees, representing the appellant before this court as he did below, submits that the judge was wrong to refer to the sentencing guideline in relation to the supply of class A drugs. He emphasises that the appellant knew that the benzocaine would be used in the supply of controlled drugs, but did not have a belief as to whether they would be drugs of class A or of class B. Counsel acknowledges that in the cases of
Watling
[2012] EWCA Crim. 2894
and
Woodford
[2014] 1 Cr.App.R (S) 32
, this court has held that the sentencing judge had been correct to consider the class A guideline. But, argues Mr Rees, in each of those cases the offender was charged under
section 45
of
the 2007 Act
and believed that the chemical which he was supplying would be used in the supply of class A drugs. Similarly, in relation to
Hall
[2014] 2 Cr.App.R (S) 20, a case in which the offenders were charged under
section 46
of
the 2007 Act
, this court held that the sentencer had been correct to consider the class A guideline. But Mr Rees points out that the offenders in that case believed their product would be mixed with cocaine. In the present case Mr Rees submits there was no such specific belief. The appellant accordingly had a lower level of culpability, and whilst the judge could properly refer to the guidelines for class B offences of supply, he submits that she should not have considered the guideline for class A offences.
11.
It is further submitted that the judge failed to give sufficient weight to the strong mitigating features of the appellant's effective previous good character, his naivety in the commission of the offence, his full admissions in interview and co-operation with the police, and his remorse. In his written submissions, Mr Rees invited consideration of the sentences passed in a number of other cases, in particular
Woodford
in which this court reduced the sentence for a
section 45
offence from eight years' imprisonment to six years in a case in which those guilty of the full offence of supplying the class A drugs would have been likely to receive sentences of 10 years or more. The quantity of adulterants supplied by the offenders in that case was much greater than the quantity of benzocaine sold by this appellant. We note however that in
Woodford
the offender not only had strong personal mitigation, but also had substantial caring responsibilities.
12.
We have reflected carefully on Mr Rees's submissions. Benzocaine is not a controlled
drug and selling benzocaine is not in itself illegal. However,
section 46
of
the 2007 Act
, so far as is material for present purposes, provides as follows:
i.
"1. A person commits an offence if—
(b)
he does an act capable of encouraging or assisting the commission of one or more of a number of offences, and
(c)
he believes—
(i)
that one or more of those offences will be committed (but has no belief as to which); and
i.
(ii) that his act will encourage or assist the commission of one or more of them.
ii.
(2) It is immaterial for the purposes of subsection (1)(b)(ii) whether the person has any belief as to which offence will be encouraged or assisted."
13.
Thus the appellant's conduct was criminal because by supplying the benzocaine he was doing an act capable of assisting the commission of one or more offences of supplying controlled drugs of class A or class B, and was doing so in the belief that one or more such offences would be committed, even though he had no belief as to which, and in the belief that his act would assist their commission. As we have just noted, by
section 46(2)
it was irrelevant whether he had any belief as to which offence would be assisted.
14.
The maximum penalty for an offence contrary to
section 46
is prescribed by
section 58
of
the 2007 Act
, which so far as material for present purposes provides as follows:
i.
"(1) Subsections (2) and (3) apply if-
ii.
...
(b)
a person is convicted of an offence under
section 46
by reference to only one offence ('the reference offence')
i.
...
ii.
(3) In any other case [ie any case other than murder] he is liable to any penalty for which he would be liable on conviction of the anticipated or reference offence.
iii.
(4) Subsections (5) to (7) apply if a person is convicted of an offence under
section 46
by reference to more than one offence ('the reference offences')
iv.
...
v.
(6) If none of the reference offences is murder but one or more of them is punishable with imprisonment, he is liable-
(a)
to imprisonment for a term not exceeding the maximum term provided for any one of those offences (taking the longer or the longest term as the limit for the purposes of this paragraph where the terms provided differ)
..."
15.
The effect of those statutory provisions is that in a case such as this of an offence contrary to
section 46
committed by reference to more than one reference offence, the offender is liable for the maximum penalty applicable to the most serious of the reference offences. That is so even though he has no belief as to which of the reference offences will be committed and regardless of whether he has any belief as to which of the relevant offences he is assisting.
16.
In the light of those statutory provisions, the approach taken in this case by the judge was correct. The appellant believed that the benzocaine which he sold would be used in the supply of controlled drugs. He had no particular belief as to whether any specific supply would be of drugs of class A, or drugs of class B, or both. But he believed that offences of supply would be committed and he believed that his sale of the benzocaine would assist those offences. The fact that he had no particular belief as to the class of drug which would be supplied cannot be equated with a belief that only drugs of class B would be supplied.
17.
We accept Mr Rees's submission that the culpability of the appellant was somewhat less than that of a seller of benzocaine who believed that all of it would be used in the supply of class A drugs. But the judge rightly took that into account by considering both the guidelines for class A supply and the guidelines for class B supply. It must be remembered that under those guidelines a quantity of five kilograms of cocaine or 20 kilograms of amphetamine regardless of purity would be sufficient to bring a case within Category 1 harm and a significant role in the supply of such quantities would result in a starting point for sentence of 10 years' imprisonment and five-and-a-half years' imprisonment respectively.
18.
The appellant supplied or was in the process of supplying a total of 22 kilograms of benzocaine capable of being mixed with significantly larger quantities of either or both of those drugs. We therefore reject the submission that the judge's approach to sentencing process was wrong in principle. She was correct to consider the guidelines both for supply of class A drugs and for supply of class B drugs. We also reject the submission that the notional sentences after trial which the judge felt appropriate were excessive when compared with fact-specific decisions in other cases.
19.
There is clearly a much better side to the appellant, which the judge recognised and in our view took fully into account. The appellant can be proud of what he has achieved and can look with pride at what others have written about him in the testimonials before the court, and it is sad to see him in this position. His personal mitigation must however be seen in the context of his choosing to act in a way which would assist the supply of substantial quantities of controlled drugs and would thus contribute to the misery and crime which the illegal use of drugs causes.
20.
In all the circumstances, we are unable to say that the sentence imposed was manifestly excessive. For those reasons, grateful though we are to Mr Rees for his submissions, the appeal fails and is dismissed.
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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 Cardiff"],"ConvictPleaDate":[""],"ConvictOffence":["Offence contrary to section 46 of the Serious Crime Act 2007"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at the earliest opportunity"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Cardiff"],"Sentence":["Three years four months' imprisonment (total), concurrent sentences on each count"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[34],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Examination of mobile phone","Police search of customer premises","Arrested with intercepted package"],"DefEvidTypeTrial":["Full admissions in interview","Testimonials"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["Offence committed for financial reward","Essential function within a chain","Quantity of benzocaine supplied was significant"],"MitFactSent":["Effective previous good character","Naivety in commission of offence","Full admissions in interview and cooperation with police","Remorse","Impressive testimonials"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge was wrong to refer to sentencing guideline for supply of class A drugs","Insufficient weight to strong mitigating features"],"SentGuideWhich":["Sentencing Guideline for Class A and Class B drugs"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's approach to sentencing was correct in principle","Personal mitigation was taken into account","Sentence not manifestly excessive"]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2022] EWCA Crim 1750
No. 202200147 B4
Royal Courts of Justice
Friday, 9 December 2022
Before:
LORD JUSTICE EDIS
MR JUSTICE SWEETING
SIR NICHOLAS BLAKE
REX
V
THOMAS SCHREIBER
__________
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]
_________
MR J STONE KC
appeared on behalf of the Appellant.
THE CROWN
did not appear and were not represented.
_________
JUDGMENT
LORD JUSTICE EDIS:
1
This is a renewed application for leave to appeal against sentence in a case where the applicant was convicted of murder, attempted murder and dangerous driving and received a sentence of life imprisonment for murder with a minimum term of 36 years, less 253 days spent on remand. Other orders were also made which it is unnecessary to set out now.
2
We have, earlier this morning, granted the application for leave to appeal against sentence. We also grant a representation order which must, we regret, be a representation order for leading counsel alone. We are very grateful to junior counsel for his attendance and also for the attendance of solicitors representing the appellant who have attended together
pro bono
in order to advance his case. However, the clear practice of this court in dealing with sentence appeals is to do so by granting representation orders for one single advocate and to allow a representation order for leading counsel is, we think, as far as we can properly go.
3
In
R v Palmer
[2017] EWCA Crim 471
and in the Practice Direction at 39A.7 the desirability of representation on behalf of the prosecution in cases involving fatalities is clearly set out.
4
The prosecution decided, when contacted by the Criminal Appeal Office, that they did not wish to attend the application for leave, although they did wish to attend the hearing of the appeal if leave were granted. We have attempted to make arrangements today for prosecuting counsel to make submissions, including by CVP if possible; those enquiries have not borne fruit. It is not possible for the prosecution to be represented by counsel at the appeal if we deal with it today. We are, therefore, unable to deal with the substantive appeal.
5
The particular reason for this is that the views of the families of the two victims of the offences on the indictment are of considerable importance. We have received a statement from the victim of Count 2, the appellant’s mother, made quite recently in which she sets out her views of the sentence which was imposed. Whether that is actually admissible on the appeal or not we consider that it is important that the court dealing with the appeal is fully informed about the opinions of any family member who wishes to express an opinion to the court. The sensitivity of the case is significant. That is the reason why we have decided that the appeal will be heard on another day when the prosecution can be represented and when these matters can be attended to fully.
__________ | {"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["Murder","Attempted murder","Dangerous driving"],"AcquitOffence":[""],"ConfessPleadGuilty":[],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[253],"SentCourtName":[""],"Sentence":["Life imprisonment for murder with a minimum term of 36 years, less 253 days spent on remand"],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":[""],"SentGuideWhich":[""],"AppealOutcome":[""],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
Neutral Citation Number:
[2009] EWCA Crim 2111
Case No:
200806146 A4
COURT OF APPEAL (CRIMINAL DIVISION)
On Appeal from Sheffield Crown Court
His Honour Judge Keen QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/10/2009
Before:
Lord Justice Hughes
(Vice President of the Court of Appeal, Criminal Division)
Mr Justice Simon
and
His Honour Judge Morris QC
(sitting as a Judge of the Court of Appeal, Criminal Division)
- - - - - - - - - - - - - -
Regina
v
D’Roy Charles Williams
- - - - - - - - - - - - - -
(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 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr A Longworth
appeared on behalf of
the
Appellant
Mr J Gould
appeared on behalf of the
Prosecution
- - - - - - - - - - - - - -
Judgment
Mr Justice Simon:
1.
On 16 October 2008 at Sheffield Crown Court, this Appellant pleaded guilty to possession of cocaine (as an alternative to an offence charged under count 1, possession with intent), and to a charge of acquiring criminal property (count 2).
2.
On 27 October he was sentenced to a term of 6 months imprisonment on count 1 and a consecutive term of 3 years imprisonment on count 2. The sentence on count 2 was later varied to a term of 2 years and 9 months, in the light of further information made available to the Court about the value of the criminal property. It follows that the overall term to be served was a term of 3 years and 3 months.
3.
He had committed these offences before the expiry of the full term of an earlier sentence of imprisonment; and in these circumstances, he was also ordered to be returned to custody to serve 455 days of the remaining period, pursuant to
s.116 of the Powers of Criminal Courts (Sentencing) Act 2000
(‘the PCC(S)A 2000’)
4.
He appeals against sentence with the leave of the Full Court.
5.
In order to understand the first ground of appeal it is necessary to consider the circumstances in which the Appellant was ordered to be returned to custody and to serve 455 days of the earlier sentence.
6.
On 17 December 2003 at Sheffield Crown Court the Appellant had been sentenced to a term of 7 years imprisonment for possession of heroin with intent to supply. We will refer to this offence as ‘the earlier offence’.
7.
He was released on licence from this sentence on 22 June 2007, with a sentence expiry date of 22 June 2010. He committed the two index offences on 25 January 2008. Since the earlier offence was committed before the coming into force of the
Criminal Justice Act 2003
(‘CJA 2003), his release was subject to the early release provision of the
Criminal Justice Act 1991
and to the supplementary provisions of the PCC(S)A 2000.
8.
Section 116(1)
of the PCC(S)A 2000 provided (in short summary) that, (a) where a sentence was passed on an offender on or after 1 October 1992, (b) he was released under the early release provisions in Part II of the CJA 1991, (c) he committed an offence before the date by which he would have served his sentence but for his early release, and (d) was convicted of the new offence, a Court could (under ss.(2)) order his return to prison to complete the sentence; and could direct (under ss.(6)) that the period be served before the sentence for the new offence. In effect, the Court could pass a sentence for the new offence which took effect consecutively to any period of recall ordered.
9.
With effect from 4 April 2005, s.116 of the PCC(S)A 2000 was repealed by
s.332 of the CJA
2003 Act and Part 7 of Schedule 37. However, the effect of paragraph 29 of schedule 2 to the Commencement No.8 and Transitional and Savings Provisions Order 2005 was that s.116 continued to apply where the earlier sentence was imposed for an offence committed before 4 April 2005, even where the new offence was committed after that date. Paragraph 29 is conveniently set out in 2009 Edition of Archbold at 5-364n, and expressly states that the repeal of s.116 of
the 2000 Act
,
… is of no effect in relation to a person in a case in which the sentence of imprisonment referred to in s.116(1)(a) of the
Powers of Criminal Court (Sentencing) Act 2000
- (a) is imposed in respect of an offence committed before 4 April 2005
10.
Mr Longworth (on the Appellant’s behalf) accepted this analysis but draws attention to
s.265 of the CJA
2003 and to the amendments made to it by
s.20(4) of the Criminal Justice and Immigration Act 2008
(‘the CJIA 2008’), which came into force on 14 July 2008 by virtue of paragraph 10 of
Schedule 1 of the Criminal Justice and Immigration Act 2008
(Commencement No.2 and Transitional and Saving Provision). He submitted that s.20(4) of the CJIA 2008 effectively repealed s.116 PCC(S)A 2000.
11.
Section 265(1) of the CJA
2003 provides:
A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment for which he has been released under this Chapter.
These provisions reproduce s.84 of the PCC(S)A 2000. It follows that just as s.84 was, they are entirely consistent with the continued operation of s.116 of the PCC(S)A 2000.
Section 116(7)
explicitly says so.
As a consequence of subsection (6)(a) above, the court shall not be prevented by
section 265 of the Criminal Justice Act 2003
(restriction on consecutive sentences for released prisoners) from making any direction authorised by subsection 6(b) above
12.
Section 20
of the CJIA 2008 introduced changes to
s.265 of the CJA
2003; and s.20(4) of the 2008 Act provided for a new subsection to s.265 of
the 2003 Act
. The new subsection 265(1A)is in these terms:
Subsection (1) applies to a court sentencing a person to
(a) a term of imprisonment for an offence committed before 4 April 2005
... as it applies to the imposition of any other term of imprisonment
13.
Mr Longworth argued that this had the effect of bringing to an end the power under the transitional provisions to order a defendant to return to prison to serve out the remainder of an earlier sentence before serving the sentence for the index offence, which had been reserved in cases where the earlier offence had been committed before 4 April 2005. He relied on paragraph 11 of the Explanatory Notes to the CJIA 2008 which are in the following terms.
... This section also amends
the 2003 Act
to clarify the position on imposing consecutive sentences on different occasions. If an offender has been released on licence after serving all the required custodial periods then a subsequent sentence may not be ordered to be served consecutively to the sentence from which he has been released.
14.
He submitted that the phrase ‘a term of imprisonment’ in the new s.265(1A) of the CJA 2003 has the same meaning as it does in 116(6)(a) of the PCC(S)A 2000, so that the Judge when he made the recall order was thus imposing a sentence of imprisonment in respect of an offence. Section 265(1A) of the CJA 2003 Act (as amended by CJIA 2008) should be construed as repealing s.116 of the PCC(S)A 2000, so that it has no effect whether the old offence was committed before or after 4 April 2005; or at least, if the power to order recall remained, the power in s.116(6) to make a new sentence consecutive to it was repealed. He further submitted that it would be arbitrary and unfair to interpret s.265(1A) of CJA 2003 as allowing a court to order a defendant to return to prison to serve out the remainder of the sentence only for offences for which the old sentence was passed before 4 April 2005.
15.
Attractively as the points were argued we are not persuaded that the intent of the CJIA 2008 was to repeal the transitional provisions which had previously applied or to deprive them of effect in a case such as this.
16.
Section 265(1A) of the amended CJA 2003 does not deal with the Court’s powers under s.116 of the PCC(S)A 2000. For the reasons explained in [11] above, it is perfectly compatible with the powers given by s.116 both to order recall and to make the new sentence start after the recall period. Section 265 prevents a new sentence from starting after another sentence from which there has been release
except
where there is an order for recall under
section 116
.
17.
The Explanatory Note to s.20 of the CJIA 2008 needs to be read in the context of its stated intent:
1 ... These explanatory notes ... have been prepared by the Ministry of Justice in order to assist the reader of the Act and to help inform debate on it. They do not form part of the Act and have not been endorsed by Parliament.
2 The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section does not seem to require any explanation or comment, none is given.
18.
If the statutory intent was to prevent a term of recall to prison having to be served before a subsequent sentence was imposed in every case, then it would have been easy enough explicitly to express such intent. However it is clear from Schedule 26 of the CJIA 2008 that there was no statutory intent to repeal s.116 so far as it still had transitional effect. Paragraph 40 of Schedule 26 (which deals with minor and consequential amendments) reads,
The
Powers of Criminal Courts (Sentencing) Act 2000
has effect subject to the following amendments.
Paragraph 45 reads,
In
section 116
(the power to order a return to prison where offence committed during original sentence) –
a)
In subsection (1)(b) for ‘under Part II of the
Criminal Justice Act 1991
(early release prisoners)’ substitute ‘under an provision of
Part 2
of the
Criminal Justice Act 1991
(early release of prisoners) other than s.33(1A)’
b)
In subsection (7) for ‘s.84 above’ substitute ‘
s.265 of the Criminal Justice Act 2003)
restriction on consecutive sentences for released prisoners’.
19.
As we have already noted above, subparagraph (b) means that
section 116(7)
of the PCC(S)A now reads:
As a consequence of subsection 6(a) above, the court shall not be prevented by
section 265 of the Criminal Justice Act 2003
from making any direction authorised by subsection 6(b) above
That expressly preserves the power in s 116(6)(b) to order the new sentence to begin after a period of recall which is ordered.
20.
However, the effect of subparagraph (a), taken with other provisions of the CJIA 2008, especially s.26, is that s.116 does not now apply to long term (4 years or more) 1991 Act prisoners who are released under the new
section 33
(1A) at the half-way point in their sentence (bringing them into line with CJA 2003 prisoners). But
section 116
does still apply to two types of 1991 Act prisoners, who are outside the new
section 33
(1A):
i)
if one or more of the offences were a specified violent or sexual offence within the meaning of
Schedule 15 of the CJA
2003, or
ii)
if the offender were released on licence under the provisions of the CJA 1991 (in other words before 9 June 2008 when Schedule 26
Part 2
paragraph 45 of the 2008 Act came into force) (see the Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional Provisions Order)
[SI 1466 of 2008]
21.
It appears that the purpose of s.20 of the CJIA 2008 is at least related to s.26 which effected a change in the early release provisions in relation to those serving long-term sentences to which the CJA 1991 applied. We should add that in our view Archbold 2009 Ed. 3
rd
Supplement 5-364r correctly sets out the present ambit of s.116 of the PCC(S)A 2000.
22.
So far as the present case is concerned, the Appellant was released from his sentence for an earlier offence on 22 June 2007 under the provisions of the CJA 1991; and in these circumstances it was open to the Court to return the Appellant to prison under s.116 under the amended transitional provisions.
23.
We would also add that we do not see any arbitrariness or unfairness in the continued application of s.116 in the confined circumstances in which it may still apply. As Mr Longworth recognised, it may well be that underlying the repeal of s.116 is an assumption that recall from licence will be dealt with by administrative powers. It is to be observed that in this case, where the repeal of s.116 did not apply, the Appellant was not recalled administratively.
24.
In considering the other grounds of appeal it is necessary to consider the facts of the two offences for which the Appellant was sentenced on 27 October 2008.
25.
On 25 January 2008 the police conducted a search at the Appellant’s home and found £12,000 in cash. It was accepted that £2,000 of this sum was the legitimate property of the Appellant’s partner and this was returned to her. The police also recovered 56 grams of cocaine which was later found to be of 6% purity. According to the Defence Expert’s evidence it had a wholesale value of £800 and a street value of £1,680. In interview the Appellant said that the cocaine was for his own use and that he had purchased it for £1,000. The Prosecution accepted the Defence contention that the cocaine was not crack-cocaine and that its value was consistent with what the Appellant had said (in interview) that he had paid for it. The sum of money which was attributable to the Appellant as criminal property was accepted as £8,000. There was no evidence or admission as to the ultimate source of this sum.
26.
The Appellant, who is now aged 32, had 13 previous convictions for 20 offences; the most recent of which was the conviction for possession of heroin with intent (to which we have already referred).
27.
A number of points are raised in relation to the sentence, but it is convenient to focus on two: (1) the order that the Appellant serve 455 days of the unexpired sentence imposed for the earlier offence was unexplained and failed to take into account the time he had spent in custody; and (2) the overall sentence was too long in the light of his pleas of guilty, and, looking at the sentence of 2 years and 9 months for money laundering in isolation, the sentence was significantly too long in the light of his plea.
28.
So far as the first point is concerned, the expiry date for the earlier offence was 5 September 2010 and the offences for which he was sentenced were committed on 25 January 2008. It follows that the period he was ‘at risk’ of being returned to prison ran from 25 January 2008 until 5 September 2010 (954 days). In fact, as we have recorded, the period ordered to be served was 455 days. It is unclear why this period was chosen. The Appellant had been on remand from 26 January until 27 October 2008 (a period of 275 days); and the Judge should therefore have made a direction under s.240 of
the 2003 Act
. He did not do so; and in those circumstances we proceed on the basis that the Appellant was entitled to be credited with 275 days against the sentence imposed.
29.
In these circumstances we direct that the Appellant be returned to prison under s.116 of the PCC(S)A 2000 Act for a period 455 days.
30.
So far as the second point is concerned, we are not persuaded that there was anything wrong with the sentence of 6 months on count 1 in the light of the Appellant’s antecedent history. Nor do we accept that the sentences should be ordered to be served concurrently, since there was nothing from the Appellant (who would have been in the best position to know) to suggest that the money laundering offence was linked to the drugs offence. However we accept that as a matter of totality the overall sentence of 3 years and 3 months, giving full credit for the plea as the Judge said he had done, was too long as a matter of totality. In these circumstances we quash the sentence of 2 years 9 months and substitute a sentence of 2 years on count 2. The overall sentence will therefore be a term of 2 years and 6 months, and we direct that the 275 days spent on remand should count against that sentence.
31.
To this extent only, the appeal is allowed. | {"ConvCourtName":["Sheffield Crown Court"],"ConvictPleaDate":["2008-10-16"],"ConvictOffence":["Possession of cocaine","Acquiring criminal property"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[275],"SentCourtName":["Sheffield Crown Court"],"Sentence":["6 months imprisonment (count 1)","2 years 9 months imprisonment (count 2, later varied to 2 years)","Sentences consecutive","Returned to custody to serve 455 days of previous sentence"],"SentServe":["Consecutive"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[32],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Police search","Cash and drugs recovered","Defence expert evidence","Interview admissions"],"DefEvidTypeTrial":["Defence expert evidence","Appellant's statement in interview"],"PreSentReport":[],"AggFactSent":["Previous conviction for possession of heroin with intent to supply"],"MitFactSent":["Plea of guilty","Cocaine not crack-cocaine","Value consistent with personal use"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Order to serve 455 days of unexpired sentence unexplained and failed to take into account time spent in custody","Overall sentence too long in light of guilty pleas","Sentence for money laundering too long in light of plea"],"SentGuideWhich":["s.116 of the Powers of Criminal Courts (Sentencing) Act 2000","s.265 of the Criminal Justice Act 2003","s.20(4) of the Criminal Justice and Immigration Act 2008","s.240 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed in part"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Overall sentence of 3 years and 3 months, even with full credit for plea, was too long as a matter of totality"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No error in sentence of 6 months on count 1","Sentences should not be concurrent as offences not linked"]} |
Neutral Citation Number:
[2008] EWCA Crim 531
Case No: 200702726C2, 200702810C2, 200700811C2, 200700655C2,
200706245B3, 200705902B4, 200704358D2, 200702269B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Keen QC at Sheffield Crown Court (Khan T20067477, Hanif T2006 7398 and Younas T20067477)
His Honour Judge Thorn at Hull Crown Court (Michael Arshad Khan) T20060430
His Honour Judge Darwall-Smith at Bristol Crown Court (Lewthwaite) T20077206
His Honour Judge Roberts at Liverpool Crown Court (Hill)T20067853 and T20061512
His Honour Judge Mott at Worcester Crown Court (Cross) T20057171
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
14/03/2008
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
SIR IGOR JUDGE PRESIDENT OF THE QUEENS BENCH DIVISION
and
THE HONOURABLE MR JUSTICE SILBER
- - - - - - - - - - - - - - - - - - - - -
Between :
Bakish Alla Khan and Others
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr P. Mitchell (in the appeal of Bakish Alla Khan, Hanif and the application of Younas), Mr S. Uttley (in the application of Michael Arshad Khan), Mr C.Smyth (in the application of Lewthwaite), Mr M. Scholes (in the application of Stanley James Hill) and Mr T. Hannam (in the application of Roy Andrew Cross) for the Respondent
Mr D.F Hughes for the appellant Bakish Alla Khan
Mr M. George for the appellant Hanif
Mr H. Spooner for the applicant Younas
Mr S. Green for the applicant Michael Arshad Khan
Mr I. Halliday for the applicant Lewthwaite
Mr W. Rickarby for the applicant Cross
Mr A. Vollenweider for the applicant Hill
Hearing dates : 29 and 30 January 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Phillips of Worth Matravers CJ :
Introduction
1.
The appeals and applications that we have heard together advance or seek to advance one common ground of appeal against conviction: that one member of the jury had, by reason of his or her occupation, an appearance of bias.
2.
Article 6 of the European Convention on Human Rights provides:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
3.
Independence and impartiality are not the same, albeit that lack of independence will often carry with it lack of impartiality. Lack of independence involves a connection between the tribunal and one of the parties, or between the tribunal and the executive.
4.
Lack of impartiality is usually described as bias. It is important to define bias in this context. Lord Goff did so in
R v Gough
[1993] AC 646. He described bias as unfairly regarding “with favour or disfavour the case of a party to the issue under consideration”.
5.
Not merely must a judicial tribunal be impartial it must be seen to be impartial. This is a requirement of both European and our domestic law.
“40…according to the constant case law of the Convention organs, the existence of impartiality must be determined according to a subjective test, namely, on the basis of a personal conviction of a particular judge in a given case – personal impartiality being assumed until there is proof to the contrary.
41. In addition, an objective test must be applied. It must be ascertained whether sufficient guarantees exist to exclude any legitimate doubt in this respect. Even appearances may be important: what is at stake is the confidence which the court must inspire in the accused in criminal proceedings and what is decisive is whether the applicant’s fear as to lack of impartiality can be regarded as objectively justifiable.”
Gregory v United Kingdom
(1997) 25 EHRR 577
at p. 587.”
6.
In English law the requirement that the tribunal should be seen to be impartial results from the principle that
“…it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”
R v Sussex Justices, ex p. McCarthy
[1924] 1KB 256
at p. 259 per Lord Hewart CJ.”
7.
Thus, the question of whether a jury is independent and impartial falls to be determined by an objective test: “whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased”:
Porter v Magill
[2001] UKHL 67
,
[2002] 2 AC 357
at para 103.
8.
The requirement of both impartiality and the appearance of impartiality applies to every juror - see the comment of the Commission in
Gregory v UK
at paragraph 42. At the stage of jury selection precautions must be taken in order to ensure that each juror is impartial. If, in the course of the trial it becomes apparent that a juror is partial to the case of the parties, that juror must be discharged and consideration given as to whether the trial can fairly proceed with the remaining jurors. If, after verdict, it is established that a juror was, or has the appearance of having been partial to the case of one of
the parties, the conviction must be quashed.
“Even a guilty defendant is entitled to be tried by an impartial tribunal and the consequence is inescapable” per Lord Bingham of Cornhill in
R v Abdrokof and another; R v Williamson
[2007] UKHL 37
at paragraph 27.
“…we are unable to envisage any circumstance in which, an Article 8 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe” per Rose LJ, Vice-President in
R v Dundon
[2004] EWCA Crim 621
.
9.
It is important to distinguish between partiality towards the case of one of the parties and partiality towards a witness. Each can be describes as ‘bias’ but they are different in kind and can have different consequences. Association with or partiality towards a witness will not necessarily result in the appearance of bias, as defined by Lord Goff. Just because a juror feels partial to a particular witness does not mean that the juror will be partial to the case in support of which that witness is called. It may do so if the witness is so closely associated with the prosecution that partiality to the witness is equated with partiality towards the party calling the witness. Such a case was
In re Medicaments
[2001] 1 WLR 700
where an appearance of bias resulted from the fact that a member of the tribunal had applied for a job to the experts whose evidence was the foundation of the case of one of the parties. In many cases, however, the witness will not be associated with the prosecution in this way.
10.
Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:
i) Would the fair minded observer consider that partiality of the juror to
the witness may have caused the jury to accept the evidence of that witness? If so
ii) Would the fair minded observer consider that this may have affected the outcome of the trial?”
If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.
11.
In considering the first question one must have regard to the possibility that the individual juror may have influenced his or her fellow jurors when evaluating the evidence of the witness in question. None the less the Strasbourg court has recognised the obvious fact that the existence of a body
of jurors selected at random provides some safeguard against the disposition of one of them to accept the evidence of a particular witness –
Pullar v UK
(1996) 22 EHRR 391
at paragraph 40.
12.
Another situation, also sometimes loosely described as bias, occurs where the jury or a juror knows or learns of some matter prejudicial to the defendant – typically that he has a criminal record when this fact has not be admitted in evidence. This does not constitute partiality to the case of one of the parties and therefore does not have the automatic effect that the jury or the juror is considered to be biased against the defendant, requiring the discharge of the jury or juror, or the quashing of a conviction if it comes to light after the trial. –
R v Box
[1964] 1 QB 430;
R v Docherty
[1999] 1 Cr App R 274
. In the latter case Roch LJ, giving judgment of the court, after referring to
R v Gough,
said that the ultimate question for the court was whether or not the conviction was safe. If the verdict is unsafe it will be quashed. If it is not, then it will be left undisturbed.
13.
The difference in effect between partiality to a party and partiality to a witness may perhaps explain the contrast between the following judicial statements:
“…the question of impartiality, actual or perceived, has to be judged from the very moment when the judge or tribunal becomes first seized of the case. It is a question which, at least in the case of perceived impartiality, stands apart from any question that may be raised about the character, quality of effect of any decision which he takes or acts which he performs in the proceedings.” Per Lord Hope of Craighead in
Millar v Dickson
[2002] 1 WLR 1615
at paragraph 63
“A final decision in any given case about the fairness of the trial where unfairness consisting of bias is alleged can only be made on examination of the facts of the trial as a whole after its conclusion…” per Lord Carswell in
Abdroikof
at paragraph 69.
14.
It used to be the case that many who, by occupation, were concerned in one respect or another with the administration of justice were ineligible to sit on a jury. These occupations were set out in
Part 1
of
Schedule 1 to the Juries Act 1974
. They included judges, barristers and solicitors, the Director of Public Prosecutions and his staff, officers of penal establishments and members of any police force. One reason for the ineligibility of these persons was that they might have, or be thought to have, a tendency to favour the prosecution in a criminal trial. Automatic disqualification of such persons has been removed by
section 321
and
schedule 33 to the Criminal Justice Act 2003
(‘the 2003 Act’). The latter restricts disqualification from service on a jury to those who are mentally disordered and those with specified criminal convictions.
15.
The effect of
the 2003 Act
has not been to render eligible for jury service anyone who would otherwise be disqualified on the ground of apparent bias, applying the test in
Porter v Magill
. It has simply removed automatic disqualification. The amendment to the law recognises the fact that a person’s occupation will not automatically result in an appearance of bias. But it does not follow from the fact that automatic disqualification has been removed in the case of those occupations set out in
Part 1
of
Schedule 1
to the Jury Act 1974 that individuals who belong to them may not, none the less, be disqualified on the ground of apparent bias in the light of the circumstances of the particular case. The nature of some occupations is such that there is an obvious danger that the circumstances of a prosecution will give rise to an appearance of bias in relation to those who belong to them.
16.
The cases before us involve allegations of apparent bias on the part of a juror who was a serving police officer, a juror who was an employee of the Crown Prosecution Service and two jurors who were prison officers. Each of these jurors would have been automatically disqualified under
Part 1
to
Schedule 1
of
the 1974 Act
.
17.
In
Abdroikof
the House of Lords had to consider three appeals in which the ground of appeal was that a member of the jury was disqualified on the ground of apparent bias by reason of his occupation. In each case the juryman belonged to an occupation that would have resulted in his automatic disqualification under
Part 1
to
Schedule 1 of the Juries Act 1974
. In two cases the juror was a serving police officer and in one an employee of the Crown Prosecution Service.
18.
The House of Lords no doubt gave permission to appeal in these cases in order to explore the effect of the change in the law and some of the conclusions that we have expressed above are derived from those appeals. We now turn to consider them in greater detail.
Abdroikof
19.
In
Abdroikof
the House of Lords were not unanimous as to the result in all three appeals. A majority of three allowed two of the three appeals, while the minority would have dismissed all of them. Each of the majority had something to say about the position of a juror who was a serving police officer. None thought that a police officer was automatically disqualified from serving on a jury. Lord Bingham of Cornhill considered the argument that police officers ought to be disqualified as being “professionally committed to one side only of an adversarial trial process” but decided that it would not be right automatically to disqualify police officers having regard to Parliament’s decision that they should be eligible to sit. He drew a distinction between the case of the first appellant and that of the second. He said of the first:
“It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant.”(Paragraph 23)
In these circumstances Lord Bingham concluded “not without unease” that the appeal should be dismissed.
20.
So far as the second appeal was concerned, Lord Bingham took a very different view:
“Here there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial.” (paragraph 26).
It followed that the second appeal had to be allowed.
21.
Baroness Hale of Richmond drew the same distinction between the first and the second appeal. As to the first appeal, she observed:
“There was no particular link between the court and the station where the police juror served. No important issue turned upon a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they had all served in the Metropolitan Police.”(Paragraph 54).
22.
As to the second appeal, Baroness Hale made the following points:
“…there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.”(Paragraph 53)
In view of these considerations she agreed that the appeal should be allowed.
23.
Lord Mance agreed that these were relevant factors. He observed:
“…the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as, and was as a result the ‘brother officer’ of, the policeman on the jury. Further the juror was posted to a station which committed its cases to the Crown Court of trial…Absent such considerations, I do not agree that it follows that a police officer is disqualified as a juror, even in a case of significant conflict between a police witness and a defendant.” (Paragraph 83).
24.
We have not found it easy to deduce on the part of the majority of the Committee clear principles that apply where a juror is a police officer. One principle is clear however. All five held that the fact that a juror is a police officer will not, of itself, disqualify the juror on the ground of want of impartiality. That decision inevitably followed from the fact that Parliament has made police officers eligible to serve on juries unless it were suggested, which it was not, that this provision is not compatible with Article 6 of the Convention.
25.
Of the three who found apparent bias on the facts of the first appeal, Lord Bingham did so on the basis that the police juror would appear partial to the police witness, whose evidence involved a ‘crucial dispute’ with that of the appellant. The apparent likelihood that he would prefer the evidence of a ‘brother officer’ would be seen as ‘a real and possible source of unfairness’, so that the jury was not a tribunal which was and appeared to be impartial.
26.
It is not entirely clear that Lord Bingham concluded that the police juror had the appearance of being partial to the prosecution, as opposed to simply being biased in respect of the relevant conflict of evidence and, indeed, it is probably not possible to draw a clear line between the two on the facts of the case.
27.
Turning to the second appeal, it is significant that Lord Bingham contemplated the possibility that there was unconscious prejudice on the part of the juror but concluded, because there was no significant contest between the evidence of the police and that of the appellant, that the Court of Appeal had been correct to hold the conviction safe.
28.
Both Baroness Hale and Lord Mance appear to have concluded that the facts gave rise to the appearance that the police juror might favour the prosecution because of contact with members of the Crown Prosecution Service at the court where the trial was taking place. Baroness Hale found the fact that the case depended to some extent on the evidence of the police witness to be significant, whereas Lord Mance thought that even a serious conflict of evidence between a police witness and a defendant would not render the presence of a police officer on the jury open to objection.
29.
Our conclusion is, as already expressed, that the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror’s partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.
30.
Turning to the third appeal where it was alleged that the juror was biased because he was an employee of the Crown Prosecution Service, the majority concluded that he was not independent of the prosecution and thus not seen as impartial. As Lord Bingham put it at paragraph 27:
“It is in my opinion clear that justice is not seen to be done if one discharging the very important neutral role of juror is a full-time, salaried, long serving employee of the prosecutor”
31.
The conclusions of Baroness Hale were as follows:
“It is inconceivable that the Director of Public Prosecutions could sit as a juror in a case prosecuted by the CPS, irrespective of whether or not he had been personally involved in the decision to prosecute. There would be no objection to his sitting in a case prosecuted by some other person or authority. The same must apply to a CPS lawyer, who is employed to decide upon whether or not to prosecute and to conduct the prosecutions decided upon. Whether the same would apply to other CPS employees, whose role in the prosecution process or whose connection with the organisation is rather more peripheral, is a separate question which does not arise here. One could imagine that it might not apply to temporary to short term employees in junior positions unless the prosecution were brought by the office in which they served. There would, of course, be no objection to CPS lawyers or other employees serving on juries in prosecutions brought by other persons or authorities. This view is consistent with Parliament’s lifting the ban upon members of the DPP’s staff serving on juries, while leaving intact the common law and Convention rules against bias.”
This passage speaks for itself.
32.
We now turn to apply the principles that we have derived from the authorities to the present appeals. In each case we shall deal first with challenges to convictions before turning, in so far as necessary, to deal with challenges to sentences.
The appeals against conviction of Bakish Allah Khan and Ilyas Hanif
33.
On 12 January 2007 in the Crown Court at Sheffield before
His Honour Judge Keen Q.C and a jury
, the appellants, Bakish Allah Khan and Ilyas Hanif, were among five men convicted of conspiracy to supply a Class A controlled drug, namely heroin. Their co-defendants, Sajid Mohammed Rasul, Asif Iqbal Younas and Niaz Khan all pleaded guilty to the conspiracy.
34.
Both appellants appeal against conviction with the leave of the single judge.
35.
The Crown alleged a conspiracy to supply heroin in Sheffield in August 2006 involving a central ‘gang’ of Asif Younas, Niaz Khan and the appellant Bakish Khan. These three were seeking further supplies and negotiated the purchase of six kilograms of heroin from Sajid Rasul. On 30 August 2006 Rasul travelled from Luton to Sheffield, where he met Bakish Khan, Younas and Niaz Khan. The following day the other appellant, Hanif, a local taxi driver, was sent to Luton from Sheffield, where he met Rasul. Hanif was arrested on his way back to Sheffield, whereupon 6kg of heroin was discovered in the boot of his car.
36.
The evidence relied on by the prosecution to establish the conspiracy was from three sources: police observations of the movements of the defendants and their meetings during a surveillance operation carried out by the Serious Organised Crime Agency (SOCA), records of the extensive telephone contacts between the conspirators, and evidence of searches and seizures at the time of the arrest. Not only was the heroin found in Hanif’s taxi, but a large sum of cash (£18,955), which had been in contact with heroin, was found at the home of Bakish Khan.
37.
Bakish Khan’s defence at the trial was that he was the cousin of Niaz Khan and a friend of Younas, and was in close contact with them, but that he had not taken part in the conspiracy. His telephone contacts with them on the relevant days had been innocent. The cash found at his home derived partly from the sale of a car and partly represented the proceeds of his former heroin dealing, for which he had been convicted in 2003.
38.
Hanif’s defence was that he was used as a courier without his knowledge. He knew Asif Younas and Niaz Khan, but only as customers of his taxi service. On 31 August 2006, at Younas’ request, he had taken a passenger named Paul to Luton. Paul had used Hanif’s mobile phone in the car and the telephone calls to Rasul from that phone during most of the journey had been made by Paul. Hanif had himself used the telephone in between these calls to speak to Younas to check directions, and to Niaz Khan in relation to a dispute about an unpaid taxi fare. Paul had got out of the taxi in Luton, leaving the heroin in the boot. Hanif called a witness, Victoria Thomas, who said she had seen him in Sheffield at the start of his journey with a passenger in his car.
39.
Three police officers gave evidence at the trial that Hanif did not have a passenger in the car during their observations at the Sheffield and Luton ends of his journey. One of these officers was Mark Blackburn, who had observed the car with another officer, leaving the M1 motorway at junction 11, and had followed it until it had parked behind a car belonging to Rasul in Newark Road.
40.
The evidence of the guilty pleas of the co-accused was also relied on by the prosecution to establish the conspiracy, together with the bad character of Bakish Allah Khan, whose previous conviction for supplying heroin had led to a sentence of six years’ imprisonment and a confiscation order of £64,202.
Bias application
41.
On the second day of the trial, during the evidence of Police Officer Blackburn, a juror sent a note to the judge. The note read ‘I am a serving police officer. I know Mark Blackburn but I haven’t worked with him for over two years.’ The judge read it to counsel and then asked the juror a series of questions. The juror confirmed he worked in the South Yorkshire Police Force as a dog handler and had known the witness for ten years. He had worked with him on three occasions connected with the same incident, but they had never worked at the same station nor did they know each other socially. The juror did not think he knew anything about the witness which would affect his ability to judge his evidence impartially.
42.
Counsel for Hanif and Bakish Allah Khan then made an application to the judge that the juror should be discharged, relying on the challenge to the police evidence that Hanif did not have a passenger in his car, and on the danger that the juror would know of Bakish Allah Khan’s previous conviction for dealing in heroin.
43.
The judge ruled that the juror should not be discharged. He had acted properly by forwarding the initial note and could be trusted to act in accordance with his oath. Later the juror was asked and confirmed that he did not know any other police officer in the case. He went on to be the jury foreman.
44.
After the trial, the appellants’ counsel discovered that the juror had been involved in recent drugs operations in the area and had given evidence at other drugs trials in which counsel for Bakish Khan had appeared.
45.
The first question to be considered is whether the police juror’s occupation as a police officer and his acquaintanceship with Police Officer Blackburn gave rise to the appearance that he would favour the case of the prosecution. As to this, the two appellants did not rely merely upon the fact that the juror was a police officer. First they relied upon the fact that he served as a foreman of the jury. That fact can have no bearing on the question of whether or not he had the appearance of bias. Next they relied upon the fact that he had been involved as a dog handler in drugs operations over a period that included the period shortly before he served as a juror. It was submitted that in view of this he would appear likely to be biased in favour of a prosecution resulting from a drugs operation.
46.
On behalf of both appellants reliance was placed on the fact that the juror’s involvement in drug operations did not come to light until after the appellants had been convicted. It was submitted that, had the judge been aware that the juror had been involved in drug operations he would have been unlikely to have permitted the juror to remain on the jury. That may be so but that is not the test of apparent bias. As the European Court of Human Rights remarked in the case of
Pullar v United Kingdom
(1996) 22 EHRR 391
at paragraph 36 it is natural that a “judge should strive to ensure that the composition of a jury is beyond any reproach whatsoever, at a time when this is still possible, before or during the course of the trial”.
47.
There was no question of the juror having any connection with those responsible for the prosecution in this case. The investigation was carried out by the Serious Organised Crime Agency and the prosecution was carried out by the Organised Crime Division of the Crown Prosecution Central Casework Directorate, without contact with the juror’s force, the South Yorkshire Police or the local Crown Prosecution Service branch.
48.
If one starts, as one must, from the premise that police officers are not, by reason simply of their occupations, considered to be biased in favour of the prosecution, we do not consider that the fact that a police officer has taken part in operations involving the type of offence with which a defendant is charged, gives rise, of itself, to an appearance of bias on the part of the police officer. Most police officers are likely to have had experience of most of the common types of criminal offence, not least drug dealing. We do not consider that familiarity with the particular offence charged against an offender would lead the objective observer to suspect a police juror of bias.
49.
A further point was advanced on behalf of Bakish Alla Khan. This was that, because of the juror’s involvement in drug operations, he might have become aware of Bakish Alla Khan’s previous conviction for dealing in heroin. As to this there was nothing to support this surmise. Had the juror known anything about any of the defendants we think that he would clearly have made this fact known to the judge, as he did his knowledge of Police Officer Blackburn. Furthermore, Bakish Alla Khan’s previous conviction was placed before the jury.
50.
No other submissions were made in support of Bakish Alla Khan’s appeal against conviction. At his trial there was no challenge to the prosecution evidence. No police witnesses were called. The issue was whether the jury were satisfied that the explanations he advanced for the undisputed evidence were untrue and that this evidence demonstrated his guilt. The jury’s verdict shows that they were satisfied of this.
51.
In these circumstances, the allegation of jury bias made on behalf of Bakish Alla Khan is not made out and his appeal against conviction is dismissed.
52.
Hanif has an additional point. His defence depended critically on the allegation that, in accordance with arrangements made with him by Younas, he had driven a passenger, Paul, from Sheffield to Luton, that this passenger had borrowed his mobile phone to speak to Rasul in conversations or attempted conversations, that were interspersed with other conversations that Hanif was having, on the same phone, with Younas and Niaz Khan, who had both pleaded guilty to conspiracy at the start of the trial. His evidence was that his conversations with them related to his taxi business, including conversations with Niaz about an unpaid taxi bill and conversations with Younis about the charge to be made for carrying Paul. His evidence was that, when Paul left his car in Luton he left behind in the back two bags containing 6 kilos of heroin.
53.
Three police officers gave evidence of keeping Hanif under observation at different stages of his journey from Sheffield to Luton. One of these witnesses was Mark Blackburn. Each said that he saw no passenger in the car. Each of them said that he was alone in the car. In cross-examination it was not suggested to these witnesses that their evidence was untruthful. Such a suggestion would not have been likely to be fruitful as their accounts were no doubt supported by contemporary records made at time when they would have attached no significance to the fact that Hanif had no passenger in the car. It was put to them, however, that their evidence that Hanif had no passenger was inaccurate. Hanif called a witness who spoke to glimpsing a passenger in the back of his car as it passed her in Sheffield. She was not a witness of good character and it was the prosecution case that she was not to be believed.
54.
Hanif’s explanation for the records of the use of his mobile phone and for being found with the heroin in the back of his car bordered on the farcical. The mobile phone records showed that, if his explanation was true, his phone must have been being passed to and from between himself and his passenger like a yo-yo. Equally unlikely was the suggestion that the conspirators, Younas and Niaz, would have been having repeated telephone conversations with him about his taxi charges at a time when they were busy arranging for a drug delivery. Finally it is hard to believe that, if his passenger had been carrying a valuable consignment of heroin, he would have left it in the back of the taxi.
55.
Quite apart from these matters, Hanif’s evidence had significant inconsistencies with earlier statements made to the police. It was the prosecution’s case that his evidence had been tailored to accommodate the police evidence.
56.
In the light of these facts we turn to consider the two questions set out at paragraph 10 above. The material evidence of the three police witnesses was that they had seen no passenger in Hanif’s car. Insofar as there was an issue in relation to this evidence it was whether it was possible that there might have been a passenger unobserved by the police. As to that issue, the jury plainly concluded that it was not. No fair minded observer would believe, however, that this conclusion might have been brought about as a result of partiality on the part of the police juror to his fellow officers and, in particular, to Police Officer Blackburn who was known to him. Thus the question is answered in the negative and the second question does not arise.
57.
For these reasons Hanif’s conviction is not rendered unsafe by the fact that the foreman of the jury was a police officer who was acquainted with Police Officer Blackburn and Hanif’s appeal against conviction is dismissed.
The applications of Bakish Khan and Younas for permission to appeal against sentence
58.
We turn to consider the applications for permission to appeal against sentence. The judge made the following summary of the offences at the outset of the sentencing exercise:
“You, Younas, Bakish Khan and Niaz Khan, were running an operation in this city, wholesaling that drug in large quantities. You are a classic criminal gang, using a variety of what you hoped were untraceable telephones, being in possession, some of you, of very large sums of money and there being traces of the drugs about your various items of property.
The offence that actually led to your apprehension namely the transmission of the six kilos of heroin, forms only a part of the offence that you have committed and you must understand that you are being sentenced for what was happening throughout August.”
59.
The judge sentenced Bakish Khan to 17 years imprisonment and Younas to 15 years imprisonment. These sentences contrasted with sentences of 10 years imprisonment imposed on Niaz Khan and 8 years imprisonment imposed on Rasul and Hanif. The contrast was the more marked in the case of Bakish Khan as the judge directed that the sentence would take effect consecutively to a period of 2 years 5 months imprisonment. This was the period outstanding under a previous conviction for supplying heroin in respect of which Bakish Khan had been released on licence.
60.
To a large extent the submissions made on behalf of each applicant covered the same ground. It was submitted that the sentences were manifestly excessive having regard to the well established scale of sentences for drug offences of this nature. It was further submitted that there was a marked disparity between the sentences and the sentence of only 8 years imposed on Rasul, who was the supplier.
61.
For Bakish Khan it was further submitted that the overall effect of the sentence, being 19 years and 5 months imprisonment, offended against the requirement to ensure that the totality of a sentence is not excessive.
62.
For Younas it was further submitted that the judge had erred in failing to make any reduction from his sentence to reflect the fact that he had entered a plea of guilty. He should have been given full credit for that plea as it had been entered at the first reasonable opportunity.
63.
We have concluded that there is force in the submission of disparity. Rasul was fortunate in receiving a light sentence, having particular regard to the fact that the judge place him somewhat higher up the chain of criminality. This is despite the fact that, as the judge explained, he was sentencing Rasul for a single incident of supplying heroin, whereas he was sentencing the others for a conspiracy that ranged more widely. Furthermore the judge was generous in giving Rasul a full discount for his guilty plea, which was not intimated on the first opportunity. Rasul’s sentence was equivalent to a sentence of 12 years after trial.
64.
Niaz Khan received a sentence of 10 years. He also was fortunate to be given a full discount for a guilty plea which was entered at the start of the trial on the basis that he had had “every intention of pleading guilty as soon as possible”. His sentence was equivalent to one of 15 years after trial. A 15 year sentence was, we think, at the top end of the appropriate range for the facts of this offence.
65.
The judge was entitled to have regard to Bakish Khan’s previous conviction for supplying heroin when fixing his sentence – indeed
section 143(2) of the Criminal Justice Act 2003
required him to treat this as an aggravating factor. This, however, was balanced by the fact that he directed that Bakish Khan should serve the balance of his previous sentence of 2 years and 5 months. In these circumstances, we consider that a sentence of 15 years imprisonment, in addition to the 2 year and 5 months would have been appropriate. We allow the application for permission to appeal against sentence, quash the sentence of 17 years imprisonment and replace this with a sentence of 15 years imprisonment, leaving the rest of the sentence undisturbed.
66.
Turning to Younas, the reason that the judge gave for denying him any credit for his guilty pleas was as follows:
“You put in a scandalously ludicrous basis of plea and persisted with it before me, although at least you held back from giving evidence about it. That means that you have sacrificed any credit to which you are entitled.”
Two issues arise. What credit should Younas have received but for his ‘ludicrous’ basis of plea and should he have lost the whole of that credit as a result of the basis of plea.
67.
The position as to the timing of the plea was as follows. A plea of not guilty was entered at the plea and case management hearing. It seems plain to us that Younas was waiting to see the strength of the prosecution case against him. Once this was appreciated the likelihood of a plea guilty was indicated. This was about two weeks before the trial date and the prosecution were informed that a plea would be tendered about a week before the trial date. The suggestion that the plea was made at the first reasonable opportunity in these circumstances is unsound. Younas did not need to see the prosecution evidence in order to decide whether he was guilty. By waiting almost to the door of the court to indicate his plea he forfeited much of the credit for a guilty plea. None the less guidance given by the Sentencing Guidelines Council indicates that he should have been given a discount for his late guilty plea of about 10% of the sentence.
68.
The basis upon which Younas tendered a plea of guilty was that his involvement in drug dealing was restricted to the transaction in August, that he was not involved in the organisation of that transaction nor in the ongoing supply and that he was not to receive any benefit from the transaction. The prosecution refused to accept the plea on this basis, but it was tendered none the less. Younas did not abandon the basis of his plea, but those acting for him made it plain that they would leave it to the judge to form his own view of Younas’ participation. The position would have been very different if as a result of his stance it had been necessary to have a
Newton
hearing.
69.
The reason for the discount for a guilty plea is essentially pragmatic. It is a reward for the saving of the time and resources that is consequent on the plea. For a defendant the plea usually carries with it the possibility of advancing by way of additional mitigation the defendant’s regret for his offending. If, as in the case of Younas, the defendant advances what the judge regards as a ludicrous story, he robs himself of the possibility of the additional mitigation. He should not, however, be deprived of all credit for the benefit that the guilty plea nonetheless affords to the prosecution. On the fact of this case that was significant. Having particular regard to the judge’s generous approach to the guilty pleas advanced by Younas’ co-defendants, we consider that Younas should have been granted the normal discount of 10% for his late plea. Accordingly we grant him permission to appeal against sentence, quash the sentence of 15 years imprisonment and substitute a sentence of 13 years and 6 months imprisonment. Credit towards this must be given for the 91 days spent remanded in custody.
The application for permission to appeal against conviction of Martin Lewthwaite.
70.
We take this case next because it also involves an allegation that a police officer on the jury had the appearance of bias.
71.
On 15 October 2007 in the Crown Court at Bristol before His Honour Judge Darwall-Smith and a jury Martin Lewthwaite was convicted of causing grievous bodily harm with intent, contrary to
s18 Offences against the Person Act 1861
.
72.
On 15 November 2007 he was sentenced to 5 years’ imprisonment (less time spent on remand).
73.
The complainant, Thomas Holly was assaulted on 23 February 2007 outside a kebab shop in Nailsea. He was bending down to speak to a girl on the pavement when he received two punches to the face, which broke his jaw and caused the loss of several teeth, and was kicked in his upper body. He had no recollection of the assault. An eye witness, Jemma Capern, gave a description of the assailant as a white male in his late 20s, very tall and with short bushy hair. According to her account, no-on had attempted to stop the assault before the assailant walked away.
74.
The applicant was present at the scene. He was tall with short bushy hair but was 38 and had been wearing a hat. A police officer, PC Harris, visited him at his home in the early hours of the morning and observed that his right knuckle area was swollen and had a red mark. His clothing was found to have blood on it compatible with that of Mr Holly and his right shoe had a pattern of blood on it which was consistent with a forceful impact of that shoe in wet blood.
75.
Jemma Capern later failed to pick out the applicant in a Viper identity parade.
76.
The applicant’s defence was that he witnessed the assault being committed by a man he knew of as ‘Steve’ or ‘AJ’, whose appearance was similar to the description given by Jemma Capern. He had attempted to intervene and was covered in blood as a result. He had been wearing a hat that evening. He was unaware of any swelling to his knuckles. He gave evidence that he did not tell the police about ‘AJ’ at his interview because he distrusted the police.
77.
The prosecution made an application to admit evidence of the applicant’s previous convictions for violent offences. The application was granted by the judge on the ground that this was not a weak case and the convictions were relevant to show propensity. Six convictions, including one for assaulting a police officer were thereafter put to the jury.
Bias application
78.
One of the jurors (Christopher Hogg) had sent a note to the judge at the beginning of the trial stating that he was a serving Detective Chief Inspector involved in drugs work outside the Nailsea area. He did not know any of the officers or other witnesses in the case. He did not want the other jurors to know of his profession.
79.
The matter was raised by the applicant’s counsel, whose clerk had recognised the juror as a police officer. The Judge read the note to counsel. Defence counsel was concerned, given the length of the applicant’s record and his assaults on police officers, that he would be widely known within the Avon and Somerset Police Force generally. The judge agreed to make a further enquiry as to whether the juror knew of the applicant or anything about him. The juror confirmed he did not, nor were there any other reasons he could think of that would make it undesirable for him to sit on the jury. The judge declined to ask him to stand down in the light of these circumstances.
80.
Mr Ian Halliday for Lewthwaite submitted that the Detective Chief Inspector should not have been permitted to serve on the jury and that he had an appearance of bias. He included in his grounds of appeal the contention that the police juror should not have been permitted to sit on the jury because, with his experience, he would have known the inferences to be drawn from (i) the failure of Miss Calpern to identify the applicant as the assailant at a Viper identity parade and (ii) the applicant’s silence in interview. He did not in oral argument satisfy us that, to the extent that the police juror was better placed to draw appropriate inferences from these matters, this was capable of leading to unfairness.
81.
Next Mr Halliday submitted that the police juror would have appeared to be prejudiced against the applicant by virtue of (i) the fact that the applicant had explained his silence by saying that it stemmed from a dislike and mistrust of the police and (ii) the fact that the applicant had a previous conviction for assaulting a police officer. Neither of these was a matter of great moment and we do not consider that an informed bystander would have formed the view that either, or both, of these matters would affect the impartiality of the police juror.
82.
Finally Mr Halliday submitted that there was a significant issue between the applicant and a police witness, namely Police Constable Harris’ evidence that the applicant had a swelling and a cut to the knuckle of his right hand. It was submitted that the police juror would appear to be predisposed to accept his brother officer’s evidence on this and that this meant that he was not impartial and the trial was not fair.
83.
We do not accept that the condition of the applicant’s knuckle was a significant issue. The gravamen of the case against the applicant was that he admitted that he was at the scene of the incident, that the complainant’s blood was found on his shoes and his clothing and that Jemma Calpern, who witnessed the incident, gave evidence that it only involved two men, the complainant and his assailant. In these circumstances the condition of the applicant’s knuckle was of little significance. Of equally small significance was any inclination that the police juror might have been thought to have to favour the police witness’s evidence on this point. We do not find that the police juror had an appearance of bias or that his presence on the jury affected the safety of the applicant’s conviction.
84.
Further grounds of appeal that Mr Halliday sought permission to advance were that the judge should not have admitted evidence of the applicant’s bad character and that he erred in directing the jury that this was capable of being relevant to their assessment of the applicant’s credibility as well as to his propensity to commit the type of offence with which he was charged.
85.
As to the admission of the evidence of bad character, the principal point made by Mr Halliday was that the most recent conviction for using violence to enter premises did not demonstrate a propensity to commit violence to the person. The judge did not accept that submission, ruling that the loss of temper and use of violence were the relevant features in that offence. We agree. As to the judge’s direction to the jury, it is true that this court in
Campbell
[2007] EWCA Crim 1472
suggested that such a direction was unlikely to assist the jury. That was true in this instance, but the direction was not likely to lead the jury astray either. Mr Halliday realistically accepted that this ground would not get him home on its own. It does not.
86.
In the result we grant the applicant permission to appeal against conviction on the ground that the police juror had the appearance of bias, but dismiss that appeal. We refuse him permission to appeal against conviction on the other grounds.
The application for permission to appeal against conviction of Michael Ashad Khan
87.
On 9 November 2007 in the Crown Court sitting at Hull before His Honour Judge Thorn and a jury the applicant, Mr Michael Arshad Khan, was convicted of three counts of failing to disclose property pursuant to s351(3)(a)
Insolvency Act 1986
. He was sentenced to 30 months’ imprisonment on each count to run concurrently.
88.
The applicant was declared bankrupt on 7 November 2003. He was prosecuted by the Department of Trade and Industry in relation to his non-disclosure in the bankruptcy of two Norwich Union endowment polices held jointly with his wife (Counts 1 and 2), and of his interest in a property in Spain (Count 3).
89.
The prosecution’s case was that the applicant had a clear intention to conceal his interest in these assets. The applicant’s defence was that he did not know or believe that the endowment policies had any value and that he thought he had parted with his interest in the Spanish property before his bankruptcy.
90.
The applicant had no previous convictions. He had worked as an adviser on management and employment issues for a company, G & J Spencer Ltd (‘Spencers’), first as an employee and then as a consultant through his company Corporate Risk Consultancy Ltd (‘CRC’) until 2001, when his relationship with Spencers had broken down. CRC issued proceedings in respect of unpaid fees, but Spencers counterclaimed for repayment of ‘secret profits’ made by the applicant personally. CRC went into liquidation and abandoned its claim in August 2003. The counter-claim was successful at trial in October 2003. The applicant’s liability for costs and damages from these proceedings, amounting to £95,000, together with the other unsecured loans totalling nearly £400,000 led to his petition for bankruptcy in November 2003.
91.
The applicant did not refer to his interest in the endowment policies or in the Spanish property in his affidavit sworn in support of his application for bankruptcy, nor in his subsequent meetings with the insolvency examiner or Trustee in Bankruptcy. The undisclosed assets came to light as a result of enquiries made at the applicant’s bank on behalf of the Trustee.
Bias application
92.
Counsel for the applicant was informed before the case began that one of the jurors, Ms Leonie Brooks, was employed by the Crown Prosecution Service, responsible for liaison with the media. He made an application at the outset of the trial that she should not sit as a juror on the case. He argued that her job had interface with the public and she was required to be the media-friendly face of decisions to prosecute and pursue cases.
93.
The judge ruled that Ms Brooks was a communications officer and therefore not apparently involved in the prosecution process. This was a prosecution by the DTI rather than the CPS. Having regard to
Abdroikof
, the relative remoteness of the juror to the prosecution process, and remaining loyal to
s321 CJA
2003, the judge ruled that the juror should remain on the panel.
94.
After the trial prosecution counsel became aware that although Ms Brooks was currently a communications officer, she had worked as a CPS caseworker for 14 years prior to taking up this post.
95.
In the light of this, Mr Green, on behalf the applicant, contended that the judge wrongly failed to accede to the objection by the defence to the presence on the jury of an employee of the CPS.
96.
Mr Green conceded that the sole basis upon which he could advance this submission was that a member of the Crown Prosecution Service was precluded from sitting on a jury by what he described as institutional bias. He relied particularly on the fact that came to light after the trial that, although Ms Brook’s most recent service in the Crown Prosecution Service had been as a media officer, she had previously worked as a case worker for some 14 years and, in that capacity, would have been personally involved in preparing prosecutions. Mr Green sought to rely upon the fact that in the third appeal in
Abdroikov
the majority of the House of Lords held that a juror who was a member of the Crown Prosecution Service had the appearance of bias.
97.
The difference between the position of the juror in that appeal and the position of Ms Brook is that in the former case it was the Crown Prosecution Service that was responsible for prosecuting the trial on which the juror was sitting. Thus the juror was in the employment of the prosecutor. Lord Bingham made it plain that it was this factor which gave rise to the appearance of bias. At the applicant’s trial the prosecuting authority was not the Crown Prosecution Service but the Department of Trade and Industry. In
Abroikov
Baroness Hale said in terms that there could be no objection to a member of the Crown Prosecution Service sitting in a case prosecuted by some other authority. The other members of the Committee would, we think, have agreed with this proposition. The applicant’s case on apparent bias is not made out.
98.
Mr Green sought permission to advance by way of appeal two criticisms of the judge’s summing up. The first related to the following direction in relation to the applicant’s character:
“The next matter I want to mention members of the jury, is the defendant’s character. You know that he is a man of no previous convictions and no caution, and you, as a matter of common sense, can take that in the defendant’s favour. It works two ways, that a person of no previous convictions should clearly be regarded as being a less likely person to be disposed to acting in the way that is alleged here as compared with a convicted fraudster; and, secondly, a man of no previous convictions can be regarded as being someone whose word is more likely to be true than anybody with previous convictions, for instance, for offences of dishonesty. Those are important points of make in favour of the defendant. He has, in fact, gone further than that because he, in his evidence, has told you that he is, in effect, a pillar of the community, that he is a committed Christian and he relies on his faith as being a reason why he would not lie, that he has been a socially contributive member of society and, indeed, he has had caused to be read to you the statements of character from two Church of England clergymen. So not only is the Defence case that he is a man of no previous conviction, it is positively that he is a good person who is reliable, honest and trustworthy, and Mr. Green submits that he passes any test with flying colours as to honesty, decency and integrity.
Well, members of the jury, you know in this case - - and you will have to bear this in mind for what weight, if any, it is to you - - it cannot be ignored, however, that his defendant got into trouble in the very first place by starting a civil action in which his opponents alleged that he had concealed a secret profit which, indeed, the defendant admits, and the result was that he has become a bankrupt, and a bankrupt where the litigation that went against him - - because the allegation seemed to be proved true according to the county court record, albeit only on the proof of the balance of probabilities - - led to a judgment debt against him of £95,000, and a total bankruptcy shortfall of unsecured liabilities of just short of half a million pounds. Well, the defendant has chosen to rely upon not only his lack of previous convictions but also his good moral character, if I can put it that way. All I have to do is say: but it does not end there; you may, at least, have to consider the other aspects of this case in forming whatever view it is - - and whatever view it is, is a matter exclusively for you - - to consider as against his claims of piety and social commitment.”
99.
Mr Green submitted that the judge should not have qualified the good character direction that he gave by reference to the results of the applicant’s civil litigation. We do not agree. The applicant was putting himself forward not merely as a man without criminal convictions, but as of exemplary character. That picture was at odds with a man who had been bankrupted, in part as a result of liability in respect of secret profits. It was perfectly appropriate for the judge to put the record straight.
100.
Allied to this complaint was the submission that this passage in the judge’s summing up amounted to a direction that it was open to the jury to use the finding that the applicant had made secret profits as evidence that the applicant had a propensity to commit offences of the kind with which he was charged. We do not accept this submission. The circumstances of the applicant’s bankruptcy were a material part of the story. The fact that they did the applicant little credit was no reason why the judge should not place them before the jury.
101.
The next ground of appeal that Mr Green sought to advance contended that the judge had been wrong to allow counsel for the prosecution to ask the applicant in cross-examination whether he was going to produce evidence in support of the account of the facts that he was advancing by way of defence. We consider that this was perfectly legitimate cross-examination and that this criticism of the judge is unjustified.
102.
Next Mr Green sought leave to submit that the judge’s summing up was unbalanced and unfair. He sensibly left us to read this and to form our own impression. We did so and concluded that, while the summing-up was robust, it was not unfair.
103.
Finally Mr Green complained that the judge had, in open court, evidenced hostility towards him. We have read the relevant transcript extracts and do not consider that the judge overstepped the bounds of appropriate dialogue with counsel.
104.
For all these reasons, we consider that there is no merit in the other proposed grounds of appeal. We shall allow the application to appeal against conviction on the ground of jury bias, but dismiss that appeal. We shall refuse permission to appeal against conviction on the other grounds.
Michael Arshad Khan’s application for permission to appeal against sentence
105.
When counsel begin to address the judge in relation to sentence he ran into some heavy weather. The judge declined the request for an adjournment for a pre-sentence report and cut counsel short when he sought to refer to a series of authorities that the judge had already read. He did so with the statement to the applicant:
“I have had the opportunity to watch you and hear you during the course of his five day trial. It is perfectly clear to me that you are a completely cynical and plausible fraudster.”
The judge went on to refer to the applicant’s
“…deceitful and lying accounts, which varied from time to time, and shows just how persistent you were in carrying through what effectively were frauds upon your creditors.”
106.
Mr Green submitted on behalf of the applicant that the judge had prevented him from putting the applicant’s case forward, pre-empting the position by the statement “there is no mitigation”. He also submitted that the sentence imposed reflected an adverse view that the judge had formed of his client’s conduct in relation to the civil litigation, which should not have affected his sentence. Finally, he submitted that a sentence of 30 months concurrent on each count was manifestly excessive.
107.
We have no doubt that when the judge referred to the absence of mitigation he was doing so in relation to the circumstances of the offence and not to the personal mitigation inherent in the fact that the applicant had no previous convictions. None the less Mr Uttley for the prosecution accepted that the judge had behaved abruptly in the course of sentencing and that the prosecution had expected the judge to adjourn for pre-sentence reports.
108.
Section 156 of the Criminal Procedure Act 2003 requires a judge to obtain a pre-sentence report before imposing a custodial sentence unless the court is of opinion that there is no need to do so. It is clear that the judge took the view that there was no such need, and we consider that, on the facts of this case he was entitled to do so.
109.
Mr Uttley helpfully referred us to a number of authorities dealing with offences of dishonesty. Some involved breach of trust, which the applicant’s offending did not. Having considered these we have reached the conclusion that the sentence imposed by the judge was above the range of which was appropriate for each case such as this one. Accordingly we shall quash the sentence of 30 months imposed on each count and substitute a sentence of 18 months on each count, the sentences to be served concurrently.
The application for permission to appeal against conviction of Roy Andrew Cross
110.
On 16 December 2005 in the Crown Court at Worcester, before His Honour Judge Mott and a jury, the applicant Mr Cross was convicted of wounding with intent and sentenced to imprisonment for public protection with a minimum term of 6 years (less time spent on remand).
111.
The facts of his offence were these. The applicant lived with his girlfriend, Mandy Reeves, who was also involved in an occasional relationship with the complainant, Richard Edwards. There had been some previous trouble between the two men over this.
112.
In the early hours of 14 June 2005 Mr Edwards was attacked with a claw hammer and suffered serious injuries. He told the police that he recognised his attacker as the applicant. The police then observed a man returning to the applicant’s home with a rucksack at about 6am, and arrested the applicant shortly thereafter.
113.
The applicant denied the offence and claimed to have been at home all evening and all night. His account was initially corroborated orally by Ms Reeves, but she later gave a witness statement, and evidence at the trial, that he had left the house at about 8pm with a rucksack containing a hammer, and had telephoned her around 1.30am to say he had ‘done it’, before returning at 6am.
114.
The applicant admitted that he had made a 999 call to police a few hours before the attack to tell them that Mr Edwards had ‘a lot’ of people after him because he had been interfering with children.
115.
The applicant had seven previous convictions for violent offences, which were put before the jury as relevant to his propensity to commit such offences. For a previous wounding with intent offence he had served a term of imprisonment at HMP Blakenhurst, where the applicant had also been remanded in custody before and during his trial.
116.
After his conviction the applicant became aware that the foreman of the jury, Mr Anthony Pepper, was a senior prison officer serving at HMP Blakenhurst and the present application for leave to appeal against conviction was made, on the grounds that he might have known the applicant, who had been remanded at that prison.
117.
In civil law jurisdictions a defendant’s past record is treated as significant evidence and is automatically placed before the court. In these circumstances the Strasbourg court would be unlikely to conclude that knowledge of a defendant’s bad character disqualified a juror on the ground of bias. In this jurisdiction the prejudicial effect that knowledge of previous convictions can have on the tribunal resulted in the past in a strict rule that the jury should not learn of these save in exceptional circumstances. The
Criminal Justice Act 2003
has radically changed the situation and evidence of bad character is now routinely placed before the jury in specified situations where it has particular relevance.
118.
We have been referred to no material that explains why officers of penal establishments were on the list of occupations that carried disqualification for jury service under
Part 1
of
Schedule 1
to the Jury Act 1974. It seems likely, however, that one reason for this was to guard against the risk that such a juror might have encountered a defendant in prison so as to be aware of his bad character.
119.
The grounds of appeal against conviction in this case asserted that:
“It is submitted that in this case there is a real danger that the applicant did not have a fair trial by reason of knowledge that Mr Pepper may have had of Cross. As a senior prison officer serving in the same prison he may have had access to all kinds of information about Mr Cross to his detriment which he could have communicated to the rest of the jury.”
120.
As we explained earlier in this judgment, knowledge of a defendant’s bad character will not automatically result in the juror ceasing to qualify as ‘independent and impartial’. The mere suspicion that a juror might, by reason of having been employed as a prison officer in a prison where the defendant was held, have acquired knowledge of that defendant’s bad character could not, of itself, lead an objective observer to conclude that the juror had an appearance of bias. In this case the Criminal Cases Review Commission, at the request of the court, investigated whether Mr Pepper had any knowledge of the applicant and ascertained that he had not. In these circumstances there is no basis for contending that the fact that Mr Pepper served on the jury was in any way prejudicial to the applicant, let alone that Mr Pepper had an appearance of bias. For this reason, while we extend the time for making the application for permission to appeal against conviction, we refuse the application.
The application for permission to appeal against conviction of Stanley James Hill
121.
On 16 March 2007 at the Crown Court at Liverpool (HHJ Roberts) the applicant, Mr Hill, was convicted of attempted murder and two counts of intimidating a witness. He was sentenced to life imprisonment with a minimum term of 10 years and 139 days.
122.
Mr Hill had for a number of years lived with Wendy Crooks, and her daughter Janine. They had separated in about 2000, when the applicant began a relationship with Janine who was by then about 18. That relationship broke down in the summer of 2005, when Janine left the applicant and went back to live with her mother.
123.
In September 2005 the applicant had been arrested and charged with a number of serious offences following an incident at Wendy Crooks’ home. He was on bail awaiting trial.
124.
On 3 October 2005 neighbours handed to Wendy Crooks a number of CDs labelled ‘Janine Crooks’ which had been posted through doors or left in gardens. The CDs contained photographs of Janine Crooks in pornographic poses. The photographs had been taken by the applicant in the course of their relationship. The following day Wendy Crooks received calls from a telephone belonging to one of the applicant’s daughters, Jane Hill, asking her whether she ‘wanted this to stop’.
125.
The distribution of the CDs and the telephone calls formed the subject matter of the charges of intimidating witnesses. On the subsequent arrest of the applicant labels similar to those on the CDs were found in his possession as well as CDs containing the same images.
126.
On 29 December 2005 Wendy Crooks was stabbed several times in the chest when walking to the bus stop, by a man wearing a balaclava. Another daughter of the applicant, Tina Hill, gave evidence that her father had come to her home that night, with a balaclava and a knife, was covered in blood and had told her that he had killed Wendy.
127.
The applicant’s defence at trial was that he had been in Scotland on the day of the attack and that Tina Hill’s evidence was not to be trusted.
128.
Before and during the trial the applicant was on remand at HMP Liverpool. He discovered subsequently that one of the jurors was a prison officer at that prison.
129.
The issues that arise on this application are the same as those in the application of Cross. Once again the Commission had investigated whether the prison officer who served on the jury, in this case Mr Nield, had acquired any knowledge of the applicant before the trial. They ascertained that he had not.
130.
For the applicant Mr Vollenweider submitted that the court, in a case such as this, should proceed on the basis that the juror knew the defendant and thus had an appearance of bias. This was on the basis that an assertion to the contrary by the juror would not necessarily appear reliable – see
R v Pintori
[2007] EWCA Crim 1700
. We do not accept that submission. There is no reason to doubt the fact that Mr Nield did not know the defendant. Had he known the defendant it would then have been necessary to consider whether that rendered the defendant’s conviction unsafe. It would not automatically had done so. As it is, for the reasons that we have given, while we extend time for applying for permission to appeal against conviction, we dismiss the application.
Precautionary measures
131.
It is undesirable that the apprehension of the jury bias should lead to appeals such as those with which this court has been concerned. It is particularly undesirable if such appeals lead to the quashing of convictions so that re-trials have to take place. In order to avoid this it is desirable that any risk of jury bias, or of unfairness as a result of partiality to witnesses should be identified before the trial begins. If such a risk may arise, the juror should be stood down.
132.
We considered attempting to give guidance in this judgment as to the steps that should be taken to ensure that the risk of jury bias does not occur. However, it seems to us that these will involve instructions to be given by the police, prosecuting and prison authorities to their employees coupled with guidance to court officials. It would be ambitious to attempt to formulate all of this in a judgment without discussion with those involved. There is one matter, however, that should receive attention without any delay. It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is or has been, a police officer or a member of the prosecuting authority, or is a serving prison officer. Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories, so that this information can be conveyed to the judge. We invite all of these authorities and Her Majesty’s Court Service to consider the implications of this judgment and to issue such directions as they consider appropriate. | {"ConvCourtName":["Crown Court at Sheffield","Crown Court at Bristol","Crown Court at Hull","Crown Court at Worcester","Crown Court at Liverpool"],"ConvictPleaDate":["2007-01-12","2007-10-15","2007-11-09","2005-12-16","2007-03-16"],"ConvictOffence":["Conspiracy to supply a Class A controlled drug (heroin)","Causing grievous bodily harm with intent (s18 Offences against the Person Act 1861)","Failing to disclose property (s351(3)(a) Insolvency Act 1986)","Wounding with intent","Attempted murder","Intimidating a witness"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":["At start of trial (for some co-defendants)","Not guilty plea at plea and case management hearing, guilty plea indicated about two weeks before trial (Younas)"],"RemandDecision":[],"RemandCustodyTime":[91],"SentCourtName":["Crown Court at Sheffield","Crown Court at Bristol","Crown Court at Hull","Crown Court at Worcester","Crown Court at Liverpool"],"Sentence":["Bakish Khan: 17 years imprisonment (reduced to 15 years on appeal), consecutive to 2 years 5 months outstanding from previous conviction","Younas: 15 years imprisonment (reduced to 13 years 6 months on appeal)","Lewthwaite: 5 years imprisonment (less time spent on remand)","Michael Arshad Khan: 30 months imprisonment on each count concurrent (reduced to 18 months on appeal)","Cross: Imprisonment for public protection with minimum term of 6 years (less time spent on remand)","Hill: Life imprisonment with minimum term of 10 years and 139 days"],"SentServe":["Consecutive","Concurrently"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance","Relative"],"VictimType":["Individual person"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Police surveillance/observation","Telephone records","Search and seizure evidence","Forensic evidence (blood, DNA)","Victim testimony","Witness testimony","Previous convictions (bad character evidence)"],"DefEvidTypeTrial":["Defendant testimony","Alibi witness","Denial of knowledge/intent"],"PreSentReport":[],"AggFactSent":["Previous conviction for similar offence (Bakish Khan)","Conspiracy involved large quantities of heroin","Organised criminal gang","Violence (in GBH, attempted murder, wounding cases)"],"MitFactSent":["No previous convictions (Michael Arshad Khan)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[4],"AppealAgainst":["Conviction is unsafe","Sentence is manifestly excessive"],"AppealGround":["Jury bias due to occupation of juror (police officer, CPS employee, prison officer)","Disparity in sentence compared to co-defendants","Insufficient credit for guilty plea","Admission of bad character evidence","Unfair summing up by judge"],"SentGuideWhich":["Section 143(2) of the Criminal Justice Act 2003","Section 156 of the Criminal Procedure Act 2003"],"AppealOutcome":["Appeal against conviction dismissed (all cases)","Permission to appeal against sentence granted (Bakish Khan, Younas, Michael Arshad Khan)","Sentence reduced on appeal (Bakish Khan, Younas, Michael Arshad Khan)"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Disparity with co-defendants' sentences","Totality principle (Bakish Khan)","Insufficient credit for guilty plea (Younas)","Sentence above appropriate range for offence (Michael Arshad Khan)"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No appearance of bias from juror's occupation or acquaintance with witness","No evidence juror knew defendant or was partial","No unfairness from judge's summing up or admission of bad character evidence","No ground for appeal on conviction"]} |
Neutral Citation Number:
[2016] EWCA Crim 1321
Case No: 2014 04157C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
H. H. Judge FINNEY
T980388
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
07/09/2016
Before:
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE HOLROYDE
and
MRS JUSTICE MAY D.B.E.
- - - - - - - - - - - - - - - - - - - - -
Between:
ALLEN YOUNG
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Adrian Waterman Q.C.
and
Anya Lewis
for the Appellant
Zoe Johnson Q.C.
and
Deanna Heer
for the Crown
Hearing date: 14 June 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Sir Brian Leveson P:
1.
This case concerns the effect upon the conviction of the appellant following a guilty plea to an offence of inflicting grievous bodily harm of his subsequent acquittal in relation to an allegation of manslaughter when, 12 years later, the victim died of injuries which had undeniably formed at least a large part of the basis of the original prosecution. Mr Adrian Waterman Q.C. for the appellant contends that the jury’s verdict in relation to the allegation of manslaughter (following a trial in July 2014 before Singh J at the Central Criminal Court), based on fresh medical evidence, is inconsistent with the plea of guilty entered on 9 March 1999 before Judge Finney in the Crown Court at Wood Green for which he was subsequently sentenced to 12 months’ imprisonment. With the leave of the full court, which granted an extension of time exceeding 15 years, this is an appeal against the conviction which followed the plea of guilty.
The Facts
2.
The background is as follows. Michael Young was born on 8 March 1998 and, in the early hours of 16 April, when he was just short of six weeks old, Erica Francis, his mother (who was feeling unwell) left him with the appellant as she tried to sleep. She left them in the living room. The following morning, when she awoke, Michael was lying in his Moses basket, making no sound. He flopped in her arms and, during that day, consumed a large amount of water and some milk; after taking milk, Michael was sick.
3.
The following day, Michael looked very poorly and his mother contacted the health visitor. Before she did so, the appellant told her that he may have hurt Michael; she reported that he said he had shaken him gently on the Thursday morning because Michael would not stop crying. Suffice to say that when the health visitor attended the property, she saw that Michael needed immediate medical attention. He was pale, had shallow breathing and his eyes appeared fixed.
4.
Michael was taken to the GP who observed that he was floppy and periodically shaking his upper limbs; he was then admitted to the Royal Free Hospital where he was assessed by Dr Phillips, a Paediatric Senior House Officer and Dr Flynn, a Consultant Paediatrician. Michael was cold to the touch, pale and fitting. On arrival he looked dehydrated. He was treated with intravenous anti-convulsants, antibiotics and fluids.
5.
Michael was subsequently transferred to the Special Care Baby Unit and seen by Dr Van Someran, a Consultant Paediatrician. By this time Michael was deeply unconscious, unresponsive to normal stimuli and his pupils were fixed and small. A CT scan revealed swelling in the brain; there were small areas of bleeding within it and under the linings surrounding it. The appearance of the brain suggested hypoxic ischaemic injury.
6.
There were other serious injuries. A skeletal survey revealed five fractured ribs with metaphyseal fractures near to the knees of the upper right tibia, upper left tibia and lower left femur. There was a further probable metaphyseal fracture near the ankle of the lower end of the left tibia. A diagnosis of non-accidental injury was made. Michael was transferred to the Great Ormond Street Hospital where an examination of his eyes revealed multiple retinal haemorrhages in both of them scattered all around the retina. These findings, taken with the other injuries, were said to be strongly suggestive of a diagnosis of “shaken baby syndrome”.
7.
On 18th April 1998, the appellant was arrested. He was interviewed and was frank about what he had done. It was recorded that he said:
“Michael was crying a lot and I couldn’t get him to stop so I shook him. I shook him pretty badly then I realised that what I was doing was wrong and because of me being stressed like and I got a lot of problems with other things as well at the moment”.
8.
Given its potential significance, we turn to the medical opinion which was obtained in 1998. Dr Vivienne Van Someran detailed Michael’s injuries and commented as follows:
“These marks are all indicative of trauma due to rough handling. The marks around the neck could be consistent with constriction due to clothing being grabbed and tightened. The marks on the left arm suggest gripping and twisting. The marks on the trunk suggest being gripped with force.”
9.
After a review of the CT scan, Dr Van Someran concluded that
“… the features suggested a diagnosis of non-accidental injury … [and] the metaphyseal fracture of the left leg is typical of child abuse. The periosteal reaction on the humerus is also typical and underlies the bruising seen on the left arm which suggests gripping and twisting. Rib fractures are also typical of child abuse.”
10.
Dr Christine Hall, a Radiologist, also noted injuries. Her statement went on:
“Although all the fractures which have been identified have occurred within the same time period, they would have required the application of a minimum of four separate inappropriate applications of force. One a squeezing action to the chest, secondly a gripping and twisting action around the left knee, thirdly a gripping and twisting action around the right knee and fourthly a gripping and twisting action around the left ankle. The brain injury could have occurred in association with the rib fractures or could represent a separate shaking…”
11.
Although there is no evidence one way or the other whether this material was served on the court in the criminal proceedings, the defence had also obtained expert opinions. Dr John Somers, a Consultant Paediatric Radiologist, who was instructed not only in the criminal proceedings but also family proceedings, said (in an opinion for the family proceedings only) that all of the skeletal injuries were non-accidental in nature, could have occurred at a single assault and the degree of force required to cause the injuries was very great and not consistent with rough handling. He also asserted that it was possible that the shaking event described by the appellant could have caused all the injuries.
12.
The other expert evidence obtained on behalf of the appellant came from Mr Jonathan Punt, a Consultant Paediatric Neurosurgeon. In addition to concluding that the presentation on 17 April was due to severe traumatic encephalopathy due to non-accidental injury, he also observed that the multiple marks on the trunk and limbs was a frequent finding in babies forcibly held in an abusive fashion and that the multiple rib and metaphyseal fractures is a characteristic finding in babies who have been physically abused. Three other comments have been extracted from the report. These are:
“There is no reasonable doubt that when Michael was admitted to hospital he was suffering the effects of a severe abusive injury.
“The mechanism of the brain injury would have been either a severe shaking or a severe shaking followed by impact or possibly due to impact only.
The shaking admitted by AY in interview would be sufficient to produce all the sequelae observed. He admits that the child moved backwards and forwards while being held at the waist and shaken for about a minute.”
13.
So it was that, on 9 March 1999, in the Crown Court, the appellant pleaded guilty to inflicting grievous bodily harm; the counts of the indictment identified a spread of dates between 8 March 1998 and 18 April 1998 which encompassed the entirety of Michael’s life. Following a successful submission of no case to answer, he was acquitted of an allegation of child cruelty and subsequently acquitted by the jury of causing grievous bodily harm with intent. There is now no record of the reason for the successful submission but it has not been suggested that it led to any consequential or further application in relation to the jury. On 19 April, for the offence of inflicting grievous bodily harm, the appellant was sentenced to 12 months’ imprisonment; he will have been released before the end of that year.
14.
Years passed until, on 24 January 2011, when Michael was 12 years of age, he died. The appellant was then indicted for manslaughter. When he came for trial in July 2014 before Singh J at the Central Criminal Court, it was conceded by way of admission that the injuries suffered by Michael in 1998 (which could only have meant his cerebral injuries rather than any of the fractures) had contributed to his death. The appellant’s plea to inflicting grievous bodily harm contrary to s. 20 of the Offences against the Person Act 1861 was admitted into evidence pursuant to section 74 of the Police and Criminal Evidence Act 1984.
15.
At trial, the appellant stated that he pleaded guilty on the advice of his legal representatives. He said he did not understand the medical evidence and still did not know whether he had caused Michael’s injuries or not. The central issue at trial was whether the appellant’s admitted shake of Michael caused his brain injuries or whether there may have been some other cause. The defence called medical evidence that the injuries may have been caused by a cerebral venous sinus thrombosis (“CVST”) which had not previously been considered as a cause.
16.
At the trial, the evidence of the appellant’s interviews was excluded on the basis that although there was a summary which largely purported to be a transcript (and certainly contained what is set out in question and answer form in relation to the most significant admissions), the tapes were no longer available and it was argued that important statements supportive of the defence position might have been omitted. Further, an application was also made to Singh J to exclude evidence of the fractures and bruises suffered by Michael on the basis that there was no issue but that there was an unlawful act in the form of shaking. It was also common ground that the cerebral injuries had caused Michael’s death: the issue was whether the non-accidental act had caused those injuries. The Crown argued that if the jury concluded that the fractures were caused at the same time as the shaking, this was consistent with the shake being of a persistent and sustained nature and that the jury were entitled to consider whether the coincidence of the fractures undermined the alternative possibility of a CVST.
17.
For our part, we see force in the argument that the nature and extent of the unlawful act were in issue (where the appellant now admitted shaking Michael but only gently and of short duration) and that the totality of the non-cerebral injuries which could also be proved was evidence which could be material to the question whether Michael suffered CVST coincidentally with the admitted shaking and the other injuries. The judge, however, took a different view. Making the point that the fractures would only become relevant if the jury was sure that they were caused at the same time as the shake, Singh J ruled in favour of the appellant and against the admission of the other injuries. He observed:
“In my judgment, this case is unusual, because the central issue is not to do with whether there was a non-accidental event in this case. That much is admitted by the defendant. Indeed, the defendant pleaded guilty to a charge of causing grievous bodily harm.”
18.
Thus, the case at trial essentially turned on an analysis of the medical witnesses who could not rely on all the circumstances from which the inference of non-accidental injury might be drawn. The prosecution called evidence from a number of experts on various aspects of the cerebral injuries sustained by Michael. They supported the prosecution case that the injuries taken as a whole were indicative of having been caused by a shaking, or a shaking and impact. The defence, on the other hand, called evidence that the possibility of infection had not been completely excluded in 1998; furthermore, CVST, which was not generally considered in 1998-1999, was not only a possibility but a more likely explanation for the range of injuries.
19.
It is unnecessary to summarise this evidence further; at the conclusion of the trial, on 1 August 2014, the appellant was acquitted by the jury of manslaughter. Thus, given the admission of the conviction under s. 74 of the Police and Evidence Act 1984, were satisfied, on the balance of probabilities that the unlawful shaking of Michael had not caused his cerebral injuries.
The Appeal
20.
Mr Waterman argues that the verdict of the jury, based on fresh medical evidence, is inconsistent with the appellant’s plea to the section 20 offence. In that regard, application is made under s. 23 of the Criminal Appeal Act 1968 to admit the evidence of three expert witnesses called at trial, Dr Scheller, Dr Ramsey and Dr Hann, and a fourth from Professor Pennington whose evidence was reduced to an admission. Mr Waterman submits that the case turns on causation: he articulates it on the basis that the jury in 2014 decided on the balance of probabilities that the appellant was wrong to plead guilty because the medical evidence proved, again on the balance of probabilities, that the ultimately fatal brain injuries were caused by CVST and/or infection and not by his admitted shake.
21.
Mr Waterman does not submit that this court needs to hear the fresh evidence because, as he put it, it would be an astonishing state of affairs were this court to conclude that it was satisfied that the jury would certainly have convicted of the s. 20 offence despite the fresh evidence when a jury had in fact acquitted. The verdicts, he argued, were inconsistent. As for the argument that the bruises and fractures show that the plea of guilty was safe on the issue of whether it proved causation because the plea was based on different evidence, Mr Waterman relies on the ruling of Singh J and submits that the most likely explanation for the wilful neglect count being withdrawn was that it represented evidence that the fractures were caused on a different occasion and there was no suggestion they had been caused by the appellant.
22.
For the Crown, Ms Zoe Johnson Q.C. submits that it is illogical to argue that because the jury in 2014 accepted that on the balance of probabilities the appellant’s admitted shake did not cause the brain injuries that his guilty plea to causing grievous bodily harm in 1999 is inconsistent and thus unsafe. The body of evidence upon which the plea was entered and the acquittal was delivered was very different. She points to the fact that both defence medical experts said that “all the skeletal injuries are non-accidental in nature and … could have occurred at a single assault” (Dr Sommers) and that “the shaking acknowledged by the appellant in the police interview … would be sufficient to produce the sequelae observed” (Mr Punt).
23.
Miss Johnson argues that the decision to plead guilty to inflicting grievous bodily harm rested with the appellant who had the benefit of leading counsel and two expert medical opinions: CVST was known about at the time and could have been addressed by the experts if asked to do so. Where the appeal is made on the basis of fresh evidence, the appropriate test is to ask whether a miscarriage of justice had occurred as a result of the decision to plead guilty.
Analysis
24.
Mr Waterman recognises that the particular circumstances of this case are not governed by precedent; he relies on two strands of what he submitted were the closely analogous situations where the court has considered appeals based on fresh evidence (see
R v. Lattimore
[1975] 62 Cr App R 53), and those in which it has found inconsistent verdicts. Both strands, however, ignore the very important fact that the appellant pleaded guilty to the offence his conviction for which he now seeks to challenge. The starting point, therefore, must be the authorities which consider the proper approach to be adopted to entertaining an application for leave to appeal against conviction following a tendered guilty plea.
25.
As was made clear in
R v AM
[2010] EWCA Crim 2400
, the basis of this jurisdiction is limited and requires the guilty plea to be a nullity. This was explained in
R v Evans
[2009] EWCA Crim 2243
by Thomas LJ (as he then was) in these terms (at para. 52):
“The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial “is actually no trial at all” (see the opinion of Lord Atkinson in
Crane v DPP
[1921] 2 AC 299
at 330) or where there has been “some irregularity in procedure which prevents the trial ever having been validly commenced” (see the opinion of Lord Diplock in
Rose
(1982) 75 Cr App R 322
at 336.”
26.
In
AM
, the court went on (at [12]):
“The test for a plea to be held a nullity was elaborated (per Scott Baker LJ in
R v Saik
[2004] EWCA Crim 2936
) as requiring the facts to be so strong as to demonstrate that there is no true acknowledgment of guilt with the advice going to the heart of the plea so that it was not “a free plea”. It is, however, important not to water down the underlying concept of the jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong. For those circumstances, there remains a basis on which this Court can intervene which is firmly grounded in the safety of the conviction. Thus, in
R v Lee (Bruce)
(1984) 79 Cr App R 108, the approach was articulated by Ackner LJ in this way:
‘The fact that [Lee] was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although factors highly relevant to whether the convictions or any of them were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications.’”
27.
The jurisdiction was adopted and applied to quash a conviction for rape in the case of
R v. Foster
(1984) 79 Crim App R 61, also in the case of
R v Boal
(1992) 95 Cr App R 272
. This case concerned the failure to challenge what was held to be the erroneous assumption that an assistant general manager at a bookshop, responsible for the shop during a week in which the manager was absent, was a manager within s 23(1) of the Fire Precautions Act 1971. The conviction which followed guilty pleas based on the assumption was quashed with the court observing that the appellant “was deprived of what was in all likelihood a good defence in law”. Simon Brown LJ (as he then was) also made clear the additional hurdle that had to be overcome when he said (at 278):
“This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.”
28.
In
R v. Asiedu
[2015] EWCA Crim 714
the defendant had pleaded guilty to a conspiracy to cause explosions. He subsequently sought to appeal his conviction on the ground that there had been non-disclosure to him of certain key documents. In dismissing the application for permission Lord Hughes SCJ said this (at [19]):
“A defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence. He may of course by a written basis of plea limit his admissions to only some of the facts alleged by the Crown, so long as he is admitting facts which constitute the offence, and Asiedu did so here. But ordinarily, once he has admitted such facts by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction, for the simple reason that there is nothing unsafe about a conviction based on the defendant’s own voluntary confession in open court. A defendant will not normally be permitted in this court to say that he has changed his mind and now wishes to deny what he has previously thus admitted in the Crown Court.”
29.
Lord Hughes went on to set out and discuss cases in relation to two circumstances where conviction on a plea may nonetheless be set aside: (i) where the plea has been entered on an incorrect ruling on law and (ii) where proceedings were an abuse of process. To that list might be added some other irregularity in procedure which prevents the trial ever having been validly commenced. In each case, the rationale for setting aside the conviction was that, by reason of the particular circumstances, it was unsafe. That is the question which the court must address.
30.
Mr Waterman correctly argued that the test of safety can be examined from many different perspectives. He submitted that to demonstrate that the conviction in this case was unsafe, it was sufficient to ask whether if the new CVST causation evidence had been available in 1999, a defence to the charge to which the appellant pleaded guilty would have had a reasonable chance of success. Another (and, in our judgment, preferable) approach is not to restrict the question of safety in that way but, rather to consider the circumstances in which that plea was entered and, in the light of all those circumstances, assess whether the 1999 conviction is safe.
31.
The relevant circumstances for these purposes from the 1999 prosecution appear to us to be as follows:
i)
The evidence of serious injury at that time encompassed not only the brain injury but also bruising and fractures to the baby’s ribs and knees, the majority of which fractures, according to the expert radiological evidence, were likely to have been caused during the same shaking incident.
ii)
When interviewed, the appellant admitted that he had shaken the baby backwards and forwards violently for up to a minute. Although there was some uncertainty before Singh J as to the accuracy of the transcript, this admission at that time was entirely consistent with his subsequent statement in family proceedings and thus is overwhelmingly likely to have formed his instructions.
iii)
The medical evidence (including in particular that of medical experts instructed on behalf of the defence) was to the effect that the fractures were in all probability caused during the shaking incident. Although it is recognised that the appellant could not know what injuries he had caused, the contemporaneous fractures (whatever might have been said about the injuries which were likely to have been caused some days earlier) would have been at a time when he was responsible for Michael’s welfare.
iv)
With the benefit of advice from leading counsel the accuracy and propriety of which is not challenged, the appellant entered a plea of guilty to causing serious bodily harm to his 5-week old son.
32.
Without in any sense seeking to undermine the conclusions of the trial in 2014, it proceeded on different evidence because it was not concerned with the question whether the appellant had caused grievous bodily harm to Michael but rather whether the admitted shaking had caused the brain injury from which Michael died some 11 years later. This was in circumstances where the evidence before the jury in 2014 was to the effect that the appellant had administered a gentle shake and no more, and where, given the single, narrow issue arising in the manslaughter trial, the judge had ruled that the bruising and fracture evidence was inadmissible.
33.
Thus, there is no question of those who advised the appellant depriving him of a good defence in law; he admitted shaking the baby who attended at hospital with multiple fractures and other indicia of shaken baby syndrome. The medical experts advising the appellant were clear and counsels’ advice was based on the entirety of the evidence (substantial parts of which were not adduced at the manslaughter trial) and in the light of the factual instructions they received. We recognise, of course, that the appellant cannot have known what the impact was of his use of force on this very small baby but even putting the cerebral injuries to one side, the admissions were entirely consistent with his having caused at least some of the skeletal injuries.
34.
Mr Waterman also relied on the contention that the wilful neglect charge was dismissed because there was no evidence that the appellant had caused the various fractures and that it was these injuries that were reflected in that count. It may be that the reason for the allegation was that these injuries might have been inflicted at some other time but, for our part, we do not accept that the count reflected all the injuries other than the cerebral. Had that been the case, there would have been further counts of inflicting grievous bodily harm. In our judgment, it is very much more likely that the count was withdrawn from the jury on the basis that it was accepted or, at least, could not be challenged, (as the experts postulated) that all bar two of the injuries could have been inflicted at the same time and thus were encompassed within the substantive count of inflicting grievous bodily harm (and its aggravated form of causing grievous bodily harm with intent which was left to the jury) and, furthermore, there was no evidence in relation to those injuries which were not contemporaneous with the shaking incident.
35.
Advising the appellant, knowing of his admissions and with the benefit of the expert opinion available from the experts instructed by the defence, it is difficult to see on what basis the case could have proceeded other than by way of an admission to an offence of inflicting grievous bodily harm within the date parameters set by the counts contained within the indictment. This was not, of course, the position which obtained at the time of the second trial where the evidence of the admissions and the other injuries (including the fractures) was excluded.
36.
This appeal does not turn on reflecting the evidence from the manslaughter trial back into the circumstances in which the appellant faced his original trial. The evidence is and was different. Thus, Mr Waterman’s premise that the appellant was wrong to plead guilty because the medical evidence proved that the ultimately fatal brain injuries were caused by CVST and/or infection and not by his admitted shake does not identify the correct starting point: the question is whether the medical evidence was sufficient properly to justify advice that the appellant had caused serious bodily injury to Michael in circumstances when it was not suggested that anyone else had injured him. Suffice to say that, in the light of the evidence available for the first trial, there is no basis for contending that a defence to a charge of inflicting grievous bodily harm would quite probably have succeeded. There is thus no basis for treating the plea of guilty as a nullity or the conviction as unsafe.
37.
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Neutral Citation Number:
[2005] EWCA Crim 1883
Case No:
2002/02377
&
2005/00709
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE TEESSIDE CROWN COURT
HIS HONOUR MR JUSTICE TURNER
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13 July 2005
Before :
LORD JUSTICE PILL
MR JUSTICE OUSELEY
and
MR JUSTICE DAVIS
- - - - - - - - - - - - - - - - - - - - -
Between :
THOMAS PETCH & GEORGE ROMERO COLEMAN
Appellants
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr T W Bayliss QC & Mr P Woodall
for the Appellant Thomas Petch
Mr A Senior
for the Appellant George Romero Coleman
Mr N C Campbell QC & Mr I Skelt
for the Respondent
Hearing dates : 14 June 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill:
The background
1.
On 28 March 2002 in the Crown Court at Teesside before Turner J and a jury, Thomas Petch was convicted of one count alleging the murder of Kalvant Singh (Count 2), one count of causing grievous bodily harm with intent (Count 1) and three counts of wounding with intent (Counts 4, 5 and 6). He was sentenced to life imprisonment on count 2 with a recommendation that he serve a minimum of twenty years imprisonment before being considered eligible for parole. No separate penalty was imposed on the other counts.
2.
On the same date, George Romero Coleman was also convicted of murder (Count 2), causing grievous bodily harm with intent (Count 1) and two counts of wounding with intent (Counts 4 and 5). He was sentenced to life imprisonment on count 2 and no separate penalties were imposed on the other counts.
3.
Petch appeals against conviction for murder by leave of the full court which also granted an extension of time. Upon grant of leave to Petch, Coleman applied for an extension of time and leave, relying on the same ground of appeal. The applications were granted by the court.
4.
A co-accused Jason Crossling was, at the same trial, acquitted of murder (Count 2) and of causing grievous bodily harm with intent (Count 1). He was discharged. Before the trial process had begun, Jason Crossling’s brother Jonathan Crossling and Frank Harrison against whom there were allegations arising out of the same events, had fled the jurisdiction, Jonathan Crossling to Spain and Harrison to Jamaica. (Jonathan Crossling has hitherto been referred to as Bam Bam and for consistency and to avoid confusion with his brother, we adopt that description.)
5.
Because the sole ground of appeal arises out of the subsequent treatment of Bam Bam and Harrison, it is necessary to summarise subsequent events. The murder was alleged to have been committed on 6 August 2001. Within weeks, though in Bam Bam’s case after he is alleged to have threatened a witness, Bam Bam and Harrison left the country. Bam Bam was arrested in Spain in September 2001 but contested his extradition. He was brought back in December 2002, that is after the trial, and Harrison in April 2004. A condition of the return of Bam Bam was that he would not be interviewed about the events of 6 August 2001.
6.
Bam Bam was charged with the murder of Kalvant Singh and other offences arising out of events on 6 August. The case came on for hearing before Grigson J on 9 June 2003. The prosecution accepted a plea to manslaughter and to the other offences and Bam Bam was sentenced to nine years imprisonment for manslaughter and nine years consecutive for the other offences. On 11 December 2003, in this court, the sentences on the other offences were reduced to five years. The sentence for manslaughter was upheld so that the resulting total sentence was one of fourteen years imprisonment.
7.
Harrison was also charged with the murder and other offences . On 4 November 2004, his plea to manslaughter was accepted and he was sentenced to a total of nine years imprisonment, seven years for manslaughter and two years consecutive for the other offences.
The ground of appeal
8.
An alleged disparity of treatment on the murder charge gives rise to the appeal. The ground of appeal is that what has happened since the appellants’ trial has created such unfairness for them as to amount to an abuse of process in relation to them. The sentences arise out of the same events. Petch offered to plead guilty to manslaughter, though Coleman did not. The pleas of guilty to manslaughter by Bam Bam and Harrison were accepted. In the result, the appellants are left with verdicts of murder and have to serve a minimum of twenty years. The sentences to be served by Bam Bam, alleged by the prosecution to be the principal offender, and Harrison are very much shorter. The appropriate remedy, it is submitted, is to quash the appellants’ convictions for murder, substitute convictions for manslaughter and pass commensurate sentences.
The case at the appellants’ trial
9.
At the trial of the appellants, the case was opened on the basis that Bam Bam, Jason Crossling, the appellants and Harrison formed a gang intent on serious violence. The Crossling brothers were looking for a man called Dalziel and expressed an intention to kill him if they found him. The other gang members were recruited to assist in the violence and were each a party to a joint enterprise to cause at the least very serious bodily harm.
10.
On the weekend of 4/5 August 2001, Claire Burgess was at an address in Middlesbrough used for prostitution and drug taking. Bam Bam and his brother Jonathan arrived there looking for Dalziel. On the night of 5/6 August, Burgess met Kalvant Singh for the purposes of prostitution. At 3:30am they were observed on CCTV in Linthorpe Road. Burgess also spoke to the appellant Coleman who was asking about the whereabouts of Dalziel. She bought crack cocaine from him. She told him that she was taking her client to 45 Erroll Street and Coleman asked her to leave the door unlocked, which she did. Harrison got into the car with Coleman and it was driven off.
11.
At 45 Erroll Street, Burgess smoked the crack cocaine and she and Singh went to the bedroom and fell asleep. No sexual act had taken place. At about 6:45am a neighbour saw a car draw up outside the premises. Coleman, the driver, remained in the vehicle while Bam Bam and others walked into the house. Burgess was awakened by the sound of someone running up the stairs and voices shouting “where is he? where the fuck is he?” Her evidence was that the Crossling brothers then ran into the bedroom and told Burgess to get out before she got hurt. They wanted to know where Dalziel was and who Singh was. She heard Petch calling from downstairs “he’s not here”. She said that both men had something concealed in their sleeves. Singh was attacked, punched and kicked and pushed backwards through a window by Bam Bam. He received fatal head injuries from his fall.
12.
When Burgess was leaving the property she saw that the occupier, Moody, who had remained downstairs, was being seriously assaulted (Count 1). Petch rammed his head into a fish tank. Harrison was standing nearby. Moody suffered multiple fractures to his face. At some stage, Coleman entered the house but then retired to the street.
13.
Burgess claimed to have recognised four or five men. Petch’s palm print made by a hand wet with blood was found on a banister leading to the first floor at 45. The blood matched Moody’s DNA. Petch was also linked to the fish tank by a glass fragment found at an address he subsequently attended. The Crown relied on the palm print on the banister to suggest that Petch had been upstairs.
14.
Coleman then drove the other men to 60 Southfield Road. It is alleged that Coleman, Petch, Bam Bam and Harrison broke into a number of bed-sits and assaulted Ward and Jessop while demanding drugs. Both men were threatened with sword or knife and punched. A number of occupants recognised the assailants (Counts 4 and 5). Petch was subsequently picked out on an identification parade. He asked Bam Bam’s girlfriend to dispose of some blood stained clothing.
15.
On 7 August 2001, Petch and Bam Bam went to 4 Fallows Court. They attacked Paul Thompson punching and kicking him in the head (Count 6). The attack continued outside the house and the police were called.
16.
At interview on 13 August, Coleman first denied taking anyone anywhere but subsequently accepted that he visited 45 Erroll Street with Harrison. He denied being with the others. As he was leaving, other men entered the premises. He had visited Southfield Road but denied being a party to any violence there.
17.
Petch was interviewed on 23 August 2001 but declined to answer questions. When confronted with evidence of his palm print, he lied to the police.
18.
Jason Crossling denied being present at 45 Erroll Street and gave an alibi.
19.
The prosecution case was that Bam Bam, who was not of course present at the trial, had pushed Singh out of the window. Coleman accepted, in evidence, taking Petch, Bam Bam and Harrison to 45 Erroll Street but only because they were on their way to buy drugs for which he needed money. He denied knowing that any arms were carried and said that he was not a party to violence. He had no knowledge that any assaults would be committed at 60 Southfield Road.
20.
Petch also said that he visited 45 Erroll Street with Coleman and Bam Bam. He was unaware that weapons were carried and thought he was going into a crack house. Bam Bam attacked Moody and he had attempted stop the assault. Bam Bam broke the fish tank and also cut Petch’s leg. Petch followed Bam Bam upstairs and saw two men struggling near the bed. He tried unsuccessfully to pull Bam Bam out of the room. Bam Bam told him to leave and he joined Coleman and Harrison in the car. He heard the sound of breaking glass but did not know what had happened. Bam Bam then ran out of the house. He claimed that Bam Bam had scratched him with the sword. He had attempted to prevent violence at both locations. He denied that the reason he was trying to blame Bam Bam for everything was because he was not present at the trial.
21.
Jason Crossling gave evidence. His case was that he had not been present at 45 Erroll Road and had been mistakenly identified there by Burgess. He was not charged with the offences at 60 Southfield Road and the prosecution did not claim that he was present there.
22.
No criticism is, or could be, made of the judge’s direction to the jury on joint enterprise. The trial was in all respects fair. Evidence of the presence of Bam Bam, which came from the appellants, as well as from Burgess, was clearly accepted by the jury. It is highly likely that the jury accepted that it was Bam Bam who threw Singh out of the window. The jury did not accept the evidence of Burgess, unsupported in this respect by other evidence, that Jason Crossling was present at 45 Erroll Street. Her evidence was that both brothers were present in the bedroom when Singh was attacked and that Bam Bam had pushed Singh through the window.
23.
Referring to the evidence of Burgess, the judge stated that, without her presence in the bedroom, “the case has no centrepiece” to it. She conceded that she had not seen either of the brothers “for a few years before this night”. The judge directed the jury:
“if the only evidence which the prosecution rely on to prove that Jason Crossling was present as part of the joint enterprise was that of Clare Burgess, I should have stopped the case against him at the time, because, as Mr Muller [leading counsel for Jason Crossling] has been at some pains to point out, there are a number of weaknesses and inconsistencies in her evidence.”
The judge went on to refer to other evidence against Jason Crossling.
24.
The judge also stated:
“One of the matters you will have to consider in this case is whether there has been a concerted attempt by some to endeavour to exculpate BJ [Jason Crossling], while putting as much of the blame for this whole matter on Bam Bam as possible”.
The second trial
25.
A few months before his trial, Bam Bam submitted a Defence Statement denying presence at 45 Erroll Street and at 60 Southfield Road. He gave details of an alibi. The only prosecution evidence of Bam Bam’s presence was that of Burgess. It is not suggested that evidence from the appellants as to his presence would have been available to the prosecution at his trial.
26.
As already stated, Bam Bam pleaded guilty to manslaughter shortly before the trial and the plea was accepted by the prosecution. On 10 June 2003, the case against Bam Bam was opened on the same basis as the case had been opened before Turner J at the trial of the appellants in March 2002. Referring to the evidence of Burgess, leading counsel stated: “She then describes Bam Bam as throwing Kalvant Singh through the window”. Reference was made to the fact that the gang, less Jason Crossling, then headed for 60 Southfield Road and Bam Bam’s presence at those premises was alleged. Reference was made to an approach by Bam Bam to Burgess on 17 August demanding money. She was terrified and obtained £40 from a friend to pay him. She had not at that stage named Bam Bam as one of those involved at 45 Erroll Street.
27.
Leading counsel told the judge:
“Your Lordship is aware of certain difficulties surrounding some of these witnesses, and it is essentially within that framework that the Prosecution has decided, on what can only be regarded as a pragmatic basis, that the plea to the lesser offence of manslaughter is an acceptable one, and therefore we would not be seeking a trial of that matter.”
28.
The judge replied:
“Yes, if you accept the alternative then there is nothing more to be said.”
29.
In his speech in mitigation, Mr Gray QC, leading Mr Bayliss, submitted that the initial violence at 45 Erroll Street had come from the appellant Petch. Clare Burgess was “really getting hold of the wrong end of the stick” when alleging that Bam Bam had pushed Singh through the window. It was not Bam Bam who did that. Reference was made by counsel to the alleged violent propensities of Petch. Bam Bam’s recollection of what happened was not, he accepted, the sharpest and was by no means reliable. When confronted by the judge with the evidence of Burgess, Mr Gray stated:
“In our respectful submission there is no need for that [a Newton hearing] because what we have done on behalf of [Bam Bam], and he on his own behalf, is to concede that he was there involved in violence, ready, willing and able to assist, not that one might think Petch needed much assistance, but if he did he was there, and in the excitement and mayhem at the time he was joining in”.
Nobody at the trial of Bam Bam of course carried a brief for Petch.
The submissions
30.
For the appellant Petch, Mr Bayliss QC did not challenge the good faith with which the prosecution accepted Bam Bam’s plea of guilty to manslaughter. Even though done with the best of motives it was, he submitted, a perverse decision because it led to a large and unfair disparity in sentence between Bam Bam, Harrison and the appellants, with those who fled the jurisdiction getting the lesser sentences. The prosecution must act consistently, it was submitted. Having declined to accept Petch’s plea to manslaughter, and with the intention of opening the case against Bam Bam on the same basis as it had been opened against Petch and Coleman, the plea to manslaughter should not have been accepted in Bam Bam’s case. Petch’s conviction for murder depended on an intention in Bam Bam, the alleged principal offender, to kill or to cause grievous bodily harm. Once the prosecution accepted, by accepting Bam Bam’s plea to manslaughter, that he did not have that intent, the only fair way to deal with Petch is on the same basis and the court should provide a remedy.
31.
A proposal by Bam Bam to plead guilty to manslaughter involved an admission of presence and nullified the force of his alibi notice, it was submitted. The prosecution had in the event been manipulated by Bam Bam’s ability to remain out of jurisdiction during the trial of the appellants and the court should not tolerate the consequences of that.
32.
In relation to the perceived unreliability as a witness of Burgess, it was submitted that other witnesses were in a position to give evidence as to Bam Bam’s presence at 60 Southfield Road and a jury could readily infer that, if Bam Bam was present at 60, he was also present, shortly before, at 45 Erroll Street.
33.
Mr Bayliss referred to the current code for Crown prosecutors. They must first be satisfied that there is enough evidence to provide a “realistic prospect of conviction” and then consider whether a prosecution is in the public interest. There is a public interest in consistency of approach, it was submitted.
34.
For Coleman, Mr Senior associated himself with the submissions of Mr Bayliss. While accepting that Coleman had not offered to plead guilty to manslaughter, he submitted that an iniquitous situation has been created for his client.
35.
For the prosecution, Mr Campbell QC submitted that any decision whether to prosecute, and what pleas to accept, depends on the circumstances existing at the time of the decision. The decision to proceed against the appellants for murder cannot be criticised on the basis of the evidence then available to the prosecution. The circumstances were very different when Bam Bam’s plea to manslaughter was accepted. His presence at 45 Erroll Street was denied. It was supported only by the evidence of Burgess, which had not been accepted at the first trial in relation to Jason Crossling’s presence there. Her reliability as a witness was in question.
36.
While there was potential evidence of Bam Bam’s presence at 60 Southfield Road, the reliability of the witnesses was questionable in a trial at which Bam Bam was present. Nobody at the trial of the appellants carried a brief for Bam Bam. Burgess and others had been prepared to give evidence against him in his absence; there were, it was submitted, legitimate doubts about the evidence which would be given in his presence.
37.
Bam Bam’s offer to plead guilty to manslaughter, which implied presence, was made between counsel and not in circumstances in which reference could have been made to it if a case of murder had come to be opened against him. Mr Campbell stated that, had presence been admitted rather than denied, the charge of murder would have been pursued against Bam Bam.
38.
The prosecution could not properly be tied to adopting the same approach in successive cases, it was submitted, even when they arise out of the same events and especially when circumstances have changed. There would have been a greater anomaly had Bam Bam been tried for murder and been acquitted. The same situation could arise if in an important witness died between trials or could not otherwise be brought to court.
39.
The acceptance of a plea to manslaughter was also justified in the case of Harrison. On any view, he was less involved then the rest of the gang. To have treated him differently from Bam Bam would have added to the anomaly.
40.
Mr Campbell submitted that in the present circumstances, the prosecution cannot be called upon to justify a decision not to prosecute Bam Bam for murder. If, contrary to that, an explanation is required, the explanation given is a satisfactory one. The law does not recognise a retrospective abuse, that is conduct not an abuse when the first trial occurred becoming an abuse by reason of subsequent conduct at the second trial. Even if Bam Bam had obtained an advantage by escaping the jurisdiction for a time, that advantage to him should not provide a similar advantage for parties who had been fairly tried and convicted.
Hui Chi-ming
41.
The court has been referred to
R v Hui Chi-ming
[1992] 1 AC 34
, an appeal from Hong Kong to the Privy Council. The parties invited the court to treat it as if it were a decision of the House of Lords. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No witness saw the defendant hit the man, who was an innocent victim, or play any particular part in the assault. A was charged with murder, with three of the group. Two pleaded guilty to manslaughter and other was acquitted. The jury acquitted A of murder but convicted him of manslaughter.
42.
The defendant was later indicted for murder with another youth whose plea of guilty to manslaughter was accepted. The defendant refused an offer by the prosecution to accept a plea of guilty to manslaughter. He was prosecuted for murder as a party to a joint enterprise in which A had murdered the victim. The judge did not admit evidence of A’s acquittal of murder and conviction of manslaughter only. The defendant was convicted of murder and sentenced to death. The Privy Council upheld the judge’s ruling as to the admissibility of A’s acquittal for murder.
43.
Giving the judgment of the Privy Council, Lord Lowry accepted that “a serious anomaly” had occurred but the prosecution of the defendant for murder rather than manslaughter was not so unfair or wrong as to constitute an abuse of process. There was ample evidence to support the defendant’s conviction. While accepting, by reference to
R v Humphrys
[1997] AC 1
, that every court has a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court, Lord Lowry stated, at page 57D:
“Provided the case was conducted with propriety, it is difficult to see how the judge could properly have intervened to prevent counsel from seeking or the jury from returning a verdict which was justified by the evidence. The other answer is that, if it was not an abuse to indict and prosecute for murder, it could scarcely be an abuse to seek a verdict which was justified by the evidence.
That a serious anomaly occurred cannot be denied, but
‘As long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another: R v Andrews-Weatherfoil Ltd. [1972] 1 W.L.R. 118, 125, per Eveleigh J.’ ”
44.
In a passage beginning at page 56E, Lord Lowry dealt with specific points raised by the defence. Lord Lowry stated that the Crown had acted consistently by accepting pleas of manslaughter from all the secondary parties and were willing to accept such a plea from the defendant. The fact that the prosecution were prepared to accept a plea of guilty to manslaughter did not mean that it was an abuse of process to indict and prosecute him for murder. On the evidence, the charge of murder could not be called an overcharge. The defendant was not unfairly put at risk of a conviction for murder, since there was ample evidence to support that conviction and since the acquittal of A for murder was perverse. The sentence on the primary party was due to his good fortune.
45.
Mr Bayliss sought to distinguish the present case on the ground that, unlike in
Hui Chi-ming,
the prosecution have not acted consistently. In that case, pleas of guilty to manslaughter by the secondary parties were accepted, where tendered. The consistency of the prosecution was a major factor in the decision that there was not an abuse, it was submitted. In the present case, the pleas of Bam Bam and Harrison were accepted, that of the appellant was not. Mr Campbell submitted that the process complained of by Hui Chi-ming
was that in his own trial, the principal offender having been convicted only of manslaughter at the earlier trial. The defendant’s complaint in that case was stronger than that of the present appellants, the verdicts on whom were reached at the properly conducted earlier trial.
Conclusions
46.
At the trial of the appellants, the verdicts of murder were properly reached and the judge was required to impose a life sentence (
Murder (Abolition of Death Penalty) Act 1965, s1(1)
). For relief to be provided in this court, by way of substituting a conviction for manslaughter for one of murder, and imposing a determinate sentence, the verdicts would have to be quashed and that can only be done if they were unsafe (
Section 2(1) Criminal Appeal Act 1968)
. The disparity of sentences imposed at the subsequent trial arising out of the same events does not affect the safety of the convictions of the appellants. Neither, in our judgment, does the conduct of the prosecution at the later trial, even if the prosecutions arose out of the same events. The prosecution took pragmatic decisions to accept pleas to manslaughter at the later trials, for reasons they have given. The acceptance of Bam Bam’s plea to manslaughter on the basis that they were not confident that in June 2003 a jury would reach a verdict of guilty of murder does not cast doubt upon the verdicts upon the appellants on the evidence at their trial in March 2002.
47.
The approach in
Hui Chi-ming
plainly supports that conclusion in our judgment, including the citing with approval of Eveleigh J’s statement in
Andrews-Weatherfoil
. The charge of murder against the present appellants could not be called an overcharge and there was ample evidence to support the convictions. The prosecution’s alleged lack of consistency, resulting from pragmatic considerations, which has resulted in an anomaly different from, but in its way as striking as, that in
Hui Chi-ming,
does not open the door to a finding that the verdicts upon the appellants were unsafe. The law does not permit the court to take an overall view of the situation retrospectively and, in the interest of even-handedness, to declare the convictions of the appellants unsafe.
48.
The mandatory sentence required upon a conviction for murder of course aggravates the problem. However, even had the sentences upon the appellants been for a term of years, and a substantial disparity had, because different offences were involved, emerged at the second trial, we are doubtful whether this court could have reduced the sentences upon the appellants, on the basis argued, to one appropriate for manslaughter,. That question does not, however, arise for decision.
49.
Subsequent developments in the law may, with respect, encourage a review of the approach in
Hui Chi-ming
to how prosecutions in second trials based upon the same events as earlier trials are to be conducted. The prosecution were consistent in that case but to proceed against a secondary party for murder when the principal offender has already been convicted only of manslaughter creates a particular sense of grievance absent in the present situation.
50.
No remedy in this court is in our judgment available to the appellants in present circumstances. The appeals are dismissed. | {"ConvCourtName":["Crown Court at Teesside"],"ConvictPleaDate":["2002-03-28"],"ConvictOffence":["Murder (Count 2)","Causing grievous bodily harm with intent (Count 1)","Wounding with intent (Counts 4, 5 and 6)"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Teesside"],"Sentence":["Life imprisonment on count 2 with a minimum of twenty years (Petch)","Life imprisonment on count 2 (Coleman)","No separate penalty on other counts"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance","Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony","Forensic evidence (palm print, DNA)","Identification parade"],"DefEvidTypeTrial":["Denial of presence","Alibi claim","Denial of knowledge of violence"],"PreSentReport":[],"AggFactSent":["Offence involved serious violence","Offence resulted in death","Offence involved a group/gang"],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Subsequent disparity in treatment of co-accused created unfairness amounting to abuse of process","Prosecution accepted pleas to manslaughter from others but not appellants"],"SentGuideWhich":["Murder (Abolition of Death Penalty) Act 1965, s1(1)","Section 2(1) Criminal Appeal Act 1968"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Disparity of sentences at subsequent trial does not affect safety of convictions","Prosecution's conduct at later trial does not render convictions unsafe","Ample evidence to support convictions","Law does not permit retrospective review for even-handedness","Mandatory sentence required for murder"]} |
No.
2002/03068/R3
Neutral Citation Number:
[2003] EWCA Crim 1824
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Thursday 12 June 2003
B e f o r e:
LORD JUSTICE JUDGE
MR JUSTICE HEDLEY
and
SIR BRIAN SMEDLEY
- - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE No. 71 of 2002
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
W. M.
- - - - - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - -
MR E BROWN
appeared on behalf of the
ATTORNEY GENERAL
MR T BANKS
appeared on behalf of THE OFFENDER
- - - - - - - - - -
J U D G M E N T
Thursday 12 June 2003
LORD JUSTICE JUDGE:
1.
This is an application under
section 36 of the Criminal Justice Act 1988
by Her Majesty's Attorney General. We grant leave. The offender is W.M.. On 1 May 2002, in the Crown Court at Reading before His Honour Judge Lait, he was sentenced to a total of three years' imprisonment.
2.
This is a troublesome case. The offender is now 23 years old. He was born on 16 November 1979. On 1 May 2002, he pleaded guilty to three offences: first, abduction with intent to have unlawful sexual intercourse, contrary to
section 17(1) of the Sexual Offences Act 1956
; second, indecent assault; and third, possession of an imitation firearm with intent to cause fear of violence. For the offences of abduction and indecent assault, he was sentenced to two years' imprisonment, and for possession of the imitation firearm with intent, he was sentence to three years' imprisonment. All the sentences were ordered to run concurrently. In addition, the offender was ordered to register with the police as a sex offender for ten years.
3.
The facts of this case are distressing, but it is necessary to set them out in some detail. At about 8.05am on a Monday in February 2002 a 13 year old schoolgirl, dressed in her school uniform, was walking from her home through the middle of a large green. This was her ordinary route to school. It took her past the home of the offender. The offender was not known to the victim, who was walking to the place where she anticipated meeting the school bus. While she was on her way there she heard a man behind her. She stopped to read a text message on her mobile phone. After she had stopped, the offender overtook her and stopped five feet ahead of her. She walked on past him. He continued walking behind her. Eventually she felt something hard between her shoulder blades. The offender told her it was a gun. He said words to the effect: “If you scream or try to run away, I'll kill you.”
4.
He ordered her to walk to a house which he shared with his parents. When they arrived at the house he opened the door. He ordered her upstairs on to landing. There he told her to take off her clothes. She described herself as very scared, but she complied. She turned around. She noticed the offender watching her and that he held a silver hand gun which was pointed at her stomach. During the later investigation by the police they recovered a number of imitation firearms from the offender's bedroom and the victim was able to identify a Bruni automatic 8mm pistol as the weapon which she had seen pointed at her stomach. It was in fact a decommissioned firearm, incapable of firing.
5.
The victim removed her clothes. When she was naked the offender told her that he wanted her to keep her tights on. So he put them back on. He then told her to go to the bedroom. In the bedroom he told her to kneel on the floor, sitting up straight. He knelt behind her, touched and fondled her breasts for a short time before momentarily fondling her buttocks. The victim described the physical actions as gentle. She added that it appeared as though the offender did not know what he was doing. She was then told to remove her tights. She pulled them down to her knees before stopping. She asked the offender what he was going to do to her. He replied, “Rape you”. She began to plead with him, asking him to leave her alone. The offender himself was later to describe her state as one of “wide-eyed terror”. Perhaps because of that he then said to her, “You can either stay here and I will rape you, or go and change and leave”. The victim went to the landing to get dressed. As she left, she was told by the offender to remove her tights again and leave them on the landing. He told her not to tell anyone. She left by the front door and he followed her.
6.
The girl went straight back home to her mother who described her daughter falling through the door in hysterics. She told her mother what had happened. The police were called. When she was talking to the police the victim was able to point out the house at which this nasty incident had taken place and to give a description of the offender.
7.
Later that morning the offender was arrested. His house was searched, as we have already indicated. In addition to the gun which was used in the course of this incident, in a box on top of his bedroom wardrobe the police found the young victim's tights.
8.
On arrest the offender recounted much of what had happened to the doctors who were called to examine him at the police station. According to what he was saying then, he could not remember how the girl had become stripped of her clothes. He spoke of hearing a male voice in his head. He said, “The voices told me to abduct and rape the girl”. He added, “When I saw her kneeling in front of me I realised that what I was doing was wrong. So I stopped”. He was deemed not to be fit for interview. He was, however, charged.
9.
The victim made a victim impact statement. Nothing in it comes as any surprise. She said that after the incident her life had changed. She was embarrassed about what had happened and about what she had been made to do, and embarrassed that her parents knew all the details of the incident. She was troubled about the fact that her own parents had been through the incident, but also -- and this was a sign of great magnanimity -- she was concerned about the offender's parents. She described how she had lost her confidence. It was some time before she was able to pluck up the courage to walk to school on her own. At school she found it difficult to concentrate. She had problems with sleeping and she suffered from nightmares when she fell asleep. She was extremely concerned at the offender being released because he only lived a very short distance away from her own. That fact that she could have been raped constantly went through her mind.
10.
In the course of mitigation before the court at Reading it was stated that the offender and his family already had a firm intention to move away from the area.
11.
The offender was a young man of previous good character. No pre-sentence report was available to the judge, but a psychiatric report prepared by Dr Duggan was presented to him. The report described how the offender, although suggesting that he had no recollection of the events, suffered nightmares which depicted a scene similar to that described by the victim. The psychiatrist described him as having a solitary lifestyle and intermittent contact with the psychiatric services since the age of 12. He described hearing voices in his head which took him over and referred to a wish to hurt others. He was assessed as having a personality disorder “schizo-typal as evidenced by his long-standing social withdrawal, eccentricity and odd beliefs about being taken over, suspiciousness, ruminations about rape and hurting others.”
12.
The aggravating features of this case are self-evident. The victim was a 13 year old schoolgirl, walking to school, abducted from the street by a stranger and forced at gun-point to strip and expose herself to whatever it was that the offender intended do. She was threatened with rape and, without repeating the details of the incident, although it is true that no physical harm was done to her, the ordeal must have been particularly frightening for her. She has suffered seriously in consequence.
13.
It is an unusual feature of this case that, having the victim at his mercy, the offender released her voluntarily. He pleaded guilty at an early stage, having made no attempt to avoid detection, and he was a young man of good character.
14.
We do not think it helpful to look at previous decisions of this court which do not replicate the particular and rather unusual facts of this case. When the application came before the court differently constituted it seemed obvious to us at that time that we needed a much more detailed analysis of the offender's psychiatric condition. We were concerned about the level of risk to the public, and in particular to girls of about the age of 13 or 14 which the offender might represent.
15.
We have been supplied with two further medical reports, one from Dr Meux, dated 30 December 2002, and a second from Dr Dunn, dated 2 April 2003. We are grateful to both doctors for the care with which they have addressed the problem posed by this offender. It will be seen that there is a slight difference of emphasis between them. Both are agreed that the offender suffers from schizo-typal disorder. He also suffers from paedophilia. That is not a mental illness; nor does it amount to a personality disorder for the purposes of the
Mental Health Act 1983
. Accordingly, he cannot be detained under the Mental Health Act on the ground that he is a paedophile. Paedophilia can be said to amount to a psychopathic disorder and it is a life-long disorder. According to Dr Meux's view, at the very least the offender represents a moderate risk even in the context of a structured setting, but, he emphasised, he represents a very serious risk to peri-pubertal girls. If he becomes an inpatient, his treatment will have to take place in a hospital in which there are facilities of high security. Dr Meux's particular concern is that if the offender were to abscond from a medium security hospital -- and obviously the risk of him absconding from a medium security hospital is greater than it would be from a high security hospital -- he would then, and particularly after such an escape, present a “very significant risk” to young females.
16.
So far as Dr Dunn's diagnosis is concerned -- and again we acknowledge immediately that our brief summaries do not do full justice to the care with which the doctors have approached the problem -- actuarially the offender is a high risk offender so far as peri-pubertal girls are concerned. So far as the assessment of him as an individual, as opposed to an actuarial consideration, Dr Dunn was not prepared to express a final view because he believed that the risk represented by the offender was not clear; he required further psycho-sexual assessment as an inpatient. Dr Dunn believed, doing the best he could with the material he had, that he represented a grave but not an immediate risk. Accordingly, Dr Dunn recommended that an assessment should be carried out under sections 47-49 of the Mental Health Act in conditions of maximum security.
17.
We have a report from the Acting Chairman of the Admissions Panel to Broadmoor Hospital. The last paragraph of that report reads:
“A further suggestion put forward at the Admissions Panel was that Mr M. might be considered suitable for admission for the pilot DSPD service at Broadmoor Hospital (Dangerous and Severe Personality Disorder). The admission criteria to this specialist service are not the same as to the high security hospital. The DSPD Service is currently assessing for admission under Section 47/49 of the
Mental Health Act 1983
prisoners who are severely personality disordered who represent a high risk of sexual assault against children and who have a significant period of imprisonment left to serve. Mr M. appears to meet the first two criteria. If the third were also to apply, the DSPD service would be willing to assess Mr M. with a view to his admission to the DSPD pilot ward. The assessment could occur either whist Mr M. is in prison or on
Section 28 of the Mental Health Act 1983
. The DSPD Service would not currently admit patients under Section 37 of the Mental Health Act.”
18.
Accordingly, the criteria the criteria to justify an order under section 37 of the Mental Health Act, and in particular with a restriction under section 41, which would be a minimum condition that a sentencing court could apply, are not available to us.
19.
The case before us is different from the case as it was before Judge Lait. We have much more information from distinguished psychiatrists about the offender and the risk that he represents to the public. We cannot simply pass a sentence on him in order to make him eligible for the pilot scheme to which the Chairman of the Admission Panel has referred. What we can do, and what we have decided that we should do, is to examine the sentence imposed by Judge Lait in the light of the material before us. We have come to the conclusion that, notwithstanding the mitigation available to the offender, the sentence actually imposed on him was too lenient and unduly so. The opposite was not contended for before us.
20.
We have considered whether, quite separately from the sentence for the offence in the circumstances already outlined, we should consider exercising the court's
Power of the Criminal Courts Sentencing Act 80 (2) (b)
of the Act to reflect the need of the public for protection from the offender. We have concluded beyond doubt that the public does need such protection and in particular that young females do.
21.
Finally, we have reflected on the powers available to us under section 85 of the Act. Having reflected on all those matters and the material before us, the conclusion to which we have come is that the appropriate sentence now to be imposed on the offender should be a sentence imposed under section 85 of the Act for a period of ten years for indecent assault. That will be divided so as to reflect this analysis: for the offence itself, a sentence of five years' imprisonment and a further three years for the purposes of section 82(b), making a total sentence of imprisonment to be served of eight years.
22.
The medical reports from Dr Meux and Dr Dunn must accompany this offender. They must be sent to the prison in which he is currently serving his sentence for the personal attention of the governor, who must be also be supplied with a copy of this judgment. | {"ConvCourtName":["Crown Court at Reading"],"ConvictPleaDate":["2002-05-01"],"ConvictOffence":["Abduction with intent to have unlawful sexual intercourse","Indecent assault","Possession of an imitation firearm with intent to cause fear of violence"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at an early stage"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Reading"],"Sentence":["Three years' imprisonment (original sentence)","Ten years' imprisonment for indecent assault (revised)","Five years' imprisonment for the offence itself (part of revised sentence)","Three years for the purposes of section 82(b) (part of revised sentence)","Total of eight years' imprisonment to be served (revised)"],"SentServe":["Concurrent"],"WhatAncillary":["Ordered to register with the police as a sex offender for ten years"],"OffSex":["All Male"],"OffAgeOffence":[22],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[13],"VicJobOffence":["Student"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Physical evidence (victim's tights found in offender's room)","Identification of imitation firearm"],"DefEvidTypeTrial":["Psychiatric report"],"PreSentReport":[],"AggFactSent":["Victim was a 13 year old schoolgirl","Abducted from the street by a stranger","Forced at gun-point to strip","Threatened with rape","Victim suffered serious psychological harm"],"MitFactSent":["Offender released the victim voluntarily","Pleaded guilty at an early stage","No attempt to avoid detection","Young man of good character"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General"],"CoDefAccNum":[0],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentence actually imposed was too lenient and unduly so"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988","section 17(1) of the Sexual Offences Act 1956","section 85 of the Act","sections 47-49 of the Mental Health Act 1983"],"AppealOutcome":["Allowed","Sentence increased"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Mitigation available to the offender did not justify the lenient sentence","Risk to the public, especially young females, required a longer sentence"],"ReasonDismiss":[]} |
Neutral Citation Number:
[2016] EWCA Crim 1588
Case No:
201502822 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE PONTIUS
T20147409
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/10/2016
Before :
LADY JUSTICE HALLETT
VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
MR JUSTICE KING
and
MR JUSTICE DOVE
- - - - - - - - - - - - - - - - - - - - -
Between :
Anthony Jonathan France
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr R Kovalevsky QC and Mr J Hodivala
(instructed by Mandip Kumar of
Hansards Solicitors
) for the
Appellant
Ms Z Johnson QC and Mr S Biggs
(instructed by
CPS Organised Crime Division
) for the
Respondent
Hearing dates: Thursday 6
th
October 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
The Vice President:
Introduction
1.
The applicant was one of a number of journalists and public officials whose conduct was investigated by police during Operation Eleveden. He was employed as a junior crime reporter at The Sun newspaper. The Sun openly advertised the fact it would pay money for stories. Between 31 March 2008 and 1 July 2011, Timothy Edwards, then a serving police officer at Heathrow airport, sold them thirty-eight pieces of information. The applicant wrote the articles that followed and submitted the necessary forms to his employers for Edwards to be paid. The forms had to be approved first by the news editor and then by an editor or deputy editor. In total, The Sun paid Edwards over £20,000.
2.
The applicant was charged with encouraging Edwards to commit the offence of misconduct in public office and stood trial alone at the Central Criminal Court before His Honour Judge Pontius. On 22 May 2015 he was convicted and sentenced to 18 months’ imprisonment suspended for 24 months with a requirement to carry out 200 hours’ unpaid work and ordered to pay £34,618.10 prosecution costs and a Victim Surcharge of £100. He applies for an extension of time (120 days) in which to renew his application for leave to appeal against conviction. Fresh Counsel (Mr Kovalevsky QC and Mr Hodivala) have abandoned the grounds submitted by trial counsel and submitted fresh grounds of appeal based entirely on the judge’s directions.
Prosecution case
3.
Ms Zoe Johnson QC for the Crown put her case on the basis that Edwards was clearly guilty of misconduct in a public office and that the manner in which he provided information, as a serving police officer, damaged the public interest. However, she conceded that the mere fact a journalist bought information from a public official would not suffice for the offence. In the context of a public official selling information to the media, the Crown must still prove the requisite standard of seriousness by reference to the harm caused to the public interest.
4.
She relied upon a number of factors to establish harm:
i. the fact that Edwards was employed airside at Heathrow;
ii. the fact that he was employed in the two highly sensitive commands of aviation security and anti-terrorism;
iii. the fact that a high degree of trust is placed in an employee in his positon;
iv. the fact that it is essential to maintain confidence in the integrity of those employed in such commands;
v. the fact that he accessed a confidential data base to retrieve information.
5.
Having not only accepted but positively asserted that the stories bought and sold were mostly trivial and likely to find their way into the public domain in any event, she maintained there could be no public interest in buying and publishing them.
Defence case
6.
The defence did not dispute that Edwards’ conduct would merit internal disciplinary sanction and that the applicant was aware Edwards may have lost his job if caught. They did not claim that Edwards was acting as a “whistle-blower”. However, they did not concede that Edwards’ conduct amounted to wilful misconduct, that he had acted without reasonable excuse or justification, or that his actions were so serious as to constitute an abuse of the public’s trust. The defence argued that publication of the stories a. did not harm the public interest and b. was positively in the public interest.
7.
The issue of mens rea for both Edwards and the applicant, if not the primary issue, also remained live.
R v Chapman
8.
All parties were aware of the then recently published judgment in
R v Chapman and others
[2015] 2 Cr App R 10
in which the court reviewed the
Attorney General’s Reference (No 3 of 2003)
[2004] 2 Cr App R 23
,
[2005] QB 73
and re-affirmed the four elements of the offence of misconduct in a public office namely:
i) A public officer acting as such
ii) wilfully neglects to perform his duty and/or wilfully misconducts himself
iii) to such a degree as to amount to an abuse of the public's trust in the office holder
iv) without reasonable excuse or justification.
9.
In relation to mens rea, the court concluded that for the holder of a public office to be convicted of the offence, it is sufficient to prove that he had the means of knowledge available to him to make the necessary assessment of the seriousness of his misconduct albeit the actual assessment is for the jury. Similarly, the aider and abettor/encourager must be aware of the relevant facts. He does not have to know or intend that the consequence of all of those facts will be so serious as to amount to the third element of the offence of misconduct in public office.
10.
The principal focus in
Chapman
and others
was on the third element, the threshold test for the misconduct to be sufficiently serious to amount to an abuse of the public’s trust. This is an issue for the jury to decide but the court emphasised the importance of providing the jury with proper assistance on how to approach their task and determine the level of seriousness. The judge must direct the jury that only conduct worthy of condemnation and punishment and that harms the public interest is criminal conduct. Any direction must take into account the context in which the misconduct has occurred. At [33] Lord Thomas CJ, giving the judgment of the court, observed:
“In a democratic society the media carry out an important role in making information available to the public when it is in the public interest to do so, not simply (as the judge pointed out) because the public may be interested in it. Those employed by the state in public office will generally be in breach of the duty owed by them to their employers or commanding officers by providing unauthorised information to the press. However, information is sometimes provided by such persons in breach of that duty where the provider of that information may benefit the public interest rather than harm it. The provision of the information may well in such a case be an abuse of trust by the office holder to his employer or commanding officer, even if the disclosure of the information may be in the public interest. It may therefore result in disciplinary action and dismissal of the officer holder. That is because the abuse of the trust reposed in the office holder by the employer/commanding officer in such a case is viewed through the prism of the relationship between the office holder and his employer or commanding officer. That is not the prism through which a jury should approach the issue of the abuse of the public's trust in an office holder. [33]
He continued at [36]:
“In the context of a case involving the media and the ability to report information provided in breach of duty and in breach of trust by a public officer, the harm to the public interest is in our view the major determinant in establishing whether the conduct can amount to an abuse of the public's trust and thus a criminal offence. For example, the public interest can be sufficiently harmed if either the information disclosed itself damages the public interest (as may be the case in a leak of budget information) or the manner in which the information is provided or obtained damages the public interest (as may be the case if the public office holder is paid to provide the information in breach of duty).”
11.
In this case, Ms Johnson pinned her prosecution colours firmly to the mast of the second limb: the manner in which the information was provided or obtained.
Judge’s directions
12.
It is necessary to consider the judge’s directions in some detail. There is no dispute that the judge did his best to ensure they met the requirements of
Chapman and others
.
13.
In his summing up of the elements of the offence, the judge began with a clear direction that if the jury concluded:
“that what Constable Edwards did by selling stories to the defendant amounted to a serious abuse of the public’s trust in him and therefore to misconduct in his public office and consequent harm to the public interest, that does not mean that this defendant in arranging payment for those stories must be guilty of encouraging him to do so because that decision must depend on your assessment of all the relevant evidence put before you in relation to Anthony France including of course his own evidence of his knowledge at the time of what Constable Edwards was doing.”
14.
Having stated that the public placed trust in those who hold public office and that the public expects and deserves high standards, he continued:
“if that trust is abused in some way for example by the person holding public office improperly taking advantage of their position to enrich themselves then that abuse of trust is likely to harm the public interest.”
15.
He explained that the jury must decide whether the public interest had in fact been harmed and gave the jury the example of the altruistic “whistle blower” as a situation where providing information to the media might be in the public interest. He directed the jury that the misconduct must be worthy of condemnation and punishment and summarised the offence at page 121 letter E:
“ So the prosecution must establish that an abuse of the public’s trust by Timothy Edwards occurred there being no reasonable justification for it, that abuse amounting to deliberate misconduct at such a level that it is properly be described by you as representatives of the public as both potentially and actually harmful to the public interest.”
16.
He emphasized the high threshold of seriousness and that the prosecution must prove misconduct going beyond conduct worthy simply of internal disciplinary proceedings stating: “It is the breach of the public’s trust and consequent harm to the public interest that must be proved not merely the breach of the employer’s trust”.
17.
His written directions to which he then turned were as follows:
“1) Are we sure that TIMOTHY EDWARDS, whilst holding public office as a constable in the Metropolitan Police,
wilfully
, (i.e. deliberately)
misconducted himself, without reasonable excuse or justification
, in the three ways numbered (i), (ii) & (iii) in the Particulars of Offence in the Indictment?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
2) Are we sure that P.C Edwards’ misconduct was, in our judgment,
sufficiently serious as to amount to an abuse of the public’s trust in him
(i.e. that it was a blameworthy departure from accepted standards of behaviour in his public office, falling so far below those standards as to amount to behaviour calling for condemnation by right-minded members of the public and for appropriate punishment)?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
3) Are we sure that P.C EDWARDS’ misconduct
resulted in harm to the public interest?
(
N.B
. When considering this question, the payment of money to P.C EDWARDS for information he supplied to the defendant is relevant but is not necessarily the deciding factor.
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
4) Are we sure that this defendant
intentionally encouraged and/or assisted
P.C EDWARDS to supply confidential information for payment?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
5)Are we sure that,
in the circumstances of which the defendant was aware
at the time
of giving that encouragement and/or assistance, P.C EDWARDS’ behaviour (i) amounted,
in our judgment
, to wilful misconduct in his employment as a police officer and (ii) was,
in our judgment
, sufficiently serious as to amount to an abuse of the public’s trust in him (for the meaning of which see question 2 above)
and
resulted in harm to the public interest?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES then the defendant must be found Guilty”.
18.
He then directed the jury that they need not find deliberate misconduct in relation to every story sold and that payment for the stories was a relevant but not determinative factor in finding misconduct. His final summary of the prosecution and defence case would have left the impression that the real issue for the jury to determine was whether publication of the stories was in the public interest, as the applicant had maintained in his evidence.
Grounds of Appeal
19.
The fresh grounds of appeal are:
(i) The judge failed adequately to direct the jury on the offence of misconduct in a public office.
(ii) The judge failed properly to direct the jury on the meaning or relevance of “confidential” information when assessing the seriousness of the misconduct.
20.
As the argument developed before us, the two grounds merged into one: the judge’s alleged failure to provide the jury with adequate assistance on the elements of misconduct in a public office in the light of the judgment of Lord Thomas in
Chapman and others
.
Discussion
21.
The judge undoubtedly directed the jury in accordance with
Chapman and others
to the extent that he set out the elements that the prosecution had to prove and he did not commit the error identified in
Chapman
of failing to explain to the jury how, as a matter of law, they should approach determining whether the necessary threshold of conduct was so serious that it amounted to an abuse of public trust in the office holder. However, Mr Kovalevsky took exception to the order in which he set out the elements of misconduct in his written directions, his failure to provide greater assistance to the jury on the issue of harm to the public interest and the use of the word “confidential”, without any elaboration, in both the summing up and the written directions.
22.
Mr Kovalevsky accepted that the judge had both intended to follow
Chapman and others
and to provide the jury with a fair and balanced summing up but he contrasted the summing up in this case with those in other Operation Eleveden trials and claimed the judge had failed in his objective. It was his strong contention that the judge should have directed the jury in far greater detail in relation to relevant factors when assessing the seriousness of Edwards’ conduct and the harm to the public and that, without that assistance, the jury could not safely reach their guilty verdict. The relevant factors were not limited to those listed above, upon which Ms Johnson placed reliance, but rather related to the nature of the information and the desirability of its being published. They included:
i. Whilst there is a public interest in the maintenance of standards by public officials, there is a public interest in the public’s right to receive information;
ii. There is a public interest in a free and diverse press;
iii. A newspaper is a commercial enterprise and can only flourish by selling newspapers. This includes the commercial reality of being the first to break a story and enhance its reputation;
iv. The “public interest” is not confined to “whistle-blowing”. Information which shows that the police are competently detecting or investigating crime can also be in the public interest;
v. It was common ground that the information was trivial and inconsequential and likely to reach the public domain in any event.
23.
Ms Johnson never suggested that the information supplied was in any way ‘secret’; her case was based on the premise it was effectively “tittle tattle” so that there could be no public interest in its publication. If so, the jury had to determine whether the official’s conduct in passing it to a journalist could properly be described as so serious as to amount to an abuse of the public’s trust. Mr Kovalevsky complained that this issue was never addressed properly by the judge.
24.
Furthermore, although the judge used the term “confidential” in his summing up and in question 4) of the Route to Verdict (which required the jury to be sure that Mr France encouraged Edwards to supply “confidential information” in return for payment), he did not draw any distinction between information received ‘in confidence’ and ‘confidential information’ of a secret or sensitive kind. All material held by a public official which comes to him as a result of or in connection with his public office may be “held in confidence,” but information “held in confidence” is not necessarily the same as “confidential information”. Mr Kovalevsky gave as an example the menu in the works canteen. A public official may disclose information he holds in confidence (the menu example) without in any way harming the public interest. Trivial information, or information which is already in the public domain, or information which is bound to become public may not be “confidential” in the sense in which the judge appeared to use it. The judge failed to remind the jury of the relevance of this factor to the principal issues of seriousness and harm.
25.
Finally, Mr Kovalevsky complained that although the judge made repeated references to the element of “without reasonable excuse or justification”, he did not elaborate on what might be a reasonable excuse and gave only one example of a reasonable excuse: whistle blowing. This was not the defence raised, and he argued that it would have left the jury with the impression this was the only basis for establishing “reasonable excuse or justification”. When one couples this with the fact that the judge directed the jury on the elements of the offence in what he submitted was the wrong order in his written directions, Mr Kovalevsky invited us to consider whether the judge has effectively divorced the issue of “reasonable excuse or justification” from the issue of seriousness. Accordingly, there is a real risk the jury may have wrongly concluded that Edwards was guilty of the offence simply by selling information of any kind obtained during the course of his employment.
Conclusions
26.
There are a number of hurdles in the applicant’s path. First, this a case in which the very experienced judge took the wise precaution of discussing his legal directions with trial counsel before he summed the case up and they did not object to this part of his summing up. Second, this court has said on numerous occasions it is a matter for the trial judge how he structures his summing up and that he is not obliged to rehearse all the evidence or the parties’ arguments in the way the advocates would prefer, provided, of course, his summary is fair and accurate. Third, the applicant requires an extension of time.
27.
On the other hand, this was a complex area of the law and the judge’s task unenviable. The concept of the public interest, and in particular whether the conduct of the public official is so serious as to amount to an abuse of the public trust placed in him or her, is an unusual, and not always straightforward, one for a jury to determine. In this case, for example, one of the arguments deployed by the prosecution was that the naming of those arrested, but not yet charged, was against police policy and consequently harmed the public interest: a highly controversial issue. As was emphasised in
Chapman and others
, therefore, it was essential that the judge provide the jury with as much assistance as possible by putting the admitted conduct into its proper factual context.
28.
We have not rehearsed the entirety of the summing up but we hope we have done justice to it in our summary. The judge took great care to be fair to the appellant. He repeatedly stressed the level of misconduct to be proved had to be so serious as to be characterised as criminal, and he properly identified the other elements of the offence. However, he did not go further. He did not give the jury any help on how to assess seriousness and harm, for example, by providing them with a list of possible factors that they might wish to consider. He directed the jury that “abuse of trust is likely to harm the public interest” and that “it is the breach of the public’s trust and consequent harm to the public interest that must be proved”, as if the one (harm) automatically followed from the other (breach). He failed to elaborate on what is meant by “confidential” material, in circumstances where, as we have noted, the passing of information held in confidence is not in and of itself sufficient necessarily to pass the threshold of being so serious as to amount to an abuse of the public trust in the official.
29.
In our judgment, more detailed instruction as to the factors relevant to the question of the public interest were required on the facts of this case so that the jury could weigh carefully the seriousness of the breach. As part and parcel of that direction, the jury should have been directed to consider whether the information passed was so trivial or inconsequential that the public interest could not, in the particular circumstances of the case, be harmed. The reference to “confidential information” in paragraph 4 of the written directions for the jury which we have set out above was potentially misleading: it should either have been removed or further explained. The written directions also placed the issue of “reasonable excuse or justification” as part of the second element from
Chapman,
as if consideration of that factor was not relevant to the last element.
30.
Taking any one of those criticisms in isolation, we may not have been persuaded the summing up rendered the conviction unsafe. However, we must consider their cumulative effect and read the summing up as a whole. Having done so, we are driven to the conclusion that the jury were not provided with legally adequate directions tailored to the circumstances of the case and that the conviction is unsafe.
31.
Accordingly, despite the hurdles in the applicant’s path, we have decided to grant the extension of time, give leave to appeal and we allow the appeal. The conviction will be quashed. We will receive submissions on any consequential orders in writing. | {"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2015-05-22"],"ConvictOffence":["Encouraging misconduct in public office"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[0],"SentCourtName":["Central Criminal Court"],"Sentence":["18 months’ imprisonment suspended for 24 months","200 hours’ unpaid work","£34,618.10 prosecution costs","£100 Victim Surcharge"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge failed to adequately direct the jury on the offence of misconduct in public office","Judge failed to properly direct the jury on the meaning or relevance of 'confidential' information when assessing the seriousness of the misconduct"],"SentGuideWhich":[""],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Jury were not provided with legally adequate directions tailored to the circumstances of the case and the conviction is unsafe"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
No:
201600325 A4
Neutral Citation Number:
[2016] EWCA Crim 676
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 5th May 2016
B e f o r e
:
LORD JUSTICE McCOMBE
MR JUSTICE STEWART
THE RECORDER OF WESTMINSTER
(HIS HONOUR JUDGE McCREATH)
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - -
R E G I N A
v
JOHN JANES
- - - - - - - - - - - - - - - - - - -
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 J Ryan
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 McCOMBE: On 16th November 2015, in the Crown Court at Cardiff, after a trial before His Honour Judge David Wynn Morgan and a jury, the appellant was convicted of two offences of fraud contrary to
section 1
of the
Fraud Act 2006
. On 1st December last year he was sentenced by the learned judge to concurrent terms of 18 months' imprisonment, and the judge also made a Criminal Behaviour Order against him pursuant to
section 22
of the
Anti-social Behaviour Crime and Policing Act 2014
for a period of ten years in the following terms:
i.
"The appellant is prohibited from:
ii.
(a)approaching or entering, directly or indirectly, any address in the United Kingdom, whether on his own or on others' behalf, for the purpose of offering his own or others' services for garden or building maintenance or any other business or work whatsoever (this prohibition includes dropping leaflets or flyers advertising his own or others' services through letterboxes);
iii.
(b) instructing others to do any of the acts specified above, whether on his own behalf, or on behalf of any firm of which he is the owner, or company of which he is a shareholder, director, officer, or company secretary."
2.
In other words, the order imposes a prohibition on touting for business.
3.
The facts underlying the conviction were as follows.
4.
Count 1 involved this. On 20th January 2014 the appellant told the victim of the offence, a Mr Rogers, a man in his eighties, living alone, that his neighbours were complaining about the state of his conifer hedge when no such complaint in fact had been made. He persuaded Mr Rogers to take the hedge down and to replace it. Mr Rogers decided he wanted a wall and was prepared to pay the appellant to have it built.
5.
Count 2: the appellant told him that cash payments of £1,500, £2,600, £3,000 and £2,000, represented fair payment for work carried out on moving the hedge and building a wall. When asked for money, Mr Rogers made trips to his bank to obtain the cash and paid to the appellant a total of £9,100. That cost for the work carried out on the property was, as must have been accepted by the jury at trial, about ten times the fair market price for the gardening and building works. The appellant had also entered into the contract for the supply of those works without giving Mr Rogers notice of the statutory right to cancel them.
6.
During the trial the court heard evidence from the City Council housing surveyor that a sum in the region of £1,250 would have been a reasonable sum for the work carried out. As a result, the Crown's case was that Mr Rogers was defrauded of the sum of £7,850.
7.
The appellant's case was that he received no more than a fair price for the work that he completed and that others asked for the cash payments unconnected to him. That contention on his behalf must have been rejected by the jury.
8.
The appellant is now 43 years old. He has six previous convictions involving 11 offences committed between 1995 and 2013. In 2009 he had been sentenced to two years' imprisonment for consumer credit offences and for money laundering contrary to
section 327
of the
Proceeds of Crime Act 2002
. He was also sentenced then to a further term of six months' imprisonment to be served consecutively for social security fraud.
9.
There was a pre-sentence report before the judge in which the appellant continued to deny the offending. He was assessed by the Probation Service as posing a medium risk of re-offending. A community order, with specified activity requirements, was recommended - a recommendation that, in our judgment, was wholly unrealistic.
10.
In passing sentence, the judge summarised the facts of the offence, which he described as an old-fashioned, cold-blooded and pitiless daylight robbery of an elderly and vulnerable gentleman, who been deliberately targeted because of his vulnerability. There had been serious detrimental effect on that victim, who was in receipt of a state pension and a small company pension and who was not well placed to withstand the loss inflicted. The judge said that the victim had been repeatedly targeted in the commission of the offence.
11.
In imposing the Criminal Behaviour Order, the judge said he was satisfied beyond reasonable doubt that the appellant had engaged in behaviour that caused or was likely to cause harassment, alarm or distress, and he considered, in the words of the statute, that the making of the order would help in preventing the appellant from engaging in such behaviour in the future. The judge said, in short, that the court did not trust the appellant not to engage in this type of conduct hereafter.
12.
On the present appeal, in cogent, succinct and helpful submissions, Mr Ryan argues that the imposition of the Criminal Behaviour Order was wrong in principle in being made after "one off" offending against a single victim and against a background of the appellant having worked in his job as a self-employed gardener for over 20 years without similar offending, and indeed for the particular victim for a number of years. Mr Ryan submits that in those circumstances the likelihood of repetition was small. He argues that the order made was disproportionate to the risk in preventing the appellant from working to provide for himself and his family in his normal occupation. It is pointed out that the appellant is illiterate and innumerate and not equipped easily to gain other meaningful employment. He has a wife and five children to support; the children are aged between 4 and 14 years old. Mr Ryan points out that soliciting business from new and established customers had been his style of operation and until this offence it had caused no difficulty. In the written grounds it is submitted, although not advanced orally to us this morning, that the order made infringed the appellant's rights under Article 8 of the European Convention on Human Rights for much the same reasons as advanced upon the application of the statute.
13.
Section 22
of
the 2014 Act
is a revised and amended successor to the statutory provision enabling the court to make anti-social behaviour orders. The relevant parts of the section provide as follows:
i.
"(1) This section applies where a person ('the offender') is convicted of an offence.
ii.
(2) The court may make a criminal behaviour order against the offender if two conditions are met.
iii.
(3) The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.
iv.
(4) The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour.
v.
(5) A criminal behaviour order is an order which, for the purpose of preventing the offender from engaging in such behaviour -
(a)
prohibits the offender from doing anything described in the order;
(b)
requires the offender to do anything described in the order."
14.
It is necessary only to refer further to subsection (9) of
section 22
, which is in the following terms:
i.
"Prohibitions and requirements in a criminal behaviour order must, so far as practicable, be such as to avoid -
(a)
any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment ..."
15.
Mr Ryan accepts, in the course of his submissions, that the first condition, i.e. that the behaviour engaged has caused or was likely to cause harassment et cetera, was met on the facts of this case. He submits, however, that the second condition, that the order would help in prevent the offending from engaging in such behaviour, was not satisfied, and in any event he submits that the learned judge should not in his discretion have made the order he did.
16.
It is to be noted, as indeed Mr Ryan does in the course of his submissions, that a precondition for the making of an order is not that it is "necessary" to do so as under the former statutory provision, but rather that the court considers that the order will "help in preventing the offender engaging in such behaviour", i.e. behaviour that caused or was likely to cause harassment, alarm or distress to any person.
17.
Clearly, in our judgment, the section does not require proof of a sustained course of conduct, although in the present case there were a series of dishonest demands made of this one victim over a period of time, relatively short as it was. Equally, it is to be noted that the section envisages that the order should not interfere with the "times" at which the offender normally works, which might imply that such orders should not prevent an offender from working "so far as practicable". However, where the conduct established derives from the very performance of work or in the course of it, there seems to us to be no
a priori
reason not to make an order in an appropriate case. While the (to use the vernacular) ASBO jurisdiction was usually invoked to restrain the unruly behaviour of offenders, there seems to us to be no limitation in the present jurisdiction to behaviour of that character.
18.
In our judgment, there was nothing wrong in principle in making an order of the type imposed in the present case for the reasons identified by the judge. As we have said, Mr Ryan does not pursue the point made in writing as to the application of Article 8, and we think, with respect to him, he is correct to do so. If that article was engaged in this case, as to which we make no express decision, to preclude the making of an order, provided that the order is necessary for the prevention of crime and is proportionate in its application. In our judgment, an order of an appropriate jurisdiction would not normally fall foul of Article 8.
19.
There seems to us, on reflection on Mr Ryan's submissions nothing, in this order which would prevent the appellant seeking work upon his release in employment by others, provided he does not engage in conduct covered by the order, namely touting. Indeed, it would "help" to prevent such behaviour such as was the characteristic of this offence if he were to be under the control of a supervising employer. If difficulties prove to be really insuperable he can apply to the court to vary the order under
section 27
of
the Act
.
20.
We are, however, as we have indicated during the course of argument, concerned by the duration of the order imposed. We can see the need to put a restraint in place for the early period after the appellant's release. However, we would have thought that an order of three years' duration would have met the needs of this case. It seems to us that an order lasting ten years as imposed in the Crown Court was indeed excessive. We propose therefore to reduce the duration of the Criminal Behaviour Order to one of three years in substitution for the ten year period imposed below. To that limited extent this appeal is allowed. | {"ConvCourtName":["Crown Court at Cardiff"],"ConvictPleaDate":["2015-11-16"],"ConvictOffence":["Fraud contrary to section 1 of the Fraud Act 2006"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Cardiff"],"Sentence":["18 months' imprisonment (concurrent terms)","Criminal Behaviour Order for 10 years (reduced to 3 years on appeal)"],"SentServe":["Concurrent"],"WhatAncillary":["Criminal Behaviour Order"],"OffSex":["All Male"],"OffAgeOffence":[43],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Retired"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["City Council housing surveyor testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Medium risk of reoffending"],"AggFactSent":["offence committed against elderly and vulnerable victim","deliberately targeted because of vulnerability","serious detrimental effect on victim","victim repeatedly targeted"],"MitFactSent":["offender worked as self-employed gardener for over 20 years without similar offending","offender has wife and five children to support","offender is illiterate and innumerate"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Criminal Behaviour Order"],"AppealGround":["Order was wrong in principle as it was made after one-off offending against a single victim","Order was disproportionate to the risk and prevented appellant from working in his normal occupation","Order infringed appellant's rights under Article 8 ECHR"],"SentGuideWhich":["section 22 of the Anti-social Behaviour Crime and Policing Act 2014"],"AppealOutcome":["Allowed in part; duration of Criminal Behaviour Order reduced from 10 years to 3 years"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Order lasting ten years was excessive; three years would have met the needs of the case"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Nothing wrong in principle in making an order of the type imposed"]} |
NCN:
[2019] EWCA Crim 130
No:
201803216 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 25 January 2019
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE SWEENEY
HIS HONOUR JUDGE BURBIDGE QC
(Sitting as a Judge of the CACD)
R E G I N A
v
NICKY MAXWELL
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 M Shepherd
appeared on behalf of the
Appellant
Mr G Rogerson
appeared on behalf of the
Crown
J U D G M E N T
HIS HONOUR JUDGE BURBIDGE:
1.
On 29 May 2018, in the Crown Court at Carlisle, the appellant pleaded guilty to the offence of inflicting grievous bodily harm on Nathan Johnston, contrary to section 20 of
the
Offences Against the Person Act 1861
.
2.
The matter was then adjourned for an up-to-date statement about the victim's condition and for further victim personal statements and he was sentenced on 13 July 2018 to 3
years 6 months' imprisonment.
3.
He was in breach of a conditional discharge imposed by the magistrates on 2 September 2016 for an offence of assault by beating by the commission of this further
offence but no order was made in respect of this.
4.
The appellant appeals against the sentence with the leave of the single judge.
5.
On 20 April 2018, a group of friends gathered and began drinking. The party continued overnight and the next day they moved onto an address in Pennine Way in Carlisle. There were about eight people there, including the victim, Nathan Johnston, who was then aged 29, and the appellant. The drinking continued. They sat in the garden and
everybody was drunk but generally happy and in high spirits.
6.
At about 3,00 pm, the atmosphere changed. The appellant and Mr Johnston began to bicker. The appellant became agitated. He punched Mr Johnston with a clenched fist, making contact with his face and causing him to fall straight to the ground, banging his head on the concrete path. That rendered him unconscious and there was blood coming from the back of his head. He came round briefly whilst an ambulance was called but then lost consciousness again. The ambulance arrived at 3.15 pm, by which time Mr Johnston's speech made no sense and he was in distress and vomiting.
7.
The appellant was arrested later that afternoon at a nearby public house.
8.
Mr Johnston was taken to Cumberland Infirmary, where he underwent a scan and was then transferred immediately to the Royal Victoria Infirmary. He had sustained
a cerebral oedema and bilateral frontal contusions to the brain. He was transferred to the neuro theatre, where he underwent a decompressive craniotomy, that is to say the
removal of a section of the skull to allow the swelling of the brain to expand. His airway was ventilated, a feeding pipe was inserted and a tracheostomy was performed. He remained in hospital on a neurosurgical ward. He was opening his eyes but not speaking. He could not obey commands and required nursing for every aspect of daily life. He also
had required a urinary catheter because he had lost bladder control.
9.
He was transferred to Walkergate Park Hospital as an inpatient for complex neuro rehabilitation. He was due to remain there for the foreseeable future and would need to have reconstructive cranial surgery to replace the section of the bone that had been removed from his skull or to fit a titanium plate. Though it was difficult to give an accurate prognosis, the head injury nurse specialist concluded that Mr Johnston had sustained a serious brain injury and it was likely that he would not return to independent living for the foreseeable future. This medical material was set out in a document available to the Court dated 4 June 2018.
10.
Upon arrest the appellant denied that anything had happened, saying, "He's my friend. I wouldn't do that. I've got two kids and I'm on licence. I wouldn't do anything to ruin that. I haven't been involved in anything". In interview he gave a prepared statement in which he accepted that he had been at the address and that he saw Mr Johnston sustain
an injury but that he had no part in it whatsoever.
11.
The judge had three victim personal statements and in part they were read by the authors to the court: from the victim's father, Kevin Johnston, dated 12 May 2018; from Kimberley Brown, the victim's partner, an undated document; and from Justine Johnston,
the victim's sister, dated 8 June 2018. We have had the advantage of also reading them.
12.
In passing sentence, the judge observed that this was a serious offence of inflicting grievous bodily harm. Towards the end of the party there was a dispute between the appellant and Nathan Johnston. They were bickering. A substantial amount of drink had been taken by the appellant. He became agitated and punched Mr Johnston once to the face. The blow was unexpected and hard enough to put Mr Johnston to the floor immediately. When he hit the ground, the back of his head impacted with a concrete
surface causing a serious brain injury.
13.
Mr Johnston's life was threatened by his brain injury and he underwent specialised treatment. The prognosis was very poor. It was the view, said the judge, of the head injury specialist nurse that he would not return to independent living for the foreseeable future.
14.
The judge indicated that he had considered the victim personal statements, including that of Mr Johnston's partner and the mother of their child. Their accounts of the impact of this offending, said the judge, and we agree, were intensely moving. The harm caused not just to Mr Johnston but to all those who had affection for him was immense. Mr Johnston' life and their lives had been wrecked by the appellant's drunken thuggish behaviour.
15.
In respect of the guidelines, it was suggested by defence counsel Mr Shepherd, who appears before us today and had asserted before the judge at sentence, that this was a category 2 case with a starting point of one and a half years and a range of one to three
years after trial.
16.
The judge did not accept that contention and formed the view that in the context of this case the harm caused was so significant and enduring that the strict application of the guidelines was “inapt”, as he put it, and it would be contrary to the interests of justice to apply them. It would be difficult to imagine, the judge said, a section 20 offence where the consequences of drunken violence would be more significant than in this case.
17.
The appellant's position, said the judge, was aggravated by virtue of his previous convictions. He had convictions for 37 offences, including battery committed in October 2007; breach of an antisocial behaviour order of the same date; further breaches and a conviction for harassment on 11 July 2008, for which he was imprisoned; and battery, for which he was sentenced on 13 June 2016; and again a further assault on 2 September 2016 when the appellant hit a woman in a motor car. The conditional discharge was imposed for that offence, which the appellant was in breach of by virtue of
this conviction. He had been sentenced on 9 September 2016 to 30 months' imprisonment for dealing in cocaine and so was on licence when he assaulted Mr Johnston, another significant aggravating feature, said the judge.
18.
Further, the judge said it could not be said that the awful circumstances of this offence were a one-off: the appellant had appeared before the courts regularly for violence and antisocial behaviour; though, through good fortune in the past, no serious harm had been
caused.
19.
The appellant was entitled to a 25 per cent reduction for pleading guilty. In interview and
at the Magistrates' Court he had denied striking any blow and had denied any involvement in violence before he entered his plea. The judge said his protestations through his advocate of being remorseful had to be seen in the context of that interview. The appellant, said the judge, did not appear sorry then and the judge did not think that he
was really sorry now, save perhaps for himself.
20.
Had he been convicted after trial, the judge said that the sentence would have been close to the maximum for the offence: 4 years and 8 months. The sentence he imposed was in
fact 42 months' imprisonment.
21.
The grounds of appeal settled by Mr Shepherd and advanced orally before us today can
be asserted in the following manner. First, that it was wrong for the judge to take a starting point of 56 months for an offence involving some provocation and a single blow without a weapon. Mr Shepherd seeks to draw the distinction between a perpetrator who delivers multiple blows and someone who engages in a group attack. Also he
contends it should have been a sentence within the guidelines, even if that were to be at the top of the range of category 1. Mr Shepherd further asserts that it was wrong for the
judge to make no allowance for the mitigating factors.
22.
Due to the catastrophic nature of the injuries caused to the victim, the prosecution were asked to respond to this appeal and Mr Rogerson, who appears today, has also drafted a
skeleton argument to assist the court in response to the appellant's grounds.
23.
First, we consider: was it was wrong for the sentencing judge to take a starting point before discount for plea having considered aggravating and mitigating factors of 56 months?
24.
In his sentencing remarks at page 3C of the transcript the judge said this, after having
stated that the maximum sentence for a section 20 was a term of 5 years' imprisonment:
"There are also guidelines for section 20 offences. Judges generally have to follow guidelines unless the court is satisfied that it would be contrary to the interests of justice to do so.
In this case, it is suggested by defence counsel that this case could be categorised as what the guidelines say is a Category 2 case with a starting point of 1 year and 6 months' custody and a range of between 1 and up to 3 years, but after a trial.
My view is that in the context of this case, where the harm caused is so significant and enduring, I have formed the view that the strict application of the guidelines is inapt, and it would therefore be contrary to the interests of justice simply to apply the guidelines here. It is difficult to imagine a section 20 offence where the consequences of drunken violence could be more significant than in this case."
25.
Indeed, there is power for a judge not to apply the guidelines: that emanates from
section 125 of the Coroners and Justice Act 2009
. That provides:
"(1) Every court-
(a)
must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and
(b)
must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so
."
26.
The central issue for this court, therefore, was the judge correct in his determination that to sentence strictly within the ambit of the guidelines would be contrary to the interests of justice or to start at a point near the maximum would create a manifestly excessive
sentence for this offending.
27.
We commence our assessment of this, first, by following the steps set out in the appropriate guidelines. Step 1 requires a determination of the offence category by reference to harm and culpability. Greater harm factors are present for injury which is serious in the context of the offence. Here, substantially so. Mr Shepherd has described the injury as catastrophic, significant and enduring. Those are terms we would adopt. An all-pervading injury was caused to the victim here.
28.
It is difficult to see how the statutory factors indicating higher culpability are engaged.
They are not. That is Mr Shepherd's point. Neither are any of the express other aggravating factors listed. This was a single but forceful punch which felled the victim, who on falling struck his head on concrete. Therefore, the culpability is first to be described as the lower of the two. It might also be said in this respect that there was a lack of premeditation on behalf of the applicant and a modest degree of provocation. It
certainly could not be classified as a greater degree than normally expected.
29.
However, within step 2 there are a non-exhaustive list of the aggravating factors and mitigating factors relating to the offence and the offender that the court is obliged to consider that not only could result in an upward or downward adjustment from the
starting point of the initial category but, as the guideline makes clear:
"In some cases it is may be appropriate to move outside the identified category range."
30.
As far as statutory aggravating factors are concerned, one is engaged: that is to say the appellant's significant criminal record, including for violent conduct. As to other aggravating factors, a number are engaged. Ongoing effect upon the victim. This alone would enable the sentencing judge to move well outside the category range and into the other category. Failure to comply with a current court order by breaching conditional discharge, also for an assault. The offence was committed whilst on licence. There can be no complaint that the sentence would run from the date of imposition and therefore some period in custody awaiting sentence after recall would not count. That is the consequence of reoffending and could provide no mitigation. Another aggravating factor was the commission of the offence when under the influence of alcohol.
31.
This is not exhaustive and one might add in light of the victim personal statements the significant effect of the offending on the family of the victim. He is the father of a young child. The child has lost the fact that his father cannot play an active role in his day-to-day life. His partner, Kimberley Brown, is disabled with a degenerative spinal condition, who not only relied upon the victim for her care and to carry out the physical
things she could not do, now has to do her utmost to meet his needs.
32.
In these circumstances, within the guidelines the judge would be entitled to reach the highest range of category 1. Factors reducing seriousness or reflecting mitigation, must be considered: of course there was one blow. The sentencing judge determined there to be no real evidence of remorse and whilst some cognisance might be taken of the fact that the appellant's father was ill, there was limited mitigation from any starting point before
discount of 25 per cent by reason of plea.
33.
The respondents refer this court to the case of
R v Dodds
[2013] EWCA Crim 22
. This too was a case in which the injury caused was significant and was life-altering in that the victim had suffered an acute subdural haematoma and had required a craniotomy. He survived the operation but had dysphasia and right upper limb weakness and was
significantly disabled. In confirming a sentence of 3 years after discounting one-third for
an early guilty plea for a case where the violence perpetrated was one punch, Haddon-Cave J (as he then was), giving judgment of the court, referred to the fact that the Recorder who sentenced Dodds took an effective starting point of four and a half years
and said:
" ... as this court has repeatedly said, the sentencing guidelines are just that — guidelines — and not a straitjacket. This is particularly true of the sentencing guidelines for assault."
34.
He then referred to the Court of Appeal Criminal Division judgment in
R v Triston
Channer
[2011] 1 Cr App R (S) 75 at paragraph 16:
"First, as this court has frequently stressed, sentencing guidelines are just that — guidelines — particularly in relation to assaults, where circumstances are infinitely variable and seriousness may be reflected in various criteria. It is in our view wrong and may lead to error to attempt to force a specific case into a particular guideline box on the basis of the limited criteria by which cases may be categorised in the guidelines. Any sentence must take into account all relevant matters, and thereby reflect the justice of the particular case."
35.
Haddon-Cave J then went on to say of the Recorder who had imposed the sentence in
Dodds
, at paragraph 11 of that case:
"We can find no fault with the Recorder's reasoning or approach to this sentence. He expressly recognised that the current offence was one of greater harm but lesser culpability, but he was in our judgment fully entitled to step back and take account of (a) the serious additional aggravating features in this case which increased culpability, and (b) the very serious life-threatening and life-long nature of the victim's injuries."
36.
Therefore the sentence was upheld in that case.
37.
Mr Shepherd seeks to distinguish
Dodds
. True it is there are two potential factual differences in
Dodds
. We do not refer to
Dodds
to rely on the specific facts, rather how the sentence was expressed and how a judge should view the sentencing guidelines and
approach the sentencing guidelines.
38.
As we have indicated by the step-by-step analysis of the guideline in the instant case, of this particular appellant, we are of the opinion that the sentencing judge was right to conclude that the factors in this case took the offence well into the category 1 area and beyond and he explained clearly and amply why he was doing that. He took into account all factors, increasing the weight of them where appropriate, reducing the weight and purport of others, such as the very limited mitigation. The injury here caused was extreme and there were many aggravating factors over and above even the life-changing
injury caused.
39.
Whilst this caused the judge to move substantially and significantly away from any starting point in either category and close to the maximum sentence for the offence, we cannot say the sentence imposed was manifestly excessive.
40.
Therefore, this appeal is dismissed. | {"ConvCourtName":["Crown Court at Carlisle"],"ConvictPleaDate":["2018-05-29"],"ConvictOffence":["Inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Carlisle"],"Sentence":["3 years 6 months' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":[],"VicAgeOffence":[29],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["Significant criminal record including for violent conduct","Ongoing effect upon the victim","Failure to comply with a current court order by breaching conditional discharge","Offence committed whilst on licence","Commission of the offence when under the influence of alcohol","Significant effect of the offending on the family of the victim"],"MitFactSent":["One blow","Lack of premeditation","Modest degree of provocation","Appellant's father was ill"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["It was wrong for the judge to take a starting point of 56 months for an offence involving some provocation and a single blow without a weapon","It should have been a sentence within the guidelines, even if at the top of the range of category 1","It was wrong for the judge to make no allowance for the mitigating factors"],"SentGuideWhich":["Sentencing Council's (definitive) Guideline for section 20 offences","section 125 of the Coroners and Justice Act 2009"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["The sentencing judge was right to conclude that the factors in this case took the offence well into the category 1 area and beyond and he explained clearly and amply why he was doing that","He took into account all factors, increasing the weight of them where appropriate, reducing the weight and purport of others, such as the very limited mitigation","The injury here caused was extreme and there were many aggravating factors over and above even the life-changing injury caused","Whilst this caused the judge to move substantially and significantly away from any starting point in either category and close to the maximum sentence for the offence, the sentence imposed was not manifestly excessive"]} |
Neutral Citation Number:
[2019] EWCA Crim 17
Case No:
201803576 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Newcastle Crown Court
HHJ Earl
T20180151
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22/01/2019
Before:
THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MRS JUSTICE CHEEMA-GRUBB
and
THE HONOURABLE MR JUSTICE GOOSE
-
- - - - - - - - - - - - - - - - - - - -
Between:
Regina
Appellant
-
and -
PY
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Louis Mably QC and Mr Brook
(instructed by
Crown Prosecution Service
) for the
Appellant
Mr Selva Ramasamy QC
(instructed by
Taylor Law
) for the
Respondent
Mr Tom Little QC
–
Advocate to the Court
Hearing dates: 27 November 2018
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
The Court has directed that automatic Reporting
Restrictions do not apply to this judgment in accordance with s.71(3) of the Criminal Justice Act 2003
The Lord Burnett of Maldon CJ:
1.
This is a prosecution appeal brought pursuant to
section 58
of the
Criminal Justice Act 2003
(“
the 2003 Act
”) against a binding ruling made pursuant to
section 40
of the
Criminal Procedure and Investigation Act 1996
by His Honour Judge Earl in the Crown Court at Newcastle. It was handed down on 20 August 2018. The ruling concerned the meaning of
section 10(3)
of the
Dangerous Dogs Act 1991
(“
the 1991 Act
”). That provides protection for police constables by exempting a dog being used for a lawful purpose by a constable from being regarded as dangerously out of control. The respondent is a police constable. He faced a single count indictment alleging that he was in charge of a dog on 6 June 2016 which, whilst he was exercising him in a field, was dangerously out of control and attacked and injured a runner, contrary to
section 3
of
the 1991 Act
.
2.
The judge gave leave to appeal.
3.
The dog was a police dog. The respondent cared for two police dogs at home and was exercising both when this incident occurred. He was obliged to exercise the dogs, and otherwise care for them as he would his own dog, and was paid an additional allowance for looking after them.
4.
Section 10(3)
of
the 1991 Act
provides:
“For the purposes of
this Act
a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person or assistance dog, whether or not it actually does so, but references to a dog injuring a person or an assistance dog or there being grounds for reasonable apprehension that it will do so
do not include references to any case in which the dog is being used for a lawful purpose by a constable or a person in the service of the Crown.
” (emphasis added).
The question was whether, at the time of incident, the dog was “being used for a lawful purpose by a constable” with the consequence that the incident fell outside the scope of
section 3
. The judge ruled that the statutory exclusion applied. It is that ruling which the prosecution seek to appeal.
5.
But there is a preliminary issue.
Section 58(8)
of
the 2003 Act
obliges the prosecution to inform the court that the respondent should be acquitted of the offence in the event that leave to appeal is not obtained or the appeal is abandoned. It must do so at the same time or before it informs the court of its intention to appeal. This is generally referred to as “the acquittal undertaking” or, more accurately, the acquittal agreement. The prosecution notified the court of its intention to appeal and gave the acquittal agreement by email. The question arises whether that satisfied the statutory scheme, or whether the steps specified in the statutory scheme must take place in open court. The parties addressed submissions on this issue at the invitation of the Registrar and we have been assisted by the submissions of Tom Little QC as advocate to the court.
The Jurisdiction Issue The legal framework
6.
The general right of appeal against a ruling made in a Crown Court criminal trial was created by
section 58(1)
of
the 2003 Act
.
Section 58(4)
, (8) and (9) specify the procedural requirements:
“(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.
…
(8)
The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.
(9)
Those conditions are—
(a)
that leave to appeal to the Court of Appeal is not obtained, and
(b)
that the appeal is abandoned before it is determined by the Court of Appeal.”
7.
Section 58(3)
specifies that the ruling is to have no effect whilst the prosecution can take the steps under subsection (4). If the court is informed of an intention to appeal in accordance with that subsection, then by
section 58(10)
the ruling continues to have no effect whilst the appeal is being pursued. By
section 58(12)
:
“Where the prosecution has informed the court to its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned by acquitted of that offence.”
If leave to appeal is granted, then the ruling has no effect pending the resolution of the appeal:
section 58(10)
.
8.
Part 38 of the Criminal Procedure Rules 2015 governs appeals under
section 58
of
the 2003 Act
. Those material for the purposes of this appeal are:
“38.2 - (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.
…
38.3
-
(2) The appellant must serve the appeal notice not later than—
(a)
the next business day after telling the Crown Court judge of the decision to appeal, if the judge expedites the appeal; or
(b)
5 business days after telling the Crown Court judge of that decision, if the judge does not expedite the appeal.
…
38.5 - (1) An appellant who wants the Crown Court judge to give permission to appeal must—
(a)
apply orally, with reasons, immediately after the ruling against which the appellant wants to appeal; or
(b)
apply in writing and serve the application on—
(i)
the Crown Court officer, and
(ii)
every defendant directly affected by the ruling
on the expiry of the time allowed under rule 38.2 to decide whether to appeal.
…
(4) The general rule is that the Crown Court judge must decide whether or not to give permission to appeal on the day that the application for permission is made.”
Chronology
9.
The issue under
the 1991 Act
was argued at a pre-trial hearing on 20 July 2018. At the conclusion of that hearing the judge reserved judgment. He listed the case for a further hearing 22 August 2018. On the 18 August 2018 the judge placed his draft ruling on the Digital Case System. He gave notice to the parties by email that the wider dissemination of his judgment was embargoed until it had been handed down formally. On the 20 August 2018, in the absence of the parties, the judge handed down his ruling at just after 16:00.
10.
On the same day that the ruling was handed down, the appellant sent an email message to the judge and the respondent at 14:16 in the following terms:
“Following the handing down of your ruling, the prosecution wish (with respect) to appeal the ruling. Given that we are not due to appear before you until the 22
nd
August 2018, please may this email be considered to satisfy the provisions of
section 58(4)
(a)(i) of the
Criminal Justice Act 2003
?
In accordance with
section 58(8)
the prosecution agrees that, in respect of the offence which is the subject of the appeal, the defendant should be acquitted if either of the conditions mentioned in subsection (9) is fulfilled”.
11.
Whilst that email was sent approximately two hours before the judge’s ruling was in fact handed down, nothing turns upon the point. It expressed the appellant’s intention to appeal and was couched in terms that indicated that its purpose was to inform the court after the court had handed down its ruling. The email was copied to the respondent’s solicitors who acknowledged receipt of the ruling and the statements in the email. The respondent drew attention to the requirements of
section 58
with CPR Part 38. On the 21 August 2018 the appellant sent a further email to the judge:
“The prosecution had anticipated applying orally at tomorrow morning’s hearing for permission to appeal (on the basis that tomorrow would be the first opportunity to do so) pursuant to CPR 38.5(1)(a). However, the prosecution have prepared an application in writing which we now formally serve pursuant to CPR 38.5(b) (as if time had been allowed under rule 38.2)”.
Within that email message, the prosecution repeated its agreement that the respondent should be acquitted in the event that leave to appeal was not obtained or that the appeal was abandoned before being determined by this court.
12.
At the directions hearing on 22 August 2018, when the parties were represented, it was acknowledged by the judge and the respondent that good notice had been given
under
section 58
of
the Act
. At that hearing the prosecution applied for leave to appeal, which was granted.
13.
Based on this chronology the issue which arises is whether the failure to give notice of an intention to appeal and the acquittal agreement orally in court means that this court does not have jurisdiction to hear this appeal. In short, did the appellant comply with the requirements of
section 58
and CPR 38 by email rather than in open court?
The parties’ submissions
14.
In a joint submission by Mr Mably QC for the appellant and Mr Ramasamy QC for the respondent, it is argued that the appellant complied with the procedural requirements. In the result the respondent does not challenge this court’s jurisdiction to hear the appeal.
Submissions of the advocate to the court
15.
Mr Little QC submits that the appellant did not comply with the jurisdictional conditions precedent of
section 58
of
the 2003 Act
. He submits that
section 58
, properly construed and consistent with the authorities, requires that notice of an intention to appeal and the acquittal agreement must be given in open court. If, however, the notice can be given electronically then there will be jurisdiction to hear this appeal. He also suggests that there may be practical difficulties in permitting an electronic based procedure to be used. The important steps required under
section 58
would not be in open court, nor transparent and visible to the public. Further, it may not give the court proper control of the proceedings, with a possibility of confusion being caused between the parties and the court.
The Authorities
16.
The procedural requirements for an appeal under
section 58
and their impact on the jurisdiction of the Court of Appeal have been considered in a number of authorities, some of which we will touch on.
17.
In
R v Arnold
[2008] EWCA Crim 1034
;
[2008] 2 Cr App R 37
the Courts-Martial Appeal Court considered the issue of jurisdiction in an appeal by the prosecuting authority under article 4(4) and (8) of the Courts-Martial (Prosecution Appeals) Order 2006. Those provisions mirrored those within
section 58
of
the 2003 Act
. The prosecutor did not inform the court either before or at the time of indicating an intention to appeal that the defendant should be acquitted if the conditions in article 4(9) were met. The acquittal agreement was given later in the notice of appeal. That was not good enough. The court had no jurisdiction to hear the appeal. In deciding that the requirements of the equivalent of
section 58
must be complied with to confer jurisdiction upon this court, Hughes LJ (as he then was) said at [26]:
“…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
section 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…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. …
As we have made clear, Art. 4 of the Order is in terms materially identical to
s.58
of the
Criminal Justice Act 2003
. Prosecutors who wish to launch appeals against rulings must give the Art.4(8)/
s.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.”
The ruling in that case had been given in court in the usual way with no email exchanges. Nonetheless, it is the observation made by Hughes LJ that the right of appeal must be invoked in open court which has led some to question whether an email notification may suffice.
18.
In
R v T(N)
[2010] EWCA Crim 711
;
[2010] 2 Cr App R 12
Lord Judge CJ conducted a review of all previous relevant authority before endorsing the conclusion in
Arnold
that strict compliance was necessary to clothe the Court of Appeal with jurisdiction:
“The requirement that the statutory undertaking in relation to the acquittal agreement should be given, and the latest time for giving it, are pre-conditions to this particular appeal process. Unless these mandatory pre-conditions are established, the court is unable to vest itself with a jurisdiction which it does not have, or permit the prosecution to exercise a power which it has failed to exercise in accordance with the statutory provisions.” [19]
The court also noted that although it was the CPR, and not the statute, that required the court to be informed “immediately”, it was a correct interpretation of the statute:
“
Section 58(4)
does not expressly require that this information should be made "immediately" after the questioned ruling. That is a provision of rule 67(2) of the Criminal Procedure Rules. Although these provisions do not assist in the construction of the statute, they plainly represent a correct interpretation of legislation which requires either that the court should be informed of the intention to appeal, or, alternatively, that an adjournment should be requested for the question to be considered. Postponement of both these alternatives is not an option. In other words, unless the prosecution informs the court of its intention to appeal immediately following the making of the ruling, or immediately requests an adjournment to consider whether to appeal, this first pre-condition to an appeal is not fulfilled. In this present case this first condition was properly observed.”
But the term “immediate” does not imply split-second timing and should be interpreted flexibly to take account of the realities of the trial process and the need for reflection and consultation: see
R v Quillan
[2015] 1 WLR 4673
per Lord Thomas CJ at [33] to [35].
19.
R v F(JR)
[2013] EWCA Crim 424
;
[2013] 2 Cr App R 13
concerned a different issue. The judge sent a ruling to the parties by email but did not hand it down in open court. A hearing followed the circulation of the ruling, but not for about five weeks. The prosecution notified the court of its intention to appeal, pursuant to
section 58(4)
, and gave the acquittal undertaking at that hearing. The defendant argued that both should have been given when the ruling was circulated by email, relying in particular on the rule which requires the judge to be told “immediately after the ruling” that the prosecution intends to appeal. That argument was rejected on the basis that the statutory scheme required the ruling to be given in a court room; and that effectively happened at the hearing five weeks later when the judge confirmed that the email represented her ruling: see Treacy LJ at [19].
20.
In
R v The Knightland Foundation Jacob Friedman
[2018] EWCA Crim 1860
, this court was concerned with notice of intention to appeal and the acquittal undertaking being given to the Crown Court by email. It was sent to the court and the defendant within the period of adjournment granted by the court after the ruling, pursuant to
section 58(4)
. It was unnecessary for the court to determine the jurisdiction question, because leave to appeal was refused on other bases. Hallett LJ VP noted that the court would have wanted further argument before determining the issue and in particular argument on Parliament’s intention, but made valuable observations on the nature of the prosecutor’s appeal and electronic notification at [33]. It would be best practice to give the information in open court because: (a) that enables the judge to keep control over the proceedings, including directions if a jury is empanelled and expedition; (b) it provides openness and clarity, in particular for the defendant; (c) emails can get misdirected; (d) although CPR 5.1 encourages electronic filing of applications and notices, CPR 4.11 provides electronic service received after 14.30 is deemed service the next day. Hallett LJ added:
“34. However, it does not follow from the fact that giving notice in open court is best practice that we have no jurisdiction. The question remains – does a prosecutor lose his or her right to apply for leave to appeal by failing to give notice in open court?”
Those observations aptly identify some of the possible practical consequences of email, rather than oral, notification. We would observe, however, that the requirements to inform the court found in
section 58
are not requirements to give notice as found in many statutes and rules, and would not fall within CPR 5.1 or 4.11.
Discussion and conclusion
21.
Section 58(4)
and (8) require the court to be informed of two things in the absence of which the prosecution may not appeal.
Section 58(4)
requires the prosecution to inform the court that it intends to appeal (or request an adjournment and subsequently inform the court following the adjournment); and
section 58(8)
requires the prosecution at the same time or before it informs the court that it intends to appeal, also to inform the court of its acquittal agreement. Those two subsections contemplate the court potentially being informed of something at three different times: (a) following the ruling, of the intention to appeal; (b) following the adjournment, of the intention to appeal; and (c) at the same time or before either of those events, of the acquittal undertaking. Additionally, subsection (4) contemplates that the prosecution might make a request for an adjournment to consider whether to appeal.
22.
There can be no principled reason to distinguish between the various obligations to inform the court in the determination of the issue we are considering, nor the request for an adjournment. Similarly, since appealable rulings can be given both before and during a trial (see
section 58(13)
) any statutory requirement regarding the mechanism for conveying the information would apply to both.
23.
Section 58
of
the 2003 Act
does not explicitly specify any mechanism for informing the court (or requesting an adjournment). Does it implicitly require each of the steps we have identified to be taken orally in court?
24.
Our conclusion is that it does not.
25.
It remains the case in the Crown Court that most rulings which might be subject to a prosecution appeal will be given by the judge orally, and often
ex tempore,
with the consequence that the immediate steps which the statute requires to follow will be taken orally. But it is not uncommon for judges to reserve their decisions on applications that fall within the scope of the prosecution appeal rights provided by
the 2003 Act
, and hand them down rather than laboriously read them out. Moreover, in keeping with the widespread practice in all courts, the attendance of the parties at the handing-down of a ruling may, as in this case, be dispensed with to avoid unnecessary inconvenience and expense to the parties. It is often explicitly stated that consequential matters will be dealt with in writing. Rulings and judgments are routinely circulated in advance to enable the parties to assist the court with typographical or factual corrections and to enable consequential matters to be considered and discussed (and often agreed) by the parties. It is axiomatic that if the court communicates with the parties, all must be copied into any communication; and if a party communicates with the court the same practice applies.
26.
The procedural timing obligations in
section 58
are concerned with ensuring that there is no unnecessary delay caused by a prosecution appeal. They compel speed. Such appeals can and do arise in the course of a trial and are capable of being resolved without discharging the jury. That was a point made forcibly by Hallett LJ in the
Knightland
case. An appeal can be decided in the Court of Appeal very quickly, if necessary, within days. The statutory scheme requires even those which are not so time sensitive to be dealt with swiftly. Not only must the prosecution make haste but section 59, for example, requires the judge to consider expedition in
the event that the prosecution signifies its intention to appeal. In the context of criminal proceedings, whether or not a defendant is in custody, the desirability of proceeding quickly is clear. That haste is further reflected in CPR 38.3 which requires a notice of appeal to be served on the next business day in cases where expedition has been ordered by the judge, otherwise within five business days. But we can detect no implicit requirement in the statute that the obligations to inform and request which we have identified in
section 58
must be performed orally in court. The statute is concerned that the steps are taken as required, not how they are taken.
27.
We consider that there is no impediment to the prosecution informing the court by email, with effect from the handing down of a ruling, of its intention to appeal; nor requesting an adjournment by email, if that is what it seeks. Indeed, a short adjournment pursuant to
section 58(4)
might well be agreed by the defendant without the need for attendance. Similarly, the court can be informed of the acquittal agreement by email. The judge remains in control of the proceedings and can convene any necessary further hearings.
28.
The statute could, but did not, specify the mechanism by which the court should be informed of the matters specified in
section 58(4)
and (8). There is no warrant to interpret the section in a way which would spawn unnecessary hearings or require the unnecessary attendance of parties at the handing-down of a ruling.
29.
Moreover, although CPR 5.1 does not apply to informing the court of the matters set out in
section 58
, (it provides that, in general, notices and applications should be lodged electronically) our conclusion sits comfortably with the modern trend to use electronic means of communication in connection with proceedings when it is convenient to do so.
30.
Concerns about “open justice” do not compel a different conclusion. There is no overarching requirement for all communications with a court, or even applications, to be in public, whether in the criminal or civil arena; nor even for all decisions to be given in public. In the criminal context, for example, notices of appeal to the Court of Appeal (whether against conviction or sentence) or applications for leave by the Attorney General to refer a sentence do not follow a public statement in court. Leave is generally considered on the papers, and not in public. Naturally, if leave is granted (or refused and renewed) the hearing is in public. In the criminal courts many procedural and interlocutory decisions are made on the papers. None of these practices offends a principle of open justice.
31.
The reality is that there will be relatively few cases in which the parties will not be present in court when the judge gives a ruling which can be appealed by the prosecution, either because it is given orally or, even if handed down, the attendance of the parties has not been dispensed with. We emphasise the need for a ruling of this nature to be given in court. In such cases the use of email, or other written communication, to set in train a prosecution appeal would not arise. But in the rare case where a judge has dispensed with attendance, or had adjourned pursuant to
section 58(4)
(a)(ii) and then dispenses with the attendance of the parties at the adjourned hearing, it may well be entirely appropriate for the prosecution to take the initial steps towards an appeal in writing (and by email), taking care to comply with the statutory scheme.
The Appeal
32.
The essence of the argument advanced by the respondent police officer before the judge, and in submission before us, was that he was the designated handler of the dog in question (indeed had been since October 2011) with the result that he was obliged to care for and exercise the dog. He was doing so at the time the runner was attacked, because he had taken both the dogs for which he was responsible out for a walk. The care he was obliged to give the dogs included feeding them, exercising, training and caring for them as would any responsible dog owner. The exemption would, submits the respondent, protect him were his dog to behave inappropriately in his home because he would at all times be caring for the dog.
33.
Mr Ramasamy submits (and Mr Brook does not demur) that at the time of the incident the respondent was acting in the execution of his duty. Had he been injured whilst exercising the dog, he would have been able to make any appropriate claim under the Police Injury (Benefits) Regulations: see
Merseyside Police Authority v Police Medical Appeal Board
[2009] EWHC 88 (Admin)
and the discussion by Cranston J between [34] and [39]. That was a case which involved a police officer who was on annual leave but who was injured whilst exercising the police dog he cared for. Walking a dog is undoubtedly lawful and so, submits the respondent, the exemption provided by
section 10(3)
applies. It gives a blanket immunity against conviction for an offence under
section 3
of
the 1991 Act
to a police constable (and other Crown servants) who is on duty when a dog in his charge behaves in a way which otherwise would satisfy the statutory test of being dangerously out of control. Given the breadth of the concept of being on duty when caring for a dog, or otherwise because the constable is required at all times to care for the dog, the exemption would apply universally. By way of example, the respondent submits that if he were to take the dog to the beach on a family day out, and it misbehaved, the exemption would apply.
34.
Mr Brook submits that the focus should be on the word “used” and that the critical question is not whether the officer was on duty at the time. The respondent was not using the dog at the time of the incident. Moreover, in context, the word “used” imports the concept of using the dog for police purposes.
35.
The judge accepted Mr Ramasamy’s submissions. He concluded that the submission advanced by the prosecution, which for shorthand was characterised as having to be on “operational duty” to gain the benefit of
section 10(3)
, was wrong.
Rather,
“... the meaning of
s.10(3)
is clear. It means being used, as in employed by [the respondent] upon an act which is in itself lawful. Exercise is a necessity for a dog and, therefore, is such a lawful purpose. … the exercise of [the police dog] by [the respondent] falls within the exemption of
s.10(3)
of the
Dangerous Dogs Act 1991
.”
36.
The material words of
section 10(3)
, namely “do not include references to any case in which the dog is being used for a lawful purpose by a constable or a person in the service of the Crown” imports four concepts. First, of the dog whose behaviour is under scrutiny; secondly, whether that dog was being used at the time; thirdly, whether that use was for a lawful purpose; and fourthly, whether that use was by a police constable (or other Crown servant). The broad context in which these concepts fall to be interpreted is the statutory purpose of
section 3
of
the 1991 Act
. That is to provide protection to the public from dogs which are dangerously out of control. The provision is one of strict liability. Criminal liability does not depend upon proof of any fault, negligence or even an ability to avoid the statutory harm. For that reason, although the respondent emphasises that the dog, who was exercised regularly off the lead, had never behaved in this way before and always previously responded to commands, those circumstances provide no defence.
37.
The interpretation of the exemption should not undermine the statutory purpose by giving it an extravagant meaning.
38.
The statutory purpose underlying the exemption is clear. Dogs are used by the police and other Crown servants for many law enforcement purposes. They may be used to chase down fleeing suspects or detect crime. They are used in support of the maintenance of public order (at sports events and demonstrations, for example) and for security. They are used by both the police and military for display purposes; and as sniffer dogs for various purposes. Their effective use entails a risk that, absent an exemption, constables or other Crown servants might find themselves liable to prosecution for the strict liability offence created by
section 3
of
the 1991 Act
. That would have the effect, inevitably, of curtailing the use of dogs contrary to the public interest.
39.
There is likely to be no difficulty is determining whether the animal whose conduct is under scrutiny is a dog. But it should be noted that the exemption is not restricted to a police dog or dog in analogous Crown service. If an incident occurred whilst a dog was being used by a constable for a qualifying purpose, even if the dog was not a police dog, the constable could avail himself of the protection of
section 10(3)
. Such a possibility is not entirely fanciful. A constable out walking his own dog might use it for law enforcement purposes if unexpectedly confronted by criminal behaviour or a breach of the peace. Police officers have a duty to intervene in such circumstances even when they are off duty.
40.
Similarly, there will be no difficulty in determining whether the accused is a constable or other person in the service of the Crown.
41.
In our judgment the key to the scope of the exemption lies in the concept of “being used”. The word “used” is an ordinary word in everyday use. The Shorter Oxford English Dictionary defines it thus:
“The act of using a thing for any (especially a profitable) purpose; utilisation or employment for or with some aim or purpose.”
It is possible to “use” an animal or even a person in the sense of this definition. But its essence is using the thing or animal for a purpose. The term “being used” suggests the active engagement of the dog in a directed task or in support of the person concerned for an identifiable purpose. Consider, by way of comparison, a sheepdog. A shepherd would be using his dog when working with sheep or taking it to and from the fields; but it would be a misdescription to suggest that he was using his sheepdog when he took it for a walk or was playing with it on a beach or at home. A gamekeeper would be using his gundog when flushing out or retrieving game but not when taking it for a walk or playing with it. An obvious analogy is with sniffer dogs used to detect drugs, explosives or human remains. The controller of a drug dog sniffing around vehicles or piles of luggage would be using it and have the benefit of the exemption if it became dangerously out of control. But not if the same behaviour occurred when it was being taken for a walk or playing in the controller’s garden.
42.
Millions of people take their dogs for a walk, let them run in their gardens or play with them, every day. That can be in their own properties or in public places. But to say that they are using them whilst doing so would be a misuse of language.
43.
The words “for a lawful purpose” reinforces this interpretation. One has to identify the purpose for which the dog is being used and then ask whether that purpose is lawful. There may be cases where there is no doubt that the dog was being used by a constable, but a question mark arises over whether that use was lawful. For example, using a dog to fell a suspect to arrest him, or unreasonable force to prevent crime.
44.
The next issue is whether
any
use of a dog by a constable attracts the protection of
section 10(3)
or whether the words “by a constable” import some restrictions. In our view, the statutory exemption could not sensibly apply to circumstances where, for example, a police dog was being used recreationally to flush out game. The words “by a constable or a person in the service of the Crown” suggest a restriction on the purposes for which the dog is being used. The use must be as part of the activities of the police or other Crown body. In the context of a police constable, the use must be part of a policing activity. The term “operational duty” may confuse because of its similarity to the concepts of “on duty” and “in the execution of duty” which are distinct legal terms. Whether a dog is being used for a policing activity by a constable is a question of fact.
45.
In respectful disagreement with the judge, we conclude that on the assumed facts upon which the issue was argued in this case, the exemption found in
section 10(3)
of
the 1991 Act
was not established. In particular, in exercising the dog as described the respondent was not using it.
46.
In these circumstances, we allow the appeal and remit the matter to the Crown Court for the proceedings to continue. | {"ConvCourtName":["Newcastle Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Being in charge of a dog which was dangerously out of control and attacked and injured a runner, contrary to section 3 of the Dangerous Dogs Act 1991"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["one"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Binding ruling"],"AppealGround":["Statutory interpretation of section 10(3) Dangerous Dogs Act 1991"],"SentGuideWhich":["section 10(3) of the Dangerous Dogs Act 1991"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
Case No:
200203824 Y3
Neutral Citation No:
[2003] EWCA Crim 1020
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASE REVIEW COMMISSION
UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 11
th
April 2003
Before :
LORD JUSTICE KAY
MR JUSTICE HOLLAND
and
MRS JUSTICE HALLETT
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- and -
SALLY CLARK
Appellant
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr R Spencer QC and Mr M L Chambers
(instructed by
CPS, Cheshire
) for the Crown
Miss C P Montgomery QC and Mr J H Gregory
(instructed by
Burton Copeland
) for the Appellant
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Kay:
1.
On 9 November 1999, Sally Clark was convicted by a majority of 10 to 2 in the Crown Court at Chester of the murder of her baby sons, Christopher and Harry. She appealed against her convictions but her appeal was dismissed on 2 October 2000.
2.
There were those, including Mrs Clark’s husband, who could not accept that she had killed her children and they continued to strive to demonstrate that the convictions were wrong. In due course, records of the results of microbiological tests performed on samples of Harry’s blood, body tissue and cerebrospinal fluid gathered at post mortem were discovered. These had not featured at all in the evidence at trial because all the lawyers involved on both sides were unaware of their existence. They were submitted to medical experts and this submission gave rise to expert evidence that suggested that Harry may not after all have been murdered but may have died from natural causes. This in turn cast doubt upon the jury’s finding that Christopher was murdered.
3.
This information was submitted to the Criminal Cases Review Commission (“The CCRC”) with an application that the CCRC should refer the case back to the Court of Appeal. The CCRC considered the matter and made such enquiries as seemed appropriate.
4.
On 2 July 2002, the CCRC concluded:
“…that there is a real possibility that the Court of Appeal will find that the new evidence renders Mrs Clark’s convictions for the murders of Christopher and Harry unsafe.”
Accordingly it referred the case back to this Court pursuant to its powers under
Section 9 of the Criminal Appeal Act 1995
.
5.
On 28 and 29 January 2003 this court heard the appeal and concluded that the convictions were unsafe and must be set aside. The Crown did not seek a re-trial and accordingly Mrs Clark was released. In view of the public attention given to this case, we stated our reasons for our decision very briefly at the time but indicated that we would give detailed reasons at a later date. This judgment sets out our reasons.
6.
The grounds of appeal settled on behalf of the appellant following the referral by the CCRC, as developed before the court, made two essential points. First and principally, the failure to disclose the information contained in the microbiological reports meant that important aspects of the case which should have been before the jury were never considered at trial. They contended that the failure to disclose the evidence and/or the existence of the new evidence rendered the resulting convictions unsafe. Secondly, they contended that statistical information given to the jury about the likelihood of two sudden and unexpected deaths of infants from natural causes misled the jury and painted a picture which is now accepted as overstating very considerably the rarity of two such events happening in the same family.
7.
It is necessary to summarise the case that the jury were invited to consider at trial, which remained unchanged at the time of the original appeal.
The factual background
8.
The appellant is now 36 years old and a solicitor of previous good character. She lived with her husband, Stephen, at Wilmslow in Cheshire, having married in 1990. Her husband is also a solicitor. Their first child, Christopher, was born on 26 September 1996. He was an apparently healthy baby but died on the evening of 13 December 1996 while the appellant’s husband was out at an office party. The appellant called an ambulance at 9.35 pm. When the ambulance arrived, she was unable to unlock the door and was hysterical and in shock. It was apparent that the baby had been cyanosed for some time prior to the arrival of the ambulance. He was declared dead at 10.40 pm. A post mortem examination was carried out by a Home Office pathologist, Dr Williams. He gave evidence of having found bruises and abraded bruises on the body and a small split and slight bruise in the frenulum. At the time he considered that these findings were consistent with minor harm caused during the resuscitation attempts. He also found evidence of infection in the lungs and as a result he concluded that the cause of death was lower respiratory tract infection. The case was treated as a case of Sudden Infant Death Syndrome (SIDS or “Cot Death”). Following this conclusion, the body was cremated. Photographs had however been taken and slides of samples from the lungs were preserved.
9.
On 29 November 1997, the appellant gave birth to a second child, Harry. He was three weeks premature but was a healthy baby. The appellant received counselling and advice as part of the Care of Next Infant programme (CONI) for parents who had suffered a cot death. From about 8.10 pm on 26 January 1998, both the appellant and her husband were at home together with their child. There came a time when Mr Clark left the room to prepare a bottle for a night feed for Harry since the appellant was supplementing breast feeding in this way. Whilst he was out of the room, the baby suddenly became unwell. Mrs Clark called her husband and then summoned an ambulance at 9.27 pm. When the ambulance arrived, Mr Clark was kneeling beside the baby on the bedroom floor. There was no sign of life. He was taken to hospital where despite further resuscitation attempts, he was pronounced dead at 10.41 pm.
10.
Again Dr Williams carried out a post mortem examination. He found injuries, which he considered to be indicative of non-accidental injury, consistent with episodes of shaking on several occasions over several days. He concluded, therefore, that shaking was the likely cause of death.
11.
These conclusions in relation to Harry caused him to reconsider the cause of death in respect of Christopher. He consulted others and re-examined the material that had been retained and concluded that Christopher’s death had also been unnatural and that there was evidence suggestive of smothering.
12.
On the 23 February 1998 both the appellant and her husband were arrested on suspicion of Harry’s murder. In a lengthy interview the following day, the appellant gave a detailed account of relevant events and strenuously denied shaking Harry or harming him in anyway.
13.
On 9 April 1998 she was interviewed further in relation to Harry and was arrested on suspicion of the murder of Christopher. Having received advice from her solicitors, she decided not to answer questions. She was interviewed again on the 2 July 1998 and again on advice did not answer the questions.
The nature of the prosecution case at trial
14.
The prosecution put their case at trial in the following way. First they pointed to a number of similarities in the detailed history of the death of each child which they suggested went far beyond coincidence. They submitted that in such circumstances where there was no evidence in each case to suggest that the child had died from natural causes, the inference could safely be drawn that the death resulted from the act of the person in whose care the child was when he suddenly became unwell, namely the appellant. The similarities were:
i).
Christopher and Harry were about the same age at death namely 11 weeks and 8 weeks.
ii).
They were both discovered unconscious by Mrs Clark in the bedroom, allegedly both in a bouncy chair.
iii).
Both were found at about 9.30 in the evening, shortly after having taken a successful feed.
iv).
Mrs Clark had been alone with each child when he was discovered lifeless.
v).
In each case Mr Clark was either away or about to go away from home in connection with his work.
vi).
In each case there was evidence consistent with previous abuse.
vii).
In each case there was evidence consistent with recently inflicted deliberate injury.
15.
As to factors (i), (ii), (iv) and (v), we fail to see how realistically on the facts of this case they can be thought to be any significant indication of murder. Some are open to real criticism. Babies are at thier most vulnerable in the first few weeks of their life. Therefore, it is difficult to see how any sort of adverse conclusion could properly be drawn simply from the fact that one died at 8 weeks old and the other at 11 weeks old. Children frequently spend the majority of the early part of their life in the sole care of their mother and hence it cannot in any way be said to an unusual feature for just two events to occur when the babies are in the mother’s sole care. The suggestion that the coincidence of the fact that Mr Clark was out on the night when Christopher died and the fact that he was going away the day after Harry died were in some way significant is one we cannot accept. In the ordinary incidence of family life, it could be anticipated that some imprecise similarity of this kind could always be found. If there was any evidence, which there was not, that on each occasion the appellant had been distressed by the absence of her husband, we could begin to see that the coincidence of distress might be thought to be significant but otherwise we fail to see the relevance.
16.
The third factor was that each had recently taken a successful feed. In so far as a successful feed might be considered as relevant evidence of the well-being of the child shortly before death, then there may be possible relevance. However this evidence needed to be treated with caution. Certainly in each case the appellant spoke of each child having taken a successful feed, but that was not the only available evidence. In Harry’s case there was evidence that at some stage before death he had vomited. The finding at post mortem as contained in the Post-Mortem Examination Report prepared by Dr Williams was: “no evidence of a recent meal”. The fact that Harry had vomited was before the jury but the potentially important finding at the Post Mortem Examination appears not to have been put before the jury. Having regard to the reliance placed upon this feature by the prosecution, we are surprised that they did not think it was evidence that should have been led. The defence may or may not have had reasons why they did not establish the fact but the case proceeded on the basis that Harry had taken a successful feed and that contention was still being advanced in the evidence placed before us for this second appeal and in the way the prosecution put their case on appeal. If the totality of the available material is considered and not just the belief expressed by the mother, it is difficult to see how any real significance could be attached to the suggested coincidence of a recent successful feed. Hence we conclude that the only factors in the list that could truly be said to be relevant coincidences indicative of guilt were the evidence, if accepted, of previous abuse and of recently inflicted deliberate injury.
17.
There was no evidence that anyone had noticed any injury to either child during their lives that had given rise to suspicion that either child was being abused. Such evidence as there was suggested that they were babies who were well cared for, loved by their parents and happy and content. Hence this was a case where realistically any finding of guilt was bound to be decided upon the medical evidence relating to each death and particularly upon the evidence of the pathologists. It is necessary therefore to look in a little detail at the nature of the evidence as presented to the jury.
Approach of a pathologist to a case of suspicious death
18.
It is desirable, however, that we should first set out our clear understanding of how a pathologist will approach a case of suspicious death. In the first place, he will obtain information about the circumstances of the death. This may, in some cases, involve a visit to the body in situ before it is removed to the mortuary. It will almost inevitably involve receiving information from the investigating officers. This will include any version of the circumstances emanating from witnesses and any possible explanation advanced by any suspect. Although the suggestion has been made that the obtaining of such information may be undesirable, we have no doubt that this is wrong. The initial post mortem is critical to any conclusion as to the cause of death. Amongst the questions the pathologist will want to answer are whether any competing explanations for the death are consistent with his findings. The very act of carrying out the post mortem examination will alter the condition of parts of the body and to learn only after examination of explanations that have been advanced runs the risk that the best evidence to confirm or contradict the explanation may no longer be available. A competent pathologist will not assume that any one of the explanations for death advanced is necessarily the correct explanation but in considering the range of possibilities, he will have specific regard to evidence consistent with or contradictory of such explanations. It is, of course, important that the pathologist records such information so that any one else can understand any matter that he may have had in mind in conducting the examination.
19.
Having thus equipped himself so far as he can with information about the likely issues that he will have to resolve, the pathologist will embark upon the actual examination. He will note any significant features of the body where his findings reveal something out of the ordinary whether or not they immediately strike him as relevant to the cause of death and he will also note the fact that he has examined parts of the body and found no abnormality because the negative finding may turn out to be equally significant.
20.
Where there are findings of apparent significance which can be demonstrated visually, it would be normal to cause photographs to be taken so that others will be in a position at a later date to see for themselves. This is particularly necessary where the carrying out of the post mortem will interfere with the finding and prevent anyone else from having the same opportunity to assess the significance of a finding.
21.
In addition the pathologist may think it necessary to take samples either for microscopic examination or for submission for laboratory examination or may decide to retain organs for later more thorough investigation.
22.
Having obtained all the information that he considers may assist him and others in reaching a conclusion as to the cause of death, he will then reach his conclusions, in so far as it is possible, as to the cause of death resolving where he can any issues that he foresees may arise as a part of the investigation into the suspicious death including those that can be anticipated at the trial of any person thought to be responsible for the death.
23.
Since the conduct of Dr Williams is called into question in this case, it is pertinent to record his evidence as to how he would arrive at a cause of death:
“The cause of death given at the end of a post mortem investigation is by a process of elimination. You eliminate various things and you are left with a short list from which you select, and the short list can be one item, the most probable cause of death. There is no such thing as an absolute cause of death except perhaps from decapitation but, you know, in the normal course of events you put the cause of death down as your best opinion based on your findings.”
24.
Having reached his conclusions, the pathologist will then prepare a report. That report should detail the information he received in advance of the examination, all the investigations that he has made either personally or by submission to a laboratory for report, his conclusions and an explanation for those conclusions. Where features out of the ordinary are found and the pathologist concludes that they are not relevant, he should explain why he discounts the finding. Thus by way of extreme example, a pathologist examining a man with a shot wound to the head might discover that he had a severe heart condition that could have killed him at any moment. He might nonetheless conclude that the shot wound was such that it would have killed instantaneously any person, however healthy, and that the heart condition can, therefore, have played no part. In such circumstances the clear duty of the pathologist would be to record the heart condition in his report but to explain that since death would have been instantaneous and since the victim was clearly alive when shot, his conclusion was that the heart condition played no part in the death.
25.
We do not believe that any of the above would come as the slightest surprise to even an inexperienced pathologist.
26.
Where a second post mortem examination was to be performed by a different doctor or where some other medical expert was to become involved in the case, we would expect the original pathologist to understand the need to share all information that he had obtained with the other doctors whether or not at the end of the day he had concluded that it provided an explanation for the cause of death. If he did not, he would deprive the other doctor of the opportunity to decide for himself whether that information was relevant or not. There are good reasons why this duty is such an obvious and important one. The first is that to which we have already referred, namely the fact that the carrying out of the initial post mortem may have caused changes to the body that obscure findings made during the course of that post mortem, or prevent the observation of other important features. The second is that there is a clear responsibility to avoid any interference with the body unless it is necessary to reach a proper understanding of the death. Thus repetition of the interference with the body, necessarily a part of a post mortem examination, should be limited to that which is truly necessary. It is because of these factors that in our experience, doctors quite rightly come to depend upon one another for the provision of any information available to the person carrying out the initial post mortem examination however unlikely it may seem to the first pathologist that it provides an explanation for the cause of death. To this end it is the normal practice for the first pathologist to attend a second post mortem examination, which has the added benefit that he can also see for himself anything found at the subsequent post mortem which he may not have noted or recorded for himself.
The Post-Mortem examination of the bodies of Harry and Christopher
27.
Having thus considered the practice and responsibility of the pathologist conducting the initial post mortem, we turn to consider what happened in each of these cases. In each case the initial post mortem examination was carried out by Dr Alan Williams. In Christopher’s case, because he concluded that death was due to natural causes, there was no other post mortem examination. In Harry’s case, there was a second examination carried out jointly by Professor Emery and Dr Rushton.
28.
In Christopher’s case there was evidence, which it was suggested, was consistent with physical harm suffered by Christopher both shortly before his death and at some earlier stage or stages. In addition there was evidence that Christopher was suffering at least to some extent from some infection at the time of death. The former led to the diagnosis that Christopher’s death was not from natural causes and resulted in the appellant’s conviction for his murder. The latter led to the initial diagnosis at the time of his death that he died from an infection of the lower respiratory tract. It will be convenient to look at each in turn.
29.
In Harry’s case, there was evidence led at trial, of a number of findings said by the Crown to be only consistent with physical harm to Harry shortly before death and at an earlier stage or stages. There was at trial no evidence of any infection that might have caused or contributed to death. Hence in his case either the prosecution case was right or the cause of death was not capable of being ascertained. The evidence which has emerged since trial and since the original appeal however suggests the possibility that his death may have been due to infection. Stated in that way, we can readily see why those acting for the appellant submitted that, at the very least, such evidence may have had a critical effect upon the jury’s consideration of the case. Again we will look at each of these distinct areas.
Evidence suggesting physical harm to Christopher
30.
There were three distinct features of the post-mortem findings in respect of Christopher that doctors called by the prosecution suggested were the result of physical harm caused to him before death, a number of bruises, a tear in the frenulum, and the presence of blood in the lungs.
31.
The bruises which Dr Williams said at trial that he had found were marked by him on a diagram and photographs were available for the jury. They were:
(i)
a bruise on the rear of the left leg, ½
cm x ½ cm.
(ii)
2 abraded (i.e. roughened) bruises on the back of the right thigh, each ½ cm x ½ cm.
(iii)
A bruise on the right arm close to the elbow, ½ cm across.
(iv)
A reddened area, ½ cm across, over the wrist at the base of the right thumb.
(v)
A reddened area, ½ cm x ½ cm, on the joint of the right thumb.
(vi)
2 abraded bruises on the front of the left thigh, one 1 cm x ½ cm and the other 2 cm x 1 cm.
(vii)
2 bruises on the left leg above the right knee, each ¼ cm across.
All these “bruises” were acknowledged to be very small and were described as “finger tip bruises”. It was further accepted that the “bruises” did not form any pattern of the type frequently found when a child has been gripped tightly and subjected to some form of physical harm. If they were bruises, then they must have been caused pre-death and having regard to the evidence of Christopher’s condition from the time of the arrival of the ambulance it was, therefore, unlikely that they had resulted from any of the resuscitation procedures adopted by the ambulance personnel or the medical staff at hospital.
32.
The dispute at trial as to these marks centred essentially on whether they were bruises at all or whether they may have been post-mortem effects. Such a possibility was certainly consistent with the fact that the medical staff at the hospital had not noticed any evidence of any such marks. The Crown suggested that this was because the “bruises” must have been of very recent origin and they had not yet become visible.
33.
Doctors called by the defence were sceptical as to whether they were bruises. They pointed to the fact that the conclusion of Dr Williams was purely from his observations and had not been confirmed by incision of any of the bruises. The Crown’s answer to this criticism was that Dr Williams was an experienced pathologist. Since he was in no doubt that they were bruises, incision was unnecessary and would do nothing more than to cause mutilation of the body over and above that which was required.
34.
There was thus a significant issue in respect of this aspect of the case that was entirely dependent upon the accuracy and reliability of the evidence of Dr Williams. Any other failing that could be demonstrated on his part was, therefore, of potential importance to the reliance that the jury could place on this aspect of the evidence.
35.
The second finding made by Dr Williams upon which the Crown relied was that there was a small split and slight bruising into the frenulum between the upper lip and jaw. The existence of such an injury should have been put beyond question by photographs but unfortunately the photographs that were taken were on any view of very poor quality and offered no opportunity for others to assess the finding Dr Williams claimed to have made. Thus before the jury could have relied upon this alleged injury they would have had to be sure that Dr Williams was accurate and reliable in this respect as well and as with the “bruises” any issue relevant to his reliability may have impacted on this part of the case.
36.
If the jury were sure that there was a tear in the frenulum, the next issue raised was whether this might have been caused in resuscitation attempts. At the time of Christopher’s death, Dr Williams concluded that this was the likely explanation. By the date of trial he had changed his view. He said that he had not appreciated that Christopher had been cyanosed when the ambulance arrived and if that was the situation, the accompanying bruising could not have been caused by any subsequent resuscitation attempts as there would not have been the blood pressure necessary to cause such bruising. He suggested that in the absence of any such innocent explanation, the most likely cause was smothering.
37.
Apart from Dr Williams, the prosecution relied on the evidence of three other expert witnesses:
(i)
Professor Sir Roy Meadow, Emeritus Professor of Paediatrics and Child Health at St James’s University Hospital in Leeds.
(ii)
Dr Keeling, a consultant paediatric pathologist and
(iii)
Professor Michael Green, Emeritus Professor of Forensic Pathology at the University of Sheffield.
38.
Professor Meadow, Dr Keeling and Professor Green, each said that the injury to the frenulum was unlikely to have been from resuscitation. Professor Meadow in his evidence and Dr Keeling in her evidence each suggested it was a sign of abuse consistent with smothering.
39.
Expert evidence on behalf of the defence was given by:
(i)
Professor Berry, a paediatric pathologist specialising in sudden and unexpected infant death;
(ii)
Dr Rushton, a consultant paediatric and peri-natal pathologist;
(iii)
Professor David, a consultant paediatrician;
(iv)
Dr Whitwell, a senior lecturer and forensic pathologist; and
(vi)
Professor Luthert, a pathologist specialising in eyes.
40.
Of these witnesses, it is perhaps important to make clear the precise standing of Professor David in respect of these matters. He was not a doctor approached by the defence to advise them. He was appointed by the Family Court. The appellant had given birth to a third child and decisions had to be made as to the welfare of this child quite independently of the criminal process. The Family Court charged with the responsibility of making these decisions had thought it right to approach an independent expert of its own to review the case. That expert was Professor David. He came, therefore, to the case with a completely independent stance. It was only when his conclusions were favourable to the defence that they sought to rely upon his evidence. Recording these matters is not in any way to suggest that other experts did not do their best to give evidence which was independent of the side that instructed them but the value of an expert free from any influence, however innocently manifesting itself, cannot be discounted.
41.
Professor Berry, Dr Rushton and Professor David thought that it was possible but unlikely that such an injury would result from resuscitation. Each agreed, however, that if there was bruising, injury to the frenulum and bleeding in the lungs, it did suggest asphyxia.
42.
The third aspect of the evidence said to suggest that the death was other than from natural causes and probably the most significant since it was this that led to the rejection of Dr Williams’ original conclusion at the time of death was evidence of bleeding in Christopher’s lungs. Dr Williams had made no record of any such finding at the time but he had taken samples from the lungs which were available for microscopic examination. These were examined by Dr Williams after the death of Harry and it was this further examination coupled with awareness of findings published between the date of the two deaths and discussions with Professor Green that caused Dr Williams to change his conclusion as to the cause of death. Dr Williams said that he had made no reference to this finding because he considered it was “part of the dying process” and “a non specific finding”. He was not then aware that haemosiderin (a breakdown product formed by the destruction of haemoglobin - the principal constituent of red blood cells) in the lungs was associated with asphyxia. Even allowing for his lack of appreciation of this possible diagnostic relevance, it suggests that Dr Williams was being selective as to his recording of his findings only recording those facts that seemed to him to be supportive of his conclusion. It is perhaps of significance that this failure to record facts cannot have been the result of any deliberate attempt to conceal the truth since at the time when he did it, it could have done no harm to the position of the appellant or anyone else.
43.
The evidence of Dr Williams confirmed by the other doctors called by the prosecution was that microscopic examination showed the presence of extensive recent bleeding in the lungs together with haemosiderin which provided evidence of bleeding on a much earlier occasion.
44.
The defence sought to deal with this evidence in a number of distinct ways. As to the presence of haemosiderin, they led evidence of an episode of nose bleeding that Christopher had suffered on 3 or 4 December 1996 whilst staying with his parents at a hotel in London. Initially it would seem that the prosecution were reluctant to accept that this had occurred because if it did, it was at a time when Christopher was in the sole charge of his father, his mother being out at the time. However by the conclusion of the trial, the evidence that Christopher had suffered this nosebleed was accepted to be right.
45.
The Crown’s evidence was that a spontaneous nosebleed in such a young child would be extremely rare and the happening of the nosebleed was in itself evidence of an earlier attempted smothering which had only manifested itself once the mother had left the hotel leaving the child with its father.
46.
Professor Meadow, Professor Green and Dr Keeling all agreed that there was extensive fresh and old bleeding in Christopher’s lungs. A spontaneous nosebleed in such a young baby would be very serious and it was unlikely that the haemosiderin in the lungs resulted from the nosebleed. Professor Meadow described the finding as an important indication of previous smothering. Professor Green said that it crossed the threshold to require further investigation. Dr Keeling said that it was an important marker for further investigation.
47.
For the defence, Professor Berry and Dr Rushton thought that haemorrhage in the lungs was a marker for, but not diagnostic of, the possibility of asphyxiation. The old blood could have been due to the nosebleed, although that would have been unusual in a baby of Christopher’s age. It was also consistent with smothering, but by no means conclusive.
48.
Professor David raised another possibility. He noted that blood test results taken from Christopher soon after death were abnormal. Dr Cowan who had been called to Christopher when he was admitted to hospital gave evidence that the figures (including those for sodium and glucose) were strikingly abnormal. Professor David also thought that they were abnormal and this raised in his mind the possibility of acute idiopathic pulmonary haemosiderosis. He told the court that a Canadian expert, Dr Cutts, had produced a paper which showed similar levels of iron in the lungs of SIDS babies and those who had died from haemosiderosis. He accepted that the other classic signs of that rare disease were absent, but the possibility could not be discounted. He also acknowledged that suffocation was a possibility.
49.
None of the other doctors called on either side accepted that haemosideorsis was a possible explanation for the findings in the lungs or that it could be the cause of death.
50.
Dr Williams gave evidence that the abnormal blood tests results were not significant. They were consistent with changes after death and he spoke of research that he had done and of his conclusion that blood was so unstable that save when examining for poison and other similar matters not relevant to this case, it would not permit any reliable conclusion.
51.
Clearly this aspect of the case had some impact on the jury because they asked a question about whether Harry’s blood was tested which has relevance to the considerations to which we will turn later.
Evidence suggesting that Christopher may have died from an infection
52.
As already made clear Dr Williams immediately after Christopher’s death considered that he had died from a lower respiratory tract infection. By the date of trial not only had Dr Williams changed this diagnosis as to the likely cause of death but somewhat more surprisingly he went so far as to rule out such an infection as a possible cause of death.
53.
Findings in his initial report that supported, or may have supported his original diagnosis included:
(i)
On external examination “there was a frothy muco pus coming from the nose;
(ii)
On internal examination of the respiratory system, “the trachea and bronchi contain small amounts of muco pus. The lower lobes of the right lung show acute serosal inflammation, slight grey linear deposits on the surface of both the right and lower lobes. On sectioning no macroscopic evidence of pus, no macroscopic evidence of consolidation. The lungs are slightly oedematous on compression”.
(iii)
From the post mortem histology, “Lung – acute inflammation; spleen – focal haemorrhages and inflammation; tonsils/pharynxes - minor inflammation”
54.
Dr Williams expressed his conclusions in his report as:
“In summary, this is a well nourished male infant 12 weeks of age showing evidence of respiratory tract infection with inflammation of the right lower lobe of the lung predominantly
Cultures and Histology have been taken
In my opinion … the cause of death was … Lower respiratory tract infection.”
55.
By the date of trial, Dr Williams had concluded that there were “no significant features of respiratory infection.” He was cross-examined about how he could have expressed two such conflicting views at different times and having read the cross-examination, we conclude that he advanced no convincing explanation for the alteration of his position. He explained why he had changed his view as to the cause of death following re-examination of the slides after Harry’s death but he was unable to explain why he had previously asserted that there was evidence of the respiratory infection but now concluded that there were no significant features of such an infection. Put at its very lowest, this aspect of the matter called into question the competence of Dr Williams.
56.
None of the other doctors found any evidence of a respiratory tract infection although the only material upon which they could assess the position was the evidence available from the slides taken by Dr Williams.
Conclusions of doctors at trial in respect of the cause of death of Christopher
57.
Dr Williams in cross-examination explained his opinion as to the cause of Christopher’s death in the following way: there was a “possibility that the child was smothered … a possibility in a broad range”.
58.
Professor Meadow concluded that Christopher’s death was not from lower respiratory tract infection, nor could it be classified as SIDS. In his opinion it was not a natural death.
59.
Professor Green considered that there was no evidence of natural disease. He felt that it was extremely likely that death was other than natural but he would have given the cause of death as “unascertained”.
60.
Dr Keeling considered that this was not a SIDS case and she was unable to find a natural explanation for Christopher’s death. In her opinion, the cause of death was “unascertained”, which meant that it might have not been natural.
61.
Professor Berry said that he would have given the cause of death as unascertained. He explained this by saying:
“It means that the child’s death may have been natural but without explanation, perhaps what the jury knows as cot death. It might be that the child died unnaturally but I can’t find out why or it might be the child died of a natural disease that I am not clever enough to diagnose and recognise and that is why the examination of children found suddenly and unexpectedly dead has to be done more thoroughly and more carefully perhaps than any other type of post mortem examination.”
62.
Professor Berry expressed the view that the post mortem examination whilst it may have been “done in the way that many forensic post mortems are undertaken”, was not sufficiently thorough “to document possible injuries that might indicate a pattern of care of the child”.
63.
Dr Rushton gave evidence that if he had given a cause of death, he would have said that it was unascertained.
64.
Professor David, as set out above, considered that one possible cause of death was idiopathic pulmonary haemosiderosis. He also acknowledged that suffocation was a possibility.
65.
On that evidence, we doubt very much whether any jury would have concluded that they could be sure that Christopher had died an unnatural death if the only evidence that they had heard related to Christopher. The preponderance of the evidence was that the cause of death could not be ascertained. It was the evidence relating to Harry’s death, if anything, that may have enabled the jury to resolve the doubts apparent from the medical evidence. If, therefore, the conviction in relation to Harry was unsafe, we have no difficulty at all in concluding that it would necessarily follow that the conviction in respect of Christopher’s death was equally unsafe. We turn, therefore, to consider next the medical evidence in respect of Harry’s death available to the jury.
Evidence suggesting injuries to Harry
66.
Dr Williams at the post mortem examination carried out on Harry’s body recorded the following findings that suggested the possibility that Harry had been subjected to violence:
(i)
haemorrhages to the eyes and eye-lids;
(ii)
contusional tears in the brain with haemosiderin in the arachnoid space;
(iii)
haemorrhage of the spinal cord with haemosiderin discolouration;
(iv)
a small area of callus formation on the second right rib; and
(v)
the dislocation of the costal cartilage of the right first rib from the end of the bony section of the rib.
67.
Dr Williams concluded that “the spinal injuries and lesions in the brain and the eyes are those that would be expected from non-accidental injury … The pattern of injury is that which is seen in shaking … The post mortem findings are those of a child shaken on several occasions over several days.”
68.
Dr Williams indicated that he had found no evidence of any illness or infection that might have had any bearing on the death. No other evidence was led before the jury by either side to suggest that there was any possibility that Harry was suffering from the effects of any illness or disease at the time of his death.
The findings in respect of Harry’s eyes
69.
As set out above, one of the factors relied upon by Dr Williams to conclude that death was due to shaking were the finding of haemorrhages in the eyes and eye-lids. The findings in greater detail were:
(i)
one or two petechial or pinpoint haemorrhages on the left eyelid. Dr Williams accepted that these were a feature in mechanisms of death other than asphyxia, but said there was no evidence of any such alternative.
(ii)
A 7 mm area of haemorrhage on the upper surface of the right eye and a 2 mm area of haemorrhage on the outer aspect of the left eye. He had only ever seen this type of haemorrhage in cases of death caused by over-laying or smothering.
(iii)
Intra-retinal haemorrhaging in both eyes.
70.
In respect of the intra-retinal haemorrhaging of the eyes, Professor Green had also attached significance to this finding but shortly before trial he had a meeting with Professor Luthert, the defence expert and as a result of that meeting he accepted that the bleeding which he saw was almost certainly of post mortem origin, the result of an error in the slide preparation and that it must be completely discounted. This evidence, therefore, again called into question the competence of Dr Williams.
71.
In respect of the haemorrhages on the surface of the eye, again substantial issues arose as to whether they were caused post-mortem. Professor Luthert thought that it was quite possible that the blood might have dropped down onto the eyes during dissection. He pointed out that the blood appeared to be beneath the access points for dissection to both of the eyes. In any event he said that such a finding was not a classic sign of shaking nor was it a finding associated with any particular disease. In this latter respect Professor Green agreed with him.
72.
As to the 1 or 2 petechial haemorrhages in the left eyelid, Professor Meadow said that if they were established with certainty, such petechiae were of significance because they provided a link with a traumatic event having occurred. Dr Keeling said that they were a significant and worrying feature because they were a sign of asphyxial injury but she was unable to say positively that the child had been smothered.
73.
For the defence Professor Berry said that the two petechial haemorrhages were a worrying feature, but he and Dr Whitwell felt that although consistent with smothering, their presence was not strongly indicative that it had occured. Dr Rushton thought it was difficult to say if they had any significance. He agreed that they were consistent with asphyxia and that they were unusual in SIDS cases. Professor David concluded that there was no evidence that the haemorrhages were due to abuse.
The findings in respect of Harry’s brain
74.
In respect of Harry’s brain, Dr Williams found some tears and some old blood. He accepted in evidence that the tears were not unequivocal and he accepted that the old blood might properly have been attributed to birth.
75.
The Crown called a further expert to deal with this aspect of the case Dr Smith, a consultant neuropathologist. Dr Smith said that she did not see any tears of the brain unequivocally caused before death. She said that there was no indisputable evidence of traumatic injury but she had found signs of hypoxic damage to nerve cells due to lack of oxygen before death. She concluded that something had happened some hours before death to cause this damage and although Harry survived this event, she could not rule out that the hypoxia had been a contributory factor to the subsequent death.
76.
Dr Keeling also thought that the hypoxic damage indicated some sort of episode causing oxygen not to get to the brain. The damage did not give any indication of causality but one possible cause was trauma.
77.
For the defence Professor Berry said that the old haemorrhages were a common finding consistent with almost any cause of death and Dr Rushton felt that they might have been birth related. Both considered that the hypoxic damage was not significant: it was a subtle finding that could have occurred naturally after death. Dr Whitwell agreed that the hypoxic damage was consistent with smothering, but it was a non-specific finding.
The findings in respect of Harry’s spine
78.
The most significant of the findings relied upon by the prosecution in terms of the cause of death were the findings relating to Harry’s spinal cord. Dr Williams gave evidence that he had found the spinal cord was swollen and that there was an excessive amount of blood, both fresh and old. His conclusion was that this was a result of more than one episode of shaking at least 48 hours apart. He said that he could not gauge the severity or mechanism and he agreed that other features that could be expected in a case of shaking were absent. He said that he had seen haemorrhages in the spinal cord where a baby had been shaken but that he had not seen them so low down the spine. He explained that damage of this kind which appeared relatively small could nonetheless have a catastrophic effect. He was sure that there must have been some sort of trauma to that part of the spine and he denied a suggestion that it had been caused during the post-mortem examination.
79.
Dr Smith supported the findings of Dr Williams. She felt that the fresh bleeding could not be dismissed as having been caused in the post mortem process. She agreed that this was not one of the usual findings in a shaken baby and she was unable to explain the mechanism by which it was caused. She said that she had never regarded it as a classic case of shaking.
80.
Professor Green gave evidence that he had seen some such damage in cases of shaking, but not this particular injury. He too agreed that there were features frequently found when a baby had been shaken which were not found here. He considered that shaking was a very strong possibility.
81.
Dr Keeling had never encountered such a degree of bleeding as shown in the photographs. She said in cross-examination that she could not positively say that Harry’s haemorrhages had been caused by trauma.
82.
Professor Meadow said that an injury causing the bleeding around the spine would suggest an unusual trauma. He also said that he would have expected damage to the cervical cord if it had caused death. He said that there was a lack of research on the shaking of babies. Asked if he would expect to find bruising on a baby shaken in that way, he replied that it would not necessarily be found.
83.
For the defence, Professor Berry, Dr Whitwell and Dr Rushton doubted the interpretation of the photograph as showing a swollen cord. Many of the findings had either been shown not to exist or had been misinterpreted. Bleeding in the epidural space was commonly found in post mortems of babies and was not significant. The old bleeding was not in an area where one would have expected to find trauma and was more consistent with a birth injury than a shaking injury. Dr Rushton could not envisage a feasible mechanism to produce such an injury. However if there had been fresh bleeding and a swollen cord, he would have concluded that the death had been unnatural.
Evidence of rib injuries to Harry
84.
It was not suggested that the rib injuries had played any part in causing Harry’s death but rather that they were evidence of physical abuse. Dr Williams said that Harry had suffered a fracture of the second right rib at the side under the armpit. X-rays of the whole of Harry’s skeleton had been taken and they on examination had revealed no evidence of any fractures. He had however found the callus where the fracture had healed.
85.
He accepted that in his statement he had only said that there was a “possible” old fracture but he was firm that there was no other possible explanation for his finding. He further agreed that he had told a police officer that it could have been caused at birth but he said that this was unlikely because he had since learnt that Harry’s birth had been a normal, uncomplicated delivery.
86.
The other finding of which he gave evidence was of the first rib being dislocated from the cartilage near the breastbone. He had made no reference to this in his report because he said it was of unknown significance. He said that he was sure that it had not been caused at birth or during the post-mortem and he had not seen such a dislocation from resuscitation attempts.
87.
Professor Meadow and Dr Keeling said that the fracture of the rib would have been an unusual birth injury. Dr Keeling said that she was able to confirm from examination of the microscopic slide that there had been bone growth indicating the presence of an injury such as a fracture. Professor Meadow and Dr Keeling each said that the dislocation of the first rib would have been an unusual resuscitation injury. Dr Keeling was surprised that there was no haemorrhage at the site of the dislocation and thus she could not exclude the possibility that it happened post mortem.
88.
Professor Berry for the defence said that the fracture of the second rib had not been confirmed and the process of new bone formation was not necessarily confirmation of a fracture. If the dislocated first rib had occurred in life, he would have expected some haemorrhage or tissue damage of which there was none. He did not think that either was a birth injury but the evidence suggested that the dislocation occurred after death.
The doctors’ conclusions as to Harry’s death
89.
Dr Williams was of the opinion that death was caused by shaking.
90.
Professor Meadow said that Harry’s death could not be classified as SIDS and in his opinion the baby had not died a natural death. Dr Smith said that she was unable to specify a mechanism of death and was, therefore, unable to say that this was a shaking death. She accepted in cross-examination that she could not exclude some unidentified natural disease, but that there were features suggestive of some assault to the child. In purely pathological terms it was an unexplained death, although in her opinion Harry did not die a natural death. Professor Green said that Harry’s death could well not be natural. He thought though that the most appropriate diagnosis was unascertained. Dr Keeling felt that the possibility of a non-natural death should be considered but she too would give the cause of death as unascertained.
91.
Professor Berry considered that the most worrying features were the petechiae in the eyelids and the fracture of the right rib, if such it were. If the spinal cord had been swollen and the bleeding in the spine caused by trauma, he would have concluded that it had been a traumatic and non-natural death, but it could have been due to an accident.
92.
Dr Whitwell and Dr Rushton would each have given the cause of death as unascertained. They each spoke of features that would militate against a classification of the death as a SIDS death. Dr Rushton said that there were features that gave rise to very great concern. Professor David thought that there was insufficient data to know why Harry died.
Conclusions on the medical evidence at trial
93.
The medical evidence at trial which we have set out in detail made clear that in any view this was a difficult case. There was a wide difference of views in respect of each death as to the conclusions that could properly be drawn from the available evidence. However a number of factors seem to us to emerge which are of relevance to this appeal:
(i)
in each case, before a conclusion adverse to the appellant could be drawn the jury would have had to be sure that they could rely upon the evidence of Dr Williams. There were important features said to have been found at each post mortem examination which depended both upon the competence of Dr Williams in carrying out the post mortems and upon the extent to which he could be considered as a reliable and objective witness as to his findings. There were features at that time that must have caused the jury to hesitate. His change from a conclusion that Christopher died of a lower respiratory tract infection to an opinion that there was no evidence that he had such an infection that could have led to death, and the acceptance by the Crown that Professor Luthert was right about the intra-retinal haemorrhaging of the eyes being the result of an error in slide preparation were the most obvious examples of the need for caution. Anything further that cast doubt upon the approach of Dr Williams must, therefore, have been of potential significance to the jury’s conclusions.
(ii)
it was of potentially crucial importance that there was no evidence of any illness or infection suffered by Harry that might have explained his death. If this was not a true SIDS case, as the doctors were largely agreed, and since there was no apparent natural explanation for the death, the evidence pointed towards an unnatural death. The only disagreement between the doctors was whether it did so to a sufficient degree to permit a firm conclusion that the cause of death was unnatural or whether the case had still to be classified as an unascertained cause of death. Thus any evidence which positively suggested that Harry died from natural causes was of potentially crucial relevance to the jury’s considerations and might very well have resulted in different verdicts.
(iii)
as already indicated, the evidence in respect of Christopher’s death, if it stood in isolation would not have justified a finding of murder and if, therefore, there had been evidence that suggested that Harry died from natural causes so that the jury accepted this was a possibility, it seems inevitably to follow that they could not have been sure that Chrsitopher was murdered.
The statistical evidence
94.
Before turning to consider the evidence which it is alleged was not disclosed to the defence and the evidence now available that flows from it, we must record the other feature of the evidence at trial which it is contended may well have had an unfair impact upon the jury’s considerations. That evidence was statistical evidence given by Professor Meadow.
95.
Professor Meadow was asked about some statistical information as to the happening of two cot deaths within the same family, which at that time was about to be published in a report of a government funded multi-disciplinary research team, the Confidential Enquiry into Sudden Death in Infancy (“CESDI”) entitled “Sudden Unexpected Deaths in Infancy” to which the Professor was then writing a Preface. Professor Meadow said that it was “the most reliable study and easily the largest and in that sense the latest and the best” ever done in this country.
96.
It was explained to the jury that there were factors that were suggested as relevant to the chances of a SIDS death within a given family; namely the age of the mother, whether there was a smoker in the household and the absence of a wage earner in the family. None of these factors had relevance to the Clark family and Professor Meadow was asked if a figure of 1 in 8,543 reflected the risk of there being a single SIDS within such a family. He agreed that it was. A table from the CESDI report was placed before the jury. He was then asked if the report calculated the risk of two infants dying of SIDS in that family by chance. His reply was:
“Yes, you have to multiply 1 in 8,543 times 1 in 8,543 and I think it gives that in the penultimate paragraph. It points out that it’s approximately a chance of 1 in 73 million.”
97.
It seems that at this point Professor Meadow’s voice was dropping and so the figure was repeated and then Professor Meadow added:
“…in England, Wales and Scotland there are about say 700,000 live births a year, so it is saying by chance that happening will occur about once every hundred years.”
98.
Mr Spencer then pointed to the suspicious features alleged by the Crown in this present case and asked:
“So is this right, not only would the chance be 1 in 73 million but in addition in these two deaths there are features which would be regarded as suspicious in any event?”
He elicited the reply “I believe so.”
99.
All of this evidence was given without objection from the defence but Mr Bevan QC (who represented the appellant at trial and at the first appeal but not before us) cross-examined the doctor. He put to him figures from other research that suggested that the figure of 1 in 8,543 for a single cot death might be much too high. He then dealt with the chance of two cot deaths and Professor Meadow responded:
“This is why you take what’s happened to all the children into account, and that is why you end up saying the chance of the children dying naturally in these circumstances is very, very long odds indeed one in 73 million.”
He then added:
“… it’s the chance of backing that long odds outsider at the Grand National, you know; let’s say it’s a 80 to 1 chance, you back the winner last year, then the next year there’s another horse at 80 to 1 and it is still 80 to 1 and you back it again and it wins. Now here we’re in a situation that, you know, to get to these odds of 73 million you’ve got to back that 1 in 80 chance four years running, so yes, you might be very, very lucky because each time it’s just been a 1 in 80 chance and you know, you’ve happened to have won it, but the chance of it happening four years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely.”
100.
The table that was produced to the jury gave just the figures for probability of a SIDS death in families where one or more factors thought to be relevant were present together with the figures when there was no such factor. In the CESDI report the table was accompanied by explanatory text but although this was available to the prosecution and the defence, it was not before the jury. It made clear the purpose of the information saying:
“The identification of families at higher risk of SIDS is of importance in allowing the appropriate deployment of scarce health care resources and in attempting to achieve changes in lifestyle or patterns of child care that might reduce this risk.”
It did not in any way suggest that it provided statistical information that would enable diagnosis of an unnatural death in an individual case.
101.
The report also made clear that the figures did not “take account of possible familial incidence of factors other than those included” in the table. It ended with the warning: “When a second SIDS death occurs in the same family, in addition to careful search for inherited disorder, there must always be a very thorough investigation of the circumstances- though it would be inappropriate to assume maltreatment was always the cause”.
102.
None of these qualifications were referred to by Professor Meadow in his evidence to the jury and thus it was the headline figures of 1 in 73 million that would be uppermost in the jury’s minds with the evidence equated to the chances of backing four 80 to 1 winners of the Grand National in successive years.
103.
Professor Berry was one of the four editors of the CESDI study. He made the point that simply squaring the figure was an illegitimate over simplification and he drew attention to the qualifications to which we have referred.
104.
The trial judge clearly tried to divert the jury away from reliance on this statistical evidence. He said:
“I should, I think, members of the jury just sound a word of caution about the statistics. However compelling you may find them to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family, it does not mean that there cannot be another one in the same family.”
105.
This aspect of the case was raised on the first appeal. The areas of attack were threefold. First, evidence was called to show that the statistics were misleading; second, it was said that the evidence was led without regard to the guidance given by this Court in
R v Doheny and Adams
[1997] Cr App R 369
; and third it was contended that the prosecution utilised the statistics in a way that gave rise to the “prosecutor’s fallacy” identified in relation to DNA statistical evidence in
R v Deen,
The Times 10 January 1994.
106.
As to the first point, the Court of Appeal (at paragraph 155) concluded:
“The existence of arguments against squaring was known to the jury at trial. Professor Berry made the points to which we have already referred, and the judge reminded the jury about these in his summing-up. But again the precise figures are not important since the Crown was making the broad point that repeated SIDS deaths were very unusual, in which exercise the number of noughts separating the lower risk households from higher risk households did not matter once the overall point was made, as here it was.”
107.
The court also rejected the second ground which was effectively a complaint that Professor Meadow trespassed beyond his mere expertise. The court said (paragraph 160):
“No-one would know better than Professor Meadow that this important evidence as to whether these deaths were unnatural lay in the physical finding post-mortem, in the account of the last hours of the infants, and in the evidence and credibility of the parents – it certainly did not lie in statistics. And it is clear from reading his evidence that his conclusions were firmly based on that medical and circumstantial evidence, as we would expect.”
108.
As to “the prosecutor’s fallacy” the court found merit in this argument saying:
“Therefore we accept that when one is looking post facto at whether two deaths were natural or unnatural, the 1:73 million figure is no help. It is merely a distraction. All that matters for the jury is that when your child is born, you are at a very low risk of a true SIDS death, and at an even lower risk with a second child.”
109.
The court absolved Professor Meadow of misusing the figure in his evidence but added that “he did not help to explain this limited significance”.
110.
The court then asked themselves whether the jury might have focussed on that figure to the exclusion of the “real and compelling” evidence in the case. They reminded themselves of the warning given by the judge but concluded that there was some substance in the criticism. Nonetheless the court looked at this matter in the light of all the evidence and concluded that there was an “overwhelming case” against the appellant.
The evidence discovered since the first appeal
111.
In reaching that conclusion about the strength of the case, the Court of Appeal, like the jury before them, were wholly unaware of the existence of any evidence to suggest that Harry might have died from natural causes. That was to remain the position until the discovery was made of documents amongst the records of the hospital where Harry died and it is to that evidence that we must turn.
112.
During the course of the post-mortem examination swabs and samples from Harry’s faeces, stomach tissue and fluid, blood, lung tissue, bronchus, throat and cerebrospinal fluid (“CSF”) were taken by Dr Williams and he submitted these for testing on 27 January 1998, the day of the post mortem examination. Staphylococcus Aureus (“SA”) was isolated in Harry’s stomach tissue and fluid, lungs, bronchus, throat and CSF. SA is a fairly common and often harmless bacteria but in some sites it can prove lethal.
113.
The finding of SA in some sites is not in any way unusual or significant. It can be transferred during the post mortem process and such contamination can explain its presence at differing sites. However, CSF is normally a sterile fluid and the finding of SA in the CSF would on any view be an abnormal finding. It might in some circumstances result from contamination. SA might be present on the surface overlying the site from which the fluid was drawn and the act of penetrating the skin surface might force SA into the fluid so as to suggest falsely its presence within the fluid before testing.
114.
Having discovered for the first time the existence of this evidence, those acting for the appellant submitted them to Professor Morris
,
a consultant pathologist employed by Morecambe Bay Hospitals NHS Trust who has published over 100 research articles many of which have concerned the role of bacteria and bacterial toxins in SIDS. His conclusion can be stated shortly as being that this evidence provided clear evidence upon which it was possible to conclude that in all probability Harry died from natural causes. Thereafter a number of opinions were obtained from a variety of experts by both the prosecution and the defence, including further reports from some of those who gave evidence. It was apparent from these reports that there was disagreement amongst the doctors as to the significance of this evidence. In due course, in circumstances to which we will refer later, the defence called before us just Professor Morris and the prosecution called one expert Dr Klein, a Consultant in Paediatric Infectious Diseases and Immunology with a medical background of the same distinction as Professor Morris. It is unnecessary to recite in great detail the evidence that each gave and we hope that in summarising the evidence in lay terms we will not be thought to under-estimating the complexity of the medical issues involved.
115.
Professor Morris explained that SA is commonly found in the upper airways of infants aged two or three months, but it does not normally occur in the trachea, bronchus and lungs. Finding SA in the lungs is, therefore, significant. He considered possible explanations for the finding including the organism being blown into the lungs during attempted resuscitation and contamination at the time of the autopsy but explained why he doubted these as explaining the finding in this case.
116.
Of greater significance was the finding of SA in the CSF. Since the fluid is normally sterile, the finding of SA in pure growth was he considered highly significant. The possibility of contamination had to be recognised but there were other findings relating to the CSF which were important in assessing the possibility.
117.
The first matter considered by Professor Morris to be of significance was that in the CSF there were 80 nucleated cells per microlitre of fluid and a significant proportion of those cells were polymorphs. He explained that nucleated cells can be found in post mortem CSF in the absence of infection but that polymorphs were diagnostic of inflammation. The findings indicated that the SA was present prior to death because the body was beginning to mount an inflammatory response. He said that this was strong evidence against the idea that the SA was a contaminant and equally strong evidence that the infection was significant.
118.
Although he was unaware of results relating to the protein content of the CSF when he prepared his initial report and reached his conclusions, he subsequently discovered that the CSF protein was 3.24 grams per litre. This, he explained, was markedly raised and indicated inflammation of the meninges. He said that this finding added considerable weight to his previous conclusions.
119.
There was also a finding that the CSF glucose level was low which was consistent with his conclusions but he recognised that the glucose level can fall after death in the absence of infection. It was thus taken on its own not diagnostic.
120.
Professor Morris considered a suggestion made by doctors consulted by the Crown, particularly Dr Wills
,
the consultant medical microbiologist who had reported to Dr Williams on the samples, that the explanation for the finding of polymorphs in the CSF was that the bleeding from the subarachnoid haemorrhage had resulted in blood getting into the CSF and that the polymorph had been a reaction to the irritation caused by the red blood cells. He discounted that possibility for reasons that he explained. First the volume of red blood cells within the CSF meant that the amount of blood was very small indeed (a drop the size of a pin head). He suggested that it was “contrary to common sense to suggest that a drop of blood so small could cause meningitis”. Second if Harry was well, as the evidence clearly suggested, some four hours before death, the proportion of nucleated cells to red cells was something of the order of 80 times too high to be the result of an injury less than 4 hours before. Thirdly a fresh subarachoid haemorrhage which produced 230 red cells per microlitre could not account for the protein content of 3.24 grams per litre.
121.
Professor Morris further considered that the fact that the SA that was isolated from several sites was of the same strain was significant. He said that this was not the pattern of a contaminant and the most reasonable explanation was that the organism had spread from the lungs through the blood to the CSF prior to death. He argued that if this was correct, it was difficult to avoid the conclusion that the bacteraemia had contributed to death. He thought that it was also difficult to imagine postulating a different cause of death and arguing that the bacteraemia was a mere coincidence.
122.
Having thus considered the available evidence and the suggested theories to explain the evidence, Professor Morris concluded that “overwhelming staphylococcal infection is the most likely cause of death”. He thought that the evidence was sufficiently strong that no other diagnosis could be sustained. He explained that the infection could cause death in one of three ways: (i) SA meningitis; (ii) SA toxin induced damage or (iii) SA induced toxic shock.
123.
Professor Morris said that everything that he had put forward came from mainstream medicine and was not in any sense a maverick view.
124.
Professor Morris was cross-examined by Mr Spencer QC on behalf of the Crown and the differing conclusions of the doctors consulted for the prosecution were put to him. It was suggested that his evidence did not fit the known facts and particularly the history that Harry appeared well until very shortly before his death. Professor Morris remained firm in his opinion.
125.
It appeared to us to be of the utmost importance that no sort of suggestion was made to him that his view was other than a respectable medical opinion which others might share even though it was not the opinion of doctors upon whom the prosecution sought to rely.
126.
This approach by the prosecution puzzled us. It was common ground that the material upon which Professor Morris relied was not available to the defence at the time of the trial. It followed that there was no way in which Professor Morris’ evidence could have been obtained by the defence prior to trial. Putting to one side any question of fault in the failure to disclose the information, the evidence seemed to us to be material evidence satisfying the criteria contained in
Section 23(2) of the Criminal Appeal Act 1968
that are required to be considered by the court before receiving fresh evidence. If that was so we reminded ourselves that the House of Lords had recently reaffirmed the proper approach of the Court of Appeal to such evidence in
Pendleton
[2002] 1 Cr. App. R. 441. The Court of Appeal is not to decide for itself what impact evidence might have had on the jury’s deliberations and “must not intrude into territory which properly belongs to the jury”. The position was clearly stated by Lord Bingham of Cornhill at page 454:
“The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be 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 trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”
We failed to see how in a case of this difficulty, if there was no suggestion that Professor Morris’ opinion was other than a respectable medical assessment of the position, we could conclude that it might not have affected the jury’s decision. If that assessment was right, it followed considering the guidance given by the House of Lords that since the jury was deprived of the chance of considering that evidence, the resulting conviction had to be viewed as unsafe.
127.
We raised these matters with Mr Spencer at the conclusion of the first day and asked him to consider how if our assessment of the position was right, the prosecution could invite us to uphold these convictions. Mr Spencer explained to us that the prosecution’s concern was whether Professor Morris’ theory fitted the known facts. In particular, although the Professor had said in his reports that the release of bacterial toxins could lead to rapid death, it was not apparent that he had considered in detail the immediate history preceding death and in particular the very short time between the child appearing perfectly well and then collapsing from an overwhelming infection. Counsel drew attention to the observations of Judge LJ in
R v Hakala
[2002] Crim. L.R. 578
[2002] EWCA Crim. 730
in which he said:
“It is integral to the process that if fresh evidence is disputed, this Court must decide whether and to what extent it should be accepted or rejected, and if it is to be accepted, to evaluate its importance, or otherwise, relative to the remaining material which is before the trial jury: hence the jury impact test…”
Professor Morris concluded his evidence on the second day and Miss Montgomery QC for the appellant, no doubt reassured by the observations that we had made and aware that the cross-examination of Professor Morris had not caused him to modify his opinions nor had any suggestion been made that his was not a respectable medical opinion, decided that it was not necessary for her to rely on the further evidence which she had available to her.
128.
Mr Spencer then explained that consideration had been given by the prosecution to its position and that whilst it remained their contention that Professor Morris was wrong as their evidence demonstrated, they did not suggest that it was other than a respectable medical opinion that merited consideration. Since it was clear that the Professor’s view was not affected by the immediate history put to him by the Crown he recognised that the court could not second guess what impact it might have had on the jury for the reasons explained by Lord Bingham in
Pendleton
. He would, therefore, limit himself to calling just one of his potential witnesses, Dr Klein so that at least the contrary medical contentions were in the public domain. We agreed to that course.
129.
Dr Klein, like Professor Morris, is clearly a doctor with considerable expertise relevant to the issues raised by the microbiological reports. Just as the prosecution did not suggest that Professors Morris’ view did not represent a legitimate medical opinion in a difficult case, the defence accepted that Dr Klein’s opinion was a perfectly mainstream medical expression of opinion.
130.
In essence the evidence of Dr Klein was that the history, clinical features, pathological features and pathological investigations were not consistent with death from staphylococcal septicaemia, staphylococcal toxic shock or staphylococcal meningitis. He put the matter quite simply by saying that the known data “did not fit with anything I have ever seen”. In each case he explained what symptoms before death and what findings at post mortem examination he would anticipate if the diagnosis suggested was to be considered as a possibility. He concluded in each case that there was no evidence of the anticipated sort which would justify the suggested cause of death.
131.
As to the presence of SA in the CSF, Dr Klein acknowledged that it was a very unusual finding. He said that if he had received such a report on a sample of a patient of his, he would strongly suspect that it was a contaminant and would immediately ask that the test be repeated. He agreed further that the combination of the finding of SA and of polymorphs was a very unusual combination. He did not think that the finding of polymorphs was as specific as was suggested by Professor Morris. Something had caused a reaction but it could be trauma.
132.
When Dr Klein was cross-examined by Miss Montgomery he accepted that it was possible that Harry died from a non-classical toxin reaction. He acknowledged that the medical profession did not know the cause of a lot of sudden deaths in infants. In one of his reports Dr Klein said:
“The hypothesis that Staphylococcal toxins may in some as yet unexplained way lead to SUDI is interesting and clearly warrants further research.”
133.
We wish to record that we found both Professor Morris and Dr Klein to be equally impressive medical witnesses. If we had been required to reach a conclusion as to which of their compelling views was correct, we should have found it a very difficult decision to make. However that is not in any way the task that confronts us and there was certainly nothing in the evidence of Dr Klein that could have caused us to conclude that there was no prospect that the jury would have considered that Professor Morris’ evidence was right.
134.
From this it follows as the Crown acknowledged, that since there was evidence that was not before the jury that might have caused the jury to reach a different verdict on the count in respect of Harry; the verdict on that count has in our judgment to be viewed as unsafe and must be quashed.
135.
For the reasons we have already explained, we are of the firm view that if Harry’s death may have been from natural causes, it follows that no safe conclusion could be reached that Christopher was killed unnaturally.
136.
Accordingly the conclusion that the verdict in respect of Harry’s death is unsafe necessarily leads to a conclusion that the verdict in respect of Christopher’s death is also unsafe and it too must be quashed.
137.
These reasons were sufficient in themselves to dispose of the appeal but it is right that we should say a little more about two aspects of the case. The first is how it came about the microbiological results were not disclosed and the second is the statistical evidence. We must also record why the Crown decided it was inappropriate to invite the Court to order a re-trial.
Failure to disclose the microbiological reports in respect of Harry
138.
The microbiological results were undoubtedly known to Dr Williams. He had taken the samples and submitted them for testing by the hospital’s laboratory. The fact that it was necessary to take such steps clearly shows that there was the possibility that they would reveal evidence relevant to the cause of death.
139.
The results of the testing were considered sufficiently out of the ordinary for samples to be submitted to Withington Hospital in Manchester and the Central Public Health Laboratory in Colindale, London.
140.
It is clear that Dr Williams was kept informed about the testing and on 3 March 1998 Dr Wills, the Consultant Microbiologist, wrote to Dr Williams saying:
“I think it is unlikely that this organism contributed to the death of the child. It is somewhat unusual to find a contaminating organism so widely spread and it may be that there was a transient or terminal bacteraemia.”
141.
It is clear that Dr Williams appreciated that this was information that needed to be considered before a final conclusion was reached on the cause of Harry’s death. In a statement made as part of the preparation for this appeal, Dr Williams said:
“These reports were considered with the other post-mortem findings in reaching my diagnosis.”
142.
However Dr Williams made no reference to these results nor even to having submitted these samples for examination in any of the three statements he made for the trial. Oral committal proceedings were held in the Magistrates Court before the case was sent for trial at the Crown Court. Dr Williams gave evidence at those proceedings. The deposition of his evidence shows that no mention was made of these matters at that stage.
143.
During examination in chief, Dr Williams was asked about the post mortem procedure for Christopher. He told the court he would usually “collect any samples that need collecting for microbiology, for example … cerebrospinal fluid, swabs from the nose and mouth, although we do not have a protocol at Macclesfield and normally these have already been done by the paediatricians”.
144.
In respect of Christopher, microbiological tests were conducted on his blood and urine which showed no bacterial or viral infection. SA was isolated in the nasal and throat swabs. In contrast to the position in respect of Harry, these test results were made available to the medical experts for the prosecution and defence prior to trial.
145.
The ordinary routine nature and importance of microbiological tests is clear from Dr Williams’ evidence in relation to Christopher:
“I wouldn’t have given a final cause of death until all the results were back on the microbiology and the virology and the various other investigations I did.”
146.
In respect of Harry Dr Williams in his evidence available pre-trial said:
“There is no evidence of acute infection … There is no evidence that this child died as a result of natural disease.”
In order to reach that conclusion, it is clear on his own evidence that Dr Williams had had to consider the unusual test results and reach conclusions as to why they could safely be discounted. There is no reference to his consideration of these matters nor of the reasoning by which he discounted the potential significance of these matters in his evidence pre-trial.
147.
We are further satisfied that at no stage did Dr Williams draw the attention of any of the doctors examining the case on behalf of the appellant nor that of Professor David who was looking into the case on behalf of the Family Court to the existence of these abnormal microbiological results. It is important to record the reaction of some of these doctors to this failure.
148.
Professor Berry was one of the defence experts. Having looked at each of the reports that he has provided and at his evidence at trial, it is abundantly clear that he has throughout dealt with this matter in a manner that is balanced, objective and independent as one might expect of one of the leading exponents of his field. He has not hesitated to say things that are adverse to the cause of the appellant if he believed that they were right. He said of the failure of Dr Williams to reveal matters:
“In routine practice it would be acceptable to mention only positive findings in the post-mortem report, followed by a note of other ancillary tests carried out that were negative. In the context of a police investigation it is best practice to include results of all ancillary tests to provide a complete record for anyone else who might need to interpret the post-mortem report later.”
Later he said
“Defence experts are completely dependent on the original pathologist and the Crown to supply all relevant results and materials. I would no more expect another expert to withhold potentially relevant microbiology reports than I would expect him or her to withhold some of the microscopic slides or post-mortem photographs. This principle is especially important with respect to “surprise” results that could not have been anticipated by the defence expert.”
149.
Professor David who as we have made clear was acting as an independent expert on the instruction of the Family Court is equally critical. He says:
“It appears that all these reports, and the microbiology and virology reports, were all in the possession of Dr Williams, who chose to exclude them from the hospital records of Harry and to exclude them from the papers that were disclosed. Furthermore, there was no mention of them when Professor Berry and I went to see Dr Williams at Macclesfield Hospital, and similarly there was no mention of these results and reports when Dr Williams attended the experts’ meeting.
The point I wish to make is quite simply that it is a matter of great concern that this wealth of laboratory data was not disclosed. There is no doubt that had these results been available, I would have referred to them in my report, and I would have investigated their possible significance further, not only in relation to the death of Harry but also the death of Christopher.”
150.
In a letter to solicitors acting in the care proceedings Professor David said:
“What is so extraordinary is that these results were obviously of special interest to the pathology department, to the extent that the samples were actually sent away to the headquarters of the Public Health Laboratory Service at Colindale for further testing, and yet despite this step being taken, none of these results were disclosed. The PHLS in Colindale is the national reference laboratory for microbiology, and I am at a loss to understand how all these results and laboratory data did not come to be passed into the care proceedings papers.
There is no doubt that had these results been available, I would have referred to them in my report, and I would have investigated their possible significance further, not only in relation to the death of Harry but also the death of Christopher.”
151.
Professor Morris found it “astonishing” that the results of the CSF examination was not included in Dr Williams’ report. He described it as an “error of judgment”.
152.
Professor Whitwell said that it was substandard practice for such results to be omitted from a report, particularly when that report may well form the basis of criminal or civil proceedings. Asked if she was entitled to assume that all potentially relevant material had been disclosed by the Crown’s experts, she responded: “absolutely yes.”
153.
Dr Keeling, one of the Crown’s own experts said that she was unaware of these results and added:
“I assumed that this was because there were no significant results from these investigations which might have bearing on the cause of death.”
154.
At the trial, there was again no mention of the microbiological results by anyone. It is quite clear that this resulted in large measure from the fact that Counsel for the prosecution and the Crown Prosecution Service were just as unaware of the existence of this material as all those doctors and lawyers, acting for the defence. Dr Williams revealed nothing in his evidence about these matters and he was not asked any direct questions about these matters in the main body of his evidence because no-one else knew that there was material of potential importance available.
155.
It is clear, however, that the jury were interested in these matters and it shows a commendable awareness on their part that they asked a question that certainly provided an opportunity for these matters to be revealed even if it did not directly require the revealing of the information.
156.
When Professor David gave evidence and advanced the possibilities in respect of Christopher of haemosiderosis, he referred to the tests carried out on Christopher’s blood. The jury reacted to this by asking:
“Are there blood tests for Harry?”
157.
After a short adjournment, Mr Spencer for the Crown provided the jury with this explanation:
“As I understand it, the answer is that there was no blood sample taken for chemical analysis at the Hospital in the case of Harry as there was for Christopher. There was a blood sample taken at post mortem which was simply for screening for the presence of drugs and it’s been pointed out to me in the medical notes that there was a blood sample taken at the hospital for culture, in other words to see if there was any bacteria in that sample. That is as I understand it, but Dr Williams will be able to confirm.”
The fact that Mr Spencer was unaware of the testing of the samples taken by Dr Williams at the post-mortem is all too clear from his observations. He indicated that Dr Williams would make the position clear.
158.
During Cross-examination of Professor David, the issue of blood tests on Harry was again raised and the jury asked a further question:
“Why did Professor David analyse Christopher’s blood for disease but did not analyse Harry’s for comparison?”
159.
Professor David responded:
“The answer I’m afraid is that a sample was not collected from Harry to measure the chemicals in his blood.”
160.
The Crown recalled Dr Williams to deal with these matters as they had indicated that they would. Dr Williams said:
“We’ve looked at the records as far back as we can. There is no record of a sample from Harry that was taken either during resuscitation or immediately after that was subject to a chemical analysis.”
161.
After a few further questions on the subject, the following exchange took place:
“Crown:
Was a blood sample taken from Harry at post mortem…?
Williams:
Yes, a sample is always taken at post mortem
Crown:
Do you know what was done with that?
Williams:
That was submitted for toxicological examination and some of it would have been sent for viral studies.”
162.
On careful examination of these exchanges, it is clear that the answers given by Dr Williams were factually accurate. However, by the end of the exchange to which we have referred, Dr Williams was mentioning the very examination with which this appeal is concerned. To his knowledge the results were abnormal, albeit that he may have believed that the abnormality could properly be discounted after consideration. It is to our mind remarkable that knowing this matter had come into focus sufficiently for him to mention the examination in his evidence and knowing that he had not told either those connected with the prosecution or the defence doctors about the abnormality that he did not seize this opportunity to draw these matters to the attention of the prosecution.
163.
We have had to consider carefully why Dr Williams behaved as he did. The first possibility is that he was deliberately concealing information which he knew showed that Harry may have died from natural causes. If that was the case it would be conduct of the most serious kind. Having studied all the material available to us we think that possibility can be discounted. It seems to us that throughout his dealings with the case, Dr Williams genuinely believed after the death of Harry that both Harry and Christopher died from unnatural causes. We do not believe that he was knowingly being a party to the putting forward of a false case.
164.
Once we had eliminated that possibility, we were left trying to understand why it was that he had never revealed this material. Our provisional view was that his failure demonstrated that he had fallen a very long way short of standards to be expected of someone in his position upon whose evidence the court was inevitably going to be so dependent.
165.
Having reached that view we thought it only fair before making a firm criticism of Dr Williams to offer to him the opportunity to give evidence to explain his apparent shortcomings. We made clear that we did not think that he had acted in bad faith in the sense that we have already explained. The case was adjourned to see whether Dr Williams wished to answer the criticisms that had been raised against him. The response that we received was that having regard to our acceptance that he did not act other than in the honest belief that the case being advanced by the prosecution was a true case, he did not wish to avail himself of the opportunity that we had offered.
166.
The only answer that we have, therefore, from Dr Williams was contained in a statement dated 5 September 2002. In that he said:
“It is not my practice to refer to additional results in my post mortem unless they are relevant to the cause of death, as the specimens were referred to another consultant.”
167.
We find that explanation wholly unacceptable. If it does correctly state Dr Williams’ practice, then on the evidence available to us his practice is completely out of line with the practice accepted by other pathologists to be the standard. It is likely to mislead others, who may work on the same case and who will be denied the opportunity of considering the material in the way that Dr Williams explained that he found necessary, in reaching their own properly informed conclusions. It runs a significant risk of a miscarriage of justice. It is tantamount to saying “If I can discount it, nobody else need consider it”. As an approach it only has to be voiced for the inherent danger to be obvious.
168.
In so far as Dr Williams seems to suggest that the onus was on the defence experts to ask questions of him that would have revealed the existence of this information, we reject his contention. The evidence from the doctors quoted above shows the extent to which doctors reviewing the matter at a later stage are dependent upon the pathologist who conducted the original post-mortem to draw to their attention not only any material which justifies the original pathologist’s conclusion but also any which reveals any abnormality that might need to be considered before being discounted. Where tests have been carried out and reported upon to the pathologist, his responsibility to make that material available for consideration by others is a clear one and his failure to do so may well mislead them into thinking that there have been negative findings when that is not the case.
169.
Finally in relation to Dr Williams’ involvement with this case, it is perhaps pertinent to record an overview of the pathology evidence expressed by Professor Byard a Specialist Forensic Pathologist at the Forensic Science Centre in Adelaide, Australia, who has particular expertise in cases of sudden infant and childhood deaths. He had been sent the papers in this case by the appellant’s solicitors. His view was:
“Unfortunately there appears to have been significant and ongoing problems in the investigation of these deaths. Standard protocols were not followed and essential steps such as routine dissection and histology were omitted which prevented verification of alleged autopsy findings. As well, a number of potentially important diagnoses and conclusions were altered over time. For example, Christopher’s initial cause of death of lower respiratory tract infection was withdrawn, observations of no significant haemorrhage within his lungs were changed to marked haemorrhage, …. The finding of retinal haemorrhages in Harry which was vital to sustain the diagnosis of shaken-impact syndrome was altered to no haemorrhage, brain lacerations were found to represent postmortem artefact, swelling of the spinal cord was not present and bruising of paraspinal tissues was also not able to be substantiated. This is not a unique situation with statements in the literature in recent years that ‘investigations into the pathology and circumstances of sudden infant death are often scanty and inexpert’ with significant omissions being documented when cases were audited. The Clark brothers demonstrate difficulties that may arise if cases are not fully investigated with all of the results being clearly summarised and discussed in the autopsy report. Trying to clarify findings, diagnoses and circumstances of death at a later stage may simply not be feasible due to a wide variety of possibilities other than inflicted injury.”
170.
Those observations substantially mirror our own views. Whether it would have been possible to ascertain with certainty the cause of death in either or both cases if a greater degree of expertise had been demonstrated and care taken in the examination, recording of results and consideration of the options we now find it impossible to say.
171.
If the microbiological results had been considered, as they should have been at the time, then it seems highly likely that further tests would have been carried out at the time. It was the fact that such tests could no longer be undertaken as a result of the failure by Dr Williams to disclose the information that lay at the heart of the Crown’s decision not to seek a re-trial in this case. They were also properly aware of the publicity that this case has attracted and of the resulting difficulty in obtaining a jury that would be free from any possible influence arising from such publicity. We endorse their decision not to seek a re-trial. It was clearly the right and proper course for the Crown to take. In any event, we would have taken a great deal of persuading that on the state of the evidence as we now know it to be, any jury could properly have been sure that either or both of these children were murdered. When the medical evidence is as divided as it is in this case, it seems to us that it would in all probability be impossible even if the case was reheard to reach a conclusion with the required degree of certainty about this matter.
Statistical evidence
172.
Finally we should say a little about the statistical evidence led before the jury. The matter was the subject of only brief argument before us and we certainly heard none of the evidence.
173.
It is unfortunate that the trial did not feature any consideration as to whether the statistical evidence should be admitted in evidence and particularly, whether its proper use would be likely to offer the jury any real assistance. Inherent in the evidence were dangers. The jury were required to return separate verdicts on the two counts but the 1 in 73 million figure encouraged consideration of the two counts together as a package. If the jury concluded that one or other death was not a SIDS case (whether from natural causes or from unnatural causes), then the chance that the other child’s death was a SIDS case was 1 in 8,543 and the 1 in 73 million figure was wholly irrelevant.
174.
In any event, juries know from their own experience that cot deaths are rare. The 1 in 8,543 figure can do nothing to identify whether or not an individual case is one of those rare cases.
175.
Generally juries would not need evidence to tell them that two deaths in a family are much rarer still. Putting the evidence of 1 in 73 million before the jury with its related statistic that it was the equivalent of a single occurrence of two such deaths in the same family once in a century was tantamount to saying that without consideration of the rest of the evidence one could be just about sure that this was a case of murder.
176.
If the figure of 1 in 73 million accurately reflected the chance of two cot deaths in the same family, then the whole of the CONI scheme was effectively wasted effort. Seeking to provide guidance and monitoring against the possibility of a second cot death would be taking precautions against a risk that could effectively be discounted.
177.
Like the Court of Appeal on the first occasion we are quite sure that the evidence should never have been before the jury in the way that it was when they considered their verdicts. If there had been a challenge to the admissibility of the evidence we would have thought that the wisest course would have been to exclude it altogether.
178.
The argument before us would have addressed the question whether the 1 in 73 million figure was misleading in itself quite apart from the use made of it at trial. On the material before us, we think it very likely that it grossly overstates the chance of two sudden deaths within the same family from unexplained but natural causes. There is evidence to suggest that it may happen much more frequently than suggested by that figure although happily the risk remains a relatively unlikely one. The figure of 1 in 73 million was disputed by Professor Berry in his evidence who pointed to the obvious dangers of simply multiplying the risk of one such recurrence by the same figure to obtain the chance of two such deaths. Quite what impact all this evidence will have had on the jury will never be known but we rather suspect that with the graphic reference by Professor Meadow to the chances of backing long odds winners of the Grand National year after year it may have had a major effect on their thinking notwithstanding the efforts of the trial judge to down play it.
179.
The Court of Appeal on the last occasion would, it seems clear to us, have felt obliged to allow the appeal but for their assessment of the rest of the evidence as overwhelming. In reaching that conclusion the Court was as misled by the absence of the evidence of the microbiological results as were the jury before it. We are quite satisfied that if the evidence in its entirety, as it is now known, had been known to the Court it would never have concluded that the evidence pointed overwhelmingly to guilt.
180.
Thus it seems likely that if this matter had been fully argued before us we would, in all probability, have considered that the statistical evidence provided a quite distinct basis upon which the appeal had to be allowed.
Conclusion
181.
For the reasons we have explained we are quite sure that the Crown was right to recognise that these convictions could not be sustained once Professor Morris’ evidence had been tested in cross-examination and further right not to seek a retrial of these matters. For these reasons we allowed the appeal and quashed the convictions.
182.
We are aware that there is public speculation as to whether other convictions of mothers for killing their babies where the babies have died sudden deaths, are similarly unsafe. The matters to which we have referred are directly referable only to this case. If any other case is brought before this Court, it will receive the same anxious scrutiny by the court that we would like to think we have given to this case. | {"ConvCourtName":["Crown Court at Chester"],"ConvictPleaDate":["1999-11-09"],"ConvictOffence":["Murder of Christopher Clark","Murder of Harry Clark"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":[],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[33,34],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Relative"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[0,0],"VicJobOffence":["Child"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical expert testimony","Pathology reports","Statistical evidence"],"DefEvidTypeTrial":["Medical expert testimony","Alternative medical explanations"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no relevant previous convictions"],"VicImpactStatement":[],"Appellant":["Appellant"],"CoDefAccNum":[1],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Non-disclosure of microbiological evidence","Fresh evidence undermining safety of conviction","Misleading statistical evidence presented to jury"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Failure to disclose microbiological evidence relevant to cause of death","Fresh expert evidence raised real possibility of natural causes","Statistical evidence misled jury"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM
THE CROWN COURT AT WOOLWICH
[2023] EWCA Crim 1236
No. 202203706 B4
Royal Courts of Justice
Thursday, 5 October 2023
Before:
LORD JUSTICE WARBY
MR JUSTICE MURRAY
HIS HONOUR JUDGE MENARY KC
(
RECORDER OF LIVERPOOL
)
REX
V
MONICA WILLIAMS
__________
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_________
MR K. BARRY
appeared on behalf of the Appellant.
MR N. JONES
appeared on behalf of the Respondent.
________
JUDGMENT
LORD JUSTICE WARBY:
1
This is an appeal against conviction by Monica Williams, now aged 57.
2
In November 2022 she was tried in the Crown Court at Woolwich on two counts of fraud contrary to
s.1
of the
Fraud Act 2006
. On 18 November 2022 she was convicted on one of those counts and acquitted on the other. She was later sentenced to 18 months' imprisonment suspended for two years.
3
She now appeals against conviction on two grounds: that the judge misdirected the jury by failing to give them certain directions, and that the jury's verdicts were fundamentally inconsistent so that the conviction is unsafe.
4
The charges arose from the appellant's tenancy of a property at 44 Etta Street in Deptford, London SE8 ("Etta Street") which belonged to the London Borough of Lewisham ("the Council".)
5
On 26 October 2006 the appellant entered into a tenancy agreement with the Council in respect of Etta Street. It was a term of the agreement that the appellant must live in the Etta Street property as her only or principal home. Accompanying the agreement was something called a “sign-up sheet” with a declaration which said "I do not lease/own any residential property nor am I the tenant of any residential property." Below that was what appeared to be the appellant's signature. These were the facts that were presented to the jury in opening.
6
In 2010 and again on 3 January 2016 the appellant made a Right to Buy application in respect of Etta Street. Her 2016 application asserted that she was occupying the property as her only or main home.
7
In 2019 the Council became suspicious that the appellant might have misstated the position and that she might have failed to comply with her tenancy obligations. They undertook investigations which yielded evidence tending to support that view:
(1)
In February and April of 2019, a tenancy audit officer called Cooper made six unannounced visits to Etta Street, finding nobody there.
(2)
It was ascertained that Land Registry records showed that from 25 November 1988 the appellant and one Junior Morrison were the registered owners of a property at 86 Spencer Road in Ilford, Essex. From 23 September 1998 the appellant's Student and Graduate Services account was registered to that address and on 7 February 2002 a mortgage application form was submitted to the Abbey National in respect of that property in the names of Junior Morrison and the appellant purporting to bear their signatures. At the time the property was mortgaged to Santander PLC.
(3)
Land Registry records further showed that from 25 April 2003 the appellant and Junior Morrison were the registered owners of a property at 76 South Park Road, also in Ilford. On 26 February 2006 a personal bank account in the appellant's name was registered at this address. In February 2018 a flexible savings account was registered at number 76 South Park Road in the names of the appellant and Junior Morrison, and children's savings accounts were also registered at this address in the names of the appellant and each of her children. At the time of trial this property had a charge in favour of The Mortgages Business PLC.
(4)
On 16 May 2019 Mr Cooper went to 76 South Park Road where a woman answered the door but declined to produce ID and shut the door on Mr Cooper.
(5)Mr Cooper later went to Etta Street. On a couple of visits he found nobody at home. When he attended on 3 June 2019 by appointment, he was met by a woman wearing a blonde wig whom he said was the same woman who had answered the door in South Park Road 18 days earlier. He said he had seen that same woman leaving Etta Street that evening without the wig. The prosecution case was that this woman was the appellant.
8
Interviewed in July 2019 at the Council's offices the appellant's account was that the Ilford properties had been purchased and put in her name without her knowledge. She did not know how her name came to be on the registered title for the properties. She had visited both properties many times, but she had never lived at South Park Road. That property was tenanted. The rent was paid to the appellant. The mortgage was paid by Junior Morrison who was the father of her children but not her partner. 86 Spencer Road was also tenanted. The appellant received the rent and had recently been paying the mortgage on that property. As for the Right to Buy form, a friend (whom she named) had completed this for her because the friend "knew the process".
9
The indictment contained the following allegations:
(1)
Count 1 alleged that, dishonestly and intending to make a gain for herself or another the appellant failed between 15 January 2007 and 16 May 2019 to disclose to the Council information which she had a legal duty to disclose namely that she had stopped using 44 Etta Street as her only or principal home.
The prosecution case was that at some point in this period the appellant had moved out of Etta Street and begun to reside at 76 South Park Road. She was under a legal obligation to disclose this, it was said, because it would have affected her entitlement to remain a tenant of Etta Street, which was dependent on her living at that address as her only and principal home. The prosecution alleged that her failure to make such disclosure was dishonest.
(2)
Count 2 alleged that on or about 3 January 2016 the appellant committed fraud in that, dishonestly and intending thereby to make a gain for herself or another, she made a representation within her Right to Buy application which she knew to be untrue or misleading, namely that she was occupying Etta Street as her only or main home.
The prosecution case was that on the date specified in this count the appellant knew full well that she was not occupying Etta Street as her only or main home and was therefore not eligible to buy it under the scheme. The allegation was one of deliberate deception in order to make a gain for herself.
10
The appellant's evidence was that she had not signed the sign-up sheet attached to the tenancy. But she did not dispute what the tenancy agreement said. The centrepiece of her defence was that Etta Street was and remained her only or main home from the day she moved in and throughout the relevant period. She was probably out when Mr Cooper made his unannounced visits to Etta Street. She was the person he saw there wearing a hairpiece, but there was nothing suspicious about that, as wearing a hairpiece was something she often did. She was not the person seen by Mr Cooper at 76 South Park Road. She said she had never lived at either of the Ilford properties. She had disclosed her true connections to those properties to the Council in 2010 when she made her first Right to Buy application. So far as count 1 was concerned, therefore, her case was that she had no duty to disclose anything and did not act dishonestly in failing to do so.
11
As to count 2,the appellant accepted in her evidence that if she had known that Etta Street was no longer her only or main home then her statement in support of the Right to Buy application would have been dishonest and she would be guilty as charged. But, she said, Etta Street always was her only or main home.
12
As to what she had said in interview the appellant said that any inconsistency between that and her evidence at trial could be explained by the fact that she had never been interviewed before and felt sick with her nerves at the time.
13
In support of her case the appellant also relied on a large body of correspondence addressed to her at Etta Street and various agreed facts. These included that she had been the registered Council taxpayer at Etta Street throughout; that she had never been on the electoral roll for either of the Ilford addresses; and that a forensic document examiner instructed by the prosecution had compared the signature on the Abbey National application form with samples of the appellant's handwriting and had been unable to determine whether or not it was her signature, the evidence being inconclusive.
14
The judge began his summing up with conventional legal directions including the standard directions that decisions as to what the evidence proved and did not prove were for the jury alone; that the jury did not have to accept or reject all of the evidence of any given witness; and that they should consider each of the counts on the indictment separately and did not have to reach the same verdict on each.
15
The judge then gave the jury written directions in the form of a document entitled "Definitions and Route to Verdict", which he read out to them. This had been the subject of prior discussions with Counsel. Counsel for the defence had made written representations about it, some but not all of which the judge had accepted.
16
In its final iteration the route to verdict document had the following relevant features.
17
As to count 1, it identified the ingredients of the offence, namely that the appellant (i) failed to disclose information which she was under a legal duty to disclose (ii) did so dishonestly and (iii) intended by failing to disclose the information to make a gain for herself. The document then summarised the rival cases, much as we have done, and went on as follows:
"No-one disputes that if MW moved out of 44ES and began to live somewhere else and deliberately failed to disclose it that elements (ii) and (iii) of the allegation would be made out - what is in dispute is (i). Thus as far as count 1 is concerned the principal question for you to answer is:
Has P proved to the necessary standard that MW ceased to live at 44ES as her only or principal home between the times alleged?
If the answer is yes then it is open to you to find her guilty upon count 1 - because all the elements that P has to prove would be established given the facts of this case.
If you are not sure that is proved, then you must acquit her. If you decide that she had 2 homes but that 44ES was her principal home then she must be acquitted. To that end you may ignore the word “only” in each count and concentrate upon the question has P proved that 44ES was not her main or principal home. That observation applies to both counts."
18
Turning then to count 2, the document identified three matters which the prosecution had to prove: (i) that MW made a false representation; (ii) that she did so dishonestly; and (iii) that she did so in order to make a gain for herself. The document then, summarised the rival cases of the parties and referred to the concession made by the appellant, that she would have been dishonest and guilty as charged if she had known that Etta Street was no longer her main home. The document went on to identify the principal question for the jury to answer on count 2 as follows:
"Has P proved that at the time she completed the paperwork MW knew that 44ES was not her only or principal home? If you are sure the answer to that question is yes then assuming that you find the other elements established it would be open to you to find her guilty. If it is no or we are not sure then you must acquit her on count 2."
19
The document also dealt with identification by Mr Cooper and the appellant's good character, in terms which have attracted no criticism.
20
After the jury had spent two and a half hours in retirement majority verdict direction had been given. Just over an hour later they returned verdicts of not guilty on count 1 but guilty on count 2.
21
The first ground of appeal is that the judge failed to give the jury appropriate directions, namely (i) that if they found the appellant not guilty of count 1 they must also acquit her of count 2; (ii) that "principal home" and "main home" mean the same thing, namely the house in which the appellant mainly lived; and (iii) that count 2 did not allege that the appellant had failed to disclose her association with the two Ilford properties.
22
The second ground of appeal is that the guilty verdict on count 2 was fundamentally inconsistent with the not guilty verdict on count 1.
23
We can understand why the single judge did not set limits on the scope of the leave to appeal being granted, but for our part we see no merit in the second and third complaints of non-direction. The judge gave the jury a clear and sufficient explanation of what was alleged in count 2 and what ingredients the prosecution had to establish to make it good. We see no reason to doubt that the jury well understood that a person's “principal” home and their “main” home are the same thing, and that they mean the place where the appellant mainly lived. These points were made sufficiently clear in the summing up in any event and Mr Barry did not press this ground orally, having had the opportunity of reviewing the transcript. We are unable to accept the suggestion that the judge was required to provide the jury with any further explanation of count 2, setting out what it did
not
allege. There was nothing in the circumstances of the case that called for any such direction.
24
The remaining grounds of appeal are closely related to one another. It is convenient to begin with the allegation of inconsistent verdicts.
25
The test to be applied by this court when an appellant alleges that her conviction on one count is inconsistent with her acquittal on another is clear. The law was examined in detail in
R v Fanning
[2016] EWCA Crim 550, [2016] 1 WLR 4175, where many authorities were explored and explained. The essential points established by that case, which call for no elaboration today, are these:
(1)
The appellant bears the burden of satisfying the court that the two verdicts cannot stand together.
(2)
What the appellant must show is that no reasonable jury which had applied their minds properly to the facts in the case could have arrived at the conclusion they did.
(3)
But verdicts are not to be treated as inconsistent if the jury had been sure about some parts of the evidence given by a witness but unable to be sure about other aspects of that evidence.
26
It is no part of the test that the jury or the Court of Appeal is bound by any concessions made by the appellant in evidence at the trial, or by how the case was argued by Counsel, or by how the factual issues were described to the jury by the judge. The test is stated in terms of how a reasonable jury might rationally respond to the facts of the case. As it is normally the function of the jury to determine what are the facts of the case, that would seem to mean, in most cases at least, the evidence in the case.
27
Applying these principles to the case before the court, our conclusions are these:
(1)
The one critical factual issue in the case, as everyone agreed, was whether the appellant was living at Etta Street as her main residence throughout the period covered by count 1. If the jury found that this was or might be the case the appellant was entitled to be acquitted on both counts. She could not be found guilty of any failure to disclose, nor could the representations she made in the Right to Buy form be found to be false. The appellant could not be convicted on either count unless the jury was sure that she was not living at Etta Street as her main residence at the time stated in that count.
(2)
If, on the other hand, the jury were sure that Etta Street was
not
the appellant's main residence throughout the period specified in count 1 a finding of non-disclosure for the purposes of that count was logically inevitable, and if the jury were sure she was not living there on 3 January 2016 a finding of misrepresentation for the purposes of count 2 was equally inevitable.
(3)
But that was not the whole picture. Even on these assumptions count 2 would still raise the further issues of whether any positive misrepresentation was not just false but also dishonest and made for to gain. Count 1 would raise the further issues of whether any passive failure to disclose the true position amounted to a breach of a legal duty and, if it did, whether that was dishonest conduct engaged in with a view to gain.
(4)
On some of those matters the appellant had made concessions in the course of her evidence. But these were not binding on the jury, nor did the judge direct them to that effect. He did direct them to focus on what we have described as the critical factual issue. But he did not direct them that if they were persuaded of the prosecution's case on that issue they must convict on each count. What he said about that scenario was that in the light of the concessions made by the appellant it “would be open" to the jury to convict.
(5)
There was evidence on the basis of which a reasonable jury could be sure that Etta Street was
not
the appellant's main residence on 3 January 2016. As a matter of logic, a jury sure of that would have to conclude that the representation made in the appellant’s Right to Buy form was false. It will be irrational to do otherwise. Although it did not follow necessarily, that jury might well conclude that the representation was not only false but also dishonest, and made with a view to gain, so that count 2 was made out.
(6)
That analysis would explain the verdict on count 2.
(7)
The same jury might, however, have been unpersuaded that the appellant had a positive legal duty to disclose to the Council that she was non-resident on 3 January 2016, or indeed any other date within the period covered by count 1. This was a question of law which seems never to have received any detailed attention from Counsel or the judge in court during the trial. We have explored the issue in the course of argument today. It has emerged from scrutiny of the trial bundle by counsel for the appellant that there was a term expressly imposing on her an obligation to disclose within 28 days any long-term change in the persons occupying the property. But we have not been shown that this was drawn to the jury’s attention, other than being placed in the jury bundle. It seems that all the jury was ever told about the issue was that the prosecution’s case was that the duty arose because residing somewhere else would have affected the appellant’s right to remain as a tenant of Etta Street, and that the defendant did not dispute this. The judge did not direct the jury that they must accept the prosecution's point of law.
(8)
A rational jury might, further or alternatively, have been unsure that the appellant was aware that she had any legal duty to disclose the fact of her non-residence at Etta Street. The jury might consequently or for some other reason, have been uncertain that the appellant’s failure to make such a disclosure was dishonest. We have not been shown the detail of the concessions she made on the issue of dishonesty. But it is clear that her concessions on that issue must necessarily have been hypothetical and so far as the information before us goes, they appear to have gone only to count 2. The issue of dishonesty on that count was not the same as the issue on count 1.
(9)
These considerations would explain the verdict on count 1.
28
In the light of these conclusions, we can deal shortly with the one remaining point. It is now said that the judge was obliged to direct the jury that acquittal on count 1 would necessarily lead to acquittal on count 2. But this is not a submission that was made to the judge, either before he gave the jury their legal directions or afterwards. It is, as Mr Barry candidly conceded, an afterthought. For Nor, for the reasons we have given,is this a correct analysis of the position as it stood on the evidence and argument in this case. The judge was therefore entitled, indeed correct, to direct the jury as he did in the conventional way, emphasising that the two counts were separate and independent of one another and different verdicts could be arrived at on the two counts.
29
For those reasons this appeal is dismissed.
_____________ | {"ConvCourtName":["Crown Court at Woolwich"],"ConvictPleaDate":["2022-11-18"],"ConvictOffence":["Fraud contrary to s.1 of the Fraud Act 2006"],"AcquitOffence":["Fraud contrary to s.1 of the Fraud Act 2006"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Woolwich"],"Sentence":["18 months' imprisonment suspended for two years"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Female"],"OffAgeOffence":[56],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":["1"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Land Registry records","Council tenancy records","Witness testimony (Mr Cooper)","Bank account records","Forensic document examiner report","Correspondence addressed to defendant"],"DefEvidTypeTrial":["Defendant testimony","Correspondence addressed to defendant","Agreed facts (council tax, electoral roll)"],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge misdirected jury by failing to give certain directions","Jury's verdicts were fundamentally inconsistent"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge gave clear and sufficient explanation of the law","Jury could rationally reach different verdicts on the two counts","No requirement for judge to direct that acquittal on one count required acquittal on the other"]} |
No:
200900172/A5
Neutral Citation Number:
[2009] EWCA Crim 1533
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 30th June 2009
B e f o r e
:
LADY JUSTICE HALLETT
MR JUSTICE JACK
MR JUSTICE BLAKE
- - - - - - - - - - - - - - -
R E G I N A
v
DARRAN MICHAEL SIMS
- - - - - - - - - - - - - - -
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 Eaton
appeared on behalf of the
Applicant
Mr G Pounder
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE BLAKE: This is a renewed application for permission to appeal sentence imposed on this applicant on 2nd October 2008, in the Crown Court at Basildon, when he was convicted, following a trial of causing death by dangerous driving. On 12th December 2008 he was sentenced by the trial judge, His Honour Judge Overbury, to 8 years' imprisonment, with a direction that the 71 days spent on remand should count towards sentence. He was disqualified from driving for 10 years and until an extended re-test was taken.
2.
The events that led to this conviction occurred on 18th April 2007 in Lee-on-Sea, where a victim, a 20-year-old girl, had met her fiancée and friends for lunch and walked across a pedestrian crossing in the centre of town and was waiting on a traffic island known as a safe refuge. This applicant was approaching in his Rover motorcar. He drove straight down the middle of the road, straddling the white line, mounted the traffic island, knocked down a traffic sign pole, which when it was knocked over struck the deceased victim, from which she died very shortly afterwards. He was found to be vacant and in a stooper and said to those at the scene that he must have blacked out, and raised the question of whether he could have had an epileptic fit. He indicated that he had memory losses before.
3.
It was the reconstruction of the medical evidence relating to the condition of this applicant that formed the basis of the sentencing judge's conclusions in the case. He had regard to the Definitive Guidance issued in August 2008 by the Sentencing Guidelines Council for causing death by dangerous driving. This reflecting the past case law of this court and the increasing public concern about sentences for this offence, now classed this offence into three levels of conduct: level 3, the lowest, driving with a significant risk of danger; level 2, the immediate level, driving creating a substantial risk of danger and level 1, most serious under the guidance, which is said to be described as follows "the most serious offences encompassing driving that involved deliberations to ignore or flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others." If a case fell into that category then the sentencing range of 7 to 14 years custody and starting point was 8 years. The learned judge concluded that the driving did fall into that category in this case and the reasons for so concluding was the evidence that had been deployed at trial that he was in the best position to assess that dealt with the medical history of this applicant.
4.
Until the autumn of 2005 there was no relevant medical history but in October 2005 this applicant was referred to the Southend Hospital, where he was seen by a neurologist, Dr Bannister, who referred him to have an MRI scan because of incidents of nocturnal blackouts or disturbed sleep pattern which may be indicative of epilepsy. He was advised, according to Dr Bannister, on that first occasion not to drive in the light of the undiagnosed symptoms. He returned to that hospital and Dr Bannister in February 2006. There was a mix up with his results and someone else that had caused the applicant some concern as to those matters but nevertheless, according to Dr Bannister and disputed at trial, but the judge concluded Dr Bannister's evidence was to be relied upon, he had again been told that he should not drive whilst further enquiries were being made as to his underlying condition. The learned judge points out that the applicant's girlfriend had indicated in that medical interview that the applicant had driven despite the earlier advice and was given strong advice that he should not do so until all these matters had been properly investigated.
5.
By January 2007 there were reports of him biting his tongue during his sleep, which would be a clear indicator of an epileptic episode, nocturnal epilepsy. He attended the accident and emergency departmental at Southampton General Hospital. He there saw Dr Kelly, who again impressed upon him that his neurological state would have to be properly examined and until it was examined and a clear diagnosis and conclusion and medical were given he should not drive. It is at this point necessary to observe that the applicant's occupation was a train driver and he was being told that he should not drive trains or drive cars. In respect of the latter, Dr Kelly went so far as to enforce the advice given to print out from the DVLA website the guidance that people who have had epileptic episodes should not drive within 12 months of that episode until medical advice had reached a conclusion and proper medication, if any available, had been administered. He was handed that printout according to the sentencing judge's account of the matter.
6.
That would then have been the third occasion he was told not to drive the car. He then was invited to go back to the GP and get a reference to further consultant. That happened. There was another occasion in January when there were other severe pains. On 8th February 2007 Dr Capildeo, another consultant, took him off work and told him not to drive (the fourth warning) and then there was a complication as to whether any of the symptoms might have been caused or contributed to by a chest infection for which he was seen by a fifth doctor, a Dr Wicks. He was operated upon and discharged in March 2007 but he had another episode consistent with a seizure and tongue biting. He saw Dr Wicks on 22nd March 2007 and Dr Wicks (that is the shortened version name was used at trial) assessed the seizure was not related to the infection. He again stressed that he would have to have the cause of his seizure professionally identified and assessed and warned him again not to drive a vehicle. We are told that he saw Dr Wicks again on 5th April where that warning was emphasised.
7.
Despite that consistent set of medical advice not to drive a motor vehicle, and indeed not to drive a train, as part of his duty as a train driver, last emphasised on 5th April, this applicant returned to work on 10th April. He was then assessed by his employer's medical advisor on 13th April. It appears that the medical advisor passed him as fit for work (unrestricted) but did so in ignorance of the fact that there had been the two occasions of nocturnal episodes and apparent seizures and tongue biting and at trial Dr White indicated that had he been aware of that he would not have admitted this applicant to have driven either a train or a car.
8.
On the other hand, it is apparent that this applicant at least did tell the doctor concerned that he had been having consultation with others and medical consent forms were signed to enable the matter to be assessed. But what Dr White, who was the medical advisor for the employers was not told was that as recently as 5th April, some eight days previously, the surgeon who had been concerned with his chest infection and treatment had said that had nothing to do with his epileptic seizures or his seizure apparently epileptic in nature and that he should not drive. So any assistance the applicant may have obtained from the employer's approach to this matter is undoubtedly significantly affected by the fact that important information was apparently withheld on the judge's finding deliberately withheld from Dr White. He returned and then five days later the fatal crash in the circumstance described above occurred.
9.
It has been submitted in support of this renewed application that the learned judge was wrong to place this offending at level 1, the most serious offending. It is submitted on his behalf that the guidelines themselves allocate driving whilst ability to drive was impaired as a result of consumption of alcohol or drugs, failing to take prescribed medication or as a result of a known medical condition at level 2 and some reference is made to the older authorities of
R v Cooksley
and
R v Richardson
[2007] 2 Cr App R(S) 36, page 211, for the proposition that under the previous categorisation, this class of conduct did not fall at the very highest level available under the guidelines.
10.
However there has been drawn to our attention two cases where driving by people who have been diagnosed as epileptics and who had failed to take medication had led to sentences at the highest level of culpability. They are first
R v Akinyeme
[2007] EWCA Crim 3290
, where on a late plea of guilty, a sentence was reduced from 8 years to 7 years, suggesting that a starting point of substantially in excess of 8 years would otherwise might have been appropriate, and
R v Colliss
[2006] EWCA Crim 206
, where there was a plea of guilty and 7 years' imprisonment was imposed and at paragraphs 8 to 10 of the judgment, it is apparent that but for the plea, something in the order of 10 years might have been appropriate. I am afraid the reference
R v Akinyeme
will be amended.
Colliss
was when the sentence of 7 years WAS imposed. In the case of
Akinyeme
the sentence was different but indicating that a starting point of 6 years' credit.
11.
In our judgment, where a person has an undiagnosed medical condition and is advised repeatedly, by competent medical experts, that until the diagnosis is complete or any medication is identified that he should not drive, that to drive would be in breach of the DVLA guidance and that he by driving run the risk of an epileptic blackout, which is a danger to members of the public, then to drive in defiance of that advice is conduct that is capable, depending upon the facts of bringing it within level 1, the most serious offences encompassing driving which involved a deliberate decision to ignore or a flagrant disregard for the rules of the road. Here, of course, it is not the driving, the manner of the manipulation of the vehicle that is the aggravating feature that puts it into that level. Nor is this a case where that conduct had been aggravated either by previous convictions, previous for driving, previous crashes whilst with a medical condition or the taking of alcohol. It may well be read that a medical condition alone and driving in disregard of it will in all the circumstances entitle the sentencing judge to put him at level
1 but this was not simply a failure to take medication on more than one occasion, it was a judge's assessment of the case, a deliberate disregard of persistently given medical advice. The advice was given for the obvious reason that anyone driving with his condition might lose control of the vehicle, with fatal consequences. That is precisely what happened and a young woman's life was taken away at tragic loss to her family and her friends, in circumstances that the public and the Sentencing Guidelines Council have identified requires appropriate measure of punishment.
12.
In our judgment, notwithstanding the sustained and helpful submissions that have been advanced in pursuit of this application this morning, on the judge's findings of facts in this case, that he was careful to spell out and in our judgment it was well open to him to reach this persistent conduct, met the level of flagrant disregard and in that context it fell within level 1 and therefore the sentence after trial was the same as the starting point and well within the range and therefore cannot be described as manifestly excessive. For those reasons this application is dismissed. | {"ConvCourtName":["Crown Court at Basildon"],"ConvictPleaDate":["2008-10-02"],"ConvictOffence":["Causing death by dangerous driving"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[71],"SentCourtName":["Crown Court at Basildon"],"Sentence":["8 years' imprisonment","disqualified from driving for 10 years and until an extended re-test was taken"],"SentServe":[],"WhatAncillary":["disqualified from driving for 10 years and until an extended re-test was taken"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[20],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Medical evidence","Expert testimony"],"DefEvidTypeTrial":["Defendant claimed blackout/epileptic fit"],"PreSentReport":[],"AggFactSent":["Deliberate disregard of persistent medical advice not to drive"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge wrongly placed offence at level 1 of seriousness under guidelines"],"SentGuideWhich":["Sentencing Guidelines Council Definitive Guidance for causing death by dangerous driving (August 2008)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Persistent conduct met the level of flagrant disregard; sentence after trial was the same as the starting point and well within the range; cannot be described as manifestly excessive"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence was well within the range for level 1 offences; judge's findings were open to him; not manifestly excessive"]} |
Neutral Citation Number:
[2020] EWCA Crim 482
Case No: 201900136, 201900155,
201900178, 201900340, 201900422,
201901632, 201904213
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT TEESSIDE
Her Honour Judge Sherwin
Before:
LORD JUSTICE SIMON
MR JUSTICE FRASER
and
MR JUSTICE HILLIARD
-
- - - - - - - - - - - - - - - - - - - -
Between:
Regina
and
Ryan Johnson
Paul Casey
Andrew Belford
Robert Anderson
Darren McBride
-
- - - - - - - - - - - - - - - - - - - -
-
- - - - - - - - - - - - - - - - - - - -
M Crowe
for
Johnson
G Gatland
for
Casey
M Donkin
for
Belford
AJ Davis
for
Anderson
D Lamb
for
McBride
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 01/04/2020
Respondent
Appellants
P Makepeace QC
and
R Herrmann
for the
Crown
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Note: There is an order made at Teesside Crown Court on 9
th
January 2019 under
section 4(2) of the Contempt of Court Act 1981
postponing publication of the identification of the person referred to as “A” in this judgment as the witness in these proceedings until the conclusion of linked trials.
Lord Justice Simon:
Introduction
1.
On 18 December 2018 in the Crown Court at Teesside, before Her Honour Judge Sherwin, the appellants, Ryan Johnson, Robert Anderson, Andrew Belford, Paul Casey and Darren McBride were convicted on count 1 of an indictment, which charged conspiracy to supply a controlled drug of class A (cocaine).
2.
On 29 January 2019, they were sentenced to the following terms of imprisonment: Johnson, 7 years; Anderson, 10 years; Belford, 7 years (to run consecutively to a sentence being currently served); Casey: 7 years; and McBride, 10 years.
3.
Johnson, Anderson, Belford and Casey appeal against conviction with the leave of the Single Judge. McBride’s application for leave to appeal against conviction (with an application for an extension of time of 314 days) has been referred to the full court by the registrar. We grant leave.
4.
Applications for leave to appeal against sentence by Anderson and Casey (both aged 46) have also been referred to the full court.
Background
5.
In 2014 and 2015, Durham Police investigated a suspected drug dealing operation. At that time, the focus of the investigation was on the activities of a man called Andrew Blake. As the investigation developed two other men, A and Christian Winter, were identified as being close to the heart of the operation.
6.
The prosecution of those identified by the investigation as being involved was named Operation Sidra; and in January 2016, A, Blake and others were charged, with among other offences, conspiracy to supply cocaine between 1 March 2014 and 1 June 2015.
7.
In late September 2016, A approached the police with a view to becoming an assisting offender under the terms of Chapter 2 of the Serious Organised Crime and Police Act (‘SOCPA’) 2005; and underwent the formal statutory procedure between October 2016 and the summer of 2017. He was interviewed on about 120 occasions; and eventually pleaded guilty to all the offences with which he was charged in Operation Sidra.
8.
In the course of the SOCPA interviews, A gave detailed information about the involvement of those already charged under Sidra, as well as others involved in his drug dealing network. A decision was taken by the Crown Prosecution Service to continue with the prosecution of those involved in Operation Sidra. This became known as Sidra 1, and concerned A’s closest criminal associates.
9.
The investigation and prosecution of others who had been named by A, including the appellants, became known as Sidra 2.
10.
The particulars of the Sidra 2 indictment, on which the appellants were charged was drafted in these terms:
Between the 1 January 2014 and 1 June 2015 conspired together with other persons to supply a controlled drug of Class A, namely cocaine, to another.
Dean Smart pleaded guilty to this offence.
11.
The prosecution made clear that those named on the Sidra 1 indictment were those included as the ‘other persons’ in the particulars of the conspiracy count on the Sidra 2 indictment.
12.
We turn then to the facts in more detail.
Sidra 1
13.
Sidra 1 concerned (amongst other charges) allegations that a number of men conspired together and with others to supply cocaine. A
maintained two safe houses where he stored cocaine, mixing agents and paraphernalia, such as cocaine presses and money. Those safe houses were run by Victoria Harding and David and James Murphy. The Murphys would also assist with the mixing of the drugs, and with delivery and collection. Winter was A’s right-hand man and assisted him in running the drugs business, making deliveries, collecting drugs and money for A, as well as assisting in the mixing of the cocaine.
14.
While A was abroad, in Ibiza in October 2014 and in Jamaica in November 2014, Winter took over the running of the operation, liaising by telephone with A and, on his behalf, with those to whom Winter supplied drugs, received money from or owed money to.
15.
In January 2015, A’s safe houses were raided by the police, who recovered drugs and other items. From about this time A began to use a man named Ian Ramshaw to assist him, both in providing a safe house and in assisting in delivering cocaine.
16.
During the period of the conspiracy A supplied cocaine to Andrew Blake, who was a major cocaine supplier in his own right and who also lent A large sums of money, at one time possibly approaching £100,000. Blake had his own customers for cocaine.
Sidra 2
17.
The information disclosed by A about the appellants was to the following effect.
Anderson
18.
He started to purchase cocaine from Anderson in the spring to early summer of 2014. Initially he bought 4½ ounces; this was as a way of building up trust. Thereafter, drugs were supplied on credit, and over time the quantities increased. A would mix the drugs before selling on to others.
19.
In November 2014 A went on holiday to Jamaica; and made arrangements by which Anderson, who was cautious about whom he dealt with, delivered 1kg of cocaine to A’s sister who gave him money and later pleaded guilty to money laundering. The drugs were subsequently collected by Winter and thereafter distributed to Andrew Blake, Dean Smart and the appellant, Paul Casey. When he returned from Jamaica, A continued to buy cocaine from Anderson.
Belford and McBride
20.
The prosecution case against these two was that they were in the business of supplying cocaine together. From early 2014, they sourced wholesale cocaine from A and thereafter supplied to others including a man called Owens.
Casey
21.
A said he supplied cocaine to Casey, and that he was one of the people named by A as an intended recipient of the cocaine sourced from Anderson whilst A was on holiday in Jamaica.
Johnson
22.
A said that
Johnson
was one of the people from whom he sourced cocaine.
Conspiracy
23.
The grounds of appeal against conviction are that the Judge erred in refusing an application to dismiss the cases against the appellants on the basis that there was no case for them to answer as the evidence stood at the conclusion of the prosecution case.
24.
Before turning to those submissions, it is convenient to summarise some of the statements of principle and observations of this court in relation to the charging of conspiracy.
25.
It is of the essence of a conspiracy that there must be an agreement to which the defendant is a party and that each defendant charged with the offence must be proved to have shared a common purpose and design, rather than similar or parallel purposes and designs, see for example,
Shillam
[2013] EWCA Crim 160
at [19]-[20].
26.
However, it is possible for the evidence to show the existence of a conspiracy of narrower scope and involving fewer people than the prosecution originally alleged, in which case it is not intrinsically wrong for the jury to return guilty verdicts accordingly:
Shillam
at [20].
27.
What are referred to as ‘chain’ conspiracies and ‘wheel’ conspiracies are different in structure. In a chain conspiracy, A agrees with B, B with C and C with D. In a wheel conspiracy: A at the hub recruits B, C & D. In each it is necessary that the defendants must be shown to be a party to the common design and aware that they are part of a common design to which they are attaching themselves: see for example Blackstone Criminal Practice 2020 A5.49.
28.
The need to show a common design and an awareness of the common design highlights the danger to the prosecution of charging a single conspiracy rather than what may be a series of substantive offences or different conspiracies, when the offending involves a group of people over a substantial period. Such offending may, on proper analysis, be the result of a series of transactions or agreements, and a single conspiracy may be impossible to prove, see
Mehtab
[2015] EWCA Crim 1260
.
The application
29.
The appellants argued that there was no evidence of a common intention or purpose which involved them and their alleged co-conspirators, and accordingly no case for them to answer. It was not sufficient for the prosecution to say, in broad and unspecific terms, that each defendant ‘intended to supply cocaine’, and that this was the common purpose.
30.
The prosecution’s response was that the common purpose or design was one that also encompassed the defendants in the Sidra 1 trial. It was the wholesale acquisition of cocaine; its dilution (and on occasion without dilution); and onwards transmission to others with a view that they should then, in turn, supply others with the cocaine, within a relatively confined geographical area. The prosecution relied on
Greenfield
(1973) 57 Cr.App.R 849
for the proposition that where there was evidence on which, if uncontradicted, a reasonably minded jury could convict a defendant of the conspiracy charged, despite evidence of the existence of a different conspiracy, then the judge should allow the case go to the jury.
The Judge’s ruling
31.
She began by observing that she had been referred to a number of cases:
Meyrick and Ribuffi
(1929) 21 Cr App R 94
;
Greenfield
(above);
Griffiths and Others
[1965]
3 W.L.R. 405
;
Shillam
[2013] EWCA Crim 160;
Mehtab
[2015] EWCA Crim 1665
and
Dad
[2017] EWCA 321. In order to sustain a charge of conspiracy, the prosecution had to prove: (i) that the defendant agreed with one or more others; (ii) that a course of conduct would be pursued which, (iii) if carried out in accordance with their intentions, would necessarily involve the commission of an offence; and (iv) proof of the intention to be a party to an agreement to do the unlawful act.
32.
The case of
Griffiths
made clear that all parties to the conspiracy must join in the same agreement, although conspirators might join and leave the conspiracy at different times. It was possible for a person to be guilty of conspiracy even where he did not know the full extent of the scheme; but he must know that there was a scheme which went beyond the illegal act that he agreed to do. Conversely, where the facts established that there was one or more persons at the centre of the unlawful activity and such persons dealt with other individuals who did not know each other and each was ignorant of the fact that the activities went beyond his own dealings, it would not amount to a single conspiracy. If that person did know that there were others and that the activity in which he took a part extended beyond his own dealings with the person or persons at the centre, then the evidence would disclose a single conspiracy.
33.
In
Shillam
, following a review of the authorities, the court had identified the following propositions: (a) a conspiracy required that the parties to it had a common unlawful purpose or design; (b) that meant a shared design, which was not the same as
similar but separate or different designs; (c) in the criminal law (as in the civil law) there may be an umbrella agreement pursuant to which the parties enter into further agreements which may include parties who are not parties to the umbrella agreement. So that A and B might enter into an umbrella agreement pursuant to which they enter into a further agreement between A, B and C, and a further agreement between A, B and D and so on. In that example C and D would not be conspirators with each other.
34.
The Judge also referred to
Greenfield
, in which it had been held that where there was evidence, upon which if uncontradicted, a reasonably minded jury could convict an accused of the conspiracy charged, despite evidence of the existence of a different conspiracy, then the judge should let the case go to the jury.
35.
This, the Judge said, was an issue that had to be addressed separately in the case of each defendant as the evidence was different for each.
36.
Given the verdicts in Sidra 1 and the guilty plea to count 1 in the present trial, a jury could be sure that a conspiracy existed.
37.
Furthermore, the Judge was satisfied that there was evidence sufficient to show a case to answer in respect of each of the appellants, which included evidence which showed an awareness of the common design.
Anderson
38.
The case against Anderson was that he supplied A. However, the prosecution case was not limited to that connection as the evidence, if accepted by the jury, showed that Anderson also dealt with Winter in A’s absence. Anderson was in regular contact with A while he was out of the country. The jury would be entitled to conclude that, given the amounts of cocaine supplied by Anderson to A and its high-level purity, that it would be diluted before being passed on to others further down the chain. Unchallenged evidence had been given by A that this was how the drugs supply chain worked and that he (A) was at a high level in those operations and not a street dealer.
39.
The evidence showed this happening, with arrangements for the onwards transmission of the cocaine and the return payment, ultimately to Anderson. The fact that payment to him was delayed was capable of raising the inference that he must have known of others who would ultimately be feeding money up the chain of supply to him. Even if Anderson could not be shown to have known that Blake, Casey and Smart were to have been in the chain of recipients of the cocaine he must, on the evidence, have known that some person or persons would have been.
Belford and McBride
40.
The evidence, if accepted by the jury, showed that they were wholesale purchasers of cocaine from A for the onward sale to others. It was through them that A first met Andrew Blake and went on to supply wholesale quantities of cocaine to him. Once the introduction had been made Blake raised concerns about the quality directly with A, but Belford and McBride were aware of the problem and made it clear that it was A’s problem to sort out. The evidence also showed the links with Winter when A was out of the country, and the importance that A placed on Belford, shown by this being the
first call he made on his return to the UK from Jamaica. There was also contact with Ramshaw once he became involved.
41.
There was clear evidence that Belford and McBride shared a common purpose with A and that they must have had some awareness of the scale of the operation and the various levels involved in it.
Casey
42.
The evidence against Casey showed that, during the indictment period, he was involved in receiving cocaine from A and passing it on. This was in such quantities as went beyond personal use. The evidence showed that Casey must have had some wider knowledge of the agreement: the shift to dealing with Winter when A was in Jamaica and the resumption of contact with A on his return. Casey was a recipient of the cocaine delivered to an address at Goswick Way and, whilst the evidence did not go as far as showing that he knew it came from Anderson, it would be a reasonable assumption that he must have known that A was sourcing the drugs from somewhere. Similarly, with the money being paid back up the line to A and onwards.
Johnson
43.
So far as
Johnson
was concerned, he
was alleged to have been a wholesale supplier of cocaine to A. The jury had evidence that he was connected to both A and Blake in the supply of cocaine. They had also heard evidence demonstrating his knowledge of the safe house at Carlton Crescent, his presence when A was cutting cocaine and his discovery that this was being done behind the back of Andrew Blake. Thereafter Johnson told Blake what A was doing, leading to a confrontation between them. That led to A going to Winter to obtain money. There was the familiar pattern of communication with Winter whilst A was in Ibiza and Jamaica, returning to communicating with A on his return home.
Submissions on appeal and discussion
44.
On behalf of the appellants, it was submitted that the evidence was capable of establishing that Anderson and Johnson were supplying drugs to A, who in turn was supplying drugs to Belford and McBride and to Casey, but that there was nothing to suggest that Anderson and Johnson were party to any agreement that involved the further onward supply by A to others; or that A was party to any agreement with Belford and McBride and with Casey that involved the onward supply of drugs by them. If, contrary to the submissions, the prosecution could overcome these hurdles, it was then argued that the evidence disclosed a series of separate agreements with A rather than any involvement in the larger conspiracy argued for by the Respondent.
45.
We have already indicated that Dean Smart pleaded guilty to involvement in the conspiracy charged in Count 1 which was of course evidence of its existence. In addition, A’s evidence was that the most common way for a recipient in a supply chain at this level to pay their supplier would be after an agreed period of time during which the recipient had himself supplied the drugs onwards and received payment which could then be used to pay the original supplier. That was potentially important evidence on the question of whether or not any of those concerned had an interest in
onward supply. On one view of the matter, onward supply was a necessary precondition to payment.
46.
A said that he had first received cocaine from Anderson in 2014. Initially, he was receiving quantities of 4 and a half ounces, usually with credit extended over a maximum of a week. As time built up, the quantities increased to 9 ounce and half kilo blocks. A would mix the drugs and pass them on to his customers. As we have said, when A was in Jamaica, Andrew Blake was contacting Winter who was in temporary charge of A’s operation. A spoke to Anderson to obtain drugs which were then to be supplied to Paul Casey, Dean Smart and Andrew Blake. Winter was to collect the money from the three of them and give it to Anderson. In our judgment, this was an example of the business practice that A had outlined at the start of his evidence - drugs would have to be supplied onwards before the original supplier could be paid. In all the circumstances, we are satisfied that there was evidence from which the jury would have been entitled to conclude that Anderson was party to a wider agreement involving A’s onward supply to others of the drugs with which Anderson had provided him. The scale of Anderson’s involvement was entirely consistent with the conspiracy charged in Count 1.
47.
In evidence, A said that in early 2014, he had supplied Belford and McBride with 3x 9 ounce blocks of cocaine. It had been mixed but then re-pressed to make it look like pure cocaine. A knew that they were going to supply it on. Subsequently, McBride said that the people to whom the cocaine had been distributed were complaining about the fact that the drug had been mixed. A was asked to go to a meeting with the people who had been supplied. One of them was Andrew Blake. Over the next few days, A made amends by supplying the original buyers with higher purity cocaine.
48.
A also said that Belford and McBride were supplying cocaine to a man called Swell. Sometimes A went with Belford and McBride to Swell’s house. They would give the drugs to Swell and sometimes Swell gave A the money.
49.
In our judgment, A’s involvement with those beyond Belford and McBride in the supply chain was clear evidence from which the jury would have been entitled to conclude that Belford and McBride were involved with A in a conspiracy to supply drugs, and not simply in receiving drugs from A without any involvement by A thereafter. A said that by the time of his arrest in 2015, he had been supplying Belford and McBride for over a year. It was properly open to the jury to conclude that they must have had an appreciation of the scale of the operation and that the scheme they were attaching themselves to went beyond their own acts of supplying with A.
50.
Ryan Johnson was another person who supplied cocaine to A in minimum quantities of 4 and a half ounces and up to 9 ounces or maybe more. A said that he would mix the drugs he got from Johnson and supply them on. A said that he owed Andrew Blake money. As a result, he was diluting drugs that he supplied to, amongst others, Blake. A said that Ryan Johnson became aware of this on the occasion when Johnson was present at one of the safehouses where A was processing the cocaine and to which we have already referred. After Johnson told Blake what was going on, A was threatened by Johnson and Blake. In our judgment, it was open to the jury to conclude from all of the evidence that Johnson knew about and had an interest in A’s activities with the drugs that Johnson had supplied to him, and was party to the conspiracy charged in Count 1.
51.
A said that he was supplying Casey because Casey had a network of people he could sell to and because he was a cash buyer. He supplied Casey with quantities between 4 and a half to 9 ounces and upwards. Those amounts were obviously consistent with Casey obtaining drugs for onward supply. Whilst it may have been open to the jury to conclude that A and Casey were parties to an agreement which involved Casey’s onward supply of the drugs, we do not think that the evidence in his case was sufficient to establish that Casey was party to the larger conspiracy. The particular features which have led us to different conclusions for the other appellants are not present for Casey. In our judgment, the judge ought to have acceded to the submission of no case to answer made on his behalf.
52.
We turn therefore to the application for leave to appeal against sentence made by Anderson. He also requires an extension of time of 67 days, which has been referred to the full court by the registrar. An explanation has been provided, and we will return to this after we have considered the merits of the application. As we have indicated, Anderson was sentenced to a period of 10 years’ imprisonment. The judge considered the Definitive Guideline for Drug Offences, and all the parties agreed that although these did not apply directly to offences of conspiracy, they provide what she described as “a useful starting point”. We agree. Anderson sold cocaine to A, in small quantities to begin with, starting in the spring or early summer of 2014. The quantities increased until they were half a kilogram of high purity at a time, which A would then mix, repress and sell on. Anderson had previous convictions of some age, mostly for dishonesty and violence, although one conviction was for the importation of cannabis for which he received a sentence of two years in 2000. She considered Anderson was at a high level in the supply of cocaine of high purity, and concluded that this was in a leading role and given the amounts – which totalled about 2 ½ kilos – was on the cusp of Categories 1 and 2.
53.
The grounds of appeal challenge both the description of Anderson being in a leading role, and also the categorisation of being on the cusp of Categories 1 and 2. It is said there was no evidence about the purity of the cocaine, and her conclusion that Anderson must have been close to the original source was unsupported. It is also said that the quantity, 2 ½ kilos, falls “well short” of Category 1.
54.
We do not consider the points raised on the application to be reasonably arguable. The judge had heard the trial and was ideally placed to identify the type of role occupied by Anderson. He was cautious with whom he dealt, and did so only in quantities of about ½ kg. He did however do so over a period in excess of one year. She considered all the features of the case and came to a common sense conclusion, which she was ideally placed to reach, and which was eminently justified. Further, the quantities used in the Guideline for Categories of harm for cocaine are 1 kg for Category 2, and 5 kg for Category 1. It is therefore clear that the quantity here, 2 ½ kg, does indeed fall between those two figures.
55.
We do not consider that it is reasonably arguable that this sentence was manifestly excessive or wrong in principle and we would refuse the application for leave.
56.
We shall however deal briefly with the extension of time required. This is 67 days. The explanation that has been provided is far from satisfactory from the court’s point of view, although it does clearly demonstrate that the delay is not remotely the fault of the applicant. He indicated his desire to appeal on 4 February 2019, well within time
which would expire on 22 February 2019. The next couple of months of delay, before the form was lodged some months later – the grounds are dated 29 April 2019, although Form NG was returned before that – were caused by acts, and failures to act, by the applicant’s legal representatives. Only some of that period is explained by a delay waiting for a transcript of the sentencing remarks.
57.
We make it clear that in this case, this delay has not caused the applicant prejudice as we would have dismissed the application even had it been made within time. However, we emphasise the importance of legal advisers observing time limits. This applicant had received a substantial prison sentence and he was entitled to have his advisers lodge an appeal in time, rather than having to seek an extension of time.
Conclusion
58.
We therefore grant McBride the necessary extension of time to appeal against conviction, but dismiss all the appeals against conviction save for Casey’s which we allow. We dismiss Anderson’s application for an extension of time to appeal against sentence, and his application for leave to appeal against sentence. | {"ConvCourtName":["Crown Court at Teesside"],"ConvictPleaDate":["2018-12-18"],"ConvictOffence":["Conspiracy to supply a controlled drug of class A (cocaine)"],"AcquitOffence":[""],"ConfessPleadGuilty":[],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Teesside"],"Sentence":["Ryan Johnson: 7 years imprisonment","Robert Anderson: 10 years imprisonment","Andrew Belford: 7 years imprisonment (to run consecutively to a sentence being currently served)","Paul Casey: 7 years imprisonment","Darren McBride: 10 years imprisonment"],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[46,46],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Testimony of co-conspirator (A)","Evidence of drug transactions","Evidence of communication between conspirators","Evidence of drug seizures"],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":["High level of involvement in supply chain","Large quantities of high purity cocaine","Operation over a substantial period"],"MitFactSent":["Previous convictions mostly of some age (for Anderson)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[4],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["No evidence of a common intention or purpose involving all alleged co-conspirators","Insufficient evidence for a single conspiracy","Sentence manifestly excessive or wrong in principle (Anderson)"],"SentGuideWhich":["Definitive Guideline for Drug Offences"],"AppealOutcome":["Appeal against conviction dismissed for Johnson, Anderson, Belford, McBride","Appeal against conviction allowed for Casey","Application for leave to appeal against sentence by Anderson dismissed"],"ReasonQuashConv":["Insufficient evidence to establish Casey was party to the larger conspiracy"],"ReasonSentExcessNotLenient":["Judge was ideally placed to identify the type of role occupied by Anderson","Quantities used in the Guideline for Categories of harm for cocaine support the categorisation"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["There was evidence from which the jury would have been entitled to conclude the appellants were party to the conspiracy","Judge considered all features of the case and came to a justified conclusion"]} |
No:
20060575/A8
Neutral Citation Number:
[2006] EWCA Crim 1679
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-
RICHARD CHARLES HUNT
- - - - - - - -
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 A DAYMOND
appeared on behalf of the APPELLANT
MISS J LUCAS
appeared on behalf of the CROWN
- - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOORE-BICK: On 16th November 2005 the appellant pleaded guilty before the magistrates to offences of burglary, theft, dangerous driving, making off without payment, driving without insurance and driving without a licence. He was committed to the Crown Court for sentence pursuant to
sections 3
and
6
of the
Powers of Criminal Courts (Sentencing) Act 2000
. He asked for four other offences of burglary (including burglary of a dwelling), attempted deception, making off without payment and theft to be taken into consideration.
2.
On 6th January 2006 in the Crown Court at Swindon he was sentenced by Miss Recorder Collins as follows: in respect of the burglary, 18 months' imprisonment; in respect of the theft, 12 months' imprisonment consecutive; in respect of the dangerous driving 12 months' imprisonment consecutive; in respect of making off without payment, 3 months' imprisonment concurrent; in respect of the offences of using a vehicle without insurance and driving without a licence, no separate penalty. The Recorder thus sentenced him to a total period of three-and-a-half years' imprisonment. He was also disqualified from driving for two-and-a-half years and until he had passed an extended driving test.
3.
In December 2002 the appellant had been sentenced to 45 months' detention for offences of robbery and theft. He was released on licence in June 2004 but was recalled in October 2004 following the commission of further offences which included theft from dwellings. He was then sentenced for those new matters and released again in May 2005.
4.
Following his release, he ceased to have contact with the probation service in July of that year which again led to his recall, but at that stage the appellant ‘went on the run’. As a result, he was unlawfully at large at the time he committed the offences for which he was sentenced by Miss Recorder Collins.
5.
Having committed an offence before the expiry of the full term of that earlier sentence of 45 months' detention, he was at risk of being ordered to return to custody to serve the outstanding period of that sentence. The Recorder did order that he be returned to custody, but unfortunately she did not specify how much of the outstanding period he should serve. However, we have before us a letter from the prison authorities at Bristol stating that by their calculation the sentence of 3 years and 6 months’ imprisonment which she imposed on the appellant will not begin to run until November 2006. That is a matter to which we shall return.
6.
The appellant now appeals against sentence by leave of the Single Judge.
7.
The facts giving rise to his convictions are these. On 10th November 2005 Mr David Hunt, the appellant's uncle, left his home in Malmesbury at about 9.00 a.m. He secured the property as he left. When he got back about 12.10 p.m. he discovered the door was open and some tobacco had been stolen from his home. He also discovered that his father's World War II Campaign medals had been taken from a drawer in the kitchen. Otherwise it seems the property had not been disturbed. The police were called and they discovered a witness who had seen a Vauxhall Cavalier motor car outside the house. No forensic evidence was discovered at the scene of the burglary but later in interview the appellant admitted that he had been responsible.
8.
On 13th November 2005 75-year-old Rosemary Jubb, who walked with the aid of a stick because she suffered from arthritis, was making her way down an alleyway when she suddenly felt someone push her. The bag she was carrying was snatched from her and the assailment, who turned out to be the appellant, ran of with it. Her bus pass, her pension card, her cheque book, her Co-op card, some discount cards and also some cash were all stolen. That gave rise to the charge of theft.
9.
On 14th November the appellant pulled into a filling station in Frampton Mansell in Gloucestershire in his Vauxhall Cavalier. He filled the car up with petrol and then drove off without attempting to pay. The registration number of the car was noted by the garage owner and passed to the police. The driver of a police car spotted the appellant's vehicle on the A433. He came up behind it, switched on his lights and sirens and indicated to the appellant to stop. However, the appellant did not stop. Instead he accelerated and entered the village of Didmartin, passing through a 30-mile an hour restricted area at about 50 miles an hour. The police gave chase and the appellant was seen to drive through another village, Petit France, at 60 to 70 miles an hour. He also overtook a number of vehicles in stretch of the road where overtaking was prohibited and reached speeds of up to 80-miles an hour.
10.
As he approached the M4 the appellant drove through a red light at a roundabout and then went onto the motorway. On the motorway he drove at 80 miles an hour and overtook a number of vehicles on the inside as he regularly changed lanes. He then took to the hard shoulder where his speed was measured at 110 miles an hour as he continued to overtake vehicles on the inside. The appellant then suddenly swerved from the hard shoulder across into the outside lane when he noticed there were men working on the hard shoulder. At that stage a police helicopter and other patrol units joined in the chase. He continued to drive at speeds of up to 100 miles an hour and was eventually forced back onto the hard shoulder by the police and was blocked in. He turned off the motorway and down the grassy slope. His car came to a halt in bushes at the side of the motorway where he was finally arrested. When interviewed he made full admissions to the offences as well as admitting to the further four offences which he asked to have taken into consideration.
11.
When sentencing the appellant the Recorder said that he had acted in complete disregard for the safety and feelings of others. She pointed out that he had specifically targeted his uncle and stolen medals which had great sentimental value. He then committed a despicable offence against a vulnerable old lady and had finally driven his car with complete disregard for the safety of other road users.
12.
The grounds of appeal in this case are, first, that the sentence of 18 months' imprisonment in respect of the burglary was excessive having regard to the guidance given by this Court in the case of
McInerney
in relation to sentencing for offences of domestic burglary; second, that the order returning the appellant to custody to serve the outstanding part of his previous sentence was wrong in principle; and third, that the sentence was too long overall.
13.
As regards the sentence for burglary, Mr Daymond, on behalf of the appellant, has submitted that, although he had previous convictions for offences of dishonesty, this burglary and the burglary which he asked to have taken in consideration were in fact the first offences of this kind, that is, they represented his first involvement in domestic, as opposed to non-domestic, burglary. He submitted that the items he took were of low monetary value, although he recognised that they were of considerable sentimental value, and were eventually recovered with the appellant’s assistance.
14.
On that basis Mr Daymond submitted that the offence should be regarded as somewhere between a low-level and a standard domestic burglary committed by a first-time offender for which, in accordance with the guidelines given in
McInerney
, a custodial sentence of about 9 months’ imprisonment would be appropriate.
15.
We have to say we are not wholly persuaded by that argument. This was not in fact the first domestic burglary committed by this appellant. He admitted to one previous offence of this kind which he asked to have taken into consideration. Moreover, it cannot be said that he was by any means a first-time offender. Although he had not previously tried his hand at domestic burglary, he had a significant record of offending extending to offences of obtaining by deception, burglary of non dwelling-houses, robbery and theft. The offence for which he stood to be sentenced was also aggravated by the fact that it was committed while he was unlawfully at large.
16.
Against that, however, it has to be borne in mind that the offence was committed without any damage to the property he entered, that he volunteered information to the police about his involvement and that he took steps to assist in recovering the property. It was also accepted that the offence was one which he committed at a time when he was in desperate straits in order to obtain money to buy food.
17.
In all the circumstances we are satisfied that a sentence of 18 months' imprisonment was somewhat too high for this offence. We would reduce the sentence to one of 12 months' imprisonment.
18.
The order for return to custody requires separate consideration. In December 2002 the appellant was sentenced to a total of 45 months' imprisonment for offences of robbery and theft. That sentence was due to expire on 8th May 2006. He was released on licence in the ordinary way but on 19th July 2005 he was arrested for an offence of theft and on 27th July 2005 his licence was revoked by the Secretary of State. However, he remained unlawfully at large until he was arrested for other offences on 14th November after the police chase described earlier. By that time he had been unlawfully at large for 111 days. Between that date and the date of sentence he remained in custody serving a period of the earlier sentence following his recall.
19.
It is clear from the transcript of what took place at the time of sentence that the Recorder was aware that the appellant had been recalled to prison and that her attention was drawn to the fact that the court is prohibited from passing a sentence of imprisonment which is to run consecutively to a sentence under which the offender has been released and in respect of which his licence has been revoked. However, the power to return an offender to prison under
section 116 of the Powers of Criminal Courts (Sentencing) Act 2000
remained at her disposal notwithstanding the revocation of his licence. We think it is clear that the Recorder did intend to exercise her powers under that section, even if she did not state so explicitly. Unfortunately, however, the prosecution was unable to inform her of the number of days outstanding and she therefore did not specify how many days he was to serve. As a result her order was interpreted by the prison service as an order to serve the whole of the outstanding period, namely 180 days, and we agree that that probably was her intention.
20.
We have been provided with a copy of a letter from the custody office manager at HMP Bristol explaining how the prison service understands the position. It is as follows: that he date on which the appellant would have been released under the earlier sentence was 8th May 2006, but that was put back to 27th August 2006 because of the time he spent unlawfully at large; he would then have to serve 90 of the 180 days for which he had been returned to prison by the Recorder under
section 116
, giving a release date of 26th November; at that point he would begin the new sentence.
21.
This calculation gives rise to two questions: first, how does an order returning an offender to custody to serve all or part of the outstanding period of a previous sentence operate when he has already been subject to administrative recall? Secondly, when ordering an offender to be returned to prison to serve all or part of the outstanding period of a previous sentence should the judge take account of time spent in custody following administrative recall, and if so, how?
22.
In this case it is necessary to consider the consequences of returning an offender to custody after he has been subject to administrative recall in order to assess its effect on the sentence as a whole. In the case of
Sharkey
[2000] 1 Cr App R(S) 541 the Court gave consideration to the question whether there was power to order an offender to be returned to custody under
section 40 of the Criminal Justice Act 1991
(the predecessor of
section 116 of the Powers of Criminal Courts (Sentencing) Act 2000
in a case where he had already been subject to administrative recall under section 39. The Court observed the primary purpose of administrative recall is the protection of the public whereas the purpose of an order returning the offender to custody to serve all or part of the outstanding period of his sentence is punitive. It held that the power to return an offender to custody exists even after there has been an administrative recall.
23.
One important question which arises in the present case, however, which was not discussed in
Sharkey
, is how, if at all, the period that an offender would otherwise be liable to spend in custody as a result of his recall is affected by an order of the court returning him to custody to serve the outstanding balance of the sentence. The question is illustrated by the manner in which the prison service has calculated the date on which the appellant will begin to serve his latest sentence. It proposes to treat the number of days which he is liable to serve as a result of his recall as separate from and additional to the number of outstanding days which the Recorder has ordered him to serve before he begins his next sentence. In other words, if its understanding is correct he will begin to serve the outstanding part of his previous sentence pursuant to the Recorder’s order only when the whole of the period he is liable to serve as a result of his recall has elapsed.
24.
In our view that cannot be right, however, because it overlooks the fact that, by whatever route he arrives back in custody, the offender is serving the same sentence. If he were to be detained on recall until the expiry of the original sentence, he would then have served the whole of his sentence and no period would remain outstanding. Clearly he could not be required to serve a further 180 days.
25.
The correct position, in our view, is that, when an order is made returning an offender to prison to serve all or part of an outstanding sentence in respect of which he has already been subject to administrative recall, the order takes effect immediately and as from that date time spent in custody is to be counted as time spent serving the outstanding period of his sentence as required by the order. The next sentence then starts as soon as the offender has served the number of days prescribed in the order returning him to prison.
26.
In the present case the Recorder's order took effect on 6th January 2006 and the 180 days outstanding from the previous sentence which the appellant was required to serve began to run from that date.
27.
The question then arises whether any allowance should have been made for time he had already spent in custody following administrative recall. In the case of
Teesdale
[2003] EWCA Crim 1641
, [2004] Cr App R(S) 6 this Court pointed out that, as had been decided in the earlier case of
Stockler
[2003] EWCA Crim 1212
, [2003] 2 Cr App R(S) 54, time spent in custody following administrative recall does not automatically count against the time for which a defendant is ordered to return to prison to complete his previous sentence. Normally, therefore, it is right to make allowance for such time; otherwise the offender will be required to serve a longer period in custody than was intended by the sentencing court. Moreover, as the Court pointed out in
Teesdale
, in order to allow for the effect of the early release provisions it is necessary when making such an allowance to double the time spent in custody on recall to ensure that the prisoner is given full credit for that time.
28.
That being so, we consider that allowance should be made in this case for the 51 days which the appellant spent in prison following administrative recall before the Recorder made her order on 6
th
January 2006 returning him to prison. The right way to do that, as indicated by the authorities to which we have referred, is to deduct from the outstanding time that he would otherwise have been ordered to serve twice the number of days spent in prison following administrative recall.
29.
It follows that in the present case 102 days should be deducted from the outstanding period of 180 days, leaving a balance to be served of 78 days. We therefore vary the order of the Recorder by directing that the appellant be returned to prison to serve 78 days of the outstanding period of his previous sentence before beginning to serve the sentence passed in respect of the latest offences.
30.
The third ground of appeal in this case was that the total length of the sentence imposed by the Recorder, namely three-and-a-half years’ imprisonment following the outstanding 180 days of the previous sentence, was too long overall. However, we have already indicated that we propose to reduce the sentence imposed in respect of the burglary from 18 months to 12 months and the appellant will receive credit for time already spent in custody following his recall. In those circumstances we are satisfied that the sentence taken as a whole does no more than properly reflect the extent of his offending and that no further reduction would be justified.
31.
In those circumstances the sentence passed by the Recorder will be quashed and there will be substituted for it a sentence of 3 years' imprisonment to be served after serving 78 days of the sentence imposed on the previous occasion. To that extent this appeal is allowed.
32.
MR DAYMOND: For the sake of clarity, do you direct that the 78 days commence from 6th January?
33.
LORD JUSTICE MOORE-BICK: Yes, that is the intention. Just confirm to me, if you would, the order we are proposing to make is the correct one as you understand it as well. I do not want there to be any mistake second time round.
34.
MR DAYMOND: It is correct. | {"ConvCourtName":["Magistrates' Court"],"ConvictPleaDate":["2005-11-16"],"ConvictOffence":["Burglary","Theft","Dangerous driving","Making off without payment","Driving without insurance","Driving without a licence"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["before the magistrates"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Swindon"],"Sentence":["Burglary: 18 months' imprisonment (reduced to 12 months on appeal)","Theft: 12 months' imprisonment consecutive","Dangerous driving: 12 months' imprisonment consecutive","Making off without payment: 3 months' imprisonment concurrent","Driving without insurance: no separate penalty","Driving without a licence: no separate penalty","Disqualified from driving for 2.5 years and until passing extended test"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":["Disqualified from driving for 2.5 years and until passing extended driving test"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative","Stranger"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Male","All Female"],"VicAgeOffence":[75],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Witness testimony","Police interview admissions"],"DefEvidTypeTrial":["Full admissions by offender"],"PreSentReport":[],"AggFactSent":["Targeted uncle and stole medals of sentimental value","Offence against a vulnerable old lady","Committed while unlawfully at large"],"MitFactSent":["No damage to property","Volunteered information to police","Assisted in recovering property","Committed in desperate straits to buy food"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Sentence for burglary excessive compared to guideline","Order returning to custody for previous sentence wrong in principle","Total sentence too long"],"SentGuideWhich":["Guidance in McInerney (domestic burglary)","Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000"],"AppealOutcome":["Allowed in part; sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Sentence for burglary too high for circumstances and guidelines"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence as a whole properly reflects extent of offending; no further reduction justified"]} |
Neutral Citation Number:
[2021] EWCA Crim 798
Case No: 2017 00364-B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
His Honour Judge Gold QC
Ind. No. T20120236
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/05/2021
Before :
LORD JUSTICE DINGEMANS
MR JUSTICE HOLGATE
and
HIS HONOUR JUDGE DICKINSON QC
RECORDER OF NOTTINGHAM
- - - - - - - - - - - - - - - - - - - - -
Between :
Clarissa Ihenacho
Appellant
- and -
The London Borough of Croydon
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Ms D Barden
(instructed by
the Registrar of Criminal Appeals
) appeared on behalf of the
Appellant
Ms F Levett
(instructed by the
London Borough of Croydon Legal Services)
appeared on behalf of the
Respondent
Hearing date : 14 May 2021
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Dingemans:
Introduction and issues
1.
This appeal raises the issues of: whether fresh evidence from forensic consultant psychiatrists should be admitted; and if so, whether the fresh evidence shows that Clarissa Ihenacho, the appellant, was not fit to plead when a confiscation order was made pursuant to the provisions of the
Proceeds of Crime Act 2002
(“POCA”) in the Crown Court at Croydon on 5 September 2014. The appellant was deemed to have benefitted in the sum of £590,316.08. Her realisable assets were found to be £283,214.90 and a confiscation order was made in that amount of which £108,441.48 was to be paid as compensation.
2.
The confiscation order was made in proceedings following the appellant’s convictions on 29 September for dishonestly making a false statement in claims for income support, council tax benefit and housing benefit, and for dishonestly furnishing a false document, namely a false tenancy agreement, in support of the claims. On 16 November 2012 the appellant was sentenced on each count to 12 months’ imprisonment, concurrent and served her sentence at HMP Bronzefield.
3.
The appellant now suffers from a persistent delusional disorder that an impostor has stolen her identity and it was the impostor that committed the criminal acts in her name. A persistent delusional disorder is a mental disorder within the meaning of the
Mental Health Act 1983
.
4.
It is submitted on behalf of the appellant that fresh evidence, in the form of expert psychiatric evidence, should be admitted pursuant to
section 23(1)
of the
Criminal Appeals Act 1968
. It is submitted that this shows that the appellant was unfit to plead at the time of the confiscation hearing in September 2014, after her mental state had started to deteriorate following her imprisonment in November 2012. In those circumstances it is submitted that the confiscation order which was made should be set aside on the basis that it was wrong to continue confiscation proceedings in such circumstances and it was also wrong to apply the
section 10
POCA 2002
assumptions. It is submitted on behalf of the appellant that in those circumstances, the confiscation proceedings should either be remitted to the Crown Court or this court should exercise its powers on appeal pursuant to section 32 of POCA and undertake the confiscation proceedings for itself without applying the assumptions set out in
section 10
of POCA. It was not submitted on behalf of the appellant that if the appellant was fit to plead at the time of the confiscation proceedings, there was any other basis for setting aside the confiscation order.
5.
It is submitted on behalf of the London Borough of Croydon, the respondent, who paid over the fraudulently claimed benefits to the appellant and who brought the prosecution against the appellant, that the court should not admit the fresh evidence in the form of the psychiatric reports because there was no miscarriage of justice in this case. It is submitted on behalf of the respondent that, if it is to be admitted, the expert evidence shows that the appellant was fit to plead at the time of the confiscation proceedings, that it is only after those proceedings had concluded that the appellant became unfit to plead, and that the appeal ought to be dismissed. It was further submitted that even if the appellant was not fit to plead, it was appropriate both to continue with the confiscation proceedings because of the numerous previous adjournments to accommodate the appellant, and to rely on
section 10
of POCA. This is because it was common ground that the appellant had been fit to plead at her trial, and that the confiscation proceedings simply followed that conviction.
6.
The appellant’s interests are represented by Ms Barden, who has been appointed on behalf of the appellant by the Registrar of Criminal Appeals. The respondent is represented by Ms Levett. We are very grateful to Ms Barden and Ms Levett, and their respective legal teams, for their helpful written and oral submissions.
The fresh evidence about the appellant’s fitness to plead in September 2014
7.
We considered and heard psychiatric evidence while reserving our decision about whether to admit it as fresh evidence on the appeal. The appellant
sought permission to adduce: a written expert report from Dr Manhal Zarroug, a clinical psychiatrist, dated 22 April 2016; written reports from Dr Jagmohan Singh, a consultant forensic psychiatrist, dated 1 November 2016 and 25 September 2020; and oral evidence from Dr Singh. The appellant also relied on the joint statements of Dr Singh and Dr Suraj Shenoy, a consultant forensic psychiatrist dated 28 May 2019 and 11 January 2021.
8.
Dr Shenoy is instructed by the respondent and he has produced written reports dated 23 October 2018 and 18 September 2020. The respondent sought permission to rely on his written reports and oral evidence if the evidence of Dr Zarroug and Dr Singh was to be admitted.
9.
There was much common ground. It is now common ground that the appellant suffers from a persistent delusional disorder that an impostor has stolen her identity and it was the impostor that committed the criminal acts using her name. It is common ground that the appellant was suffering from the persistent delusional disorder by September 2014.
10.
It is common ground that the appellant is not now fit to plead, having regard to the test set out in
R v Pritchard
(1836) 7 C&P 303. It is common ground that the persistent delusional disorder is treatable but the appellant, in her deluded state has no insight into her condition and refuses treatment because she considers herself to be well. It is common ground the appellant will not recover and will continue to deteriorate without treatment.
11.
The only area of dispute between Dr Singh and Dr Shenoy was whether the appellant was fit to plead in September 2014. Doctors Singh (via CVP) and Shenoy (in person) attended the hearing and gave oral evidence. As both Dr Singh and Dr Shenoy relied on events pre-dating their examination of the appellant, it is necessary to set out some of those events.
The test of fitness to plead
12.
The test to be applied to determine whether a defendant is fit to plead was common ground. A defendant must be capable of pleading to and of taking his trial on indictment, see
R v Pritchard,
Archbold 2021 at 4-238, and Blackstone’s Criminal Practice 2021 at 12.4. A defendant has to have sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defence. This means that
the defendant has to be able to understand the details of the evidence so that he can properly make his defence to the charge against him.
13.
As
R v Pritchard
makes clear “it is not enough that he may have a general capacity of communicating on ordinary matters”. It is no part of the test to ascertain whether the defence intended to be run by the defendant is well-founded. This is for the obvious reason that defendants may not be willing to admit (either to themselves or to others) what they have done, but be fit and capable of giving instructions. Similarly a defendant who can understand the course of proceedings may be fit to plead even if he is acting against his best interests because of a mental condition, see
R v Robertson
[1968] 1 WLR 1767
where the defendant suffered from a persecution mania.
14.
The procedure for determining fitness to plead is now governed by the Criminal Procedure Rules at 25.10. The onus of proof is on a defendant, or in this case appellant, who is contending to be unfit to plead. As the onus is on the defendant the standard of proof is the balance of probabilities. Some of the consequences of a finding of unfitness to plead are set out in the
Criminal Procedure (Insanity) Act 1964
. So far as confiscation proceedings are concerned it is possible for a defendant to be unfit to plead and, in certain circumstances, for those confiscation hearings to continue and statutory assumptions to apply, see
R v Gavin and Tasie
[2010] EWCA Crim 2727
;
[2011] 1 Cr App R (S) 126
and
R v Ali (Salah)
[2014] EWCA Crim 1658
;
[2015] 1 WLR 841
at paragraphs 39 to 41 and 45.
The appellant
15.
By way of background the appellant was born in Opobo in the Biafra region of Nigeria but left as a result of the civil war. She moved to France and continued her education, graduating from the Sorbonne. The appellant moved to the UK, attended the University of Manchester and Reading University and obtained post-graduate and teaching qualifications. The appellant married and had five children, and also fostered or adopted other children. She separated from her husband in about 2002. The appellant worked in education until 2005 or 2006. Since that time the appellant obtained a law degree and has pursued work in the charitable field. In her written report Dr Zarroug recorded that the appellant’s son had said that his mother experienced significant distress during her imprisonment. In their oral evidence Dr Singh and Dr Shenoy recorded that the appellant had been a high achieving and intelligent individual, which meant that the effect of the criminal trial, her conviction, and the sentence of imprisonment had all been difficult for the appellant to accept.
Relevant events leading up to the confiscation proceedings
16.
The appellant had been represented at times during the criminal proceedings but at trial her representatives withdrew and the appellant, who had been a student at an Inn of Court at one time, represented herself. After trial, a section 18 questionnaire was served on the Appellant on 28 September 2012 and a confiscation timetable was set. As noted above, on 16 November 2012 the appellant was sentenced on each count to 12 months’ imprisonment, concurrent and served her sentence at HMP Bronzefield. An advocate was instructed to represent the appellant at the sentencing hearing. At the sentencing hearing a new confiscation timetable was set.
17.
A section 18 response was served on behalf of the appellant on 13 December 2012, by SBG Solicitors, who represented her at that time. It appears that a further confiscation timetable was set at a hearing on 28 February 2013.
18.
A section 16 statement was served by the Financial Investigator on 29 April 2013. On 9 April 2013 SPG Solicitors sought an extension of time to serve the section 17 statement due to difficulties obtaining a prison visit and because the appellant was unwell.
19.
Applications by the appellant for permission to appeal against conviction and sentence were made and refused by the single judge. On 9 May 2013 the appellant’s renewed applications for permission to appeal against conviction and sentence were refused by the full court, see
[2013] EWCA Crim 880
. It appears that the appellant represented herself at the hearing, see paragraph 7 of the judgment of Wynn Williams J. The proposed ground of appeal against conviction was that her counsel should not have withdrawn on the day of the trial, and that she was finding prison very difficult. The judgment shows that there had been a number of legal representatives who had acted for the appellant and then withdrawn from acting.
20.
On 22 July 2013 SPG Solicitors sought the discharge of the representation order for the appellant, at which point the judge requested that they continue to represent the appellant, in case the appellant was unwell. It appears that from September 2013 SPG Solicitors no longer represented the appellant, and that the appellant had made an application in writing to the court to seek the discharge of the representation order.
21.
The appellant did not attend the confiscation hearing listed on 22 July 2013, at which point service of a section 17 statement was ordered by 19 August 2013 and a confiscation hearing was listed on 16 September 2013. However, this listing was vacated and the hearing was listed on 20 September 2013. The appellant did not attend the hearing on 20 September 2013, and the hearing was adjourned to 29 September 2013, when the appellant again did not attend and it was adjourned.
22.
The case was mentioned on 11 October 2013. It was ordered that the Financial Investigator serve a copy of the section 16 statement and a covering letter informing the appellant that she must attend court on 29 November 2013. The Financial Investigator served statements concerning compliance with these orders on 27 November 2013 and 28 November 2013.
23.
On 29 November 2013 new lawyers instructed to act for the appellant, Clinton Davis Pallis Solicitors, attended court. It was ordered that a section 17 statement be served by 10 January 2014. It appears (from page 4 of the transcript of the hearing on 2 July 2014) that Clinton Davis Pallis wished to obtain medical evidence concerning the
Appellant’s mental health at this point. No medical report was in fact served. This desire to obtain a medical report and the absence of the medical report is relied on by both the appellant and respondent. The appellant relies on this point to show that her mental health had deteriorated by this time and that she could not have been capable of giving instructions. The respondent relies on this point together with the fact that no report was served as showing that either a report was obtained which was unhelpful, or it was not thought necessary to obtain the report.
24.
On 31 January 2014 the appellant was referred to local psychiatric services by her GP. Initial attempts to contact her by the Community Mental Health team were unsuccessful. On 6 February 2014 the appellant contacted the Mental Health Team. The appellant was reported to be preoccupied about her identity being stolen. The appellant then missed some appointments and spoke again to the Mental Health Team by phone. The appellant said that Ama Ihenacho was busy, the person that the team member was looking for had been in hospital and that there was a problem with mistaken identity. The appellant said the matter was being handled by doctors and she should not be contacted on the phone again. Subsequent attempts to contact her were unsuccessful. There is a note that by 17 February 2014 there was a plan to offer an urgent outpatient appointment, but nothing appears to have happened until 13 March 2015.
25.
No section 17 statement was served and on 18 June 2014 Clinton Davis Pallis Solicitors wrote to the court advising that they wished to withdraw due to non-cooperation. The case was listed for mention on 20 June 2014. The appellant did not attend, but the solicitors did and it was stated that the court would write to her to inform her of a further mention hearing listed on 25 June 2014. The appellant did not attend the further mention hearing and neither did the solicitors.
26.
It is apparent (from the transcript of the hearing on 2 July 2014, at pages 4-5) that the prosecution had put the court on notice at the hearing on 25 June 2014 that they were seeking to continue with the case and invite the court to treat the appellant as a deliberate absentee as opposed to an absconder. The prosecution suggested that legal representations could be made to assist the court in relation to the law, even if the appellant’s solicitors were without instructions. Clinton Davis Pallis Solicitors wrote to the prosecution on 1 July 2014 indicating that they still wished to withdraw, but had been required to attend in any event by the court.
27.
A confiscation hearing was listed on 2 July 2014. The Appellant did not attend and neither did a representative of Clinton Davis Pallis Solicitors, who when telephoned by the court said that they were professionally embarrassed. His Honour Judge Gold QC was the judge and decided against requiring the continued involvement of the solicitors, on the basis that it would be unfair to the solicitors to have to continue to act when they felt they were professionally embarrassed and that the prosecution would be able to assist the court from both sides. HHJ Gold QC gave a ruling that the appellant had chosen to absent herself from the court. HHJ Gold QC set out a chronology of proceedings up to that time. HHJ Gold QC noted that there was insufficient court time to hear the matter so he gave one further adjournment. HHJ Gold QC directed that the prosecution write to the appellant to inform her that the confiscation hearing was listed on 4-5 September 2014 and that if she did not attend the case would proceed in her absence.
28.
On 3 July 2014 the appellant attended her GP complaining of pain in her neck and painful neck muscles. A dental abscess was diagnosed, and the appellant was prescribed antibiotics. There was no reference to any psychiatric complaint or concerns.
29.
On 9 July 2014 the financial Investigator hand delivered letters addressed to the appellant at 105 Links Road, and care of her daughter at 52 Comford Road, SW17. The appellant’s daughter said that the documents should be served directly on her mother.
The letter made it clear that the case would proceed, even in the appellant’s absence, and that a confiscation order in the sum of £283,214.90 was being sought, and that nonpayment could result in the Appellant going to prison for up to 5 years.
30.
It is apparent that on 3 September 2014 telephone contact was made with the appellant who pretended that the number telephoned was a children’s emergency number, and the appellant refused the delivery of correspondence which was then returned to the Court.
31.
On 5 September 2014 the appellant failed to attend court. The court proceeded to hear the prosecution’s application for a confiscation order. The Financial Investigator, Zoe Neale, gave evidence. The total criminal benefit was put at £538,846.89 with an additional sum of £51,649, which had been paid into one of the appellant’s accounts. The total benefit was deemed to be £590,316.08. The appellant had funds in two properties, 40 Pendevon Road and 105 Links Road. Based on the figures provided by Miss Neale the judge was satisfied that the available assets amounted to £283,214.90 and a confiscation order was made in that amount.
Other relevant events after the confiscation proceedings
32.
In November 2014 the appellant attended Merton’s Council Tax Office to discuss outstanding council tax for one of her properties. On 27 January 2015 the appellant published a poetry audio book in the name of Ama Bell Gam. The Publishers were ‘Bell-Gam Publishers’. In February 2015 the appellant telephoned Merton Council to discuss council tax arrears.
33.
On 11 March 2015 the appellant’s GP referred the appellant to Springfield for psychiatric input. On 16 March 2015 a note from Mental Health Services recorded a conversation with the appellant’s son. The note recorded that “the main risk is that her two homes are going to be repossessed by Croydon Council as repayment of her incurred debt. She is not paying any bills in her name due to her belief that this is not her. She appears to present with persistent delusional disorder, and believes that the person who should have been convicted is not her. She has issues with her identity and believes someone took her identity in the past. The family are very worried that she is going to end up in prison again – served six months in the past. She has received letters stating that if she does not pay, she will incur up to forty two months in prison. This has not prompted any response from her”.
34.
On 28 April 2015 the appellant rented a flat at 105 Links Road to tenants, obtaining £950 deposit and a monthly rent of £950. The flat was originally advertised through B&K Estates who confirmed the landlord is Mrs Bell-Gam Clarissa Ama Ihenacho.
Rent was paid into a Lloyds account that had not been declared on the Section 18 Replies. A B&K credit check revealed a Barclays account that had also not been declared on the section 18 Replies. Both accounts held positive balances.
35.
On 26 August 2015 the appellant was assessed by mental health staff outside her house because she refused them access to her house. She was reported to be “slightly dishevelled…she expressed persecutory delusions about stolen identity and in relation to Merton Council. She was unwilling to engage with mental health services”.
36.
On 11 September 2015 a social worker recorded that the appellant had barricaded her front door with a piano. A warrant which involved the police was required.
37.
On 14 September 2015 the appellant was admitted to Springfield psychiatric hospital, having been detained under
section 2
of the
Mental Health Act 1983
. She unsuccessfully appealed against her admission.
38.
The appellant was discharged on 7 October 2015 with a diagnosis of persistent delusional disorder, with the belief that her identity had been stolen. The evidence shows that since then the appellant has refused to comply with any treatment or take medication. This has led to a progressive worsening of her condition.
39.
On 25 November 2015 the appellant contacted her mental health nurse saying “I have told you I don’t want to see you. I have no obligation to see you as I was discharged from Section and the hospital. I haven’t got any mental illness. I’m trying to make your job easy for you, spend your time with other people who need your help, not me, and do not contact my children, they are busy, they are working, this is my human right, do not involve my children, close my file, please”.
40.
In January 2016 the appellant again attended Merton Council’s Tax office to discuss outstanding council tax for one of her properties.
41.
On 20 January 2016 the appellant was arrested as a result of enforcement proceedings relating to the unpaid confiscation order. The appellant’s daughter liaised with the mental health nurse saying there was a very serious crisis.
42.
On 22 January 2016 the psychiatric nurse attended Westminster Magistrates’ Court. Mental health notes indicates that “Judge told [the appellant] to get a lawyer, have a mental health assessment, be back in the same court on 2/2/16 at 9.30am. The Judge told [the appellant] that she cannot be bailed as she has exceeded the maximum options available. She owes so much money, about £350,000. She did not appear in court when they wrote to her. She will be imprisoned for a minimum of three and a half years if this is not resolved.” The appellant apparently agreed to the judge’s requirements.
43.
On 27 January 2016 the appellant attended a mental health appointment. It was confirmed that the appellant was not compliant with her oral antipsychotic medication. In April 2016 the Appellant was assessed by Dr Manhal Zarroug, a ST4 psychiatrist, in relation to the enforcement proceedings.
44.
Dr Zarroug produced a report dated 22 April 2016 raising issues about the appellant’s fitness to plead. In her report, Dr Zarroug recorded that the appellant’s son had said that his mother experienced significant distress during her imprisonment. Dr Zarroug concluded that the appellant presented with symptoms suggestive of a mental health disorder since 2014, namely delusional disorder. She stated that: "The nature and degree of her symptoms have been persistently prevalent in her presentation... At the time of the confiscation order, [the Applicant] appears to have been labouring under a defect from disease of the mind. The nature of delusional disorder results in a significantly impaired ability to make judgements/decisions that are related to her delusional beliefs."
45.
On 11 August 2016 there was a care plan review. The Appellant was reporting she was mentally stable, her mental health had improved, she wanted to be discharged back to her GP. The appellant’s son reported that his mother’s mental health had improved greatly, but agreed that his mother needed a few more appointments with a care coordinator to work towards discharge to GP practice. The appellant reported that she was not compliant with any oral medication.
46.
On 1 September 2016 the appellant attended an appointment with Mental Health Services and was noted to be relaxed and happy, talking, laughing and communicating and responding to questions being asked about her mental state and support needed. Her son reported she had made wonderful progress, even though she was not taking any medication.
47.
On 27 September 2016 the appellant was assessed by Dr Singh, who then produced the report dated 1 November 2016. Dr Singh confirmed that the appellant was not fit to plead and detailed the appellant’s difficulties. Dr Singh recorded that he had not had GP or Community Mental Health records. He had therefore taken that information from Dr Zarroug’s report. Dr Singh said at paragraph 12.4 of his report that due to her current psychotic state she does not currently have capacity to understand the issues in the case and at 12.7 that: "At the time the Confiscation Order was made on 05/09/2014 she was labouring under a defect from disease of the mind."
48.
On 30 September 2016 the appellant was seen at an appointment with Mental Health Services and presented in the same manner as on 1 September 2016, namely being relaxed and happy. A decision was made to discharge her from Mental Health Services.
49.
The apparent inconsistency in the appellant’s condition at the end of September 2016 was a point which was addressed in oral evidence by Dr Shenoy to show that the appellant’s conditions at that stage could be deliberately masked by the appellant. This meant that the condition was not all consuming, as was the position now. Dr Shenoy relied on this to help his assessment of where the appellant was on her journey with a deteriorating mental state. Dr Singh’s point was that the appellant had been admitted about a year before this in September 2015, and it was apparent from his interview of the appellant in September 2016 that the appellant was not fit to plead at that time, regardless of the fact that she retained the ability to mask her symptoms.
50.
On 7 December 2016 the appellant was discharged from mental health services but it was common ground between Dr Singh and Dr Shenoy that at that stage the appellant continued to suffer from persistent delusional disorder. Dr Shenoy said that the appellant would not have changed her deluded belief that another person had stolen her identity, but would have pretended that she did not believe that (so becoming an “accidental true swearer”) so that she could be discharged from treatment.
51.
On 29 August 2017 there was a telephone call from the appellant’s son to the Mental Health Services team attempting to re-refer his mother.
52.
On 26 September 2017 the appellant published a book on poetry in the name of Dr Ama C Bell-Gam Ihenacho. The publishers are Bell-Gam Publishers.
53.
On 15 January 2018 the appellant was assessed by Dr Shenoy. Dr Shenoy produced a report dated 23 October 2018. Dr Shenoy set out a careful analysis of the GP and psychiatric records which had been obtained under a court order, because the appellant refused to consent to them being provided. Dr Shenoy recorded that the appellant’s medical records showed that her symptoms had fluctuated in the past, for example agreeing to the judge’s requirement that she have a mental health assessment when that was incompatible with her deluded belief that she was the wrong person being pursued. Her condition was also reported to have improved, at a time when she was not taking antipsychotic medication.
54.
The first joint report was prepared by Dr Singh and Dr Shenoy and was dated 28 May 2019. This recorded:
“… We both agree that the appellant’s history and presentation is consistent with someone suffering from a Persistent Delusional Disorder which is a mental disorder listed in World health Organisation’s (WHO) International Classification of Diseases, Tenth Revision (ICD-10), online version 2016 as F 22.0. … The main symptoms in her case are delusions that her identity has been stolen, that she is being persecuted by various agencies and some delusions of grandeur that she has connections with the Royal Family. She lacks complete insight into the nature and degree of her mental disorder due to which she is not accepting any treatment. These symptoms have been fairly constant in her case.
…
Whether the Appellant was fit to take part in the proceedings at the time the confiscation order was made under the Pritchard criteria and, if not, why not?: Again there are limitations in answering this question as both of us had not seen her around that period. Additionally there is no direct reference to her mental state in her medical record around that period that could have provided some useful information about the severity of her compromised mental state (if any). Notwithstanding these limitations, both Drs Singh and Shenoy provide their opinion to the best of their abilities on the basis of their respective assessments and the review of the available documents. Dr Shenoy is of the view that her mental disorder had onset in January 2014 approximately and got progressively worse over the next few years until she required an admission to hospital in September 2015. However it was not of a degree or severe enough to make her unfit to participate in proceedings under the Pritchard criteria in September 2014 when the confiscation order was made. Dr Singh on the other hand is of the view that the onset of her mental disorder was around the period when the legal proceedings began and it deteriorated further with her incarceration in 2012/2013. Dr Singh believes that by September 2014 her mental disorder was severe enough to impact adversely on her fitness to participate in proceedings under the Pritchard criteria.
…
Notwithstanding the limitations as discussed above, on balance, Dr Shenoy believes that the appellant became unfit sometime between September 2014 and September 2015 as she had a hospital admission in September /October 2015 that would give some indication about the severity of her mental state and this combined with the trajectory of the natural course of her mental disorder (without any treatment). On the other hand Dr Singh believes that she became unfit sometime between January 2014 and September 2014. Dr Singh is of the opinion that her mental disorder became worse in 2012 during incarceration (in prison) and she had her first contact with mental health services in January 2014 following mounting concerns by her family members.”
55.
Dr Singh produced a further report dated 25 September 2020, following a video call on 2 September 2020. The appellant’s family facilitated the call, and Dr Singh was able to hear the appellant talking and communicate with her, but the appellant did not appear on camera.
56.
Dr Shenoy attempted to reassess the appellant on 15 September 2020 and he produced a further report dated 18 September 2020. Dr Singh and Dr Shenoy produced a further joint report dated 11 January 2021. So far as is material their conclusions remained the same.
57.
Both Dr Singh and Dr Shenoy gave evidence consistent with their written reports and joint statements. Both Dr Singh and Dr Shenoy agreed that it was difficult to attempt to determine whether the appellant was fit to plead in September 2014 when they had only seen the appellant sometime after that. Both Dr Singh and Dr Shenoy agreed that they could not exclude the possibility of error in their assessment.
58.
Dr Singh emphasised the florid nature of the appellant’s symptoms when he saw her in September 2016, and Dr Shenoy pointed to the apparent variation of symptoms when the appellant was discharged a few days later that month.
59.
Dr Singh explained that the appellant would be able to function in other areas of life, such as writing or renting properties, because they did not engage the delusional disorder. Dr Singh therefore did not consider that the appellant was deliberately picking and choosing when to engage.
60.
Dr Shenoy emphasised the absence of any contact with psychiatric services from February 2014 to March 2015. He considered this to be significant given the fact that the appellant visited the GP in July 2014 and was seen by solicitors in this period.
61.
Dr Singh considered that the appellant’s delusional disorder would have been so established by September 2014 that the appellant would not be able to give instructions on the case. Dr Shenoy considered that the appellant would have been capable of giving instructions.
Admission of the fresh evidence
62.
It was submitted on behalf of the appellant that the fresh evidence should be admitted. It was submitted that particular regard should be had to the credible contents of the psychiatric reports, the support they lend to the appellant’s grounds of appeal and that this evidence would have been admissible before the Crown Court.
63.
The respondent submitted that the fresh evidence should not be admitted and relied in particular on the judgment of the Privy Council in
Taitt v State of Trinidad and Tobago
[2012] UKPC 38
;
[2012] 1 WLR 3730
to support its contentions. The respondent submitted that the effect of that decision was that psychiatric evidence about fitness to plead should not be admitted unless it pointed very clearly to the fact that there had been a miscarriage of justice. However the decision in
Taitt
was a decision of the Privy Council sitting on appeal from the Court of Appeal of Trinidad and Tobago dated 11 December 2009, following a trial at which the appellant had been convicted on 16 May 2006. At neither the trial nor on appeal to the Court of Appeal of Trinidad and Tobago had an issue about the appellant’s fitness to plead been raised. The approach of the Privy Council in that case was in relation to the admission of evidence in second appeals heard in the Privy Council.
Taitt
was not about the approach to the admission of evidence in
section 23
of the
Criminal Appeal Act 1968
. That said it is obviously important for issues of fitness to plead to be raised at first instance so that they can be fairly determined when they are raised, rather than, as here, over six years after the event.
64.
We have decided to admit the psychiatric evidence pursuant to
section 23(1)
of the
Criminal Appeal Act 1968
. We have had regard to the matters set out in
section 23(2)
of
the Act
. So far as is relevant it was common ground that the evidence was capable of belief, see
section 23(2)
(a). The evidence might afford a ground for allowing the appeal, see
section 23(2)
(b). This was because if the appellant was not fit to plead at the time of the confiscation hearing this is relevant to the fairness of the proceedings, even though it is possible in certain circumstances for a defendant to be unfit to plead during confiscation hearings and for the confiscation hearings to continue and statutory assumptions to apply. The psychiatric evidence would have been admissible in the confiscation proceedings to show that the appellant was not fit to plead, see
section 23(2)
(c). This was because it was relevant to show whether the appellant was fit to plead. There was a reasonable explanation for the failure to adduce the evidence in those proceedings, see
section 23(2)
(d). This was that the reports were not then available.
The appellant was fit to plead on 5 September 2014
65.
We therefore turn to deal with the remaining area of dispute between Dr Singh, supported by the written report from Dr Zarroug, on the one hand, and Dr Shenoy on the other hand, namely whether the appellant was fit to plead in September 2014. This was at a time when the appellant was suffering from a persistent delusional disorder, and when Dr Singh considered her to be unfit to plead, but Dr Shenoy considered her to be fit to plead.
66.
Before doing so we should record that we did not hear any oral evidence from the appellant’s family, even though it is apparent from the medical records that members of the family have been responsible for some of the contact between the GP and community psychiatric services on the one hand and the appellant on the other hand. It is apparent from some of the reports that the appellant has not wanted her family involved in the proceedings, and it is apparent from the same materials that attempting to assist the appellant, notwithstanding her persistent delusional disorder, has been very difficult for the family. On the other hand it has restricted the evidence about matters contemporaneous to 2014 available to us.
67.
We also record that we do not have any evidence from the lawyers who were instructed, at various times, on behalf of the appellant. This may be for understandable reasons, namely that it is the appellant’s legal privilege and it is now common ground that the appellant lacks capacity to waive that privilege. Again this has restricted the evidence available to us to make a full assessment of the appellant’s fitness to plead in September 2014.
68.
We find that both Dr Singh and Dr Shenoy were doing their honest best to assist us, and both Dr Singh and Dr Shenoy fairly acknowledged the difficulties in deciding this particular issue because they did not see the appellant at the time. We were grateful to them for the assistance that they provided to the court.
69.
We can confirm that we did not derive much assistance from the admitted facts that the appellant was able to carry out other tasks relating to her properties and council tax bills both before and after the relevant period. This was because those actions, as both Dr Singh and Dr Shenoy pointed out, did not involve challenging the delusional belief and therefore would not be affected by it (at least before the symptoms became all pervasive). As stated in
R v Pritchard
it is not enough to have a general capacity to communicate on ordinary matters.
70.
It seemed to us that the important points in favour of the appellant being unfit to plead in September 2014 were the facts that: it was common ground that the appellant did have a persistent delusional disorder in September 2014; there was contact with the Mental Health Services
team in February 2014; and the appellant’s solicitors raised the issue of obtaining medical evidence about the appellant towards the end of 2013.
71.
On the other hand we consider that these points are outweighed by the matters pointing towards the fact that the appellant was fit to plead in September 2014. First there was a period from February 2014 to March 2015 when there was no contact with the Mental Health Services. We accept, as Ms Barden fairly pointed out, that the appellant might have “fallen between the gaps” of the provision of psychiatric services, but we do take account of the fact that the appellant was seen, albeit for an unrelated matter, by a GP in July 2014 and no issues about mental health were raised. We also take account of the fact that members of the appellant’s family did press for intervention when the appellant was in need of help, as is apparent from the medical records. That suggests that after February 2014 there was a period when the appellant did not need assistance.
72.
Secondly we take account of the fact that the appellant was represented by solicitors who in July 2014 did not suggest that the appellant was not fit to plead, even though they had earlier raised the issue of obtaining medical evidence about the appellant.
73.
Thirdly we note that the appellant had, albeit earlier in the chronology, been able to complete a statement for the confiscation proceedings and had been able to appear in the Court of Appeal to make submissions in support of her appeal in May 2013. This suggests that the appellant was able to deal with matters which related to her delusional belief in a way which suggested that she could give instructions for a period of time.
74.
Fourthly we note that these were confiscation proceedings and there was nothing to suggest that as of 5 September 2014 that the appellant would not have been able to identify what assets she had, where she had obtained them from, and what were her sources of income. It is clear that the confiscation proceedings would have taken place against the background of convictions which the appellant contended were a miscarriage of justice (originally on the basis of a false defence, which had by this time manifested to become a persistent delusional disorder, namely that someone else had carried out the relevant acts) but it is not apparent why that contention and delusion would prevent the appellant giving instructions about, and making a proper defence to, the confiscation proceedings.
75.
For all of these reasons we find that it has not been shown on behalf of the appellant, on the balance of probabilities, that the appellant was not fit to plead in September 2014 at the time of her confiscation hearing.
Other matters
76.
This conclusion means that the appeal will be dismissed. This means that it is not necessary to determine issues relating to the application of assumptions under
section 10
of POCA or the points about the appellant’s alleged criminality in relation to obtaining mortgages by false representations that the appellant had an income when the appellant’s tax returns and statement in this case was that she had no income.
77.
We were told by Ms Levett that, given the time that had expired since the order was made, it would be open to the respondent to make an application for an uplift in the calculation of the available amount under section 22 of POCA. We do not express any view on that save to say that it is apparent that any new application will raise issues about the fair representation of the appellant given her unfitness to plead, which is likely to lead to further delay and expense.
78.
Finally it is apparent that as part of the confiscation order both the benefits paid out by the respondent and the costs incurred by the respondent in prosecuting the appellant were ordered to be paid as compensation pursuant to section 130 of the Powers of Criminal Courts (
Sentencing) Act 2020
, now
section 133
of the
Sentencing Act 2020
. Ms Barden did not take any point on this and Ms Levett put in a note supporting the approach which was taken by the judge.
79.
We understand why the benefits paid to the appellant were ordered to be paid as compensation to the respondent, but it is not apparent to us why costs incurred in bringing a prosecution are “loss and damage resulting from that offence” and should be ordered to be paid as compensation. As the point has not arisen for decision we say no more about it, and we leave the point to be decided in a case where it arises.
Conclusion
80.
For the detailed reasons set out above we admit the fresh evidence on appeal but dismiss the appeal against the confiscation order. | {"ConvCourtName":["Crown Court at Croydon"],"ConvictPleaDate":[""],"ConvictOffence":["Dishonestly making a false statement in claims for income support, council tax benefit and housing benefit","Dishonestly furnishing a false document (false tenancy agreement) in support of the claims"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Croydon"],"Sentence":["12 months’ imprisonment (concurrent) on each count"],"SentServe":["Concurrent"],"WhatAncillary":["Confiscation order (£283,214.90, of which £108,441.48 as compensation)"],"OffSex":["All Female"],"OffAgeOffence":[0],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Confiscation order"],"AppealGround":["Fresh psychiatric evidence shows appellant was unfit to plead at time of confiscation hearing; confiscation order should be set aside"],"SentGuideWhich":["Proceeds of Crime Act 2002","section 23(1) of the Criminal Appeals Act 1968","section 10 of POCA 2002","section 32 of POCA","section 130 of the Powers of Criminal Courts (Sentencing) Act 2020","section 133 of the Sentencing Act 2020"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["It was not shown on the balance of probabilities that the appellant was unfit to plead at the time of the confiscation hearing; evidence did not establish miscarriage of justice"]} |
No:
200501572/1573/A8
Neutral Citation Number:
[2005] EWCA Crim 2519
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 6th October 2005
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE NEWMAN
MR JUSTICE OPENSHAW
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 24 AND 25 OF 2005
- - - - - - -
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 H DAVIES
appeared on behalf of the ATTORNEY GENERAL
MR G ROBERTS
appeared on behalf of the OFFENDER WALKER
MR G P HENNELL
appeared on behalf of the OFFENDER WALSH
- - - - - - -
J U D G M E N T
1.
Lord Justice Latham: This is an application by the Attorney General under
section 36 of the Criminal Justice Act 1988
in the case of two offenders, Gary Walker, who is 23 years of age, and Dean Walsh, who is 20 years of age. For an offence of attempted robbery they were sentenced to four years in custody - as far as the offender Walker was concerned that was four years' imprisonment and as far as Walsh was concerned that was four years' detention in a young offender institution -- at Chester Crown Court on 22nd February 2005. In addition, the offender Walker was sentenced to a concurrent term of four months' imprisonment in respect of an offence of driving whilst disqualified.
2.
We give leave to the Attorney General to make the reference.
3.
The sentences arise out of the events of 14th December 2004, when, at about 9.45 in the morning, a small family run sub-post office in the village of Pickmere was the subject of an attempted robbery by these two young men who had driven to the village from Manchester. The sub-post office consists of single room premises with a solid glass screen in front of the post office element of the shop. The shop had a closed circuit television system and a panic alarm. It had been the subject, unhappily, of robberies in the past. The shop was run by a Mr Gates, who is 66 years old, and his wife, Mrs Gates, 59, who effectively lived on the premises.
4.
The first that anybody suspected about the robbery was when a passer-by saw the two offenders sitting in their car parked not far from the post office. She was suspicious of the two young men and made a mental note of part of the registration number. It would appear as though the two young men were at that stage planning the attack, because it was only a matter of minutes later that they got out of the car, wearing balaclava style masks, and were seen by Mrs Gates coming towards and then coming into the shop. She thought that one of them (the offender Walsh) was carrying what looked like a baseball bat, about 3 foot in length. She then pressed the panic button which activated the alarm. The next thing she knew was the sound of the smashing of the security screen by a sledge hammer wielded by one of the offenders.
5.
At that stage Mr Gates came into the shop, again protected by the security screen, which, despite the fact that the sledge hammer had made a hole in it, had fortunately held firm. Mr Gates bravely told the offenders to get out, despite the fact that they were demanding money, saying, "hand over the money". But it became obvious to them that Mr Gates and his wife were determined to stand their ground and not hand over the money. One of the offenders, it would appear the offender Walker, then said to Walsh that they should leave, which they did. They got into their car and drove off.
6.
The police had been notified of both the attack and the registration number of the vehicle, which was then chased by the police back into Manchester. It was eventually stopped; and the offenders were arrested. They were wearing gloves. Two balaclavas were found in the vehicle, as was a sledge hammer and a metal bar. They were interviewed and made no comment in their interviews. They were charged and pleaded guilty ultimately at the first plea and directions hearing.
7.
The judge was not asked to consider any pre-enquiry reports. The only matters relating to the antecedents of these two offenders which were before him were their records. The offender Walker had previous convictions, but had not been subject to any punishment other than a community penalty in the past. The offender Walsh, however, had more serious convictions. In particular, he had been sentenced on 11th August 2000 to four years' detention in a young offender institution, having pleaded guilty to wounding with intent to do grievous bodily harm. It was in those circumstances that the judge sentenced these two offenders to the custodial period of four years to which we have referred.
8.
The submission of the Attorney General made by Mr Davies on his behalf is quite simply that in the light of both authority and the advice of the Sentencing Guidelines Council the sentences are quite simply wrong as being unduly lenient. He has referred us, in particular, to
Attorney General's
Reference No 7 of 1992
14 Cr App R(S) 122, which affirmed the judgment of the Lord Chief Justice, Lord Lane, in
Attorney
General's Reference No 14 of 1991
(1991) 13 Cr App R(S) 446.
9.
The position in both those cases was that the offenders had robbed small shop premises. On each occasion they were armed, in the one case with a replica firearm and in the other with a pistol capable of firing blank cartridges. They had been sentenced to sentences of two and three years' imprisonment.
10.
Lord Lane in
Attorney General's Reference No 14
stated at page 449:
"... it is very seldom that in these circumstances a sentence of much less than seven years would be appropriate, the purpose of the sentence of that length being threefold: first of all to deter the offender from behaving in this way again; secondly to deter others from arming themselves with weapons and holding up banks; and thirdly, a matter which is sometimes overlooked, to punish the offender for having carried out this wicked crime and having put several people in fear of death."
11.
That was the quotation which was repeated in
Attorney
General's Reference No 7
by Lord Taylor, and, it seems to us, provides the appropriate guidance to courts in cases such as these. It should be noted that in both of those cases there had been pleas of guilty and that is the context in which the remarks of both the Lord Chief Justices were made.
12.
In the present case clearly there is this difference, that the offenders were not armed with pistols or imitation firearms. Nonetheless, they were armed. They were armed with a sledge hammer and what Mrs Gates believed to be a baseball bat, but was probably the iron bar. That necessarily involved, and was intended to involve, putting those in the shop in fear. It was only the steadfastness of Mr and Mrs Gates which prevented them from being able to achieve their objective.
13.
We have taken into account the submissions made on the offenders' behalf. As far as the offender Walker is concerned, it is pointed out that he has no previous convictions for a serious offence of this sort. He had personal mitigation in relation to the circumstances in which he found himself and which drove him to commit this offence. It would appear that he may well have been the one who urged that the two of them should leave when it was apparent that they were unlikely to be able to obtain their objective, at least easily, and he has behaved well in prison.
14.
As far as the offender Walsh is concerned, we are asked to take into account his age, and a further factor which has arisen since he was sentenced, which is that he now serves an additional two year sentence for conspiracy to commit criminal damage relating to events in prison, which was ordered to be served consecutively to the sentence with which we are concerned.
15.
Both counsel ask us, in particular, to take into account the fact that the offenders pleaded guilty at the first available opportunity.
16.
In our view, despite that mitigation, the sentences that were imposed on these two young men were clearly unduly lenient. Whilst it may be that there should be some discount from the suggested figure of seven years' imprisonment to reflect the fact that they were not carrying pistols or imitation firearms of any sort, nonetheless, the gravamen and seriousness of this offence remains similar to that in the two cases to which we have been referred.
17.
Premises such as these are vulnerable. They require protection by the courts. Those who seek to rob from them, and in so doing intend to put those in the shops in fear, must expect long sentences. We do not think that in those circumstances, even taking account the element of double jeopardy, it would be right for this Court to do other than to impose a sentence in each case of six years in custody. That would be six years' imprisonment so far as the offender Walker is concerned and six years' detention so far as the offender Walsh is concerned. | {"ConvCourtName":["Chester Crown Court"],"ConvictPleaDate":["2005-02-22"],"ConvictOffence":["Attempted robbery","Driving whilst disqualified"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at the first plea and directions hearing"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Chester Crown Court"],"Sentence":["Four years' imprisonment (Walker)","Four years' detention in a young offender institution (Walsh)","Four months' imprisonment concurrent (Walker, driving whilst disqualified)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[23,20],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["Mixed"],"VicAgeOffence":[66,59],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony","Physical evidence (balaclavas, sledge hammer, metal bar)"],"DefEvidTypeTrial":["No comment interview"],"PreSentReport":[],"AggFactSent":["Offenders were armed with weapons (sledge hammer, iron bar)","Victims put in fear","Premises previously subject to robberies"],"MitFactSent":["Plea of guilty at first opportunity","Walker had no previous convictions for serious offences","Walker urged to leave when objective not achieved","Walker behaved well in prison","Walsh's age","Personal mitigation for Walker"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Sentences were unduly lenient in light of authority and Sentencing Guidelines Council advice"],"SentGuideWhich":["Attorney General's Reference No 7 of 1992 14 Cr App R(S) 122","Attorney General's Reference No 14 of 1991 (1991) 13 Cr App R(S) 446"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Sentences were clearly unduly lenient given seriousness and guidance; should be closer to seven years, even with discount for not using firearms"],"ReasonDismiss":[]} |
Case No:
2008/5057/A5
Neutral Citation Number:
[2009] EWCA Crim 119
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 29 January 2009
B e f o r e
:
LORD JUSTICE HUGHES
MR JUSTICE WILKIE
THE RECORDER OF CROYDON
(His Honour Judge Warwick McKinnon)
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - -
R E G I N A
v
MICHAEL MYERS
- - - - - - - - - - - - - - - - - - - -
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 J Bickerstaff
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE WILKIE: On 20th August last at the Crown Court at St. Albans the applicant Michael Myers, aged 28, was convicted of two domestic burglaries and was sentenced on each to eight years' imprisonment, those sentences to run concurrently, with the benefit of an order under
section 240 of the Criminal Justice Act 2003
that 208 days on remand count towards sentence. He renews his application for leave to appeal against sentence after refusal by the single judge. Miss Bickerstaff has addressed us whilst appearing
pro bono
. We grant leave and we make a representation order to cover her attendance today.
2.
The brief facts of the matter were that at 5 pm on 19th January 2008 the applicant and an accomplice attended the home of an 82-year-old man in Hertford. They stated that a neighbour had a water leak and said they needed to enter his home to turn off the water. Once inside the applicant went to the kitchen; the other went to the bedroom and to the lounge. The occupant became suspicious and asked for some identification. He managed to get both the appellant and his accomplice to leave his property. In fact there was no water leak and the occupant contacted the police.
3.
Some half an hour later the appellant and the same other male went to the home of a 94-year-old woman in Stevenage, a flat in a block of sheltered accommodation. The two used the same ruse as before and said they needed to look in the kitchen as they were fixing a leak in a neighbour's flat. One of them engaged her in conversation. The other went around the property. After they had left she discovered that £700 had been taken from her bedroom, money she intended to give to her daughter to pay for her carer.
4.
The appellant was identified from CCTV and some five days later was arrested. When first interviewed he provided a prepared statement claiming to have been elsewhere at the time of the offence and made no comment to questions asked. The same day he was picked out in an identification parade and re-interviewed. He denied the offences, he denied being the person shown on the CCTV and said that two who had picked him out at an identification procedure had been mistaken. That seems to have been a course which he persisted in at the trial. The male occupant of the first premises gave evidence but the female occupant of the second premises was unable to give evidence because of her failing health and her evidence was read.
5.
The appellant has eleven previous convictions comprising 24 offences of which 12 were offences of burglary, eight of which were burglary of a dwelling, four of them of a distraction burglary type. He started committing domestic burglaries when he was 14. The first distraction burglary was committed in 1995 when he was 15. In 1996 there was a further instance for which, together with another offence of dwelling-house burglary, he received a sentence after appeal of 40 months' imprisonment. In 1999 on three separate occasions he appeared before the courts charged with and convicted of dwelling-house burglaries. Two of them were distraction burglaries. In relation to those he received a two year sentence consecutive to a previous two years' detention for non dwelling-house burglaries and 16 months' detention to run concurrently. Finally, in April 2003 at Luton Crown Court for yet a further dwelling-house burglary, on this occasion not a distraction burglary, he was sentenced to three years' imprisonment.
6.
The learned judge in sentencing him referred to the fact that these burglaries were targeted at elderly victims by him and his accomplice. After the first unsuccessful burglary they went on to try their luck at a second elderly woman's accommodation where they stole £700. The judge said of these offences, in our judgment absolutely correctly, that they are mean, they involve praying on the elderly and vulnerable, that the Court of Appeal has said in the past that these sort of offences cast a shadow over the lives of the elderly who then dread the unexpected knock. These were individuals burgled in their homes at the time of their lives when they need and are entitled to expect to be secure in their own homes. The judge referred to the fact that he had contested the case and whilst that did not increase the sentence it meant that he could have no credit for a plea of guilty. He had forced the elderly gentleman to give evidence and to relive his unpleasant experience and would have done the same for the 92-year-old but for the fact that her ill-health precluded her from giving evidence in court. The judge referred to the fact that he was 28 years of age and had committed that type of offence before, namely a distraction burglary where the elderly were targeted. He had received prison sentences in the past for those offences but that did not deter him from committing those offences on the current occasion. In the light of all of these matters, the judge imposed a sentence of eight years' imprisonment concurrently on each count.
7.
Effectively the sole ground of appeal is that, notwithstanding all the disadvantageous things that could be said of this appellant, the sentence of eight years was manifestly excessive, particularly in view of the fact that there was no evidence that any violence had been used or any threat of violence. Initially the grounds sought support for the proposition that the sentence was manifestly excessive from the case of
McInerney and others
[2002] EWCA Crim. 3003
, [2003] 2 Cr.App.R (S) 39. Miss Bickerstaff has drawn our attention, however, to a case decided in this court on 16th January 2009, the case of
Saw and Others
[2009] EWCA Crim. 1
, a case designed, in effect, to replace
McInerney
as the authoritative guidance in respect of dwelling-house burglaries. She has taken us in some detail through the paragraphs of the judgment of the Lord Chief Justice in that case. She acknowledges that there are a number of aggravating features in this case and that it falls within the type of case described in paragraph 32 of the judgment as being a case of seriously raised culpability and of serious impact where the starting point should be a custodial sentence probably in the general range of two years and upwards. For a single offence the range would ordinarily be 18 months to four years. Sentences beyond the range may be appropriate where the culpability and/or impact is at an extreme level. Longer sentences may be indicated, for example, by a record of relevant offending or where the hallmarks of professional crime are evident. In this case these were two offences committed on the same occasion by two men, obviously organised and determined to commit this sort of burglary, deliberately targeting the elderly who were particularly vulnerable and who were at home.
8.
It is to be observed that one of the cases which had been brought together for the purpose of giving guidance to courts was the case of
McPhee
. That was a case involving a man of similar age, not with quite the same bad record as this appellant, who was acting on his own but who was a persistent distraction burglar. He was a person who had pleaded guilty not at the first available opportunity and had had a five year sentence of imprisonment imposed. At paragraph 61 of the judgment, the court said this:
"If this sentence had assumed a full discount for a guilty plea, it would have been of a kind normally appropriate to burglary where there is not only confrontation but also the threat or use of some direct force against the householder. However a full discount for plea was not appropriate here."
The sentence of five years was upheld. Had the full credit for a guilty plea been available in that case it would have denoted a sentence of seven-and-a-half years after trial. As the Court of Appeal said in that case, that level of sentence for a domestic burglar would normally be limited to those cases where there was not only confrontation but the threat or use of some direct force against the householder. That particular element was absent in each of these two distraction burglaries.
9.
On that basis, and on that basis alone, in our judgment the learned sentencing judge, not having the advantage of the case of
Saw
and the guidance which it gives, in imposing sentences of eight years concurrent for each of these distraction burglaries, did impose a sentence which, notwithstanding the aggravating features of the case, was manifestly excessive. In our judgment and consistent with the approach identified in the case of
Saw
, the appropriate sentence after a trial for these burglaries would have been one of six-and-a-half years, those two sentences to run concurrently. Accordingly this appeal is successful to this extent. We quash the sentences of eight years and we substitute for them sentences of six-and-a-half years to run concurrently. The direction under
section 240
will remain unchanged. | {"ConvCourtName":["Crown Court at St. Albans"],"ConvictPleaDate":[""],"ConvictOffence":["Domestic burglary"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[208],"SentCourtName":["Crown Court at St. Albans"],"Sentence":["8 years imprisonment (original)","6.5 years imprisonment (substituted on appeal)"],"SentServe":["Concurrent"],"WhatAncillary":["Order under section 240 of the Criminal Justice Act 2003 (208 days on remand to count towards sentence)"],"OffSex":["All Male"],"OffAgeOffence":[28],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["Mixed"],"VicAgeOffence":[82,94],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Identification parade","Victim testimony","Read evidence (second victim)"],"DefEvidTypeTrial":["Alibi claim","Denial of offences","Denial of being person on CCTV","Challenged identification"],"PreSentReport":[],"AggFactSent":["Targeted elderly victims","Previous convictions for similar offences","Offence committed with accomplice","Organised and determined to commit burglary","Victims were particularly vulnerable and at home"],"MitFactSent":["No evidence of violence or threat of violence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentence was manifestly excessive given no violence or threat of violence","Sentencing judge did not have benefit of new guidance in Saw and Others [2009] EWCA Crim 1"],"SentGuideWhich":["Saw and Others [2009] EWCA Crim 1","McInerney and others [2002] EWCA Crim. 3003, [2003] 2 Cr.App.R (S) 39"],"AppealOutcome":["Allowed and sentence reduced"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Sentence exceeded range indicated by new guidance for distraction burglaries without violence or threat of violence"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
Neutral Citation Number:
[2015] EWCA Crim 906
Case No: 201501833 C5 AND 201501834 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
His Honour Judge Watson QC
T20147924
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22/05/2015
Before:
LADY JUSTICE RAFFERTY
MR JUSTICE SWEENEY
and
MR JUSTICE HICKINBOTTOM
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Appellant
- and -
CW and MM
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Anthony R. Barraclough
for the
Respondent CW
Oliver Cook
for the
Respondent MM
Sarah Whitehouse QC and Martin Reid
for the
Appellant
Hearing date: 12
th
May 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Rafferty:
INTERLOCUTORY APPEAL s. 35(1) Criminal Procedure and Investigations Act 1996 Regina v CW and MM
5
1.
CW and MM
are charged with others on counts 1 and 2 of an 8 count indictment, to be tried in the Crown Court sitting at Liverpool. Counts 1 and 2 plead conspiracy to supply diamorphine and cocaine to persons unknown outside England and Wales, contrary to s1, 1A and 3 of the Criminal Law Act 1977.
Such requires the consent of the Attorney General (“the AG”) by virtue of
S
4 Criminal Law Act 1977.
2.
Those reading should remind themselves that reporting restrictions are in place.
3.
There were preliminary hearings, for MM
on 31
st
October 2014 and for CW on 13
th
November 2014 albeit he did not appear.
All parties were aware consent had not been obtained and no indictment was preferred. Notwithstanding that, his counsel said CW would be interested in negotiation with the Crown so as to avoid a trial in respect of the heroin allegation.
4.
An application for consent
was received by the Attorney on 6
th
November 2014 and granted on 1
st
December 2014. The indictment and evidence were served on 12
th
December 2014.
5.
At a plea and case management hearing (“PCMH”) on 23
rd
January 2015 MM pleaded guilty to both counts and CW guilty to count 1, not guilty to count 2. Others arraigned entered guilty pleas. The issue of the timing of the Attorney General’s consent was again raised.
6.
On 13
th
April 2015 at a preparatory hearing after argument the Judge ruled that the indictment and proceedings were null and void because consent had not been obtained in time. S4 of the Criminal Law Act 1977 (“S4”) and S25 Prosecution of Offences Act 1985 were considered.
7.
On 15
th
April 2015 he refused the Crown leave to appeal.
8.
The Crown’s application for leave to appeal his ruling as to CW and Count 2 has been referred by the Registrar. For reasons which need not trouble us the application in respect of MM, and of CW as to Count 1, has fallen away. The syntax of the ruling, and the transcript of earlier appearances, is couched in the plural, reflecting the position until shortly before we sat.
9.
We have been assisted for the Crown and for the Attorney General, an interested party, by Miss Sarah Whitehouse QC, who did not appear below, with Mr Reid who did, and for the Respondent CW by Mr Barraclough who also appeared below.
The statutory framework and caselaw
10.
The Criminal Law Act 1977 S4
Restrictions on the institution of proceedings for conspiracy, reads where relevant as follows:
“(1)Subject to subsection (2) below proceedings under section 1 above for conspiracy to commit any offence or offences shall not be instituted against any person except by or with the consent of the Director of Public Prosecutions if the offence or (as the case may be) each of the offences in question is a summary offence.
(2)In relation to the institution of proceedings under section 1 above for conspiracy to commit—
(a)
an offence which is subject to a prohibition by or under any enactment on the institution of proceedings otherwise than by, or on behalf or with the consent of, the Attorney General, ….
[
F1
(5)Subject to subsection (6) below, no proceedings for an offence triable by virtue of section 1A above may be instituted except by or with the consent of the Attorney General.”
11.
S25 Prosecution of Offences Act 1985 reads where relevant as follows:
“25 Consents to prosecutions etc.
(1)This section applies to any enactment which prohibits the institution or carrying on of proceedings for any offence except—
(a)
with the consent (however expressed)— of a Law Officer of the Crown or the Director; …..
(2) An enactment to which this section applies—
(a)
shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence; …”
12.
R v Lambert
[2009] EWCA Crim 700
reads where relevant as follows:
“The analysis of the statutory language:…
16.……..there are two questions.
i) When were the proceedings instituted?
ii) If the permission of the Attorney General was not given before the proceedings were instituted, was the plea before venue hearing within the scope of s.25(2)?
(i) When were proceedings instituted?
17. The appellant was charged by the police on 27 June 2007 and brought before the Court on 28 June 2007. The charge would have been entered onto the Court record on 28 June 2007.
18. S.25(2) of the Prosecution of Offences Act 1985 provides that
"for the purposes of this Part, proceedings in relation to an offence are instituted … (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of charge."
The judge took the view that this provision was not directly relevant as the subsection was by its express terms relevant only to Part 1 of the Prosecution of Offences Act and s.25(2) is not in Part 1. It was also argued by the Crown that the phrase "the institution or carrying on of proceedings" in s.25(1) must have a wider meaning than the ordinary meaning of the institution of proceedings and signify something of substance happening in respect of the charge. We can see no warrant in the language for so concluding.
19. The word "institute" is commonly used to mean commence; that is its ordinary meaning and there is ample authority to support that view. However, as Saville LJ observed in
DPP v Cottier
[1996] 2 Cr App R 410 at 416, the answer to the question when proceedings are begun or instituted depends on the context in which the words are used and the purpose of the provision. ……In the context of the Terrorism Act 2000 it could well be that in the light of s.15(1) (sic) of the Prosecution of Offences Act 1985 and the ordinary meaning of the term institute, that proceedings were instituted when the appellant was charged. However, there can be no reason for contending, as a matter of language and context, that the time at which proceedings were instituted in respect of the appellant for the offence under the Terrorism Act 2000 was any later than the time at which the appellant was brought to court following the charging and when the charge was entered onto the court register. In any sense of the word, the proceedings must have been instituted when the charge was entered into the court register…..
20. It follows, therefore, that the proceedings against the appellant were instituted before the Attorney General's permission was given to enable the Director to consent.
(ii) Was the plea before venue hearing within the scope of s.25(2)?
21. We therefore turn to the second question. The language of s.25 is clear. The purpose is to enable the arrest, charging and remand in custody or bail of a person against whom proceedings may have been commenced without the consent of the Attorney General or Director; it covers action that needs to be taken to apprehend the offender and detain him if there is not time to obtain permission. It does not in our judgment permit anything more to be done. Applying the analysis from
Bull,
it is clear that the decisions in
Elliott
and
Whale and Lockton
would have been the same.
22. If by reason of a wider reading of s.25(1) as contended by the Crown, something of substance was required to happen in the proceedings, a plea before venue is for the reasons we have already set out a hearing of substance.
Conclusion
23. The appeal is allowed as the permission of the Attorney General was not obtained before proceedings were instituted. We do not need to decide what consequences our decision has on proceedings begun without consent. In the present case, the Crown Court can reconstitute itself as a Magistrates' Court and hold a new plea before venue hearing. If the issue arises in other proceedings, it is desirable that the consequences be argued in a case where the decision on the issue will have practical significance.”
Criminal Procedure Rules Pt 9, Sending for Crown Court Trial
13.
The following extracts from the Criminal Procedure Rules (“CrimProcRules”) read as follows:
“9.5 Duty of magistrates’ court officer.
(1) The magistrates’ court officer must –
(b) in that notice record –
(ii) any indication of intended guilty plea given by the defendant under rule 9.7 (Sending for Crown Court Trial).
9.7 Sending for Crown Court Trial
(1)
This rule applies where a magistrates’ court must, or can, send a defendant to the Crown Court for trial without first allocating the case for trial there…
(4)…the court must then…
(b) invite the defendant to make representation about-
(i) the courts power to send the defendant to the Crown Court, and…
(5) if the court sends the defendant to the Crown Court for trial, it must-
(a) ask whether the defendant intends to plead guilty in the Crown Court and-
(i) if the answer is “yes” make arrangements for the Crown Court to take the defendants plea as soon as possible, or
(ii) if the defendant does not answer, or the answer is “no”, make arrangements for a case management hearing in the Crown Court…”
The ruling
14.
It was not in issue that proceedings were instituted prior to consent.
The question raised at the preparatory hearing was:
“Should the Attorney General’s consent to institute proceedings have been obtained before the preliminary hearing in the Crown Court?”
15.
If the answer were yes, proceedings would be a nullity.
16.
The judge reminded himself that consent had been obtained “after the proceedings had been instituted” within the meaning of s4. It was argued by CW that as the preliminary hearings were prior to consent, the case had proceeded beyond the formalities of charging and of ensuring remands:
Lambert
17.
The Crown sought to distinguish
Lambert
. It submitted that a preliminary hearing did not involve the defendants “coming to court to answer the charges” because they were not at that stage required to indicate pleas. In addition, even on a narrow reading of the legislation, the obtaining of consent after a preliminary hearing did not offend against the saving provisions of S25(2)(a) of the Prosecution of Offences Act 1985.
18.
The Judge reminded himself of the relevant CrimProcRules and ruled that although Lambert was dealing with a differently constituted framework (plea before venue at the magistrates court, which required the question of plea to be asked, rather than a preliminary hearing where the court may inquire as to plea with an eye to case management) that was a distinction without a difference. The case was “instituted” within the meaning of s4, prior to consent. It was not possible to strain the language of s25 to say that a preliminary hearing could be saved from the requirement of consent by its date.
Ground of appeal
19.
The Judge erred in holding that consent was obtained too late:
R v Lambert
[2009] EWCA Crim 700
.
20.
Miss Whitehouse added that though the defect can be cured (a Crown Court judge may exercise the powers of a District Judge and send the case back to the Crown Court) it would be of substantial benefit if it were cured before trial.
Discussion and conclusion
21.
There was a limited number of what the Crown described as inaccuracies in what was said below. In the Judge's ruling it was suggested that the AG expects to be consulted where cases are sensitive and in other limited circumstances and retains control of the case. Miss Whitehouse explained that to the contrary, control remains vested in the CPS. As to the chronology, no matter the custom and practice in Liverpool, the Criminal Procedure and Investigations Act 1996 gives the Crown 50 days where the defendant is remanded in custody or 70 days where he is on bail in which to serve its case. It then has a further 28 days in which to serve the indictment. The narrow point which might arise, Miss Whitehouse feared, was a misapprehension that a PCMH can' be arranged as early as possible. In truth there exists quite some time available to the Crown to do its duty. Next, a suggestion in dialogue included the availability for securing consent of a five-minute procedure by use of a hotline. To the contrary, the AG's lawyer informed the court that the AG asks for 2-3 weeks after application and makes the decision personally. Last calendar year, for example, he considered in the hundreds of applications for consent. Finally, as to the application of Criminal Procedure Rule14.1 (the details of which need not trouble us) Miss Whitehouse explained that often the indictment is served after service of the case papers.
22.
Her submissions began with a consideration of Lambert. The court there found that proceedings were instituted when the charge was entered onto the register. However it went on to say that the language of S25 allows procedural matters to be effected before the grant of consent. That Miss Whitehouse argued was difficult to reconcile with its decision on “instituted”. Entry onto the register could be within hours of arrest. On one reading of Lambert, therefore, anything post-entry would be null.
23.
We do not see any inconsistency between section 4 of the 1977 Act and section 25 of the 1985 Act. Section 4 is the primary provision. As Lambert makes clear, consent must be obtained before proceedings are instituted and, if it is not, the proceedings are null and void. Section 25 cannot override section 4, and "save" proceedings. It simply enables the lawful arrest, charging and remand in custody or on bail of a person in circumstances in which the relevant consent has not been obtained.
24.
The question for this court is thus extremely simply expressed. Are the steps taken at the
hearings before consent is given protected by S25?
25.
CW had two hearings. The first, on 7th November, saw him sent by the magistrates for trial, to join others. It was no more than an administrative step and he was remanded in custody. The Criminal Procedure Rules allow, or more accurately contemplate, a question about plea but there is no statutory requirement that it should be posed. Were a defendant at this stage to indicate, or in counsels’ discussions to signal an intention to plead guilty, he would be likely to attract appropriately calculated credit when if he did he later entered it, but the exchange could not bind him.
26.
CW was not asked about his intention and need not have answered had he been. Compare and contrast a plea before venue hearing, which has the effect of starting his trial, when he must be asked his intention. The sending hearing is thus, the Crown suggests, purely administrative, the plea before venue procedural.
27.
CW’s second scheduled appearance was set for a preliminary hearing on 13
th
November 2014. Appearances of this type attract, currently, different epithets circuit by circuit but their function is common nationwide.
28.
It may be that CW was unwell and did not come to court so that there was no opportunity for him to be asked whether he intended to plead guilty. In any event none of the defendants was asked, formally or informally. The hearing was no more than a timetable-setting exercise.
29.
Miss Whitehouse showed us the CPS Guidance,
Consents to Prosecute
which tells the reader that consent should normally be secured in indictable only cases before service of the case or if that is not possible then before the effective PCMH.
30.
The CPS, also in accordance with its own Guidance, must before an indictment is prepared let alone served be satisfied of a realistic prospect of conviction and that prosecution would be in the public interest. Miss Whitehouse told us that no matter how self-evidently strong the case and obvious the public interest counsel is obliged to rehearse in a comprehensive Advice the evidence founding and any relevant considerations affecting even the most unchallenging of conclusions. This is a necessarily time-consuming task and some would say an oddly blunt instrument when applied without discretion. In any event, no formal pleas were possible at CW’s preliminary hearing as no indictment was in existence.
31.
However, Miss Whitehouse conceded that had CW indicated that he wished the hearing to be listed for a plea the Crown would either have attempted expedition in securing the Attorney’s consent (for which it had already applied) or sought an adjournment until its application was resolved.
32.
The primary point of a preliminary, or early guilty plea (“EGP”), hearing is to achieve the earliest possible clarity in the Crown Court as to whether a defendant will plead guilty or not guilty. Though local practices may diverge somewhat in form and/or epithet, the EGP scheme shortly to be introduced nationwide has at its core recognition of the need to eliminate waste of and to insist upon conservation of resource.
33.
On each Circuit in every case there will be a preliminary (EGP) hearing no later than 28 days after sending. We were grateful to Miss Whitehouse for confirming that such an arrangement affords sufficient time for consent, if it were to be granted, to be sought and issued. Currently in Liverpool at preliminary hearings the defendant is told that it is an opportunity to enter a plea and that credit would follow. The purpose of the preliminary hearing, as the Judge said, is to move matters along and see the entry of a plea where appropriate at an early stage.
34.
It follows that by the EGP hearing an indictment will have to have been served, otherwise the aims of the scheme would be fatally undermined.
35.
They would also be undermined were the Crown’s contentions in this case to find favour. In our view the mandatory requirement to secure consent before entry onto the court record is only to a strictly limited extent moderated by the provisions of S25.
36.
Certain steps during the conduct of a criminal case must be taken. It would risk an injustice were their place in the chronology to found, without more, a successful submission that proceedings were null and void. That potential injustice is all S25 seeks to address, and by its language it does no more than protect against the law of unintended consequences. It does not provide an escape route which cures deficiencies in the Crown’s adherence to the terms of S4.
37.
The position is clear. There were three occasions upon which proceedings could have been, or were, instituted. First, when the charge was entered in the court register. If not at that point then, second, on a sending, in this case on 7
th
November 2014, as a reading of the subordinate legislation, the CrimProcRules, makes plain. If not by that stage, then, third, at the preliminary hearing on 13
th
November 2014, when identifying the plea intentions of a defendant were, as they always are, of the essence, whether s/he be present, or absent but represented.
38.
In this case the delay is puzzling. CW was serving a long sentence for conspiracy committed at least in part in Scotland for which consent had also been secured. He was in prison when arrested for the index offences. The CPS thus knew at an early stage that consent was necessary, leaving aside the several mentions of it by counsel for CW. Quite why, thus alerted, it did not pre-arrest seek it was never satisfactorily explained. Reference to its own Guidance was unnecessary for the understanding of the position. The “loophole”, as Mr Barraclough for CW described it, in S25 was obviously limited, as a reading of paragraph 21 of Lambert demonstrates.
39.
We agree. The Judge was astute to the problems the Crown had created for itself and unmoved by a last-ditch attempt to bend the language of S25 to accommodate that failure.
40.
Good husbandry of resource, identified in the President of the Queen’s Bench Division’s
Review of Efficiency in Criminal
Proceedings, 2015
, and echoed in the EGP scheme must remain unimpeded by wholly avoidable inattention. Still more must it be protected from the erosive effects of a cavalier attitude to statutory requirement.
41.
We do not wish to leave this matter without recognising the change in the statutory and procedural landscape since S4 and S25 went onto the statute book. By now, in 2015, the desirable abridgement of time from arrest to disposition is uncontroversial and familiar to all parties in the criminal justice system. The days of arrest, followed by an appearance before the magistrates, followed by a remand in custody, often another remand in custody, or admission to bail, followed by committal to the Crown Court, where a Plea and Directions Hearing might be held, then a trial, are long gone.
42.
They did however allow what would now be seen as a generous period between first appearance (and thus entry on the court register) and service of the indictment. Within those weeks, and more often months, the timeous securing of consent imposed far less of a constraint than does the current and contemplated scheme, in which an individual might be arrested on Day One, before the magistrates (his case entered onto the record) on Day Two on which he would be sent to the Crown Court, and an EGP hearing within 28 days of sending.
43.
It is not the business of this court to do more than apply whatever statutory regime remains in place, as we have on these facts sought to do. However, the absolute necessity of reflecting the recommendations within the President’s Efficiency Review and the terms of the EGP scheme might merit attention to where the statutory scheme now sits when consent from the AG must be secured. The speed of progress from arrest to disposition in 2015 as compared to that when S4 and for that matter S25 went onto the statute book no longer provides that “middle period” during which it could conveniently be sought.
44.
This application is rejected. | {"ConvCourtName":["Liverpool Crown Court"],"ConvictPleaDate":["2015-01-23"],"ConvictOffence":["Conspiracy to supply diamorphine","Conspiracy to supply cocaine"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at plea and case management hearing (PCMH)"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Sectioned"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["persons unknown"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":["Low risk of harm"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Attorney General"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Attorney General's consent not obtained before proceedings instituted"],"SentGuideWhich":["section 4 of the Criminal Law Act 1977","section 25 of the Prosecution of Offences Act 1985"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Consent of the Attorney General must be obtained before proceedings are instituted; proceedings instituted before consent are null and void; section 25 does not override section 4"]} |
Case No: 200403146 B3 & 2004033299 B3
Neutral Citation Number:
[2005] EWCA Crim 1416
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 27 May 2005
Before :
LORD JUSTICE MAURICE KAY
MR JUSTICE SILBER
and
THE RECORDER OF BIRMINGHAM
- - - - - - - - - - - - - - - - - - - - -
REGINA
-v-
GAVIN DUNN
and
JAVIER BENITO GONZALES
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Philip St. John-Stevens
appeared on behalf of the
Crown
Mark Gatley
appeared on behalf of
Gavin Dunn
Lawrence McNulty
appeared on behalf of the defendant
Gonzales
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Maurice Kay :
1.
On 10 May 2004 in the Crown Court at Maidstone the appellants were convicted of an offence of conspiracy to supply a class A drug, namely cocaine. They each later received sentences of 9 years imprisonment. There were two co-accused. A man called Turner pleaded guilty to possession of cocaine with intent to supply for which he received a sentence of six years imprisonment. Yolanda Tabares was found not guilty of the conspiracy by direction of the judge at the conclusion of the case for the prosecution.
2.
The factual background to the case fell within a narrow campus. Dunn and Turner lived at separate addresses in Dartford not far away from the Dartford Hilton hotel. On 29 October 2003 police officers observed Dunn driving a Land Rover Discovery with Turner in the front passenger seat. At 1847 Dunn drove the Land Rover into the car park of the Hilton Hotel. Gonzalez walked from a parked Ford Mondeo and gave a carrier bag to Turner through the passenger window of the Land Rover. Gonzalez then returned to the Mondeo in which Yolanda Tabares was seated. The officers stopped both vehicles as they attempted to leave the car park and the occupants were arrested. A plastic bag fell out of the passenger side of the Land Rover. A cardboard box in the front foot well contained about 2 kilogrammes of cocaine. When interviewed, Gonzalez denied knowledge of the cocaine. That apart, all four suspects declined to answer questions. Both Dunn and Gonzalez gave evidence. Both denied knowledge of the cocaine. Dunn said that Turner had asked him to drive him to the hotel but he did not know what Turner was going to do there or that he was involved with cocaine. Gonzalez said that he was paid by a man called Harold to deliver money in a bag to Turner at the hotel.
3.
It can be seen from that brief summary that the structure of the trial closely resembled many trials concerning the supply of drugs, with the primary defence of each defendant being that he did not know that the transaction with which the undisputed evidence connected him involved drugs. However, what began as an uncomplicated case took a different turn when Dunn was being cross-examined by the prosecution. In his evidence in chief and when cross-examined on behalf of Gonzalez he had not incriminated Gonzalez. However, prior to the trial and for good reason Dunn’s legal advisers had made it known to the prosecution that, according to Dunn, Gonzalez had admitted to Dunn whilst they were both remanded in custody that he knew at the time that he was concerned in the supply of cocaine. Accordingly, counsel for the prosecution asked Dunn about this in cross-examination and thereby elicited evidence of an alleged confession by Gonzales. It is common ground that that evidence exposed Dunn to cross-examination on behalf of Gonzalez pursuant to
section 1(3)(iii)
of the
Criminal Evidence Act 1898
. The judge permitted counsel for Gonzalez to cross-examine Dunn about his previous convictions (about which no complaint is made) and also about matters with which he had been charged and was awaiting trial, namely the possession of firearms found in a caravan following Dunn’s arrest and a further conspiracy to supply cocaine which was the subject of ongoing proceedings in Bradford Crown Court. In addition, the judge permitted cross-examination about an allegation of money laundering the evidence of which related to 26 June 2003 but which had not and still has not led to any charge against Dunn. Dunn’s answers to these lines of cross-examination were essentially exculpatory. In due course counsel for Gonzales sought to call evidence which would have been inculpatory of Dunn in relation to those matters but the judge would not permit this. The result is that Dunn now complains about having been cross-examined in relation to unproven allegations, whilst Gonzalez complains about the refusal to allow evidence to be called to contradict Dunn’s exculpation. All this gave rise to two further matters of controversy. First, an application was made on behalf of Dunn to the effect that, such was the prejudice accruing to him as a result of the cross-examination about the unproven matters, the only fair course had become to sever the indictment at that stage and to permit him to be tried alone. The judge disagreed and the joint trial continued. Secondly, when Gonzalez gave evidence, the judge permitted counsel for Dunn to cross-examine him not only about his own alleged misconduct, but also about the involvement of Yolanda Tabares and her brothers Diego and John in international cocaine smuggling in the past.
4.
Against this background, both appellants now appeal against conviction by leave of the single judge. It is appropriate to deal with their grounds of appeal sequentially.
1. Dunn:
The ambit of the permitted cross-examination
Section 1
(3)(iii) protects a defendant in the witness box from
“any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –
…….
he has given evidence against any other person charged in the same proceedings.”
Once a defendant has thrown away his shield, it is well known that the judge has no discretion to refuse cross-examination on behalf of the co-defendant against who the defendant witness has given evidence.
5.
At trial it was common ground that, by his answers in cross examination on behalf of the Crown, Dunn had given evidence against Gonzalez and that counsel for Gonzalez should be permitted to re-open his cross examination of Dunn by asking him about his previous convictions. However, it was not accepted on behalf of Dunn that the re-opened cross examination should be permitted to extend to the pending matters of the firearms and the prosecution in Bradford or the evidence giving rise to the allegation of money laundering on 26 June 2003. In its terms
section 1(3)(iii)
extends beyond convictions and to charges and evidence of bad character. In his ruling the judge referred to
Maxwell v. DPP
[1935] AC 309
and the requirement that any cross examination about unproven charges should meet the test of relevance. The judge was satisfied that evidence about the outstanding charges and the allegation of money laundering met the test of relevance, because in each case it was relevant to the credibility of Dunn, whose evidence about the confession on remand was strongly disputed by Gonzalez. Accordingly he permitted the cross-examination to range over the disputed areas, observing that he would return to the question whether any forthcoming evidence might be evidence of propensity at a later point in the trial when Dunn’s answers had become known.
6.
In our judgment the correctness of the ruling of the judge on the ambit of cross-examination of Dunn is beyond dispute. Ultimately, the question was one of relevance and the judge was right to identify relevance as he did.
7.
When counsel for Gonzalez embarked upon the re-opened cross examination, Dunn did not invoke his privilege against self incrimination. He answered the questions in a manner that denied criminality on his part. As to the firearms found in the caravan, he said that he would be maintaining a plea of not guilty, that the caravan was some sixty miles away from his home, and that the person responsible for the firearms (of which he knew nothing) was someone who rented the caravan from him and would be coming forward to admit that the firearms were his rather than Dunn’s. As to the prosecution in Bradford, Dunn said that he was “completely not guilty” and had “absolute evidence and witnesses and photographic evidence that it is nothing to with me. I was 270 miles away at the time of the transaction.” In relation to the questions about money laundering and an allegation that two men had left Dunn’s address carrying a bag containing over £200,000 in cash, he said that there was an innocent explanation and that, in any event, he was in Spain at the time on a stag week. Accordingly, notwithstanding the questions asked, there was no evidence adduced from Dunn to the effect that he was or might be guilty of any of the three matters. Indeed the only evidence was that he was wholly innocent.
2. Dunn: severance
8.
The next question is whether, following the completion of Dunn’s evidence, the judge ought to have acceded to an application for severance on the basis that it was no longer possible for Dunn to receive a fair trial. The point sought to be made on his behalf was that, whilst no evidence of his complicity in the firearms, the Bradford prosecution or the money laundering had emerged, he had been so prejudiced by the questions in the presence of the jury that the only fair course was the exceptional one of severance at that stage.
9.
In his ruling the judge stated that he did not consider it to be an exceptional case. He added:
“There may be unusual features here but this simply does not come into the class of case where I should exercise my discretion to allow a separate trial, not least of which here the charge is one of conspiracy and there are very often in such charges cut throat defences and the single jury must hear all the evidence in relation to all the conspirators, whatever the particular difficulties may be for individual conspirators, and I have come to a decision accordingly. This is a clear case where your client must be tried along with Gonzalez”.
We cannot fault this exercise of judicial discretion. The overall interests of justice pointed overwhelmingly to the need to try Dunn and Gonzalez together.
10.
To complete the picture as far as Dunn is concerned, in due course the judge gave strong directions to the jury in his summing up. He said:
“The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant who has made this attack on his co-defendant may assist you to judge the truthfulness of his evidence when you come to consider the matter. You must not automatically assume either that the defendant is guilty or that he is not telling you the truth just because he has these previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which if at all his previous convictions help you about that…
As to the others matters, the bottom line on all that is that the defendant adamantly states that he is not guilty of some other conspiracy to supply drugs and you have not heard all the evidence nor the full extent of his defence to that matter. You may think that it would be a little unfair to raise an eyebrow and damn him. In any event, as I have already directed you, none of this in any way goes towards his guilt on the charges before you. It is only relevant, if it has any impact at all, upon his credibility.”
In our judgment, this was sufficient to protect Dunn in the circumstances of cut throat defences which had by then developed.
3.
Gonzalez: evidence of Dunn’s propensity
11.
As we have said, when counsel for Gonzalez cross-examined Dunn about the firearms, the Bradford prosecution and the allegation of money-laundering, the answers were exculpatory. As a result, counsel sought to adduce evidence on these issues which would be probative against Dunn and tend to show a propensity for drug dealing on his part. To the extent that the original cross-examination went to credit, it would not be open to Gonzalez to adduce contradictory evidence. However, there is clear authority for the proposition that, whilst it is not generally open to the prosecution to adduce evidence of propensity, there are circumstances, particularly when two defendants are running cut-throat defences, where one defendant may seek to prove the propensity of the other and, in so doing, strengthen the prosecution case against that other, provided that the evidence of propensity is relevant to the issue between the prosecution and the defendant seeking to adduce the evidence.
R v. Randall
[2003] UKHL 69
.
12.
In the present case, the judge refused to permit counsel for Gonzalez to adduce evidence on the disputed matters. Counsel for Gonzalez had argued that the evidence was relevant to the issue of whether the box containing the cocaine was in the bag when it was passed through the window by Gonzalez to Turner. It was possible that the box was not in the bag but was already in the car and belonged to the man with the propensity to drug dealing. Moreover, this would give Dunn a motive to lie about the alleged remand confusion. However, the judge rejected all this as a live issue. He said:
“In my view it is highly speculative to say that the package, admittedly handed over by Gonzalez through the window of the Discovery…..was not the package found in the footwell of the Discovery. Gonzalez does not say that it was not the package of cocaine actually found. His defence…..is a matter of knowledge.
In my judgment it is really, upon a proper analysis, a fantastic speculation to suppose that the package might already have been there. The evidence on which the evidence is said to arise is no more than theoretical and so flimsy that in reality….it is highly speculative and, accordingly, I am firmly of the view that there is no relevance in any propensity of Dunn to traffic in drugs to any issue which adversely affects Gonzalez. The matters upon which Dunn was cross-examined properly go to his credit only and his answers are final on that. Accordingly I disallow the calling of this proposed evidence as it would be inadmissible.”
13.
In our judgment, this careful finding was undoubtedly correct. It accords with
Randall
and the judgment of this Court in
R v. B
(C)
[2004] 2 Cr App R 34
, which was decided shortly after the trial in Maidstone and in which Rix LJ said (at para 45):
“Although, where it is a co-defendant who seeks to introduce the disputed evidence, the test is solely one of relevance and does not involve considerations of discretion or undue prejudice, we do not consider that it can be right that the merest arguability of relevance can be sufficient to require the evidence to be admitted. We say that because ultimately, as Lord Steyn observed in
Randall
, the question of relevance is a matter of degree and this can vary right across the spectrum.”
What this calls for, and what it received at trial in the present case, is a rigorous analysis of relevance. What must not be allowed to happen is for the label of relevance to be attached casually to something the real significance of which is peripheral or non-existent, as a result of which a jury finds itself distracted into assessing evidence in a satellite trial which should be none of its business. The present case affords a good example. If the judge had permitted the evidence to be adduced, the jury would have had to consider the extent of Dunn’s involvement in three other criminal matters. That would hardly have been conducive to the sensible resolution of the real issues in the case it was trying. Happily, the rigorous criterion of relevance came to the rescue.
14.
We are entirely satisfied that the judge was correct to exclude the evidence sought to be adduced on behalf of Gonzalez.
4. Cross-examination of Gonzalez
15.
The final area of controversy relates to the cross-examination of Gonzalez on behalf of Dunn. Following the attack on Dunn’s character, Gonzalez was incontrovertibly exposed to cross-examination about his own bad character. Pre-emptively, he gave evidence in chief about his previous convictions for burglary. However, objection was taken to his being cross-examined about the bad character of his associates and his involvement with them. The disputed material was as follows. He was asked whether he himself had convictions in Spain for cocaine smuggling. He said he had not. He was asked about his involvement with Yolanda Tabares’ brothers in an importation from Venezuela to Tenerife in 1999. He said he knew one but not the other of the brothers but that he had had no involvement with that or any other importation and that he was serving a sentence of imprisonment for burglary in Lanzarote at the time. He totally denied that he had been to Colombia with one of the Tabares brothers to view the cocaine plantations or at all. He also denied all knowledge that Yolanda Tabaras and one of her brothers had been arrested at Heathrow in 1994 when entering this country wearing body belts which contained 10 kilos of cocaine (allegations in respect of which they were later acquitted).
16.
It is not suggested that when counsel for Dunn cross-examined Gonzalez about these matters he lacked the proper material to do so. The complaint is that the questioning ought to have been disallowed or, alternatively, permitted only in the absence of the jury in the first instance so as to ascertain whether the answers would have evidential value. The ruling of the judge was expressed with brevity:
“It seems to me that [counsel] is entitled to pursue this matter. I do not think it would be right to pursue this in the absence of the jury. The jury should hear the evidence.”
17.
When matters unfolded, the answers were no more evidentially valuable than Dunn’s answers had been to the questions about the firearms, the Bradford case and the allegation of money laundering. The scenario was essentially the same – the shield having been lost, cross-examination related to Gonzalez’s previous convictions, charges or bad character in accordance with
section 1(f)(iii)
of
the 1898 Act
. The arrests of the Tabares at Heathrow in 1994 were perhaps marginal but could be said to go to Gonzalez’s own bad character if he had affirmed knowledge of his passenger’s past involvement with cocaine smuggling, even though she had been acquitted (as, by this stage, she had also been in the present case). Be that as it may, all Gonzalez’s answers were exculpatory and the judge eventually directed the jury in these terms:
“Mistakes with regard to a person’s previous convictions are sometimes made and sometimes serious mistakes, but in any event, for the reasons I have already given and sought to emphasise….., you must put questions – and a number of questions were like that in that category - completely out of your mind. Try the case on the actual evidence and not on suggestions which are not backed up by proper evidence.”
18.
It is submitted on behalf of Gonzalez that neither that nor any other direction could have undone the prejudice engendered by the questions asked in cross-examination. We disagree. We do not underestimate the difficulties which arose in this trial from the moment that Dunn gave evidence about the remand confession. Those difficulties were of the kind which often arises when defences become cut throat. They may have taken an accentuated form here and that may be particularly unfortunate when the underlying defence of each defendant was not inconsistent with that of the other. However, the judge dealt with the difficulties appropriately and with aplomb.
5. Gonzalez: disclosure
19.
We have dealt with the grounds of appeal upon which the two appellants were granted leave. There is a further ground upon which Gonzalez was refused leave and which has been referred to before us. We can deal with it summarily. Gonzalez complains that, whilst the prosecution complied with its duties of disclosure under the
Criminal Procedure and Investigations Act 1996
and by reference to
R v H and C
[2004] 2 WLR 335
HL, the requirements of the Act and the House of Lords are not wholly compliant with Article 6 of the ECHR, mainly because they countenance the withholding of material that is neutral or adverse to the case of the defendant. We do not accept that the relevant passage in
H and C
is obiter. We consider ourselves to be bound by it. We refuse this renewed application for leave. It is a matter for Gonzalez whether he wishes to take the point to Strasbourg, as is suggested. We simply record that, in our judgment,
the 1996 Act
and
H and C
are not in conflict with
Edwards v. United Kingdom
(1992) 15 EHHR 417, which was concerned with procedure rather than with the substantive test for disclosure. However, we did not hear full argument on the issue and we say no more about it.
Conclusion
20.
We are unpersuaded by the grounds of appeal which were ably advanced on behalf of both appellants. Neither conviction is unsafe. Both appeals are dismissed. Readers of this judgment may be interested to know that, following his conviction by the jury, Dunn changed his plea to one of guilty in relation to the firearms charge. He was subsequently acquitted in the Bradford case when the prosecution offered no evidence, following a problem with disclosure and public interest immunity. Neither of these later events impacts upon the safety of the conviction of Dunn or of Gonzalez. | {"ConvCourtName":["Crown Court at Maidstone"],"ConvictPleaDate":["2004-05-10"],"ConvictOffence":["Conspiracy to supply a class A drug (cocaine)"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["9 years imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Surveillance/observation","Physical evidence (cocaine in car)","Defendant testimony"],"DefEvidTypeTrial":["Denial of knowledge","Alternative explanation for presence","Denial of criminality"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Improper cross-examination about unproven allegations prejudiced fair trial (Dunn)","Refusal to sever indictment (Dunn)","Refusal to allow evidence of co-defendant's propensity (Gonzalez)","Improper cross-examination about bad character of associates (Gonzalez)","Disclosure not compliant with Article 6 ECHR (Gonzalez)"],"SentGuideWhich":["section 1(3)(iii) of the Criminal Evidence Act 1898"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge correctly ruled on relevance and scope of cross-examination","No evidence of actual prejudice from cross-examination","Judicial directions to jury were sufficient to prevent unfair prejudice","Judge's refusal to sever was a proper exercise of discretion","Exclusion of propensity evidence was correct as it was speculative and irrelevant","Cross-examination about bad character was permissible after shield lost","Disclosure complaint not supported by binding authority"]} |
Neutral Citation Number:
[2011] EWCA Crim 2598
Case No.
2011/03658/A2
&
2011/04187/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Date:
Thursday 27 October 2011
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE BUTTERFIELD
and
MR JUSTICE HENRIQUES
_______________
ATTORNEY GENERAL'S REFERENCE No. 53 of 2011
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
_______________
R E G I N A
- v -
FARHAN AHMED
__________________
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__________________
Mr E Garnier QC (the Solicitor General) and Mr T Little
appeared on behalf of the Attorney General
Miss S Smaller
appeared on behalf of the Offender/Applicant
__________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. On 12 May 2011, following an eight day trial in the Crown Court at Burnley before Mr Recorder Clarke QC and a jury, the offender, Farhan Ahmed, was convicted of four sexual offences. They were all part of one incident perpetrated on the same victim which lasted almost two hours. They were rape by penetration of the mouth, attempted vaginal rape, assault by digital penetration of the vagina, and rape by penetration of the mouth. Following conviction the offender was sentenced to detention for public protection. The minimum term specified was five years. Time spent in custody on remand was ordered to count against that five year term.
2. The offender's applications for an extension of time (three weeks) and for leave to appeal against sentence have been referred to the full court by the Registrar. The appeal is against that part of the sentence that relates to detention for public protection. Although the assessment of dangerousness is not challenged, it is submitted on the offender's behalf that an extended sentence would have been the appropriate way in which to deal with the element of dangerousness.
3. There is also before the court an application by Her Majesty's Attorney General under
section 36 of the Criminal Justice Act 1988
for leave to refer the sentence to this court on the ground that the specified minimum term of five years is unduly lenient. We grant leave.
4. On behalf of the offender the response is that the five year term may be on the lenient side, but that it fell within the appropriate sentencing parameters for the offences committed by the offender.
5. The victim of these unpleasant sexual crimes was a widow in her mid-sixties. Just after midnight on 28 October 2010 the offender, who was then 17 years old, was in a town in Lancashire looking for a woman with whom to have sexual intercourse. About the streets he found no one. He attempted to gain access to a number of properties until about 1.30am when he entered the victim's home. He did so by going through the back yard into the house. He was armed with a stick.
6. The victim is a very slight lady, 4ft 11" tall. She was grieving for her son who had died eight months previously of leukaemia. She had cared for him in this very house. She heard a noise in her kitchen. It had been made by the offender. She went to see what it was. The offender went outside and then returned into the property. He had the stick in one hand and in the other he had a bread knife which he had taken from the victim's kitchen.
7. The inference from the evidence is clear. The offender was determined to find a woman with whom to have sexual intercourse whether she consented or not. In the real world the possibility of consent (although this is what the offender argued at trial) in the circumstances of this case is utterly absurd. When he entered the house his intention was not, as with most burglars, to steal property, but to have sexual intercourse whether or not the victim he found in the house was willing.
8. The offender ordered the victim to lock the door. She attempted to do so. He took the key from her and put it in his pocket. He waved the stick at her and said, "If you co-operate with me I won't hurt you". He then took hold of another knife. The victim had a cordless telephone in her hand and he removed it from her. He pushed her into the sitting room. He asked who else lived at the property and whether she had a boyfriend. She said that her husband had been dead for thirteen years and that she did not have a boyfriend. She pointed to the photograph of her dead son and said that he had died from leukaemia. The offender asked her a number of embarrassing sexual questions. He pulled his erect penis from his trousers, grabbed hold of the victim's head and pushed it down onto his penis. He said, "I'll look after you. I'll give you good sex. Suck my dick". He made the victim perform oral sex on him for one or two minutes. He held her head by the hair so that she could not move away.
9. The offender asked the victim where the bed was. She said that it was upstairs. He still had the knives in his hand. He directed her upstairs and said, "If I find anyone I'll kill you". She said that she wanted to go to the lavatory. He let her do so, but he watched. He then moved away from her and was physically sick. That did not deter him. Still holding the knives, he told the victim to undress. He pushed her from behind onto the bed. He tried to put his penis into her vagina. He then said that he was drunk and so he could not "do it". He kissed her mouth and her right breast. On a number of occasions, but without success, he attempted to put his penis into her vagina. When he failed he penetrated her vagina with his fingers. She said that that was "very painful". He then ordered her to suck his penis. He held her head tightly and forced her to perform oral sex "like a piston movement". This continued for so long and with such forcefulness that she pleaded for a break because her jaw was hurting.
10. Notwithstanding this further break and the opportunity to think again about what he was doing, the offender insisted that oral sex should resume. After a five minute break, during which he told the victim that he loved her, she was forced to continue the oral sex. Eventually he ejaculated into her mouth. As she opened her mouth the semen fell onto his pubic hair. He ordered her to wipe it off. When she got up from the bed she noticed that there was blood on her sheets, which she assumed had come from the violence perpetrated in the area of her vagina. In the result no vaginal injury was found. The blood came from a cut to her knee which she had sustained during the incident.
11. The offender dressed. He ordered the victim, who was naked, to go downstairs and make him a drink. He drank it and gave her back one of her knives. As he left the victim asked for the return of the other knife. He gave it to her. After the ordeal she said that she felt "like a zombie".
12. The offender was arrested on 30 October 2010 and interviewed on the following day. His initial response to questions was to answer "no comment". He then answered some questions about his movements that evening, but replied "No comment" when asked if he knew the victim or her address.
13. At the trial a "no inference" direction was given because the offender's solicitor produced a contemporaneous witness statement asserting that the offender had given a full account to him before the interview, but that he had advised the offender not to answer questions because of the extent of pre-interview disclosure. The issue is not before us, but that decision may have been over-favourable to the offender.
14. The offender was re-interviewed the following day, 1 November. This time he accepted that he had been into the victim's home. He said that he did not rape her; everything that had happened was with her consent; indeed, she had initiated the sexual activity between them; after it was over and before he left the house, she had invited him to return a week later.
15. The offender's trial started on 3 May 2011. The victim gave evidence in court. She wished to face the offender. The offender gave evidence. It followed the terms of the account he had given to the police on 1 November: the victim had consented to all the sexual activity. On 12 May he was convicted on all four counts of the indictment. The jury had plainly rejected the offender's suggestion of consent which in his sentencing remarks the Recorder described as "ludicrous" and "preposterous".
16. Subsequently the victim made an impact statement. It is a dignified and measured account of what must on any view have been an appalling ordeal. She describes various features of the incident and various events after the incident which added to her distress. She says:
"The anguish and torment this incident had left me with cannot be underestimated. This overshadowed the first Christmas I had ever spent with my grandson. I feel sad as this is time I will not get back. .... the following months greeted me with a rollercoaster of emotions. I try to detach myself from these emotions but sometimes I become tearful with no reason.
The direct effect has been noises. Any noise hits me. Small noises especially as that were how the beginning of my nightmare started, with the noise from what I thought was my fridge. I still can't go into my kitchen if it is late at night. Even if I want a drink or need something out of there, I will go without rather than walk into the kitchen on my own. My house is not the same any more. I am not the same any more."
She speaks about the run up to the trial and the counselling that she was offered. It was pointed out that the offence happened when she was still grieving for the loss of her son.
17. The offender was born in May 1993. He was 17 when the offence was committed and 18 when he was convicted and sentenced. He has no previous convictions. The court was supplied with a number of letters of support for him and describing his character. One from his mother is immensely supportive of him. She stands by him, notwithstanding the difficulty in which she must find herself.
18. The pre-sentence report refers to a number of police reports on the offender which describe inappropriate sexual behaviour and unwelcome touching when he was younger. However, as the author of the pre-sentence report accepts, they were not at the more serious end of the scale. Having summarised that aspect of the offender's sexual misbehaviour at school, and bearing in mind that he has no previous convictions or cautions for any kind of offence, the author expresses concern about the claim that the offender's sexual activity was consensual which is justifiably regarded both as an attempt to explain his behaviour and to provide a shield to protect himself and his family from the seriousness of what he had done. It also suggests "a callous disregard for the victim and a complete lack of remorse". The pre-sentence report concludes:
".... I think there is a considerable likelihood that he will re-offend. More importantly, I think he falls within the dangerousness provisions as set out in sections 225 to 229 of the
Criminal Justice Act 2003
in that I am of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences."
Neither the finding of dangerousness made by the Recorder on the examination of the facts of the trial which had recently concluded before him, nor the contents of the pre-sentence report, are challenged.
19. Our attention has been drawn to a short report prepared by the young offender institution where the offender is currently detained. It refers to his immaturity. It is his immaturity coupled with his youth which form the basis of his counsel's submissions before us. Plainly age is a feature of this case. The offender is (and was when he committed these offences) a young man. There is some evidence of immaturity, although everything that occurred when the unfortunate victim was subjected to her dreadful ordeal is inconsistent with immaturity. In essence the argument is that an extended sentence would have been sufficient to meet the dangerousness posed by the offender. The Recorder is criticised for having failed to give sufficient attention to the extended sentence provisions before he reached the conclusion that detention for public protection was necessary.
20. We shall assume that counsel's criticism is right. We have great reservations whether it is, in fact, right. The Recorder is very experienced. In reality he would not have overlooked all the dangerousness provisions before he came to his conclusion.
21. Having made the assumption that the criticism is justified, it falls to us to consider whether or not the sentence imposed was wrong in principle. We have been properly reminded that the correct approach to a sentence of detention for public protection is that it should be approached as if it is the last but one weapon in the court's armoury to protect the public. Our attention has been drawn to
Attorney General's Reference No 55 of 2008
[2009] 2 Cr App R(S) 22, where the court made this observation:
"As we have emphasised, imprisonment for public protection is the last but one resort when dealing with a dangerous offender and, subject to the discretionary life sentence, is the most onerous of the protective provisions."
We have that principle clearly in mind. We have been shown an example of its recent application in
R v Short
[2011] EWCA Crim 1527
. We have, therefore, applied that principle.
22. When the Recorder came to pass sentence he had in mind all of the facts: the offender's age at the time when the offences were committed; the absence of previous convictions; and the references, including the advantage the offender had in the support of his family and in particular of his mother. He had read the pre-sentence report in relation to the danger that its author believed the offender represented. He thought carefully about the dangerousness provisions as set out in the
Criminal Justice Act 2003
. It is that observation that leads us to doubt that the Recorder overlooked the way in which the sentencing ladder should be ascended. He had in mind that over time and while in custody young people have the capacity to improve and mature so that they cease to represent a significant risk. He said that the submissions would have been better addressed had the offender acknowledged what he had done. We cannot help reminding ourselves, as the Recorder was at pains to remind himself, that the offender continues in total denial. In the light of his continuing refusal to do so, the Recorder was unable to give very much weight to this part of the submissions then made to him. He expressed himself in clear and unequivocal terms: there was a significant risk to members of the public of serious harm occasioned by the commission of further specified offences by the offender. Having expressed himself in that way, he identified the "many aggravating features" of the offence. He concluded that the danger represented by the offender necessitated a sentence of "imprisonment for public protection".
23. We have reflected on all these features of the case. We have come to the conclusion that, notwithstanding the offender's relative youth, public protection requires that the sentence of the last but one resort should be imposed. We agree with the Recorder's view that detention for public protection was the required order. We give leave to the offender to appeal out of time. We do so conscious of the fact that the argument presented on his behalf has been carefully crafted and presented with great care and meticulous attention to detail by counsel on his behalf. We are grateful to her.
24. We turn to the submissions of the Attorney General that the minimum term ordered by the judge was unduly lenient. Our attention was drawn to the decision of the court in
Attorney General's Reference Nos 73, 75 and 03 of 2010
(
R v Anigbugu and Others
)
[2011] EWCA Crim 633
. The Recorder had been at pains to seek to find assistance in the decided cases. Unfortunately, he overlooked, and counsel appearing before him certainly overlooked, this decision. If the Recorder had had this decision in mind, we suspect that he may have taken a higher starting point than he did.
Anigbugu and Others
were cases of very similar factual situations to the present. The facts of two cases represented the ultimate nightmare for any woman asleep alone in her own home at night. The third case involved a serious sexual assault on a woman who was caring for a fragile, elderly man whose home was burgled. The court said:
"3. .... to be burgled and then subjected to the dreadful indignity of a violent sexual offence is to become the victim of a pitiless, wicked crime. .... these are pitiless, life-scarring, deliberately committed crimes .... of course every allowance should be made for such genuine mitigation as there may be (and often there will be none), there is no room in the sentencing process for mercy, save for an appropriate sentencing discount for those who plead guilty, face up to what they have done, and spare their victims the further ordeal of having to give evidence in a public court."
25. The submission on behalf of the Attorney General is that in the end the Recorder failed to have those principles in mind. The submission on behalf of the offender is that the sentence fell within the appropriate parameters -- maybe at the bottom end of the appropriate scale, but not so far off the scale as to be unduly lenient.
26. The serious features of this case are these. This was a premeditated, planned attack. The offender entered the victim's house as a trespasser, looking for sex with a woman, whether or not she consented. Having entered the house, the sexual attack to which she was subjected was sustained and involved a number of different forms of sexual indignity. She was alone and utterly vulnerable in her own home, threatened with a stick and then with two knives taken from her kitchen. She was attacked in more than one room and in her own bed. The ordeal lasted for over an hour and a half. There were breaks in the attack which might have led the offender to reflect for one brief moment on what he was doing and to bring it to an end. Instead, it went on and on until he ejaculated into the victim's mouth. The harm and the distress suffered by her need no further elaboration.
27. Our conclusion can be briefly expressed. This was an unduly lenient sentence. Because of the offender's age we have, in accordance with ordinary sentencing principles, reflected on the lowest level of sentence which would not be unduly lenient. We have come to the conclusion that a twelve year sentence would have been appropriate. Accordingly, the specified minimum term in this case must be raised from five years to six years.
____________________________ | {"ConvCourtName":["Crown Court at Burnley"],"ConvictPleaDate":["2011-05-12"],"ConvictOffence":["Rape by penetration of the mouth","Attempted vaginal rape","Assault by digital penetration of the vagina","Rape by penetration of the mouth"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Burnley"],"Sentence":["Detention for public protection with a minimum term of five years (increased to six years on appeal)"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["High risk of reoffending"],"AggFactSent":["Premeditated, planned attack","Victim alone and vulnerable in her own home","Threatened with weapons (stick and knives)","Sustained attack involving multiple forms of sexual indignity","Ordeal lasted over an hour and a half"],"MitFactSent":["Offender's youth (17 at time of offence)","No previous convictions","Supportive family"],"VicImpactStatement":["Yes"],"Appellant":["Attorney General","Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient","Appeal against sentence"],"AppealGround":["Minimum term of five years is unduly lenient (Attorney General)","Detention for public protection inappropriate, extended sentence should have been imposed (Offender)"],"SentGuideWhich":["Attorney General's Reference No 55 of 2008 [2009] 2 Cr App R(S) 22","Criminal Justice Act 2003 sections 225 to 229","Attorney General's Reference Nos 73, 75 and 03 of 2010 (R v Anigbugu and Others) [2011] EWCA Crim 633"],"AppealOutcome":["Minimum term increased from five to six years"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Sentence was unduly lenient given the aggravating features and relevant case law; a higher minimum term was required"],"ReasonDismiss":["Detention for public protection was appropriate given the risk and aggravating features; appeal against imposition of detention for public protection dismissed"]} |
Neutral Citation Number:
[2014] EWCA Crim 1924
Case No:
201400044 B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 18 September 2014
B e f o r e
:
LORD JUSTICE FULFORD
MR JUSTICE WILKIE
MRS JUSTICE ELISABETH LAING DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
DANA AMIN
- - - - - - - - - - - - - - - - - - - - -
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Mr T Wainwright
appeared on behalf of the
Appellant
Ms K Bex
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
LORD JUSTICE FULFORD:
Introduction
1.
On 5 December 2013 in the Crown Court at Southwark the appellant, Dana Mohammed Amin, now aged 30, was convicted by a jury of the common law offences of perverting the course of justice (count 1) and preventing a public burial (count 2). On 6 December 2013 he was sentenced by the trial judge, His Honour Judge Beddoe QC, to 8 years' imprisonment on count 1 and to a concurrent term of 5 years' imprisonment on count 2. Before this court he appeals against conviction by the leave of the single judge and he renews his application for leave to appeal against sentence following refusal by the single judge.
The issue on this appeal
2.
The sole issue on the appeal against conviction is the submission that the judge should not have admitted evidence relating to four conversations that were covertly recorded when two of the applicant's co-participants in this overall offending (that included the murder of the deceased) had prison visits. Whilst making admissions as regards their own involvement in the murder, they implicated the appellant in the offences with which he was charged, as set out above. The appellant was not present during the relevant conversations.
Outline
3.
On 28 April 2006, the body of 20-year-old Banaz Mahmod, an Iraqi Kurd, was found buried in a suitcase in the back garden of a house at 86 Alexandra Road in Birmingham. A bootlace had been used as a ligature. She was identified from her dental records. She had gone missing from her home address on 24 January 2006. Her father Mahmod Babakir Mahmod, and her uncle Ari Mahmod Babakir Aga (“Ari”), were subsequently convicted of her murder on 11 June 2007, the motive being (to use the highly inappropriate expression that still has currency for murders of this kind) an "honour killing" because they did not approve of her relationship with a man by the name of Rahmat Sulemani. A close friend of Ari, Mohammed Hama, pleaded guilty to the murder. Another relative, Mohammed Ali (“Ali”), had been convicted of the murder in 2010 after being extradited from Iraq.
4.
The prosecution allegation was that the appellant, a nephew of Ari and Mahmod Babakir Mahmod, was involved in the disposal of her body. There were a number of different strands to the Crown's case. First, reliance was placed on cell site evidence that was said to be suggestive of the appellant having been present at a meeting the night before the murder. He had travelled, it was said, to Birmingham on the evening of the day Banaz Mahmod was killed and the following day he was near the place where the body was later found. Second, he made a withdrawal of cash from an ATM machine in Birmingham about a mile from the burial site. Third, he returned to London the following day. Fourth, forensic evidence (fibres) linked the appellant's vehicle to the suitcase in which the body was buried. Finally, the prosecution introduced the covert recordings of conversations that were made during prison visits, to which we have already referred.
5.
The appellant denied the suggestion that he had been in Birmingham at the relevant time. Instead, he claimed he had lent his car to his cousin, Hassan Mahmod, to go to Newcastle and that he had lent a telephone, the number of which ended 499, to a man called Beiz Hama (“Hama”), who he suggested had been in contact with his wife. He alleged the transcriptions of the covert recordings were inaccurate or had been misrepresented. He denied making a withdrawal from an ATM machine in Birmingham at the relevant time using his bankcard.
The relevant facts
6.
On 1 December 2005, Banaz and Sulemani, who were not married, had been seen kissing, and a photograph was taken of them in each other's company. There was a meeting at Ari's home, attended by Hama and Ali, at which it was decided they were to be killed. Ari told the deceased by telephone that she had brought shame on her family because she had separated from her husband and that he intended to kill her. On 5 December 2005 the deceased delivered a letter to the police in which she named five men who she believed planned to kill her.
7.
On New Year's Eve, Banaz was taken to hospital with a number of cuts to her wrists. She had told the ambulance staff that her father and uncle were trying to kill her. On 2 January 2006 her parents had tried to persuade her to return home, promising that she would not be harmed. She agreed to do so but remained in secret contact with Sulemani. On 22 January 2006 there was a failed attempt by Hama, Omar Aga, Ali and a fourth man to kidnap Sulemani. As a result, Banaz went to the police on the following day.
8.
On 4 January 2006 Hama hired a blue Ford Focus because his own car was damaged. He was unaware that the vehicle was fitted with a tracking device. On 23 January 2006 the vehicle was recorded as being in Northbourne Road in Brixton where Ari lives. Cell site evidence relating to telephones belonging to Ali, Hama and Omar Hussain placed them in the area of his address at about 7.00 pm. Cell site evidence of the appellant's phone was consistent with him moving from Ari's business premises in Wandsworth to Northbourne Road, and these four telephones were in the same area between 7.04 pm and 7.47 pm. The appellant's phone was not used after 7.00 pm that evening. It was the prosecution's allegation that the purpose of this meeting was to discuss the murder and disposal of Banaz.
9.
The telephone belonging to Banaz was last used on 24 January 2006 at 12.05 am. Sulemani reported her missing on 25 January, against her parents' wishes.
10.
Cell site evidence showed that Ari, Hama, Omar and Ali were all in contact in the vicinity of Banaz's home. Ari was caught on CCTV footage driving to her address and thereafter driving away from it. The prosecution case on the murder was that this combination of evidence showed the timing of her death to have been between 8.45 am and 10 am. Hussain left London for Birmingham at about 1.00 pm. He lived in Birmingham at an address about a mile from where Banaz's body was found. Hama's hire vehicle travelled to Wandsworth Road where it was left overnight. Cell site evidence was consistent with telephones attributable to the appellant, Hama and Ali driving to Birmingham, leaving London at about 6.30 pm and arriving at 8.15 pm in the area of Messenger Road.
11.
Cell site data also indicated that the appellant, Hama, Omar Hussain and Ali were in the Messenger/Alexandra Road area during the evening of 24 January and during the following day. At 4.57 pm on 25 January the appellant's bankcard, as we have already indicated, was used to make a withdrawal in the Smethwick branch of Barclays in Birmingham, about a mile from the burial site. Cell site evidence was consistent with the appellant, Hama and Ali returning to London together and arriving at about 8.15 pm.
12.
Following his return to London, other than contact with his wife, the first telephone call on the appellant's telephone was with Ari on 26 January 2006. The user of the telephone travelled to the vicinity of Banaz's home address where her father lived and to Ari's address. The prosecution case was that this trip was in order to discuss the earlier visit to Birmingham when the body was buried.
13.
Evidence was adduced from the appellant's wife that, so far as she was concerned, the only person she was in contact with in January on the 499 telephone was the appellant. Therefore, she disputed the appellant's contention that his telephone had been with Beiz Hama at the relevant time and that Hama had been in contact with his wife. The prosecution adduced expert evidence to the effect that an analysis of the data relating to this telephone did not bear out the suggestion that it had been in the possession of someone other than the appellant during the relevant period, given the pattern and the frequency of the telephone calls.
14.
The home of the appellant's cousin at 11 Dorset Road, Wimbledon was searched in the appellant's presence. The appellant volunteered that he had a vehicle parked in the street nearby, a black Lexus, and he asked the officers if they wished to search it. Inside the boot there were three black bin bags containing hair products and clothing. Nothing of interest was found at that stage.
15.
On a 28 January 2006, the appellant made a statement to the effect that he was unaware that Banaz had gone missing. He said he had last seen her six months earlier. He indicated that normally he lived with his wife at an address in Croydon. He gave his mobile telephone number ending 499, and he said his occupation was as a barber and that he worked in New Addington.
16.
On 6 April 2006 the appellant was arrested at an address in Wandsworth. His telephone, ending with the 499 number, was seized. The appellant said that he had had it for six or seven months. The key and the logbook of the Lexus vehicle were also taken.
17.
The appellant was interviewed under caution. He stated that he had been using the 499 telephone in January 2006 and that he had only lent it for about 20 minutes to a relative. He said that he had purchased the Lexus in January. He indicated that although he knew Omar, Ari and Hama, he had never heard of Ali and had never called him. His account was that he had been in New Addington on 23 and 24 January 2006. He said he had not loaned the Lexus to anyone, except perhaps his cousin Hassan for 30 minutes, and the car had never been out of London. When he was shown the call log relating to the 499 telephone and the contact between that telephone and Ali, he said that it was impossible that these calls had occurred. He denied going to Birmingham in January or contacting Ali whilst he was there.
18.
He was interviewed again on 30 April 2006, the day after the discovery of the body. He denied visiting Birmingham that year and said that he was last in that city in September or October 2005. At this stage he said that he had lent his 499 telephone to his relative, Beiz Hama, for two weeks in January 2006, sometime between 12 and 26 January 2006. Hama, he suggested, had gone to Iraq and the appellant in consequence had no contact details for him. He also said that he had lent his Lexus motorcar to Hassan Mahmod for 24 hours in January because Hassan was travelling to Newcastle. He could not explain how his telephone or his bankcard came to be in Birmingham on the day the body was taken there. He suggested the call to Ali might have been a mistake; for instance, a wrong number may have been dialled leading to a response from that number.
19.
The appellant was interviewed yet again on 8 September 2006. He indicated that he had loaned his telephone ending 499 to Beiz Hama, who he said did not speak English. He indicated his wife did not know Hama. When told of the particular text message sent to that telephone, he suggested that his wife might have been having an affair with Hama. The prosecution relied on the fact that several text messages during this period were sent from the 499 telephone to the appellant's wife in English in support of the contention that the appellant had had the telephone with him throughout this period. The appellant's wife also stated that she only ever spoke to the appellant on the 499 telephone and that no one else had contacted her using that telephone.
20.
On 13 July 2010 the appellant was circulated as wanted on the Police National Computer. On 20 June 2013 he was arrested at the passport office at London Victoria. In interview on 21 June 2013 he declined to answer any questions put to him.
21.
Whilst on remand, Ari and Mohammed Amin received a number of prison visitors, including the appellant. The conversations were secretly recorded. The prosecution relied in evidence on the following recordings. First, for 20 August 2006 when the appellant was visiting Ari. It was the prosecution case that during this conversation the appellant admitted that they had used his car on the night, and there was a reference to the appellant returning from Birmingham that night. Second, on 18 September 2006, another occasion when the appellant was visiting Ari Mahmod. During this meeting the prosecution alleges the appellant admitted withdrawing a small amount of cash from a bank, albeit he indicated during this conversation that he had denied to the police that he was responsible for the withdrawal.
22.
There were then comments by Ari and Hama that they made to other visitors in the absence of the appellant, during which Ari and Hama admitted complicity in the killing. First, on 13 March 2006, Hama indicated that the appellant ("Dana" and "Dana Mohammed") had driven "it" (the car) to Birmingham, at which juncture Hama had taken Dana's car from him. Second, on 20 April 2006, when Hama again discussed having driven in the appellant's car at the relevant time, and he indicated that if "they" (no doubt meaning the police) seized Dana's car it would be bad for Hama. Third, on 4 July 2006, when Ari suggested how helpful the appellant had been because "it had to be finished by the evening of that day", and there was reference to the relevant barbershop. Finally, on 11 September 2006 when Ari stated that the appellant's car had been outside the relevant address when the deceased was thrown into a suitcase.
23.
We emphasise that the relevant parts of the transcripts were before the jury so that they could decide whether the prosecution's submissions as to the meaning of these exchanges were well founded. However, in our view, having considered these passages with some considerable care, the import of what was being said was clear, notwithstanding Mr Wainwright's suggestion, which is properly made, that there were potentially other plausible explanations. Furthermore, it is to be noted that Ari and Hama both had a very significant role as regards what happened to the deceased and that role was the subject of agreement during the course of this appellant's trial.
24.
The Lexus was examined on 12 April 2006. Two fibres, microscopically indistinguishable from the suitcase fibres, were found in the boot of the appellant's vehicle. Tests resulted in a match as regards colour and dye characteristics. However, it was conceded that this evidence, standing alone, was inconclusive as to whether or not the suitcase had been in the Lexus motorcar.
The ruling on the four covert conversations
25.
The prosecution, as we have already indicated, applied to introduce the four covert recordings that had been made in prison when two of the appellant's co-accused had visits (in the absence of the appellant) and when they made admissions as regards their own involvement and they implicated the appellant in the offences with which he was later charged.
26.
The judge was satisfied that the four recordings were admissible under section 114(1)(d) of the Criminal Justice Act 2003. The judge considered, inter alia, all of the matters in section 114(2). He concluded that the statements were highly probative and went to the heart of the issue between the prosecution and the defence, namely the extent of the appellant's role in the concealment of the murder and the disposal of the body. The cell site analysis and the car tracking data corroborated the content of the prison visit recordings relating to the appellant's presence in Birmingham and the use of his vehicle. Each of the recordings had been made covertly, and thus none of those speaking knew that what they had said might later be used against them. Ari and Hama made numerous self-incriminatory comments in circumstances suggesting that the statements were not being falsified in order to incriminate the appellant or for any other purpose.
27.
The judge rejected the submission made on behalf of the appellant that Amin and Ari were seeking to distance themselves from the offences, on the basis that the argument was not supported by any reasonable analysis of the content. There were clear admissions of their participation in some of the events leading to the death. Ari had expressed pride in his behaviour and his hostility to Sulemani, who had survived. The speakers seemingly provided a clear and reliable source of information about the arrangements surrounding the murder of Banaz and the disposal of her body. Hama had pleaded guilty and Ari was convicted after a trial, no doubt in part because of the content of these recordings. The judge noted that the integrity of the recordings had not been challenged, either as to the quality of the original or as to the translation. The judge considered it unrealistic for the Crown to adduce oral evidence from either of the men, and that if they were called it was reasonable to suppose that they would be hostile.
28.
The judge noted it was open to the appellant to give evidence about what he accepted or did not accept of the recordings and his understanding of the motive as to why untrue statements had been made, if that was his contention. The appellant would also, in the judge's view, be protected by the directions that would be given to the jury as to the need for caution as regards this evidence. The conversations were only part of the prosecution case against the appellant, as rehearsed above.
29.
The judge concluded the evidence of the recordings was probative, relevant and reliable, notwithstanding the prejudice to the appellant that was inherent in what had been said. He was of the view that the interests of justice were served by its admission into evidence.
The directions to jury
30.
The judge gave the jury full directions as to how to approach these four conversations, and it is necessary to set out those directions in full. We note, however, that there is no complaint as to how this issue was left to the jury.
"Now, none of the persons speaking in these four records has come to court and what they said in the course of these recordings is in material respects at least not agreed, at least in so far as it concerns the defendant, not agreed as representing the truth of what happened in so far as the defendant is concerned. Despite the fact that the persons speaking in these recordings have not been here, it is for you to decide what weight, if any, you attach to the evidence of what was said by anyone in these recordings, but in doing that you should examine this evidence with particular care bearing well in mind that it does have certain limitations which I must draw to your attention.
Firstly, you have not had the opportunity of seeing the makers of the statements in the witness box and of assessing them as witnesses. So you have not heard from Mr Hama, you have not heard from Mr Ari in the conventional way or anybody else here speaking. When you are able to see and hear at one and the same time a witness, you may get a much clearer idea of whether his evidence is honest and accurate.
Secondly, the statements made in these recordings were not made or verified on oath. When somebody gives evidence, they precede that evidence by taking an oath or an affirmation.
The third thing is that this evidence has not been tested under cross-examination and you have not had the opportunity of seeing how this evidence might have survived the challenges which would have been made to it, by Mr Wainwright on behalf of Dana Amin, had one or more of the makers of the statements relied on in this divider being here being cross-examined.
Fourthly, there is an issue as to the quality of the recordings in the sense that at times each translator has acknowledged some difficulty in making out what was said and Mr Mohammed who did the principal task in that respect, as you see just looking at visit 3, page 1 of divider 16, from time to time reports something is inaudible, reinforcing that point. It was acknowledged it was not always possible to distinguish as far as the recordings are concerned, when you could make out what was being said, who was actually saying what was actually being said, so you must take that into account as well.
Finally, what is said in these recordings of course forms only part of the evidence, and it must be considered in the light of all the other evidence in the case, particularly if there is other evidence which calls into question what has been said in one or more of those recordings, and you must reach your verdict having considered all the evidence.
So when you come to look at what is said in these recordings, and in particular in so far as it appears or does and you are sure it does relate to Dana Amin, you will want to look carefully as to whether there is other evidence that may support the proposition that what is being said here by speaker is actually truthful. One of the issues in that respect is probably whether what is being said is in a context where the speaker is saying something that if it was heard by the authorities would be prejudicial to him as well as to somebody about whom he is speaking, because that might suggest that if he is saying something prejudicial to him, 'I did this' or 'I did that', which might indicate complicity in a particular crime, that that was a truthful observation. That might render what is otherwise said about somebody else the proposition that that is truthful as well.
On the other hand, you will have to consider that although none of the people speaking here would appear to be aware that they are being overheard, I think the proposition is probably improbable given that they are saying things about themselves that are not to their credit. You have to be careful that they are tailoring what they are saying to the audience that they have, the people who are visiting. So you need to look very carefully at this material."
31.
These directions were, in our view, entirely appropriate and they ensured that the jury approached this evidence with suitable caution.
The appeal against conviction
32.
In succinct, focussed and forceful submissions, Mr Wainwright for the appellant argues, first, that the judge failed properly to consider the risk that Ari and Hama were mistaken about the appellant's role, given a number of individuals played different parts in the murder and in the events that followed. It is suggested there was uncertainty as to whether they had personal knowledge of the appellant's true part in this offence, if any, and there was a risk they were trying to blame the appellant in order to protect some unidentified individual. It is submitted that in this case the possibility of an unidentified hostile motive was a factor of real significance.
33.
It is suggested that the force of the other evidence in the case was dependent on the jury drawing inferences from what was circumstantial evidence, and that this hearsay evidence was the only material that directly implicated the appellant. Therefore, it is argued that it was highly prejudicial that the appellant was not able to cross-examine the individuals who made these statements. Mr Wainwright stressed it was irrelevant that the evidence of these conversations may have been tested in another trial: what matters is whether it was tested in the present case. Finally, it is argued that the Crown should have attempted to call Ari and Hama to give evidence.
34.
We have no doubt that this evidence was properly admitted. The judge gave a careful and detailed ruling in which he considered all of the relevant issues. As to the factors to which the court must have regard under section 114(2) of the Criminal Justice Act 2003, along with anything else considered to be relevant, this was potentially highly probative evidence which was of real value for the understanding of the other evidence in the case (114(2)(a)). There was a significant body of other evidence which implicated the appellant, summarised above (114(2)(b)). Therefore, although this evidence did not in any sense stand alone, it substantively supported the prosecution's case (114(2)(c)). The statements were made in circumstances where Ari and Hama did not realise they were being overheard (given they boasted extensively about their roles in the murder and the disposal of the body) and these statements were made in the course of admissions as to their own participation (114(2)(d)). It follows that Ari and Hama can properly be considered to be reliable on the issues about which they were speaking in this regard, since there was no sustainable reason for them to lie about the account they were providing during this part of the transcripts (114(2)(e)). For the same reason, the evidence appears reliable (114(2)(f)). It was wholly implausible, in our view, to suggest that Ari and Hama would have been prepared to co-operate with a prosecution which was directed at securing a conviction of one of their former confederates, and we note that the defence made no attempt to call either man (114(2)(g)). Notwithstanding the absence of Ari and Hama as witnesses – thereby denying the appellant the opportunity to investigate the accuracy and honesty of what they had said during these covert recordings – their account of the appellant's involvement (viz. that he drove to Birmingham) involved an assertion which he was able to confront when he gave evidence and, more generally, during the presentation of his defence (114(2)(h)). The record of these conversations was clearly prejudicial, but it simply added to the weight of the other evidence in the case rather than providing the sole or indeed the main evidence against the appellant; it formed part of a much broader picture (114(2)(i)).
35.
We are unpersuaded that the judge failed properly to consider the risk that Ari and Hama may have been mistaken, therefore, about the appellant's role given that they would undoubtedly have known who drove to Birmingham. For example, Hama took the car from the appellant once they had arrived in that city. Similarly, given the content of these conversations, it is unrealistic to suppose that they may have been uncertain about the appellant's part in this offence. Ari is the appellant's uncle and they enjoyed a good relationship, and in those circumstances there does not appear to be any credible risk of an attempt having been made to blame the appellant in order to protect some other unidentified individual. Certainly, no one has been suggested as a realistic possible candidate in this context. The suggestion of a secret hostile motive therefore appears to be without any real or identifiable foundation. It is to be noted that this hearsay evidence was in addition to the admissions made by the appellant during the August and September 2006 conversations, as to which there is no complaint as regards admissibility.
36.
It is clear from
R v Y
[2008] 1 Cr App R 34
;
[2008] EWCA Crim 10
that evidence of this kind - hearsay evidence which involves a confession by another individual whilst simultaneously implicating the defendant who is on trial - is potentially admissible in the interests of justice (section 114(1)(d) Criminal Justice Act 2003). That case concerned a statement by the girlfriend of the defendant's confederate, X, in which she asserted that X had confessed to the offence in that case (murder) and had implicated the defendant in the killing. We note that in
R v Y
, this evidence was the main or determinative material in the case.
37.
It is clear from that authority that generally in these circumstances the judge must reflect on the very real disadvantages of hearsay evidence: it is second best evidence that can be difficult to test and assess given the jury will not see the making of the statement. Furthermore, in the course of the judgment the court emphasised that the judge must consider with care the circumstances in which the statement was made and evaluate the risk that the maker of the statement is unreliable or may have acted for improper motives or a false incentive, such as self-interest or a desire to protect someone else. In a similar vein, sometimes it will be significant that the individual may have a hidden motive to lie, or it will be significant that the possibility of a mistake having been made cannot be adequately explored. The difference between an admission against interest and an accusation against someone else may additionally be of importance.
38.
In
R v Y
, it was expressly recognised that:
"In a few cases, it is possible that the accusation can be regarded as sufficiently reliable for it to be in the interests of justice to admit it, even though it cannot be tested by questioning the maker." (See paragraph 58)
39.
In our judgment, this was such a case, particularly given the evidence incriminating the defendant was inextricably linked to the confessions that were being made by Ari and Hama. We are confident for all the reasons set out above that it was in the interests of justice for the judge to admit the evidence of these four conversations. Although we understand the concerns of the single judge in granting leave, on analysis we are confident that these convictions are safe and the appeal against conviction is dismissed.
The application to appeal the sentence of 8 years' imprisonment
40.
In passing sentence, the judge indicated he was quite satisfied that the appellant was one of the members of the family who had known that this young woman (who was a cousin of the appellant) and the man with whom she had been having a relationship were to be murdered and he was aware of the previous attempt on her life. The judge was also satisfied that the appellant had been present at a meeting on the evening of 23 January with those who were to murder her the following morning.
41.
The appellant had taken no steps to prevent what later occurred, although he was not a party to the murder. He had answered a call to help with the concealment and disposal of the body in order to prevent those responsible from being brought to justice. He had subscribed at the time, and eight years later continued to subscribe, to a perverted code that found dishonour in the idea that a grown woman should lead a life that she had chosen for herself rather than one set for her by senior members of her family.
42.
The judge observed the appellant had driven the victim, stuffed in the suitcase in which she was to be buried, to Birmingham in the boot of his car. On that basis, it did not matter whether he was involved in the final disposal. When he returned to London, he did his best to mislead the police and to prevent the body being found, including in the accounts which he provided to the police.
43.
The judge concluded that in cases of this kind the sentence was largely dependent on the facts of the particular case. The appellant was of good character, but for an offence such as this and in circumstances such as these that counted for little. He had shown no remorse. The murder had been a terrible crime, and the judge determined that the fact that the appellant had known of it and his behaviour following the offence were both aggravating features.
44.
In support of this application, it is argued that the sentence is manifestly excessive in that the judge imposed too high a starting point and he failed to take any or sufficient account of the delay between the offence and the date of sentencing. Mr Wainwright argues that
R v Lang
[2002] 2 Cr App R (S) 15;
[2001] EWCA Crim 2690
supports the proposition that in a case involving the disposal of a body when the deceased was shot, the starting point for the offence of perverting the course of public justice following a trial is seemingly between 7 and 8 years. It is suggested that if the murder in question attracts a minimum term below the 30-year bracket, the sentence for perverting the course of justice should consistently be less than the 7- to 8-year bracket that he has identified.
45.
With respect to Mr Wainwright, this argument, in our view, is unsustainable.
R v Lang
was decided before the present regime relating to the minimum term to be imposed for cases of murder was established by the Criminal Justice Act 2003. Furthermore, the court in
R v Lang
focused on the circumstances of the offence the appellant faced, rather than on the relationship between the sentencing regime applicable to the underlying offence of murder and the sentence to be imposed for perverting the course of justice. In
R v Lang
, the greater part of the appellant's motivation for digging the grave had been his fear of his uncle. No such considerations apply in this case.
46.
Furthermore, the argument on delay is, on analysis, unpersuasive. The evidence against the appellant was not available in 2007 when Hama and Ari were tried, and there is evidence that the appellant left the jurisdiction, albeit he returned, and he deliberately took steps to evade the police. He showed no remorse, as we have already indicated, and he made a misleading witness statement which contributed to the delay in finding the body.
47.
In refusing leave, the single judge observed:
"As to sentence: I am not persuaded that you have any arguable case that your sentence was manifestly excessive, notwithstanding the lapse of time since the offences were committed and notwithstanding your previous good character. The judge correctly identified a number of aggravating factors in the role you adopted in assisting the family in the disposal of the body. The judge found that you were aware that this so-called 'honour' killing was about to take place and were thereafter willing without hesitation to do whatever was asked of you to dispose of the body. The decision in
Lang
was necessarily fact specific."
48.
We agree. This renewed application is refused. | {"ConvCourtName":["Crown Court at Southwark"],"ConvictPleaDate":["2013-12-05"],"ConvictOffence":["Perverting the course of justice","Preventing a public burial"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southwark"],"Sentence":["8 years' imprisonment (count 1)","5 years' imprisonment concurrent (count 2)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[30],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Relative"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[20],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Cell site evidence","CCTV","Forensic evidence (fibres)","Bank card withdrawal records","Covert recordings (prison visits)","Expert evidence (telephone analysis)","Testimony of appellant's wife"],"DefEvidTypeTrial":["Denial of presence in Birmingham","Claimed to have lent car and phone","Challenged accuracy of covert recording transcripts","Denied ATM withdrawal"],"PreSentReport":[],"AggFactSent":["Offence committed to conceal murder","Appellant knew of murder plan","No remorse","Misled police","Behaviour following offence"],"MitFactSent":["Of good character"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[4],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Judge should not have admitted hearsay evidence from covert prison recordings","Risk that co-accused were mistaken or had hostile motive","Appellant unable to cross-examine makers of statements","Crown should have called co-accused as witnesses","Sentence manifestly excessive","Judge failed to take account of delay between offence and sentencing"],"SentGuideWhich":["Section 114(1)(d) Criminal Justice Act 2003","R v Lang [2002] 2 Cr App R (S) 15; [2001] EWCA Crim 2690","R v Y [2008] 1 Cr App R 34; [2008] EWCA Crim 10"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["R v Lang was fact specific and pre-dated current sentencing regime","Delay not persuasive as appellant evaded police and contributed to delay","Aggravating factors justified sentence"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Evidence properly admitted under s.114(1)(d) CJA 2003","Judge gave appropriate directions to jury","Other evidence supported conviction","No credible risk of mistaken or hostile motive by co-accused","Sentence not manifestly excessive given aggravating factors and circumstances"]} |
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I
N THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number:
[2023] EWCA Crim 1195
Case No: 2023/00569/A3
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 4
th
October 2023
B e f o r e:
LORD JUSTICE STUART-SMITH
MR JUSTICE CHOUDHURY
THE RECORDER OF NOTTINGHAM
Her Honour Judge Shant KC
(
Sitting as a Judge of the Court of Appeal Criminal Divisions
)
____________________
R E X
- v -
RAYON WHEATLEY
____________________
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)
_____________________
Miss E Heath
appeared on behalf of the Appellant
____________________
J U D G M E N T
____________________
Wednesday 4
th
October 2023
LORD JUSTICE STUART-SMITH:
I shall ask Mr Justice Choudhury to give the judgment of the court.
MR JUSTICE CHOUDHURY:
1.
On 3
rd
September 2021, in the Crown Court at Woolwich, the appellant (then aged 30) pleaded guilty to the following offences: count 1, conspiracy to supply a Class A drug (cocaine); count 2, conspiracy to supply a Class B drug (cannabis); and count 3, possessing criminal property.
2.
Following a lengthy delay, the appellant was sentenced on 9
th
February 2023 by Mr Recorder Kovats KC to 63 months' imprisonment on count 1, 36 months' imprisonment on count 2, and 14 months' imprisonment on count 3. All of the sentences were ordered to run concurrently with each other.
3.
The appellant appeals against sentence with the leave of the single judge.
4.
The facts may be briefly summarised as follows. Between 1
st
May 2021 and 5
th
August 2021 the appellant conspired with others to supply cocaine and cannabis.
5.
In the spring of that year a mobile telephone number ending 552 was identified by police officers as a drugs line ("the Rayon Line") offering to supply cocaine and cannabis to users across South East London. Investigation revealed the appellant to be the person topping up the pay-as-you-go account associated with that number. Further investigations revealed the mobile number ending 303 was registered to the appellant. Communication data for the 552 phone showed that the handsets using these two numbers were in the same place throughout the period, and that two other numbers, ending 507 and 461, were at the same place as the 303 number.
6.
Messages sent using the 552 number were consistent with drug dealing. Further analysis of the call data revealed that another man, Dwayne Parker, was acting as a runner for the Rayon Line.
7.
Search warrants executed at the appellant's address on 5
th
August 2021 produced several phones, the contents of which were consistent with use in a drugs line; business cards for J & G Food Services, containing numbers that matched two of the drugs’ lines numbers; and £10,060 in cash.
8.
A search of Parker's address produced various items of drug paraphernalia and a further mobile phone containing both drug line numbers appearing on the business cards. Quantities of drugs were found in his bedroom, as well as on his person when he was stopped and arrested.
9.
Two others were identified in connection with the drugs lines. However, no evidence was offered against them in respect of the conspiracy.
10.
Like the appellant, Parker pleaded guilty to the conspiracies and to the possession of criminal property.
11.
The Recorder rejected the Crown's contention that the appellant had played a leading role in the conspiracy. He stated as follows:
"The Crown's position is that [the appellant] was in control of the Rayon line, and he was the one directing the offer for sale and the sale of the drugs in question. Counsel for [the appellant], Miss Heath, does not accept that he was in sole possession of that phone, but there is no evidence of anybody else controlling that line. And I am satisfied to the criminal standard that the phone – as I said, nicknamed the Rayon line – was in fact controlled by [the appellant] at all material times.
In the light of the large quantity of drugs messages on the line, it is clear that there was a significant amount of drug dealing in both class A and class B drugs. However, Miss Heath, on behalf of [the appellant], says that the evidence from the telephone download shows that these were offers of, effectively, sales to users, retail sales. There was no evidence on the phone of buying and selling of wholesale amounts of drugs. That is not disputed by Miss Khan on behalf of the Crown.
My reading of the sentencing guidelines is that when it refers under leading role to directing or organising buying and selling on a commercial scale, what the guideline has in mind by the phrase 'commercial scale' is wholesale quantities of drugs, as opposed to quantities suitable for end use. If my understanding is correct, then it follows that on the evidence available, while [the appellant] was indeed directing or organising the buying and selling of drugs, this was not on a commercial scale within the meaning of that guideline.
The Crown say that [the appellant] was also in a leading role because he had substantial links to and influence on others in a chain. They point to the involvement of Mr Parker as one of the runners of the Rayon line drugs business. Mr Parker indeed himself accepts that he was a runner in the Rayon line drugs business, but there is no evidence as to how many other people were involved. And where the guideline talks about substantial links to an influence on others in the chain, in my judgment, more is required than is in this case.
There is no evidence that [the appellant] was close to the original source of drugs. There is evidence of substantial financial or other advantage. There is reference in the evidence to business cards, but I am not satisfied that those business cards were being used as a cover for the selling of drugs. While it is possible that they were, I cannot be satisfied to the criminal standard that that was the case. And there was no suggestion that [the appellant] was abusing a position of trust or responsibility.
On the other hand, on any reading of the evidence, [the appellant] did have operational or management function within a chain. He was involving others within the operation, and he did have himself an expectation of significant financial or other advantage, not limited to meeting any habit of his own. He also had an awareness and understanding of the scale of the operation.
I am therefore satisfied that on both count 1 and count 2, [the applicant] falls to be sentenced on the basis of significant role. However, the evidence in this case – and it is a conspiracy that lasts three months, it involves both class A and class B, and there is extensive telephone evidence – all that means that it falls at the top end of significant role, in my judgment."
12.
It was agreed below that harm fell into category 3 of the relevant sentencing guidelines. The Recorder took account of the serious aggravating factor, namely that in September 2017 the appellant was sentenced to three years' imprisonment for possession of Class A drugs with intent to supply, and to a concurrent term of six months' imprisonment for a similar offence relating to Class B drugs.
13.
As for mitigation, although there was some evidence of good conduct in custody, the Recorder found that there were "no significant mitigating features here".
14.
It is also relevant to mention that the Recorder rejected a contention put forward by the appellant that he had engaged in this criminal conduct in order to discharge a drugs debt.
15.
The Recorder then proceeded to pass sentence as follows:
"Applying the guidelines in this case, in my judgment, falling at the top end of the scale for significant role, the sentence I would have passed on [the appellant] for a contested trial on count 1 would be 84 months. I will reduce that by 25 per cent to 63 months. So count 1, 63 months' imprisonment. For count 2, that is conspiracy to supply Class B, as I have said, this will be a concurrent sentence. The sentence would have been one of four years, so 48 months, with 25 per cent credit. That is 36 months concurrent."
The Grounds of Appeal
16.
There are two grounds of appeal. First, it is contended that the Recorder erred in concluding that the starting point for count 2 was 48 months' custody; and second, it is said that the Recorder erred in not taking account of the factors reflecting personal mitigation, including the evidence of the appellant's conduct in prison.
17.
Miss Heath, who appears on behalf of the appellant as she did in the court below, submits that the Recorder's conclusion that the appellant played a significant, as opposed to a leading role warranted a starting point of one year's custody, with a range of 26 weeks to three years, and that taking a starting point of four years for count 2 clearly resulted in a manifestly excessive sentence. She further submits that in respect of mitigation there was evidence that showed the steps being taken to address addiction and the appellant's general good conduct, and that these matters ought to have been taken into account in applying a reduction from the starting point.
18.
Miss Heath fairly acknowledged the difficulties in advancing the argument in respect of count 2, given that there is no challenge to the application of the guidelines in respect of count 1 and the fact that the appellant's role in the conspiracy was significant.
19.
Accordingly, the starting point in respect of count 1 is four years and six months' custody, with a range of three years six months to seven years (84 months). It was entirely consistent with the Recorder's finding that the conduct here fell at the upper end of that range, to take as the sentence of 84 months' custody as the notional sentence before any reduction for plea and mitigation.
20.
We accept that in respect of count 2 the Recorder appears to have incorrectly applied a different starting point and range that that which would have been appropriate in light of the finding that the appellant's role was "significant" rather than "leading".
21.
However, given that the sentence on count 2 was ordered to run concurrently with the far longer sentence on count 1, the error in that regard did not render the overall sentence incorrect.
22.
It is right to note that when dealing with multiple counts, a proper application of the totality principles means that the sentence may need to be increased in order to reflect the overall criminality involved. This may be achieved by uplifting the sentence on the lead count, or by aggravating each of the individual concurrent sentences. In such circumstances the severity of the sentence for the lesser offence may influence the level of uplift to be applied to the lead sentence. However, the Recorder's sentencing remarks do not suggest that he did anything other than to impose a separate sentence on each count. Thus, the Recorder began by stating that the sentence he would have passed in respect of count 1 after a trial would be one of 84 months' custody which, after reduction for the guilty plea (25 per cent), came to 63 months' custody. He then proceeded separately to sentence for count 2. He stated at the outset that the sentence would be concurrent. There is nothing to suggest that the Recorder considered, as he ought to have then done, whether any uplift or any adjustment to the sentence on count 1 was necessary in order to reflect the appellant's overall criminality. The failure to do so means that the error in respect of count 2 has not resulted in a longer sentence than might otherwise have been the case.
23.
As for mitigation, this was a case where the appellant had engaged in similar criminal conduct in recent years, when aged 26. The Recorder correctly treated that as a serious aggravating factor. Whilst evidence of "determination and/or demonstration of steps having been taken to address addiction or offending behaviour" could be a factor reflecting personal mitigation, the Recorder was entitled to regard that evidence as insufficient to reduce the sentence significantly. The evidence from the Peabody Trust as to the appellant's conduct appears to relate to a period before the current offending, and the evidence of engagement with prison programmes is somewhat limited. Such mitigation could, at most, only have resulted in a very small reduction overall, which, had the totality principles been properly applied, would have been likely to have been offset by an increase in the overall sentence to reflect the overall criminality of the multiple offending involved.
24.
Our conclusion, therefore, is that the sentence cannot be said to be manifestly excessive. Accordingly, for these reasons, this appeal against sentence is dismissed.
25.
Before leaving the matter we deal with a small point which has been brought to our attention by the Criminal Appeal Office, which is that the appellant’s offending took place during the operational period of a suspended sentence. On 12
th
April 2021, in the Crown Court at Woolwich, following his conviction for the offence of dangerous driving, the appellant was sentenced to 12 months’ imprisonment, suspended for 24 months. The index offences were committed between May and August 2021. The suspended sentence is not referred to in the sentencing remarks and does not appear to have been brought to the Recorder’s attention.
26.
In our judgment, the appropriate course at this stage, bearing in mind that this appellate court must not impose a sentence that would result in the appellant being dealt with more severely than he had been in the court below, is simply to activate the suspended sentence as from 9
th
February 2023, such sentence to run concurrently with the other sentences imposed. Thus, the overall sentence of 63 months’ imprisonment remains unaffected.
_______________________________
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 Woolwich"],"ConvictPleaDate":["2021-09-03"],"ConvictOffence":["Conspiracy to supply a Class A drug (cocaine)","Conspiracy to supply a Class B drug (cannabis)","Possessing criminal property"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Woolwich"],"Sentence":["63 months' imprisonment (count 1: conspiracy to supply Class A drug)","36 months' imprisonment (count 2: conspiracy to supply Class B drug)","14 months' imprisonment (count 3: possessing criminal property)","12 months' imprisonment (activation of suspended sentence for dangerous driving)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[30],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Communication data","Mobile phone evidence","Cash found","Business cards with drug line numbers"],"DefEvidTypeTrial":["Appellant denied sole possession of phone","Evidence of good conduct in custody"],"PreSentReport":[],"AggFactSent":["Previous conviction for possession of Class A drugs with intent to supply (2017)","Offending during operational period of a suspended sentence"],"MitFactSent":["Some evidence of good conduct in custody","Evidence of engagement with prison programmes"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Recorder erred in starting point for count 2","Recorder failed to take account of personal mitigation"],"SentGuideWhich":["Sentencing Council's (definitive) Guideline for drug offences"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Sentence not manifestly excessive","Error in count 2 did not affect overall sentence","Mitigation evidence insufficient to reduce sentence significantly"]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NOS 202300374/B2 & 202203527/B2
[2024] EWCA Crim 471
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday, 18 April 2024
Before:
LORD JUSTICE WARBY
MRS JUSTICE McGOWAN DBE
HER HONOUR JUDGE KARU
THE RECORDER OF SOUTHWARK
(Sitting as a Judge of the CACD)
REX
V
SIMON DAVIES
__________
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)
_________
NON-COUNSEL APPLICATION
_________
J U D G M E N T
(Approved)
LORD JUSTICE WARBY:
1.
This is a non-counsel matter to which the anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply. 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.
This judgment has therefore been anonymised so far as the complainant is concerned. It is not necessary or appropriate to anonymise the applicant who is Simon Davies.
3.
On 30 May 2022, after a trial in the Crown Court at Aylesbury, he was convicted of four counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003. He was aged 34 at that time.
4.
On 4 November 2023 the applicant was sentenced by the trial judge, His Honour Judge Payne, to an extended sentence of 14 years, comprising a custodial term of 12 years and an extended licence period of two years. That was the sentence on each count to run concurrently. The applicant had pleaded guilty to an offence of sexual communication with a child, contrary to section 15A of the 2003 Act but no separate penalty was imposed in respect of that.
5.
The applicant sought leave to appeal against conviction for which he needed an extension of time. The single judge refused both applications. Both are now renewed. The applicant also made an in-time application for leave to appeal against sentence. That application is also renewed after refusal by the single judge.
6.
This week the applicant applied for leave to appear before us at this hearing. We saw no good reason to take the exceptional course of granting leave. The two applications can fairly be dealt with on the papers provided. These include voluminous written representations from the applicant acting in person, all of which have been read by the court, as well as written grounds provided by his then legal representatives at an earlier stage.
7.
The essential facts of the case are set out in the Criminal Appeal Office summary and familiar to those concerned with the case. They do not need detailed repetition here. It is enough to say that the applicant contacted the complainant via Instagram when she was aged 15. He persuaded her to send him photos of herself and then inveigled her into meeting and having sexual intercourse with him on two separate occasions. She in due course went to the police. When questioned the applicant denied the allegations against him and he pleaded not guilty. His case at trial was that the two had met but there had been no sexual activity of any kind. That account was rejected by the jury.
8.
The applicant has made clear in the course of his representations that he does not now dispute that he did what was alleged against him. His grounds of appeal against conviction fall into two categories. First, it is said that he had mental health difficulties such that he was not fit to stand trial or, if he was, his statements in interview were inadmissible against him and/or he had a defence of insanity or some other answer to the charges based on his mental health. On that aspect of the case the applicant is critical of his legal representatives and his medical witnesses. He also seeks to adduce fresh evidence from his mother and another witness. Secondly, and in addition, it is said that the judge was wrong to admit bad character evidence in the form of a single previous conviction.
9.
The application for leave to appeal was 217 days out of time. The reasons given by the applicant for that delay are that he was incorrectly advised by his lawyer that it was not possible to appeal. He also submits that he found out that he could appeal only by reading an appeals booklet belonging to a cell mate. He says he was also in a poor state mentally, having panic attacks and was suicidal.
10.
The single judge concluded that these reasons could not justify a delay on the scale of this one in seeking to pursue an appeal. We agree. It is not credible that the applicant was advised in the way that he says he was, nor could that and the other matters taken together provide a justification.
11.
The single judge went on nonetheless to consider the merits of the grounds of appeal, concluding that there was no arguable substance to them. We agree with that too. There is no foundation for the criticisms made of the applicant's legal team. There was and is no evidence capable of supporting a case that he was unfit to be tried or that he lacked criminal responsibility or that he was unfairly dealt with in interview. The judge was clearly right to admit the previous conviction. Having done so the judge dealt with it very fairly. There is no basis on which to question the safety of the applicant's conviction.
12.
As to sentence, a single ground of appeal was formulated by counsel for the applicant. This was that in assessing whether the applicant's mental and personality disorders reduced his culpability, the judge failed to have sufficient regard to the psychiatric and psychological evidence and thus failed properly to apply the Sentencing Council Guideline. That is not arguable. The sentencing judge found as a fact that the applicant's behaviour was cunning and planned and principally the product of choices made by the applicant and not a result of his being unwell. The judge had presided over the trial, read the documents relevant to this issue and he was entitled to evaluate matters as he did.
13.
The sentence is not open to criticism on any other basis. The custodial portion was plainly consistent with the sentencing guideline given that there were a number of counts in total. The finding of dangerousness and the imposition of an extended licence period were both open to the judge on the facts and on the basis of the reports before him.
14.
For all those reasons these renewed applications are refused.
15.
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 Aylesbury"],"ConvictPleaDate":["2022-05-30"],"ConvictOffence":["Sexual activity with a child (section 9(1) Sexual Offences Act 2003)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":["at trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Aylesbury"],"Sentence":["Extended sentence of 14 years (12 years custody, 2 years extended licence) on each count, concurrent"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[34],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[15],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Complainant testimony","Instagram messages","Police interview"],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":[],"AggFactSent":["Offence was cunning and planned","Persuaded victim to send photos","Sexual intercourse on two occasions"],"MitFactSent":["Mental and personality disorders (argued but not accepted as reducing culpability)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Appeal against sentence"],"AppealGround":["Unfit to stand trial due to mental health","Statements in interview inadmissible","Defence of insanity or lack of criminal responsibility","Criticism of legal representatives and medical witnesses","Admission of bad character evidence (previous conviction)","Judge failed to have sufficient regard to psychiatric and psychological evidence in sentencing"],"SentGuideWhich":["Sentencing Council Guideline"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No foundation for criticisms of legal team","No evidence of unfitness to be tried or lack of criminal responsibility","Judge was right to admit previous conviction","No basis to question safety of conviction","Sentencing judge entitled to evaluate mental health evidence as he did","Custodial portion consistent with guideline","Finding of dangerousness and extended licence open to judge on facts and reports"]} |
Neutral Citation Number:
[2009] EWCA Crim 1852
Case No:
200901832 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 4th August 2009
B e f o r e
:
LORD JUSTICE GOLDRING
MR JUSTICE BEAN
RECORDER OF KINGSTON-UPON-HULL
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - -
R E G I N A
v
MATTHEW JOHN FISHER
- - - - - - - - - - - - - - -
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 D O'Donnell
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - -
J U D G M E N T
1.
THE RECORDER: On 11th February 2009, at the Crown Court at Ipswich, the appellant pleaded guilty to one offence of assault occasioning actual bodily harm. On 12th March 2009 he was sentenced by His Honour Judge Thompson to an extended sentence of four years, comprising a custodial term of two years' imprisonment and an extension period of two years. He appeals against sentence by leave of the single judge.
2.
The appellant and Natalie Hunt had been in a relationship for just over a year. They had separated some time before the offence took place. The relationship had soured as a result, she said, of the appellant's controlling behaviour and his spiteful, unpredictable and at times violent behaviour towards her.
3.
On the evening of 26th September 2008, Miss Hunt had some girlfriends round to her house for a party. Later she went out and went round a number of public houses in Lowestoft. On two occasions she bumped into the appellant. On one of those occasions he tried to persuade her to rekindle their relationship. She told him in very clear terms that that was not going to happen. He then suddenly turned on her and punched her once to the face using his clenched first. She fell to the floor on her front. He simply walked away as she lay on the ground.
4.
As a result of the punch and the subsequent fall Miss Hunt had injuries to her face. She required dental work, mainly to two chipped front teeth. Initially they were dealt with by way of fillings, but they became painful and infected and required root canal work shortly afterwards. There was a doubtful prognosis and she may lose those teeth altogether.
5.
When interviewed, the appellant was in essence saying that the injury had been caused as a result of an accident. He said it was nothing to do with an assault by him.
6.
In her victim impact statement, dated 7th October, Miss Hunt said that she had been working with vulnerable 13 to 17 year olds when the injuries happened and she had been very concerned about them seeing her facial injuries due to their own life experiences. Further, she started to have problems with chest pains and bruising which she thought had been a consequence of the force with which she fell to the pavement.
7.
The appellant was born on 20th July 1979 and was therefore 30 years of age. He has nine previous convictions for ten offences. They include two offences of assault occasioning actual bodily harm, two offences of threatening behaviour, common assault and an affray. He also has two cautions, including one for section 20 wounding and one for an offence of threatening behaviour.
8.
There was a pre-sentence report before the sentencing judge dated 6th March 2009. In it doubt was expressed as to whether the defendant had a realistic perception of the physical and emotional damage he had caused to the complainant. There was, it was said, a medium risk of re-offending. Notice was taken of the fact that he had been to prison three times for offences of violence, one of those had been against a previous partner in similar circumstances to the index offence. There was a pattern of alcohol-related domestic violence underpinned by sexual jealousy. Reference was also made to his high level of alcohol consumption at the weekends.
9.
Grounds of appeal drafted by counsel do not criticise the imposition of an extended sentence and wrongly state that the sentence was lawful. In fact, the sentence was unlawful. By
section 227(2) of the Criminal Justice Act 2003
the court may impose on the offender an extended sentence of imprisonment if the conditions of subsection (2A) or the conditions of subsection (2B) are met. Subsection (2A) states:
"(2A) The condition in this subsection is that, at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15A."
Subsection (2B) states:
"(2B) The condition in this subsection is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least four years."
10.
As the learned judge was clearly of the view that a custodial term of four years would not be justified and as the appellant had not been previously convicted of an offence specified on Schedule 15A of the Criminal Justice Act, then the only custodial option to the court was a standard commensurate determinate sentence. In such circumstances this court has no option but to allow the appeal so far as the extension period is concerned.
11.
The situation concerning the extended sentence was the only ground upon which leave to appeal was granted by the single judge, the error being first picked up by the single judge. In his grounds of appeal counsel also criticised the length of the custodial term. As we have said, leave was not granted to appeal that part of the sentence. Mr O'Donnell, appearing for the appellant, has renewed his application to raise that point and we have heard him. In essence, his complaint is that too much emphasis was placed on the previous convictions of the appellant.
12.
This is the second time this morning that mention has been made of judges taking too much account of previous convictions. It is worth remembering that
section 143(2) of the Criminal Justice Act 2003
states:
"In considering the seriousness of an offence committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to -
(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction."
13.
We think that the learned judge in the circumstances of this case was quite right to give considerable weight to this appellant's previous convictions. In our judgment, this was a nasty attack by a man prone to violence. The sentence was not wrong in principle and in view of his previous convictions it was not manifestly excessive. Therefore the appeal is allowed only to the limited extent that we have mentioned already, as we have said, relating to the extension period. | {"ConvCourtName":["Crown Court at Ipswich"],"ConvictPleaDate":["2009-02-11"],"ConvictOffence":["assault occasioning actual bodily harm"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Ipswich"],"Sentence":["extended sentence of four years, comprising a custodial term of two years' imprisonment and an extension period of two years"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[29],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":["Offender denies offence"],"PreSentReport":["Medium risk of reoffending"],"AggFactSent":["previous convictions for violence","pattern of alcohol-related domestic violence"],"MitFactSent":[],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence was unlawful as extended sentence not permitted by statute","too much emphasis placed on previous convictions"],"SentGuideWhich":["section 227(2) of the Criminal Justice Act 2003","section 143(2) of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed in part: extension period quashed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence not wrong in principle","not manifestly excessive","judge was right to give weight to previous convictions"]} |
Case No:
201401529 C1
Neutral Citation Number:
[2015] EWCA Crim 1123
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT IN ST ALBANS
RECORDER HOLLANDER QC
T20120251
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26/06/2015
Before :
LORD JUSTICE BEAN
MR JUSTICE SPENCER
and
HIS HONOUR JUDGE COOKE QC
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
SEDRIC GENIUS SMITH
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mozammel Hossain
(instructed by
Newgate Solicitors
) for the
Appellant
Ms Sarah Porter
(instructed by
CPS Appeals Unit
) for the
Respondent
Hearing date : 19 June 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Bean :
1.
From 27
th
to 29
th
August 2013 the applicant stood trial in the Crown Court at St Albans before Mr Recorder Hollander QC and a jury on one charge of possessing a controlled drug of Class A with intent to supply and two charges of possessing criminal property. On 29
th
August he was convicted on all three counts. On 19
th
September 2013 he was sentenced to 4 ½ years imprisonment on the drugs charge with no separate penalty in respect of the other two. Following refusal by the single judge he seeks permission to appeal against both conviction and sentence.
2.
In support of the application relating to his conviction he sought to adduce fresh evidence from two witnesses, his former partner Cheryl Gunter and his sister Lisann Smith. There was an issue as to why these two witnesses had not been called at the trial. On 29
th
January 2015 this court (myself, Irwin J and the Recorder of Carlisle) gave directions which included the obtaining of statements from the solicitor (Mr Assem Taj) and counsel (Mr David Taylor) who had conduct of the defence at trial. We heard oral evidence from Ms Gunter, Ms Smith, Mr Taj and Mr Taylor at the outset of the hearing before us, the first three being called by Mr Hossain on behalf of the applicant and the last by Ms Porter on behalf of the respondent.
The evidence at trial
3.
On 21
st
October 2011 at about 1300 hours, two plain clothes police officers (PC Hussain and PC Chipchase) were on patrol in Riverside Road, St Albans, when they noticed the applicant who was known to them. They stated that when the applicant saw and recognised them, he turned around and ran into an alleyway. PC Hussain gave chase and only lost sight of the applicant for a fraction of a second. He saw him throw something with his left hand, to his right, over a low fence. Thereafter the applicant slowed down and was detained by the officers. He stated, “I ain’t got nothing Kash. I stopped because I know it’s you.”
4.
A subsequent search of the area over the fence revealed a small cutting from a black plastic bag, which contained six wraps of cocaine with a total weight of 3.46 grams and a value of between £160 and £240. The applicant was searched and approximately £1,210 in cash was found on him. In addition, he had two mobile phones and four lists showing numbers and letters and which were suspected to be “drug dealing lists” Upon arrest he stated “You haven’t got any evidence on me Kash”. No fingerprints or DNA were found on the packaging and analysis of the applicant’s mobile phone did not provide any evidence to support the charge of drug dealing. In interview, he made no comment but gave a prepared statement in which he denied discarding any drugs or that the money was the proceeds of drug dealing.
5.
On 20
th
December 2011, PC Hussain was again on patrol in plain clothes, driving an unmarked police vehicle. At about 0100 hours he had cause to stop a silver Astra in which the applicant was the front seat passenger. He considered the applicant’s behaviour to be “nervous and evasive” and therefore detained him for the purpose of a drugs search. Other officers arrived and the applicant was searched and found to be in possession of £1,810 in cash. He was arrested and in interview, made no comment but gave a prepared statement in which he stated:
“I had £1400 last night. It is money given to me from family to buy a car with and pay off my overdraft…….The money is not from anything illegal.”
6.
Financial investigations revealed that the applicant had not been in registered employment since leaving the armed forces in 2007 and that he received a legitimate income from benefits and military pension totalling £6,708 per annum. His bank accounts revealed additional regular cash deposits of £500 or £600, totalling £3256 in 2011, and that he spent £2325.34 hiring various vehicles during that year.
7.
It was accepted that the applicant had been stopped and searched by PC Hussain on at least five additional occasions between 2010 and 2011 (the applicant contended it was about 50 times). PC Hussain said that he had proper reason for each stop and search; however he accepted that on some occasions, including the two occasions directly in question, he had not completed the proper paperwork, as he was required to do by the Codes of Practice. Accordingly, there were breaches of the Codes in respect of the stops in October and December 2011. PC Hussain accepted his error but explained that the information was nevertheless set out his written section 9 statements, which he had erroneously understood to be sufficient. The jury were directed to take these matters into account when assessing the evidence as a whole.
8.
The prosecution case was that the applicant was in possession of the cocaine wraps intending to supply them to others. In addition that the two sums of cash were lawfully seized on 21
st
October and 20
th
December 2011 and were the proceeds of criminal activity. Reliance was placed upon the evidence of the police officers and the presence of “dealer’s lists” upon the applicant.
9.
The defence case
was that the applicant was never in possession of the cocaine and did not throw it over the fence as alleged. The cash found on his person on both occasions was from a legitimate source and not the proceeds of criminal conduct as alleged. He contended that the searches on each occasion were unlawful because the officer did not have reasonable grounds for suspicion that he would find stolen or prohibited articles. The lists exhibited as “dealer’s lists” were in fact notes relating to his gambling activity.
10.
The applicant gave evidence that on 21
st
October 2011 he was walking along the street in St Albans and saw someone jump out from a car so he ran away because he was scared. When they shouted “police” he stopped. It was PC Chipchase that stopped and detained him, not PC Hussain who was further behind. He was never in possession of the cocaine and did not throw it away. He was not a drug dealer and did not have any drugs on him. They were planted by PC Hussain who had stopped and searched him numerous times before and he considered he was being victimised. The pieces of paper with letters and numbers were not “dealer’s lists” but either gambling lists or something from his army days. He believed they were taken from him on an earlier occasion in February 2011 and that PC Hussain was lying when he said they were found on 21
st
October 2011.
11.
In relation to the two sums of cash (counts 2 and 3), these may have been the proceeds of gambling, or may have been a loan from his sister, or money to buy his baby daughter a Christmas gift.
The grounds of appeal
12.
We have in the papers grounds of appeal against conviction and sentence drafted by Mr Taylor. When the papers were before the single judge it was thought that these were lodged out of time. We now have a signed statement of the solicitor then acting for Mr Smith to the effect that they were lodged on 27
th
September 2013. We are prepared to accept that the application was made in time. Mr Taylor’s grounds relating to the conviction complained that the judge “erred in law in refusing an application on 27/8/13 at the end of the prosecution case of no case to answer and/or to stay the proceedings as an abuse of process of the court”. Mr Hossain’s revised grounds, contained in his skeleton argument of 15
th
March 2015, substitute the following:
a)
trial counsel ought to have applied to exclude (under
s78
of
PACE 1984
) the evidence of “dealer lists” relied on by the prosecution to prove an intent to supply in respect of count 1;
b)
details disclosed in the CAD were not adduced at trial or relied on for further enquiry resulting in prejudice to the applicant in the conduct of his defence;
c)
crucial witnesses of fact were not called on behalf of the applicant resulting in a failure adequately to advance his defence at trial.
The dealer lists issue
13.
The documents said to be dealer lists consisted of a few sheets of paper with entries consisting of initials and the figure 1 or 2 (e.g. CR 2 or TP 1). It was not disputed that these were in the defendant’s handwriting, nor that they were his. The prosecution case was that they had been seized from him by PC Hussain on 21
st
October 2011 following his arrest on the drugs charge and that they were dealer lists. The defence case was that they had been seized from the applicant by PC Hussain on a previous occasion and that they related to gambling, not to drugs. It was at the heart of the defence case that PC Hussain had unreasonably stopped and searched Mr Smith on several previous occasions that his evidence as to what occurred on 21
st
October 2011 was untrue, both as to observing the defendant throw a package of drugs over a fence and as to the alleged seizure on the day of the dealer lists, the latter being in truth “recycled” from the previous seizure as part of PC Hussain’s dishonest evidence.
14.
As we have noted, there was an application at the close of the prosecution case for the case to be dismissed on the grounds of abuse of process or unreliability of the evidence, which was rejected by the learned judge; and Mr Taylor’s original grounds of appeal argued that the judge should not have allowed the case to go to the jury. The single judge refused leave on that point and Mr Hossain did not reargue it. He was right not to do so. It was plainly for the jury to decide whether or not PC Hussain was lying. There were no obvious inconsistencies in the prosecution evidence such as to make the case too unreliable to proceed further.
15.
However, Mr Hossain puts the case in a different way by criticising trial counsel’s decision not to apply to exclude the alleged dealer lists under
section 78
of PACE. He submits that the police record of property seized makes no mention of the dealer lists; that the CAD log compiled on the basis of PC Hussain’s telephone call giving basic details of the arrest made no mention of them either; that the seizing of the dealer lists, if that did indeed occur on 21
st
October 2011, had not been properly recorded; and that there had accordingly been significant (and to a large extent undisputed) breaches of the requirements of the relevant PACE Code of Practice which could and should have been made the basis of an application for the lists to be excluded from the evidence placed before the jury.
16.
We consider that the decision not to go down that route was a tactical one properly within the discretion of trial counsel. The potential disadvantage of an application of this kind was that it would have necessitated PC Hussain being cross-examined before the judge in the absence of the jury on the
voir dire
. This would have afforded the allegedly dishonest main witness for the prosecution a dress rehearsal in advance of being required to give evidence before the jury. There were other weaknesses in the prosecution case (for example the height of the fence over which the drugs were allegedly thrown, as shown in photographs taken by the defendant) which trial counsel may understandably have wished to be able to raise in cross-examination without such a dress rehearsal.
17.
We think it is most unlikely in any event that an application to exclude the lists would have succeeded. The judge would no doubt have said, as he did in his ruling rejecting the “half time” submission, that the truthfulness of the police officer should be a matter for the jury to decide and that the failures in recording the seizure were not so egregious as to justify preventing the documents from being placed before the jury. In the event the provenance of the documents was explored before the jury in cross-examination and the defendant then gave evidence both on this issue and on the nature of the documents, namely that they related to gambling and not to drugs. This ground of appeal, which Mr Hossain described as his best ground, is in our view not arguable.
18.
We take the same view about the separate but very similar ground relating to the CAD log, which does not contain mention of the alleged drugs seizure. Complaint is made that the document was not explored at trial, nor relied on in support of the abuse of process application. We have seen the document and in our view it is far less significant than Mr Hussain suggests. It is of course no more than a record of some information reported over a police radio. It says that “one [suspect] making off has now been detained”. It records which officers arrived at the scene and when, and similarly when each of them left. It gives the location of the incident, and some of the history of the defendant’s previous encounters with the police obtained from the police national computer.
19.
Although the document was not made an exhibit nor shown to the jury it is apparent from the transcripts which we have that it was available to counsel on both sides at the trial and that PC Hussain accepted when giving evidence that it made no mention of the finding of drugs (nor for that matter, of the dealer lists). No application was made to place the document as such before the jury and we do not see how it could have assisted the defendant’s case.
The fresh evidence application
20.
We turn to the application to adduce fresh evidence. Counts 2 and 3 of the indictment alleged, respectively, that cash found on the defendant on two occasions was criminal property (that is to say the proceeds of drug dealing), £1210 was found on him on the date of his arrest on 21
st
October 2011 and £1810 on 20
th
December 2011.
21.
The defendant’s former partner Cheryl Gunter had given a witness statement to his solicitors, signed on 20
th
November 2012. This stated that between 2007 and 2009 she had withdrawn between £300 and £400 each month from her bank account to give to Mr Smith in order that he in turn could make instalment payments in respect of a car registered in her name. She said that they were in a relationship at the time; her credit score was low; and it was therefore better for him to make the payments from his account. She confirmed this evidence before us.
22.
Lisann Smith, the defendant’s younger sister, had not given a signed witness statement to his solicitors prior to the trial, although we have in the papers an unsigned and undated draft. Her evidence was that on 19
th
December 2011, the day before the defendant was arrested and found to have £1810 on him, she had withdrawn the entire contents of her bank account except for 20p, the sum involved being £1353, and handed the whole sum over in cash to her brother. Again, she confirmed this in evidence before us. Her bank statement for December 2011 shows that on 19
th
December she made a withdrawal of this amount which reduced her credit balance to 20p, and that no replenishment of the account took place until 30
th
December 2011. She could give no explanation of why she (as a single parent looking after three children, and in the week before Christmas) should have been willing to reduce her account to 20p simply because her brother asked her for a loan.
23.
Neither of these witnesses gave evidence at trial. The grounds of appeal complained that these two witnesses of fact should have been called and that Mr Taylor’s failure to do so resulted in a failure to adequately advance the defence. In accordance with the procedure laid down in the case of
McCook
the applicant was invited to (and did) waive legal privilege; statements were obtained from the applicant’s then solicitor Mr Taj and Mr Taylor; and we heard from both of them in oral evidence.
24.
It seems clear to us that Mr Smith’s lawyers were leaving it to him to secure the attendance at the trial of his former partner and his sister if they were required. It is also clear that no steps were taken even to request their attendance until the trial had begun. The trial began on Wednesday 27
th
August. Prosecution witnesses gave evidence on that day and for some of the next day. Following the unsuccessful submission that there was no case to answer in the course of the second day the defendant then gave evidence.
25.
Ms Gunter said that on the day of the trial Mr Smith telephoned her asking if she could attend the next day. He then passed the telephone to his lawyer: she did not recall a name, but there is no dispute that this was Mr Taylor. She told him that there was no way that she could attend the following day because a new phone and computer system was being installed in her department at work and she had been told in advance (as had everyone in the office) that they had to be at work that day.
26.
Lisann Smith, similarly, was only asked to attend the day before she was required. She told her brother that she could not get a babysitter at such short notice. She said that if the matter had been put off “for a few days” she could have attended.
27.
Mr Taylor told us, and we accept, that he discussed with his client before the latter gave evidence how to proceed in respect of the witnesses. He advised Mr Smith that he could apply to the judge to issue witness summonses against either or both of Ms Gunter or Mr Smith. Mr Smith said that he was not willing to have summonses issued. He said that he could account for the money. There was another discussion at the conclusion of the defendant’s evidence on the afternoon of the second day of the trial. This was confirmed by Mr Taj, who told us that his impression was the client and trial counsel had discussed the matter. He (Taj) was satisfied that the decision had been made by both of them together, and also confirmed that the client had said that he didn’t want the witnesses to be summonsed.
28.
Although Ms Smith was not summonsed to attend court and did not do so, her bank statement was adduced in evidence (the prosecution having consented to this course of action) and the defendant told the jury that the £1353 shown to have been withdrawn by his sister on 19
th
December 2011 was paid over to him.
29.
Mr Hussain submits that Mr Taylor should either have applied for witness summonses or have sought an adjournment, presumably to the following week, to enable the witnesses to attend. As to the first alternative, we are entirely satisfied that the defendant instructed his lawyers that no application was to be made for a witness summons. As to the second, we have no doubt that the judge would have refused such an application had it been made. The defendant had had the opportunity of arranging for his sister and ex-partner to attend court. In the case of the sister there was not even a signed witness statement in existence. An adjournment to the following week would have caused significant and costly disruption. We are confident that in respect of Lisann Smith the judge would have said that either she was to attend at the start of the hearing on Friday or not at all, and that if the defence wished the witness summons to be issued he would do so. As for Ms Gunter, the judge would no doubt have asked what relevant evidence she could give, and, on seeing the contents of her witness statement, would have asked why it was necessary for her to attend court at all. It seems to us inconceivable that the judge would have adjourned the case until the following week.
30.
There is another factor to which the judge would have been entitled to have regard in deciding whether to adjourn to enable Ms Smith to attend. The relevance of her evidence was to support the defendant’s case on count 3, which was: the £1810 he was carrying around late at night on 20
th
December 2011 was not the proceeds of drug dealing. On the contrary: 80% of it was given to me by his sister Lisann the previous day. Yet when interviewed following his arrest he confined himself to handing in a prepared statement including the line “I had £1400 last night, it is money given to me from family to buy a car and pay off my overdraft”. Lisann is mentioned neither in that prepared statement nor in his subsequent defence case statement which was on the same lines.
31.
We turn to consider the statutory questions under
s 23(2)
of the
Criminal Appeal Act 1968
. We consider that Ms Gunter’s evidence is capable of belief (indeed it was scarcely disputed) but that it adds nothing to the case: certainly it does not arguably form a ground for allowing the appeal. As for Ms Smith, her evidence that she handed over £1353 to her brother on 19
th
December 2011 is not capable of belief. We also take into account the defendant’s deliberate decision not to name his sister at any stage prior to the trial as the source of most of the money the subject of count 3, or as a material witness in any other respect, and his (not his lawyers’) failure to secure her attendance at the trial.
32.
After we had reserved judgment on the application Mr Taj saw fit to send in yet another witness statement. This consists partly of argument and partly of an account of a conversation with his client in prison after the trial relating to what he had been advised by Mr Taylor about the nature of a witness summons and whether an application could be made for an adjournment. In our view it adds nothing to the applicant’s case.
33.
We decline to receive the statements of either Ms Gunter or Ms Smith in evidence. In the result there are no arguable grounds for doubting the safety of the conviction in this case. The renewed application for permission is refused.
Sentence
34.
In passing sentence the Recorder said that the defendant fell within the significant role category of the sentencing council guideline for supplying controlled drugs, being “motivated by financial or other advantage, whether or not operating alone”. He took into account the fact not merely that Mr Smith had been convicted of possessing eight wraps of cocaine with intent to supply, but also the possession of dealer list, the fact that the drugs were bagged up for supply, and the fact that on two occasions he was found to have substantial sums of cash on him which the jury had found to be the proceeds of drug dealing. The Recorder also found that as a street dealer selling direct to users the defendant fell into category 3 for the purpose of the guidelines. He said that he would impose no separate penalty in respect of counts 2 and 3 because that would be a form of double counting.
35.
The judge took into account that the applicant was substantially a man of good character (he had been convicted by a court martial of relatively minor offences many years previously) and that his career in the army had left him suffering from post-traumatic stress disorder: though, as the Recorder rightly said, having PTSD does not in any sense justify a course of drug dealing. He imposed a sentence on count 1 of 4 years, 6 months imprisonment, which is the starting point for a significant role at category 3 level, the category range being from 3 years 6 months to 7 years.
36.
Mr Hossain’s submission on sentence is that the judge must either have given no credit for the applicant’s personal mitigation or have gone above the starting point before making allowance for it. He submits that his client should have been given a discount for personal mitigation from the starting point, so as to result in a lower sentence than 4½ years. We disagree. For the reasons given by the judge, who had of course heard the evidence at trial, he was entitled to go a little way above the standard starting point of 4½ years before returning to that figure after taking account of the applicant’s personal mitigation. We are unable to say that the sentence which he imposed was excessive or wrong in principle. The renewed application for permission to appeal against sentence is refused. | {"ConvCourtName":["Crown Court at St Albans"],"ConvictPleaDate":["2013-08-29"],"ConvictOffence":["Possessing a controlled drug of Class A with intent to supply","Possessing criminal property"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at St Albans"],"Sentence":["4 years 6 months imprisonment on the drugs charge","No separate penalty for the other two counts"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Unemployed"],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Police officer testimony","Physical evidence (cocaine wraps)","Cash found on person","Dealer's lists","Financial investigation"],"DefEvidTypeTrial":["Defendant testimony","Bank statement (sister)","Prepared statement denying drug dealing","Argument that lists related to gambling"],"PreSentReport":[],"AggFactSent":["Drugs were bagged up for supply","Possession of dealer list","Found with substantial sums of cash on two occasions"],"MitFactSent":["Substantially a man of good character","Previous minor convictions only","Career in the army","Suffering from post-traumatic stress disorder"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Appeal against sentence"],"AppealGround":["Trial counsel ought to have applied to exclude the evidence of 'dealer lists' under s78 of PACE 1984","Details disclosed in the CAD were not adduced at trial or relied on for further enquiry resulting in prejudice to the applicant","Crucial witnesses of fact were not called on behalf of the applicant resulting in a failure adequately to advance his defence at trial","Judge erred in law in refusing an application of no case to answer and/or to stay the proceedings as an abuse of process"],"SentGuideWhich":["Sentencing Council guideline for supplying controlled drugs"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["The judge was entitled to go a little way above the standard starting point before returning to that figure after taking account of the applicant’s personal mitigation. The sentence was not excessive or wrong in principle."],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Decision not to apply to exclude dealer lists was a tactical one within trial counsel's discretion","Unlikely that an application to exclude the lists would have succeeded","CAD log was not significant and would not have assisted the defence","Defendant instructed his lawyers not to apply for witness summons for crucial witnesses","No arguable grounds for doubting the safety of the conviction","Sentence imposed was not excessive or wrong in principle"]} |
Case No:
2012/01743
Neutral Citation Number:
[2012] EWCA Crim 1761
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT BIRMINGHAM
HIS HONOUR JUDGE BURBIDGE QC
T2011/7776
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
31/07/2012
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE MACKAY
and
MR JUSTICE SWEENEY
- - - - - - - - - - - - - - - - - - - - -
Between :
HAMESH GUL
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr G A Russell
for the
Appellant
Mr Duncan Penny
for the
Respondent
Hearing dates: 19
th
July 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
On 6 June 2010, during the course of a visit to his nephew, Hamesh Gul (the appellant) attempted to smuggle a small package of heroin into prison. On 15 April 2011 he was convicted of an offence of possession of a controlled drug of Class A with intent to supply and sentenced to 4 years imprisonment. At the start of his sentence he smuggled a package containing drugs into HM Prison, Birmingham. Four days later, on 19 April 2011, the package was discovered. It contained substantial quantities of three different controlled drugs, methadone, diazepam and temazepam.
2.
The appellant was charged with an offence contrary to s.40(1)(b) of the Prison Act 1952 of conveying “list A articles into a prison”. This offence is an indictable only offence. On 25 August 2011 he appeared before the Birmingham Magistrates Court. He was sent for trial on that charge, pursuant to s.51 of the Crime and Disorder Act 1998 (the 1998 Act).
3.
On 16 December 2011 the draft indictment had been prepared. It contained six counts. Three counts alleged possession of controlled drugs with intent to supply. The drugs in count 1 were of Class A, and in counts 2 and 3 of Class C. Three further counts alleged simple possession of the same drugs. None of the offences was an indictable only offence. Following amendment of the bill to correct errors in the appellant’s name and the classification of the controlled drugs particularised in the counts, the indictment was signed at a plea and case management hearing before HH Judge Thomas QC. When the indictment was put to the appellant, he pleaded guilty to the three counts of simple possession, but not guilty to the remaining counts. The case was adjourned for trial.
4.
On 23 February 2012 in the Crown Court at Birmingham before His Honour Judge Burbidge QC and a jury the appellant was convicted of the three counts of possessing controlled drugs with intent to supply. He was sentenced to 4 years imprisonment on count 1 and 2½ years imprisonment on counts 2 and 3, the sentences to run concurrently. A number of other orders were made, but they need no recital.
5.
The present appeal against conviction requires attention to be focused on events at the plea and case management hearing, and in particular, non- compliance with the procedural requirements laid down by paragraph 7 of Schedule 3 of the 1998 Act. No other ground of appeal is advanced, and in particular no criticism is made of the trial judge, or any aspect of the trial. The question is whether the proceedings which culminated in these convictions were a nullity with the inevitable consequence that convictions must be quashed.
6.
The submission that they were indeed a nullity, carefully advanced on behalf of the appellant by Mr Russell, starts with the undoubted fact that although the appellant was sent to the Crown Court for trial on an indictable-only offence, no indictable-only offence was included in the indictment when it was signed. At the plea and case management hearing the procedure to determine what is sometimes described as the mode of trial – that is trial on indictment or summary trial - as required by Schedule 3 to the 1998 Act was not followed. That is why, he argues, the subsequent proceedings were a nullity.
Paragraph 7 of Schedule 3 to the 1998 Act
7.
Paragraph 7(1) requires that (subject to cases involving children or young persons, which does not arise here)
“… where –
(a) a person has been sent for trial under section 51 of this Act but has not been arraigned; and
(b) the person is charged on an indictment which (… for any … reason) includes no offence that is triable only on indictment”.
8.
When these conditions are present, as they were here, the relevant procedures are prescribed. The accused must be present in court. Each count of the indictment that charges an offence triable either way is to be read to the defendant. Paragraph (4) then provides:
“The court shall then explain to the accused in ordinary language that, in relation to each of those offences, he may indicate whether (if it were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty the court must proceed as mentioned in sub-paragraph (6) below.”
Next, the defendant must be asked whether he would plead guilty or not guilty if the offence charged in the count in the indictment were to proceed to trial.
9.
Paragraph 6 provides that:
“if he indicates that he would plead guilty, the court shall proceed as if he had been arraigned on the count in question and had pleaded guilty”
Where the accused indicates that he would plead not guilty, or fails to indicate how he will plead, paragraph 7 then requires that:
“… the court shall consider whether the offence is more suitable for summary trial or for trial on indictment.”
Paragraph 7 does not apply if the defendant has indicated a guilty plea to all counts: if so, paragraph 6 would apply and there would be no subsequent trial, whether summary or on indictment.
10.
The provisions in paragraph 7(7) are developed in paragraph 9. When the court is considering the question whether an offence is more suitable for summary trial or for trial on indictment, paragraph 9(2) provides:
“Before considering the question, the court shall afford first the Prosecutor and then the accused an opportunity to make representations as to which mode of trial would be more suitable.”
11.
Assuming that has been done, the court addressing the question is required to have regard to, among other factors, “any representations made by the Prosecutor or the accused”. It is also to have regard to the nature of the case; whether the circumstances make the offence one of a serious character; whether the punishment which a Magistrates Court would have power to impose for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other.
12.
If, after appropriate reflection, the court considers that an offence is more suitable for summary trial rather than trial by jury, the defendant must be put to his election. It is perhaps worth noting that this stage in the process is not a matter of entitlement: the issue does not arise until the court itself has decided that the offence is appropriate for summary trial. If however the Crown Court considers that the offence is more suitable for trial on indictment, then the defendant is so informed, and the Crown Court retains its functions and proceeds accordingly.
13.
In the Crown Court at Birmingham on 16 December 2011 the plea and case management hearing did not address the issue whether summary trial or trial on indictment was not appropriate. It followed that the appellant was not afforded the opportunity to make representations about the mode of trial, and the Crown Court did not explain whether it considered the case was suitable for summary trial or trial on indictment. This non-compliance with the provisions of paragraph 7 of Schedule 3 was plainly inadvertent. No one at the Crown Court spotted the omission, perhaps because the appellant had been committed for trial on a single indictment-only offence, perhaps because by pleading guilty to some of the offences in the indictment the case would have to remain in the Crown Court and perhaps, too, however one examined the facts alleged against him, they were plainly far too serious to be appropriate for summary trial. Nevertheless, although it is not possible to discern, and Mr Russell did not suggest, that this non-compliance caused any prejudice to the appellant, if he is right that it resulted in a trial which was a nullity, the conviction cannot be allowed to stand.
14.
The problems which arise in this case have already been considered in this court. In
Haye
[2002] EWCA Crim. 2476
the procedure required by paragraph 7 of Schedule 3 was not complied with when the appellant, having been sent to the Crown Court under s.51 for an offence of robbery was indicted and convicted of a single count of theft. It was conceded by the Crown that in consequence the proceedings were a nullity. After reflecting on the equivalent provisions in the Magistrates Court Act 1980, on which Mr Russell focused our attention his argument, on the basis that the defendant should have been informed of his rights and was not, this court agreed. The conviction was quashed.
Haye
was followed in
Gayle
[2004] EWCA Crim. 2937
(where the defendant was convicted on an indictment containing a single count of assault occasioning actual bodily harm). Counsel for the Crown agreed that the trial was a nullity, and the court endorsed his concession.
15.
There was no merit in either appeal. The convictions were quashed on purely technical grounds. Not long afterwards the approach of this court to procedural defects of a technical nature was examined, in the context of confiscation proceedings, by this court in
Sekhon
[2003] 1 WLR 1655
and in the House of Lords in
Soneji
[2006] 1 AC 340
. The essence of these decisions is encapsulated in the headnote to
Soneji
that:
“The correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was the purpose of the legislature that an act done in breach of that provision should be invalid … ”.
16.
The result was the adoption by the courts of a much looser or less rigid approach to procedural failures. In
Ashton and Others
[2007] 1 WLR 181
this was explained in terms of defects which could fairly be described as procedural in contrast to those which went to jurisdiction.
Draz
was one of the cases considered in the judgment. The defendant was wrongly sent for trial under s.51 of the 1998 Act when he should have been committed for trial. The procedure in paragraph 7 of Schedule 3 was followed, but the issue for the Court of Appeal arose from the decision of the judge that it was unnecessary for the indictment to be preferred, and that even if it should have been preferred, it would not have been fatal to the validity of the proceedings that the indictment had not been signed. The court expressed the “confident” view that if
Haye
had been decided after
Soneji
and
Sekhon
the conviction would not have been quashed. The same reasoning would have undoubtedly been applied to
Gayle
.
17.
In
Thwaites
[2006] EWCA Crim. 3235
this court considered a committal for trial for an indictable-only offence, followed by an indictment containing a number of counts all of which where either way offences. The defendant pleaded not guilty to all the counts. The procedure in paragraph 7 of Schedule 3 was not followed. In short, it directly addressed the question which arises in this appeal. The court took the view that it was bound not by the decisions in
Haye
and
Gayle
, but the decision in
Ashton
. This approach was preferred, first, because
Ashton
had been decided in the light of the decisions subsequent to
Haye
and
Gayle
in the House in Lords in
Soneji
and this court in
Sekhon
, and second, by reference to the decision in this court in
Clarke and McDaid
[2006] EWCA Crim 1196
where, in the context of an unsigned indictment, and applying
Ashton
, it was held that the proceedings were not automatically to be regarded as invalid because the indictment had not been signed. As everyone knows, the decision of the Court of Appeal in
Clarke and McDaid
was revisited in the House of Lords
[2008] 1 WLR 338
.
18.
The House of Lords decided that the Administration of Justice (Miscellaneous Provisions) Act 1933 led to the inexorable conclusion that a duly signed indictment was an essential pre-requirement to a valid trial. The statutory provision indicated that without a properly signed indictment the subsequent trial and verdict were nullities. When procedural errors (including failures or omissions) occurred, the answer to the question whether the processes subsequent to the errors were nullified depended on the intention of the legislation. Thus it was “inescapable” that in the 1933 Act “Parliament intended that the bill should not become an indictment unless and until it was signed by a proper officer … (and) that there could be no valid trial on indictment if there were no indictment”. Nevertheless a number of different cases arising from errors relating to indictments fell “squarely into the procedural category” without invalidating the subsequent trial. Criticism of the decision in
Draz
did not arise from the fact that the procedure under s.51 of the 1998 Act was not followed, but it was underlined that, in effect as a matter of jurisdiction arising from an unequivocal statutory provision, a signed indictment was an essential prerequisite to the trial. The decision represented a salutary warning that not all procedural errors and omissions could be brushed aside merely because the defendant was unable to demonstrate some level of prejudice consequent on them.
19.
In our judgment, in view of the reasoning in
Clarke and McDaid
in the House of Lords and the observations about the way in which the decisions in
Sekhon and Soneji
should be approached,
Hayes
and
Gayle
require re-examination. We cannot without further reflection rely on the approach taken in
Thwaites
, which at least in part, was based on
Ashton
, which it now emerges is no longer of the broad application suggested when
Ashton
was decided in this court. We must, we believe, return to first principles and ask ourselves whether, when properly examined, there was non-compliance with paragraph 7 of Schedule 3, and if there was, we must then address the question whether Parliament intended the consequence of non-compliance with these provisions to render any subsequent proceedings a nullity.
20.
This case was properly submitted to the Crown Court under s.51 of the 1998 Act. The indictment was duly prepared and signed. The counts in the indictment identified the offences with which the defendant was charged. The offences arose from precisely the same facts and were based on the same evidence as the single indictable-only charge which founded the committal. In effective accordance with paragraph 7 of Schedule 3, the defendant was asked whether he would plead guilty or not guilty to each of the counts in the indictment. He indicated by his pleas that he would plead guilty to the three lesser counts. That meant, in accordance with paragraph 6, that the court had to proceed in relation to those three counts as if he had been arraigned and pleaded guilty to them in the Crown Court. There was no question of summary trial of these counts.
21.
Once the defendant had pleaded guilty to the lesser offences the case was bound to remain in the Crown Court. Of itself, that brought any possibility of summary trial to an end and therefore had the same effect as the presence on the indictment of an indictable only offence. The idea that proceedings in the same case, arising out of the same subject matter, should be addressed in separate jurisdictions (the Crown Court and the Magistrates Court) seems utterly remote. In our judgment on these facts non-compliance with the objective of paragraph 7 of Schedule 3 is not established.
22.
We shall, however, assume for present purposes that this conclusion is wrong. On their particular facts it would not in any event have applied to the decisions in
Haye
or
Gayle
or indeed
Thwaites
.
23.
The responsibility for considering whether any counts in the indictment to which the appellant pleaded not guilty, or was treated as if he had so pleaded, were more suitable for summary trial or trial on indictment is vested exclusively in the court. The entitlement of the defendant is to make submissions in support of summary trial if he wishes to do so, but the defendant does not enjoy an unfettered entitlement to summary trial. The ultimate decision must be made by the court. If however the defendant wishes to be tried summarily and the court has failed to give him the opportunity to ask for it, there is nothing in the procedure which prevents an application by him to that effect. In short, in the final analysis it is for the court, not the defendant or the prosecution, to determine whether summary trial or trial on indictment seems most appropriate. What the defendant enjoys at that stage is a right to be heard when the issue is addressed. If the decision is made by the Crown Court that the case is more suitable for summary trial, only then does the defendant have the right to elect trial by jury. He has no corresponding right to elect summary trial.
24.
Assuming, as we have done, that the option of summary trial was available, and therefore that its suitability should have been considered by the Crown Court, it was a failure of process for the court not to seek representations from the defendant or the prosecution on the issue. If the omission had been a deliberate step, designed to circumvent the provisions in Schedule 3 and so deprive the defendant of summary trial which might realistically have been available, this might have constituted an abuse of process. That however is not this case. In the end, the complaint here is no more and no less than that the defendant, like the prosecution, was not invited to make representations about the mode of trial. Thereafter no application to do so was made. The omission of that procedural step did not vitiate the indictment or the process before the Crown Court. In our judgment if Parliament had intended that the deprivation of the opportunity to a defendant sent to trial under s.51 of the opportunity to elect for summary trial for the either way offences included in the indictment, it would have left the choice of summary trial entirely to the defendant by vesting an unequivocal right in him. It did not do so. What is more, any defect in the process, which meant that the defendant was not invited to make submissions about the possible suitability of summary trial was readily curable: the defendant could and should have made an appropriate application. In these circumstances, with a remedy available to the defendant, it is inconceivable that Parliament intended that the consequence of non-compliance would be to render subsequent proceedings in the Crown Court a nullity.
25.
Three serious offences of possession of drugs in prison with intent to supply plainly required trial in the Crown Court. It has never been suggested that, given the option, either he or the prosecution, would have sought trial before the Magistrates Court, and he did not do so
26.
These proceedings were not nullified by the flaw in the process in the Crown Court on 16 December. No further basis for setting aside the conviction has been suggested. The appeal against conviction is dismissed.
Sentence
27.
There is a renewed application for leave to appeal against sentence. In support of this application it is suggested that the order that the sentence to be served for the offence committed on 19 April 2011 should run consecutively to the sentence which the appellant started to serve on 15 April 2011 was excessive, both in itself, and in the light of a medical report about the appellant’s respiratory condition, which we have considered.
28.
The difficulty with this submission can be readily explained. The applicant was sentenced to imprisonment for taking drugs into a prison. On the day he was sentenced for this offence, presumably having obtained the drugs while on bail, pending verdict and sentence, he chose to take more drugs into a different prison. The misuse of drugs in prison remains a very serious problem. Sentences following conviction are severe. The second offence was committed with full knowledge of the seriousness attached to it. A consecutive sentence was rightly passed, and, given the circumstances, we cannot see that the four year additional sentence was arguably excessive. Accordingly the application is refused. | {"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2011-12-16","2012-02-23"],"ConvictOffence":["Possession of a controlled drug of Class A with intent to supply","Possession of controlled drugs with intent to supply (Class C)"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at plea and case management hearing"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Birmingham"],"Sentence":["4 years imprisonment (count 1)","2.5 years imprisonment (counts 2 and 3, concurrent)"],"SentServe":["Concurrent"],"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":[""],"DefEvidTypeTrial":[""],"PreSentReport":["High risk of harm"],"AggFactSent":["offence committed while on bail","offence committed in prison"],"MitFactSent":["medical report about appellant’s respiratory condition"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Non-compliance with procedural requirements of paragraph 7 of Schedule 3 of the Crime and Disorder Act 1998","Sentence excessive in light of medical condition"],"SentGuideWhich":["section 40(1)(b) of the Prison Act 1952","section 51 of the Crime and Disorder Act 1998"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Omission of procedural step did not vitiate the indictment or process; Parliament did not intend non-compliance to render proceedings a nullity; consecutive sentence was appropriate given seriousness and circumstances; no arguable excessiveness in sentence"]} |
Case No:
201207230 B4
Neutral Citation Number:
[2014] EWCA Crim 690
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM REFERENCE BY THE CRIMINAL CASES
REVIEW COMMISSION S9 CAA 95
HALLETT J
T20027191
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/04/2014
Before:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE CRANSTON
and
MR JUSTICE STEWART
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
OMAR BENGUIT
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Nigel Lickley QC and Stephen Climie
(instructed by
CPS
) for the
Respondent
Ragveer Chand
(instructed by
CLP Solicitors
) for the
Appellant
Hearing date: 25
th
March 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Rafferty:
1.
The appellant, Omar Benguit, 41 years old,
originally faced trial in 2003 with Nicholas Gbadamosi for:
Count 1
Murder of Jong-Ok Shin
Appellant
Count 2
Rape of BB
Appellant and Gbadamosi
Count 3
Assisting an offender
Gbadamosi
Count 4
Rape of BB
Gbadamosi
2.
The jury failed to agree on Benguit, and on Gbadamosi for assisting an offender, but acquitted Gbadamosi of both rapes. At a retrial in 2004
t
he jury acquitted Benguit of rape and Gbdamosi of assisting an offender but failed to agree on murder. At the second retrial in 2005 in the Crown Court at Winchester Benguit was convicted of murder and sentenced to imprisonment for life, with a minimum term of 20 years. On 12 July 2005 his appeal against conviction was dismissed.
3.
He appeals against conviction upon a reference by the Criminal Cases Review Commission (“CCRC”) under
s.9
Criminal Appeal Act 1995
on the following grounds: Inconsistent post trial accounts further undermine the credibility of the main prosecution witness BB; and fresh evidence indicates that Danillo Restivo may have been responsible for the murder. His application for leave to appeal on a ground not related to the CCRC Statement of Reasons, expert evidence as to CCTV, has been referred by the single judge.
4.
At approximately 0250 on 12 July 2002, 26 year old Korean language student Miss Jong-Ok Shin was stabbed on Malmesbury Park Road in Bournemouth walking home from a night club. She was sober, no-one witnessed the attack, and the knife was never recovered. Miss Shin told police and medical staff in poor English that her attacker from behind was a man in a mask who ran off. She had been stabbed in the back three times. On 22 August 2002 Benguit was arrested on suspicion of her murder.
5.
Residents of Malmesbury Park Road said they heard on the street in the early hours of 12 July 2002 voices, arguing between a male and a female, piercing screams, a disturbance, and then a woman’s voice moaning. Some heard Miss Shin falling against a car. Two found her supine asking for help. She said she had been attacked by a man.
6.
Dr Anscombe post mortem found no defensive injuries, no signs of a prolonged struggle and in his opinion she was stabbed unsuspectingly from behind. If the three stab wounds were in quick succession, there would have been little opportunity for the attacker to have been contaminated with blood. The blade was likely to have been single edged and at least 14 to 15 centimetres long.
7.
At the appellant’s second retrial, BB’s evidence was that she funded her addiction by prostitution, drug dealing and other crime. In the summer of 2002 she had known Benguit for about a year. She was a regular visitor to a crack house 47 St Clements’s Road, where she got her drugs from Joan Sheridan.
8.
Between a day and a week before the murder, she was in the Richmond Arms Public House with a group that included Benguit and Gbadamosi (not another man as she had said previously). They talked generally about Korean girls being pretty and having ‘tight pussies’ and about a particular Korean girl they wanted to ‘fuck’.
9.
In the early hours of 12 July 2002, she dropped another addict on Charminster Road. As she pulled away she heard shouting, and saw Benguit, Gbadamosi, and Woolry, a Jamaican national. They flagged her down and hitched a lift to the crack house.
10.
As she drove down Malmesbury Park Road, she saw a small figure walking and Benguit shouted out from the window ‘Look at the arse on that.’ The men told her to pull over because they wanted to get the woman to party with them. She stopped a little way down the road, all three went in the direction of the girl. They were not away long. She did not hear any sharp loud screams, but her window was half closed.
11.
When they returned they had been running and were sweating, shouting, swearing and arguing. Gbadamosi asked Benguit ‘What the fuck have you done?’ and they told her to drive off and to turn off the lights. They were agitated, had all taken crack, and Benguit was very drunk. Gbadamosi was very annoyed, saying to Benguit ‘You can’t handle your drink. Every time you get yourself into trouble.’ He was also worried about being stopped by the police.
12.
Benguit had small patches of blood on his t-shirt and she assumed a fight. He removed his t-shirt, used it to wipe blood from his arm and put it in a creamy carrier bag. Something else was in the carrier bag, wrapped in the t-shirt.
He
put the bag under the passenger seat.
13.
The men did not want her to park outside the crack house. Benguit and Gbadamosi said a handbag snatch went wrong and they got into a scuffle. The men were wound up, stressed out, desperate for crack and, once they smoked their pipe, wanted another lift. (In previous witness statements, she said the men smoked a pipe in the car.) She did not feel able to refuse them. The creamy carrier bag had blood on it so the t-shirt was transferred to a white carrier bag. She took them to a cul-de-sac where she claimed they raped her. Then they went to a flat where Benguit bathed or showered, and changed into a beige t-shirt. She dropped him outside another flat and took Gbadamosi and Darius to the river at Ifford. She parked, they went off with the carrier bag and she did not know what they did with it.
14.
She claimed she was petrified by what happened that night and knew all three carried knives. She thought she might be stabbed or killed, as might her daughter. Having been on drugs for so long, she did not trust the police. However, following her arrest for shoplifting in August 2002, she began giving hints to police about who was responsible.
15.
She said she had not realised she would be asked about the rape allegations and did not want to go through them again. She maintained her account of rape in the car, a Volvo or a Renault. She was scared, could not get away, did not know what to do and could not call the police. She was also raped by Gbadamosi about a month later when she delivered crack to him. Although she had previously been raped by him, she went to his house because she did what she had to do. In a previous statement, she said that this rape took place on 15 August 2002, but at that time she had a drug habit and was muddled about the dates.
16.
Once she began speaking to the police, she did not tell the truth initially though her account was not a pack of lies. Her first, untrue, account was that Ricky Thompson was responsible. She gave further conflicting accounts and named Mike Big, a false name for Gbadamosi. She also indicated Omar Hussain was involved, a false name for Benguit. She claimed to think the police would work out who she meant because there was only one Omar with a glass eye. She said all sorts of other things that were untrue so as to give the police an idea of what happened without admitting that she was with the people responsible.
17.
When video interviewed, she finally told the police everything. Although in a previous witness statement she described a police chase on the night of the murder, there was none. She had not enquired about a reward. She was put on a witness protection programme as a result of her disclosures. She said she thought she might have been part of the murder because she gave the men a lift. She felt guilty and as if she had done something wrong. She was scared that if the men thought she was going to turn against them, she would have been in real trouble, so she cooperated.
18.
She had never benefited as a result of her involvement.
19.
Several addicts gave evidence that Benguit attended the two crack houses (flats in the same building) in the early hours of 12 July 2002.
20.
Joan Sheridan who ran one of them remembered 12 July 2002 because it was the Orange Day parades. During the early hours Benguit and Gbadamosi were in her flat. Benguit had blood on his hands, and was looking for a change of clothes.
21.
Searches and science
did not link Benguit to the murder.
22.
To a female addict Benguit said he had stabbed a student in Charminster. The woman found a top splashed in blood and he said something had gone wrong.
23.
Shaun Phipson a taxi driver ruled out his having given a lift to Benguit and Leanne Mayers on the night of the murder.
24.
Benguit’s telephone call from prison to his brother was alleged to be an attempt to secure a false alibi.
25.
In his interview on 22 August 2002 the appellant’s account was that by the early hours of 12 July 2002, alone, perhaps walking home, he saw police cars at the scene and heard about the murder the next day. He did not know Miss Shin, and had not spoken to, commented on or discussed Korean girls. His account on 23 August 2002 was that he did not know anyone who could provide him with an alibi. He was not involved in the murder and did not go to 47 St Clements Road in the early hours of 12 July 2002.
26.
His account in interview on 26 November 2002 was that at about 03.00 on 12 July 2002 he got a taxi with Leanne Mayers. They stopped at 47 St Clement’s Road to buy crack and at about 05.00 spent 20 minutes at his house where they smoked it with the driver. He then walked into town. BB might have lied for the reward or because she needed a scapegoat.
27.
He told the jury he
did not murder Miss Shin. He did not know BB well, and had never been out with her socially. He had never made sexual comments about Korean girls. He was not with Miss BB on 12 July 2002 and had never travelled in a Volvo or Renault with her. He had never gone to a local flat with blood on his hands and t-shirt, or asked to wash his hands or for a change of top. He had not told a female addict that he stabbed a student in Charminster, nor did she find his top with blood on it. He could not be sure where he was on the night of 11/12 July 2002 because his memory had been affected by drug-taking. He gave a detailed account largely foreshadowed in his third interview. In his telephone call to his brother from prison he was not trying to create a false alibi but coming off drugs and anxious to work out his whereabouts.
Grounds of appeal
28.
Ground 1 Fresh evidence that inconsistent post-trial accounts further undermine the credibility of BB
29.
In 2007 in a magazine article about her involvement BB claimed to have seen Benguit stabbing Miss Shin and to have contacted the police four or five days later. In 2008, she appeared on the Jeremy Kyle Show and repeated that, adding that she saw Benguit with the knife when he returned to the car. She gave other details none of which had been part of her earlier accounts or her evidence at three trials. In 2012 she told police that payment for the magazine article was £500, there was none for the Jeremy Kyle show. She said she knew that she had not seen Benguit stab Miss Shin but had come to believe that account over time.
30.
There were already numerous credibility issues at trial arising from her lifestyle, admitted lies, changes and inconsistencies in her account. However the submission is that her post-trial false accounts went to the incident itself and were qualitatively different. Had the jury known of them it is likely to have regarded her evidence with significantly greater circumspection and might not have relied upon her. Without her the balance of the evidence was insufficient. The material relating to the media exposure should be admitted as fresh evidence under
s.23
Criminal Appeal Act 1968
.
31.
Ground 2
Fresh evidence that Danillo Restivo may have been responsible for the murder
32.
On 12 September 1993, sixteen year-old Elisa Clapps disappeared the day she had arranged to meet Restivo outside a church in Italy. He was subsequently convicted of perjury in relation to her disappearance. On 17 March 2010, her body was found in the loft of the church. Restivo was subsequently convicted of her murder in absentia in Italy.
33.
On 21 May 2002, he took up residence in Bournemouth. On 12 November 2002 Mrs Heather Barnett who lived opposite him was murdered in her home in Bournemouth. In June 2011 he was convicted of her murder.
34.
On 12 May 2004, Restivo, in unseasonable clothing, hood pulled up round his face, was watching lone women from bushes near a path. His behaviour was so sinister that surveillance was abandoned and he was arrested on a pretext. A knife, scissors and a balaclava were found in his car but no further action taken.
35.
Benguit’s submission is that post-conviction similarities between the murders of Elisa Clapps Mrs Barnett and Miss Shin are such that a jury aware of them might not have convicted. He relies upon the following:
36.
All victims were female and attacked during an incident in which a knife featured. Each may have been attacked from behind. All lived near Restivo. All were murdered on the 12
th
day of the month. Restivo was arrested when watching lone women on 12 May 2004. He left clumps of cut hair with the bodies of Elisa Clapps and Mrs Barnett. A clump of hair was found near Miss Shin where she fell. Miss Shin and Mrs Barnett were murdered in a small suburb of Bournemouth within six months of Restivo’s arrival. The absence of any scientific evidence in relation to Miss Shin’s murder is consistent with Restivo’s awareness of its importance, demonstrated by the lengths to which he went to guard against identification when murdering Mrs Barnett. Her murder was carefully planned, shown by his waiting until her children left for school. The murder of Miss Shin was prepared and planned, not opportunistic. The murderer waited until she was alone and wore a mask. Nothing was stolen in any of the three murders, pointing to gratuitous violence rather than to a robbery gone wrong. Miss Shin said her murderer was masked. For a Korean with only basic English, ‘mask’ might have meant ‘balaclava’. Following arrest on 12 May 2004 Restivo had a balaclava.
37.
Benguit is obliged to concede similarities between the murders of Elisa Clapps and Mrs Barnett not shared with that of Miss Shin. Elisa Clapps and Mrs Barnett were mutilated, Miss Shin was not. There was highly distinctive interference with their clothing, none with hers. Equally, the murders of Elisa Clapps and Mrs Barnett were different the one from the other, albeit Restivo was responsible for both. Elisa Clapps was stabbed repeatedly, Mrs Barnett not at all. Although there were features in common, Restivo did not always adopt the same modus. Benguit submits that in addition to the similarities, other evidence suggests Restivo may have murdered Miss Shin. He has a marked foreign accent whilst Benguit’s is English. We were told that local resident Mr Curtis heard a foreign-sounding male voice. However Mr Lickley QC had with him his note from the trial which read:
“Agitated not English voices foreign voices a male voice the other voice not determined.”
38.
That does not in our view amount to “a foreign-sounding male”.
39.
Also relied upon was Restivo’s knife, said to be capable of having caused the fatal injuries, and scissors which could have been used to cut the hair found near Miss Shin but which belonged to a female resident of Malmesbury Park Road. Restivo had a history of surreptitiously cutting women’s hair and at least one was unaware of him doing so.
40.
His behaviour in relation to lone women prior to 12 May 2004 is said to raise the possibility of a preparedness to offend against women not known to him.
41.
He was a proven liar by virtue of his conviction for perjury.
42.
His partner Ms Marsango originally provided him with an alibi for Miss Shin’s murder subsequently undermined by her lodger who said Restivo lived on the ground floor and Ms Marsango on a different floor. We deal with this briskly. The lodger explained the location of bedrooms, not necessarily where parties slept. Though Ms Jakes who claimed to be a close friend of Ms Marsango told the police soon after Miss Shin’s murder that Ms Marsango said Restivo slept in the sitting room, as we pointed out in dialogue, that evidence sat behind more than one hearsay hurdle and was untested.
43.
In the same recounted conversation Ms Jakes said Restivo said it must have been a ‘big chef’s knife which must have gone through her’. The knife had gone in to a depth of 15 centimetres, information Benguit relies upon as known only to the murderer. We are not impressed by this contention. Nothing about the alleged comment suggests more than a guess at the knife used and comes nowhere near establishing that Restivo knew the dimensions of the knife and must have been the murderer.
44.
In Italy Restivo was convicted of harassing female students in 1995, said to prove a history of aggression towards female students. Although Elisa Clapps and Mrs Barnett were murdered inside and Miss Shin outside, Restivo’s arrest on 12 May 2004 was strong evidence that he was capable of attack outside. Although he knew Elisa Clapps and Mrs Barnett and there was nothing to suggest he knew Miss Shin, the argument is that it is reasonable to infer he might have known her by sight as they lived a few hundred yards from each other.
45.
By Benguit’s trial Restivo was a suspect in relation to Elisa Clapps and Mrs Barnett. No disclosure was made after a public interest immunity application during which the judge was told there were no similarities between the three cases.
46.
The evidence upon which reliance is now placed is said to be more compelling, not least because Restivo has now been convicted of the two murders. The argument is that a killer who targeted women lived close to Miss Shin and that had the jury been aware of evidence suggesting Restivo might have been responsible, its assessment of BB could have resulted in a different verdict.
47.
Ground 3
CCTV undermines the credibility of BB
48.
BB told the jury that in a Volvo or a Renault Megane shortly before the stabbing she picked up Benguit. She explained her route.
49.
Miss Shin separated from her companion on Malmesbury Park Road at 0248 and the ambulance was called at 0255.
50.
CCTV footage was separately analysed by two experts ignorant of the facts. One
was given photographs of the Volvo and the Renault and instructed to compare them with cars on the CCTV between 0230 and 0305 on the night of the murder. He positively excluded both from 02.30 until the ambulance was called at 02.55 and from 02.55 to 03.05.
51.
One was shown nothing and instructed to identify all cars between 02.30 and 03.05. He was unable to identify four between 02.43 and 02.55 and considered two others highly likely to be Vauxhall Cavaliers and another likely to be a Vauxhall Vectra. Thereafter he excluded both Volvo and Renault save in one sighting at 02.47 where he considered a car unlikely to be the Volvo but did not exclude it.
52.
Ultimately, both concluded that neither car could be seen between 02.43 and 02.55, although they differed as to the period between 02.30 and 02.43. This evidence is said to show that BB’s evidence was false and, had the jury known of it, her credibility would have been further undermined.
Discussion and conclusion
53.
It is convenient to take Grounds 1 and 3 together. BB undoubtedly exaggerated her account to police, to the jury, and to Hampshire Constabulary’s post-trial exploration of her media involvement when she claimed she saw the stabbing. She did not however exaggerate for monetary gain and she never resiled from her evidence at trial. Her credibility was fully explored before the jury who in our view was best placed to assess submissions that she was inconsistent, unreliable and lying.
54.
In addition, the Crown could point to significant circumstantial support for her account from other witnesses and other evidence which aligned with Benguit as the murderer. He carried a knife. BB took him to 47 St Clements’s Road in the period after the murder. On arrival, he had blood on him and washed. He confessed to stabbing a student in Charminster. He telephoned his brother and attempted to create a false alibi.
55.
We are not persuaded, against that backdrop, that further cross-examination on her post-trial account would have altered the verdict. We are in no doubt that the jury reached a verdict consistent with the evidence and we have heard nothing in either of these grounds to make us doubt the safety of the conviction.
56.
We take Grounds 2 and 4 together. The murder of Miss Shin was very different from those of Elisa Clapps and Mrs. Barnett. Restivo knew Elisa Clapps and Mrs Barnett, he did not know Miss Shin. He meticulously planned his attacks on Elisa Clapps and Mrs Barnett, he was forensically aware especially as to Mrs Barnett, whereas the attack on Miss Shin was on the evidence opportune rather than planned. Striking similarities between the murders of Elisa Clapps and Mrs Barnett did not feature in that of Miss Shin. Their bras were cut in the same place, their trousers partially lowered in the same manner and hair placed in their hands. Hair belonging to a stranger was placed in the hand of Mrs Barnett. Her own hair had been cut and placed under her other hand. Miss Clapp’s hair had also been cut and left near her. They were murdered inside, reducing the risk of immediate discovery, Miss Shin was murdered on the street and her clothing neither damaged nor adjusted. Indeed the risk of discovery was greater, since she spoke to paramedics and doctors. Elisa Clapps and Mrs Barnett were murdered during the day, Miss Shin in the early hours and in darkness.
57.
The differences between the murders of Elisa Clapps and Mrs Barnett, as compared to that of Miss Shin, do not persuade us that Restivo should be regarded as arguably a candidate for the latter.
58.
Restivo’s possession almost two years after her murder of a balaclava (which he did not wear during surveillance) was too remote to have significance. When observed watching women he was at an isolated location in stark contrast to the residential street upon which Miss Shin was murdered.
59.
Neither are we persuaded of relevance attaching to the 12
th
day of the month. Only four occasions involved that number, far short of any figure which would begin to alert us to more than coincidence.
60.
Although, had he been charged or convicted at the time of trial the PII exercise would have progressed on a different basis, on our analysis the material now relied upon as notionally going before the jury does not persuade us that a different verdict would realistically have been in contemplation.
61.
As to the work done by experts on the cars shown on CCTV, the issue is simply disposed of. Neither excludes the cars in which Benguit was on the evidence travelling during a period in which he could have murdered Miss Shin.
62.
Thus, for all the reasons given, we dismiss this appeal and reject the application for leave. | {"ConvCourtName":["Crown Court at Winchester"],"ConvictPleaDate":[""],"ConvictOffence":["Murder of Jong-Ok Shin"],"AcquitOffence":["Rape of BB"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Winchester"],"Sentence":["Imprisonment for life, with a minimum term of 20 years"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[41],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drugs"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Female"],"VicAgeOffence":[26],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Witness testimony (BB)","Circumstantial evidence","Confession to witness","Telephone call from prison","Other witness testimony (addicts, Joan Sheridan)"],"DefEvidTypeTrial":["Defendant denies offence","Alibi claim","CCTV expert evidence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Fresh evidence that inconsistent post-trial accounts further undermine the credibility of the main prosecution witness BB","Fresh evidence indicates that Danillo Restivo may have been responsible for the murder","CCTV undermines the credibility of BB"],"SentGuideWhich":[""],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Jury was best placed to assess the credibility of BB and her inconsistencies were fully explored at trial","Significant circumstantial support for BB's account from other witnesses and evidence","Further cross-examination on post-trial account would not have altered the verdict","Differences between the murders of Elisa Clapps and Mrs Barnett as compared to that of Miss Shin do not persuade the court that Restivo should be regarded as arguably a candidate for the latter","CCTV evidence does not exclude the cars in which Benguit was travelling during the relevant period"]} |
Neutral Citation Number:
[2010] EWCA Crim 1929
Case No.
2009/06292/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 15 June 2010
B e f o r e:
LORD JUSTICE GOLDRING
MR JUSTICE WILKIE
and
HIS HONOUR JUDGE LORAINE-SMITH
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
__________________
R E G I N A
- v -
GAVIN WHITE
__________________
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Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
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(Official Shorthand Writers to the Court)
__________________
Miss A Ginn
appeared on behalf of the Appellant
Mr G Perrins
appeared on behalf of the Crown
____________________
J U D G M E N T
LORD JUSTICE GOLDRING:
1. On 29 October 2009, in the Crown Court at Peterborough, the appellant was convicted of assault by penetration contrary to
section 2(1)
of the
Sexual Offences Act 2003
. He was subsequently sentenced to two years' imprisonment. Having been convicted of an offence listed in Schedule 3 to the
Sexual Offences Act 2003
, he was required to comply with the provisions of Part 2 of
the Act
(notification to the police) for ten years. He was also disqualified indefinitely from working with children. That part of the sentence, it is agreed by both prosecution and defence, was inappropriate in the circumstances.
The appellant appeals against both conviction and sentence by leave of the single judge.
2. On 30 April 2008 the appellant took some intimate photographs of the complainant on his mobile telephone. One image showed the complainant's vagina being penetrated by two of his fingers. On 20 November 2008 he sent the photographs via a text message to the complainant. By then he had transferred the images from his original mobile phone to another one.
3. It was the prosecution's case, and the complainant's evidence, that in 2008 there was no sexual relationship between the two of them, although there had been. It had ended initially in 2005, had resumed in 2007, and had ended it was said, in late 2007. The complainant said that until she received the images she knew nothing about them. She did not consent to the photographs being taken. To her knowledge no photographs were taken. She did not consent to the digital penetration depicted. The photographs must have been taken when she was asleep. Two of the images depicted a condom. In cross-examination the complainant agreed that the images could have been taken after an act of consensual sexual intercourse. There had been occasions when she had consented to sexual intercourse with the appellant when she had been drinking alcohol.
4. The appellant's case was that the complainant had consented to the digital penetration and the photographs being taken. She had posed for them. There was no question of her having been asleep. The day after they were taken she had looked at them. In September 2008 she and the appellant had argued. As a result, a number of the photographs were deleted. Those saved and later transferred to the second mobile phone. Between 10 and 12 November he sent the photographs because at that time the complainant was not talking to him and he thought she would respond.
5. The sole issue in the case was consent. The basis of the appeal is that twice, once in the course of his summing-up and once in response to a question from them, the judge misdirected the jury in relation to
section 75
of the
Sexual Offences Act 2003
. The prosecution accept the judge did twice misdirect the jury. The prosecution submit that the conviction is nonetheless safe.
6.
Section 2
of the
Sexual Offences Act 2003
provides:
"A person (A) commits an offence if --
(a)he intentionally penetrates the vagina…of another person (B) with a part of his body…,
(b)the penetration is sexual,
(c)B does not consent to the penetration, and
(d)A does not reasonably believe that B consents."
"Consent" is defined by
section 74
of
the 2003 Act
. It provides:
"For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Section 75
, deals with "Evidential Presumptions about Consent." It provides:
"(1) If in proceedings for an offence to which this section applies it is proved --
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in sub
section (2
) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2) The circumstances are that --
....
(d) The complainant was asleep…at the time of the relevant act."
7. In his summing-up the judge made it clear that the essential issue in the case was consent. He referred the jury to the two aspects in relation to it: first, that there was evidence that the complainant had been drinking; and second, the evidence concerning her having been asleep. He said that consent had freely to be given and could be withdrawn at any time. He reminded them that it was the act of digital penetration which they had to be sure was carried out without the complainant's consent. He said:
"If you find as a fact that the complainant was not asleep then what I say now can be ignored.
That means, if you find as a fact that the defendant is or may be telling the truth that the complainant was not asleep, ignore the following direction.
However, if you conclude that the complainant was asleep,
the Act
states as follows ...."
The judge then set out the words to which we have just referred in
section 75
. He continued:
"In simple terms, that means that if you are satisfied that she was asleep, the law places an evidential burden on the defendant to satisfy you, on the balance of probabilities, that he had a reasonable belief the complainant was consenting."
The judge did not explain what an "evidential burden" was or how the jury was to approach it on the facts of the case. Assuming it was necessary to give the direction at all, that was less than helpful.
8. Following their retirement the jury asked a question. It was in these terms:
"If she gave consent beforehand and then fell asleep during the photo preparation, is the consent still current?"
In response to the jury's question the judge repeated what he had previously said. At the instigation of the prosecution he reminded the jury of
section 75
in exactly the same terms as before. They were not told how, in the light of the factual assumptions in the question, they were to approach the evidential burden. The jury must have found the further directions baffling.
9. There is no doubt, as the prosecution accepts, that sufficient evidence was adduced to raise the issue either that the complainant consented to the digital penetration or that the appellant reasonably believed that she did. The appellant had said so. On the basis of the jury's question, the complainant had in terms agreed to the digital penetration and the taking of photographs but had fallen asleep while the agreement was brought into effect. It was not necessary or in the circumstances appropriate for the judge to give a
section 75
direction.
10. It seems to us that the position is correctly summarised at paragraph B3.19 of the current edition of Blackstone, in which it is said:
"
Section 75
of the
SOA 2003
lists circumstances in which the complainant is taken not to have consented to the relevant act
unless
sufficient evidence is adduced to raise an issue as to whether the complainant consented. Also the accused is to be taken not to have reasonably believed that the complainant consented
unless
sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
There must be some foundation in the evidence and it must not be merely speculative or fanciful for there to be sufficient evidence. However, it is vital to understand that if the trial judge decides (presumably at the close of the evidence) that there is sufficient evidence to raise an issue as to whether the complainant consented and/or the accused reasonably believed that the complainant was consenting, then the judge will put the issues to the jury in accordance with the key sections (ie 74 and 1(2)), and the
section 75
route is barred. In the relatively rare cases where the judge decides that there is not sufficient evidence on one or both of the issues, a
section 75
direction must be given on that issue."
11. On the facts of this case, the direction should not have been given in the body of the summing-up. It plainly should not have been given in answer to the jury's question. Moreover, R v Zhang
[2007] EWCA Crim 2018
, which was drawn to our attention by the prosecution, is irrelevant. It was decided on its own facts and in the light of the summing-up there being considered.
12. In our view, it cannot be said this conviction is safe. The judge initially directed the jury inappropriately and in a way which it must have found very difficult to understand. He never explained how the appellant could discharge the burden which was said to be placed upon him. He again directed them inappropriately in response to the jury's question. In neither direction did he tailor what he said to the facts, or, in relation to the question, the facts assumed within it. It seems to us the correct answer to the question would have been that the appellant would have a defence in those circumstances. The jury may well have had the impression that they could convict once they were sure the complainant was asleep.
14. For the reasons we have indicated we have concluded that in all the circumstances the conviction was unsafe.
15. We should add this. As has been accepted before us, the judge did not have the help from counsel he should have had. The prosecution suggested that there should be a
section 75
direction when there should not have been. It repeated that suggestion following the jury's question. Throughout defence never demurred. | {"ConvCourtName":["Crown Court at Peterborough"],"ConvictPleaDate":["2009-10-29"],"ConvictOffence":["assault by penetration contrary to section 2(1) of the Sexual Offences Act 2003"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Peterborough"],"Sentence":["two years' imprisonment","notification to the police for ten years under Part 2 of the Sexual Offences Act 2003","disqualified indefinitely from working with children"],"SentServe":[],"WhatAncillary":["notification to the police for ten years under Part 2 of the Sexual Offences Act 2003","disqualified indefinitely from working with children"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Female"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Photographic evidence","Complainant testimony"],"DefEvidTypeTrial":["Defendant testimony"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["trial judge misdirected jury regarding section 75 of the Sexual Offences Act 2003"],"SentGuideWhich":["section 2(1) of the Sexual Offences Act 2003","section 75 of the Sexual Offences Act 2003","section 74 of the Sexual Offences Act 2003"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["trial judge misdirected jury regarding section 75 of the Sexual Offences Act 2003","directions were inappropriate and confusing","conviction is unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2004] EWCA Crim 2521
Case No:
200103828 C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Newcastle
The Honourable Mr Justice GIBBS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/10/2004
Before :
THE RIGHT HONOURABLE LORD JUSTICE MANCE
THE HONOURABLE MR NEWMAN
and
THE HONOURABLE MR JUSTICE FULFORD
- - - - - - - - - - - - - - - - - - - - -
Between :
DAVIES
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss Vera BAIRD QC & Mr Andrew Scott
(instructed by Alderson Dodds) for the
Appellant
Mr D Robson QC & Mr Christopher Prince
for
The Crown
Hearing date : 7 October 2004
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Mance:
Introduction
1.
The appellant, Andrew Davies, was convicted on 14
th
June 2001 in the Crown Court at Newcastle before Mr Justice Gibbs, by a majority of ten to one, of the murder of Andrew Lansdown and causing grievous bodily harm to Steven Wemyss with intent. He was sentenced to life imprisonment for murder with 15 months concurrent for causing grievous bodily harm with intent. A co-accused, David Powell, was acquitted of like charges. The appellant now appeals against conviction by leave of the Full Court (Thomas LJ, Gage J and Sir Richard Rougier) granted on 15
th
July 2004 on one single ground, namely whether trial counsel should have objected to the admissibility of certain evidence of visual and voice recognition by reference to which Steven Wemyss claimed to identify the appellant as the person committing the two offences of which the appellant was convicted.
2.
The Full Court refused applications to appeal on other grounds. These included a proposed ground to the effect that the trial judge directed the jury incorrectly in summing up in respect of the recognition evidence. During the course of submissions before us, Miss Baird QC for the appellant (who was not trial counsel) applied to reopen that refusal and for leave to pursue the point. Mr Robson QC for the Crown raised no objection to the grant of leave. We propose therefore to consider this further ground as if leave had been given, without needing to express any concluded view about our jurisdiction to grant leave. We make only these observations.
S.1
of the
Criminal Appeal Act 1968
provides:
“(1) Subject to subsection (3) below, a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.
(2) An appeal under this section lies only-
(a) with the leave of the Court of Appeal; or
(b) if the judge of the court of trial grants a certificate that the case is fit for appeal. …”
S.31
of
the Act
provides:
“(1) There may be exercised by a single judge in the same manner as by the Court of Appeal and subject to the same provisions-
(a) the powers of the Court of Appeal under this Part of
this Act
specified in sub
section (2
) below; ….
(2) the powers mentioned in sub
section (1
)(a) above are the following-
(a) to give leave to appeal; ….
(3) If a single judge refuses an application on the part of an appellant to exercise in his favour any of the powers above specified, the appellant shall be entitled to have the application determined by the Court of Appeal.”
In our view once a Full Court has considered a possible ground and refused leave on it, then normally that is and should be the end of it. The Full Court has in terms of
s.31(3)
“determined” the application in that respect. If a Full Court, hearing a renewed application, refuses it on all grounds, the applicant has no right to either an appeal or a re-hearing before another Full Court of the same application. The procedures prescribed by statute and the principles governing the grant of limited leave developed by this court (cf e.g.
Thomas
[1999] 2 CAR 6) would otherwise be undermined. The fact that the Full Court happens to grant leave on one or more ground or grounds is not the thin edge of a wedge allowing the appellant to re-argue the question of leave on any other ground or grounds refused. There may, perhaps, be exceptional cases, such as radical change of circumstances or the situation (which Miss Baird submits applies here) where it becomes apparent on an appeal on a permitted ground that a ground previously refused is in some unforeseen way inextricably linked with the permitted ground. In many if not all such cases the true analysis may be that the fresh application is in reality for leave on different grounds to any previously considered. But, as we say, we need not, in view of the Crown’s attitude, reach any concluded views on such matters.
3.
The facts in outline were these. At about 10.00 p.m. on Sunday, 12
th
March 2000 two men with shotguns entered the house at 15 Cypress Gardens, Killingworth in Northumberland, where Steven Wemyss lived with his mother Annette Wemyss and brother Majit Wemyss. The first gunman wore a “Scream” horror mask (based on the famous missing picture), the second a Balaclava. Five people were present in the house - Steven, Annette and Majit Wemyss, Samantha Robinson (a friend of Steven) and Andrew Lansdown. During the course of the incursion, the Scream man fired two shots, the first hitting Steven Wemyss, the second hitting Andrew Lansdown, in each case below or around the knee. The balaclava man then shot Andrew Lansdown in the back, as he crawled away, killing him. Steven Wemyss had known the appellant for more than ten years, and they had last seen each other and spoken only two hours prior to the incursion. Steven Wemyss was sitting on a settee as the masked men entered. He said in evidence with respect of the Scream man that:
“I could see part of his face. I recognised the eyes and skin colour as being Andrew Davies. He was wearing dark clothing, not the red fleece he’d had on earlier [i.e. two hours earlier]. He held a shotgun. The first man was the same build and height as Andrew Davies. The other person was a bigger build, a bit taller, and wore a balaclava. ….No-one said anything at first. I walked over and said “Hey, what you’re doing?” He pushed us, the Scream one did. I was walking towards him. He pushed me quite hard and I stumbled back next to the television. …..The man in the Scream mask shouted “Where’s Chrissie?” It was Andrew Davies’s voice. I’ve heard his voice before. I said “He’s not here”. He was standing between the settee and the door. The second man was just inside the door. The one in the Scream mask pointed at my leg and shot it. Nothing else was said. …. ”
4.
Once shot, Steven Wemyss was effectively out of action and gave no presently relevant evidence. Cross-examined, he said that he had had been drinking, and had had six or maybe seven lagers that day, four or five of them that night. The Scream mask used was never recovered and a variety of such masks exists on the market. One was in court, which Steven Wemyss said was “similar” to the one used. The eye holes of the mask in court were covered with mesh and Steven Wemyss said that he “thought” that the mask used by the intruder had eye holes covered with mesh, like the mask he was shown, but nevertheless he said that he did have a clear view of the eyes. He said that he had a sufficient view of the eyes and eyeball to enable him to make a recognition of the man behind the mask. Miss Baird QC for the appellant produced another version of a Scream mask on this appeal from which it appears that the eyes in such a mask may, following the picture, have fairly substantial size.
5.
Samantha Robinson had also known the appellant, though not for very long. She had spoken to him once and heard him speak on a few occasions. She too gave evidence that the Scream man asked “Where’s Chrissie?”. She said:
“I wasn’t quite sure of the voice at the time because I was in shock, and I was not really sure later.”
A set of recordings by ten different persons, one of them the appellant, was made up consisting of some 86 words, including the words “Where’s Chrissie?”. Steven Wemyss heard it played twice and was asked whether he could identify Andrew Davies; he correctly did this from among the ten recordings. Samantha Robinson was asked the like question and wrongly identified a recording made by a foil. The other three persons present in the house at the time of the incursion heard a voice, but not what was said, and did not claim to recognise anyone.
Background
6.
Some understanding is necessary of the local geography and the kinship and affinity of those involved. Killingworth is a new development some 6 to 7 miles north of Newcastle. Mrs Sheila Wemyss, a sister-in-law of Annette and aunt of Steven and Majit Wemyss, also lived in Killingworth with her partner, Robert Lumsden. So too did a Mr and Mrs Goulden and their two daughters, Colleen and Carol, the latter the girlfriend of Daniel Minto, who was a friend (and it may be cousin) of the appellant. About 1 to 2 miles south in the direction of Newcastle is the older settlement of Forest Hall, where the appellant’s mother and also Powell lived, both in Balliol Avenue. Three or so miles further south, at the east end of the City of Newcastle, is Byker. The appellant’s aunt Mrs Sandra Minto lived in Byker. So too did Christopher Wemyss and his brother, Barry, cousins of Steven and Majit Wemyss. Christopher Wemyss was however a frequent visitor to 15 Cypress Gardens, Killingworth, near to which his girlfriend Leila Bailey lived. The landlady of the West House public house in Killingworth described Steven and Majit Wemyss in evidence as more “wind-up merchants” than serious troublemakers, but said of Christopher Wemyss that, although she would not recognise him, he had “a reputation for carrying weapons, and his presence could attract trouble”. The appellant lived with his girlfriend Rachel Kelly in her home in Annitsford which lies north from the centre of Killingworth. The evidence was that it would take an hour or, going briskly, 51 minutes for the appellant to walk from his mother’s house in Forest Hall to Rachel Kelly’s home in Annitsford.
7.
The Crown relied upon a long background of incidents as leading up to the alleged incursion by Davies and Powell. Some time before Christmas 1999 Steven and Christopher Wemyss burgled a house occupied by a woman called Christie Robinson, taking electrical goods. Shortly afterwards one of them, said to be Christopher Wemyss, paid her £20 as compensation, but this was not regarded as enough. There was also some evidence of a pre-Christmas incident during which Christopher Wemyss was thought to have abused Carol Goulden. As the judge pointed out to the jury, another possibility was that this was one and the same incident as occurred according to other evidence after Christmas in the Planet Earth night club, to which we will come.
8.
The appellant heard of the pre-Christmas incident or incidents, and went with Daniel Minto and another in the small hours one night to 15 Cypress Gardens, where the appellant broke a window. Christopher Wemyss was staying there that night. The appellant accused Christopher Wemyss of involvement in the pre-Christmas incident or incidents. Christopher Wemyss denied this, at least as regards the burglary. The appellant was saying “Get Chrissie here” or “Get out Chrissie”, but Christopher Wemyss refused to come. According to Annette Wemyss, this was said in a horrible tone of voice, not a soft voice. Later during the day, the appellant returned to 15 Cypress Gardens with Powell, the police were called and the two ran off.
9.
In early 2000 Christopher Wemyss saw the appellant on a bus, and challenged him to get off and fight, which the appellant refused to do. The appellant also denied that he had broken the window. Around this time, according to Colleen and Carol Goulden, Majit Wemyss and Andrew Lansdown gave them drunken abuse at the Planet Earth night club. The judge left it to the jury to consider whether this and the pre-Christmas incident in a club were the same incident, misdated in one way or the other. On Saturday, 4
th
March 2000 a group of cars full of unfriendly men, led by one Christopher Lee but not including the appellant or Powell, paid a visit to 15 Cypress Gardens, where Steven, Majit and Annette Wemyss were at home, together with Barry Wemyss. On 5
th
March 2000 there was another visit to 15 Cypress Gardens, this time by the appellant and Powell, who said they were looking for Steven and Chrissie Wemyss. According to Barry Wemyss, Christopher Wemyss went to the door and there was a brief chat. The appellant’s explanation in evidence of this visit was that he went to resolve the situation between him and Christopher Wemyss and that “there were rumours that people were using my name to solve people’s problems and I wanted to sort it out because that wasn’t true”. According to the appellant, Christopher Wemyss was not in fact there at the time of this visit. The appellant was asked why he did not find out where Christopher Wemyss lived, to which he replied:
“Well, why should I? I could go to Anna’s [i.e. Annette Wemyss’s] house. He spent most of his time there. He was going out with Leila Bailey in Killingworth, and she didn’t say why not go to his house. I assumed that Christopher Wemyss would be either at Julie Dalton’s, which was at the back of Cypress Gardens, or at Cypress Gardens”
10.
On 9
th
March 2000 a police officer attending at Powell’s house noticed that the appellant was also there, using the telephone. On Friday, 10
th
March Steven and Christopher Wemyss were going to the West House public house, when they saw Carol Goulden, with whom Christopher then exchanged words. According to her he asked where Daniel Minto was and was carrying a metal object which she took to be a bar but agreed could have been a machete. Shortly after this incident, at 11.25 p.m. Carol Goulden then used her mobile to telephone Daniel Minto who was in the West House. According to her, Daniel Minto, Christopher Lee and others then came out of the West House. Steven Wemyss said that, a little later in Dove Street near the West House, Christopher Wemyss and he again saw Carol Goulden and she asked Christopher to come over. A group of ten or so men then attacked Steven and Christopher Wemyss, using a machete which the latter had himself been carrying to inflict on him a bad gash to the head. Shortly after the start of this attack, at 11.43 p.m. Daniel Minto used Carol’s mobile to telephone the appellant at Rachel Kelly’s address. The appellant then telephoned Powell. The Crown case was that this was to ask for a lift to the scene, which Powell refused. The appellant said that it was to see if Powell could help with some DIY work on the next day, but he added under cross-examination that it was also to ask for a lift, since Daniel Minty had been “a little bit concerned for his well-being”. The appellant in the event took a taxi to Dove Street, where he was seen by a policeman to arrive at 11.50 p.m.. He walked up to the police cordon that had been set up. He then went to the Gouldens’ house where he met Daniel Minty.
11.
On the morning of Saturday, 11
th
March Steven Wemyss, his brother in law (Robert Lumsden) and the appellant were seen talking in Steven’s garden by Samantha Robinson. At about 11.30 a.m. on Sunday, 12
th
March the appellant met Christopher Wemyss and his girlfriend (Leila Bailey) in West Bailey, and the appellant asked whether Christopher and he were “sweet”. Leila said “Don’t knock on my door” and Christopher said that if he knocked on anyone’s door, he should knock on Christopher’s. The atmosphere or mood was all right, and the conversation lasted about three minutes. According to both Christopher and the appellant, the appellant also asked if Christopher had been looking for him with a machete, to which Christopher said no, and they parted amicably with Christopher thinking that the trouble between them was sorted out.
12.
From about midday to 7.00 p.m. the appellant was drinking, mainly lager and snakebites in the West House. In one public house he met Julie Bailey, a friend of Annette Wemyss, and, she said in evidence, he asked her whether she was “all right?”, to which she replied: “I’m not because of the trouble you have caused my friend Anna”. At or after 7.30 p.m. the appellant went to a house of Sheila Wemyss in Swindale Drive, Killingworth and asked her and Robert Lumsden among other questions where Christopher Wemyss was. The appellant was wearing a red jacket as he had been earlier that day. The appellant’s case was that he went to sort out an issue arising out of damage done by Christopher Lee to Sheila Wemyss’s door. At about 8.00 p.m. that evening Majit Wemyss went with Andrew Lansdown to collect two videos and then to 15 Cypress Gardens, where they found the appellant in front of the house. According to Steven Wemyss, the appellant knocked on the door and asked “Where [is] Chrissie?”, to which Steven replied that “He usually comes in at about 10.00 p.m.. He normally comes to see Leila”.
13.
The appellant also asked Andrew Lansdown whether he was Andrew Lansdown and then asked: “Have you been looking for me in a nightclub?” which Lansdown denied. The appellant then put to Lansdown that Lansdown had been looking for the appellant in the Icon and had said “I am white Andy. Where is black Andy?” According to Majit, the atmosphere was not friendly, and became angry as they spoke. Leila Bailey also came up and asked why the appellant was looking for Christopher, and the appellant walked off saying “So it’s going to be like that”. Robert Lumsden said that he heard the appellant say to Andrew Lansdown: “This is not finished”. Annette Wemyss overheard much of this conversation, which she said was not in a very good atmosphere. She said that Leila Bailey and the appellant had argued and shouted at each other. Robert Lumsden said that Leila had called the appellant a black bastard, and the appellant had called her “a fucking whore”. In his view, the atmosphere changed when Lansdown came on the scene. Leila Bailey said it was too long ago to remember much of what was said; she had got angry and walked off.
14.
The appellant when interviewed after the shootings made no mention of his visit to 15 Cypress Gardens at 8.00 p.m. He told lies to the effect that he had not been there for some time and had not seen Leila Bailey. In evidence, he admitted the visit, and that he had asked whether Christopher Wemyss was there, but denied that he had been told that he might be back at 10.00 p.m. or at any time. He said that Leila Bailey had gone beserk when he said that he was looking for Christopher, and that he had walked off and returned to the West House.
15.
Before 8.30 p.m. on 12
th
March 2000, the appellant arrived at the Gouldens’ house, trying to persuade Daniel Minto, who was there, to come out for a drink to celebrate the appellant’s birthday (which was the next day). While he was there, Mrs Sandra Minto made two telephone calls to the house, in the belief and fear that Christopher Wemyss was outside her house and about to break windows. Between the two calls, someone (not Carol Goulden) rang Powell’s number a total of three times. After the second call, a taxi was at 8.53 p.m. summoned for the appellant with a pick up point of the West House public house, to go to Byker via Forest Hall. Carol Goulden said that the appellant left the house then. The taxi duly was despatched at 9.06 p.m., collected the appellant at the West House and proceeded to Balliol Avenue, where it deposited the appellant at or close to 9.15 p.m. He told the driver that he was going to see his brother. The driver’s general “impression” was that his fare went off in a direction opposite to that in which Powell lived. The Crown case was that he went to Powell’s house, and there changed his prominent red jacket for darker clothes, and that both then picked up guns and went on foot to 15 Cypress Gardens. As regards Powell, the jury was not so satisfied. After the shootings, a police search found the appellant’s red jacket at the appellant’s mother’s house in Balliol Avenue. The appellant’s evidence was that he had not been aware of the content of Mrs Sandra Minto’s calls to the Gouldens’ house, that his calls to Powell were to try to persuade him to come out for a drink (and to borrow money from him for the purpose). According to both the appellant and Powell, Powell refused both propositions. According to the appellant, he had therefore taken a taxi from the Gouldens’ house to his mother’s house to try to get some money or other birthday present from her. That also failed, but he said that he kept most of his clothes at her house and changed his clothing there, before walking home. The evidence of his girlfriend, Rachel Kelly, was that he arrived home during the final credits for a programme ending at 10.00 p.m. However, bearing in mind the time at which he was dropped by the taxi and the visit on his case to his mother’s house, the Crown observed that the appellant could not realistically have been home in Anniston by 10.00 p.m. In his third and fourth interviews after the shootings, he gave two different accounts of the route he had taken home. In evidence, he admitted that both accounts were lies, told (he said) to avoid alerting the police to the fact that his true route was taken with a view to stealing from a building site. In evidence, he gave another route, but it fell to the judge to remind the jury that they might think that he changed even this new account in the course of evidence.
16.
Telephone records showed a series of calls late that evening, in particular from the appellant’s home at 10.12 p.m. to the West House and at 10.17 p.m. to Powell and the West House and from Powell to the appellants’ house at 10.59 p.m., at 12.17 a.m. and at 1.18 p.m. The appellants’ brother, David, also rang the appellant’s house at 12.20 a.m., according to the appellant to say that he had heard that the appellant had been shot or stabbed and that there had been an incident in Killingworth, and the appellant rang his brother at 1.23 a.m. The Crown’s case (denied by the appellant and Rachel Kelly) was that the earlier calls were made by Rachel Kelly trying to find where the appellant was. The appellant’s case was that he had made all the calls from his house after returning there on foot from his mother’s house. He also said that he had prepared Rachel Kelly and himself something to eat after his return.
17.
Two shotgun cartridges, of the same somewhat unusual type used in the shootings, were recovered by the police from a skip in which Powell had been seen burning things at work three days after the shootings. Powell explained that he had found four cartridges while out ferreting, and disposed of them rather than leave them for children to find. He had done this by burning two, but had been hit on the head by the explosion, so had buried the other two in the skip. Two further similar cartridges were later found in an open hedge about 70 yards down a lane which the Crown said that the appellant would have been expected to use to get to his home from 15 Cypress Gardens. The Crown suggested that this explained why he had lied about his route home.
The summing up on identification
18.
We set out in full at this point the portion of the summing up most relevant to the issues relating to Steven Wemyss’s recognition evidence:
“There are in this case two categories of identification. The first is visual identification and the second is identification by voice. Both identifications were made by Steven Wemyss, the surviving victim of the attack, and both implicated the Defendant Mr. Davies as the attacker in the scream mask. ”
I must warn you of the special need for caution before convicting a defendant in reliance on identification evidence. That is because it is possible for an honest witness to make a mistaken identification. It is known that some people have been wrongly convicted in the past as a result of such mistakes. A witness can seem convincing yet still be mistaken. You must look therefore at each form of identification by Steven Wemyss with great care.
Let us consider visual identification first. Generally in case where a witness says he recognises the Defendant as responsible for a crime, a Jury is as a rule warned about a number of matters. How well did the witness know the person? How long did he have him under observation? At what distance? In what light? Did anything interfere with his view? Has the witness been inconsistent in his description or the course of identification of the person concerned? All those questions are relevant to the visual identification by Steven Wemyss.
But in this case I think it right to direct you to go even further than that along the line of caution. When Steven Wemyss saw the man in the Scream mask, the mask hid from his view essentially everything but the eyes of the attacker. Steven Wemyss says he was able to see the skin colour, but otherwise it was only the eyes. His view even of the eyes would be at least in part obscured by mesh if the mask was identical to the one we have, the one owned by the Wemyss family, not of course the actual mask of the attacker.
Under all those circumstances I direct you that the visual identification on its own is very limited, and that in itself it cannot possibly be relied on to prove the identity of the attacker as Mr Davies. At its best, the only feature seen by Steven Wemyss were the eyes and the skin round them.
I remind you of the specific weaknesses or possible weaknesses associated even with that limited form of identification. The amount that Steven Wemyss had had to drink, equivalent to two-and-a-half times the driving limit, although of course in Stephen Wemyss’ favour it is not suggested that he was a driver or ever had been. The fact that Steven Wemyss was in a stressful and frightening situation, facing a gun. The fact that the lighting conditions, although the lights were on were not ideal, there being only, I think, one bulb in the fitment or fitments in question. The fact that Majit Wemyss, about whose evidence I will remind you later, the brother of Steven, was also face to face with the attacker and got no view at all, and also the brevity of the time available for identification. Now those are all specific weaknesses or possible weakness.
Let us suppose that you come to the conclusion that there is other evidence apart from this which does prove Mr Davies’ participation in the attack, either from the circumstantial evidence or the voice identification or both. What then?
Well, it is open to you, if you find that there is some value in the very limited visual identification to use it as some sort support for the rest of the evidence. You should not give the visual identification any more significance than that. Indeed, if you have any real doubt about its quality, even to the limited extent that I have mentioned, you should simply put the evidence aside and ignore it when you make up your mind about the case against and for Mr Davies.
I move from that now to the identification by voice. In relation to that you have been rightly told that juries should be even more cautious about voice identifications than about visual identifications, and I direct that you should exercise great caution about voice identification. You are of course entitled to bear in mind that Steven Wemyss was, assuming that you accept this to be the case, familiar with Mr. Davies’ voice.
You are also entitled to take into account that under the supervision of Inspector White fifteen voices out of forty-four were selected from recordings, and of those Steven Wemyss was asked if he could pick one out of ten as being the voice of Mr. Davies. He successfully picked number three.
Equally, however, you should bear the following matters in mind. The question that Steven Wemyss was asked was not whether he could pick out the voice of his attacker on the night but whether he could pick out Andrew Davies’ voice. That distinction may, on the face of it, be a subtle one because Mr Wemyss has also said that the attacker’s voice was that of Andrew Davies. But you should bear that distinction in mind, and particularly bear the distinction in mind because the only words that the attacker said, on the evidence that you have heard were “Where’s Chrissie?”
The passage which Mr Wemyss listened to on CD included those two words but was very much longer, and it was read over to him twice and he had the leisure to consider it in those controlled circumstance. There were, I think, over eighty words read over.
Bear in mind also the difficult and no doubt terrifying circumstances in which the voice of the attacker was heard by Steven Wemyss. Approach the matter with great caution and have regard to the risk of error. If you are unsure of the value of the evidence you should attach no weight to it.
On the other hand if you think that the evidence is of value, then you are entitled to ask yourselves whether there is support for it in all the other evidence. That other evidence consists of the circumstantial evidence to which I have already referred.
There is also the matter of the lies and alleged lies told by the Defendant, depending upon the significance which you attach to them. It is for you to decide what, if any, support this other evidence gives to the identification in the case of Mr Davies.”
The submissions
19.
In support of the single ground on which the appellant was granted leave to appeal by the Full Court presided over by Thomas LJ, Miss Baird submitted that trial counsel acted “inexplicably and contrary to all promptings of reason and good sense” (cf
Clinton
97 CAR 320) in failing to object to the admissibility of Steven Wemyss’s evidence regarding his suggested visual and voice recognition of the applicant. Counsel should, Miss Baird submitted, have objected to this evidence (i) as so poor as to be worthless, (ii) as more prejudicial than probative and/or (iii) pursuant to
s. 78
of the
Police and Criminal Evidence Act 1984
. In support of this, she prays in aid junior trial counsel’s original perfected grounds of appeal dated 26
th
September 2001 and paragraph 37 of his supporting advice. The first ground was that the trial judge “failed adequately or at all to direct the jury that the visual identification and voice identification were so unreliable so [sic] as to be worthless in terms of their evidential value”. The latter contained a statement, perhaps more submission than opinion, that
“A close analysis of the evidence of identification in Counsel’s respectful submission led one to the conclusion that it was absolutely and utterly worthless and the jury should have been so directed. This was a course which the Learned Trial Judge chose not to take”.
20.
Miss Baird puts a like submission at the forefront of this appeal. She describes the visual and voice identification of the appellant as similar to fleeting glimpse identifications, in the case of the former, she submits, of the worst kind and in the case of the latter of a kind about the dangers of which there has been expert warning (cf e.g.
Roberts
[2000] Crim.L.R. 183;
Familiar? Voice Identification Evidence
, David C. Ormerod 2001 Crim. L.R. 595; and
Sounding Out Voice Identification
, David C. Ormerod 2002 Crim. L.R. 771). She submits that it would have been incumbent on the judge to exclude the identification evidence entirely, if he had been asked, under the principles stated in
Turnbull
[1977] QB 224
; (1976) 63 CAR 132. She reinforces this contention by various criticisms directed at the police investigation and procedures. No “first description” of the eyes or voice was recorded in any statement. With regard to the voice identification procedure, she did not assert any contravention of Code D made under
the 1984 Act
, accepting that it permitted a voice parade where appropriate and not suggesting any contravention of paragraph D:17 (now D:18). But she did submit that best practice had not been followed, in that Inspector White who compiled the tape of ten voices could claim no particular formal qualifications, e.g. in phonetics. Miss Baird relied upon a report commissioned by the CPS for the purposes of this appeal from Professor Ray Bull, who refers to certain guidelines established by Detective Sergeant McFarlane of the Metropolitan Police subsequent to the events relevant to this case. These guidelines point out that there should be appropriate similarity among all voices selected to be present in the voice parade and that the judgment about appropriate similarity among the possible voices should be undertaken by an “expert witness”. Professor Bell went on say that “a very important question arises as to the ability of Inspector White to select appropriate voices”, and to point out that the appellant’s solicitors had commented at the time that “the voices are unsuitable because they are not of a sufficient standard to ensure fairness”, to which the inspector had replied “I consider the tape to be a fair test for the witnesses and do not intend to obtain further voices”. Miss Baird also points out that a voice identification procedure based on 86 words repeated twice is a different exercise to one based on two words spoken only once in the heat of an armed incursion into a private house.
21.
Miss Baird submits that the judge should have been asked to exclude and would, if he had been asked, have been likely to exclude all Steven Wemyss’s identification evidence before it was called. On 18
th
June 2004 her solicitors wrote to senior trial counsel saying that the appellant had indicated that, during the trial, the admission of the visual and voice identifications had been discussed at length, that they understood that no objection was taken to their admission on the ground that it was of such poor quality that it would damage the prosecution case and that they believed that the appellant had signed an endorsement agreeing to this course, of which they sought a copy. No such endorsement, and no other contemporary documentation (such as conference notes), have in the event been put before us in relation to the suggestion in this letter. The matter came before the Full Court on 28
th
June 2004, when criticism was expressly directed by Miss Baird to the way in which the trial was conducted. The Full Court presided over by Thomas LJ directed that the Court of Appeal Office should write to trial counsel asking them to deal with the question: “Why was an objection not made to the introduction of the visual and voice identification evidence?” There was a waiver of privilege by the appellant on 29
th
June 2004, the only practical result of which appears to have been a response on 6
th
July 2004 by leading trial counsel to the court’s question as follows:
“(a)
Visual Identification
In his statement dated 17
th
March 2000 Steven Wemyss described one of the assailants at page 13 (p 236 of prosecution statements) as follows:
“I could see the person’s eyes through the mask’s eye holes, the eye holes do have a thin dark mesh on but I could see the eyes clearly and I could see that the skin surrounding the eyes was black. I recognised those eyes straight away and I knew it was Davies”. He said he had known the Defendant for about 10-11 years (p 226). The scream mask worn by the assailant was not recovered or precisely identified but there were several different ones on the market at the material time. In particular the precise nature of the eyeholes and the density of the mesh (if any) varied. In these circumstances we took the view that to object to the evidence on the grounds that there had been no identification parade, if Code D 2.3 applied, would be met by the argument that it would not have been practicable fairly hold an identification parade. Furthermore if the learned judge rules that an identification parade, which featured only the eyes, should and could take place this may have resulted in the Defendant being correctly recognised by his eyes. In any event the issue was one of recognition rather than identification and hence the credibility of the witness.
This matter was fully discussed with the defendant and he agreed that no objection should be made to the evidence of visual identification being lead.
(b)
Voice Identification
Two witnesses in their statements purported to recognise the scream masked assailants voice as being that of the Defendant, namely Steven Wemyss (p 236) and Samantha Robinson (p 266). Steven Wemyss correctly identified the Defendant’s voice when the passage including “where’s Chrissie” was put to him. However Samantha Robinson not only failed to recognise the Defendant voice when she was put to the test but picked out the voice of a person other than the Defendant. (p 481). Thus we found ourselves on the horns of a dilemma. It was not going to be possible to object to the voice identification “test” in the case of Steven Weymss but seek to rely on it in the case of Samantha Robinson. Since the test was clearly flawed because the passage gave the witnesses much more chance to recognise the Defendant’s voice than the few words said at the time of the attack it was decided not to object to the “tests” being introduced in evidence. In the event Samantha Robinson who gave evidence after Steven Weymss did not purport to identify the assailants voice.
The situation was explained to the Defendant more than once and he agreed that no objection should be taken.”
22.
Leading trial counsel in this note has no doubt given the court the benefit of his best recollection and reconstruction of the discussions and thought processes at the time of a trial three years previously. But we have substantial reservations about an approach which asks us to treat very experienced leading trial counsel as having acted inexplicably and contrary to all promptings of reason and good sense, without producing any of the contemporary notes or documentation, which one would expect to exist in the appellant’s trial solicitors’ files, to enable a full appreciation of the evidently lengthy discussions and complex considerations taken into account at the time. That is an aspect which we consider would merit attention in any future appeal in which such criticism of counsel is made. But, for the purposes of the present appeal, we put it aside, and proceed on the basis that Miss Baird invited, namely that the full position is as set out in trial counsel’s response note.
23.
Trial counsel’s response focuses on possible grounds upon which it might have been suggested that the evidence should be excluded under the
Police and Criminal Evidence Act 1984
of for breach of the Codes made under it. Miss Baird submits that it overlooks and that trial counsel must have overlooked the possibility of excluding the evidence on the grounds of its inherent worthlessness or weakness. She also submits that the apprehension that the trial judge might have ordered an identification parade with masks was without foundation at the date of trial and based on a fallacy, namely that the issue regarding Steven Wemyss’s claim to identify the appellant was one of credibility, rather than reliability. With regard to the latter point, we say at once that, although the appellant’s case at trial had to be presented delicately to avoid an outright challenge to the truthfulness of prosecution witnesses, there seems little doubt that it did in reality involve a challenge to credibility, in the sense of truthfulness, at a number of points. Still more to the point, we think it reasonably clear that, however inimical to strict usage, trial counsel’s phrase “and hence the credibility of the witness” was intended to embrace both reliability and truthfulness. The word “hence” relates back to recognition, and no-one could sensibly suggest, nor was the appellant suggesting, that Steven Wemyss’s claimed “recognition” of him was necessarily dishonest, as opposed to mistaken.
24.
Against the event that we might conclude that trial counsel acted reasonably or that the court would anyway have admitted the evidence or that, if the evidence was worthless, the remedy was for the judge to direct the jury to disregard it, Miss Baird asked us to reconsider the previous Full Court’s refusal of leave for a ground taking issue with the judge’s treatment of the evidence. She put this complaint primarily as a complaint about the summing up, although at points in the argument she also submitted that the judge could and should have withdrawn the case from the jury at the conclusion of the prosecution evidence. As we have said, in the light of the Crown’s attitude and without going further into the strict position, we shall deal with these submissions as a matter of substance, as if leave had been given for them by the previous Full Court. At the heart of the complaint in each case is the proposition that the judge should have viewed the visual and voice identification of the appellant by Steven Wemyss as effectively worthless, and that either the whole case or at least (by an appropriate direction) that particular evidence should have been withdrawn from the jury. Miss Baird submits that the crucial nature of the identification evidence is self-evident. She seeks to reinforce this by submitting that the other circumstantial evidence was no more relevant to the case against this appellant than that against Powell, whom the jury acquitted. Therefore, she suggests, it must have been the identification evidence that led to the appellant’s conviction.
Analysis
25.
With regard to Miss Baird’s criticism of counsel, it is important to consider the position and the judge’s likely attitude at the time when she suggests that counsel should have objected to the admission of the evidence. On her primary case, this was before the evidence was ever called. At that stage, counsel and the judge would have had no more than the statements, and it was known that the model of Scream mask which the first intruder had used could not be identified. Leading trial counsel’s note dated 6
th
July 2004 sets out the contents of the part of Steven Wemyss's statement relating to visual identfication (though not the part relating to voice identification, which we have not been shown on this appeal). It does not appear that any other witness to the incident claimed in a statement to recognise the appellant by his eyes. But Samantha Robinson did claim in her statement to recognise him by his voice, when the words “Where’s Chrissie?” were said, even though she failed to recognise him at the later “parade” of voices on tape. In the event, she also failed to come up to her statement in her evidence (see paragraph 5 above).
26.
We do not see any basis on which the judge could realistically have been invited to exclude the proposed oral evidence of Steven Wemyss or indeed Samantha Robinson, before it was ever given. This was a case of purported recognition of familiar eyes and a familiar voice during an incident, not a case of purported identification at a parade following a brief glance at an unknown stranger during an incident. The nature and course of the incident, the words said, how they were said, and the witnesses’ ability to see, appreciate and remember accurately what was going on were all matters which required investigation in the witness box, as would have been the precise nature of the Scream mask, although in the event no-one could assist on this. Further, it was a case where the Crown proposed to rely on a wealth of background evidence, which was capable of reflecting upon and supporting the correctness of the limited visual and voice recognition evidence that Steven Wemyss could give.
27.
The procedure to adopt in situations such as the present was considered in
Flemming
(1986) 86 CAR 33, where this court held that it was quite unnecessary for a trial judge faced with issues about the quality or probative value of identification evidence to hold a trial-within-a-trial. The normal procedure was that laid down in
Turnbull
, where the court
“made it abundantly clear that, where evidence of identification is such that it would be unsafe for a jury to rely on it, the judge should intervene”.
After citing a passage from
Turnbull
(to which we shall come) regarding the basis and nature of the court’s intervention, the court in
Flemming
continued:
“In the normal way the trial judge will make his assessment whether he needs to take the action referred to by the Lord Chief Justice either at the end of the case for the prosecution or after all the evidence in the case has been called. There may be exceptional cases where the position is so clear on the depositions that he can give a ruling at an earlier stage”.
28.
The appellant’s case on this appeal would have therefore to be that the present was one of those “exceptional cases” where the position was so clear that the judge should have been asked to give a ruling before any of the evidence was either heard or tested. We cannot, however, see any basis on which a judge would have been entitled to treat this as an exceptional case within this class. Miss Baird’s submissions included two propositions: first, that Steven Wemyss’s proposed recognition evidence could and should have been assessed as worthless at the outset of the case, before it was ever given; and, second, that this assessment could and should have been done in isolation from any other evidence that the Crown proposed to call. We do not accept either proposition. As to the first, we repeat that we have not even seen the statements, apart from the brief extract in leading trial counsel’s note which does not support the first proposition.
29.
As to the second, we accept that voice identification (or here, more precisely, recognition) evidence needs to be approached with even greater care than visual identification or recognition evidence. But the general principles governing identification stated in
Turnbull
apply to both: cf e.g.
Hersey
[1997] EWCA Crim 3106
(1
st
December 1997) (1998) Crim. L.R. 281.
It is therefore necessary to look carefully at what
Turnbull
actually decided about the correct approach. We set out some relevant passages
in extenso
:
“In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger.
….
When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal
unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification: for example, X sees the accused snatch a woman's handbag; he gets only a fleeting glance of the thief's face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father's. Another example of supporting evidence not amounting to corroboration in a technical sense is to be found in Reg. v. Long
(1973) 57 Cr.App.R. 871
. The accused, who was charged with robbery, had been identified by three witnesses in different places on different occasions but each had only a momentary opportunity for observation. Immediately after the robbery the accused had left his home and could not be found by the police. When later he was seen by them he claimed to know who had done the robbery and offered to help to find the robbers. At his trial he put forward an alibi which the jury rejected. It was an odd coincidence that the witnesses should have identified a man who had behaved in this way. In our judgment odd coincidences can, if unexplained, be supporting evidence. (emphasis added by italics)
The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification.
If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so. ….”
30.
Miss Baird submitted at a number of points that, once it is concluded that identification evidence is so weak (e.g. because based on a fleeting glance) that it could not by itself found a proper case to go to the jury, a judge must exclude it, whatever other evidence the Crown might be able to adduce. That is emphatically not the effect of
Turnbull
: see the passages italicised above. On the contrary, even where identification evidence is so poor that, if there were nothing more, the case would have to be withdrawn from the jury, there may be other evidence supporting the identification evidence, so that the Crown is able overall to present a case which is proper for the jury’s consideration. Mr Robson is also able to point in this connection, as a yet more extreme case, to this court’s decision in
George
[2003] Crim.L.R. 282, where it was held that even a series of partial identifications which by themselves could not found a proper case may as pieces in a jigsaw have the cumulative effect of constituting such a case.
31.
For reasons which will appear when we considering the judge’s summing up, it is clear that, whatever value might or might not be put on Steven Wemyss’s visual or voice proposed recognition evidence in isolation, there was a wealth of other circumstantial evidence capable when taken in conjunction with it of supporting the Crown case. There can have been no prospect of the judge treating this as an exceptional case where he could or should intervene in advance on the ground of weakness in Steven Wemyss’s proposed recognition evidence to prevent it even being put before the jury. Nor, so far as it depends on the suggested weakness of such evidence, can anything be added on this point by Miss Baird’s submission that the evidence should have been withdrawn from the jury as more prejudicial than probative. It does not therefore surprise us, in the light of
Flemming
and Turnbull and in view of the way in which the Full Court’s question was framed, that leading trial counsel’s response of 6
th
July 2004 focuses on grounds of objection which might have arisen from procedural unfairness in relation to the voice identification “parade” and the lack of any parade in relation to the purported visual identification.
32.
Miss Baird also relies on procedural unfairness, in support of her contention that an application could and should have been made to exclude the recognition evidence either as more prejudicial than probative or under
s.78
. She points to a lack of any “first description” by Steven Wemyss of the eyes or voice. She points in relation to the voice identification “parade” to Professor Bell’s questions regarding Inspector White’s ability to select and success in selecting similar voices to the appellant’s and to the fact that the “parade” as set up was a test of recognition of a known voice and was based on a much longer passage than the two words actually heard during the incursion. As to the lack of a “first description”, the brief passage from Steven Wemyss’s statement, which is all that we have seen extracted in the note of 6
th
July 2004, makes no attempt to describe the eyes, and does not cover the voice identification at all. We will however assume that Steven Wemyss did nothing further in either case than claim immediate recognition in general terms. It does not follow that he could not, if asked, have given a further description, e.g. of the colour of eyes. Since he had known the appellant for some ten or twelve years, he might well have been able to do this convincingly on the basis that he had known their colour for a long time. Alternatively, he might have said that his claimed recognition derived from shape rather than, or as well as, colour. Ideally, we think that the police should have gone into these matters when taking Steven Wemyss’s statement. But, assuming that they did not with either Steven Wemyss or Samantha Robinson (who in her statement was also claiming to have recognised the appellant’s voice), we think it improbable in the extreme that the judge would have regarded their failure to do so as a ground for treating this as an exceptional case where the evidence should be ruled out before it was even given and before its weight and basis was investigated. It was open to trial counsel to investigate with the witnesses the matters which we have mentioned, if of course they thought it tactically wise to do so. We cannot view trial counsel as having acted inexplicably or as contrary to the promptings of reason and good sense, in failing to raise them with the judge in an attempt, which would in our view clearly have failed, to exclude the evidence before it was even called.
33.
The lack of a visual identification parade and the procedure adopted in relation to the voice identification “parade” were clearly given close consideration by counsel with the appellant at trial. The lack of a visual identification parade is explained by the considerations mentioned in trial counsel’s note. The criticisms of the voice identification have some force. Steven Wemyss and Samantha Robinson were asked to identify the voice of the appellant, with whom and with whose voice they were to different extents familiar; and they were to do so on the basis of a long passage, not two words. He succeeded. She failed. The relevant question would have been whether they could recognise a voice on the recording which was the voice of the first gunman. However, since they had already identified the first gunman’s voice as the appellant’s with which they were or claimed to be familiar, it must have been almost inevitable that they would listen for the appellant’s familiar voice. A more relevant test might also have been whether they could recognise the appellants’ voice from a recording confined to the words “Where’s Chrissie?”, whereas the actual recording contained far more words. We recognise that a somewhat similar point might be made in relation to visual identification parades generally. Although such parades seek to present a selection of similar looking individuals, they do not, and cannot, do so under the same circumstances (fleeting or otherwise) as any original sighting. A witness asked to attend such a parade may well have a substantially longer and more detailed look under very different lighting and other conditions than during any original sighting. However, it would have been feasible to limit the length of the recording used on the parade, although we note that no objection was made by the appellant’s solicitors contemporaneously to the length of the passages in the recording.
34.
An objection to the admission of evidence of the voice recognition and/or of the “parade” might have been made along the lines canvassed in the previous paragraph. Counsel might also have questioned Inspector White’s ability to make a neutral selection of similar voices. But we see no basis for concluding that any such objections would have succeeded. The voice identification “parade” procedure which was followed corresponded generally with that adopted and approved in
Hersey
, above. In that case, there had been considerable conversation over about 15 minutes between robbers, one of whom one of the witnesses claimed to recognise by his voice. A recording of twelve voices (including that of the defendant during a prior interview on an unrelated matter) was made by a police officer and used on a “parade”. The witness who claimed to recognise the voice picked out the defendant. The other witnesses did not. The defence criticised the procedure as a test of no more than the witness’s ability to recognise a known voice and the recording on the ground that the voices used were all of significantly higher pitch and that only the defendant spoke the relevant passage in a way which made sense. The defence suggested that the purported recognition should have been allowed to stand on its own, and that it could not fairly be tested or strengthened by a later voice identification parade. The judge heard evidence (including expert evidence) on a voir dire and refused to exclude evidence of the “parade” identification under
s. 78
. He also refused to allow the defence to call an expert to give evidence before the jury in support the criticism of the recording. The court of appeal considered that the danger of the jury placing undue weight on a parade identification involving or resulting from no more than the witness’s previous acquaintance with the defendant would be obvious to the jury and could be dealt with by defence counsel in his speech and by the judge in summing up. The court also upheld the judge’s decision to refuse to allow the proposed expert evidence, saying that the matters put forward were all within the experience of the jury. Finally, the court endorsed the general application of the principles in
Turnbull
to voice identification evidence.
35.
In the light of
Hersey
, it is not difficult to understand why no objection was made in the present case to the admission of the proposed evidence regarding voice recognition, and why the points that could be made on it, and on its inability to add anything to the original purported recognition, were treated as points to be made after all the evidence had been heard. They involved criticisms about which the judge could and would also have to direct the jury in summing up (as he did). It is true that the witnesses in
Hersey
had during the robbery heard very considerably more conversation than the two words heard during the invasion of 15 Cypress Gardens, and that the witnesses in the present case were explicitly asked whether they recognised the appellant (rather than the first gunman) on the recording. But both these points simply added to the points that could be (and were) made by counsel and by the judge regarding the relative insignificance of the evidence about the “parade”. Indeed, as trial counsel have pointed out, such evidence was not merely flawed in that it asked the witnesses to identify the voice of someone they claimed to know, it also tended to undermine the Crown’s case by demonstrating that one of the two witnesses who might have been expected to know the appellant’s voice could not even recognise it by reference to a far longer passage of words than those spoken during the incursion. Once the evidence about the voice identification “parade” was heard, therefore, we see no possibility that it proved critical in the jury’s deliberations. As to the criticism of the preparation of the recording, even assuming that it would have been best practice in 2000 to involve an expert in phonetics to make the relevant selection (which we do not think is shown), it is not shown that Inspector White’s selection was actually of dissimilar voices or unfair. The recording still, we understand, exists, and yet even now no submission to that effect is made based on any actual analysis, expert or other, of it. In reality, we note that the appellant’s solicitors’ objection appears to have been to the standard, rather than dissimilarity, of the voice recordings. Still more relevant, as in
Hersey
so here also any such criticisms of the recording and “parade” could be deployed once evidence of this “parade” was admitted. For all these reasons, we are unable to conclude that trial counsel acted inexplicably or beyond the promptings of reason and good sense in the course discussed at length with the appellant and decided upon at trial.
Analysis regarding the criticisms of summing up
36.
We turn to the proposed criticisms of the summing up. In the relevant passages, which we have set out above, the judge directed the jury that the visual identification “in itself cannot possibly be relied on to prove the identity of the attacker as Mr Davies”. But he went on to invite them to consider whether there was “other evidence apart from this which does prove Mr Davies’s participation in the attack, either from the circumstantial or the voice identification or both”, and to say that it was then open to them to find “some limited value in the very limited visual identification evidence to use it as some sort [of] support for the rest of the evidence”. In dealing with the voice identification, the judge directed the jury to be even more cautious, and drew attention to the criticisms available in respect of the “parade”. But he left it to the jury to consider whether the voice identification had any value, and, if they did, to ask whether there was any support for it in all the other, circumstantial evidence. Miss Baird does not criticise the latter direction relating to voice identification, but she submits that the judge put the direction regarding visual identification the wrong way around in suggesting that other (circumstantial or voice identification) evidence might support it. This is not in our view a valid criticism. The judge was telling the jury correctly that the visual identification alone could not assist, but that they might consider that it could have weight in conjunction with other evidence. That is correct. His predicate was that they considered that there was “other evidence apart from this which does prove Mr Davies’s participation in the attack”. He was telling the jury first to consider that, and then to consider whether to deploy the visual identification in further aid. Whether at this point one describes the circumstantial evidence as supporting the visual identification, or vice versa, seems immaterial. In substance, the jury was being asked, correctly, to look at the overall picture, at the combination of all the evidence, to see whether or not it made them sure. In our view the judge’s careful directions, discussed no doubt with trial counsel in advance, were both correct in law and entirely appropriate in the circumstances of this case. They also support our view that there would have been no real prospect of a successful application at any earlier stage in the trial to exclude any part of the recognition evidence.
37.
We also heard submissions about the value of the circumstantial evidence apart from Steven Wemyss’s recognition evidence. A submission of no case to answer was made on behalf of Powell at the end of the Crown’s evidence, and was rejected. Even without Steven Wemyss’s visual and voice recognition of the appellant, we think it unlikely that a similar submission on behalf of either this appellant or Powell could have succeeded. But the more important consideration is that the judge was unquestionably right to consider that there was relevant circumstantial evidence capable of supporting Steven Wemyss’s recognitions. In our view the circumstantial evidence against this appellant can rightly be described as substantial, quite apart from such recognition evidence. Miss Baird accepts that it shows that he had an animus against both Christopher Wemyss and Andrew Lansdown. On the day of the shootings, in particular, there was evidence that the appellant was looking for Christopher Wemyss; that he had visited 15 Cypress Gardens at 8.00 p.m. only two hours before the shootings, asking the same question as the first gunman ("Where's Chrissie?"); that on that visit he had been told that Christopher Wemyss would be there at 10.00 p.m.; that he had quarrelled angrily with Christopher Wemyss’s girlfriend Leila Bailey, and with Andrew Lansdown from whom he parted on the basis that the matter was not finished; and that between 8.00 p.m. and 10.00 p.m. he had been in a house where news had been received that his aunt in Byker feared an attack by Christopher Wemyss on her house, and that within minutes he had left the house in a taxi originally booked to go to Byker via Forest Hill, but that he stopped at Forest Hall. One adds to that the change of clothing in Forest Hall, the lies told about his visit to 15 Cypress Gardens at 8.00 p.m., and about his route home, the implausibility of his explanations for them, and the implausibility of his and his girlfriend’s timing of his arrival home and of his explanations for the telephone calls made from 10.00 onwards. In our view this was a considerable circumstantial case against this appellant, even apart from Steven Wemyss’s recognition evidence, and one which was certainly capable of supporting that evidence. We do not accept that Powell’s acquittal shows the contrary, or that it means that Steven Wemyss’s recognition evidence must have been critical in relation to this appellant. There was certainly material from which a jury might have concluded that Powell was in effect this appellant’s assistant in any trouble. But it is equally clear that the evidence implicated Powell less directly and to a much lesser extent than the appellant. Powell was not shown to have the same animus against either Christopher Wemyss or Andrew Lansdown. Powell’s case was that the appellant used to approach him for a lift and for a drink, and was not always welcome, and there was some objective evidence to support this. Powell was above all not present at the 8.00 p.m. visit to 15 Cypress Gardens. The Crown failed to make the jury sure in the case of Powell. It succeeded in the case of this appellant. There is no inconsistency, and this appeal gains no assistance from Powell’s acquittal in relation to the issues before us on this appeal.
Conclusion
38.
Standing back from the submissions, and looking at the position overall, we find ourselves in no doubt about the fairness of the trial process or the safety of this appellant’s conviction. We also consider that the appellant was convicted on evidence which, viewed overall as it must be, pointed strongly towards his guilt.
39.
It follows that we consider that this appeal must be dismissed on the one point on which the Full Court gave leave to appeal. On the other aspects, particularly relating to the summing up, which Miss Baird has raised before us, and which we have considered as if leave had been given, we consider that there is also no valid ground of complaint in this court, and we shall accordingly simply dismiss the application for leave to raise them. | {"ConvCourtName":["Crown Court at Newcastle"],"ConvictPleaDate":["2001-06-14"],"ConvictOffence":["Murder","Causing grievous bodily harm with intent"],"AcquitOffence":["Murder","Causing grievous bodily harm with intent"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Newcastle"],"Sentence":["Life imprisonment for murder","15 months imprisonment concurrent for causing grievous bodily harm with intent"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Visual identification","Voice identification","Circumstantial evidence"],"DefEvidTypeTrial":["Alibi claim","Challenged reliability of identification"],"PreSentReport":["High risk of harm"],"AggFactSent":["Use of a weapon (shotgun)","Offence committed in victim's home"],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Failure of trial counsel to object to admissibility of visual and voice identification evidence","Alleged misdirection in summing up regarding recognition evidence"],"SentGuideWhich":["Turnbull [1977] QB 224","Police and Criminal Evidence Act 1984 s.78"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["No basis for exclusion of identification evidence before trial","Judge's summing up was correct and appropriate","Substantial circumstantial evidence supported conviction","No procedural unfairness or misdirection"]} |
Neutral Citation Number:
[2008] EWCA Crim 585
Case No:
2006/05550/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
Her Honour Judge Goddard QC
T2005/7656
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
18/03/2008
Before :
LORD JUSTICE DYSON
MR JUSTICE MADDISON
and
SIR RICHARD CURTIS
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Between :
R
Appellant
- and -
Ngyuen
Respondent
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(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
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Edward Rees QC (instructed by Moss & Co) for the Appellant
Simon Denison
(instructed by
CPS
) for the Respondent
Hearing dates: 26/02/2008
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Judgment
Lord Justice Dyson,
giving the judgment of the court:
Outline of the case
1.
On 2 October 2006 in the Central Criminal Court (Her Honour Judge Goddard QC), the appellant was convicted by majority verdict (10:2) of murder. He appeals against conviction by leave of the Full Court.
2.
On the night of 23/24 December 2005, the appellant and the deceased, Billy Gregory, were involved in an incident in the Earl of Chatham public house in Woolwich. The appellant struck the deceased in the side of the neck with a glass, causing him to bleed profusely. He died from his injuries the following day. The Crown case was that the appellant was under the influence of alcohol, became angry and deliberately used the glass as a weapon to cause injury. The defence was that the deceased had made threats, used racist language and then assaulted him, and that the appellant had acted in self-defence.
3.
On 7 December 2005, the appellant had been involved in an earlier incident at the Great Harry, another public house in Woolwich. On that occasion, he broke a glass and used it to cause injuries to 3 men. At an early stage of their case, the Crown applied for leave to adduce this incident as evidence of bad character under
section 101(1)(d)
of the
Criminal Justice Act 2003
(“the CJA 2003”) on the basis that it was relevant to the question whether the appellant had a propensity to commit offences of the kind with which he was charged (
section 103(1)(a)
).
4.
The judge ruled that the evidence of the earlier incident could be admitted. The single ground of appeal is that the judge was wrong so to rule. Before we come to the ruling, we need to say more about the Crown case in relation to both incidents.
The Crown case in respect of the Earl of Chatham incident
5.
On the evening of 23 December, the Earl of Chatham was packed with people. At some point in the evening, the appellant and the deceased had an altercation, but there was no violence. About 40 minutes passed. The appellant and the deceased went separately to the lavatory. Neither knew the other was there. The appellant was standing holding a pint glass when the deceased walked in, also holding a pint glass. The lavatory is very small and several men were using it.
6.
According to the lavatory attendant, Jonathan Sampson, the deceased accidentally bumped into the appellant, knocking him off balance. The appellant responded angrily and the deceased said something back. The appellant then struck him with the glass that he was holding. It shattered and blood immediately gushed out. Mr Sampson did not agree with the suggestion put to him by counsel for the appellant that, moments beforehand, the deceased had been holding the glass near to the appellant’s face.
7.
Adrian Pryce was also inside the lavatory. He heard bickering and the appellant and the deceased fighting. He saw the appellant put a pint glass in the deceased’s neck. He did not hear any racist comments.
8.
Also in the lavatory was Dean Rogers. He said that he heard words being exchanged and a loud smack. It sounded like a gun and as if a great deal of force had been used. He saw the 2 men fighting.
9.
The appellant was arrested and he told a police officer that he had been in a fight and had been beaten up. He threatened a paramedic and continued to be aggressive at the hospital. In interview he refused to answer questions. He provided a prepared statement in which he said that he had been threatened and provoked by the deceased’s behaviour.
The Crown case in respect of the Great Harry incident
10.
On the evening of 7 December, there were 4 members of staff on duty at the Great Harry public house. These included Alan Munn and Philip Rogers. Among other persons present were Derek Rogers, Mark Jobbins, Timothy O’Sullivan and Thomas O’Shea. All of these witnesses gave evidence at the trial of the appellant. CCTV footage was also shown to the jury.
11.
Mr Jobbins described how the appellant became involved in an incident between some soldiers and Mr O’Sullivan and Mr O’Shea. Mr Jobbins could see no reason for the appellant becoming involved. The soldiers then moved out of the way and, according to Mr Jobbins, the appellant then “steamed into” Mr O’Sullivan and Mr O’Shea and put his hands up to one of them in a fighting stance. These 2 men then went to the bar. Mr Jobbins said that some time later, the 2 men and the appellant were near each other in the bar. Mr O’Sullivan reached to grab the appellant and Mr O’ Shea tried to keep them apart. Mr Jobbins then described how the appellant took a wine glass, smashed it and held the stem between two fingers of his right hand with the other arm ready to defend or attack. He did not see the scuffle that followed, and the next thing he saw was the appellant “flying through the air” until he hit the cigarette machine.
12.
Philip Rogers, the barman, said that the appellant picked up the wine glass and smashed it on the table. He then saw the appellant standing with the broken end of the glass in his fist, his arm by his side, taut and clenched up in an aggressive stance. The appellant took a swing at Mr Munn with the glass.
13.
Derek Rogers said that he saw the appellant with the stem of the glass between his fingers. He got behind the appellant and pulled him to the floor. Alan Munn spoke of the appellant swinging the glass at Mr O’Sullivan and Mr O’Shea who had been cut.
14.
Mr O’Sullivan and Mr O’Shea were not regarded by the Crown as reliable witnesses. This was because, contrary to what was apparent from the CCTV, they said that they had not gone over to attack the appellant at the start of the incident. But they were tendered for cross-examination at the request of the defence. They said that the appellant had broken the wine glass and jabbed Mr O’Sullivan with it in the head and neck. Mr Derek Rogers, Mr O’Sullivan and Mr O’Shea all suffered cuts from the broken glass. Mr O’Sullivan was the most seriously injured, requiring 14 stitches to his head wounds.
15.
We shall refer to the alleged assaults on these 3 men as “the Great Harry assaults”.
The decision not to prosecute for the Great Harry assaults
16.
On 7 December, Mr O’Sullivan was seen by the police. He said that he did not want to give any details of the offence but on 9 December he said that he did wish to press charges against the appellant. On 22 December, however, the CPS decided that no further action would be taken because there was insufficient evidence to proceed. It seems that Mr O’Sullivan did not attend appointments and the CPS decided that he was to be “discounted as a viable witness”. But matters did not rest there. Mr O’Sullivan was interviewed and made a statement on 8 January 2006. Apparently, he changed his mind after he learnt of the Earl of Chatham incident. A statement was taken from Mr O’Shea on 10 January. In the light of the evidence thus obtained, on 1 February 2006 the police arrested the appellant in respect of the Great Harry assaults.
17.
It is accepted by Mr Denison on behalf of the Crown that by February or March 2006, the Crown had sufficient material to prosecute the appellant for the Great Harry assaults. They decided not to do so, but rather chose to seek to rely on them in the murder proceedings as evidence that the appellant had a propensity to commit offences of the kind with which he was charged.
The application and the ruling
18.
The application was based on
section 101(1)(d)
and
103(1)(a)
of the
CJA
2003. That is to say that the bad character evidence was relevant to an important matter in issue between the appellant and the Crown, namely whether he had a propensity to commit offences of the kind with which he was charged. Mr Denison told that judge that, if the application were granted, he would not call Mr O’Sullivan or Mr O’Shea, since their denial that they had attacked the appellant was shown by CCTV footage to be untrue. Nevertheless, he would call the other witnesses. The Great Harry assaults were admissible because they were relevant to (i) whether the appellant had a propensity to commit offences of the kind with which he was charged and (ii) whether he intended to kill Mr Gregory or cause him really serious bodily harm.
19.
The judge held that, although there were factual differences between the Great Harry assaults and the Earl of Chatham incident, what they had in common was that on each occasion the appellant had taken a glass in anger and used it as a weapon. She noted that the earlier incident was a single incident. But it was admissible because it showed a tendency to unusual behaviour and/or “its circumstances demonstrated probative force in relation to the offence charged”.
20.
The judge then considered the forensic history of the earlier incident to see whether admission of the evidence would be unfair. She referred to the submission made by Mr Rees QC (which has been repeated to this court) that the CJA 2003 was not meant to circumvent the public interest in having a trial. Moreover, if the jury were not sure about the case against him, the evidence of the Great Harry assaults would adversely colour their views. They would find it difficult, if not impossible, to know how to use this evidence. In acceding to the Crown’s application, the judge said:
“In my judgment, the prosecution were entitled to take the course they did as a matter of procedure but, if that course led to unfairness, their application would fail. In my judgment, it will not do so. The jury will have to be sure of the facts before they can use them, applying the criminal burden and standard of proof. I do not see that the directions to the jury will be so complicated that they cannot be followed. Juries do differentiate between counts and return different verdicts in other cases and there is no reason to think that there is room for prejudice.”
The summing up
21.
The jury heard a considerable amount of evidence about the Great Harry assaults, which the judge summarised in her summing-up in a way of which no complaint is made. Indeed, there is no complaint of any kind about the summing up.
22.
She gave the jury a careful direction as to the relevance of the Great Harry assaults in these terms:
“You heard evidence that he has been accused before of using a glass as a weapon at the Great Harry public house on 7
th
December. It is important that you understand why you have heard this evidence and how you can use it. I have to and do emphasise that you must not convict him simply because he has been so accused before.
You hear about it because it may help you to resolve an issue or issues between the prosecution and the defence, namely the question as to whether he has a propensity, or a tendency, deliberately to use a glass as a weapon, the question as to whether he has a propensity, or a tendency, to do so unlawfully - - that is not in necessary and reasonable self-defence - - and the question as to whether on 23
rd
/24
th
December his intention was to cause at least really serious bodily harm.
First of all, you have to decide what happened in the Great Harry. There is no charge on the indictment so you will not be asked for a verdict. Nevertheless the prosecution have to make you sure of any fact before you can bring it into your consideration of the events of 23
rd
/24
th
December.
The facts that the prosecution say are relevant are three, that on 7
th
December:
(i) He deliberately broke a glass, intending to use it unlawfully as a weapon.
(ii) He used it with the intention of causing really serious bodily harm.
(iii) He used it unlawfully.
If you are not sure of any of those facts, the events in the Great Harry are irrelevant to your deliberations on the charge of murder.
If you are sure of those facts, how do you bring it into your deliberations? When you are considering your verdict on the charge of murder, you have to be sure that the prosecution have proved the elements in that charge, as I have directed you, before you can return a verdict of guilty. You cannot convict him only, or even mainly, on the basis of facts you find proved arising out of events on 7
th
December but, when you are considering whether the prosecution have proved murder, if the facts of 7
th
December make you sure that, bearing in mind it is only one incident, the defendant had a tendency deliberately and unlawfully to use a broken glass as a weapon, then you can consider whether that makes it more likely that he is guilty of murder.
So such a tendency amounts to some additional evidence pointing to guilt but you must bear in mind that, even if he did have such a tendency, it does not necessarily prove that he committed this offence.”
23.
After the completion of the summing up, the jury sent a note in the following terms: “Re the Great Harry. Should we not all be sure of the relevant facts? Can those jurors who are sure of the 3 relevant facts still take them into account in their deliberations on the charge of murder?” The reference to the 3 relevant facts was to the 3 facts relating to the Great Harry assaults which the judge had mentioned in the passage which we have already quoted.
24.
In response to that question, the judge directed the jury as follows:
“What is important is that you must be unanimous in your verdict. Before any verdict of guilty is returned, you must be sure that the ingredients of murder or manslaughter have been proved. In coming to that verdict, some may rely on some piece of evidence, others may attach importance to some other aspect of the evidence. In other words, you do not have to travel the same evidential route. Before any of you take the events of the Great Harry into account in your deliberations, you must be sure of all three relevant facts. Those of you who are sure of those relevant facts in the Great Harry are entitled to take it into account, bearing in mind that you cannot convict the defendant only or even mainly on events in the Great Harry.
In my written directions to you, I have pointed out that, even if you are sure that there is a tendency to use a glass unlawfully, that does not necessarily prove that the defendant committed the offence of murder or manslaughter.
Those of you who are not sure of the three relevant facts will not take it into account and, therefore, you do not all have to be agreed on the Great Harry. You all have to be sure of your verdict.”
The appellant’s submissions
25.
In summary, Mr Rees submits that the judge was wrong to rule as she did because the evidence of the Great Harry assaults (i) would have such an adverse effect on the fairness of the proceedings that it should not have been admitted: see
section 101(3) of CJA
2003 and/or section 78 of PACE 1984; and (ii) was not probative of and, therefore, not relevant to any matter in issue. Although Mr Rees addressed us principally on (i), it is logical to start with (ii), since if the evidence was not relevant, it could not be admitted and it is not necessary to consider whether it was unfair to admit it.
Relevance
26.
Mr Rees submits that, although the Great Harry assaults involved the use of a glass in a public house, the circumstances of the 2 incidents were otherwise so dissimilar that they were insufficient to establish a propensity or pattern. In particular, Mr Rees identifies the following distinguishing features between the 2 incidents. In the Great Harry assaults, the appellant was alleged to have persisted in actively seeking a confrontation with certain customers and to have picked up and broken a wine glass
in order
to use it as a weapon and his alleged use of the glass followed after 3 men had attacked him in an attempt to prevent him from using the glass against them. In the Earl of Chatham incident, the appellant had not been holding the glass as a weapon at the time of the initial physical contact in the lavatory and the alleged assault appears to have occurred by what Mr Rees describes as a “chance medley”: the deceased appears to have entered the lavatory by coincidence after the appellant had entered and the violence that ensued was a direct and spontaneous response to physical contact in a confined space.
27.
We remind ourselves that this court will not interfere with a judge’s judgment as to the capacity of prior events to establish propensity unless satisfied that the judge was plainly wrong: see
R v Hanson
[2005] Cr App R 21
para 15. In our judgment, so far from being plainly wrong, we are satisfied that the judge was entitled, and indeed right, to decide that the Great Harry assaults were relevant to whether the appellant had a propensity to commit offences of the kind with which he was charged. As Mr Denison points out, there were common to the 2 incidents the fact that (i) they occurred only 18 days apart, (ii) they both involved the alleged deliberate and unlawful use of a glass to cause really serious bodily harm with intent to do so, and (iii) they both occurred when the appellant had been drinking alone in a public house and after he had become involved in an argument with the victim.
Unfairness
28.
Mr Rees QC places emphasis on the fact that the Crown made an informed and deliberate decision not to charge the appellant with the Great Harry assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. He submits that there must be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under
section 101(1)(d)
of the
CJA
2003. For reasons that we summarise below, Mr Rees submits that this limit was exceeded in this case.
29.
At the outset, however, we should record that Mr Rees makes 3 concessions. First, he accepts that, if the appellant had been charged and indicted for the Great Harry assaults, it would have been open to the Crown to apply to join the assault counts in the murder indictment. Secondly, he accepts that admissible bad character evidence is not confined to evidence of criminal convictions. This follows from the wide definition of a person’s bad character in section 98 as “evidence of, or of a disposition towards, misconduct on his part”. “Misconduct” is defined in section 112(1) as “the commission of an offence or other reprehensible behaviour”. In this case, the bad character evidence amounted to an allegation of the commission of an offence. The judge, therefore, rightly directed the jury that they should be satisfied to the criminal standard of proof that the appellant had committed the Great Harry assaults as a necessary (but not sufficient) condition of their relying on them as establishing propensity.
30.
Thirdly, Mr Rees accepts that the response given by the judge to the jury question was correct: see
R v Kevin Brown
(1984) 79 Cr App R 115. Any member of the jury, if sure of all 3 of the relevant facts identified by the judge (see para 22 above), could take the Great Harry assaults into account, even if other members of the jury felt unable to do so because they were unsure. As the judge put it, they did not all have to travel down the same evidential route. But by whatever evidential route they reached their verdict on the murder charge, at least 10 of them had to be sure of the appellant’s guilt before the jury could convict him of murder.
31.
There are 3 strands to Mr Rees’s argument on unfairness. First, Mr Rees submits that it is relevant to a consideration of fairness that the Crown made a deliberate decision not to prosecute the appellant for the Great Harry assaults. In this respect, the case is to be contrasted with cases where the Crown is prevented by order of the court from pursuing a prosecution. As he puts it in his skeleton argument, “if judges start to allow application in the absence of good reason for not prosecuting separately, they may set a dangerous norm in which prosecutors find it expedient to “prosecute” multiple criminal allegations in this way rather than by way of trial on indictment”. We should add that, in advancing this submission, Mr Rees expressly disavows any suggestion that the Crown did not act in good faith in making their decision.
32.
Secondly, he submits that the admission of evidence of the Great Harry assaults was unfair to the appellant, since it put him in a less advantageous position than that in which he would have been if he had been charged and tried for the assaults, whether in a separate previous trial or on a count or counts added to the murder indictment. Mr Rees argues, for example, that if the assaults had been the subject of a separate previous trial and the appellant had been acquitted, they could not subsequently have been relied on as evidence of propensity to commit an offence of the same kind as murder. Further, he says that the position would have been the same if some of the jurors had been sure of guilt of the assaults, but the jury as a whole could not agree on a verdict one way or the other. In both cases, it would have been necessary for the judge to direct the jury that none of them, even those who were sure of the appellant’s guilt of the Great Harry assaults, could take those assaults into account as evidence of propensity when considering the murder charge. That is because, as Mr Rees puts it, an acquittal by a jury is a finding that an offence has not been committed which no juror is entitled to disregard when considering another charge.
33.
Finally on fairness, Mr Rees submits that there is a real risk that the judge’s direction to the jury that, unless they were satisfied of the appellant’s guilt of the Great Harry assaults to the criminal standard of proof, they should disregard them, was likely to be ineffective. It was asking too much of a jury to expect them to apply this direction faithfully and conscientiously.
34.
We turn to the first strand of Mr Rees’s argument.
Section 101(3) of the CJA
2003 provides that the court must not admit evidence under section 101(1)(d) if it appears to the court that 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. The focus is, therefore, on the effect on the fairness of the proceedings of admitting the evidence. For reasons that we explain at paras 38 to 42 below, we reject the submission that a defendant is necessarily worse off if the evidence is admitted under section 101(1)(d) and is not made the subject of a prosecution and trial. If that is right and there is no suggestion of bad faith, then it seems to us that the reason why the Crown decides to adopt the section 101(1)(d) route rather than prosecute has little if any relevance.
35.
In
R v Smith and other cases
[2005] EWCA Crim 3244
,
[2006] 2 Cr App R 4
, this court considered a case where a defendant was told that no further action would be taken against him in relation to certain alleged sexual offences. The Crown later started proceedings against the defendant which included the offences in respect of which they had said that no further action would be taken. The counts in respect of those offences were stayed as an abuse of process. The Crown then applied to adduce the evidence which would have supported the stayed counts. The judge granted the application under
section 101(1)(d)
of
the 2003 Act
. An appeal against the judge’s ruling was dismissed.
36.
In giving the judgment of the court, Scott Baker LJ said:
“77. The relevant underlying principle seems to us to be this. Prima facie all evidence that is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. In
R. v Z
[2000] 2 Cr.App.R. 281
it was accepted by the defendant that the evidence of the three complainants in respect of whose complaints he had been acquitted was relevant to the question whether he was guilty of the offence of rape with which he had been charged. The issue was not whether the defendant was guilty of having raped the three other complainants; he was not being put on trial again for those offences. The only issue was whether he was guilty of the fresh allegation of rape. Lord Hope of Craighead said at p.283 that the guiding principle was that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. He said that the objection to the admissibility of the evidence was based on Lord MacDermott’s statement in
Sambasivam v Public Prosecutor, Federation of Malaya
[1950] A.C. 458
, 479 that the effect of the verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried again for the same offence. He said that it is binding and conclusive in all subsequent proceedings between the parties of the adjudication.
Lord Hope went on:
“But I agree with my noble and learned friend Lord Hutton that the observation which is contained in the second of these two statements is in need of qualification in order to confine its application to its proper context. The principle which underlies both statements is that of double jeopardy. It is obvious this principle is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.”
78. If evidence of previous allegations is in principle admissible notwithstanding that the accused was acquitted of charges based on those allegations in a previous trial, it is difficult to see why in principle evidence relating to allegations that have never been tried (i.e. because of a stay for abuse of process) should not be admissible. The defendant’s protection comes through the judge’s discretion under s.101(3) or, in an appropriate case, through s.78 of the Police and Criminal Act 1984.
…”
37.
In our judgment, that reasoning applies with equal force to a situation where the Crown
decides
not to prosecute as it does to a situation where the Crown is
prevented
from prosecuting by order of the court. On the assumption that in both cases the bad character evidence is relevant, we can see no difference in principle between the two cases. If (as we have held) the judge was right to decide that the bad character evidence was relevant, then it was in principle admissible unless its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. We do not accept that the mere fact that the Crown chooses to rely on relevant bad character evidence which it decides not to make the subject of a criminal charge can of itself have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Something more is needed. The need for something more brings us to the second strand of Mr Rees’s argument.
38.
We accept that, if (i) the Great Harry assaults had been tried separately, (ii) they had been tried before the murder trial and (iii) the appellant had been acquitted of the assaults, it is unlikely that the assaults would have been left to the jury as potential evidence of propensity in relation to the charge of murder. In that event, the appellant would have been in a more advantageous position than that in which he was. But that comparative disadvantage is contingent on the three hypotheses we have identified. Moreover, the disadvantage also depends on the contingency that, where the assaults are not tried separately, some members of the jury are not sure of the defendant’s guilt of the assaults.
39.
What if he had been tried for the Great Harry assaults together with the murder and he had been acquitted of the assaults by a majority? Would those jurors who were sure of his guilt be allowed to rely on the evidence of the assaults as establishing a propensity when considering the murder charge? As we have said, Mr Rees concedes (rightly in our view) that the judge’s response to the jury question (para 24 above) was correct: the jury did not have to travel down the same evidential route. That answer was correct as regards taking into account the Great Harry assaults where they were not the subject of a prosecution. In a case where evidence of bad character is relied on as establishing propensity, we can see no logical basis for saying that it is material to the question of whether the jury can rely on the evidence for that purpose that it is the subject of a prosecution. In the present case, the jury could only convict the appellant of murder if they were sure that the elements of murder had been proved to the criminal standard of proof. What evidence led them to that conclusion if that was the conclusion they reached was a matter for them. They could take into account the Great Harry assaults only if they were sure of the 3 relevant facts to which the judge referred in her answer to the jury question.
40.
Mr Rees argues that, if the assaults had been joined as a count or counts on the murder indictment, an acquittal by the jury would be a finding that an offence had not been committed which no juror would be entitled to disregard when considering another charge. That justification finds support in the statement by Lord MacDermott in
Sambasivam v Public Prosecutor, Federation of Malaya
that a verdict of acquittal is binding and conclusive in all subsequent proceedings between the parties to the adjudication. But as was pointed out in the passage from
R v Smith
which we have set out at para 36 above, that statement was qualified by the House of Lords in
R v Z.
Those jurors who, being sure of a defendant’s guilt on count 1, rely on it as evidence of propensity to commit offences of the same kind as count 2, are not convicting the defendant on count 1. They are relying in part on the evidence of propensity to convict him on count 2.
41.
Let us suppose, however, that we are wrong to hold that an acquittal by a majority does not prevent dissenting jurors from taking into account their view of a defendant’s guilt on one charge as establishing his propensity to commit offences of the same kind as another charge. In our judgment, the possibility that a defendant might be worse off in this respect, if the evidence of bad character is admitted as was done in the present case rather than made the subject of a trial, does not of itself mean that the evidence should not be so admitted because it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. First, when the judge is asked to decide whether to admit evidence of bad character under
section 101(1)(d)
and
103(1)(a)
, he has no means of knowing what the jury are likely to decide. All he can say is that there is a possibility that some jurors may and others may not be satisfied of the defendant’s guilt of the misconduct which is relied on as evidence of propensity. As against that possible detriment to the defendant of admitting the evidence where there is no trial, there is to be weighed the benefit to the defendant of having to meet a bad character case based on evidence which, as in the present case, will not lead to a criminal charge. Mr Rees suggested that this was no real benefit to a defendant, but we do not see how that can be right.
42.
Quite apart from the impossibility of assessing the likelihood of the jury being split in relation to the other charge(s), the judge would be faced with the equally impossible task of weighing against that likelihood the benefit to the defendant of not facing criminal charges. In our judgment, such an assessment and weighing would be wholly artificial and unrealistic. We do not consider that Parliament can have had such an exercise in mind when enacting
section 101(1)
. But if the approach of Mr Rees is right, it seems to us that this is precisely the kind of exercise that judges are required to perform. Our view that this cannot have been intended by Parliament reinforces us in our conclusion that the premise on which Mr Rees’s argument is based is wrong.
43.
Finally, we turn to the third strand of Mr Rees’s argument. We cannot accept that the direction given by the judge in this case was too much for the jury to apply faithfully and conscientiously. In our judgment, it was clear and should have been easily intelligible. They were told that they could not rely on the Great Harry assaults unless they were sure of the 3 relevant factors. There is no criticism of the judge’s summing up as to the elements of murder. In our view, there is no basis for any suggestion that any jurors may have applied a lesser standard of proof either in relation to the Great Harry assaults or the murder.
Conclusion
44.
For these reasons, we consider that this appeal must be dismissed. | {"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["2006-10-02"],"ConvictOffence":["Murder"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Victim testimony","Witness testimony"],"DefEvidTypeTrial":["Offender denies offence","Self-defence claim"],"PreSentReport":[],"AggFactSent":["Use of a weapon to cause injury","Offence committed while under the influence of alcohol"],"MitFactSent":["Claimed provocation by victim","Claimed self-defence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Admission of bad character evidence was wrong","Evidence of previous assaults was not relevant or was unfairly prejudicial"],"SentGuideWhich":["section 101(1)(d) of the Criminal Justice Act 2003","section 103(1)(a) of the Criminal Justice Act 2003","section 101(3) of the Criminal Justice Act 2003","section 78 of PACE 1984"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Judge was entitled to admit the bad character evidence as relevant","No unfairness resulted from the admission of the evidence","Jury was properly directed on how to use the evidence","No error in the summing up","No basis for suggesting the jury misapplied the standard of proof"]} |
Neutral Citation No:
[2020] EWCA Crim 650
Case No: 201903138/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Sitting at Cardiff Crown Court
Law Courts
Cathays Park, Cardiff, CF10 3PG
Thursday, 5 March 2020
B e f o r e:
LADY JUSTICE NICOLA DAVIES DBE
MRS JUSTICE JEFFORD DBE
MR JUSTICE HILLIARD
R E G I N A
v
CHRISTOPHER STREDWICK
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)
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Mr J Jones
appeared on behalf of the
Applicant
Miss L McCormick
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
LADY JUSTICE NICOLA DAVIES:
1.
On 14 February 2008 in the Crown Court at Newport, the applicant pleaded guilty to the offence of arson being reckless as to whether life was endangered. On 14 May 2008 he was sentenced by the Recorder of Cardiff to an indeterminate sentence of imprisonment for public protection (“IPP”) pursuant to
section 225
of the
Criminal Justice Act 2003
, with a specified minimum period of three years’ imprisonment less 219 days spent on remand.
Present proceedings
2.
The applicant seeks an extension of time of approximately 11 years in which to apply for leave to appeal against sentence and to adduce fresh evidence pursuant to
section 23(2)
of the
Criminal Appeal Act 1968
(“
the 1968 Act
”). The applications have been referred to the Full Court by the Registrar. We grant leave.
3.
In this appeal the appellant invites the court to quash the sentence of imprisonment for public protection imposed in 2008 and make an order pursuant to
section 37
of the
Mental Health Act 1983
(“
the 1983 Act
”) for his admission or continued detention at Ty Gwyn Hall Hospital, Abergavenny. The appellant also invites the court to make an accompanying Restriction Order without limit of time under
section 41
of
the 1983 Act
.
4.
The Crown does not oppose this appeal, nor the orders sought.
Factual background
5.
On 5 October 2007 emergency services were called to a property at 96 Victoria Street, Cwmbran. The house was divided into two flats, the top flat was occupied by the appellant, the lower flat was vacant. The property was ablaze, a sofa had been placed at the top of the stairs in an upright position intended to prevent access to the appellant’s flat. The appellant was outside the property. His head was in his hands. He was asked if it was his address and he replied: “Yes, it is. I did it. Someone’s after me.”
6.
At the date of the sentencing hearing the appellant had seven previous convictions for offences of theft, burglary, criminal damage and one for the offence of arson endangering life to which he had pleaded guilty. In December 2002 the appellant received a sentence of four years imprisonment for this offence.
7.
The property in the 2002 arson belonged to the appellant’s uncle. The appellant was sharing the property with him at the time. He gave a number of reasons for starting the fire, one of which was that he wanted to get even with the voices that he was hearing.
8.
Before the sentencing court in 2008 was a report from Dr Roger Thomas, consultant forensic psychiatrist. He recounted that when interviewed, the appellant described feeling paranoid, anxious and depressed in the months leading up to the index offence. He told the doctor he had burnt the property because he felt people were threatening his life. His intention was not to harm anyone else but to kill himself. Prior to the offence the appellant said he heard voices telling him to kill himself and he had disturbing thoughts about harming people. At the time he set fire to the house he was aware that he was the only person in it.
9.
Dr Thomas reviewed the appellant’s personal, medical, alcohol and drug history. The appellant’s first contact with the psychiatric services was in July 1998 in respect of a charge of burglary. The assessing psychiatrist was of the opinion that the appellant presented with a serious mental illness which required urgent psychiatrist admission for assessment. In July 1998 the appellant was admitted to Whitchurch Hospital under
section 35
of
the 1983 Act
. However, a report for the court stated that the appellant was probably not suffering from mental illness but with an acute stress reaction which required further assessment or inpatient hospital treatment.
10.
In December 1998 the appellant was admitted to hospital pursuant to
section 2
of
the 1983 Act
. He had held a knife to his throat and threatened to kill himself. The appellant was later discharged but there were subsequent hospital admissions in 1998, 1999, 2001 and 2002.
11.
Following the imposition of the four-year sentence of imprisonment for the offence of arson, the appellant’s condition deteriorated in prison and he was admitted to the Caswell Clinic under
sections 47
/49 of
the 1983 Act
in November 2003. During late 2003 and early 2004 the appellant was stating that he was part of the Matrix and was continuing to hear the voice of his deceased girlfriend. He was discharged from the Caswell Clinic in January 2007. In the following months the appellant was reviewed by a number of psychiatrists and in June 2007 was admitted to hospital pursuant to
section 2
of
the 1983 Act
. A second admission took place in August 2007. On each occasion it was felt that the appellant was not suffering from mental illness.
12.
In September 2007, Dr Lyons, a consultant psychiatrist, noted that the appellant did not have an ongoing mental illness within the meaning of
the 1983 Act
but diagnised a personality disorder with a long history of poly-substance abuse. He had admitted to feigning symptoms in order to be moved to hospital. Dr Lyons noted that the appellant posed a risk to himself and the public, not through mental illness, but because of a combination of his inability to cope, attention-seeking behaviour which was compounded by the disinhibiting effects of alcohol and illicit drugs.
13.
In his report for the court in 2008, Dr Thomas described the appellant’s admission of having set fire to the house with the intention of killing himself as not in the setting of major mental illness but as a de-compensatory response to stress. He concluded that although the appellant was stressed and distressed, there was no real evidence to support a current depressed mood state, nor the presence of real psychosis. His presentation was very similar to presentations in the past where psychosis was believed to be malingering in nature. Dr Thomas did not think that the appellant had a mental illness of a nature or degree which would warrant a medical disposal. In the final paragraph of his report, Dr Thomas stated:
“However, I would add that as Christopher Stredwick’s mental health problems are extremely complex and intermittent, the clinical picture might possibly change in the future, and it may be necessary to re-assess him at some future time, and he therefore should clearly be identified as a very vulnerable person who will require significant therapeutic import and support.”
14.
In sentencing the appellant, then aged 30, the judge considered and relied upon the report of Dr Thomas. He determined that the sentence of IPP was necessary, the offence of reckless arson was serious, extensive damage was caused and the consequences to the fire service
and other residents could have been much worse. The judge noted that an early release was extremely unlikely, but he thought more likely a transfer to a secure mental unit in the future. The judge stated that had it been appropriate to impose a determinate sentence, the term would have been one of nine years following discount for the plea of guilty, that would be reduced to six years, thus the minimum term was half the six years less the days spent on remand.
Application to adduce fresh evidence
15.
The appellant seeks leave to adduce the reports of Dr Gaynor Jones (dated 1 June 2018) and Dr Alan Talabani (dated 10 December 2018). The Crown seeks leave to adduce the report of Dr Owen John Davies (dated 29 January 2020). We are satisfied that the provisions of
section 23(2)
of
the 1968 Act
are met in respect of the three reports.
16.
The report of Dr Jones, consultant forensic psychiatrist at the Caswell Clinic in Bridgend, contains a detailed history of the appellant, which includes his psychiatric history, for which the court is grateful. Following his sentence in 2008, the appellant’s mental state deteriorated. In early 2009 Dr Jones assessed the appellant. She was impressed by the quality and breadth of his descriptions of his voices and psychotic symptoms. Without knowledge of his background history, she thought his was likely to be a psychotic illness.
17.
In June 2015 the appellant was seen by Dr Jane Ewbank, consultant forensic psychiatrist. Dr Ewbank concluded that the appellant’s difficulties could be understood as a personality disorder but raised the possibility of an underlying enduring mental illness. Dr Ewbank recommended the appellant’s transfer from prison to hospital under
sections 47
/49 of
the 1983 Act
. As a result, on 3 May 2016 the appellant was admitted to the Caswell Clinic Medium Secure Unit. Following admission, the appellant was prescribed Clozapine, an anti-psychotic drug. He reported hearing voices, some of which were threatening to kill him. By January 2017 the appellant had applied for a Mental Health Review Tribunal, his motivation being to change the section requiring his detention to
section 37
of
the 1983 Act
as he did not want to be discharged and returned to prison. Community leave was permitted.
18.
In her capacity as the appellant’s responsible clinician, Dr Jones prepared the report dated 1 June 2018. She states that the attempt to find one diagnosis had clouded the medical profession’s understanding of the appellant and his problems. In the opinion of Dr Jones the appellant fulfilled the diagnostic criteria for borderline personality disorder, psychosis/schizophrenia, anxiety, substance misuse and has traits of autistic spectrum disorder which causes him significant impairment. The appellant’s borderline personality disorder may have contributed to his differing accounts, as to his symptomatology and the reasons underpinning his offending. She noted that the appellant has consistently reported psychotic symptoms since July 1998 and had been prescribed anti-psychotic medication. Dr Jones’ states that the appellant was now receiving the correct treatment, but his symptoms of anxiety are likely to remain. He has undertaken substance misuse work. All his drug and alcohol testing has been negative. By June 2018 the appellant had received extensive leave within the community.
19.
Dr Jones concludes that the appellant presents as a vulnerable individual with complex and serious mental health needs on many differing levels. He will not be able to progress without significant support and monitoring of his mental health in the future, not least in the management of the Clozapine medication. He would not progress within the prison environment as he would remain stuck on the IPP. Had Dr Jones prepared a report at the time of sentence in 2008, she would be recommending a Hospital Order pursuant to
section 37
of
the 1983 Act
, with a recommendation to the court to consider a Restriction Order pursuant to
section 41
of
the 1983 Act
.
20.
Dr Jones and the team are of the opinion that it is not in the appellant’s best interest to return to prison, it would not manage his complex mental health needs, nor his risk profile in the short or long term. The appellant is going to need a long-term supportive environment to enable him to live successfully and he will require a discharge to the Mental Health Service. In the foreseeable future he will need a supportive environment in the community for such work.
21.
Dr Jones supports the appellant’s appeal to overturn his indeterminate IPP and to substitute for it a Hospital Order under
section 37
, she also recommends that the court considers a Restriction Order pursuant to
section 41
of
the 1983 Act
.
22.
The second report prepared on behalf of the appellant is by Dr Alan Talabani, consultant psychiatrist at the Ty Gwyn Hall Hospital, Abergavenny. At the time of compiling his report, the appellant was resident at Ty Gwyn Hall Hospital under the care of Dr Talabani. In the report, Dr Talabani states that all the appellant’s behaviours and problems were part of his evolving mental disorder which is now stable and under control. The appellant is progressing with his recovery and is now ready to step down from a locked unit to an open rehabilitation placement. The current
section 47
/49 placement was impacting upon the appellant and impeding his progress. In particular, as a sentenced prisoner the appellant was not entitled to any money or benefits. Access to money is a necessary part of the successful rehabilitation programme. It will allow the appellant to budget, become financially aware and will allow him to learn how to live within his means when in the community.
23.
Dr Talabani reviewed the history of the appellant and concludes that his previous behaviours, prior to the disorder of psychosis, indicate prodromal phases of the mental disorder. When the appellant was commenced on Clozapine his symptoms and the disorders appear to settle. Dr Talabani states that they will never completely disappear but the Clozapine results in changes, making the patient easier to manage, more law-abiding, insightful and accepting of medication. As a result, he can be rehabilitated, working towards step-down living in a community setting.
24.
Dr Talabani agrees with Dr Jones that the appellant’s index offence and other offending related to his disturbed mind due to disorders, which were not recognised at the time as he was going through the prodromal phases. The appellant was not fully responsible for his conduct and behaviour. The appellant now has a formal diagnosis of mental disorder and is responding to treatment. Dr Talabani stated that it would be in the appellant’s best interests and that of the wider society for the appellant to remain under the psychiatric services to ensure a safe and secure environment which is supported by professionals.
25.
Dr Talabani recommends that the current section under which the appellant is in hospital be changed to
section 37
of
the 1983 Act
, with the added restriction of
section 41
to allow the appellant’s current and any future team to treat his illness and manage his risks and behaviours. Dr Talabani states that a return to prison will serve no benefit. It will lead to a relapse in the appellant’s condition, it will increase the risk of him stopping medication and abusing drugs.
26.
Dr Talabani is the responsible clinician for the appellant. He gave evidence to the court for which we are grateful. The appellant is residing in the open rehabilitation unit at Ty Gwyn Hall Hospital, Abergavenny. He is in a four-bedded unit where the residents cook, clean the room and shop for themselves. Dr Talabani says that the appellant is doing “really well”. He describes him as a model patient.
27.
Dr Talabani re-affirmed the diagnosis given in his report, namely that of paranoid schizophrenia, anxiety and ADHD. It has been an evolving illness. The supervision and monitoring of the appellant in hospital has allowed the treating clinicians to better assess his mental state and provide appropriate treatment. He describes the appellant’s response to Clozapine as ‘dramatic’. All drug and alcohol tests continue to be negative.
28.
Dr Talabani told the court that the appellant is almost ready for a conditional discharge from the hospital. A
section 37
/41 order is required in order to permit that discharge to a mental health residential placement where there will be 24-hour staffing and where the appellant will continue to be under psychiatric supervision. If there is any concern as to the appellant’s condition, any possibility of relapse, he can be immediately recalled. A
section 41
order will lessen the risk which the appellant poses to himself and to the public. Dr Talabani describes the appellant as still being very vulnerable to stress, he requires monitoring and support. Dr Talabani reiterated his opinion that a return to prison would lead to a swift deterioration in the appellant’s condition, as he would not receive the support and monitoring which he requires.
29.
The report of Dr Davies, consultant forensic psychiatrist instructed on behalf of the Crown, was before the court. He also noted that since the appellant has been treated with Clozapine, his symptoms and presentation have markedly improved which has enabled him to make significant progress regaining insight and improving his quality of life. Dr Davies that the appellant meets the diagnostic criteria for a depressive disorder and that the appellant would have previously met the diagnostic criteria for alcohol and illicit substance dependence syndrome. He is now abstinent and is in remission.
30.
Dr Davies is of the opinion that the appellant was suffering from severe symptoms of paranoid schizophrenia at the time of the index offence in 2008. These were longstanding but became increasingly distressing and overwhelming, leading him to engage in a desperate set of actions. The appellant’s thought processes would have been significantly altered by his psychotic illness. The appellant’s auditory experiences and delusional belief system would have appeared very real to him and it would have been difficult for him to differentiate reality from otherwise.
31.
Dr Davies does not criticise the previous. It would have been very difficult to foresee the degree to which the appellant’s symptoms had become clearer and, in return, responded to medication. Paranoid schizophrenia is often a developing and evolving illness. The appellant’s significant illicit substance and alcohol misuse were integral in clouding the matter. Nevertheless, the subsequent evidence is overwhelmingly supportive of a diagnosis of paranoid schizophrenia, which is intrinsically linked to the appellant’s actions in the index offence.
32.
Dr Davies considers that the appellant’s mental disorder has vastly improved following treatment. He has made significant rehabilitative progress and his risks are largely managed under the auspices of mental health care and support. As a result, Dr Davies is supportive of the sentence of IPP being quashed and replaced with a Hospital Order pursuant to
section 37
of
the 1983 Act
, in order for the appellant to be treated appropriately in hospital. In addition, Dr Davies recommends that a
section 41
order be considered in view of the severity of the offence and the clear risks which the appellant poses to himself and others. Such an order will provide the appellant with the treatment and support he requires in order to make further progress but will also provide a means for managing his mental health and therefore the risks in the community. This is preferable to the appellant being supervised by the probation service, as the appellant’s risks are almost exclusively linked to his mental health disorder.
33.
In conclusion, Dr Davies considers the appellant’s mental disorder to have been both of the nature and degree to warrant detention in hospital under
the 1983 Act
and it remains so today. It is essential that the appellant receives adequate treatment and rehabilitation in a hospital setting for his own health and safety, but also due to the risk he poses to others.
Discussion and conclusion
34.
It is clear from the evidence before the court that the appellant suffers from a mental disorder and that he did so in 2008 when he committed the index offence. All three psychiatrists conclude that the appropriate disposal of this appeal, to benefit not only the appellant but the wider community, would be a Hospital Order under
section 37
of
the 1983 Act
.
35.
We have considered and followed the guidance in
R v Vowles
[2015] EWCA Crim. 45,
[2015] EWCA Civ. 56
. At [10] the court identified the options available to the sentencing court in respect of an offender suffering from a mental disorder. Relevant to this appeal are two, namely: (1) a Hospital Order under
section 37
with or without restriction under
section 41; (2)
a determinate or indeterminate sentence of imprisonment and direction pursuant to
section 45
A of
the 1983 Act
.
36.
The relevant provisions of
section 37
are as follows:
“37 Powers of courts to order hospital admission or guardianship
(1)
Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in sub
section (2
) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
(2)
The conditions referred to in subsection (1) above are that—
(a)
the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either—
(i)
the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii)
in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under
this Act
; and
(b)
the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
37.
Further, the relevant part of
section 41
of
the 1983 Act
is as follows:
“41 Power of higher courts to restrict discharge from hospital
(1)
Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as ‘a restriction order’.”
38.
At [54] of
R v Vowles
(above) it is stated that where the court determines a Hospital Order is required,
section 45
A should firstly be considered. A
section 45
A order allows for an IPP to continue with an accompanying direction for the person subject to the same to be admitted into hospital. It is not open to this court to impose an order under
section 45
A since an order under
section 45
A was not available to the original sentencing court. The appellant was sentenced on 14 May 2008.
Section 45
A came into force (with effect from November 2008) by virtue of
section 11
of the
Mental Health Act 2007
.
39.
Having considered the evidence of the three psychiatrists in their written reports, and the oral evidence of the responsible clinician Dr Talabani, we are satisfied that the appellant is suffering from a mental disorder, namely paranoid schizophrenia, of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him. We note that he is responding well to such medical treatment. We are satisfied that the response of the appellant to the treatment, in particular to the use of Clozapine, has been instrumental in reducing the risk which he poses to himself and others. It follows that we are satisfied that the requirements of
section 37(2)
(a)(i) of
the 1983 Act
are met.
40.
As to the conditions set out in
section 37(2)
(b): the offence of arson is serious, but all three psychiatrists now conclude that at the time of the index offence the appellant was suffering from this mental disorder. In our judgment, there is no realistic alternative method of treating this appellant which would provide him with the treatment and support which he requires for the mental disorder and which will also serve to reduce the risk which he poses to himself and others.
41.
We accept the recommendation of each of the psychiatrists that in addition to the
section 37
order, a
section 41
Restriction Order without limit of time is both necessary and proportionate in order to manage: (i) the mental health of the appellant; (ii) the risks which he poses; and (iii) to protect the public.
42.
Accordingly, we quash the sentence of imprisonment for public protection imposed at Cardiff Crown Court on 14 May 2008 and substitute for it an order made pursuant to
section 37
of the
Mental Health Act 1983
, together with a
section 41
Restriction Order pursuant to
that Act
, without limit of time. To this extent, the 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 Newport"],"ConvictPleaDate":["2008-02-14"],"ConvictOffence":["arson being reckless as to whether life was endangered"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[219],"SentCourtName":["Cardiff Crown Court"],"Sentence":["indeterminate sentence of imprisonment for public protection (IPP) with a minimum period of three years less 219 days spent on remand"],"SentServe":[],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[30],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["extensive damage was caused","consequences to the fire service and other residents could have been much worse"],"MitFactSent":["offender showed genuine remorse","offender pleaded guilty"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["sentence"],"AppealGround":["fresh psychiatric evidence supports hospital order rather than IPP"],"SentGuideWhich":["section 225 of the Criminal Justice Act 2003","section 37 of the Mental Health Act 1983","section 41 of the Mental Health Act 1983"],"AppealOutcome":["Allowed & Sentence Quashed"],"ReasonQuashConv":["fresh psychiatric evidence shows mental disorder at time of offence; hospital order now appropriate"],"ReasonSentExcessNotLenient":["offender was suffering from a mental disorder at the time of the offence; appropriate disposal is hospital order not IPP"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Case No:
2003/04510/A3
Neutral Citation Number:
[2003] EWCA Crim 3011
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 4 November 2003
Before :
LORD JUSTICE POTTER
MR JUSTICE CRESSWELL
and
MR JUSTICE LANGLEY
- - - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY GENERAL’S REFERENCE NO.88 OF 2002
(LEON MARK JAMESON)
Mr I Darling
appeared on behalf of the Attorney General
Miss K Melly
appeared on behalf of the Offender
Hearing date : 23.10.2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Potter:
1.
This is an application by the Attorney General for the leave of the Court under
s.36 of the Criminal Justice Act 1988
to refer a sentence said to be unduly lenient. We grant leave.
2.
The name of the offender is Leon Mark Jameson, aged 22 years, having been born on 23 May 1981. At the time of the offences he was 21 years old.
3.
The offender faced an indictment containing nine counts. Counts 1, 3, 4, 5, 7 and 8 alleged Theft. Counts 2 and 9 alleged Robbery and Count 6 was an allegation of Attempted Robbery. On 15 July 2003 the offender appeared in the Hull Crown Court before Miss Recorder Bond and pleaded guilty to all Counts on the indictment with the exception of Count 5 on which no evidence was offered and a ‘not guilty’ verdict entered. The offender had also pleaded guilty to breaching the requirements of a Community Rehabilitation Order which had been imposed at Hull Crown Court on 20 December 2002 in respect of two offences, namely theft and having an offensive weapon.
4.
The offender was sentenced as follows.
i)
Count 1: Theft of a car – 12 months’ imprisonment.
ii)
Count 2: Robbery – 30 months’ imprisonment consecutive to Count 1.
iii)
Count 3: Theft of a till – 12 months’ imprisonment concurrent.
iv)
Count 4:Theft of a car - 12 months’ imprisonment concurrent.
v)
Count 6: Attempted Robbery – 12 months’ imprisonment concurrent.
vi)
Count 7: Theft of a handbag – 12 months’ imprisonment concurrent.
vii)
Count 8: Theft of a car – 12 months’ imprisonment concurrent.
viii)
Count 9: Robbery – 30 months’ imprisonment concurrent.
5.
In respect of the two previous matters which fell to be resentenced, the offender was sentenced to 12 months’ imprisonment on each to run concurrently rather than consecutively. Thus, he was sentenced to a total of 3 years 6 months imprisonment.
6.
In short summary, the offender, assisted by others, embarked on a crime spree of considerable intensity over a two-day period. Eight separate offences were committed in quick succession. They involved theft of two motor vehicles which were in turn used to facilitate the commission of thefts and robberies at small, unprotected retail premises and on vulnerable members of the public. The facts underlying the various counts were as follows.
7.
Late on the night of Tuesday 25 March 2003 or very early on the following morning, a Rover Maestro car was stolen from outside its owner’s address. (Count 1)
8.
At 7.35pm on Wednesday 26 March, the offender was seen to be driving the same Rover car in which he had a male passenger. It pulled up near an off-licence. Both men got out of the car, leaving the engine running with the headlights switched off. They entered the off-licence. The offender approached the counter and asked the assistant for some cigarettes. As she turned her back, the offender leaned over the counter and grabbed the till. The assistant tried to prevent this and, in the course of doing so, sustained bruising to her arm. She said that the offender looked so determined and aggressive that she decided not to resist him further. The offender got hold of the bottom part of the till containing the cash drawer and he and his accomplice ran from the shop. They got into the car and drove off. The till contained approximately £60 in cash. (Count 2)
9.
About 1½ hours later at about 9.00pm, a shop assistant in a fish and chip shop was tidying up. She heard a loud crashing sound from the front counter which she immediately recognised as the till being violently forced from it. She looked up and saw the offender leaning over the counter with his outstretched arms holding the till. He brought the till up to his chest and turned and ran out of the shop. He was seen to run to a waiting Rover Maestro car, the headlights of which had been turned off. The offender jumped into the open passenger door and the car was driven off at speed by an accomplice. The till contained over £100 in cash. (Count 3)
10.
Early on the morning of the next day, 27 March 2003, a silver Ford Escort car was stolen from outside its owner’s home address. It had been alarmed and immobilised prior to its theft. (Count 4)
11.
At about 8.45am, Christine Cook was cycling along Chanterlands Avenue in Hull when she passed a stationary silver car with at least three occupants. It was in fact the stolen Ford Escort. The car then drove past her. As she turned into Barrington Avenue, there were cars parked on both sides of the road. She was suddenly aware of the silver car being alongside her only inches away to her right. The front passenger door opened and a man’s hand reached out towards her black leather shoulder bag which was wrapped round the handlebars. He was unable to remove the bag but retained hold of it and the victim found herself being pulled along by the speed of the car and no longer in control of her bicycle. Her bicycle collided with a parked vehicle and she fell sideways, at which point the man let go of the bag and the car sped off. She fell into the roadway and slid along the tarmac, suffering a dull intense pain in her right cheek, the right side of the bridge of her nose and the right-hand side of her head. She suffered bruising, rather than bony injury, but was very frightened, not least because she was a sufferer from osteoporosis. The offender’s palm print was later found on the driver’s rear view mirror. (Count 6)
12.
Only minutes later, Julie Hossack had parked her car in a car park at Ellerburn Avenue, Hull at approximately 9.00am. She was sitting in the car with her handbag on the front passenger seat when she saw the offender walking towards her. He walked past the front of the car out of her sight, but then came back towards the car and she thought from his actions that he was asking her for the time. She told him and he appeared to walk off again. About a minute later she was aware of the front passenger door being opened and she saw the offender reach in and take the bag. He ran off. She gave chase and, as she turned the corner, she saw the silver Ford car driving off at speed. A witness saw what occurred and recognised the offender, whose mother she knew. (Count 7)
13.
That same morning a white Ford Orion belonging to a Mr David Owston was stolen. It had been secured with a steering lock on the wheel prior to its theft. (Count 8)
14.
At about 1.30pm on the same day, staff were working in a newsagent’s shop at 262 Greenwood Avenue, Hull. A female assistant noticed a man going up to the shop window and saying to another man “They have got some here.” The offender then entered the shop and walked to the counter. The second man entered the store but remained at the doorway, holding it open. The offender selected some chewing gum and the assistant scanned it through the till. The second man walked up to the counter and told the offender to get him some cigarettes. As the assistant turned to get the cigarettes, the offender grabbed for the till. He was unsuccessful and made a grab for a second till next to it. A struggle ensued over the till. During the struggle, the second man grabbed a large quantity of scratch cards from a nearby display and left the shop. Eventually the offender managed to grab the cash draw containing £360 and left the shop. The robbery was captured on CCTV and the offender was identified. (Count 9)
15.
On 1 April 2003, following a search of an address on a north Hull estate, the offender was arrested. He was later interviewed about the offences and made no comment to all questions asked of him. However, he subsequently decided to plead guilty to the eight offences we have described.
16.
Counsel for the Attorney General has submitted that the following aggravating features are present in respect of these offences. First, they formed part of a concerted course of criminality, albeit over a short time period. Second, motor vehicles were stolen to facilitate the commission of the robberies, indicating a degree of premeditation and planning. Third, the offender appeared specifically to have targeted vulnerable premises and vulnerable victims. Fourth, the execution of the attempted robbery, the subject of count 6, while not involving use of a weapon, showed a total disregard for the safety of the victim who could have been killed or sustained serious injury as a result of being dragged along on her bicycle by the moving motor vehicle. Fifth, the offences were committed during the currency of an 18-month Community Rehabilitation Order with conditions imposed only three months earlier. The offences in question were theft from a car after smashing its window, and possession of a lock knife which was produced and brandished in the course of an argument with two others. Finally, the offender has a bad record for offences of this nature and has served a number of short custodial sentences since he was 16 years of age. His longest custodial sentence had been one of 9 months imposed in October 2001 for two offences of theft and one of handling stolen goods committed while on bail.
17.
On the other hand, the following mitigating features appear to be present. First, the offender pleaded guilty, indicating an early intention to plead guilty to all of the counts mentioned save count 6. Second, little or no violence was used in the commission of the robberies. There was however an element of recklessness and considerable danger in the circumstances relating to count 6. Finally, no weapons were carried and there were no significant attempts to disguise the appearance of the offender or his accomplices.
18.
Counsel for the Attorney General has submitted that, in passing sentence, the judge must have paid insufficient attention to the aggravating features which we have outlined. He submits that the sentence imposed was one which might have been appropriate to a single count of robbery without undue violence or use of weapons but that, in the case of a concerted course of conduct involving a number of offences by an offender with the bad criminal record of this offender, and committed only a few months into an 18-month Community Rehabilitation Order, the sentence was unduly lenient. He submits that the judge was correct to impose sentences on Counts 2 - 9 which were consecutive to the original theft of the Rover Maestro which appears to have triggered and facilitated the two-day course of conduct which followed. However, he submits that the sentences imposed for the totality of the subsequent offences (which were all concurrent and none of which exceeded 30 months’ imprisonment), were inadequate. In particular, he submits that the attempted robbery, the subject of Count 6 was the most serious and dangerous of the offences and merited substantially more than 12 months’ imprisonment concurrent. Counsel submits that, in the light of the dangerous course of conduct, the frightening effect of the injury upon the victim and the avoidance of serious injury only by chance, a sentence of 4 years’ imprisonment on Count 6 would have been appropriate. Finally, he submits that the sentence of 12 months’ imprisonment concurrent for a breach of the requirements of the Community Rehabilitation Order was wrong in principle and that a consecutive sentence should have been imposed in that respect, so as to yield a total period of 6 years’ imprisonment.
19.
The Attorney General has referred us to four particular authorities as follows.
20.
In
Attorney General’s Reference No.9 of 1989 (Steven Lloyd Lacy)
[1990] 12 Crim App R (S) 7, a sentence of 30 months’ imprisonment imposed on a defendant who pleaded guilty having participated in a sub-post office robbery, was increased to one of 5 years without reference being made to a discount for double jeopardy. The offender had no previous convictions, but the level of violence in the robbery was high and the court emphasised the need, following
Attorney General’s Reference No.2 of 1989 (Darren Mark Major)
[1989] 11 Crim App R (S) 481, to incorporate a deterrent element in respect of robberies which target small shops particularly susceptible to attack.
21.
In
Attorney General’s Reference No.58 of 1996 (Karl David Jones)
[1997] 2 Crim App R (S) 233, the court stated that the normal level of sentence in respect of robbery or attempted robbery of an off-licence was 3-7 years, depending upon the mitigating and aggravating features and, in particular, the level of violence used. That case was not dissimilar from the one before us in the sense that the offender, aged 22, had a fairly similar criminal record to the offender in this case. The level of violence involved was somewhat greater than in the instant case but, whereas the defendant also pleaded to four other counts of theft, there was no other charge of robbery involved. The court made clear that the sentence of 18 months imposed by the judge wholly failed to reflect the gravity of the offence and substituted a sentence of 3½ years after taking into account double jeopardy and the imminence of the offender’s release. It did not make clear what it considered would have been the appropriate sentence absent those considerations, but we surmise it would have been one of 4½-5 years.
22.
In
Attorney General’s Reference Nos.4 and 7 of 2000 (Adrian Michael Lobban, Christopher Sawyers; Steven James Cue)
[2002] Crim App R (S) 345, this court gave general guidance in respect of the prevalent crime of street robbery of mobile telephones, in respect of which a robust sentencing policy was advocated within the bracket 18 months to 5 years, with an upper limit of 3 years where no weapon was involved. In that case the position of the offender Sawyers was most readily comparable to that of the offender in this case. The court indicated an appropriate level of sentence of 4 years in the case of a 19 year-old offender who had pleaded guilty to three charges of robbery and two of theft.
23.
Finally, we were referred to an authority on which the Attorney General has placed particular reliance as justifying a substantially more severe approach than that indicated in the authorities so far cited. In
R v Greenland
[2003] 1 Crim App R (S) 375, EWCA Crim 1748, this court upheld a sentence of 6 years’ imprisonment imposed upon the perpetrator of a violent handbag robbery by a defendant who had lain in wait for a woman victim walking home across a common. He appears to have had previous convictions for robbery in the course of a criminal career comparable to, but somewhat longer and more serious than, this offender and with a longer history of drug abuse. The major distinguishing feature would appear to be the high level of violence used, the victim having been repeatedly punched in the face when she resisted. The court observed:
“This kind of street robbery is prevalent and becoming increasingly so. Such robberies are serious and this is a particularly serious example. People are entitled to be safe and feel safe on the streets and to know that the courts will do their best to ensure their safety. This kind of conduct merits condign punishment.”
24.
We would certainly endorse that final observation. However, we note that, in this case, the method of the offender has been essentially one in which violence has been avoided or minimised and we do not derive particular assistance from the approach in
Greenland
, where the court was in any event concerned with the question whether 6 years was “manifestly excessive”, as opposed to the Attorney General’s references to which we have earlier referred and which afford better grounds for comparison.
25.
Having carefully considered the matter, we are of the view that the offender was substantially under-sentenced in this case. We accept the submission for the Attorney General that, bearing in mind the principle of totality and the breach of the requirements of the Community Rehabilitation Order, an appropriate total sentence upon a plea of guilty was one of 6 years’ imprisonment. However, bearing in mind the element of double jeopardy we think it appropriate to substitute a total sentence of 5 years’ imprisonment. To achieve that result, we quash the sentence of 12 months’ imprisonment concurrent imposed upon Count 6 and substitute therefor a sentence of 4 years’ imprisonment to run consecutively to the 12 months’ sentence on Count 1, but concurrently with the other sentences. | {"ConvCourtName":["Hull Crown Court"],"ConvictPleaDate":["2003-07-15"],"ConvictOffence":["Theft (Count 1, 3, 4, 7, 8)","Robbery (Count 2, 9)","Attempted Robbery (Count 6)","Breach of Community Rehabilitation Order"],"AcquitOffence":["Theft (Count 5)"],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":["No"],"RemandCustodyTime":null,"SentCourtName":["Hull Crown Court"],"Sentence":["Count 1: 12 months’ imprisonment","Count 2: 30 months’ imprisonment consecutive to Count 1","Count 3: 12 months’ imprisonment concurrent","Count 4: 12 months’ imprisonment concurrent","Count 6: 12 months’ imprisonment concurrent","Count 7: 12 months’ imprisonment concurrent","Count 8: 12 months’ imprisonment concurrent","Count 9: 30 months’ imprisonment concurrent","Breach of Community Rehabilitation Order: 12 months’ imprisonment concurrent"],"SentServe":["Combination"],"WhatAncillary":null,"OffSex":["All Male"],"OffAgeOffence":[21],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":null,"OffIntoxOffence":null,"OffVicRelation":["Stranger","Acquaintance"],"VictimType":["Individual person"],"VicNum":["multiple"],"VicSex":["Mixed"],"VicAgeOffence":null,"VicJobOffence":null,"VicHomeOffence":null,"VicMentalOffence":null,"VicIntoxOffence":null,"ProsEvidTypeTrial":["CCTV","Victim testimony","Witness identification","Palm print evidence"],"DefEvidTypeTrial":["No comment interview"],"PreSentReport":null,"AggFactSent":["concerted course of criminality","offences committed over short time period","motor vehicles stolen to facilitate robberies","premeditation and planning","targeted vulnerable premises and victims","disregard for victim safety (Count 6)","offences committed during Community Rehabilitation Order","bad record for similar offences"],"MitFactSent":["pleaded guilty","little or no violence used","no weapons carried","no significant attempts to disguise appearance"],"VicImpactStatement":null,"Appellant":["Attorney General"],"CoDefAccNum":null,"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["insufficient attention to aggravating features","sentence inappropriate for concerted course of conduct","sentence for attempted robbery (Count 6) too low","sentence for breach of Community Rehabilitation Order should have been consecutive"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988"],"AppealOutcome":["Allowed"],"ReasonQuashConv":null,"ReasonSentExcessNotLenient":null,"ReasonSentLenientNotExcess":["insufficient attention to aggravating features","sentence did not reflect totality and seriousness of offences","sentence for attempted robbery too low","sentence for breach of Community Rehabilitation Order should have been consecutive"],"ReasonDismiss":null} |
Neutral Citation Number:
[2012] EWCA Crim 1786
No.
2012/00428/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Wednesday 18 July 2012
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE MACKAY
and
MR JUSTICE SWEENEY
__________________
R E G I N A
- v -
SIMON PAUL TURNER
__________________
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)
__________________
Miss M Heeley
appeared on behalf of the Applicant
Mr H Searle
appeared on behalf of the Crown
____________________
Judgment
THE LORD CHIEF JUSTICE:
1. On 22 December 2011 in the Crown Court at Stafford before His Honour Judge Maxwell and a jury the appellant was convicted of two counts of indecency with a child (counts 1 and 3), two counts of indecent assault (counts 2 and 4), and six counts of sexual activity with a child. The child in counts 1 to 7 was "LH". The prosecution's case was that she was a victim of sexual abuse by the appellant between June 2002 and June 2005 when she was aged 13 to 15. Counts 8 to 12 involved "TE", aged 15. Sexual activity took place with her between December 2004 and June 2005.
2. The defence was somewhat unusual. There was no dispute about the fact that sexual activity had taken place between the appellant and each of the two girls. His case was that it was consensual in fact and consensual in law -- in other words, neither girl was under age on the occasions when sexual activity took place.
3. There was very little dispute about the nature of the sexual activity, although in relation to the incident covered by count 7 there was some question as to where sexual intercourse had taken place or whether what had happened had not involved penetration (and therefore was not sexual intercourse).
4. Following conviction the appellant was sentenced to two years' imprisonment on counts 1 to 6 and to six years' imprisonment on counts 7 to 10, the sentences to run concurrently. The appellant was required to comply indefinitely with the provisions of Part 2 of the
Sexual Offences Act 2003
(notification to the police), and he will be included in the relevant list arising under the regulations which safeguard vulnerable groups.
5. The appellant appeals against conviction by leave of the single judge.
6. There are four grounds of appeal. One relates to the evidence and three relate to the way in which the judge dealt with three matters in the summing-up.
7. The offences need no detailed recitation. Count 1 alleged that the appellant incited LH to masturbate him when she was 13; count 2 that he had kissed her, fondled her breasts, and inserted his fingers into her vagina; counts 3 to 6 alleged the same sort of activity; and count 7 that sexual intercourse had taken place when she was 15. The appellant's case was that sexual activity had occurred after LH was 16, but that he had not penetrated her; his penis had touched the outside of her vagina, but there was an interruption from someone coming upstairs and so that was the end of that.
8. Counts 8 to 10 alleged that the appellant had penetrative vaginal intercourse with TE. There was no dispute that it had taken place. The issue again was the age of TE when it took place.
9. The problem relating to the evidence concerns LH alone. She was born in June 1989. She was 22 years old at the time of the trial. There was no dispute that the appellant knew her age. When the relationship had come to an end LH told somebody about it. After receiving some counselling from a church pastor, to whom she was unable to articulate what had happened, she wrote it all down in a notebook. Her mother found the notebook and wanted to know what it was about. LH told her mother that it related to a friend, not to herself. Eventually, she confided in a friend who persuaded her to go to the police. She saw a male police officer and "felt horrible". A female officer saw her in July 2010. She wanted to conduct a video-interview but LH was unhappy about this and exhibited disturbed behaviour. She was referred to her general practitioner. In August 2010 she took an overdose and had to be admitted to hospital.
10. Eventually, in December 2010 and February 2011 LH telephoned a radio station. She had heard people talking about sexual abuse and she phoned in anonymously. On 24 October 2010 she signed a formal witness statement following a series of interviews in which she described the sexual activity which had taken place and her age at the relevant dates.
11. Her mother, a community officer, gave evidence that after LH had taken the overdose they tried to pick up the pieces together. She had gone to an organisation known as [a name] Tours where she had heard something about the appellant and another young female. She reported her recollection to the police woman who had finally achieved the interview with her daughter. That led the police officer to the second girl, TE.
12. TE's evidence was that she had stopped going to school when she was 15, but had returned after her 16th birthday to take some GCSE examinations. The appellant worked at the same place as she did. They talked and then got together and had sexual intercourse. The first time was on a bus in the December after her 15th birthday. It occurred again on two further occasions before she reached the age of 16, and continued after she had reached 16. The relationship went on until the appellant left his job.
13. When the appellant was interviewed by the police he declined to answer any questions. His evidence to the jury was that, following legal advice, he did not mention that the complainants were over 16. A ground of appeal arises from that fact.
14. The appellant gave evidence in his defence. We have summarised the essence of the case which he advanced before the jury. It needs no further recital.
15. The first ground of appeal relates to the evidence of LH. She told the judge and the jury that she remembered the evidence that she wanted to give but she was unable to articulate it. The judge recognised that she was highly embarrassed by the situation and had great difficulty in saying in open court what had happened between her and the appellant. In the absence of the jury he discussed the position with counsel because the case was "not making any progress". He pointed out to counsel for the appellant that if the matter had been dealt with by way of a video-interview there would have been no problem. It was not a video-interview; the hearsay rules applied along with the exceptions which enabled hearsay evidence to be given. Miss Heeley pointed out that this was not hearsay evidence; the witness was giving evidence and was being asked about events that were within her own knowledge. The judge enquired as to whether it was a memory-refreshing or a hearsay point. It was suggested to him that it was neither.
16. In the course of the exchange it was made clear, as the defence case statement indicated that the fact that there was sexual activity was not in dispute. The judge was satisfied that the witness knew and could remember the details of what she wanted to say, but she was unable to verbalise them because of her great difficulty and embarrassment. She had asked that her statement be made available. The statement was available. Indeed, at one stage part had been read out to her and she had adopted it. In his ruling the judge said it was "perfectly obvious" that unless some new step was taken the case would go on "all afternoon and probably all of tomorrow and she will not say what is in her statement". He reminded himself that there was no dispute as to the essential facts relating to sexual activity. The issue was age. Was LH over 16 and in a position lawfully to consent, or was she under 16 and not in a position to consent? The judge considered
section 114
of the
Criminal Justice Act 2003
, which permits the use of hearsay evidence, and examined the preconditions to the admission of the statement. The preconditions are set out in
section 114(2)
. It is unnecessary to recite them here. He concluded that
section 114
did apply and that he could admit the statement as hearsay evidence.
17. The first ground of appeal is that this course was inappropriate. It is submitted that such examination of a witness, who was giving crucial evidence on which counts 1 to 7 depended, was inappropriate and should not have been permitted.
18. As the judge explained in his ruling, this statement would not be used by the witness for the purposes of refreshing her memory. Her memory did not need to be refreshed; her inability to speak needed to be overcome. The statement was read to her and she was invited to adopt its contents if she thought they were correct. She did so. The judge considered that the course permitted by the operation of
section 114
of
the 2003 Act
would have been appropriate, but that he could protect the appellant from some of the adverse effects of allowing the statement to be adduced under
section 114
, first, by ensuring that the process of reading parts of it out and inviting the witness to adopt them should apply only to matters which were not in dispute; second, that the process should not be adopted in relation to the crucial issues in the trial, that is the age when the sexual activity between the two took place, or indeed in relation to count 7, the issue of whether or not full sexual intercourse had taken place; and third, by dealing with it in this way, the witness would give her testimony orally and would then be available for the purposes of cross-examination.
19. The question, therefore, is whether, by laying down the restrictive conditions on the way in which the complainant's statement could be used, the judge, although adding to the protection normally available to a defendant, should nevertheless have disqualified the prosecution from using it for the purposes of establishing facts which were not in dispute. The question seems to us to permit of only one answer. In our judgment the judge's decision, and the way in which he arranged for this part of the evidence to be adduced before the jury, legitimately enabled the best evidence of the witness to be given, while at the same time protecting the interests of the appellant. He could have permitted leading questions to be put to the witness in any event on matters which were undisputed. It was by far better that the statement should be used for this purpose and the witness invited to adopt it or to reject it. The judge could have permitted the statement to be admitted under
section 114
of
the 2003 Act
. That would have enabled the prosecution to rely on the statement in its entirety. The procedure that he adopted protected the appellant better than either of the two alternative courses. It was a sensible adaptation of the processes of the court which caused not the slightest prejudice to the appellant or the conduct of the defence. Indeed, it reduced the risk of any unfair prejudice to him. Accordingly, that ground of appeal fails.
20. We turn to the areas of criticism of the summing-up. Three features have been drawn to our attention: the way in which the judge dealt with the issue of possible cross-contamination between the two complainants; his failure to sum up discrepancies relating to dates and events as between the evidence of the two complainants; and his direction to the jury about the possibility of drawing adverse inferences from the fact that the appellant's interview with the police was a "no comment" interview.
21. As to the contamination, there is no evidence of any direct communication between either of the complainants. Nor, as Miss Heeley candidly acknowledged, was any suggestion of cross-contamination put to either. The judge directed the jury that they might use the evidence adversely to the appellant if they looked at the similarities between the two cases, the character of the two girls who both "enjoyed his attention" and the fact that they both thought that they were having a love affair with him. That was a coincidence. The judge said:
"Can it be a coincidence that you have got two apparently independent allegations of similarity being levelled? Of course, members of the jury, this will only arise if the two sets of allegations are truly independent of each other. If there is any possibility of there being any sort of discussion between the two and they have put their heads together, there has been contamination between the two allegations, then it could not possibly be relevant ...."
In other words, if there is any possibility of contamination or cross-talk, or one of the complainants putting ideas into the head of the other, then the jury were to ignore any conclusions that they might draw between the apparent similarities between the two cases. The judge said that there was no evidence to suggest contamination between one set of allegations and the other. Complaint is made that that direction went too far.
22. We have examined the matters relied upon by Miss Heeley in support of that suggestion. There was indeed no evidence to suggest contamination as between the two allegations. What the judge said in his summing-up about it was entirely accurate.
23. It is next asserted that the judge failed to remind the jury of the discrepancies in relation to time. The crucial point in the case was the age of the two complainants when the different forms of sexual activity on which the charges are based took place. There was a good deal of evidence about that. It was examined in some detail. In his summing-up the judge repeatedly reminded the jury of the essential issue: the account given by the appellant that each girl was over age; and the account give by each girl that she was not over age. He reminded the jury of the fact that there were text messages and pictures on the phone and that "we ended up in a pretty fair muddle" as to when a number of things related to when these matters actually happened. He could not see how any of that evidence could help the determination whether the sexual activity happened when the complainant was 15 or 16. The criticism is that there should have been a more detailed analysis of the evidence (dates and times) relating to events such as birthdays, the taking of exams and so on.
24. This was a matter for the judge. The summing-up had clearly identified the issues which arose for decision by the jury. The account given by the appellant was narrated in careful detail. There was, in our judgment, no further need for the judge to deal with each and every timing or date. That ground of criticism fails.
25. The final matter concerns the direction as to adverse inferences. In his summing-up, having dealt with the contamination issue, the judge turned to the legal significance of the "no comment" interview. The agreed facts before the jury showed the words of the caution:
"You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
The judge pointed out that in his interview the appellant had not said what he had said in his evidence to the jury: "The main allegations are true, but she was 16." That, said the judge, was a very simple thing to say. He then addressed the issue of how the jury should approach the problem of the absence of any such comment in contrast to the evidence which was given before the jury. The judge's directions were entirely appropriate until he came to the explanation given by the appellant, which is that he did not mention that the girls were 16 because his solicitor had told him not to. The judge said:
"All the solicitor can do is to give him advice, and let us not leave common sense behind. Any solicitor is going to advise him, 'If you have got a defence, it will be a risky business not to present it now'."
That led Miss Heeley -- and we quite understand why she did -- to stand up and question the judge's direction. The jury left court and the judge heard submissions in their absence. The judge explained to Miss Heeley what he proposed to say and when the jury returned he assured them that he and counsel were in agreement on the law. He directed them as follows:
"The law is this, that you will only draw a conclusion from the 'no comment' interviews that is adverse to the [appellant] if he could reasonably have been expected to mention the facts of his defence at the time when he was being questioned. He had the advice of his solicitor. Members of the jury, common sense will tell us that if the solicitor was competent he would have advised of the risk of going 'no comment'. The risks are obvious. That is built into the words of the caution. Members of the jury, if the solicitor nevertheless advised that he should go 'no comment' and he [the appellant] acts on that advice, then you cannot say he would reasonably have been expected to mention something, but the [appellant], although he said to you, 'I did what my solicitor told me to do', did agree that it was his decision and not the solicitor's decision. He actually said that in his evidence to you. Members of the jury, if it is genuine that he was acting on legal advice or it may be genuine, then you would not be drawing any adverse conclusion against him, but if you come to the conclusion that he has latched on to the solicitor's advice as a convenient shield to avoid answering questions, then the solicitor's advice would not constitute a reasonable ground for not answering questions."
The judge then proceeded to give some further directions to supplement and complete what he had to say on that issue.
26. The complaint is that the jury would have been left with a false impression and there might have been a danger that too much weight might have been placed on what the judge said the sensible solicitor might have advised.
27. Although we do not think that the fairness of the trial was in any way impugned by this observation, it would have been better had the judge avoided any comment on what the solicitor might have advised, or might have been expected to advise the appellant. Even if it was not entirely speculative, comments like these might have served to undermine the inviolable principle of lawyer-client confidentiality. For a moment let us speculate on the possibility that the solicitor might not have been sensible and might not have given the advice which the judge thought any sensible solicitor would have given. The appellant may have felt obliged to call the solicitor to give evidence, and forced to waive confidentiality because of something said by the judge. There could then have been all sorts of complications. It would have been better had that observation not been made. However, we have reflected on the fact that it was made and the circumstances in which it was made. The appellant accepted in clear terms in his evidence that the decision which was made was his decision and not that of his solicitor. In those circumstances this ground of appeal, too, fails.
28. Accordingly, for the reasons given, this appeal must be dismissed.
_____________________________ | {"ConvCourtName":["Crown Court at Stafford"],"ConvictPleaDate":["2011-12-22"],"ConvictOffence":["Indecency with a child (2 counts)","Indecent assault (2 counts)","Sexual activity with a child (6 counts)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Stafford"],"Sentence":["2 years' imprisonment on counts 1 to 6","6 years' imprisonment on counts 7 to 10","Sexual Offences Act 2003 notification (indefinite)","Inclusion in list safeguarding vulnerable groups"],"SentServe":["Concurrent"],"WhatAncillary":["Sexual Offences Act 2003 notification (indefinite)","Inclusion in list safeguarding vulnerable groups"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Female"],"VicAgeOffence":[13,15,15],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Witness statement","Police interview","Text messages","Pictures on phone"],"DefEvidTypeTrial":["Offender admits sexual activity but claims complainants were over 16","No comment interview"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction"],"AppealGround":["Improper admission of complainant's statement as hearsay","Inadequate summing-up on cross-contamination","Inadequate summing-up on discrepancies in evidence","Improper direction on adverse inference from no comment interview"],"SentGuideWhich":["section 114 of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's decision on evidence was correct and protected appellant's interests","No evidence of contamination between complainants","Judge's summing-up was adequate regarding discrepancies","Direction on adverse inference was appropriate despite minor criticism"]} |
Neutral Citation Number:
[2017] EWCA Crim 822
Case No:
201701164/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/06/2017
Before:
LORD JUSTICE TREACY
MRS JUSTICE WHIPPLE DBE
and
HIS HONOUR JUDGE PICTON (sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
ZAYDENE SHAHADAT
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Isaacs (
instructed by
Sakhi Solicitors)
appeared on behalf of the
Appellant
The Crown
did not appear and was not represented
Hearing date: 13 June 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Mrs Justice Whipple:
1.
On 10 November 2016, in the Crown Court at Leicester, the appellant pleaded guilty to one count of supplying Class A drugs (heroin) and a second count of possession with intent to supply Class A drugs (heroin). He was sentenced to 3 years’ imprisonment on each count to be served concurrently.
2.
He appeals against sentence
by leave of the single judge.
3.
The facts, in summary, are these. On 7 February 2016, prison officers were monitoring the exercise yard of HMP Leicester via CCTV. The prison officers saw the appellant pass a package to another inmate and as a result of that, the appellant was stopped and searched by prison officers before he was taken back to his cell. During the course of the search the prison officers found two separate clear plastic bags. One of the bags contained 1.04 grams of diamorphine at 63 % purity and the other bag contained 13 small wraps of diamorphine weighing 0.94 grams also at 63 % purity. The 13 wraps were made using prison documentation. The value of the drugs in prison was around £2,800. The appellant was arrested. The appellant answered “no comment” to the questions he was asked during his interview.
4.
He was arraigned and pleaded guilty on 10 November 2016, and was sentenced by Mr Recorder William Edis QC on the same day.
5.
In passing sentence, the Recorder found that a larger amount of undifferentiated heroin had been passed into the prison and had been split up into smaller quantities by someone in the chain of command. He said that drugs in prison were a curse and that the drug trade in prison presented a significant problem to prison authorities, uninvolved prisoners and society as a whole. It created a market which was often enforced by violence, threats and intimidation. The appellant was 28 years old with 14 convictions for 26 offences, including a 2007 conviction for possession of crack cocaine with intent to supply for which he received a community based sentence. He had a subsequent conviction for possession of class C drugs which the Recorder said did not aggravate the offending. In July 2010 the appellant had been sentenced to 7 years imprisonment for three offences of robbery, and it was the recall on that sentence which led to the appellant being in prison in February 2016 when he committed these offences. The Recorder noted the appellant’s personal mitigation, and the fact that between the release from prison and the index offending the appellant had lived a reasonably worthwhile life. In addition, the appellant had pleaded guilty at the first available opportunity. The Recorder referred to the Sentencing Council’s Definitive Guideline on Drug Offences. He put the appellant in category 3 significant role for Class A drug offences. The guideline starting point which the Recorder adopted as the appropriate post-trial sentence was 4 ½ years. Applying a one third discount for the guilty plea reduced the sentence to one of 3 years’ imprisonment on counts 1 and 2 (concurrent).
6.
In his appeal to this Court, the appellant, by his counsel Mr Isaacs, argues that the Recorder erred in putting the supply offence within category 3, because it should have been treated as category 4 and sentenced accordingly. In consequence, and bearing in mind the appellant’s personal mitigation, he argued that the sentence was manifestly excessive.
7.
The arguments before us centred on the guideline, as that has been interpreted and applied in the following three authorities, none of which appear to have been cited to the Recorder:
R v Sanchez-Canadas
[2012] EWCA Crim 2204
,
R v Bayliss
[2013] EWCA Crim 1067
and
R v Melim
[2014] EWCA Crim 1915
.
8.
At the sentencing hearing the parties were in agreement that the appellant should be considered to have fulfilled a ‘significant role’.
The Recorder referred in terms to the subcategory contained in the guideline under the heading ‘significant role’, namely “
supply other than by a person in a position of responsibility, to a prisoner for gain without coercion”.
The Recorder rejected the appellant’s suggestion that he had acted under coercion, and concluded that the appellant’s role was significant. The appellant does not argue against that part of the Recorder’s conclusions. In our judgment, this appellant’s role was properly categorised as significant.
9.
The issue in this appeal relates to the categorisation of harm. Category 3 of the guideline includes the following types of supply which are not dependent on quantity of drugs: “
selling directly to users (‘street dealing’)
” and “
supply of drugs in prison by a prison employee
”. Mr Isaacs argues that because this was not a “
supply of drugs in prison by a prison employee
” within the latter type, it falls outside category 3 altogether. He argues that the guideline deals with supplies in prison in terms, and only those by a prison employee are within category 3; any other type of prison supply must be classified according to the quantity of the drug involved, and in this case the quantity was within category 4.
10.
Mr Isaacs relies on the three authorities already noted in support of his argument. The first of those in sequence is
Sanchez-Canadas.
In that case, the appellant had sent a prisoner a box containing trainers. The soles had been adapted and hidden within them were 10 ¾ grams of heroin and 23 grams of cannabis resin in eleven wraps. The appellant’s explanation in interview was that the drugs were destined for his friend, whose money the appellant had been managing. The appellant was sentenced on the basis that his role was significant and the harm fell within category 3, the sentencing judge saying that although the indicative quantities fell within category 4, their value within prison would be much greater than on the street, and so the offending was elevated this to harm category 3. The appeal against the sentence of 45 months was dismissed but the appeal court arrived at that sentence by a different route than that adopted by the sentencing judge. Specifically, the appeal court held that this was category 4 harm, with a starting point at the top of that category range, significant role. So far as the harm category is concerned, the Vice President (Hughes LJ) said this:
“[10] …the judge's approach of lifting the category to category three because this was a supply into prison, runs into the difficulty that the guidelines specifically contemplate exactly that elevation for some kinds of supply to prisoners but not for this one. The guidelines indicate that there should be such a lift where the offence “is supply of drugs in prison by a prison employee”, and this was not. We do not for a moment however dissent from the judge's proposition, which is amply borne out by the universal experience of criminal courts, that supply of drugs into prison is in itself inherently more serious than the supply of drugs generally is. That is because drugs in prison are a currency, an instrument of power, extortion and oppression and they fundamentally undermine the discipline and good order which is essential to running a prison properly. However, the right way to deal with it is not to raise the category as the judge did.”
11.
In confirming that this was significant role, the Vice President said:
“[13] …it was perfectly proper to treat this level of culpability as more accurately described as a significant role than as a lesser role. The supply of drugs into a prison ought normally to be regarded as best fitting that culpability category. It will ordinarily demand a prison sentence, even when there is no commercial motive and indeed even where the supplier has come under some moral pressure. Supplies by prison officers or other prison employees are more serious still and are separately dealt with by being placed automatically into category three in the harm scale, irrespective of quantity.”
12.
We pause here to note that this case concerns drugs smuggled into prison by a friend or associate outside prison. There was no suggestion that the friend or associate was involved in dealing drugs, either inside or outside prison. No consideration was given, therefore, to the other part of category 3 which relates to ‘street dealing’.
13.
The second case is
Bayliss.
These were appeals against sentence by two family members and an application for leave to appeal by a third. Norma Bayliss was the mother of Faine Bayliss, and Candice Ball was Faine Bayliss’ partner. The three had been jointly concerned in the supply of cannabis and buprenorphine to Faine Bayliss, who was at the time of the offences a serving prisoner. The quantities recovered were 454 milligrams of cannabis and 1.552 grams of buprenorphine. The sentencing judge had sentenced all three on the basis that the offending fell within category 3 harm, rejecting the submission advanced before him that this was category 4. On appeal, Faine Bayliss’ counsel argued that the weights of the drugs were firmly within category 4, and that the guidelines covered cases of smuggling drugs into prison, which offences were only elevated to category 3 when they were committed by prison employees [8]. Norma Bayliss and Candice Ball argued that
Sanchez-Canadas
applied and that their offending fell within category 4 [10]. The appeal court (His Honour Judge Melbourne Inman QC giving judgment) held that the sentencing judge had been in error in escalating the offending from category 3 to category 4 to reflect the fact that the supply was into prison, and that the quantities of drugs were clearly within category 4 [13]. The court held that the sentence of 2 ½ years for Faine Bayliss was not manifestly excessive; it was properly at the top end of the range for a category 4 offence, leading role, less discount for guilty plea. Leave was refused. Norma Bayliss’ appeal against sentence of 10 months’ imprisonment was dismissed. Candice Ball’s appeal against sentence of 16 months’ imprisonment was allowed and a sentence of 10 months substituted.
14.
Again, we pause to note that there was no suggestion in Bayliss that any of the offenders were dealing drugs. There was no discussion of the street dealing limb of category 3.
15.
The third and most recent case is
Melim.
That was an appeal against a sentence of 3 years’ imprisonment for two drugs offences. The appellant had sent letters to two inmates, the first containing 33 grams and the second containing 18 grams of cannabis resin. The sentencing judge said that he was not bound by the guideline on the facts of the case because this was a supply into prison. He imposed a sentence of 3 years on a plea. Wilkie J, giving the judgment of the Court of Appeal, said this:
“[14] Where the guidelines deal with the level of harm, in the vast majority of cases, that will be assessed by reference to the quantity of drugs involved in the supply. However, exceptionally, in the case where the offence is supply of drugs in prison by a prison employee, the starting point is said not to be based on quantity but will fall into category 3 of harm, even though the quantity of the drugs supplied is not of an amount which would normally result in harm being assessed at that level but would be at the lower level of category 4.
[15] The amount of drugs which were supplied and reflected in these two counts would normally have been placed within category 4 level of harm. In the authorities, applying the sentencing guidelines to offending comprising supply by a non-prison employee into prison, certain principles emerge. We have been referred particularly to the case of
R v Sanchez-Canadas
… and
R v Bayliss
… The effect of these decisions is to reflect the guidelines, that is to say in terms of culpability, the role is normally said to be at least significant. Where, as here, the quantity would otherwise fall within category 4 and the supply is by a non-prison employee, then that is the level of harm which must apply. However, those cases also establish the proposition that the fact that the offending comprises supply of drugs within or into prison is to be regarded as a highly aggravating feature, normally placing the level of sentence at the top end of the appropriate range described in the guidelines.”
The appeal was allowed, and a sentence of 9 months was substituted.
16.
We note that in this case too, there was no suggestion of dealing within prison, nor in consequence any consideration of the street dealing limb of category 3.
17.
All three of these cases concern relatively small quantities of drugs being smuggled into prison from outside by friends, associates or relatives, not being employees of the prison. Because the supplier or associate in each case was not a prison employee, and the quantities were small, the harm caused by the offending fell into category 4. In none of these cases was there any suggestion that the offenders had been engaged in drug dealing, and in none did the sentencing judge or the appeal court consider the part of category 3 which refers to ‘street dealing’. In short, the facts of all these cases are very different from the facts of this appeal; and the issue which arises in this appeal was simply not canvassed or addressed in any of them. In our judgment, these authorities do not assist the appellant.
18.
Under the guideline, three types of supply fall within category 3: (i) where the offence is selling directly to users, ie ‘street dealing’, (ii) where the offence is a supply in prison by a prison employee, and (iii) where the quantity of drugs puts the offending into that category. With regard to (i) and (ii) the amount of the drug involved is irrelevant – the categorisation depends on the nature of the supply and not the amount of the relevant drug actually supplied. These are different routes into category 3, each of which is independent of the others. The cases referred to earlier demonstrate that a supply into prison which is made by someone other than a prison employee may fall outside category 3 if the recipient is the end consumer of the drugs and the amount supplied is smaller than the quantities identified in the guideline. But the supply of drugs within the prison community is not automatically excluded from category 3 just because it is undertaken by someone other than a prison employee. To the contrary, the supply by a prisoner selling directly to others can still fall within category 3, either because of the quantity involved or, as in this case, because the facts disclose that it was ‘street dealing’. Whether it does or not will depend on the facts of the case.
19.
We make the obvious point that ‘street dealing’ is a term of art. The supply does not need to take place on a street in order to be ‘street dealing’. The essence of street dealing, as the guideline states, is that it involves selling directly to users. A person engaged in that activity is a ‘street dealer’, even if they are operating within the prison walls, just as they would be if they were operating outside prison, on the street.
20.
We return to the facts of this case. The number of wraps in the possession of the appellant, wrapped in paper from prison documentation, and the fact that the appellant was observed selling drugs in the yard serve to confirm that he was, in effect, street dealing. Defence counsel acknowledged that if the behaviour of the appellant, as captured on prison CCTV, were transposed to the street then significant role category 3 would be the correct classification of the offence. It would be illogical if the fact that the appellant was in prison produced a different result and wholly unjust that this offence should be put in a lower category than if he had been dealing on a street corner.
21.
The Recorder’s starting point was 4 ½ years. That is the guideline starting point for Class A, category 3 significant role. Following
Melim
at [15], the Recorder should have moved up from that starting point towards the top of the range, to reflect the highly aggravating feature of a supply within prison.
22.
The Recorder considered the aggravating and mitigating factors. He concluded:
“Doing the best I can to balance those factors out, I think the starting point should be the end point…”.
There was personal mitigation available, but, if anything, the appellant was somewhat fortunate in this assessment.
23.
The Recorder then reduced the sentence by a third to reflect the plea entered at the first available opportunity and imposed a sentence of 3 years’ imprisonment.
24.
The sentence was not excessive and accordingly this appeal is dismissed. | {"ConvCourtName":["Crown Court at Leicester"],"ConvictPleaDate":["2016-11-10"],"ConvictOffence":["Supplying Class A drugs (heroin)","Possession with intent to supply Class A drugs (heroin)"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Leicester"],"Sentence":["3 years’ imprisonment on each count to be served concurrently"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[28],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV"],"DefEvidTypeTrial":["Offender denies offence (no comment in interview)"],"PreSentReport":[],"AggFactSent":["offence committed in prison","supply of drugs in prison is highly aggravating","appellant had 14 convictions for 26 offences including previous drug and robbery offences"],"MitFactSent":["offender showed personal mitigation","offender had lived a reasonably worthwhile life between release and index offence","pleaded guilty at first available opportunity"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["Recorder erred in categorising harm as category 3 rather than category 4; sentence manifestly excessive"],"SentGuideWhich":["Sentencing Council’s Definitive Guideline on Drug Offences"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Recorder correctly categorised offence as category 3 significant role; supply was 'street dealing' within prison; sentence not excessive; authorities cited by appellant did not apply to facts of this case"]} |
No:
200600538/A3
Neutral Citation Number:
[2006] EWCA Crim 2869
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MONDAY, 30th October 2006
B E F O R E:
LORD JUSTICE MAY
(VICE PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE DAVID CLARKE
MR JUSTICE TEARE
- - - - - - -
R E G I N A
-v-
DAVID JOHN HEMPSTON
- - - - - - - -
REFERENCE BY THE CRIMINAL CASES REVEIW COMMISSION
UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 2005
Computer Aided Transcript of the Stenograph Notes of
A Merrill Communications Company
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 TAYLOR
appeared on behalf of the APPELLANT
MISS L TAYTON
appeared on behalf of the CROWN
- - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MAY: It was 28 years ago, on 2nd October 1978, that David Hempston, the appellant, was sentenced to life imprisonment for rape and an offence under
section 21
of
the Offences Against the Person Act 1861
, particularised as choking, suffocating or strangling a woman with intent to disinhibit her.
2.
Since the early eighties he has been detained, not in prison, but in a number of secure hospitals, as we understand it upon the direction of the Secretary of State under
section 47
of the
Mental Health Act 1983
, as it now is. The equivalent statute in force at the time of his sentence was the
Mental Health Act 1959
. It is not suggested that there is any material difference between the provisions of those two statutes centrally relevant to this appeal.
3.
He is so detained because he is mentally ill. He suffers from paranoid schizophrenia. The opinion is that he remains a risk to others, especially women.
4.
The present appeal is on a Reference from the Criminal Cases Review Commission. The basis of the Reference is that, if medical opinions now available had been available to the sentencing judge, the judge would have been in a position and under a duty to have imposed a Hospital Order under what is now
section 37
of the
Mental Health Act 1983
, together with a restriction order under section 41, without limitation of time, instead of a sentence of life imprisonment.
5.
The Criminal Cases Review Commission considered that there is a real possibility that this Court would allow the appeal and substitute a Hospital Order.
6.
The formal conditions for a Hospital Order and a restriction order are fulfilled. The appellant is suffering from mental illness, namely paranoid schizophrenia, and there is written and oral evidence of two registered medical practitioners to that effect. Their view is that it is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment. A bed is, on the evidence, available for him within 28 days (plainly so, because, as we understand it, he is there occupying it already). If a Hospital Order is to be made, the opinion is that there is a serious risk that he would commit further offences if he is released, so that a restriction order is necessary and appropriate. None of this is contentious.
7.
It may be asked what difference would it make, since all the present indications are that the appellant will have to continue to be detained for some time. The short answers to this include that a Hospital Order has less stigma than a sentence of life imprisonment; that practical circumstances regarding the possibility of future release are more onerous if the appellant then had to return to prison first; but significantly, that it is the Parole Board which considers release if the appellant is a prisoner, but the Mental Health Tribunal if he is a patient.
8.
Procedures and approaches of these two bodies are very broadly similar. Each would be centrally concerned with whether the appellant remains or is at risk of being a danger to the public, particularly in this appellant's case to women. But the emphasis of the Parole Board is perhaps upon protection of the public, whereas the Mental Health Review Tribunal is as concerned with managing the patient's mental health. Miss Tayton submits that a discretionary life sentence affords greater protection for the public than a Hospital Order.
9.
We have heard oral evidence today from two of the psychiatric doctors, to the effect, at least in Dr Exworthy's case, that the procedures for possible future release under a Hospital Order would be such as to provide protection for the public.
10.
So it is that the main issue before the Court today is whether, in the words of
section 37(2)
(b) of the
Mental Health Act 1983
, the Court is of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedent of the offender, and to other available methods of dealing with him, that a Hospital Order is the most suitable method of disposing the case by means of an order under
section 37
.
11.
Mr Taylor, for the appellant, says that it is; that it would have been the right order to make in 1978 if the judge had had the additional evidence now before Court; and that if the criteria for a hospital are fulfilled, it is the order which should normally be made in preference to a determinate sentence or one of life imprisonment. He says that there does not have to be a causal link between the mental illness and the offending, a proposition with which Miss Tayton does not disagree. He also says that the judge was wrong to refuse, as he did, an application for an adjournment to obtain further psychiatric evidence. Miss Tayton, in an economic and sensitively understated submission, submits that the application of the leading House of Lords authority in R v Drew
[2003] UKHL 25
, [2003] 2 Cr App R(S) 24, suggests that, in the present case, the discretionary life sentence should not be replaced with a Hospital Order and a restriction order.
12.
Before proceeding to the details of this appeal, we should clear away some undergrowth. First, there is an unopposed application to admit fresh evidence of reports by Dr Exworthy and Dr Nimmagadda. There is also a very recent psychiatric report of Dr Cree, the appellant's present responsible medical officer, proffered to satisfy the two registered medical practitioner's requirement of
sections 37
and 41. In fact we now have, and are grateful for it, three registered medical practitioners. We admit that evidence and have heard two of the doctors give evidence orally.
13.
Secondly, we are not assisted, neither is the appeal strengthened, by a debate about whether the judge was right or wrong to refuse an adjournment 28 years ago for further psychiatric evidence. We can see the force of that submission. But the real question is whether, on the psychiatric evidence now available and in the light of what has happened with the appellant since 1978, the court in 1978 would and should have made a Hospital Order with a restriction order. In the light of the new evidence, it is agreed that that is a question for this Court to consider on the totality of the evidence and that we are not concerned with the now academic question of whether the judge, 28 years ago, was manifestly wrong on material that he had.
14.
It is now necessary to go into some detail. The appellant pleaded guilty in the Central Criminal Court on 2nd October 1978 before His Honour the late Judge Argyle QC, who sentenced to him to the following terms of imprisonment: for one count of rape, life imprisonment; for one count of attempting to render a person incapable of resistance with intent, contrary to
section 21
of
the Offences Against the Person Act 1861
, life imprisonment; for assault occasioning actual bodily harm, 4 years' imprisonment; for burglary with intent to rape, 2 years' imprisonment; for common assault, 9 months' imprisonment; for common assault originally charged as assault occasioning actual bodily harm, 6 months' imprisonment; and for a further count of common assault, 1 months' imprisonment, all those doubtless being imposed concurrently.
15.
Surprisingly there is a transcript of the proceedings in 1978, including the judge's sentencing remarks.
16.
On 9th October 1980 the Single Judge refused the appellant's original application for an extension of time in which to apply for leave to appeal against sentence. The application was renewed before the Full Court and refused on 22nd January 1981.
17.
The facts, which if everyone will excuse us, we shall take rather quickly, were as follows. The appellant was 30 years old at the time of the offences and by reason of his psychiatric history was familiar with the layout of Kingston Hospital. The first count, common assault, occurred on 15th April 1977, at about 5 o'clock in the evening when a Miss W, a nurse at Kingston Hospital, was in her room at the nurses' home when there was a knock at door. She opened it and the appellant gained access to the room by posing as an electrician and by stating he come to check the plugs. He began to fiddle with electric switches in the room, then turned and locked the door. He then took the nurse by the arms, sat her on the bed and began talking to her. He told her he had had a girlfriend who had her room and he talked about personal matters relating to him. He gave his name as "John". Miss W noticed the smell of alcohol and eventually he went. She was, mercifully, unharmed.
18.
Counts 2 and 3, burglary and common assault: on 8th December 1977, at about 10 o'clock in the evening, the appellant used the same method to gain access to a Miss L's room at the nurses' home. He entered her room and as he did so put his hand across her mouth and another arm round her neck in a grip to ensure she could not scream. She promised him not to scream and he let her go and then lay on the bed. He made her light a cigarette for him and talk to her about his sexual difficulties. She eventually managed to get to the door and scream for help. She was heard by two of her friends who attended to her as the appellant left the room. Miss L was in a frightened state but there were no substantial injuries on examination.
19.
Count 4, a count of common assault, occurred at about 11.15 pm on the same evening. The appellant approached a Miss K, a housekeeper at the hospital, as she walked through the hospital grounds. He asked her for directions to a ward in the hospital and asked if she was a nurse. He then grasped her by the throat. She screamed and the appellant ran away. She was examined and found to be distraught and fearful but there were no substantial injuries.
20.
Count 5, rape: shortly after at about 11.30 pm that same evening, the appellant returned to the student nurses' home and into a corridor where a student nurse, Miss B, was just returning to her home. She asked him what he wanted. He asked her what her room number was and again entered by claiming that he was an electrician. When he got into the room he pushed her onto the bed, put a hand over her mouth and said: "You know what I am, you know what I want, I want you to love me". While she was struggling he put his hand around her neck in a stifling or choking manner and he put two fingers down her throat to make her less likely to react. He then touched her private parts and partly undressed her. He then raped her. She was too frightened to struggle against him. They remained in her room from 11.30 pm until 8 o'clock the next morning. Every time she tried to move the appellant woke up. A friend called for her to go to work at 8.00 am. The friend opened the door and found her in a distressed condition, with the appellant hiding behind the open door. She was able to get out of the door and away. The appellant managed to get dressed and leave the building without being caught.
21.
On examination, she was frightened and distressed. The doctor did not find any marks of violence on her body but concluded that she would have been incapable of resisting an active muscular male.
22.
Counts 6 and 7, attempting to render someone incapable of resistance with intent and assault occasioning actual bodily harm: on 1st January 1978, a 21 year old woman called Miss G had been to a nightclub in North London and was returning home alone at about 1.30 am by thumbing a lift. She was picked up by the appellant who was driving a van. She noticed that the appellant was shaking continuously and asked to get out. The vehicle was moving and the appellant said, in a fierce voice: "No, you stop in here." She tried to open the door but the appellant grabbed both her wrists with one hand and held her tightly. He drove to a dark street in the Victoria area and started to kiss her. She began to scream. The appellant tried to suppress her screams by putting both hands round her throat and he kept pressing to such an extent that she fainted from the pressure being applied. A female passerby was suspicious of the activity in the van and upon closer inspection saw a girl struggling with a man. She opened the passenger door and asked what was going on. This seemed to surprise the appellant, who let go of Miss G who managed to escape from the van. The appellant drove away. The passerby made a note of his registration number and called the police who traced the appellant from the registration number.
23.
When he was interviewed, having been arrested, the appellant made two statements under caution, a brief summary of them included the following. Firstly, his mother had suffered a nervous breakdown when he was 2 years old and had been in a psychiatric hospital since. She had tuberculosis and the appellant contracted it when he was 5 years old. He must take after his mother because all his life he had had problems and treatment for his nerves. He had received psychiatric treatment at Kingston Hospital since he was 15 years old. However he had not been to the hospital since he was about 19, because after about 3 years he had decided they were not advanced enough in that field to treat him. His mental state had started to deteriorate about 18 months previously, when the relationship with his girlfriend ended. He made admissions to the various offences. He described himself as possessed. He did not know what he was doing. He said: "I need help to help me get my life sorted out". It is, of course, and remains to his credit that he pleaded guilty to all these offences.
24.
Before sentencing, counsel sought further psychiatric examinations of the appellant, to find out exactly what condition he was in and whether he should be punished or whether the court would consider making an order under the
Mental Health Act 1959
. The judge indicated that on the medical evidence already before him he took the view that there was no opening under the Mental Health Act. The judge stated:
"I would willingly consider a Section 60 Order with a Section 65 restriction, but there is very strong evidence that that course is not really open."
That was a reference to one or both of the psychiatric reports that were before the court at the time, which did not appear to encourage the judge to make a hospital order. Later, the judge said to counsel, Mr Herbert, who was in court mitigating on behalf of the appellant, that it seemed to him that he had better address the court on the basis that the appellant had got to be sent to prison for a very long time. There was medical evidence before the court which told the judge, in his view, in very plain terms, that this was not a medical case. The judge commented that if the appellant became a medical case once in custody, then he could be transferred administratively by the Home Office. Therefore he would not adjourn for further medical enquiries as the judge was satisfied that if a mental condition did arise, the authorities would deal with it.
25.
The two medical reports which were before the sentencing judge were a report dated 28th June 1978 from Dr Bearcroft and a report dated 31st July 1978 from a Dr Clark.
26.
In passing sentence, Judge Argyle said that the court had given careful consideration to the medical aspects of the appellant's history in the case, but up-to-date medical reports said that he was not eligible for treatment at the present time under the Mental Health Act. Taken into account were his guilty plea, for which he very much commended, and that he was virtually a man of previous good character. Protection of the public, in particular nurses at this hospital, was a major consideration. The judge felt obliged to pass an indeterminate sentence to enable the Home Office authorities and Health Service to determine when it would be safe to allow him his liberty. In the meantime the victims and any potential victims had to be given reassurance. At a later stage, when the judge was asked to comment on the possibility of the appellant's release, he expressed his view in forceful terms that he should not be released.
27.
There is inevitably over the intervening years a large amount of psychiatric and historical material about what has happened to the appellant. His behaviour initially deteriorated and became increasingly odd during the early part of his life sentence according to a report by Dr Stewart the prison medical officer in July 1979. He said that by April 1979 the appellant was clearly psychotic and recommended a transfer to hospital. He was transferred to the prison hospital wing. In April 1979 Dr Stewart asked Broadmoor Hospital to assess the appellant, stating that the offence appears to have been the result of his illness. But for his good response to treatment while on remand it is likely that he would have been dealt with under
section 60
to 65 of
the 1959 Act
and had been "in your care", that is to say Broadmoor Hospital, some time ago. As a result, the appellant was examined by Dr Le Couteur, who concluded that he was mentally ill and required hospitalisation.
28.
Dr Faulk also examined the appellant and supported the recommendation for a transfer to hospital, opining that he suffered from schizophrenia. He noted suggestions of mental abnormality in the appellant's statements to the police. He was first transferred to Broadmoor on 3rd January 1980. There were no signs of mental illness on examination and whilst he was tense and anxious he was not psychotic. By examination on 27th March 1980, he had received no treatment or medication, was not in need of medical treatment and therefore he was returned to prison. However, on return to prison his behaviour was noted as being rather odd. Broadmoor reassessed him but did not think he warranted hospitalisation. He was treated with anti-psychotic medication in February 1981 and he attempted suicide on 1st January 1982. He was assessed by Dr Mawson from Broadmoor, who believed he was suffering from chronic schizophrenia. He was transferred back to Broadmoor on 12th February 1982 and treated with antidepressants which improved his condition. Whilst still there a report by Dr Gordon in April 1984 diagnosed the appellant as suffering chronic schizophrenia with a prominent depressive component, and said that he should not be returned to prison at that stage. After no evidence of a relapse for 10 months his medication was stopped in September 1985, but he deteriorated again and was placed back on the medication in March 1986. In November 1986 he became acutely psychotic and further medication was administered. He initially improved but relapsed in June 1987. His state improved on high doses of anti-psychotic medication between 1988 and 1989, although there remained a strangeness and bizarreness in his behaviour. It was felt that his personality had been seriously damaged by his schizophrenic illness.
29.
In December 1991, whilst still in Broadmoor, he was examined by Dr Adshead, who agreed that he suffered from a schizo-affective disorder. She added that the fact that he was fairly consistently ill whilst on remand suggested to her that he was probably psychotic and at least prodromal at the time of the offence. The diagnosis was reaffirmed by Dr Halstead in a report in September 1995.
30.
A case conference in October 1993 recorded signs of psychosis being present. In May 1994 Dr McQuaid opined that the appellant was suffering from schizophrenia with a marked affective component. He believed the appellant had been mentally ill at the time of the offences and psychotic symptoms were still present at the time of interview. Dr Minne also concluded he was suffering from schizo-affective disorder and medication was controlling the acute symptoms.
31.
Case conference notes in November 1995 summarised the major issues as including chronic psychosis and organic contribution, heavy drinking before the offence and his suicide attempt requiring resuscitation, difficulties in engaging in psychotherapy and concrete thinking in relation to the offence.
32.
At a case conference in July 1997 the report written by Dr Adshead concluded that the appellant's mental state had been deteriorating for a number of years before he committed the offence. The fact that he was psychotic on remand suggested that he was mentally ill at the time of the offence. The most likely diagnoses seemed to be schizo-affective disorder with predominantly depressive features. However, given his psychological profile and his consistent minimisation and denial of the offences, it was likely that his attitude to women and his views about rape contributed as much to the offence as mental illness. His mental illness had been treated since his detention and that aspect had been addressed. What remained was his attitudes to women and rape, which continued to give concern.
33.
In August 1997 a report by Dr Lack concluded that the appellant was suffering from a schizo-affective disorder. It stated that given that the appellant first described psychiatric symptoms at the age of 17, his personality development had been severely affected by his illness. The difficulties he experienced in his attachment to others within the family, his poor social skills and misuse of alcohol were all relevant contributory factors to the offence. She also noted the possibility of organic brain damage and similar concern over his attitude to the offences.
34.
A pre-discharge report from Broadmoor, dated 10th August 1999, stated it was obvious that the appellant had had a long-standing mental illness and had become a chronic psychotic with evidence of intellectual impairment and institutionalisation. He did not have full insight and presented a significant degree of risk. It was decided he no longer needed a high secure environment and would be transferred to the medium secure Thornford Park. His attitude and behaviour towards women should be monitored and ongoing treatment was required for a long time.
35.
So, the appellant was admitted to Thornford Park on 25th August 1999. A report by Dr Dontchev, dated 4th October 2001, stated that after appearing to settle well his mental state deteriorated at the end of 2000, in that he appeared psychotic with bizarre and delusional ideas. He was seen staring at some of the female nurses. He did not feel that he was ill or needed medication but agreed to take it.
36.
So that is the psychiatric history in the brief of the 28 years since the appellant was sentenced.
37.
Before the Court today, as fresh evidence, are two reports from Dr Exworthy, one dated 10th February 2004 and the other 30th August 2005; a report from Dr Nimmagadda, dated 15th September 2005 and an updating short report (written least week) dated 25th October 2006.
38.
These reports, taken together with the other material to which we have briefly referred, are put before the Court to show that it was highly likely that the appellant was mentally ill at the time of the offences; that the illness contributed to his offending behaviour, and it is suggested that the appropriate sentence should have been a Hospital Order.
39.
Two passages, quite short, from those reports need to be referred to. The first is from Dr Exworthy first report, where he said (paragraph 6 page 27):
"It is my opinion that there is no direct link between Mr Hempston's schizoaffective disorder and his offences. I have read no entry or opinion in psychiatric reports which stated or implied he had offended because of or on the basis of specific psychotic symptoms; for example acting on the basis of delusional beliefs or in response to auditory hallucinations.
However, I believe it is likely that an indirect link between the illness and offences existed."
Then in paragraph 14, on page 29:
"However, the significant of Mr Hempston's attitude to women lies in its association with his views on rape and sexual fantasies more generally. This would allow him to minimise, rationalise or even deny his actions in the index offences. In my opinion, these factors are more important than the mental illness in understanding Mr Hempston's offences. Repeated psychosexual assessments have emphasised these factors....
Finally, alcohol appears to have been an important factor in relation to the offence in April 1977."
Then in Dr Nimmagadda's most recent report he says this:
"Based on the available evidence, it is clear to me that Mr Hempston had a diagnosis of a mental illness most probably schizophrenia for a substantial period, even before he committed his index offence. For the last 29 years subsequent to the committal offence he has been in a secure psychiatric system with a diagnosis of schizophrenia. There is also evidence to suggest that he was likely to have been mentally ill at the time of the index offence. Irrespective of whether it has been substantially established or not whether he was acting on the symptoms of his mental illness, I believe his illness was likely to have a bearing on his behaviour at the time of offending. Schizophrenia is a disease of the mind that affects the thinking capacity. It is likely to impair one's judgment and ability to think about the long-term consequences. There was also evidence that he was influence of alcohol at the time of the offences. I believe Mr Hempston's personality characteristics have certainly had a major role in the committal of his offences and his mental illness and alcohol have had likely to have played a contributory role. Although it is difficult to establish the exact extent of the role of his illness on the committal of his offences, on the balance of probabilities, I believe it would have reduced his responsibility for them if he had been charged with murder, I would have considered he had a defence of diminished responsibility."
40.
Both the doctors have given oral evidence today. Dr Exworthy, in particular, has elaborated upon his opinion by reference to the passages in particular of his first report to which we have just referred.
41.
It is necessary, now, to a refer to a passage in a decision of the House of Lords in a case called R v Drew
[2003] 2 Cr App R 371
which, so far as it goes, is binding on this Court. The Recorder of Cardiff had passed a sentence of life imprisonment and not a Hospital Order. One of the main questions before the House was whether the terms of section 109 of the Powers of Courts (Sentencing) Act 2000 providing for life imprisonment offended against the provision of the European Convention on Human Rights and the Human Rights Act. In that context Lord Bingham said in paragraph 17 this:
"It may be accepted that a sentence of life imprisonment, passed under s 109 of the 2000 Act, is, in part at least, punitive in purpose and effect. The minimum term specified by the judge to be served before release is imposed as retribution for the crime committed. It may also be accepted as wrong in principle to punish those who are unfit to be tried or who, although fit to be tried, are not responsible for their conduct because of insanity: see, generally,
R v H [2003] 2 Cr App R(S) 25
.... But the appellant did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another. The Recorder of Cardiff did not regard the appellant as other than criminally culpable. Had he done so he would not have specified a minimum term based on a notional term of eight years. The appellant's mental illness could properly be relied on as mitigating the criminality of this conduct but not as absolving him from all responsibility for it. Mr Davies laid stress on the stigma attaching to a sentence of life imprisonment, which he criticised as unfair in the case of a mentally-disordered defendant such as the appellant. It is of course true that conviction of serious violent crime carries a stigma. But the appellant will have been stigmatised less by the sentence passed upon him than by his voluntary admission of guilt.
Section 82 of the 2000 Act imposes additional duties on sentencing courts where offenders appear to be mentally disordered. Save where a custodial order is fixed by law (as in cases of murder) or falls to be imposed under s 109, the court must consider the offender's mental condition before imposing a custodial sentence. The humanity and fairness of this requirement are obvious. But it cannot, as a matter of national law, be stigmatised as wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried. This is made clear by the terms of
s 37
of
the 1983 Act
, for even where the conditions of subs (2)(a)(i) or (ii) are found to be satisfied the court may make a hospital order only if it is also of opinion under subs (2)(b) that a hospital order is 'the most suitable method of disposing of the case'. If it is not of that opinion, a sentence of imprisonment may be imposed even on an offender in whose case the conditions in subs (2)(a)(i) and (ii) are satisfied. The Court of Appeal in
R v Birch
(1989) 11 Cr App R(S) 202, 215, pointed out that prison might be chosen as an alternative to hospital either because the offender was dangerous and no suitable secure hospital accommodation was available or because there was an element of culpability in the offence which merited punishment, as might happen where there was no connection between the mental disorder and the offence or where the offender's responsibility for the offence was reduced but not wholly extinguished."
The offence of rape, although not formally characterised as one of intent, has a specific mental element. The rarely charged offence under
section 21
of
the Offence Against the Person Act 1861
, attempting to choke, suffocate or strangle, has a specific statutory intent of the offender enabling himself to commit any indictable offence. Thus, the appellant in the present case was, in a sense, in much the same position as the defendant
Drew. We return to paragraph 17 of Lord Bingham's speech:
"[He] did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another."
In the present there was a broadly equivalently serious intent. In the present case the judge regarded the appellant as criminally culpable. As we have said, he recommended subsequently that he should never be released.
It is argued here that the appellant's mental illness could properly be relied on in mitigation, but not as absolving him from all responsibility for it. It would not have been wrong in principle to pass a sentence of life imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried. If one takes what Lord Bingham said in that short passage in Drew
literally and by itself, the questions include whether this is a case where his responsibility for the offence is reduced but not wholly extinguished. If it is argued that a literal application of that would often reduce this Court's discretion under 37 to near vanishing point, the main considerations nevertheless are whether the mental illness so reduced the offender's culpability that, having regard to the need for public protection, a Hospital Order is the right disposal and a sentence of life imprisonment is the wrong disposal.
Mr Taylor submits that the two paragraphs from
Drew
should not be taken by themselves and should not be taken as having reversed what he submits was the well established principle to be derived from a substantial number of cases, certainly before
Drew
and some of them after, where the Court had to make a judgment in all the circumstances in the round as to whether it was right to pass a Hospital Order or a sentence of life imprisonment.
Mr Taylor refers to paragraph 23 of
Drew, were Lord Bingham said this:
"In the course of his argument for the Home Secretary, Mr Perry gently suggested that Court of Appeal decisions generally encouraging the making of hospital orders where the relevant medical criteria were met might, in the absence of adversarial argument, have given less than adequate weight to the differing conditions governing the release and recall of restricted patients as opposed to life sentence prisoners. He instanced authorities such as
R v Howell
(1985) 7 Cr App R(S) 360;
R v Mbatha
(1985) 7 Cr App R(S) 373;
R v Mitchell
[1997] 1 Cr App R(S) 90;
R v Hutchinson
[1997] 2 Cr App R 60
. There may be some force in this criticism, and we would accept that these differing conditions are a matter to which sentencing judges and appellate courts should try to give appropriate weight. The difficulties caused to prison managements by the presence and behaviour of those who are subject to serious mental disorder are, however, notorious, and we would need to be persuaded that any significant change in the prevailing practice was desirable."
Mr Taylor has referred us this afternoon briefly to a number of those decisions and in addition a case called R v Moses
to indicate what quite clearly has been a prevailing practice. He also drew our attention to the latter part of the judgment of Mustill LJ in
Birch
, from the former part of which Lord Bingham drew part of his paragraph 18 in
Drew
. The passage to which our attention has been drawn follows the point where Mustill LJ had said this:
"(2) Where the sentencer considers that notwithstanding the offender's mental disorder there was an element of culpability in the offence which merits punishment. This may happen where there is no connection between the mental disorder and the offence, or where the defendant's responsibility for the offence is 'diminished' but not wholly extinguished. That the imposition of a prison sentence is capable of being proper exercise of discretion is shown by
Morris
....and
Gunnell
. Nevertheless the more sentence in
Mbatha
.... strongly indicates that even where there is culpability, the right way to deal with a dangerous and disordered person is to make an order under
section 37
and 41."
Mr Taylor emphasise that last sentence. One authority to which Mr Taylor refers which followed and referred to
Drew
, is
R v IA
[2005] EWCA Crim 2007
, a decision of this Court presided by Mance LJ (as he then was) was on 4th August 2005.
Having considered at considerable length the statutory section and quoted from the House of Lords judgment in
Drew
, Mance LJ said in paragraph 41:
"Accordingly the judge was bound to consider which was the more appropriate in the particular circumstances of this case, a custodial sentence or a hospital order with restriction. That involved weighing factors."
We have reached the following conclusions: firstly, we are satisfied that the appellant was suffering from mental illness at the time of the offences for which he was sentenced in October 1979. The illness was paranoid schizophrenia. Secondly, we have very carefully considered the extent to which the mental illness may have contributed to the very serious offending to which he pleaded guilty, and whether in the light of that the right order in 1978 was a life sentence of imprisonment and not a Hospital Order.
We have taken account of the passages in the two doctors' written medical reports.
We have been helped by the oral evidence of Dr Exworthy. He was asked questions about the contributions there may have been to this offending from the appellant's personality, his attitude towards women, from alcohol and from his mental illness and although, for the purposes of the present day, Dr Exworthy considered, first, that the mental illness overlay and may have affected the personality and perhaps the disposition to alcohol; second, that in his opinion the mental illness was the predominant factor.
Weighing these and all the other factors that have been put before us, we have concluded that the right order upon the evidence presented to this Court was indeed a hospital order under
section 37
of the Mental Health Act, together with a restriction order without limitation of time under
section 41
of
that Act
.
In our judgment, the formal preconditions for those orders are fulfilled. We have already indicated that we find that the appellant was suffering from mental illness, namely paranoid schizophrenia.
Accordingly, bearing in mind that a Hospital Order under
section 37
, with a restriction order without limited time under
section 41
, will in the opinion of both doctors be sufficient to protect the public, and in particular women, from anything which the appellant might do in future, we are satisfied that that is the right order now to make.
Accordingly, we allow this appeal and substitute for the sentences of life imprisonment a Hospital Order, with a restriction order without limit of time. | {"ConvCourtName":["Central Criminal Court"],"ConvictPleaDate":["1978-10-02"],"ConvictOffence":["Rape","Attempting to render a person incapable of resistance with intent (section 21 Offences Against the Person Act 1861)","Assault occasioning actual bodily harm","Burglary with intent to rape","Common assault"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Central Criminal Court"],"Sentence":["Life imprisonment (rape)","Life imprisonment (attempting to render a person incapable of resistance with intent)","4 years' imprisonment (assault occasioning actual bodily harm)","2 years' imprisonment (burglary with intent to rape)","9 months' imprisonment (common assault)","6 months' imprisonment (common assault)","1 month's imprisonment (common assault)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[30],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance","Stranger"],"VictimType":["Individuals"],"VicNum":["multiple"],"VicSex":["All Female"],"VicAgeOffence":[21],"VicJobOffence":["Employed"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Medical evidence","Defendant's admissions"],"DefEvidTypeTrial":["Offender admits offences","Psychiatric evidence"],"PreSentReport":[],"AggFactSent":["Multiple victims","Offences committed in hospital setting","Use of deception to gain access","Physical violence or threat"],"MitFactSent":["Offender showed genuine remorse","Offender has no relevant previous convictions","Guilty plea","Mental illness"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Fresh psychiatric evidence now available; Hospital Order should have been imposed instead of life imprisonment"],"SentGuideWhich":["section 37 of the Mental Health Act 1983","section 41 of the Mental Health Act 1983"],"AppealOutcome":["Allowed & Sentence Substituted"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Fresh medical evidence shows Hospital Order was appropriate; mental illness was predominant factor at time of offence"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
No:
200401541 A4
Neutral Citation Number:
[2004] EWCA Crim 1754
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 16th June 2004
B E F O R E:
LORD JUSTICE KAY
MR JUSTICE CURTIS
MR JUSTICE NEWMAN
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 30 OF 2004
- - - - - - -
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)
- - - - - - -
MISS B CHEEMA
appeared on behalf of the ATTORNEY GENERAL
MR L WILCOX
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
Wednesday, 16th June 2004
1.
LORD JUSTICE KAY: Her Majesty's Attorney General seeks the leave of the court to refer to it a sentence that he considers to be unduly lenient pursuant to
section 36 of the Criminal Justice Act 1988
. We grant leave.
2.
The offender is now 30 years of age, 29 at the time when he was sentenced.
3.
On 5th September 2003 he pleaded not guilty to a count of wounding with intent. Following two further hearings the matter was listed for trial.
4.
On 20th January 2004, the day on which the trial was due to begin and when all the prosecution witnesses had attended, the offender was re-arraigned and entered a guilty plea on a written basis. The basis of the plea was not disputed by the Crown. Sentence was adjourned for the preparation of a pre-sentence report.
5.
On 13th February 2004 His Honour Judge O'Malley, sitting at the Taunton Crown Court, sentenced him to three years' imprisonment.
6.
The facts are these. On 6th June 2003 the victim, a 36 year old man called Scott Hunter, was spending the evening with a friend in a local public house and then the bar of an hotel, where they were both known. At about 9.30 pm the victim went to put some money into the jukebox which had gone quiet. Whilst there the offender came up to him and said that he had three credits left in the jukebox. Without looking at him, the victim said that they may have been lost, but if they were still there after his selection had been played the offender could have them. The offender left and the victim went and sat down with his friend.
7.
About ten minutes later, without any sort of warning, the offender approached him and struck him from behind with a hard blow to the right side of his head, which knocked him over to the left. Hunter described it as a dull sensation. As he looked up, Hunter saw the blur of a hammer coming towards him again. He was struck again, and as he moved away he was struck for a third time, the blow landing on his shoulder when he put his hand up to protect himself. The barmaid who was present described the offender holding the victim down with one hand as he swung the hammer down.
8.
The blows were in quick succession and left the victim bleeding onto his face, neck and clothing. When he came to his senses he saw the offender being restrained by other men, while he shouted words to the effect, "That'll teach you to take my free credit". The offender was then seen to pick up a glass ashtray and throw it at the victim, although, fortunately, it missed.
9.
The offender was removed from the bar and the hammer was taken from him. When he was leaving the premises the victim came across the offender, who continued to abuse him about the jukebox. The hammer was taken behind the bar by the barmaid and later given to the police.
10.
The following day the victim felt slow, as he described it "dopey", but went to work. Once there his colleagues realised he was unwell and took him to hospital. He was x-rayed and it was discovered from a CT scan that he had a depressed skull fracture and damage to the dura (the membrane lining the brain). An operation was carried out under general anaesthetic so that the depressed skull could be elevated. It was clear at the operation that a blow of considerable force had been struck as it was sufficient to drive a disc-shaped wedge of bone deep into the skull surface. Hair and skin fragments had been driven through the skull and were found amongst the bone fragments lying over the dura which had been breached by the blow. The wound was cleaned and the skull was re-secured with titanium plates. Fourteen clips were then used to close the site. He also had a cut to his right ear and a numb shoulder that lasted a few days. He had to spend three days in hospital.
11.
There have been after-effects from the assault. The victim experienced headaches every day for about a month, then intermittent pain in the area of the scar. He has experienced a constant high-pitched noise in the head, more noticeable at night in the quiet, which has interfered with his sleep. He has a 5-inch scar and a cranoid depression at the site of the main injury. There was, as a result of the injury, a risk of epileptic seizures, although none, fortunately, had been suffered by the time of the sentencing hearing. He was not allowed to drive for six months or play football. He himself was aware of a personality change in that he had become quiet and shy and reluctant to socialise, whereas before the assault he was confident and outgoing. He found it harder to concentrate for long periods and carried out tasks at a slower pace. In January 2004 the victim was still receiving treatment and was due to see a hearing specialist in respect of the constant noise in his head.
12.
Mr Hunter has since felt compelled to avoid two nearby towns because he has been afraid that he might come across the offender or his friends. He has lost his employment as a result of the attack and now earns less than he did before.
13.
On the night of the incident the police were called but the offender had by then left. He subsequently surrendered voluntarily to the police on 23rd June. In interview, he admitted owning the hammer. He explained that it was a work tool. He also admitted that he was responsible for the assault, but claimed to have been too drunk to remember the incident, apart from the argument at the jukebox with a young man whom he did not know. After the argument the offender claimed to have left the public house, only returning because he had forgotten to take his bag of tools with him. He had taken 14 pints of a mixture of lager and bitter and had been extremely drunk. The next thing he recalled was being dragged out and told he had hit someone with a hammer. He did not at that stage accept three blows as he could not remember them and he thought that the victim was exaggerating. He expressed remorse at the end of the interview for using the hammer. He said: "Just about the business with the hammer. It was a very stupid move and I'm sorry for it. I was drunk with beer. That's all I can say". He had also told a mutual friend that he was sorry for the injuries.
14.
The basis of plea, as it was put forward when he entered his plea of guilty, was as follows:
15.
Firstly, the offender had been working all day in hot weather without food or drink. When he subsequently took alcohol the effect was more marked.
16.
Secondly, the offender did not recall the assault but admitted forming a drunken attempt to cause the victim grievous bodily harm.
17.
Thirdly, the offender bitterly regretted the incident and injuries. As soon as he realised what had happened he contacted his solicitor and surrendered to the police.
18.
Finally, he had always maintained a plea to causing the injuries but contested the element of specific intent due to his drunken state. Upon service of medical evidence confirming that three blows were struck, he accepted that he must have formed the drunken intention that was required.
19.
The offender has previous convictions, and over the eight years between 1992 and 2000 he was convicted of over 40 offences, ranging from criminal damage and driving offences to assault occasioning actual bodily harm, robbery, burglary, possession of cannabis, handling and public order matters. Significantly, the offences of violence were ten years old and there were no details available as to exactly what they were. They had resulted in short terms of imprisonment. He had been dealt with in a variety of ways including imprisonment, fines and community service.
20.
On behalf of the Attorney General it is submitted that this case had a number of aggravating features: first, the use of the hammer as a weapon; second, this was an unprovoked attack on a stranger in public; third, the victim was struck repeatedly and the offender only desisted when others intervened; fourth, the deliberate and forceful striking to the head of the victim, which caused a significant injury in that the section of the skull was driven into the dura together with surrounding skin and hair; fifth, it was a case with serious and lasting consequences from the injuries, including the insertion of metal plates and the consistent ringing in the ears which was still unresolved; finally, there was his past history of offending.
21.
It is recognised, on the other side, that there were a number of mitigating features. Firstly, there was the plea of guilty. The judge, in dealing with the plea of guilty, made it clear that he viewed it as a significant plea, bearing in mind that he accepted that the appellant had no actual recollection of what he had done. Next, it was recognised that there was genuine remorse, demonstrated particularly by contact with a prosecution witness and what he had said then, and also by the very act of surrendering to the police. Next, the judge viewed the matter as being one which was out of character. Bearing in mind his earlier violent history, it must be that the judge meant by that, firstly, that this was far more serious than anything he had ever done before, and, in particular was outside his recent character in that he had not behaved violently for a significant number of years. Finally in terms of mitigating features, it is recognised that this is an appellant with a difficult personal history, in particular, he had a history of drug abuse, and that he had made a significant effort to try and reform, assisted by his father, and that there had been a significant improvement in his behaviour as a result of his efforts.
22.
The Attorney General submits that the sentence was unduly lenient and, in particular, contends that the sentence failed to mark adequately the gravity of the offence and the aggravating features present. It is submitted that the learned judge gave too little heed to the high degree of force used in the assault and too great credit for the mitigating features in the case, including the late guilty plea. It is also submitted that this is a sentence which will fail to act as a deterrent to others considering committing similar offences and one which failed to heed the proper concern in society in respect of violent offences of this kind which cause harm to a wholly innocent victim.
23.
In support of those contentions, we have had our attention drawn to a number of authorities:
Attorney General's Reference (No 18 of 2002)
, the case of Hughes,
[2003] 1 Cr App R (S) 9
at page 35;
Attorney General's Reference (No 36 of 1996
), the case of Johnson, [1997] 1 Cr App R (S) 363; and
Attorney General's Reference (No 68 of 2002
), the case of Stephen Catterill,
[2003] 1 Cr App R (S) 94
. Further, our attention was drawn to a very recent decision of this court, in respect of which there is no full transcript,
Attorney General's Reference (No 12 of 2004)
, the case of Alfred Washington Weeks, which was heard by this court on 19th May 2004. We have a short report in relation to that but no further information over and above the short report.
24.
In addition, whilst we are referring to the authorities that we have considered, Mr Wilcox, on behalf of the offender, also drew our attention to the case of
Attorney General's Reference (No 11 of 1992
), the case of Howes, [1993] 14 Cr App R (S) 136.
25.
Many of those authorities have similar features to the offences in this case, although one can never find two cases that are exactly the same and they can do no more than provide general guidance as to the appropriate level of sentencing.
26.
On behalf of the offender, Mr Wilcox submits that whilst he accepts that the sentence was a lenient sentence, it cannot properly be characterised as being unduly lenient. He submits in those circumstances that the court ought not to interfere with the existing sentence, and if it feels compelled to do so should raise it by no more than the minimum that is consistent with the court's duty.
27.
We have carefully considered all the submissions in this case and we find ourselves agreeing with the Attorney General that the sentence was unduly lenient. This was a very savage attack on a wholly innocent person. There was not even the sort of background that one often finds in cases of this kind where there had been some quarrel and somebody simply took the quarrel out of the league in which it ought to have been. The victim here was a person going about his ordinary business, legitimately behaving in a public house, who, for no sort of reason at all, was attacked in this savage way. It is further significant, in our judgment, that the appellant had left the public house after the minor episode with the victim and actually returned to the public house in order to collect his tools and then, and only then, well removed from any contact which he had with the victim, he attacked him at that stage. Further, there were a number of separate blows, and even when he was taken hold of by others, he was still attempting to throw the ashtray at the victim. Those are serious features.
28.
The other critically important feature, in our judgment, is the extent of the injuries suffered by the unfortunate victim. There is no doubt that the blow to the head has caused him serious long term consequences. Just how those will resolve in the future is impossible to tell, but this is a case where there has been serious injury leading to consequences that will go on reminding the victim of this very unpleasant attack for a substantial length of time.
29.
In our judgment, facts of that kind, even on a guilty plea, merit a longer sentence than the one imposed by the judge. Our conclusion in this case, and one we believe in line with the authorities to which we have been referred, is that the proper sentence in respect of this matter, following a guilty plea, which was entered at the door of the court, would have been a sentence of the order of five and a half to six years.
30.
We have, as is always the practice of the court in a case of a referral of this kind, to make an allowance for what has become known as double jeopardy; that is, the fact that, through no fault of his own, the appellant has had to go through the sentencing process twice. We make that allowance.
31.
We think the justice of this case would be met if we reduced the sentence from that which we have indicated to one of four and a half years' imprisonment. Accordingly, we quash the sentence of three years' imprisonment and substitute for it one of four and a half years' imprisonment. | {"ConvCourtName":["Taunton Crown Court"],"ConvictPleaDate":["2004-01-20"],"ConvictOffence":["Wounding with intent"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["on day of trial"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Taunton Crown Court"],"Sentence":["three years' imprisonment","four and a half years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[29],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[36],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Medical evidence","Barmaid testimony"],"DefEvidTypeTrial":["Offender admits responsibility but claims intoxication"],"PreSentReport":[],"AggFactSent":["use of the hammer as a weapon","unprovoked attack on a stranger in public","victim was struck repeatedly","deliberate and forceful striking to the head","serious and lasting consequences from the injuries","past history of offending"],"MitFactSent":["plea of guilty","genuine remorse","surrendered to police","out of character","history of drug abuse and efforts to reform"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["sentence failed to mark adequately the gravity of the offence and the aggravating features present","too little heed to the high degree of force used in the assault","too great credit for the mitigating features in the case, including the late guilty plea","sentence will fail to act as a deterrent to others"],"SentGuideWhich":["section 36 of the Criminal Justice Act 1988"],"AppealOutcome":["Allowed","Sentence increased"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["sentence failed to mark adequately the gravity of the offence and the aggravating features present","too little heed to the high degree of force used in the assault","too great credit for the mitigating features in the case, including the late guilty plea","sentence will fail to act as a deterrent to others"],"ReasonDismiss":[]} |
No:
200406516/A6
Neutral Citation Number:
[2005] EWCA Crim 1796
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 28th June 2005
B E F O R E:
LORD JUSTICE MANCE
MR JUSTICE ELIAS
SIR CHARLES MANTELL
- - - - - - -
R E G I N A
-v-
THEO YESTIN WILLIAMS
- - - - - - -
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 H JONES
appeared on behalf of the APPELLANT
MISS I RAY-CROSSBY
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1. SIR CHARLES MANTELL: Theo Yestin Williams is 36 years of age. By early last year he had managed to accumulate no fewer than 223 convictions arising out of 46 court appearances. They included convictions for theft, obtaining property by deception, criminal damage, taking a vehicle without authority, making off without payment, theft of vehicles, driving whilst disqualified, vehicle interference, burglary, theft, handling stolen goods, going equipped for theft, burglary with intent to steal, no insurance, trafficking offences, assaults, perverting the course of justice and so on. What is remarkable, perhaps, about that record is the number of driving offences, including a very large number of driving whilst disqualified and a significant number of dangerous driving and driving whilst under the influence of drink. He was, on any view, a thorough going nuisance. However it has to be noted that he an unfortunate background. He certainly had mental troubles. He had been detained in a psychiatric hospital. He had been assessed as having a personality disorder of an antisocial type.
2. It was against that background that on 1st August 2003 he was seen driving a motor car in the Portslade area not wearing a seat belt. Police officers attempted to stop him, but he drove off at high speed in a restricted area. He drove along dual carriageways on the wrong side of the road, ignoring traffic lights, and pedestrians were put at risk. At one point he reversed his car into the chasing police vehicle. Eventually a police helicopter was employed. The police were unable to stop him. The chase was eventually brought to an end when a police car rammed the back of the car he was driving and forced it into a ditch. On a breathalyser reading being taken, he was found to be over the limit by a considerable amount and he was, as his record shows, a disqualified driver.
3. Despite his record, when the matter came before the court on 24th February 2004 he was sentenced to a Community Rehabilitation Order for two years and, as he was bound to be, disqualified from driving for three years. However, he failed to take advantage of the chance he had been given. He did not attend his appointments at the probation office and within a very short time indeed was arrested for stealing a computer from a hospital. He was sectioned under the Mental Health Act, and when the section was lifted he committed criminal damage in the hospital and assaulted a member of staff.
4. It was in relation to the breach of the Community Rehabilitation Order that he was brought back before the Crown Court at Lewes on 26th October 2004, His Honour Judge Scott Scott-Gall presiding. He admitted his breaches of the order. He was resentenced on that occasion to one day's imprisonment on each count, those sentences having already been served, and made subject to an Antisocial Behaviour Order prohibiting him from:
"... driving or attempting to drive a mechanically propelled vehicle on a road or any public place in England or Wales until 24th February 2007."
5. In addition, the Community Rehabilitation Order was revoked. It is worthy of note that the extent of the Antisocial Behaviour Order coincided with that of his disqualification both of which were to expire on 24th February 2007.
6. The judge made little secret of the fact in his sentencing remarks that he was taking the course that he did, an unusual and, if we may say so, imaginative one, in order to reinforce the effect of the banning order. It is against that he now appeals with leave of the single judge.
7. The argument has been presented by Mr Jones of counsel, who also appeared in the court below, and Miss Ray-Crosby appears on behalf of the Crown. The matter has, therefore, been argued on both sides before us, as was not the case in the two previous decisions which might have a bearing on this matter, namely the case of
Hall
(unreported) Monday 25th October 2004, a decision of the division of this Court consisting of Hunt and Tugendhat JJ, and a further decision of this Court
Kirby
, judgment being given on 4th May 2005 (unreported), consisting of Maurice Kay LJ, David Clarke J and the Recorder of Birmingham. Neither of those authorities was cited to the judge in the present case and, indeed, it was not until today that the members of this Court were informed about the decision in
Kirby
.
8. Was such an order available to the judge in this case as a matter of principle? An Antisocial Social Behaviour Order is available under
section 1C of the Crime and Disorder Act 1998
, as amended by the
Police Reform Act 2002
. It has been available since 2nd December 2002. Provided it is in relation to a relevant offence, and there is no question that the offences in this case are relevant, the section provides that if an offender:
"(a) ... has acted at any time since the commencement date, in an antisocial manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and
(b) that an order under this section is necessary to protect persons in any place in England and Wales form further antisocial acts by him,
It may make an order which prohibits the offender from doing anything described in the order."
9. It was such an order that His Honour Judge Scott-Gall purported to make in the present case. The question is, of course, was he entitled to do so. As we have said, there is no doubt that he had in mind that the existence of such an order would reinforce the banning order which was already in place.
10. The reason why that is so, a matter about which he made no bones in the course of his judgment, is that for breach of the Antisocial Behaviour Order it is open to the court to impose a sentence of imprisonment up to five years, whereas, at the relevant time, for driving whilst disqualified the maximum available in the Magistrates' Court, and that is the only arena in which such a hearing can take place, the maximum was six months, now possibly increased by virtue of a recent Act of Parliament to 51 weeks. Clearly the judge considered that the existence of the Antisocial Behaviour Order might have a salutary effect upon the conduct of this otherwise incorrigible appellant.
11. The two authorities, however, to which we have been referred, and which His Honour Judge Scott-Gall was not, do not, unfortunately, speak with one voice. In the case of
Hall
(reference already given) the Court was considering the imposition of an Antisocial Behaviour Order in a driving case. The terms of the order under consideration were not far removed from those before this Court.
12. What was said in the course of the judgment given by Hunt J was this:
"We have had our attention drawn to other cases, including, particularly, the case of P heard in February of this year by the Lord Chief Justice, Richards J and Henriques J, where the orders are considered and the following principles emerged. The test for making an order is one of the necessity to protect the public from further antisocial acts by the offender. There is nothing wrong in principle in making such an order when they are driving offences of such a regularity and type and in such an area that they do constitute antisocial behaviour. It is said that the terms of the order must be precise and capable of being understood by the offender. The findings of fact giving rise to the making of the order must be recorded and the order must be explained to the offender. The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced."
It was noted that the making of such an order is strictly not part of the sentencing process.
13. The Court continued:
"The point that is made before us is that it is said that the judge only made this order in order, in the event of the appellant's offending again, he would not just be liable to six months' imprisonment for driving while disqualified, but he would be liable to imprisonment for up to five years for breach of the Antisocial Behaviour Order."
The Court went on to voice the opinion that that might not have been the only reason behind the making of the order.
14. In the case of
Kirby
, however, in which, we hasten to point out,
Hall
was not cited, the Court stated in the judgment given by David Clarke J, at paragraph 9:
"In our judgment this decision of the court and the earlier case of C serve to demonstrate that to make an antisocial behaviour order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending, is not a use of the power which should normally be exercised."
15. And at paragraph 11:
"In our judgment the making of an order of this sort should not be a normal part of a sentencing process, particularly in cases which do not in themselves specifically involve intimidation, harassment and distress. It is an exceptional course to be taken in particular circumstances. There was, in our judgment, nothing in this case, despite the deplorable record of the appellant for offences of this sort, to justify the use of this power in the present case. Its effect was no more than to transform any such offence into a different offence, namely breach of an antisocial behaviour order, so as to increase the potential penalty. In our judgment that was unwarranted in this case in the absence of exceptional circumstances."
16. It is to be noted that in
Kirby
the Court did not rule out the possibility of such an order in exceptional circumstances. It might be said, and indeed it has been said on behalf of the respondent, that these were indeed exceptional circumstances in this case.
17. We think, however, that following the principle to be found in
Kirby
, here the course was unwarranted in this case. We have, we ought to, considerable sympathy with the judge in the difficult situation in which he found himself, and, moreover, it may very well be from the history of this man since the making of this order that it was not without some effect. Accordingly, we allow the appeal to the extent that we quash the Antisocial Behaviour Order. | {"ConvCourtName":["Crown Court at Lewes"],"ConvictPleaDate":["2004-10-26"],"ConvictOffence":["Breach of Community Rehabilitation Order"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["admitted breaches of the order"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Lewes"],"Sentence":["one day's imprisonment on each count (already served)","Antisocial Behaviour Order (quashed on appeal)"],"SentServe":[],"WhatAncillary":["Antisocial Behaviour Order (quashed on appeal)"],"OffSex":["All Male"],"OffAgeOffence":[36],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["offender had an unfortunate background","offender had mental troubles","offender had been detained in a psychiatric hospital","offender had a personality disorder of an antisocial type"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Ancillary order (Antisocial Behaviour Order)"],"AppealGround":["Order was not warranted in the circumstances; improper use of ASBO to increase sentencing powers"],"SentGuideWhich":["section 1C of the Crime and Disorder Act 1998 as amended by the Police Reform Act 2002"],"AppealOutcome":["Allowed & Ancillary Order Quashed"],"ReasonQuashConv":["Following the principle in Kirby, the use of the Antisocial Behaviour Order was unwarranted in this case; its effect was only to increase the potential penalty and was not justified in the absence of exceptional circumstances"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2014] EWCA Crim 414
Case No:
2012/0559/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 19 February 2014
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
THE COMMON SERJEANT
HIS HONOUR JUDGE HILLIARD QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
B e t w e e n
R E G I N A
v
DARREN JEWELL
- - - - - - - - - - - - - - - - - - - - -
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 E Rees QC and Mr R Thomas
appeared on behalf of the
Appellant
Mr P Gair
appeared on behalf of the
Crown
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J U D G M E N T
1.
LADY JUSTICE RAFFERTY: Darren Mark Jewell, now 37, on 13th January 2012 in the Crown Court at Chelmsford was convicted of the murder of Anthony Prickett and sentenced to life imprisonment. He had earlier pleaded guilty to a number of not unconnected offences. The Registrar has referred to this court his application for leave to appeal against his conviction for murder. He has the advantage here of representation by Mr Edward Rees QC with Mr Thomas.
2.
Anthony Prickett, 42, suffered two fatal gunshot wounds to the abdomen outside his home shortly before five in the morning on Thursday 19th May 2011. Neighbours, alerted by shots, saw Jewell leaving in his van. Standing arrangements were for Mr Prickett to be collected at that hour by Jewell in one of the vans owned by Bulat Roofing for whom they worked.
3.
At 1.50 that afternoon a Vauxhall Corsa driven by Jewell was forced off the A1 near Edinburgh by armed officers and he was arrested. A search revealed a loaded home-made zip gun capable of firing .22 ammunition, and a further eight rounds of spare ammunition, and what the Crown described as a "survival kit": a rucksack holding spare clothes, a tent, a matchet, two butterfly knives, a folding knife, two cans of CS gas, a passport, a driving licence and a chequebook. A number of firearms and other weapons was found at Jewell's home.
4.
Interviewed by police in the presence of a solicitor over two days, he admitted he was responsible for the shooting but said he had not intended to kill, nor gone to Mr Prickett's address intending to kill him. He explained that over the preceding fortnight he had been the subject of intimidation by people unknown but of whom he thought Mr Prickett one. He had been followed and the tyres of his mother's car damaged. He told officers that on 18th May as he had driven home after work Mr Prickett told him that he, Jewell, had "two days left". He interpreted that as two days to live. On the morning of 19th May, he said, something snapped and, as if in a dream, he shot Mr Prickett. He had stayed up at night for the last fortnight holding a loaded shotgun he had had for years. He had made the zip gun when he was 15 or 16 and he had had the other guns found at his home for years for his own protection.
5.
The night before the shooting he visited his father and stole ammunition and keys to the Corsa. He had stayed up all that night with the shotgun and had written to neighbours leaving his keys and asking them to feed his cat, before leaving home that morning. After the shooting, he left the van, ran to his father's throwing the shotgun into the sea en route, took the Corsa and drove to Scotland where he intended to live before committing suicide. The Crown's case was that this was a premeditated killing, his that he lacked the mens rea for murder.
6.
Grounds of appeal are that in ruling that insufficient evidence had been adduced to raise the partial defence to murder of loss of control the judge fell into error.
7.
Miss Ashby had become his girlfriend on 2nd April 2011. She described him as caring and affectionate. She saw no temper, no threats, no violence. She did not detect anything on his mind. He did not seem preoccupied.
8.
Miss Kirby, his previous girlfriend, had lived with him from 2004 until April 2011. She described him as a gentle giant. He had a temper on occasion when he spoke of a red mist but she could think of only one episode when he lost his temper and that was when their dog was attacked by another dog. She was not aware of any problems between him and Mr Prickett. In April he had said he and Mr Prickett were working together and getting on really well. Close friends had never known Jewell hot-headed or quick tempered and they were at pains to describe him as hard working and notably caring.
9.
His mother described the damage to her car tyres during April and May 2011. On the evening before the shooting her son had seemed preoccupied and not his normal self. To his cousin who worked with him Jewell suggested that a man named Oldfield might be responsible for the damage to the tyres.
10.
Mrs Prickett, Anthony's mother, like many others described him as kind, full of life, with lots of friends. He had worked at Bulat for some 15 years. She had never heard him say anything against anyone.
11.
Miss Lott, a close friend, said he never mentioned any problems at work. The day before his death he seemed happy. He had some worries about money.
12.
His friends were consistent in their evidence. None detected any anxiety from Mr Prickett before his death. The tenor of the evidence was that he and Jewell got on. Indeed, even Mr Oldfield, sacked after a row with Jewell and who had worked with Mr Prickett for some 10 years and known him for 15, said that the workmen at Bulat got on well as a body and socialised.
13.
The evidence was that in the days leading up to the shooting Jewell was quieter than normal and the others thought perhaps he had been having some late nights. It was true that Mr Prickett had said he knew someone who could "rub someone out for money" in the context of a dissatisfied customer, but his workmates described this as light-hearted.
14.
Jewell told the jury he had worked for his father since 2004 and become his second in command. He worked with Mr Prickett but they did not socialise. In the morning he would collect first him and then others. He acquired air pistols in 1999 or 2000 legitimately when no licence was required. When the law changed and one was required he did not secure one. The killing had nothing to do with money, his girlfriend, his work, drugs or revenge. Leading up to it, he was once dropping Mr Prickett at home when a biker gestured and glared at him aggressively. Some mornings going to work he would notice a white van driving aggressively right behind him and it made him fearful. Various other things worried him such as a van pulling up beside him and its driver making throat-cutting gestures.
15.
He could not account for Mr Prickett's change in attitude, explaining that the two had become less close, and that made him frightened. He was not especially frightened of Oldfield, Mr Prickett or anyone else, but he was, he told the jury, fearful of their connections. It preyed on his mind what such people would do. Someone associated with a work mate was, for example, serving 17 years for arson. He had told Miss Ashby (his then girlfriend) that weekend, 13th to 14th, that things were troubling him. He had difficulty concentrating at work and sleeping. He did not sleep at all on the Monday night prior to the shooting and he did not sleep well on the Tuesday.
16.
On Wednesday at lunch he heard Mr Prickett on his telephone talking about somebody having their teeth smashed out for £600. The person on the other end was suggesting even more violence and Mr Prickett said it should be recorded so that he could look at it. During the call, Jewell told the jury, Mr Prickett was glaring at him. He felt so intimidated as to be unable to eat lunch. He wished he had confronted Mr Prickett but could not do so. He said he did not feel right and felt he was shutting down. It was getting hard to function.
17.
When he dropped Mr Prickett off that evening, the latter had been looking at him and saying things like: "One more evening, then you're dead" as if he knew Jewell were unravelling. He said he went home, showered and changed. He felt trapped. All he could think about was being seriously hurt and that it was not safe for him to stay at home. He visited first his father, then his mother. He asked his father if he could borrow a gun for protection against Anthony Prickett and his associates, explaining that he feared being hurt. His father suggested his son stay with him. Jewell eventually persuaded his father to give him a gun and ammunition but his father said to him: "Don't use it. If you have to use it, fire shots into the air." He explained that in interview he had lied about the origin of the guns and the movements of the van following the shooting and the judge told the jury that it might want to conclude that those lies were so as to conceal his father's involvement.
18.
Jewell's evidence continued that he took the gun home and sat with it next to him, expecting attack, until 4.30 in the morning when he put the cat note through his neighbour's door. Between three and four in the small hours he got his rucksack and filled it with clothing, tent and a survival kit. He wanted to go to Scotland to clear his head but at the same time wanted to go to work. He decided to drive to Mr Prickett's home, stopping en route to withdraw money. He stopped the van where he usually stopped and Anthony Prickett looked at him. He told the jury he just could not control it any more and shot him. Before getting into the van he had not planned to shoot Mr Prickett and as he got out he did not intend to shoot him dead. When first discharged the gun was held low and Mr Prickett went over. Jewell walked toward him and discharged a second shot into his head. There was no communication. He described it as not seeming real. He simply could not cope any more. He told the jury he was not in control of what he was doing. There was no aiming of the gun involved. He could indeed have shot into the air, but that would have worsened matters. He did not aim for Mr Prickett's head. He said: "I saw him. I snapped. My head was not good. I didn't know what I was doing."
19.
On Wednesday 11th January 2012 the judge gave a ruling on loss of control. We direct that in copy form it is annexed to this judgment. We quote from some parts of it:
i.
"I have examined the preliminary issue of whether the defendant was or, alternatively, might not have been acting in a considered desire for revenge. The Act [the Coroner's and Justice Act 2009] provides no assistance as to the meaning of that expression so for these purposes I have taken it to mean that the partial defence would be excluded if it was proved that the defendant engaged in a premeditated attack motivated by a desire to redress or punish some perceived grievance.
ii.
The evidence in the case provides very powerful support for the conclusion that the defendant felt aggrieved by the conduct of the victim who was, on the defendant's evidence, part of a campaign to intimidate and threaten him with extreme personal violence. The evidence further supports the almost inexorable conclusion that the defendant went to considerable trouble to plan and execute a lethal attack upon the victim. However, the issue of whether the killing was an act of revenge is not a matter that requires judicial resolution as Section 54(6) is confined to a consideration of the elements that give rise to the presumption in Section 54(5), namely the ingredients of whether the partial defence particularised within Subsection (1) are made out.
iii.
The question of whether the killing was motivated by revenge falls exclusively within the province of the jury and in the event that loss of self control is left to them as an issue then it would be for them, not me, to resolve. That being said, the evidence that might support a conclusion that this was a revenge attack is potentially relevant to a consideration of the issue of loss of self control where it might support the view that the attack was premeditated.
iv.
I turn now to the three ingredients of the partial defence. Firstly, is there evidence from which a jury could reasonably conclude that the defendant's acts, namely the two shots that he fired to kill Anthony Prickett, were the result of his loss of self control? The Act provides no definition of the expression 'loss of self control' beyond indicating that it does not have to be sudden. That is in Subsection (2) of Section 54.
v.
Accordingly, I look to the long history of cases involving the common law defence of provocation for guidance as to the meaning of the expression...
vi.
When asked at various times why he shot Mr. Prickett the defendant recited, as if reciting a mantra learnt from legal textbooks: 'I did it because I lost control. I could not control my actions. I could not think straight. My head was fucked up. It was like an injection in the head, an explosion in my head.' The mere assertion by the defendant that the reason for the killing was loss of control does not in my opinion on its own amount to sufficient evidence upon which a jury could reasonably conclude that the defence might apply.
vii.
It does not on its own meet the sufficiency threshold. Were it to do so the purposes of Section 54(6) could be thwarted by the simple device of a defendant reciting that mantra. There has to be more.
viii.
Accordingly, I have examined the totality of the evidence both for its quality and its sufficiency... I am directed by Section 54(6) to bring my opinion to bear upon the sufficiency of the evidence raised ... Any judgment ... should not ignore questions of quality and weight. Trial judges frequently perform such exercises when faced, for example, with Galbraith submissions ... I will only conclude that the partial defence of loss of self control shall not be available to him if I am satisfied so that I am sure that no jury, properly directed, could reasonably conclude that the defence might apply. When the evidence of the circumstances of the shooting, the period leading up to it and immediately following it, are examined closely there is clear evidence in my opinion to support the conclusion that the defendant was acting in a reasoned, rational and perfectly controlled way.
ix.
Following the final alleged act of threat come intimidation by Mr. Prickett, those words when they parted the night before: 'One more evening and you're dead,' spoken not directly to him but into thin air, the defendant had 12 hours in which he was able to reflect and react. During that period he conducted himself in a perfectly logical and controlled manner. He returned home, showered, changed, he visited both parents, he went shopping, he drove himself between the various locations.
x.
At his father's he told him of his fears, twice apparently. He borrowed a shotgun and ammunition for that gun as well as ammunition for a second zip gun ... He withdrew some £450 in cash in total from two machines. ... He packed a rucksack with a tent, clothing, a survival kit, and he put an assortment of weapons into his van. He then drove some eight miles to the victim's address ... He had with him the shotgun, loaded and with the safety catch off, according to his evidence..."
20.
Having rehearsed what happened at the scene, the judge continued:
i.
"No event occurred at the scene to explain why the defendant acted in that way. The history of the preceding 12 hours, which we might think of as a cooling off period, is entirely consistent with the defendant pursuing a considered and logical course of action directed ultimately to the purpose of shooting Mr. Prickett.
ii.
His conduct immediately after the shooting leaving the scene, changing vehicles, fleeing to Scotland all indicate a man able to act coherently and sensibly, fully in control of his faculties; indeed, pursuing a plan...
iii.
I find insufficient evidence has been adduced to raise the issue of the partial defence and it will not, therefore, be available to the defendant.
iv.
As a consequence of that finding I need not address the remaining issues, namely the existence of a qualifying trigger or the possibility that a reasonable man in the defendant's circumstances might have reacted in a similar way.
v.
However, it may be helpful ... if I do briefly address these other issues. I am of the view that there is no qualifying trigger here which might explain any loss of self control. Whilst there is evidence from the defendant - I note, however, unsupported by any other witness - that he was the subject of fear and intimidation emanating in some oblique way from Mr. Prickett, who he knew was associated with friends of a violent criminal, reinforced by strange encounters with a scar faced biker and an aggressive van driver, that this fear of violence of which the defendant spoke had not led him to conduct himself in an uncontrolled or illogical way during the 12 hours of the cooling off period.
vi.
What, on the defendant's evidence, proved to be the straw that broke the camel's back was the mere sight of Mr. Prickett at 4.55 on the Thursday morning. Mr. Prickett said nothing and did nothing apart from leave his home ... This sighting of the victim, on the defendant's evidence, caused the defendant to lose his self control, yet Mr. Prickett had done absolutely nothing at that point to trigger any response ... Indeed, the very fact of that meeting, and in circumstances where he was armed with a variety of weapons, was a meeting entirely of the defendant's own making.
vii.
... nor does a combination of evidence concerning both triggers together ... improve his position. That second trigger perhaps bringing into play the issue of the damaged tyres or the incidents at the worksite, the larking about and the inappropriate conduct ...
viii.
Finally, moving to the third issue ... I am satisfied so that I am sure that no jury could reasonably conclude that a reasonably tolerant and restrained man in the defendant's circumstances might have reacted in a similar way and accordingly the partial defence would fall at this hurdle too."
21.
The developed Grounds are first that the judge erred in assessing "sufficiency of evidence" by failing to give proper weight to the defendant's oral evidence and by going beyond the required assessment of whether the evidential test were met. In so doing, he usurped the jury's function and made a value judgment of the evidence as a whole.
22.
Next, there was sufficient evidence to leave to the jury that the killing resulted from loss of self control in accordance with section 54(1)(a). Next, the judge was wrong to withdraw the defence because the requirements of the qualifying trigger in section 54(1)(b) and normal degree of tolerance and self restraint in 54(1)(c) were also met.
23.
The legal framework
24.
Loss of control is considered by the authors of Smith and Hogan 13th Edition to mean a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning. The judge readily accepted that definition and so do we.
25.
Sections 54 and 55 of the Coroners and Justice Act 2009 ("the 2009 Act") read where relevant:
i.
"(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.
i.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
ii.
(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.
iii.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
iv.
(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.
v.
(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."
26.
Section 55 where relevant reads:
i.
"(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
ii.
(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D ...
iii.
(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.
iv.
(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).
v.
(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 ... "
27.
The evidence upon which a jury could reasonably conclude that the defence might apply on these facts came from the applicant’s interviews under caution and what he told the jury. The submission is that the jury could have found that he might incrementally have lost his ability to act in accord with considered judgment or a loss of normal powers of reasoning, leading to his ultimate snapping on sighting Mr Prickett. Examination of the circumstances, Mr Rees suggests, repays attention. On any view what happened was odd. A primary evidential feature generally supporting loss of control is, as here, that what happened was spectacularly out of character. The evidence as to the applicant was overwhelmingly positive. Consequently, what emerged was so wholly out of character as to portray a "kamikaze" type of behaviour to inflict very serious violence by a man who abandoned his home and his life as predictable consequences. That is said of itself to raise issues at least fit for a jury to consider about his ability to act in accord with considered judgment. The evidence is said strongly to suggest that in shooting the applicant had no realistic regard for avoiding suspicion. He must have known that he would, as he did, become the prime suspect. Everything about what he did that morning was known: the time of collection, it was a shooting in public in a residential area, colleagues would soon realise he was not arriving to collect them.
28.
Next, reliance is placed on his telling the police and the jury that he had lost control of himself. That without more is said to be sufficient to raise the issue in the section 54(5) sense that in reliance on section 54(6) a jury could reasonably conclude that the defence might apply. Taking interviews and evidence together, what was being described was a slow-burning process of building emotional tension and perhaps of disordered thinking, leading to the snapping point and absolute loss of control in the final moments.
29.
There is criticism of the silence in the judge's ruling as to the content of the interviews under caution. Mr Rees helpfully included in his written submissions a digest of relevant parts of the interviews under caution. It is not necessary for us fully to rehearse them here, save that we characterise them as indicating fairly and fully both questions generating answers and full answers.
30.
The defendant pointed out that his intention had been solely to pick up Mr Prickett and have another routine day but he could not "hack it any more", "could not focus". He explained he was going to go to Edinburgh, have a few drinks and then just live life in the wild until he died. He would use his zip gun to "top himself". When he pulled up he simply could not handle it any more, something snapped. He was so fearful he was not himself. He was not normally like that. He had never hurt anyone before. He could not think straight. It was lack of sleep, the threats were getting worse and the time was ticking. He felt trapped. He could not run anywhere. A good deal of his evidence we have already dealt with because it was recited into the judge's ruling.
31.
The developed argument is that the statutory language does not require evidence which in the opinion of the trial judge appears credible. Constitutionally an assessment of credibility is a matter for the jury:
Clinton
[2012] 1 Cr.App.R 26
. The judge must make a "commonsense judgment based on analysis of all the evidence": paragraph 26, adopted in
Dawes
[2013] 2 Cr.App.R 3
paragraph 50. It is conceded that a defence may be withdrawn from the jury where there is no evidence or none capable of establishing the elements of the defence. However, Mr Rees suggests that in a conflicting evidence case a choice necessarily has to be made between evidence, the judge fell into error in withdrawing the partial defence.
32.
To the extent that the evidence may be in dispute, the judge should recognise that a jury may accept evidence most favourable to the defendant and reject that most favourable to the Crown and so the judge must tailor a ruling accordingly. That is another way of saying that in discharging his responsibility the judge should not reject disputed evidence which the jury might choose to believe: adopted with approval in
Dawes
at paragraph 50. Accordingly, so this submission continues, the classic division of function requires a judicial evaluation to stop short of determining either credibility or quality. That is a matter for the jury. Mr Rees gave an example: In many homicides the evidence of, for example, self-defence or loss of control comes solely from a defendant. Any rule permitting a judge having evaluated his credibility and weighed it against other evidence to withdraw the issue would be dangerous.
33.
The balance of the submissions.
34.
The judge is said to have confused his duty to determine sufficiency of evidence with his own evaluation of credibility and/or weight that the jury might attach to the evidence of the defendant. In his ruling he wrote:
i.
"Any judgment as to sufficiency of evidence should not ignore questions of quality and weight. Trial judges frequently perform such exercises when faced, for example, with Galbraith submissions."
35.
The judge was quoting
Galbraith
as no more than an example and nothing more. There is nothing in this point.
36.
Next, the submission is that the judge erred in appearing to hold that the evidence of a defendant without more could not as a general rule amount to sufficient evidence of loss of control. Mr Rees criticised this quotation:
i.
"When asked at various times why he shot Mr. Prickett the defendant recited, as if reciting a mantra learnt from legal textbooks: 'I did it because I lost control. I could not control my actions...' The mere assertion by the defendant that the reason for the killing was loss of control does not in my opinion on its own amount to sufficient evidence upon which a jury could reasonably conclude that the defence might apply.
ii.
It does not on its own meet the sufficiency threshold. Were it to do so the purposes of Section 54(6) could be thwarted by the simple device of a defendant reciting that mantra. There has to be more."
37.
as a misinterpretation and consequently, reflected as it was in the summing-up, a fundamental misdirection. Given that the defendant's evidence and his interviews under caution were evidence in the case, it was not open to the judge, it is said, simply to discount his evidence as insufficient, unless he came to the additional but impermissible conclusion that it had necessarily to be rejected as not credible.
38.
Next, the Judge was criticised for weighing the credibility of the applicant's evidence against features in the case led for the Crown and in making findings of fact based upon a choice inter se. To take but one example, Mr Rees relies on the aspect of the ruling:
i.
"When the evidence of the circumstances of the shooting, the period leading up to it and immediately following it, are examined closely there is clear evidence in my opinion to support the conclusion that the defendant was acting in a reasoned, rational and perfectly controlled way."
39.
This, said Mr Rees, was for the jury not for the judge.
40.
Next, the judge was criticised for finding there was no qualifying trigger. Subsections (3), (4) or (5) of section 55 apply. Section 3 reads:
i.
"If D's loss of self-control was attributable to D's fear of serious violence from V against D ..."
41.
The judge is said to have failed to have sufficient regard to the fact that for the purposes of section 1(a) it matters not whether the loss of self-control were sudden. There was he argued evidence that the ultimate loss of control was attributable to such fear. He relied upon parts of the interview under caution when the applicant said:
i.
"For the past two weeks Anthony would be on the phone arranging with his friends an attack on someone for the right money. He would boast about how he knew people. He could have them done away with, never heard of again. He was insinuating more and more that I was the target. He was talking on the phone to his friends about how much. One night I was followed by his friends in a van, tailgating me and waving out the window pointing at me ... it was intimidation."
42.
Mr Rees contended that whether or not the defendant subjectively but genuinely felt fear of serious violence amounted to a question of whether there were a qualifying trigger and consequently it was a question for the jury. Paradoxically, he suggests, the judge accepted that the evidence provides "very powerful support for the conclusion that the defendant felt aggrieved by the conduct of Mr Prickett, who was on the defendant's evidence part of a campaign of intimidation".
43.
Finally, reasonableness. The judge is criticised as having usurped the function of the jury in finding that no reasonable one could conclude that a reasonably tolerant and restrained man in the defendant's circumstances might have reacted in a similar way. Any consideration of this must acknowledge the inherent paradox in the reasonableness test as, Mr Rees suggests, Lord Bingham pointed out in
Campbell
:
i.
"It is not altogether easy to imagine circumstances in which a reasonable man would strike a fatal blow with the necessary mental intention whatever the provocation."
44.
Flowing from that, the submission was that anyone who has lost control will act or over-react with a disproportionate response. The statutory test is not whether the defendant's conduct were reasonable or whether a reasonable person would similarly react, rather it is whether a reasonable person might similarly have reacted in matched circumstances. Consequently, the criticism is that the judge construed reasonableness too narrowly in limiting consideration to the circumstances at 0500 on the morning of the homicide without regard to the hinterland of threats and fear described by the defendant. It follows that he did not have regard to all the circumstances as subsection (3) required him to do.
45.
Discussion and conclusion.
46.
In our judgment, there are overwhelming difficulties in the way of these submissions. The factual backdrop is not helpful to the applicant. He armed himself with firearms (in the plural) and with what the Crown accurately described as a survival kit including a tent, spare clothing, passport, driving licence, cash, and other weapons and he did so some 12 hours before he drove to Mr Prickett's home, armed with a loaded shotgun and a loaded home-made pistol, shot him without warning and made good his escape. This bore every hallmark of a pre-planned, cold-blooded execution. His explanation that he was in fear of serious violence from Mr Prickett, who the night before had made a threat to kill him, must be seen in context. That context includes that the applicant went home and during the next 12 hours failed for example to seek help from the police or from his family or from his friends, save his father who was persuaded to loan him a shotgun. He then drove, alone, to Mr Prickett's home not, according to his evidence, intending to kill him, but shooting him at close range the moment Mr Pickett came out of his house. We remind ourselves of the words of the Lord Chief Justice in
Clinton
:
i.
"In reality, the greater the level of deliberation, the less likely it will be that the killing followed a true loss of self control."
47.
In our view, the 12-hour cooling off period, as the judge in his ruling labelled it, reflects exactly this analysis.
48.
The evidence that this was a planned execution is best described as overwhelming. Thus, the commonsense judgment based on an analysis of all the evidence (
Clinton
para 46)
49.
was inevitably as the judge described it.
50.
The judge ruled that there was insufficient evidence to leave the first component (section 54(1)(a)) to the jury and in our view correctly found that if any one of the three components is absent the partial defence fails. We would have taken the same route to a conclusion as did he. He out of an abundance of caution explained that the second and third components set out in section 54(1)(b) and (c) were also insufficient to establish the evidential burden. We agree with him both that that was unnecessary as a dispositive conclusion and that had one been essential his findings are supportable.
51.
Though this case pre-dated
Clinton
the way the judge set out his approach might suggest he had considered
Clinton
, so closely aligned is it to the reasoning there adopted. As to the first component, whether there is evidence of loss of control, sufficiency of evidence is bound to suggest more than minimum evidence to establish the facts. We struggle to see why it was impermissible for the judge to consider the quality and the weight of it, particularly given that he is adjured to analyse the whole of it, as
Dawes
sets out.
52.
Such analysis in our view could lead to but one conclusion. It is difficult to think of a clearer example of a
Clinton
"commonsense" judgment. The judge balanced the undisputed evidence against what was accurately described as no more than a bare assertion by the defendant "I lost control". His finding was plainly open to him and is unimpugnable.
53.
As to the objective test in section 54(1)(c), he was obliged to consider the sufficiency of evidence and ask himself whether the matter could be left to the jury once the evidential burden had been satisfied:
Clinton
paragraph 46. We would have adopted the same approach as the judge. On these facts, and in this context, the jury properly directed could not reasonably conclude that a man of Jewell’s age with a normal degree of tolerance and self-restraint and in the applicant's circumstances have reacted in the same or in a similar way.
54.
The argument that the judge fell into error by taking into account the quality and weight of the evidence and the applicant has not troubled us. Whether or not it were right to take this into account when considering the first two components, it certainly cannot have any direct bearing on the third. That task requires an objective assessment by the judge:
Dawes
paragraph 61.
55.
This judge was satisfied so that he was sure that no reasonable jury could conclude that a reasonably tolerant, restrained man in Jewell's circumstances might have reacted in a similar way. This, on the facts applying the legal framework and loyal to the authorities was a conclusion plainly open to him. In a cogent, lucid ruling the judge posed to himself all relevant questions. His conclusion is unimpeachable. Few more compelling evidential contexts are, to us at least, imaginable as establishing control over many hours preceding a shooting. If the statutory framework, read with
Clinton
and
Dawes
does not support the course this judge took, it is difficult to envisage circumstances in which it would.
56.
We are not persuaded that this conviction is unsafe and the referred application is rejected.
RULING ON LOSS OF CONTROL
1.
JUDGE BALL: The provisions of Section 54 to Section 56 of the Coroners and Justice Act 2009 govern the issue of the partial defence of loss of self-control which is raised in this case. By the provisions of Section 54(1) Mr. Jewell is not to be convicted of murder if (A) his actions in killing Mr. Prickett were the result of his loss of self-control and (B) his loss of self-control had a qualifying trigger and (C) a person of his age, sex and normal restraint in the circumstances of himself might have reacted in the same or a similar way.
2.
If sufficient evidence is adduced to raise an issue with respect to those three ingredients of the partial defence then the jury must assume that the defence is satisfied unless it is disproved by the Crown. That is provided for within Section 54(5).
3.
However, none of the above factors will avail the defendant if the jury were satisfied so they were sure that when the defendant killed Mr. Prickett he was acting in a considered desire for revenge. They are the provisions of Section 54(4).
4.
For the purposes of Subsection (5) to which I have referred above, sufficient evidence will have been adduced to raise the issue, that is the loss of self-control issue, 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. That is 54(6).
5.
Accordingly, I have examined the evidence in the case to see whether in my view a jury could conclude that each of the required elements of the partial defence might apply in the case.
6.
Firstly, however, and it is by way of an aside, I have examined the preliminary issue of whether the defendant was or, alternatively, might not have been acting in a considered desire for revenge. The Act provides no assistance as to the meaning of that expression so for these purposes I have taken it to mean that the partial defence would be excluded if it was proved that the defendant engaged in a premeditated attack motivated by a desire to redress or punish some perceived grievance.
7.
The evidence in the case provides very powerful support for the conclusion that the defendant felt aggrieved by the conduct of the victim who was, on the defendant's evidence, part of a campaign to intimidate and threaten him with extreme personal violence. The evidence further supports the almost inexorable conclusion that the defendant went to considerable trouble to plan and execute a lethal attack upon the victim. However, the issue of whether the killing was an act of revenge is not a matter that requires judicial resolution as Section 54(6) is confined to a consideration of the elements that give rise to the presumption in Section 54(5), namely the ingredients of whether the partial defence particularised within Subsection (1) are made out.
8.
The question of whether the killing was motivated by revenge falls exclusively within the province of the jury and in the event that loss of self-control is left to them as an issue then it would be for them, not me, to resolve. That being said, the evidence that might support a conclusion that this was a revenge attack is potentially relevant to a consideration of the issue of loss of self-control where it might support the view that the attack was premeditated.
9.
I turn now to the three ingredients of the partial defence. Firstly, is there evidence from which a jury could reasonably conclude that the defendant's acts, namely the two shots that he fired to kill Anthony Prickett, were the result of his loss of self-control? The Act provides no definition of the expression "loss of self-control" beyond indicating that it does not have to be sudden. That is in Subsection (2) of Section 54.
10.
Accordingly, I look to the long history of cases involving the common law defence of provocation for guidance as to the meaning of the expression. I remind myself that classically it is taken to mean that at the moment of the killing a defendant might be said to be subject to such a passion as to make him for the moment not master of his mind. Whilst not requiring actions to be frenzied at such a time, it is not sufficient if a defendant is merely acting out of anger, ill-temper or rage. Loss of control connotes a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning.
11.
When asked at various times why he shot Mr. Prickett the defendant recited, as if reciting a mantra learnt from legal textbooks: "I did it because I lost control. I could not control my actions. I could not think straight. My head was fucked up. It was like an injection in the head, an explosion in my head." The mere assertion by the defendant that the reason for the killing was loss of control does not in my opinion on its own amount to sufficient evidence upon which a jury could reasonably conclude that the defence might apply.
12.
It does not on its own meet the sufficiency threshold. Were it to do so the purposes of Section 54(6) could be thwarted by the simple device of a defendant reciting that mantra. There has to be more.
13.
Accordingly, I have examined the totality of the evidence both for its quality and its sufficiency. I do not accept Mr. Levett's submission that where subjective assertions are made by the defendant that I should not exercise my judgment upon them or their quality but leave such matters to the jury. I am directed by Section 54(6) to bring my opinion to bear upon the sufficiency of the evidence raised in connection with the issue. Any judgment as to sufficiency of evidence should not ignore questions of quality and weight. Trial judges frequently perform such exercises when faced, for example, with
Galbraith
submissions.
14.
In performing this task I have set myself what I consider to be the standard appropriate to best protect the defendant from potential injustice, namely, I will only conclude that the partial defence of loss of self-control shall not be available to him if I am satisfied so that I am sure that no jury, properly directed, could reasonably conclude that the defence might apply. When the evidence of the circumstances of the shooting, the period leading up to it and immediately following it, are examined closely there is clear evidence in my opinion to support the conclusion that the defendant was acting in a reasoned, rational and perfectly controlled way.
15.
Following the final alleged act of threat-come-intimidation by Mr. Prickett, those words when they parted the night before: "One more evening and you're dead," spoken not directly to him but into thin air, the defendant had 12 hours in which he was able to reflect and react. During that period he conducted himself in a perfectly logical and controlled manner. He returned home, showered, changed, he visited both parents, he went shopping, he drove himself between the various locations.
16.
At his father's he told him of his fears, twice apparently. He borrowed a shotgun and ammunition for that gun as well as ammunition for a second zip gun that he already had. He withdrew some £450 in cash in total from two machines. (I am leaving out of account the £20 for the Co-Op.) He packed a rucksack with a tent, clothing, a survival kit, and he put an assortment of weapons into his van. He then drove some eight miles to the victim's address, arriving just before 5.00 a.m. at the usual time, as if to collect him for work. He had with him the shotgun, loaded and with the safety catch off, according to his evidence.
17.
When Mr. Prickett left his house with his work tools to accept the lift the defendant got out of his van, took the shotgun out from behind him and, without a word being exchanged, fired twice into the body of Anthony Prickett from some four and then some two metres distant. No event occurred at the scene to explain why the defendant acted in that way. The history of the preceding 12 hours, which we might think of as a cooling off period, is entirely consistent with the defendant pursuing a considered and logical course of action directed ultimately to the purpose of shooting Mr. Prickett.
18.
His conduct immediately after the shooting -- leaving the scene, changing vehicles, fleeing to Scotland -- all indicate a man able to act coherently and sensibly, fully in control of his faculties; indeed, pursuing a plan.
19.
I am of the firm opinion, having regard to all of the evidence, that no jury properly directed could reasonably conclude on the evidence in this case that the defendant might have been acting through a loss of self-control. It follows from that that I find insufficient evidence has been adduced to raise the issue of the partial defence and it will not, therefore, be available to the defendant.
20.
As a consequence of that finding I need not address the remaining issues, namely the existence of a qualifying trigger or the possibility that a reasonable man in the defendant's circumstances might have reacted in a similar way.
21.
However, it may be helpful, in the event that this case falls to be considered elsewhere, if I do briefly address these other issues. I am of the view that there is no qualifying trigger here which might explain any loss of self-control. Whilst there is evidence from the defendant -- I note, however, unsupported by any other witness -- that he was the subject of fear and intimidation emanating in some oblique way from Mr. Prickett, who he knew was associated with friends of a violent criminal, reinforced by strange encounters with a scar-faced biker and an aggressive van driver, that this fear of violence of which the defendant spoke had not led him to conduct himself in an uncontrolled or illogical way during the 12 hours of the cooling off period.
22.
What, on the defendant's evidence, proved to be the straw that broke the camel's back was the mere sight of Mr. Prickett at 4.55 on the Thursday morning. Mr. Prickett said nothing and did nothing apart from leave his home ready to be driven to work. This sighting of the victim, on the defendant's evidence, caused the defendant to lose his self-control, yet Mr. Prickett had done absolutely nothing at that point to trigger any response from the defendant. Indeed, the very fact of that meeting, and in circumstances where he was armed with a variety of weapons, was a meeting entirely of the defendant's own making.
23.
I should say nor does a combination of evidence concerning both triggers together, in my view, improve his position. That second trigger perhaps bringing into play the issue of the damaged tyres or the incidents at the worksite, the larking about and the inappropriate conduct towards Michael Bulet Junior.
24.
Finally, moving to the third issue under loss of self-control, I am satisfied so that I am sure that no jury could reasonably conclude that a reasonably tolerant and restrained man in the defendant's circumstances might have reacted in a similar way and accordingly the partial defence would fall at this hurdle too. By reacting in the same or similar way I mean responding to the circumstances that existed in Park Road that morning by losing self-control and picking up and firing the loaded shotgun twice into the body of Mr. Prickett. | {"ConvCourtName":["Crown Court at Chelmsford"],"ConvictPleaDate":["2012-01-13"],"ConvictOffence":["Murder"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Chelmsford"],"Sentence":["Life imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[34],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[42],"VicJobOffence":["Employed"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Witness testimony","Defendant's admissions","Physical evidence (weapons, survival kit)","Circumstantial evidence"],"DefEvidTypeTrial":["Defendant's testimony","Interviews under caution"],"PreSentReport":[],"AggFactSent":["Premeditation","Use of firearm","Killing in public","Victim shot twice at close range","Attempted escape/fleeing jurisdiction"],"MitFactSent":["No previous violence","Positive character evidence","Out of character","Claimed fear and intimidation"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Judge erred in ruling insufficient evidence for partial defence of loss of control","Judge usurped jury's function by making value judgment on evidence","Judge failed to give proper weight to defendant's oral evidence","Judge wrongly withdrew the partial defence from the jury"],"SentGuideWhich":["Section 54 and 55 of the Coroners and Justice Act 2009","Clinton [2012] 1 Cr.App.R 26","Dawes [2013] 2 Cr.App.R 3"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Overwhelming evidence of premeditation and planning","12-hour cooling off period inconsistent with loss of control","No sufficient evidence for loss of control partial defence","Judge's approach consistent with legal authorities","No reasonable jury could conclude a person of normal tolerance would react similarly"]} |
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[2024] EWCA Crim 399
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202300256/A3
Royal Courts of Justice
Strand
London
WC2A 2LL
Friday 26 January 2024
Before:
LORD JUSTICE DINGEMANS
MR JUSTICE GRIFFITHS
HER HONOUR JUDGE ANGELA RAFFERTY KC
(Sitting as a Judge of the CACD)
REX
v
JOHN PETER NOBLE
__________
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 R DAVIES
appeared on behalf of the Appellant.
_________
J U D G M E N T
1.
MR JUSTICE GRIFFITHS
: This is an appeal against sentence. On 19 July 2021, the Honorary Recorder of York (HHJ Morris) passed an extended sentence on the appellant of 14 years, made up of a custodial term of 10 years and an extended licence period of 4 years. The appeal is against the custodial element only.
2.
The appellant was 36 years old. The sentence was for nine sexual offences and included activation of part of a previous suspended sentence for four sexual offences. The sentencing on all nine of the current offences and also the activated suspended sentence on the previous four matters was concurrent.
3.
The nine offences being sentenced for the first time were eight offences of arranging the commission of a child sex offence, contrary to section 14 of the Sexual Offences Act 2023, and one offence of attempting to breach a sexual harm prevention order, contrary to section 1 of the Criminal Attempts Act 1981.
4.
The four offences in respect of which a previously suspended sentence was activated were attempting to engage in sexual communication with a child aged 12, attempting to engage in sexual communication with a child aged 14, attempting to cause or incite a girl aged 12 to engage in sexual activity and attempting to cause or incite a girl aged 14 to engage in sexual activity. For each of these four offences the original sentence of the Recorder of York had been 24 months, suspended for 24 months, concurrent.
5.
Although it is clear from the sentencing remarks that the judge’s final sentence was an extended sentence of 14 years, including a custodial term specified in the court record as 10 years, the way in which this was distributed between the nine current offences and the activated sentences on the other four matters is less clear from those remarks alone. We will come back to that because it is possible to clarify the details by looking at other materials and it is desirable that the record should be clear and correct about the individual sentences as well as in respect of the overall sentence to be served.
6.
The facts of the original four offences were that the appellant had sexual conversations by telephone with what he believed to be a 12-year-old girl, although she was in fact a paedophile hunter group decoy of full age. He asked her to engage in sexual activity with him, and on herself. These were the offences of attempting to engage in sexual communication with a child aged 12 and attempting to cause or incite a girl aged 12 to engage in sexual activity. A police investigation then found chats with another decoy purporting to be a 14-year-old girl, and these formed the basis for the offences of attempting to engage in sexual communication with a child aged 14 and attempting to cause or incite a girl aged 14 to engage in sexual activity. There were 10 category C images on a phone that was seized at the time, which gave rise to two charges of making and distributing indecent images of the child. No separate penalty was imposed for the image offences. The suspended sentence of 2 years suspended for 2 years was passed on the other matters on 19 September 2019. A sexual harm prevention order was also imposed until further order.
7.
On 17 March 2021, the appellant began to have communications with a person who presented herself as a single mother called “Louise” who had two daughters aged 4 years and 4 months old respectively. She was in fact an undercover law enforcement officer. The contact began on a social networking app called “Similar World”. The officer followed up a message from the appellant in a group about incest, asking about mothers sexually involved with their daughters. She and the appellant exchanged numbers and began to message on WhatsApp and then by telephone call. The appellant referred to his sexual harm prevention order. The appellant showed enthusiasm for what Louise told him about being a mother sexually involved with her own young daughters. They began to make plans about what the appellant hoped to do with Louise and her fictitious 4-year-old daughter at his flat in Ripon.
8.
The plans were developed over the period 17 March to 1 April. They included plans for the appellant to have vaginal sexual intercourse with the 4-year-old (two charges, namely offences 1 and 2); plans for the appellant to perform oral sex upon her (offence 3); the appellant causing or intending to cause Louise to make the 4-year-old masturbate on the journey to meet the appellant (offence 4); the appellant himself intending to masturbate over the child and ejaculate on her (offence 5); the appellant intending to teach Louise to teach the 4-year-old how to masturbate the appellant’s penis with her hand (offence 6); the appellant intending Louise to make the child urinate into a glass for the appellant’s sexual gratification (offence 7) and the appellant intending to use a vibrator to penetrate the 4-year-old (offence 8).
9.
The plans for the encounter were concrete and fully developed. They included discussion of parking arrangements, discussion about when the visit to the appellant’s flat could take place so that abuse could be carried out there, the walking distance, the carrying of belongings to and from the car, and other practical matters. As a result, the appellant went to Ripon Marketplace on 30 April; to meet Louise, and to put the plans into action with the 4-year-old. He was then arrested. He had with him three pouches of baby food and a tube of sexual lubricant that he had just bought from Boots. He gave a “no comment” interview in relation to the offending but acknowledged his address, his mobile phone and his account on Similar World. He denied a sexual interest in children.
10.
The plan was for Louise and her daughter to stay overnight with the appellant, and this was a breach of the sexual harm prevention order (which prohibited staying with a child under 18 without the consent of Social Services).
11.
The appellant’s previous convictions, when sentenced for the second time by the Honorary Recorder of York, were those we have already described. He had no others.
12.
A pre-sentence report, prepared before the sentence passed in 2019, noted that the appellant had accessed the “Stop it now” service and completed up to section 17. He was living with a long-term partner who had warned him against his online sexual activity and played no part in it. He referred to depression and some suicidal ideation. He minimised his offending and did not appear to understand its seriousness. That earlier report recommended that, if any custodial sentence were to be suspended, the appellant should be required to complete a well-established accredited programme which helped sex offenders avoid future offending.
13.
The pre-sentence report prepared for the sentencing in 2021 showed that the appellant had completed this accredited programme, but he was again minimising his sexual offending and he was self-centred and self-exculpatory in his explanations. He appeared to be manipulative. He was inclined to grooming and to the evasion of legal restrictions upon him. He denied being a danger to children. His latest offending was an escalation of what he had done before, both in terms of the activity planned and the exceptionally young age of the child he believed to be real.
14.
The appellant pleaded guilty at the earliest opportunity and was therefore entitled to a full credit of one-third against any custodial sentence in respect of the matters as to which he pleaded guilty.
15.
The prosecution submitted that, in the case of a real child, the four offences involving penetrative activity fell in category 1A of the guideline because of the intended penetration, the significant degree of planning, the significant disparity of age and the appellant acting with another. This produced a guideline starting point of 5 years, in a range of 4 to 10 years, for each offence. The guideline also makes provision for adjustment to be made in respect of the absence of a real child. The judge agreed with that analysis of the guideline. The prosecution submitted that the three offences involving masturbation fell into guideline category 2A because of the planned non-penetrative touching of naked genitalia, the significant degree of planning, the disparity of age, and acting with another. The guideline starting point would therefore be 3 years, in a range of 2 to 6 years, for each of those offences. The prosecution submitted that in the case of the urination offence, the guideline category would be 3A, because it did not involve penetration or touching of naked genitalia, but still involved significant planning, disparity of age and the involvement of another adult. The guideline starting point for that offence was therefore 26 weeks, in a range of high-level community order to 3 years.
16.
Aggravating features were: the breach of suspended sentences for similar offending, previous convictions, and the planned ejaculation, which was specifically referenced in the conversations.
17.
The prosecution submitted that attempted breach of the sexual harm prevention order fell in category 1A of the relevant guideline, as a very serious breach eliciting very serious harm or distress had been it been the completed offence.
18.
Passing sentence, the Recorder of York made a finding of
dangerousness
which is not challenged. He indicated that the sentence would be reduced because there was no real child.
19.
He then said:
“For the proposed contact offences, had, as I have already said, this child been real...then the trial figure would have been about 11 or 12 years and would have required consecutive sentences in amongst those charges. As there was no such child, I will say the offending is worth ten years. That reduces it to six years eight months for a plea and six and a half for totality and COVID...
The suspended sentence will be activated but reduced because I am incorporating it into an extended sentence, which means you will serve two-thirds of it rather than the half which you would have served if it was not incorporated into the extended sentence, and it also reflects totality. So I am reducing that to 18 months. So that will be 18 months concurrent for the suspended sentence.
The breach of the sexual harm prevention order is of the most serious sort. It is worth four years after a trial. I reduce that, and this again will be concurrent, to 32 months, and I reduce it for totality and for the short-term COVID problems to two years, but that would be consecutive to the suspended sentence had I been not incorporating it in the extended sentence.”
20.
The judge indicated that this produced a total extended sentence of 15 years but corrected this to 14 years when it was pointed out to him that 14 years was the maximum sentence for the lead contact offences.
21.
It is possible from the court record and the relevant legislation to understand in more detail the individual terms which flowed from these remarks, and we state these as follows.
i.
For each of the eight offences of arranging the commission of a child sex offence, contrary to section 14, an extended sentence of 14 years (a custodial term of 10 years and an extended licence period of 4 years).
ii.
For attempting to breach a sexual harm prevention order, 2 years’ imprisonment concurrent.
iii.
The suspended sentences of 2 years were activated with a reduced term of 18 months’ imprisonment, concurrent on each offence and to the other sentencing.
iv.
A total sentence, therefore, of 14 years, comprised of a custodial term of 10 years and an extended licence period of 4 years.
22.
A further sexual harm prevention order was imposed and the police notification requirements and inclusion on the Disclosure and Barring Service list were also set out.
23.
The imposition of a single extended sentence of 14 years to reflect the totality of offending in this case was permissible (see
R v Pinnell & Joyce
[2010] EWCA Crim 2848, at paragraphs 20-22). No challenge to that approach has been suggested in this appeal. It was a lawful sentence, in the way that we have understood and stated it. So far as necessary, the record sheet should be amended to reflect its component parts correctly.
24.
We have the benefit of written submissions from Mr Magarian KC and oral submissions from Mr Davies. We are very grateful to both counsel for their submissions. We spent a good deal of time reading the background papers and considering the written submissions and we were therefore particularly impressed by the brevity, relevance and cogency of the oral submissions which were presented to us by Mr Davies of counsel. We are very grateful to him for the assistance which he has given us this morning.
25.
The grounds of appeal are that the custodial term of 10 years’ imprisonment was manifestly excessive on the following basis.
26.
First, 10 years (it is said) was not justified for offence 1. As a category 1A offence, the starting point in the case of a real child was 5 years, in a range of 4 to 10 years, aggravated by breach of the suspended sentences. It is argued that the correct sentence, in the absence of contact with the real child, was about 5 years which, if the suspended sentences of 2 years were activated in full, would result in a total of 7 years’ custody, not 10. An alternative way in which it is put in argument is that, if the starting point of 5 years were treated as being subject to upward movement because of the aggravating factors, a sentence of about 7 years’ custody, not 10, should have been the end point.
27.
Second, it is suggested that the breaches of court order and of the sexual harm prevention order may have been double counted if the terms were treated consecutively. It is argued that, if the intended sentence for the substantive offending was 6½ years (based on the end point in the sentencing remarks, after reductions for the absence of a real child, totality, Covid and credit for plea), and if it was intended to add 18 months consecutively for the activated suspended sentences, then the total custodial term would have been 8 years not 10 years.
28.
Third, it is argued that the reduction on account of there being no real child, from “about 11 or 12 years”, to 10 years, was not enough.
29.
The question for us is whether the sentence was manifestly excessive.
30.
The most recent sexual offences were serious, and some of them attracted, it is conceded, a starting point of 5 years each. However, there were eight of them and, even applying the principle of totality, and the fact that they were against a single proposed victim over the course of a single visit, they did not overlap. Each one involved planning of a serious, separate, criminal sexual act in relation to a very young child.
31.
The case of
R v Reed
[2021] EWCA Crim 572, did not specify the reductions to be applied for the absence of a real child, although it made it clear that such a reduction would normally be appropriate. Nor does the guideline specify a specific proportion, the guideline now reflecting the reasoning in
Reed
. The cases are necessarily fact specific. However, the reduction will be less in a case such as the present, where the appellant was, in his own mind, only stopped by arrest at the place where he had arranged to meet the child and her mother and take her back to his flat for sexual abuse.
32.
The Sentencing Guideline says, in relation to “arranging or facilitating the commission of a child sexual offence” under section 14:
“No sexual activity need take place for a section 14 offence to be committed (including in instances where no child victim exists). In such cases the court should identify the category of harm on the basis of the sexual activity the offender intended, and then apply a downward adjustment at step two to reflect the fact that no or lesser harm actually resulted.
The extent of this adjustment will be specific to the facts of the case. In cases where an offender is only prevented by the police or others from conducting the intended sexual activity at a late stage, or where a child victim does not exist and, but for this fact, the offender would have carried out the intended sexual activity, only a very small reduction within the category range will usually be appropriate.”
33.
The judge indicated a reduction of 1 or 2 years, from 12 or 11 years, in the passage of his sentencing remarks which we have quoted.
34.
The judge’s notional term of 12 or 11 years included all the criminality, because he was sentencing concurrently for everything. The final custodial sentence of 10 years, after credit for plea, was to reflect: (first), four child sex offences with starting points of 5 years each, before taking account of aggravating features, mitigating features and the absence of a real child; (second), three child sex offences with starting points of 3 years each, before aggravating and mitigating features and the absence of a real child; (third). the urination offence, for which the starting point was 6 months before adjustment; (fourth), the activation of a full 18 months of the suspended sentences in respect of the earlier offending; and (fifth), a penalty for attempted breach of the sexual harm prevention order, for which the guideline starting point was 3 years, in a range of 2 years and 4 years 6 months for the completed offence.
35.
There was little or no mitigation in this case apart from the credit for plea, although the judge did mention the effects of Covid.
36.
There were unusually strong aggravating features, not least the escalation in offending, after completion of intervention programmes which had given the appellant a chance to reform. Not only had he failed to reform, but he had also got very much worse, and he had offended during the currency of the suspension.
37.
We recognise that, even before credit for plea, very substantial reductions fell to be made in respect of the starting points for the nine current offences by reason of the offences not being completed with a real child and, much more so, to give effect to the principle of totality when arriving at a final sentence reflecting all the offending.
38.
However, the judge’s final custodial term of 10 years, after credit for plea, was equivalent to 8 years 6 months without the activated 18-month suspended sentences, which did not fall to be reduced by credit for plea. Eight years 6 months was equivalent to 12 years 9 months before credit for plea.
39.
In view of the multiple offences and the applicable starting points, 12 years 9 months was, on any view, a very substantial reduction indeed for the absence of a real child and totality. The judge’s concurrent sentencing to a total custodial term of 10 years, after credit for plea, had to be just and proportionate to the offending as a whole. We are satisfied that the sentence easily passed that test, and we are not persuaded that the sentence was manifestly excessive.
40.
In deference to the submissions of Mr Davies, we observe that, if the judge had taken 11 or 12 years for the child sexual offences, and then reduced it to 10 years as he indicated in view of the absence of a real child, applied full credit for the early guilty plea, coming to a figure of 6½ years or a little more, and then taken account of a potential 2-year sentence for attempted breach of a sexual harm prevention order, with the addition of the 18 months which it fell to be included by way of activation of the suspended sentence, he would have reached a figure which might have been a little over 10 years, which is in the area being suggested to us by Mr Davies. That is not however, we think, the correct way of approaching this sentence. We suggest that the analysis that we have applied is the better route to assessing whether this sentence was manifestly excessive and also, and in particular, whether it was just and proportionate to the offending as a whole.
41.
We do not consider it to be manifestly excessive however it is analysed. Nor do we consider it to be other than just and proportionate to the offending as a whole. The appeal is therefore dismissed. But the record will be amended, so far as necessary, in order to reflect the judge’s sentences on the individual offences as we have analysed them.
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Email: [email protected] | {"ConvCourtName":["Crown Court at York"],"ConvictPleaDate":["2021-07-19"],"ConvictOffence":["Arranging the commission of a child sex offence (8 counts, s.14 Sexual Offences Act 2023)","Attempting to breach a sexual harm prevention order (s.1 Criminal Attempts Act 1981)","Attempting to engage in sexual communication with a child aged 12","Attempting to engage in sexual communication with a child aged 14","Attempting to cause or incite a girl aged 12 to engage in sexual activity","Attempting to cause or incite a girl aged 14 to engage in sexual activity"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at earliest opportunity"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at York"],"Sentence":["Extended sentence of 14 years (10 years custody, 4 years extended licence) for each of the eight arranging offences","2 years' imprisonment concurrent for attempted breach of sexual harm prevention order","18 months' imprisonment concurrent for each of the four activated suspended sentence offences"],"SentServe":["Concurrent"],"WhatAncillary":["Sexual harm prevention order","Police notification requirements","Inclusion on Disclosure and Barring Service list"],"OffSex":["All Male"],"OffAgeOffence":[36],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1 (fictitious child, decoy)"],"VicSex":["All Female"],"VicAgeOffence":[4],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Undercover law enforcement officer decoy communications","Paedophile hunter group decoy communications","Seized phone evidence"],"DefEvidTypeTrial":["No comment interview","Denial of sexual interest in children"],"PreSentReport":["High risk of harm"],"AggFactSent":["Breach of suspended sentences for similar offending","Previous convictions","Planned ejaculation","Escalation in offending after intervention programmes","Offending during currency of suspension"],"MitFactSent":["Credit for early guilty plea","Effects of Covid"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Custodial term of 10 years was manifestly excessive","Double counting of breaches of court order and sexual harm prevention order","Reduction for absence of real child was insufficient"],"SentGuideWhich":["Sentencing Council Guideline for arranging or facilitating the commission of a child sexual offence (s.14)","R v Reed [2021] EWCA Crim 572","R v Pinnell & Joyce [2010] EWCA Crim 2848"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's concurrent sentencing to a total custodial term of 10 years, after credit for plea, was just and proportionate to the offending as a whole","Very substantial reductions made for absence of a real child and totality","Unusually strong aggravating features","Little or no mitigation apart from credit for plea"]} |
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 202300010/A5
[2023] EWCA Crim 646
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 24 May 2023
Before:
LORD JUSTICE COULSON
MRS JUSTICE FARBEY DBE
MR JUSTICE CONSTABLE
REX
V
MARK JOHN SHERGOLD
__________
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 A DAVIS
appeared on behalf of the Applicant.
_________
J U D G M E N T
LORD JUSTICE COULSON:
Introduction
1.
The applicant is now 46. On 27 September 2021, in the Crown Court at Newcastle-upon-Tyne, the applicant was convicted of one count of conspiracy to supply Class A drugs (cocaine) and two counts of possessing criminal property. On 9 December 2022 he was sentenced by the trial judge (HHJ Mallett) to 15 years' imprisonment for the drugs conspiracy with two short concurrent terms on two counts of possessing criminal property. His two co-conspirators, Cairns and Waterhouse, both pleaded guilty to the conspiracy charge and were sentenced to shorter periods of imprisonment at the same time.
2.
The application for permission to appeal against that sentence was refused by the single judge. It was renewed to the Full Court, although there was a delay of 7 days in making that application. In the circumstances that are explained in the papers, and in particular due to the problems with gaining access to the prison where the applicant was held following his conviction, we grant the necessary short extension of time.
The Facts
3.
This was a sophisticated cocaine conspiracy: a county lines operation. The indictment identified a period between 18 October 2018 and 15 January 2019. The investigation included covert surveillance, telephone and forensic evidence.
4.
The applicant was, on any view, a key player in the conspiracy. Particular incidents which featured in the evidence included the following:
(a)
On 19 October 2018 the applicant was seen to collect Cairns from his home and take him to another address where Cairns handed over a suspicious package to another individual.
(b)
On 27 October 2018 Waterhouse travelled from Oldham to Sunderland, where he met Cairns and delivered a package. Waterhouse was later seen to collect a package from the boot of the car driven by the applicant, and it transpired that that bag contained cash.
(c)
On 11 January 2019, Cairns was observed in a parked vehicle with its lights switched off. The applicant pulled up at speed in a white Audi and entered the passenger seat of Cairns' car for a few minutes before departing in his own car.
(d)
On 14 January 2019 Waterhouse travelled to the northeast where he made a delivery to Cairns and was later seen making a further exchange of cash with the applicant. On that occasion Waterhouse was stopped by police whilst driving south on the A1 and found with 2 kilograms of cocaine and a bag with £16,000 in cash. Cairns was found on that day with almost 4 kilograms of cocaine at his home in Sunderland. In addition, a small additional quantity of cocaine and £2,000 in cash was found at the applicant's home also in Sunderland. He had £800 in cash on his person and there were two packages of cash totalling over £2,500 at his mother's address. The various amounts of cash gave rise to counts 2 and 3, the counts of possessing criminal property.
The Sentencing Exercise
5.
When she came to sentence the applicant, Cairns and Waterhouse, the judge had the benefit of having presided over the trial of the applicant. The knowledge and insight thus acquired inform her sentencing remarks. She concluded that, on the evidence, the applicant had played a
leading role
in the conspiracy. In particular, she said:
"To return to the conspiracy more directly, and the relative sophistication of it, Shergold's role is demonstrated by the fact that, for example, you used a number of different vehicles, at least four, including hire cars, and I do find that that was to seek to evade detection, and that money was also passed through accounts. A witness was called, in the jury's opinion and mine, to give false evidence about this. Six kilos of cocaine was recovered with a wholesale value of approximately £200,000, and that it must be noted was the quantity of drugs recovered only on the single day that the defendants were arrested.
Mark Shergold's lifestyle was, in my view, indicative of an ability to fund a lavish lifestyle, without any legitimate income being disclosed to HMRC. Equally importantly, during the course of the trial I had a good opportunity to form a view on Mark Shergold's character and his business methods. Both Cairns and Waterhouse had made admissions in interview that were relatively consistent with their basis of plea...
Significant role would have a starting point of 10 years and range of nine to 12, a lesser role a starting point of seven years and range of six to nine. I do sentence both Waterhouse and Cairns on the basis that they fall within the lesser role. However, I do think that Cairns' role was significantly further up that range than that of Waterhouse. I find that Shergold was directing this operation with a substantial influence on others, a close link to the original source and an expectation of substantial financial gain, as well as the use of some business, albeit not a legitimate one, as cover. There are some significant role indicators as well potentially, a management function, or significant rather than substantial...financial advantage, and it could be argued some awareness or understanding of the scale of the operation. But, my conclusion is that this is a leading role, and it was also clear from the evidence of Shergold that, in my view, he would not have been accepting instruction, or direction, from anybody else; certainly not from either of his co-accused."
6.
By reference to the Sentencing Guidelines, the judge found that this was a category 1 offence because it involved 6 kilograms of cocaine. For a
leading role
in a category 1 conspiracy, the recommended starting point is 14 years' custody with a category range of 12 to 16 years' custody. The judge then identified a number of aggravating factors in the applicant's case. He had 22 convictions for 60 offences. These included three separate drug offences and a number of convictions for violence including robbery. At the time of his involvement in this conspiracy the applicant, although released from his last period of custody, was still subject to supervision.
7.
In those circumstances the judge took account of the aggravating and mitigating factors and made a small increase from the recommended starting point of 14 years to arrive at her term of 15 years' custody. There was, of course, no credit for a guilty plea.
The Grounds of Appeal
8.
There are, on analysis, three grounds of appeal. The first is that the judge was wrong to find that the applicant had played a
leading role
; the second is that the judge failed to give any or any adequate weight to the applicant's personal mitigation; the third was that the sentence was disproportionate to that imposed on Cairns. We deal with those three points in that order.
Ground 1: Leading Role
9.
During the course of his clear and concise submissions this morning, Mr Davis made the point that, whilst the judge may have been entitled to conclude that this was category 1, the largest amounts of cocaine were not found in the applicant's actual possession. That is not, in our view, a good point. This was a conspiracy, so the sentencing judge has to have regard to the amount of drugs seized overall. Furthermore, as the judge said, this was a conspiracy where 6 kilograms of cocaine were found on just one day. Accordingly, in our view, this was plainly and obviously a county lines conspiracy that fell within category 1.
10.
So we turn to the question of the
leading role.
Although, he has endeavoured to discharge the burden with the skill that we have mentioned, Mr Davis faced an almost impossible task in seeking to persuade this court to replace the assessment of the trial judge with one of our own, in circumstances where we have not heard the evidence. It has been said many times that it will only be in the most exceptional cases that this Court will take such a course. We can never assess the full evidence and we can never gain great assistance from the sort of ‘island hopping’ through isolated elements of the evidence which inevitably Mr Davis was obliged to undertake.
11.
All that said, in this case we are in no doubt that, not only did the judge make an attribution that she was quite entitled to make but, it seems to us, she made the only attribution possible in all the circumstances. The Sentencing Guidelines say that "one or more of the listed characteristics may demonstrate an offender's role". Amongst the characteristics which may demonstrate a
leading role
are that (a) the offender has substantial links and influence on others in a chain; (b) the offender had an expectation of substantial financial advantage; and (c) the offender used business as a cover.
12.
On the evidence, the applicant displayed each of those three separate characteristics, let alone just one. It was plain from the evidence that the applicant had substantial links to and influence on others in the chain. He was the organiser who controlled Cairns and Waterhouse. The evidence was that they took their instructions from him. If the applicant was acting on the orders of others, he did not say so and he did not identify who those others might be. Indeed, on the contrary, the judge found that the applicant was the type of man who would not have accepted instructions or directions from anyone. Secondly, the applicant not only had expectations of substantial financial advantage, but the large amounts of cash referred to in the evidence and recovered on the day of the arrests made clear that those expectations were bearing fruit.
13.
Thirdly, as the judge expressly found, the applicant used his business as a cover for his drug operations. The fact that that business too was illegitimate is nothing to the point. The applicant had called evidence as to that business. He said it was providing security to pubs and clubs, as well as unofficial debt collecting and protection services for local businesses. None of the income allegedly raised in this way had been declared to HMRC. The judge was quite entitled to conclude that that sort of cash heavy business was a cover for his drug dealing and the profits thereby made. In the passage that we have cited, she made express reference to, amongst other things, the number of different vehicles used and the money being hidden in various accounts.
14.
Finally on this point, Mr Davis made the point this morning that some of the elements of a
significant role
were also apparent. That may be right. In our experience, that is almost always the way in sophisticated drugs conspiracies where the sentencing judge cannot be satisfied that everyone involved in the conspiracy is before the court for sentencing purposes. Accordingly, if it is a case where some of the
leading role
characteristics and some of the
significant role
characteristics are both made out, then it is a balancing exercise for the judge to decide how that balance is best resolved on the facts of the case. That therefore brings us full circle back to where we started: that this was an exercise which this judge was in a unique position to undertake, and we can find nothing wrong with the way in which she went about that task.
15.
For those reasons therefore, we consider that the attribution of a
leading role
to the applicant was justified, and we therefore reject the first ground of appeal.
Ground 2: Mitigation
16.
The suggestion is that the judge ignored any mitigation on the part of the applicant. That is wrong as a matter of fact because the judge spent some time in her sentencing remarks setting out the detail of a number of mitigating factors. They are set out on page 5 of the transcript. It is unnecessary to read those into this judgment. Those factors included the delay and the applicant's personal circumstances. There were also references from, amongst others, prison officers.
17.
Dealing with the delay first, that fell into two periods. The first was the delay up to the trial in September 2021. That delay may have been partly due to the pandemic, although even without it, the applicant's trial, having been arrested in 2019, may not have taken place until late 2020 or early 2021 in any event. So the pandemic-related delay was at most modest, and it arose out of the applicant’s decision to contest the trial in any event.
18.
The second delay between conviction and sentence were due to issues as to his co-defendants’ basis of plea, but of course during that period the applicant was in custody and that counted towards his sentence. It is therefore understandable that the delays themselves cannot be said to have had any specific impact on the applicant. Indeed, in the earlier part of the delay, that is to say prior to September 2021, he was on home detention curfew and, in view of a number of the unhappy events that occurred during that period, it was much better for him that he was there rather than being in custody.
19.
As to the personal mitigating factors, the judge properly acknowledged those. But in her calculations, she concluded that they were outweighed, albeit slightly, by the aggravating factors. The aggravating factors included, not only the relevant previous convictions, but also the fact that the applicant had played a
leading role
in this sophisticated conspiracy at a time when he had just been released from prison and was therefore under post-custody supervision. In our view, that was a highly significant aggravating factor.
20.
In those circumstances therefore, it seems to us that the judge was entitled to conclude that the aggravating factors just outweighed the mitigating factors, and therefore was entitled to make a small uplift from 14 years to 15 years in the sentence she imposed. The 15 year term years was, of course, still within the recommended range set out in the Sentencing Guidelines.
Ground 3; Disparity with Cairns
21.
We have considered this ground carefully, but we consider that there is nothing in it. It is always difficult to sustain a disparity argument, because an applicant or appellant needs to demonstrate, not only that the offending and the personal circumstances are comparable, but also that the disparity is such that an informed observer would conclude that the two different sentences meant that something had gone wrong with the criminal justice system. On our analysis neither of those factors is made out here.
22.
In Cairns' case, his culpability was significantly less than that of the applicant. The judge concluded that he played a
lesser role
. His basis of plea on which he was sentenced demonstrated that he had been involved in the conspiracy because he had accrued a drug debt due to an addiction to amphetamine, and he had acted as a courier and warehouseman in order to pay off that debt. He had no previous convictions and he had pleaded guilty.
23.
Accordingly, the respective offending and situation of Cairns, on the one hand, and the applicant, on the other, simply cannot be sensibly compared. Their sentencing exercises were therefore entirely different. A significant disparity in their sentences was not only understandable but entirely justified. An informed observer would not consider, when comparing those two sentences, that anything had gone wrong with the administration of justice.
24.
In those circumstances therefore, although we are grateful to Mr Davis for his clear submissions this morning for the reasons that we have given, the appeal against sentence must be 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":[""],"ConvictOffence":["Conspiracy to supply Class A drugs (cocaine)","Possessing criminal property"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Newcastle-upon-Tyne"],"Sentence":["15 years' imprisonment for conspiracy to supply Class A drugs (cocaine)","Two short concurrent terms for possessing criminal property"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Covert surveillance","Telephone evidence","Forensic evidence","Cash and drugs recovered"],"DefEvidTypeTrial":["Offender denies offence","Called witness to give evidence about business"],"PreSentReport":[],"AggFactSent":["22 convictions for 60 offences including three drug offences and convictions for violence including robbery","Offence committed while under post-custody supervision","Leading role in a sophisticated conspiracy"],"MitFactSent":["Delay in proceedings","Personal circumstances","References from prison officers"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge was wrong to find leading role","Judge failed to give adequate weight to personal mitigation","Sentence disproportionate to that imposed on co-defendant"],"SentGuideWhich":["Sentencing Guidelines for drug offences (category 1, leading role)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Attribution of leading role was justified","Judge properly considered and balanced aggravating and mitigating factors","Disparity with co-defendant justified due to different roles, previous convictions, and plea"]} |
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.
No. 202002231 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2021] EWCA Crim 438
Royal Courts of Justice
Friday, 5 March 2021
Before:
LADY JUSTICE CARR
MR JUSTICE WILLIAM DAVIS
MR JUSTICE CALVER
REGINA
V
RAFFAELE ESPOSITO
__________
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]
_________
MS F. ARSHAD
appeared on behalf of the Appellant.
MR P. JARVIS
appeared on behalf of the Respondent.
________
J U D G M E N T
LADY JUSTICE CARR:
Introduction
1
On 20 December 2002 in the Crown Court at Liverpool before Royce J ("the Judge") the appellant, then aged 26 and now aged 44, was convicted of two counts of murder alongside his co-accused Sean Jackman (“Jackman”). Both were sentenced to life imprisonment.
2
In January 2003 the Judge reported to the Home Secretary that in his view the minimum term to be served before the appellant was eligible to apply for release should be set at 19 years. No term was in fact set by the Home Secretary. Rather, the appellant's case was referred to the High Court for the minimum term to be set pursuant to s.276 and para.6 of Sch.22 of the Criminal Justice Act 2003 ("Sch.22”) (“the 2003 Act"). On
18 October 2007 the Judge specified that the minimum term should be 19 years (less five months and 25 days) to reflect the period spent on remand.
3
The appellant now appeals against the minimum term pursuant to para.14 of Sch.22 by leave of the Single Judge who also granted the necessary extension of time.
4
The basis of the appeal is that the appellant, being a Sch.22 transitional case prisoner, has shown exceptional progress in his life sentence such as to merit a reduction in the minimum term. It engages the unusual review jurisdiction said to exist (as identified in
R v Gill
[2011] EWCA Crim 2794
("
Gill
")) in relation to those given a mandatory sentence of life imprisonment before the implementation of the 2003 Act. This appeal has been expedited as the minimum term is about to expire in June of this year.
5
For the purpose of resolving the issues before us, we have had the benefit of able written and oral submissions from Ms Arshad for appellant and Mr Jarvis for the respondent.
The Facts
6
On the evening of 18 June 2002 Francis Perry (“Perry”) and Paul Hagan (“Hagan”) were staying with James McElhenny, a friend of the appellant, at an address in Derby Road. The two men went to a nightclub where Perry and Hagan chatted with the appellant's sister and girlfriend. Their behaviour is said to have angered the appellant. Shortly before 2.00 a.m. the appellant told his girlfriend to accompany Perry and Hagan in a taxi back to Derby Road. The appellant recruited Jackman, who worked as a doorman at a nightclub in Southport and was a close friend of his, to help him attack Perry and Hagan.
7
When the appellant and Jackman arrived at Derby Road, Perry and Hagan were in a drunken and defenceless state. The appellant and Jackman subjected them to an attack of the most extreme brutality, involving the use of a baseball bat. A third man, Joseph Sammon (“Sammon”), arrived at a stage when Hagan and Perry appeared to him to be dead, but Jackman was still swinging the baseball bat. Hagan received 12 head injuries, including several skull fractures and numerous injuries to his legs, trunk and arms, including defensive injuries. His left testicle was completely blackened by a severe blow.
8
Perry received 28 head and neck injuries, including several skull fractures. His head had been driven down into his spine. The pathologist said that his head injuries were of such severity as normally to be seen only in high-speed motorcycle crashes. He had numerous injuries to his trunk, legs and arms. There were a series of parallel knife wounds on his face and arms and some defensive injuries. Both Hagan and Perry died of these injuries.
OPUS 2 DIGITAL TRANSCRIPTION
9
Blood was found all over the walls and the ceiling of the room. One or both of the appellant and Jackman had urinated extensively on both Hagan and Perry. The attack had lasted at least 20 minutes and probably longer. There was evidence before the court of moaning, crying and hitting sounds during the 20-minute period.
10
Jackman, the appellant and Sammon made off, Jackman and the appellant going to London before returning to the Stockport area.
Sentence
11
When sentencing the appellant, the Judge described these murders as brutal, callous and vicious. The deceased men had been begging for their lives. The appellant had shown no mercy. A sentence of life imprisonment was imposed.
12
In his report in January 2003 the Judge noted the multiple aggravating features, including premeditation, humiliation, discussion and agreement to kill in the face of a man on his knees begging for his life, and by way of mitigation the fact that the appellant was 26 years old and of previous good character. The Judge, as we have said, recommended a minimum term of 19 years, describing the appellant as someone with a "callous and ruthless streak" and when in drink a capacity for extreme violence. The appellant was the orchestrator of the attack. No remorse was apparent.
13
When setting the minimum term, the Judge referred to his earlier recommendation. He referred to the written representations of the appellant, in which the appellant expressed disgust at the part he had played, but refuting the suggestion that he had recruited Jackman or taken any part in urinating over the deceased. It was said for him that the minimum term should be in the 15- to 19-year bracket. The Judge took into account victim personal statements. He considered the minimum term that would have been imposed had the murders taken place after the 2003 Act had come into force. There were two murders which involved a high degree of sadistic conduct, so there was a strong argument that the appropriate starting point would be a whole life order. On any view, under Sch. 21 of the 2003 Act, the minimum term would not have been less than 30 years.
14
It was borne in mind that the minimum term could not be greater than that under the practice followed by the Secretary of State before December 2002. It was likely, in the Judge's view, that the Secretary of State would have adopted his recommendation of 19 years. This was a truly terrible case. The Judge was wholly unpersuaded there should be any reduction from the 19-year term and so he set the minimum term to which we have already referred.
Grounds of appeal
15
On this appeal Ms Arshad submits that the appellant can be said to fall into the very small category of those transitional cases where, should he meet the standard, he can apply to have his minimum term reduced on the grounds of exceptional progress such as to merit a reduction. This is, in her words, a case where the appellant in question could simply not have done more in the last decade of his time in prison.
16
Reliance is placed on the progress made by the appellant as summarised in a Parole Board Panel decision in April 2018. There it is recorded that the appellant had always admitted playing a substantial role in the attack and having used a baseball bat on at least one of the victims. He had shown real remorse and was open in taking responsibility for what had occurred, having devoted a great deal of time to reflect on the events of the night in question
and their effects on the victims and their families. There had been no sign of violence or loss of temper or use of drink or drugs throughout his sentence.
17
In the early years of his sentence the appellant had completed CALM, ETS and a number of substance and victim awareness programmes. Between 2008 and 2011 he had undergone one-to-one work with a psychologist. His custodial conduct from the outset had been of a high standard. He was re-categorised as a Category C prisoner as early as 2008/2009, by which time he had started on an Open University undergraduate course in law.
18
He was transferred to HMP Oakwood in 2013 where his conduct continued to be exemplary. He obtained an upper second class Honours degree in law in July 2016 and completed other educational and vocational courses, including Fine Cell Work. His excellent conduct had been maintained throughout his sentence and he had been an enhanced prisoner for many years. He had played a leading role in important and highly pro-social activities. He had set up house block initiatives. At HMP Rye Hill he had helped to establish and then work with a scheme called Last Chance, arranging visits by potential or young offenders. Its aim is to persuade young people away from a life of crime. He had been a Samaritan listener and a distance learning mentor.
19
Significantly, and as rightly emphasised by Ms Arshad, in November 2015 he had set up a body called Your Consultation Group. It offers advice and assistance to prisoners and staff on legal matters and prison policies - a major operational undertaking. Ms Arshad explains that this is a service provided across the prison estate to prisoners and staff alike. Further, the appellant had been involved in proposed drafting changes to the group and been involved in a project which had been commended by the Prison Reform Trust. He had worked with charities and also the Criminal Case Review Commission arranging surgeries for prisoners who wished to engage with the CCRC and facilitating a visit to
HMP Oakwood by the chair of the CCRC. The appellant had spent two years on the prison council and headed up the prison newspaper.
20
In 2018 the Parole Board panel described the appellant's custodial history as "outstanding." It also referred to a risk assessment in November 2017 when it was concluded that the risks of violence posed by him had reduced to the point where they could be assessed as low in open conditions or in the community and that his remaining risks could be safely managed in open conditions. He was recommended for transfer to open prison (although we note that one offender manager assessed the appellant's risk to the public as medium rather than low at this stage). In August 2018 the governor at HMP Oakwood described the appellant as having made an "outstanding" contribution to the prison.
21
At HMP Leyhill the appellant had been involved in developing induction and information booklets. He had acted as a monitor in education and as an adviser to the prison advice centre. Prior to lockdown, he was permitted to work in the community and to engage in home visits at maximum frequency and duration. He is currently a member of the Covid 19 Forum. He tried to set up Your Consultation Group at HMP Leyhill, but was told originally that the timing was not right; matters have then been overtaken by the circumstances of the pandemic. Further, throughout the appellant has been involved in fundraising for a number of different charities, including the Red Cross and Acorns charity for terminally ill children.
22
Ms Arshad emphasises the difficulties that have arisen out of the pandemic, not only in terms of the appellant's opportunities in the prison estate, but also in terms of getting recent updates on his progress from the prison governor. As indicated, she points in particular the appellant's involvement in Your Consultation Group, in the Prison Reform Trust and
suggests that even in lockdown the appellant has continued to do everything that he possibly could, for example through Fine Cell Work.
23
For the respondent Mr Jarvis identifies that it is arguable that the review jurisdiction
identified in
Gill
is inconsistent with the earlier authorities and, in particular, dicta in
R v
Caines
[2006] EWCA Crim 2915
("
Caines
") and para.14 of Sch.22. On this analysis, given that the appellant does not challenge the decision of the Judge in 2007 to set the minimum term at 19 years on the basis that that period was either manifestly excessive or wrong in principle at the time, this court has simply no jurisdiction to review that minimum term now and to adjust it to reflect any exceptional progress.
24
If there is such jurisdiction, then the progress in prison must be truly outstanding. Only then will it be exceptional. Good behaviour alone is not sufficient. In considering whether progress is exceptional, it is helpful for this court to have observations from the governors of the appellant's last two prisons, not only detailing the appellant's own progress, but also offering some comparative evidence by reference to other prisoners in similar situations. Mr Jarvis queries whether or not the appellant's progress can be said to be genuinely exceptional on the facts here. His progress may have been very good indeed, even excellent, but it has not been exemplary and not truly genuinely exceptional. He draws our attention to three particular factors in addition. Firstly, by reference to the latest report from the appellant's probation officer, he queries whether or not the appellant has in fact shown the true insight that has been suggested. The Judge clearly found that this was a premeditated attack arising out of a plan which the appellant had hatched. It is clear from the latest reports, and elsewhere, that the appellant does not accept this. His position is that he was simply angered when the two men came to his flat in Derby Road. The question raised is whether or not the appellant has accepted full responsibility for his part in what were, of course, extraordinarily serious attacks. Secondly, Mr Jarvis emphasises that there is still no comparative evidence comparing the appellant with other prisoners and nothing substantive from the governor of the appellant's current prison at HMP Leyhill. Thirdly, Mr Jarvis refers to the latest risk assessment as to the risk posed by the appellant. It is not as straightforward as might be suggested for the appellant, with references, for example, to the appellant being vulnerable still to the influence of peers and being assessed as a medium risk to members of the public.
25
In response to these last three points Ms Arshad states the question of risk is not a matter for this court, but rather one for the Parole Board. The question for us is whether or not the appellant can be said to have made exceptional progress. Secondly, if there were any real concerns about the appellant's insight, he would not have been allowed to complete the offender behaviour work and courses that he has. Thirdly, not least in these circumstances of the current pandemic, it is entirely understandable for the appellant's current prison governor to rely on the views of the appellant's probation officer. She points out that all efforts have been made on behalf of the appellant to obtain the fullest and most up to date information possible for the benefit of this court today.
Discussion and Analysis
The Jurisdiction Issue
26
Some legislative background is necessary in order to understand the jurisdictional issue. In 2002 the setting of the minimum term that a defendant convicted of murder must spend in prison pursuant to his life sentence before being eligible for release on licence was a matter for the Secretary of State, informed by a recommendation from the trial judge and the views of the Lord Chief Justice. The 2003 Act came into force on 18 December 2003. It was introduced following the House of Lords decision in
R (on the Application of Anderson)
v Secretary of State for the Home Department
[2003] 1 App Cases 837 in which Lord Bingham said that the Secretary of State should:
"...play no part in fixing the tariff of a convicted murderer, even if he does no more than confirm what judges have recommended."
27
S. 269 of the 2003 Act provides that where a defendant is sentenced to a mandatory term of life in custody on a day on or after the commencement date when the minimum term would be set solely by the court, having regard to the general principles contained in Sch.22. Sch.22 of the 2003 Act contains transitional provisions to the following effect:
"(a) Where the life sentence prisoner had been told by the Secretary of State what his minimum term was (see para.2(a) of Schedule 22) then paragraph 3(1)(a) permits the prisoner to apply to the High Court for a review of that minimum term.
(b) Where the life sentence prisoner has not been told by the Secretary of State what his minimum term would be (see paragraph 5 of Schedule 22) then paragraph 6 requires the Secretary of State to refer his case to the High Court for a judge to set the minimum term."
28
In this case by the time that the 2003 Act came into force the Secretary of State had not responded to the Judge's recommendation in January 2003 and, accordingly, para.6 of Sch.22 applied. Thus, on 18 October 2007 the Judge set the minimum term at 19 years.
29
The appellant now appeals pursuant to para.14(1) of Sch.22 which provides:
"14(1) A person who has made an application under paragraph 3 or in respect of whom a reference has been made under paragraph 6 may with the leave of the Court of Appeal appeal to the Court of Appeal against the decision of the High Court on the application or reference."
30
Caines
was a case under para.3 of Sch.22. The Court of Appeal stated:
"38. We must draw some disparate threads together. The transitional provisions create an unusual responsibility for a judge. He has to decide the application by assessing the seriousness of the offence in the context of the statutory guidance in schedule 21, whilst simultaneously looking back to judicial recommendations made when a variety of different sentencing regimes existed, without addressing precisely what they were. Certainly he is not confined to and would be misdirecting himself if he simply replaced the original minimum term fixed by the Secretary of State with the original judicial recommendation. In any event the trial judge and Lord Chief Justice may have recommended different tariff periods. He is not conducting an appeal from the judicial recommendations, or the decision of the Secretary of State, nor passing sentence as such. Nevertheless although he did not preside over the original trial, his decision will impact directly on the date when the prisoner may be released on licence. Plainly the process is properly identified as a review, but it is not a judicial review in the formal sense. Schedule 22 (14) (1) describes the process as a decision and creates a process for appeal to the Court of Appeal Criminal Division, or indeed Reference by the Attorney General. In view of its characteristics, and the nature of the process, the decision should be treated as a sentencing decision..."
31
The Court of Appeal concluded that any reduction to allow for exceptional progress was to be made against the notified minimum term (as opposed to the term which would have applied under Sch.21: see [48] to [50]. This is where the High Court Judge in that case had erred. The Court of Appeal then addressed the approach to be taken on any appeal against the review decision of a High Court Judge as follows:
"45. We acknowledge the inevitable difficulties, and indeed some illogicality, in re-examining the tariff fixed for the purpose of punishment and deterrence by reference to exceptional behaviour post sentence, a hesitation reinforced by the absence of any direct or express indication to this effect in the carefully structured statutory guidance. Nevertheless, for the reasons we have identified, our hesitation is alleviated. We emphasise first, that every prisoner serving a mandatory life sentence since 1997 has spent a significant part of the sentencing period under a regime in which exceptional progress provided a recognised basis for a reduction in the minimum term, second, that the review required by schedule 22 is unusual and specific for transitional purposes, and that the exclusion of the Secretary of State (who would otherwise have continued to allow for exceptional progress against the minimum term) is deliberate, and third, that the decision consequent on an application under schedule 22 is a sentencing decision to which normal sentencing principles apply. Accordingly in our judgment, exceptional progress in prison may be taken into account for the purposes of resetting the minimum term.
...
54. Responsibility for operating the transitional provisions is vested with High Court judges. This court will continue to apply the conventional approach to appeals against these decisions. We shall not interfere unless the result is manifestly excessive or wrong in principle, or in the case of a reference, unduly lenient. Save on well established principles, there should be no interference with findings of fact, whether adverse or favourable to the prisoner."
32
In
R v Sampson
[2006] EWCA Crim 2669
the Court of Appeal applied the same principles as identified in
Caines
to references under para.6 of Sch.22.
33
The position in
Gill
was different to that in
Caines
. In
Gill
, as in this case, the appellant relied on exceptional progress since the original minimum term had been set. The Court of Appeal held that it had jurisdiction to review the minimum term pursuant to Sch.22 on its proper construction. It could adjust the minimum term downwards on the basis of exceptional progress in custody without examining whether the original minimum term was manifestly excessive or wrong in principle. Lord Judge Chief Justice said this at para.1:
"…..The reality, therefore, is that the court is conducting a review of sentence by assessing the conduct of each appellant long after he was sentenced, rather than examining whether the sentence was manifestly excessive or wrong in principle. The Court of Appeal Criminal Division is not a court of review; it is a court of appeal. This jurisdiction therefore is
unusual and we shall explain in due course how this surprising responsibility came about."
34
At first blush this might be thought not to sit easily with [54] of
Caines
. However, we consider that the cases are in fact consistent. Both in
Caines
and in
Gill
the court considered
that exceptional progress in prison may be taken into account for the purpose of resetting the minimum term: see
Caines
at [45] and
Gill
at [21]. The approach to be taken will then depend on whether the appeal is against a minimum term set by a High Court Judge having considered the question of exceptional progress (in which case the conventional approach to appeals applies), or whether the appeal relates to a minimum term set without consideration of any exceptional progress (in which case the unusual review jurisdiction is engaged).
35
In the case of the very small number of Sch.22 transitional cases where after the minimum term had been set the appellant had made exceptional progress in custody and has not previously made any appeal against the setting of the minimum term, it makes sense that para.14(1) of Sch.22 should entitle the Court of Appeal as part of the appeal to conduct the necessary review as to whether there should be a reduction in the minimum term to reflect the appellant's exceptional progress long after sentence.
36
The Court of Appeal in
Gill
identified the practical considerations driving this interpretation of the legislation at [19] and [20]. Almost inevitably, defendants in cases of this seriousness are liable to remain in prison for long periods and so a reduction in the minimum term to reflect exceptional progress should not realistically be considered until towards the end of the minimum period. Thus, the process should be delayed until it becomes realistic to seek to provide a measured answer to the question of exceptional progress, inevitably, many years after the time for appeal has expired. By normal standards, it would require an extraordinary extension of time when, in any circumstances other than the present, an application for such would almost invariably by bound to fail. At the same time, if it were refused, it would remain open to the appellant to refer the case for the consideration of the Criminal Cases Review Commission exercising its own jurisdiction.
37
However, the court considered that all this seemed unnecessarily complicated:
"Better by far for the court to face up to the practical realties and on the basis of an appellate jurisdiction in an appropriate case when the minimum term has been assessed in accordance with either para.3 or para.6 of Sch.22 to conduct the necessary review. That is what we have done in these cases."
38
The respondent submits that the approach in
Gill
gives rise to anomalies:
"There is obviously a difference between (i) the Court of Appeal allowing an appeal against sentence where that sentence was manifestly excessive or wrong in principle at the time it was imposed and then taking into account exceptional progress in prison when deciding what sentence to substitute for the sentence passed below, and (ii) the Court of Appeal reviewing a sentence under paragraph 14(1) of Schedule 22 many years after the minimum term has been set by the High Court judge then reducing that minimum term solely on the basis that the defendant has made exceptional progress in prison since it was set."
39
Recognition of the review jurisdiction in
Gill
also places defendants, it is said, sentenced before 18 December 2003 at a particular advantage when compared to their modern counterparts. So, for example, a defendant sentenced to life imprisonment for murder in 2000, and for whom the Secretary of State had set a minimum term of 25 years, could apply to a High Court Judge under para. 3 in 2010 to seek a downward adjustment of the tariff on grounds of exceptional progress. If the High Court Judge made that adjustment the same defendant could appeal that determination out of time in 2020 on the basis of exceptional progress since 2010 as well. The same defendant convicted in 2005 would have no
opportunity to invite a High Court Judge to reconsider his minimum term and the only way in which the Court of Appeal would do so would be on a standard appeal against sentence.
40
However, the Court of Appeal expressly recognised these anomalies (see
Gill
at [27]) and the difficulties and illogicalities (see
Caines
at [45]) but it has, nonetheless, chosen to interpret the statute so as to allow it to do precisely that: review the sentence in this limited category of transitional cases. While the jurisdiction is unusual, one can see the obvious good sense of interpreting the statute in this way in these cases as a reduction in the minimum term to reflect exceptional progress cannot realistically be considered until the end of the minimum period.
41
The respondent also criticises what is said to be the suggestion in
Gill
that once exceptional progress is established it is mandatory as opposed to permissible to make due allowance for it. Referring to
Gill
at para.18:
"18. No further citation from the numerous authorities referred to in our papers is necessary. In summary, consequent upon the complications which arose while Anderson was making its way to its conclusion in the House of Lords, and the end of the system by which the Secretary of State finally determined the tariff period which was remedied in Sch.22 of the 2003 Act, it has been established that the interests of justice require that for cases falling within Sch.21, the High Court, or this court on appeal, should consider and reflect on evidence of exceptional progress in prison and, where it is established, make due, but as we shall see, modest allowance for it against the minimum term. So far, so good."
42
We do not consider, on a proper reading of
Gill
, that the Court of Appeal was saying that it is mandatory to make a reduction on account of exceptional progress. It stated only that "due" account was to be given. It referred without demur at [14] to the decision in
Caines
that exceptional progress whilst in custody “may” be taken into account.
Substantive merits
43
We turn then to the substantive merits of the appeal. The Court of Appeal in
Caines
dealt with the standard to be met (as approved in
Gill
at [29] to [30]):
"52. ….Good behaviour is not enough to constitute exceptional progress. We agree that the standard should be very high: the progress must be exceptional, outstanding, and bearing in mind that it provides the basis for a reduction in a period fixed for the purposes of punishment and deterrence, so it should be. Even where the necessary high standard is reached, the impact on the total tariff period is likely to be very modest. The longest reduction so far has not exceeded two years, and in the significant majority of cases where exceptional progress has been established, the reduction has been for one year. It also appears, and logically it is plain, that such progress falls to be considered when the minimum period is coming towards its end. Finally, it is a prerequisite to any reduction that the risk assessment should be favourable.
53. In future, when the court is considering whether exceptional progress has been made, it would be helpful for the information to include the observations from the governors (or the governor's representative) of the last two prisons in which the offender was serving his sentence. The information should not merely be directed to the governor's overall view of the progress of the individual offender, but should also provide assistance on how that progress should be assessed by comparison with other similar prisoners. Furthermore, the court should be provided with a satisfactory risk assessment. Evidence of remorse, if genuine, may tend to confirm that the level of risk posed by the prisoner has been reduced to negligible levels, but its absence is simply one factor to be taken into account in the risk assessment. At the same time those responsible for the assessment should bear in mind that an intelligent or manipulative life prisoner may appear to have made exceptional progress when, in reality, he represents a continuing danger."
44
This court has no real detail as to the appellant's progress in custody before 2008, by which time he reached HMP Rye Hill. He was then moved in or about 2013 to HMP Oakwood when he became a Category C prisoner. Since October 2018 he has been at HMP Leyhill as a Category D prisoner.
45
There is no question but that the appellant's conduct whilst in prison has been very good if not excellent. The April 2018 Parole Board Panel letter speaks of "exemplary conduct" at HMP Oakwood and an outstanding custodial history. His achievements are on any view impressive, not least his law degree, his participation in the Last Chance scheme and, perhaps particularly, the creation of the Your Consultation Group. These are all matters of which he can be justifiably proud and which stand very much to his credit. However, the question for us is whether or not the very high standard of exceptionality is met.
46
Cairns
emphasises the importance of progress in the most recent custodial setting. We consider in particular the most recent material available to us. In September 2019 the appellant's offender supervisor at HMP Leyhill reported that there had been no issues with his custodial behaviour, that he worked to good effect, had received positive feedback from staff, attendance record and performance standards. He had enhanced status and often went above and beyond to maintain that status. He had demonstrated good insight into his risk factors and awareness. In a letter dated 19 May 2020 the governor expressed confidence that the picture painted there was accurate. Gaining Category D status three years before tariff expiry was, he said:
"..usually the sign that a person had progressed well in custody."
47
This to our minds does not speak of exceptionality. Most recently, on 3 March 2021, the head of the Offender Management Unit at HMP Leyhill provided a copy of the Sentencing, Planning and Review Report dated December 2020 prepared by the same offender supervisor ahead of the appellant's pending parole hearing. She indicated that the appellant had demonstrated good insight into the serious harm he had caused with genuine remorse; had no proven adjudications; had achieved enhanced prisoner status with above and beyond activities and positive behaviour for quality attitude; had gained employment in recycling; was a good timekeeper; polite; had displayed positive attitudes; had joined the prison advice centre as a peer mentor; had sorted diary systems and started on some policy work for the CCRC. His work there was said to be exemplary. He was said to have adjusted well to open conditions, had coped well with the recent death of his mother, with no reported issues as to his day or overnight releases. He had started a new relationship with a lady whom he had known for many years and a prison officer described his behaviour on an escorted release as impeccable. The offender supervisor assessed the appellant as posing a medium risk of serious harm to members of the public. She supported release in the following terms:
"[The appellant] has been in prison for 18 and a half years, two years having been spent in open conditions prior to his tariff date. He has made excellent progress, demonstrating effective risk reduction and compliant attitudes which bode well in the future. I am also satisfied that he has been sufficiently tested and unlikely to pose an imminent risk of serious harm to the public unless there is a sufficient change in his circumstances, which is not evident at this point. I am of the opinion that [the appellant] can be effectively managed in the community with the robust risk management proposed for him and on that basis I am supporting release."
48
In our judgment, and without wishing in any way to underplay the many positive aspects of the appellant's past performance and contributions whilst in custody and even taking into account the impact of the recent pandemic, the broad picture painted by those at HMP Leyhill is not one of exceptionality, but rather one of a person quietly and determinedly working his way towards release on licence, as one would expect. Whilst again no bar to making a finding of exceptional progress, it is relevant to record the matters recorded in the most recent reports as to the appellant's position as to the extent of his offending and the fact that the level of risk that he is said to pose remains assessed at medium so far as members of the public are concerned.
49
In short, the appellant's progress in prison has been very good if not excellent, but there is in our judgment insufficient evidence to allow it to cross the threshold of exceptionality such as to merit a reduction in the minimum term of 19 years imposed. For these reasons, we dismiss the appeal.
_______________
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This transcript has been approved by the Judge. | {"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2002-12-20"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Liverpool"],"Sentence":["Life imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[26],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Pathologist report","Victim injuries","Witness testimony","Blood evidence"],"DefEvidTypeTrial":["Written representations by appellant"],"PreSentReport":["Low risk of reoffending","Medium risk of reoffending","Medium risk of harm"],"AggFactSent":["Premeditation","Humiliation","Discussion and agreement to kill","Victims begging for their lives","Use of a weapon (baseball bat)","Attack lasted at least 20 minutes","Urinating on victims"],"MitFactSent":["Offender was 26 years old","Previous good character"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[1],"AppealAgainst":["Minimum term (sentence)"],"AppealGround":["Exceptional progress in custody"],"SentGuideWhich":["s.276 and para.6 of Sch.22 of the Criminal Justice Act 2003"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Insufficient evidence of exceptional progress; progress was very good but not exceptional; risk assessment remains medium; no comparative evidence from governors; minimum term appropriate"]} |
No.
2008/01532/A5
2008/01601/A5
&
2008/01534/A5
Neutral Citation Number:
[2008] EWCA Crim 1417
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 17 June 2008
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Phillips of Worth Matravers
)
MR JUSTICE GOLDRING
and
MR JUSTICE PLENDER
- - - - - - - - - - - - -
R E G I N A
- v -
STEPHEN BONELLIE
MARCUS MARVIN MILLER
WILLIAM HUGHES
- - - - - - - - - - - - -
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 B R Cox QC
appeared on behalf of the Appellant Stephen Bonellie
Mr B Nolan QC
appeared on behalf of the Appellant Marcus Miller
Mr J Hyland QC
appeared on behalf of the Appellant William Hughes
Mr P Caulfield
appeared on behalf of the Crown
- - - - - - - - - - - - -
Judgment
Tuesday 17 June 2008
THE LORD CHIEF JUSTICE:
I will ask Mr Justice Goldring to give the judgment of the court.
MR JUSTICE GOLDRING:
1. These three appellants were charged with murder. On 7 January 2008 (the day fixed for trial), at Newcastle Crown Court, Hughes and Miller pleaded guilty on re-arraignment. Sentence was adjourned until after the trial of Bonellie. On 22 January 2008 Bonellie was convicted of murder. On 29 February the appellants were sentenced by His Honour Judge Milford QC as follows. Bonellie, who is now aged 17, was ordered to be detained at Her Majesty's pleasure; the period of 18 years (less 186 days spent on remand) was specified. Hughes, who is now aged 22, was sentenced to life imprisonment; the specified period was 22 years (less 186 days spent on remand). Miller, who is now aged 16, was ordered to be detained at Her Majesty's pleasure; the specified period was 15 years (less the identical period on remand). The appellants now appeal against sentence by leave of the single judge.
2. The fundamental issue in this appeal is whether the judge was right to categorise the seriousness of the murder in this case as "particularly high" with a starting point for an offender aged 18 or over of 30 years under Schedule 21 to the
Criminal Justice Act 2003
.
3. The facts were these. On the evening of 23 August 2007 the deceased (Martin, aged 23), who had spent the previous nine years in psychiatric hospitals and suffered from a learning disability and other psychiatric conditions, was systematically attacked, tormented, humiliated and finally beaten by the appellants whom he misguidedly believed to be his friends. They had punched, head-butted, kicked and stamped on him until he died. At no point was he aggressive towards them. The Crown's case was that they carried out the attack for their own sport. Both Bonellie and Miller had trained as amateur boxers.
4. There was evidence that over the years local youths had taken advantage of Martin. The judge did not take that into account as against the appellants.
5. That evening so keen was he to be accepted by the group that even when he was being assaulted, Martin would apologise to his assailants, shake their hands and at one point went to an off-licence to buy them some alcohol.
6. At about 9.15pm on 23 August Martin was with the appellants when they started to dare each other to hit him for money. Miller hit him first sufficiently hard to knock him to the ground. He got up. After they had walked a little further, Hughes hit him and knocked him to the ground. They bet with each other who could knock him out. Miller punched him as they reached a bus stop, again knocking him over. The violence continued as they went on their way. Miller hit him while holding a can of drink in his hand. Bonellie jogged up to him and said that he was going to knock him unconscious. Hughes got in first and knocked him over. The three of them laughed at him. He got up. The group carried on. Martin was punched. He fell off a wall. He was crying, but still apologised to them. He did not want to leave the group. Hughes launched an assault by punching Martin three times so that he again fell to the ground. The violence continued and became worse. As Martin lay on the ground they all jumped and stamped on him. Eventually they propped him up against a parked car. Hughes took a couple of steps back and kicked him hard in the face. He was bleeding. They dragged his unconscious body around the back of the car. The pulled his trousers and underwear down to his ankles and walked off. By this time it was about 10.30pm.
7. Residents had witnessed part of the assault. The appellants claimed that he deserved to be kicked because he had burgled an old woman's home. The appellants later told their friends some details of the attack, but sought to distance themselves from it.
8. Martin was rushed to hospital. He was found to be deeply unconscious. There was no evidence found of any brain function. He was pronounced dead. He had 22 recent injuries. It appears that 18 separate blows had been delivered to the head and neck.
9. The appellants subsequently surrendered to the police. Bonellie admitted that he was present, but denied violence. Hughes admitted hitting him a couple of times, but only after he had overheard Martin asking a young boy to go burgling with him. He denied any part in the violence and blamed the other two. Miller declined to comment, but a prepared statement was read out in which he admitted being present and assaulting Martin, but claimed that Martin was alive and conscious when he left.
10. The sentencing judge had before him antecedent histories and various reports on each of the appellants. Bonellie had two previous convictions for threatening behaviour in 2007. Hughes had a conviction for assault occasioning actual bodily harm in 2003. Miller had a previous conviction for battery in 2007. Bonellie's pre-sentence report assessed the risk of him re-offending as medium to high. He was said to be ashamed of his actions and genuinely remorseful. Hughes was described as presenting a high risk of serious harm to the public. Again it was said that he appeared to be genuinely remorseful. In Miller's case there was a psychological report. His IQ level was assessed as low (we are told 79). A pre-sentence report assessed the risk of him re-offending and causing serious harm to the public as high.
11. In passing sentence on the appellants the judge first considered whether, in fixing the minimum terms, he should enhance the sentence to deter others. As he did not do so, it is unnecessary to refer to what he said about that. Second, having referred to Martin as a gentle, caring person, the judge described the appellant's conduct. We need not repeat that. Third, the judge set out the starting points. He said:
"I now have to address myself to the starting point. Mr Hedworth QC for the Crown has submitted that the appropriate starting point under Schedule 21 is 15 years for Hughes, who is 21 years of age, and 12 years for the remaining defendants because they are under 18. I questioned whether that was right and whether by virtue of paragraph 5(1) and 5(2)(e) of the Schedule, this being a murder where the seriousness of the offence was particularly high and involving sadistic conduct and an extremely vulnerable victim, the starting point for Hughes was not 30 years. Mr Hyland QC for Hughes has sought to argue that 15 years is the starting point and an imbalance in sentence will be achieved between you and your co-defendants if I move to the higher point.
I am unpersuaded by that argument. If the nature of the offence demands the higher starting point, that is the point at which the court should start and arguments of parity are beside the point.
Having satisfied myself that the appropriate starting point for Hughes is 30 years, I stress I do not add to that starting point by reason of the aggravating features ...."
12. Having set the starting point at Hughes at 30 and that for Bonellie and Miller at 12, the judge set out the mitigating features. He found that there was no intention to kill; that the offence was not premeditated; and that Bonellie and Miller were not as heavily involved as Hughes. He referred to the reports which he had seen; that Bonellie was lightly convicted; and that Miller was of previous good character. He discounted the minimum terms of Hughes and Miller by one-sixth to reflect the pleas on the day of trial.
13. The essence of the argument before us is that the 30 year starting point should not have been chosen. As Mr Hyland QC on behalf of Hughes submitted, the 30 year minimum should be reserved for the gravest murders short of the whole life term. He submitted that this was not a murder involving sadistic conduct. He accepted in Hughes' case the aggravating features. He accepted that the judge was entitled to conclude that Hughes was the most culpable. He submitted that the mitigating features were in any event inadequately taken into account. He emphasised Hughes' plea of guilty, the lack of an intention to kill, the lack of premeditation and planning and that the appellants had come across the victim by chance. He also submitted that, although the oldest, Hughes was still young at the time.
14. The submissions on behalf of the other two appellants were posited upon the basis that the starting point in Hughes' case was too high. It followed that the minimum terms imposed on them consequentially were themselves too high. It was also submitted that there was an inadequate balance between the aggravating and the mitigating features.
15. On behalf of the Crown Mr Caulfield does not go back on the submission to the trial judge that the starting point in this case should have been 15 and not 30 years.
16. The first issue, therefore, to which we turn is: what was the right starting point for Hughes? Was this an offence the seriousness of which was particularly high within the terms of Schedule 21? There is no doubt that the behaviour of these appellants was appalling. They were rightly described in the opening note as acting like a pack of animals. They did so for amusement and to make themselves look big. Does that conduct amount to sadistic conduct for the purposes of paragraph 5(2)(e)? The current edition of the Oxford English Dictionary defines "sadism" in these terms:
"Enthusiasm for inflicting pain, suffering or humiliation on others."
Sadly, it is often the case that those who attack others derive pleasure from so doing. Many a person kicking someone else on the ground derives such pleasure. A person, too, may gain pleasure from baiting a vulnerable individual, or showing off to his friends. That is not enough, in our view, to bring the case within subsection (e). That subsection contemplates a significantly greater degree of awareness of pleasure in the infliction of pain, suffering or humiliation, perverted though the pleasure we have described may be.
17. Although we can understand how the judge came to the view he did, in our judgment appalling though this behaviour was, it fell short of that sort of conduct which is contemplated as sadistic by the subsection. This was a very bad case of gratuitous gang violence directed at a vulnerable individual. In short, the starting point should not have been 30 years for Hughes; it should have been 15.
18. The aggravating features in Hughes' case are clear. We need not repeat them. They merit a significant increase on the starting point of 15 years. Balancing the aggravating and the mitigating features, we have concluded that in his case the appropriate minimum term would be one of 19 years.
19. We turn to Bonellie. He did not have the mitigation of a plea of guilty. He is younger than Hughes. He was not as involved as Hughes. He is lightly convicted. Bearing all those features in mind, and again performing the balancing exercise to which we have referred, it seems to us that the appropriate minimum term in his case would have been one of 15 years.
20. Miller was the youngest. He pleaded guilty. It seems to us that in his case the appropriate minimum term would have been one of 13 years.
21. In the result, therefore, we quash the minimum terms imposed by the judge. We substitute those terms to which we have just referred. The period spent on remand which the judge ordered to be set off against those terms will be set off against the fresh terms we have imposed. To that extent this appeal is allowed. | {"ConvCourtName":["Newcastle Crown Court"],"ConvictPleaDate":["2008-01-07","2008-01-22"],"ConvictOffence":["Murder"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","Yes","No"],"PleaPoint":["on re-arraignment","on re-arraignment",""],"RemandDecision":[],"RemandCustodyTime":[186,186,186],"SentCourtName":["Newcastle Crown Court"],"Sentence":["Detained at Her Majesty's pleasure, minimum term 18 years (Bonellie)","Life imprisonment, minimum term 22 years (Hughes)","Detained at Her Majesty's pleasure, minimum term 15 years (Miller)"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[17,22,16],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems","Had mental health problems","Learning/developmental"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[23],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":["Had mental health problems","Learning/developmental"],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Witness testimony","Medical evidence","Psychological report"],"DefEvidTypeTrial":["Denial of violence (Bonellie)","Partial admission (Hughes)","Prepared statement (Miller)"],"PreSentReport":["Medium risk of reoffending","High risk of harm","High risk of reoffending"],"AggFactSent":["Vulnerable victim","Gratuitous gang violence","Multiple offenders","Sustained attack"],"MitFactSent":["No intention to kill","Not premeditated","Younger age","Guilty plea (for Hughes and Miller)","Lightly convicted (Bonellie)","Previous good character (Miller)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Starting point for minimum term too high under Schedule 21 Criminal Justice Act 2003","Inadequate balance between aggravating and mitigating features"],"SentGuideWhich":["Schedule 21 to the Criminal Justice Act 2003"],"AppealOutcome":["Allowed & Sentence Reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge wrongly categorised offence as 'particularly high' seriousness and applied 30 year starting point instead of 15 years; insufficient weight to mitigation"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2009] EWCA Crim 2182
Case No:
200805998/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LINCOLN CROWN COURT
His Honour Judge Machin
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/11/2009
Before :
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
The Honourable Mr Justice Mackay
and
The Honourable Mr Justice Davis
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
- v -
Michael John Silvester
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr W. Hays (instructed by CPS)
Ms K. Robinson
(instructed by
Wilkin, Chapman, Epton Blades
) for the
Appellant.
Hearing date: 22 October, 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Mackay:
1.
This case concerns the making of a confiscation order under the
Criminal Justice Act 1988
in circumstances where the victim of the offending has pursued and recovered a civil judgment.
2.
The Appellant worked as a bank manager for Lloyds TSB plc (“the Bank”) and gave advice to customers on investment and finance. Between May 2000 and June 2004 he stole from three elderly customers of the Bank, aged 87, 64 and 94, sums totalling £166,000. On the 12 May 2006 he pleaded guilty to an indictment containing 22 counts of theft and deception and he was later sentenced to three years imprisonment.
3.
The question of confiscation was raised at his sentencing hearing and was postponed for the usual investigations to take place. The Bank having repaid the immediate victims of the Appellant’s offences, the prosecutor’s statement dated 1 June, 2006 calculated that the benefits received by the Appellant from his crimes, when adjusted for inflation by reference to the Retail Price Index was £182,996.66. It then set out the amounts that might be realised, consisting of a number of building society and bank accounts, shares and savings accounts and a matrimonial home in the joint names of the Appellant and his wife. The total value of his known realisable assets was said to be £312,591.39.
4.
The statement also said that the Bank was seeking compensation of £164,971.32. On the 10 July, 2006, when the confiscation proceedings came before the court, there was no dispute about either the benefit figure or the amount of realisable assets. The judge noted that compensation was being sought by the Bank, and prosecuting counsel replied -
“Your Honour, I don’t seek an order as to compensation”.
5.
He then proceeded to invite the judge to declare that benefit and realisable assets were at the figures set out, and he therefore invited him to make a confiscation order in the amount of £182,996.66. This the judge did, allowing 3 months to pay, and he also ordered the Appellant to pay £9,500 costs. An issue has arisen as to whether prosecuting counsel was right or wrong to say he was not making an application for a compensation order. At all events that is what he told the judge, and he did not tell either the judge or the Appellant’s then counsel that, as he had been told and as was the case, the Bank intended to take civil proceedings against the Appellant. This meant, as will be seen from the legislation, the relevant parts of which have been set out below, that the sentencing judge was being told that he had no option other than to make the order he did make.
6.
The essential grounds of this appeal are that it is wrong in principle that this should have happened. Had he been told what he should have been told, the judge would have had a power to make that order but not an obligation or duty to do so. The order made was therefore made by a judge who was not put in possession of the true factual position.
7.
Before setting out the legislation we should record what happened after the hearing. The Appellant paid the amount of the confiscation order and costs in December 2006. The Bank took proceedings in the High Court which concluded with consent orders on the 16 March and 3 April, 2009; the effect of these was to give judgment in favour of the Bank for £202,066.82 with £59,079.79 interest and costs agreed at £27,000, a total figure therefore of £288,146.79. Interest continues to accrue on that sum, which remains unpaid and Miss Robinson, who now appears for the Appellant, tells us that amounts to some £10,000, making the total cost of satisfying the claim today very nearly £300,000.
8.
The other relevant event is that since he paid the confiscation order in full the Appellant has been through a divorce and ancillary financial orders have been made in favour of his former wife. The result of those is that he now has, we are told, no realisable assets and the former matrimonial home has been sold. He is 50 years old.
9.
The other new development, which is of considerable importance, indeed without it much of the argument in this appeal would be entirely arid, is an assertion by the Bank that there exists a pension fund in favour of the Appellant. They have told the solicitors acting for the Appellant in the civil proceedings that “the value of the fund is £195,825.09”. They have been asked by those solicitors and by the Respondent to give more details about this fund but have declined to co-operate. At first sight it seems unlikely that a pension fund, managed presumably by trustees for the benefit of former employees of the bank, is from the point of view of someone in the position of the Appellant a realisable asset, in the sense that he could before reaching pensionable age require the trustees to pay out to him the full value of the fund in cash. It may be the case, though this is pure surmise, that the Bank itself can in certain circumstances have recourse to that
fund. This court has no more information about it than that it is asserted by the Bank to be available to it towards satisfaction of its civil judgment.
THE LEGISLATION
10.
The relevant sections of the
Criminal Justice Act 1988
, as amended (“
the Act
”) are as follows:-
71 – Confiscation Orders
…..
(1B) Subject to subsection (1C) below, if the court determines the offender has benefited from any relevant criminal conduct, it shall then –
(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.
(1C) If in a case falling within subsection (1B) above, the court is satisfied that the victim of any relevant criminal conduct has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with that conduct –
(a) the court shall have a power, instead of a duty, to make an order under this section;
(b) sub-section (6) below shall not apply for determining the amount to be recovered in that case by virtue of this section, and
(c). where the court makes an order in exercise of that power the sum required to be paid under that order shall be of such amount, not exceeding the amount which (but for paragraph (b) above) would apply by virtue of sub-section (6) below, as the court thinks fit.
….
(6) Subject to section (1C) above, the sum which an order made by a court under this section requires an offender to pay shall be equal to –
a) The benefit in respect of which it is made; or
b) The amount appearing to the Court to be the amount might be realised at the time the order is made,
whichever is the less.
72 – Making of Confiscation Orders
…
(7) Where –
(a)
a court makes both a confiscation order and an order for the payment of compensation under
section 130
of the
Powers of Criminal Courts (Sentencing) Act 2000
against the same person in the same proceedings; and
(b)
it appears to the court that he will not have sufficient means to satisfy both the orders in full,
it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means shall be paid out of any sums recovered under the confiscation order.
11.
If the order below is set aside as being wrong in principle for the reasons stated above, as we believe it must be, this court would have to re-sentence the Appellant, albeit within the constraints imposed by Section 11 of the Criminal Appeal Act 1988, in a way in which the judge could have sentenced him had he known the full facts.
12.
The case confronting the judge did not include an application for a compensation order because counsel said as much to him. Mr Hays (who did not appear below) argues that the judge could have made such an order of his own motion despite what the prosecutor said and that this Court is free to exercise its discretion to make one now. We will return to this point later. In the absence of any application for a compensation order and of any indication that the victim intended to institute civil proceedings by virtue of Section 71(6) the judge was bound to make the order he made.
13.
Had he been told of the intention to institute of civil proceedings he had a discretion as to whether to make any compensation order and if so in what amount. It would have been apparent to him in those circumstances, albeit that S 72 (7) did not apply, that the assets were unlikely to be sufficient, if a full confiscation order was made, to enable full recovery by the victim.
THE RELEVANT AUTHORITIES
14.
The policy underlying this legislation, at least where compensation of the victim is not in play, is clear. The court has no discretion. It must strip the offender of the entire proceeds of his crimes, but no more than that, and, if his realisable assets are less than the benefits, it must take all that he has.
15.
In
Glatt
[2006] EWCA Crim 605
Tugendhat J, after a review of the authorities, distilled these four principles. A confiscation order :-
i)
is a penalty, and is a measure to which Article 1 of Protocol No. 1 [of the European Convention on Human Rights] is applicable;
ii)
is designed to deter those who consider embarking on criminal conduct;
iii)
is designed to deprive a person of profits received from criminal conduct and to remove the value of the proceeds received from criminal conduct from possible future use in criminal conduct;
iv)
is designed essentially to impoverish defendants not to enrich the Crown.
16.
In
Mitchell and Mitchell
[2001] 2 Cr App R(S) 29 S 71(1C) was in issue. Kennedy LJ said (at 20):-
“When it is clear that the victim can be properly compensated and that what remains in the hands of the defendant is a relatively modest sum, the residue of a lifetime’s legitimate savings, the court may wish to take that factor into account. But it cannot sensibly be taken into account if the effect of doing so will be to reduce the amount which the victim is entitled to recover by means of civil proceedings”.
17.
Later he continued (at 24):-
“If it is possible both to confiscate and to compensate then that course may indeed be followed. But where as here it appears at the end of the day and in the light of the judgment which was obtained in the civil proceedings after the confiscation order has been made that it is not possible to achieve both ends then the problem does arise as to how the matter should be properly disposed of.”
18.
On the particular facts of the case he held that the judge, if given the information he should have been given, would have exercised his power not to make any confiscation order in respect of either offender and would simply have made a compensation order in respect of each offender in an amount adding up to the total of the benefits received. He stressed that the judgment did not mean it was not appropriate “in the normal run of cases” to consider making a confiscation order even where there are civil proceedings, particularly where there are positive benefits to the victims in so doing.
19.
Mr Hays also relied on
Rose
[2008] 1WR 2113, a decision under
S 6(6)
of the
Proceeds of Crime Act 2002
, the equivalent to
S 71
(1C), where it was held that the discretion the section conferred may be important where funds are insufficient, in which case “the interests of the victim should take precedence”.
20.
We were also assisted by the review of this legislation by the appeals of
Nelson and Others
[2009] EWCA Crim 1573
. The legislation did not operate by way of fine, but, said Lord Judge CJ, that proposition was best appreciated by considering what the House of Lords had said in
Jennings v CPS
[2008] 1 AC 1046
at paragraph 13 which read -
“There is a real danger in judicial exegesis of an expression with a plain English meaning, since the exegesis may be substituted for the language of the legislation. It is however relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot and should not be deprived of what he has never obtained or its equivalent because that is a fine.”
21.
The Court continued, in the context of a review of the application of the abuse of process jurisdiction to these cases, that it would not be enough to establish oppression merely to point out that the effect of confiscation would be to extract from the defendant a sum greater than his net profit from his crimes. We are not concerned with abuse of process in this appeal.
22.
How should this Court now re-sentence the Appellant? His argument is that the confiscation order should be quashed and the sum “returned” to him, albeit Miss Robinson pragmatically accepts that it could be subject to some restriction, such as that it be held by a suitable stakeholder so as to be available to the Bank in part satisfaction of the judgment it has obtained. If the Bank believes it is right as to the value and availability of the pension it should then be left to make up the short fall from that source.
23.
For his part Mr Hays in his written submissions proposed two forms of fresh order and added a third in his oral argument. In essence the object of each of these was to bring section 72(7) into play, which he said would accord with the principles discernible in the authorities he cited to us.
24.
Option 1 was to dismiss the appeal, and say that had the Judge been told of the intended civil action then in the exercise of his discretion he would have concluded that it was appropriate to make the confiscation order he did, and also to make a compensation order of £92,321.70 (representing the shortfall between the confiscation order and the judgment obtained – this figure would now need to be adjusted to allow for interest accrued on the judgment since March). That compensation order should be “carved out” of the confiscation order under s. 72 (7) because the Judge would in the exercise of his discretion have had regard to the purpose of the legislation and the need to preserve the pool of assets for the benefit of the civil claim. By this route the Bank would recover its full loss by adding the carved out compensation order to the Bank’s estimate of the value of the pension fund.
25.
Option 2 was that if a compensation order could not have been made below or should not now be made by this court, the appeal should be allowed and a reduced confiscation order made of £90,674.96 which is the value of the benefits less the shortfall figure (again recalculation would be necessary) and the Bank left to recover the balance from the pension fund.
26.
Option 3, a variation on Option 1, was to dismiss the appeal, leave the confiscation order as ordered and make a full compensation order under Section 72(7).
27.
The objection to the Respondent’s approach, as it seems to this Court, is that it assumes that if he had been properly informed the judge would necessarily have exercised his discretion in such a way as to result in double recovery, or more precisely recovery exceeding the benefit received from the offending. That can, we accept, be an inevitable or just result depending on the facts of the particular case. But Mr Hays went so far as to submit that the court should have exercised its discretion to take as much as it could, and it would not have been a proper exercise of its discretion not to have done so. We disagree. It would have been an unobjectionable exercise of the discretion of the court below, had it been told of the Bank’s intended claim, and even if it had the power to make a compensation order of its own motion despite what the prosecutor had said, to leave the victim to pursue his chosen course, the Appellant then having apparently available assets which could be frozen to secure the fruits of those proceedings, and added to the value if any of the pension fund.
28.
There were three features of this case that seem to this court to be highly relevant to the exercise of discretion in these circumstances. Firstly the benefits figure was known to be the entire value of all the Appellants offending. It was not a “criminal lifestyle case” to which the statutory assumptions applied. Secondly there was a single loser, the Bank now standing in the shoes of the three victims. Thirdly that loser was intending to and was capable of extracting recovery by way of civil proceedings.
29.
There are also two problems now facing this court when re-sentencing. We do not have to decide whether or not counsel below was right to abandon the compensation proceedings in the way he did (Mr Hays would submit if he had to that he was wrong, notwithstanding two apparently contrary decisions of this court). But were this court now to make a compensation order it would surely be dealing more severely with the Appellant within the meaning of the
Criminal Appeal Act 1968
s.11 (3)
. Furthermore, all Mr Hays’s options depend on him satisfying us that there is today a realisable asset worth £195,825.09, as to which we have no evidence and which is not accepted by the Appellant.
30.
In practice there is little or no difference, in terms of their overall effect on the Appellant’s financial position, between any of the orders contended for by the parties to this appeal. All will leave him without any residual assets. All will also leave the Bank with a probable shortfall unless it is right about its assertion as to of the availability and amount of the pension. But we consider that the apparent discretion in
S.71
(1C) is not to be fettered in the way the Respondent contends for, reminding ourselves of the House of Lords’ guidance in
May
[2008] UKHL 28
at 48 (4), that in addressing questions raised by this legislation the court should –
“… focus very closely on the language of the statutory provision in question in the context of the statute… The language used is not arcane or obscure, and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the language rather than in the proliferating case law”.
31.
For these reasons we allow this appeal, quash the confiscation order made, and direct it should not be returned to the Appellant for 42 days after the date on which this judgment is handed down. This will permit the Bank to take any step it is advised to take to secure its judgment in the interim. The Respondent must notify the Bank forthwith of the making of this order. We are persuaded by Mr Hays’s argument based on
S.89
of
the Act
that we have no power to order any interest or other indexation of the sum to reflect the loss in its value since it was paid over. There shall be liberty to apply. | {"ConvCourtName":["Lincoln Crown Court"],"ConvictPleaDate":["2006-05-12"],"ConvictOffence":["22 counts of theft and deception"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Lincoln Crown Court"],"Sentence":["three years imprisonment"],"SentServe":[],"WhatAncillary":["confiscation order","costs order (\u00009,500)"],"OffSex":[],"OffAgeOffence":[50],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Company"],"VicNum":["three"],"VicSex":[],"VicAgeOffence":[87,64,94],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Abuse of position of trust"],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["confiscation order"],"AppealGround":["Judge was not informed of the Bank's intention to pursue civil proceedings, which would have given him discretion rather than a duty to make the confiscation order"],"SentGuideWhich":["Criminal Justice Act 1988 s.71, s.72"],"AppealOutcome":["Allowed & Confiscation Order Quashed"],"ReasonQuashConv":["The confiscation order was made by a judge who was not put in possession of the true factual position regarding the Bank's intention to pursue civil proceedings, so the judge was not exercising the discretion available under s.71(1C) of the Criminal Justice Act 1988"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Case No:
2003/6683/D4
Neutral Citation Number:
[2005] EWCA Crim 3245
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
(Mr Justice Leveson)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Wednesday 21
st
December 2005
Before:
LORD JUSTICE SCOTT BAKER
MR JUSTICE JACK
and
MR JUSTICE DAVID CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :
PETER HERON
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Edward Fitzgerald Q.C. and Mr Paul Taylor
(instructed by
Messrs Levys
) for the
Appellant
Mr John Benson Q.C. and Mr Stuart Driver
(instructed by
The Crown Prosecution Service
) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Scott Baker:
1.
On 27 October 2003 in the Crown Court at Liverpool before Leveson J and a jury the appellant was convicted of murder by a majority of 10 to 2. He was also convicted of two offences of causing grievous bodily harm with intent contrary to
Section 18
of
the Offences Against the Person Act 1861
. He was sentenced to life imprisonment for murder with concurrent 10 year sentences for each of the
Section 18
offences. He appeals against conviction with the leave of the single judge. There were two co-defendants, Cassidy and Murphy, both of whom were convicted by a majority of 10 to 2 of the same three offences. Murphy was additionally convicted of a fourth offence, theft of a motor car. Neither Cassidy nor Murphy has sought leave to appeal.
2.
A summary of the material facts is as follows. Just after 10pm on 3 December 2002 a masked gunman burst into the Thatched House Public House in Wavertree in Liverpool. He was accompanied by another masked male who was, apparently, unarmed. The gunman fired shots into the public house. One bullet injured Peter Hogg in the leg; another went through the body of John Navis, astonishingly causing him little by way of internal injury, but then it entered the abdomen of, and fatally wounded, Raymond Craven.
3.
The Crown’s case was that Craven was not the intended target. Rather, it was alleged, the real target was Liam Navis who was present in the pub. This assertion was based on what the Crown identified as a feud which had developed between the co-defendant Cassidy and Navis. The origin of this feud appears to have rested in earlier instances of disagreement or violence between the two men.
4.
In September 2002 the Navis family, who run the Waldeck Public House, refused entry to an after hours “lock in” to Cassidy and Murphy. An argument ensued.
5.
On 30 November 2002, two days before the shooting, there was a further incident in which it was alleged that Cassidy, again in the presence of Murphy, punched Navis.
6.
The Crown did not allege that the appellant was present at either of these incidents. On 3 December 2002 Navis sent out word that he wanted a “straightener,” i.e. a fight, with Cassidy. He told a mutual acquaintance, Andrew Schofield, of this desire, and Schofield was partly responsible for the arrangements for the fight. It was to take place at 5pm that afternoon at a park called the Mystery behind a boy’s club on Wellington Road, Wavertree.
7.
There followed a fatal misunderstanding. When Cassidy arrived for the arranged straightener he was accompanied by the appellant. The fight was close to a gym run by the appellant’s brother and was within walking distance from the appellant’s parents’ home in Grosvener Road. Whether it was the presence of the appellant, or some other sighting, Navis and his associates called for back up, which prompted a number of men to leave the Merryweather Public House to lend support to Navis. Their arrival at the Mystery, said the Crown, prompted Cassidy to believe he was being set up, that is lured to a quiet spot for something far removed from a one to one fight.
8.
The evidence suggested that both parties thought they had been set up by the other. Somebody, either Cassidy or the appellant, is alleged to have said “it’s a set up” as the two walked away.
9.
The Crown’s case was that the appellant’s mobile phone was then used to telephone Murphy. The Crown alleged that Cassidy was angry at the failed straightener. There is evidence that Cassidy telephoned Schofield moments later using Murphy’s mobile telephone. They exchanged mutually unpleasant observations about each other. From this dispute, it was alleged that Cassidy turned to murder.
10.
The case that Cassidy decided to go to the Thatched House armed with a firearm was primarily built through the evidence against Murphy. He, Murphy, admitted that he had stolen a Suburu motor car a few days earlier. He had then placed false plates on this vehicle. This he had done by obtaining the registration number of a similar vehicle which was advertised in the Automart. He was recorded by CCTV in the stolen car going to a petrol station in Wavertree at around 4.30pm on the day of the murder.
11.
When the gunman and his accomplice ran away from the Thatched House, they boarded the stolen Suburu as witnessed by Mr Russell, the landlord of the Prince Alfred Public House, situated directly opposite the Thatched House. There was, on Mr Russell’s evidence, a driver already in place.
12.
The car was seen again, minutes later, approaching Greenbank Park a relatively short distance away from the Thatched House. There it was abandoned and set alight.
13.
Shortly before the shooting, a group of students including Suzanne Prescott and Rebecca Brady from Liverpool University, were making their way from one of the halls of residence in Greenbank Lane to the Brook House Public House on Smithdown Road. As they did so, they saw a silver sporty car drive into Greenbank Park. This visit was said by the Crown to be a reconnaissance exercise, as it was to this very area that the getaway car went after the shooting.
14.
After the shooting at approximately 10.15pm the Suburu was seen and heard to drive into Greenbank Park where the occupants disembarked and set the vehicle alight. Another group was making its way from the Brook House Public House back to the halls of residence. Amongst their number were two students. The first of these was Alison Brighton. She was a first year student at the university. Her evidence was as follows. She walked along Greenbank Road and then a couple of metres into Greenbank Lane, when her attention was attracted by a speeding silver car. It was a silver saloon with at least two people in the front. The vehicle went past her and braked as she crossed the road from the park side of the road to the side where the halls of residence were situated. She described the driver of the car, as quite dark eyes a round face and Asian, definitely not white. She said the driver was darker than the passenger and she felt that she would be able to identify the driver, whom she had in her view for a second or so as the car drove past. She said: “I’m saying I was certain of my identification.” Under cross-examination she was referred to two witness statements in which she had given slightly fuller descriptions of the driver. She adopted these statements in evidence. In one of them she said she couldn’t see the front seat passenger but described him as white. She said that the driver was “round faced”, that his hair was dark and that he was not wearing anything on his head. She had the driver in her close view for a second or so as the vehicle passed her.
15.
The second student was Ryan Penniston. As he made his way home, he too saw the car. Curiosity caused him to look through the railings of the park to see where the car had gone. As he did so, he could see the shadow of the outline of the car; he heard a noise which suggested that two doors had opened and closed. Then he heard the words “Which way now, Pete?” It was the Crown’s case that this question was asked of the appellant.
16.
Cell site evidence of the activities on Murphy’s phone suggested that the call made on his mobile phone at 10.28pm was made in the vicinity of Greenbank Park. This information, served on the morning of the first day of the trial, caused particular embarrassment to Murphy because it contradicted the terms of his defence statement that he was at home at the material time, and he was compelled to explain in evidence the fact that his defence statement was false.
17.
Two weeks after the shooting, upon learning that the police had been looking for him, the appellant went to a local police station to ask if the desk sergeant knew what it was about. A check was made and he was arrested. He made no comment when interviewed.
18.
The Crown’s case against the appellant relied on three strands.
(1)
His friendship and association with his co-defendants Cassidy and Murphy, and in particular that he had accompanied Cassidy to the striaghtener at 5pm on the day of the shooting.
(2)
The use of a mobile phone whose number bore the last three digits 233 (hereafter referred to as “233”) attributed to him which not only evidenced his association with Cassidy and Murphy but also ceased to be used entirely on the early morning of 4 December – following the killing – a feature common to the phones of Cassidy and Murphy.
(3)
The question “Which way now, Pete” overheard by Ryan Penniston as the occupants fled from the Suburu in Greenbank Park moments before it was set alight.
19.
None of these three strands alone was sufficient to found a prima facia case of participation in these offences by the appellant, but taken together they were held by the judge to provide evidence on which a jury, properly directed might convict. The judge so held, rejecting a submission at the close of the Crown’s case that there was no case against the appellant to be left to the jury.
20.
Six grounds of appeal are relied upon. The single judge gave leave to appeal on three. The other three, which emerged later, concern non-disclosure by the Crown of material information or alternatively non appreciation of the significance of that material information on the part of the defence team or some members of it. We granted leave to appeal on the three additional grounds prior to adjourning the appeal part heard in September.
Ground 1 the judge was wrong to reject the submission of no case
.
21.
The judge dealt with this at pages 3 – 6 of transcript 1A. He began with 233 which the appellant neither, admitted nor denied was his mobile phone. The judge said it was open to the jury to conclude this mobile was used by the appellant. He was plainly right on the evidence and Mr Fitzgerald Q.C., who has appeared for the appellant on this appeal, does not really suggest otherwise. Privileged material that has recently been disclosed in relation to other grounds of appeal confirms that it was his.
22.
The judge referred to the mobile phone activity between 233 and Murphy and Cassidy’s phones. He said:
“I am satisfied that it is open to the jury to conclude....233 was used by him…….
In addition to the contact between 233 and Cassidy’s mobile telephone there is contact between 233 and Murphy’s mobile phone. There were three calls from Murphy’s number to 233 between 9am and 11.08 on 3 December. Shortly after this time, for at least one call Cassidy was using Murphy’s phone to speak to Andrew Schofield at 11.49. Further, after the abandoned striaghtener at 5pm, when Cassidy and (the appellant) were seen together, within 25 minutes the 233 phone was used to contact Murphy’s phone. This was at 17.23. At 17.43, twenty minutes later, Murphy’s phone was used by Cassidy again to telephone Andrew Schofield……..
Cassidy’s phone was able to receive incoming calls, as it did from the Murphy phone at 19.40.”
23.
He then pointed out that after the killing 233 went silent. Not only was there no contact with Cassidy and Murphy, but there was no contact between 233 and the appellant’s family members. As we have already mentioned all three defendants’ phones stopped transmitting after 3 December.
24.
The judge said there was evidence that went beyond mere association. The appellant was sufficiently friendly to accompany Cassidy to the straightener at 5pm on the evening of the killing and when one added Penniston’s evidence: “Which way now, Pete?” provided evidence on which the jury could convict.
25.
Obviously the defence made great play about Alison Brighton’s evidence, pointing out she was firm and clear in her evidence that the driver of the getaway vehicle had dark eyes, a round face and was Asian, a description that manifestly did not match the appellant. But, he added, it was open to the jury to be sure she was wrong. It would also, we would observe, be open to the jury to conclude she was right but that there was a fourth man in the car who was the recipient of the question, “Which way now, Pete?”
26.
In our view the judge was right not to withdraw the case from the jury.
Ground 2 misdirections to the jury.
(a) Ryan Penniston’s evidence.
27.
Mr Fitzgerald submits the judge should have given the jury a warning about the dangers of accepting Ryan Penniston’s evidence in the same way as if it had been identification evidence. That is he should have given a
Turnbull
direction but, as David Clarke J pointed out in argument, it was not a case of a witness identifying a voice. There were in our view no special dangers in accepting Penniston’s evidence. It was simply a matter for the jury to decide whether they accepted what he said he had heard. If they did, it was a matter for the jury to evaluate the weight of that evidence in the context of the appellant’s association with Murphy and Cassidy.
(b)
Failure to correct the fourth person suggestion.
28.
We are satisfied that the Crown never advanced the case on the basis that there was a specific number of people in the car or indeed that the appellant was in any particular seat. Our conclusion is confirmed by the judge’s observation at p. 11 of the transcript of the submission of no case. The evidence that connected the appellant with the car was the question, “Which way now, Pete?” What the appellant is seeking to suggest is that there were only three people in the car and that Alison Brighton’s description of the driver rules out the appellant. However, it is clear to us that the Crown throughout left both options open.
29.
It was never in the appellant’s interest to advance the possibility of there being a fourth man for the obvious reason that he did not want to have to explain away two individuals either of whom could have been the recipient of the “Which way now, Pete?” question. It was in his interests for there only to be one individual and to rely on Alison Brighton’s evidence.
30.
It is interesting to see how the Crown put the position in its final speech. Mr Benson said at page 1 line 27:
“But who were the men in the car? That is what you are here to try. Or, more accurately put: are you satisfied so that you are sure that three of the men in the car – if there were more than three, the Crown cannot discount the possibility there might have been a fourth, I will come to that in due course – when it arrived and when it left were Lee Cassidy, James Murphy and (the appellant)?”
And at page 3, line 25:
“Alison Brighton, an important witness, who no doubt my learned friend Mr Lawson-Rogers will refer to at some length, was she correct when she said the driver of the Suburu car was Asian? If there were only at that time three men in the car, we can say no, honest witness but a mistaken witness.”
And at page 15, line 6:
“Members of the jury, we therefore suggest that you can be sure that James Murphy was in that car and you can therefore be sure that Lee Cassidy was in that car. I said at the outset, I said at the very beginning of this case, the prosecution alleged that there were at least three in that vehicle. Who else was there? As a matter of common sense, it is going to be someone, is it not that they know and someone they can trust?”
And at page 17, line 20:
“We, on behalf of the prosecution, invite you to conclude that there were at least three. We cannot exclude there may have been somebody in the passenger seat whilst that vehicle was sitting in Prince Alfred Road.”
Then when the judge came to sum up he said at page 9 line 26:
“They left at least a driver in the vehicle who you may consider was getting ready for a quick getaway.”
And at page 10, line 14:
“The gunman was supported by the second man in the public house and at least by the getaway driver.”
And finally at page 41, line 13:
“Mr Benson argues that Alison Brighton, honest witness though she was, has made a mistake and you can be sure of it. Alternatively, and in any event, he says it does not exonerate (the appellant) because the evidence of his involvement is based on his links with the other men and the comments made. There need not only have been three persons present.”
31.
What of the evidence as to the number of people in the car? It seems to us that the eye witness evidence left entirely open whether there were three or four people in the car. What the jury may have decided by inference from the evidence that they accepted is, of course, a different matter and one cannot prey into the jury’s thought process which is of course dependent on the evidence they accepted and the evidence they rejected.
32.
Mr Russell’s evidence was not challenged by the defence. It was read and summarised by the judge at page 36 of his summing up:
“He saw the large silver vehicle in the middle of the road with the rear in line with the last door of the Thatched House. The lights were on and the engine was running. You may think he was ready for a quick getaway. Two men ran towards it. One got into the offside behind the driver. He was smaller than the second man, who tried to get in through the same door but then ran round the back. The car was rocking as if trying to drive off, or waiting to drive off. He saw the man hanging out of the window. It had taken a minute or two for the two men to get in the car.”
33.
Alison Brighton described the driver in clear terms that did not match the appellant. But she also described in her statement, which supplemented her evidence, that she did not see the front passenger except that he was white.
34.
No complaint was made about the way the case was left to the jury on the fourth man possibility, and in our view there can be no justified criticism of the way the judge summed up the case. It was not in the appellant’s interest to highlight the possibility of a fourth man. The appellant’s case was run on the basis that if Alison Brighton’s evidence was correct, and there was no reason to suppose she was mistaken, then the appellant was ruled out of the vehicle. That, however, overlooked the “Which way now, Pete?” evidence, assuming the jury accepted it.
(c) Inadequate directions as to the phone alleged to be the appellant’s.
35.
The appellant put the Crown to proof that the 233 phone was his by not admitting that it was his. We do not think that anything the judge said would have caused the jury to misunderstand that it was for the Crown to prove that it was. It was inevitable that if the jury thought the phone was plainly the appellant’s they might have gone on to ask, “why did he not admit it?” They were entitled to do so.
(d) The judge invited the jury to speculate.
36.
The judge told the jury that, “you know, of course, that Pay-As-You-Go phone do not require subscriber names”. There was no evidence to that effect, but it is a matter of common knowledge. The judge referred at some length to the evidence concerning a phone called the 799 phone. It was part of the evidence and he was entitled to do so.
Ground 3 lurking doubt.
37.
Given that there was a case to leave to the jury and given that the appellant elected not to give evidence, it is difficult to see how the court can be persuaded that there is a lurking doubt about the safety of this conviction in the absence of some specific factor to create one. The judge gave the jury the appropriate warning about the appellant’s failure to give evidence. That failure was of course capable of being regarded by the jury as adding support for the Crown’s case.
38.
In our judgment, if we are not persuaded for some specific reason that the conviction is unsafe, the appellant does not succeed on lurking doubt or any general feeling of unease about the conviction.
Grounds 4, 5 & 6 – the “new” evidence
39.
We turn to grounds 4, 5 and 6 which relate mainly to information about one Gerard Cole, part of which was either undisclosed by the prosecution or unknown to the defence advocates at the time. These grounds are expressed as follows:
(4) there is now available evidence that was not known to the appellant or his lawyers at the trial that points to the involvement of one Gerard Cole as the driver of the getaway vehicle instead of the appellant.
(5) there was material non-disclosure in that the matters referred to in Ground (4) above were not disclosed to his lawyers before the trial by the Crown.
(6) further, or in the alternative, the existence of this evidential material relating to Cole’s potential involvement as the getaway driver which was not known about by the defence or adduced before the jury at trial renders the verdict unsafe.
40.
These grounds are interlinked. What makes the matter not entirely straight forward is that some information about Cole was disclosed and appreciated by the defence team; some was disclosed but its possible significance not appreciated by some, at least, of the defence team and some was simply not disclosed, full stop. It is against this somewhat unusual background that the court is called upon to consider the exercise of its powers under section 23 of the Criminal Justice Act 1968 to permit the introduction of fresh evidence that was not adduced at the trial.
41.
The submission is, broadly, that if the defence lawyers had been aware of this material the defence might, depending on the instructions of the appellant, have been run differently resulting in his acquittal. Therefore the conviction is unsafe and the appeal should be allowed.
42.
Put shortly it is suggested that Cole matched more closely than the appellant Alison Brighton’s description of the driver of the getaway vehicle and that his mobile phone records, which were not disclosed, showed frequent traffic with Cassidy and Murphy’s mobiles as well as the appellant’s mobile. A good case could have been made out that he, rather than the appellant, was the third man or at least enough doubt could have been thrown on the Crown’s contention that the appellant was the third man.
43.
The appeal was originally listed for hearing over two days in September. There came a point during the hearing when we were so unclear about what material had been in the hands of the appellant’s counsel, what material had not been disclosed but should have been, what use the defence team would have made of all the material about Gerard Cole had it been disclosed, and in particular what if any difference it would have made to the way the defence was run, that we adjourned the hearing in order to have the assistance of Mr Lawson-Rogers Q.C. who was the leading counsel for the appellant at this trial, and also his junior.
44.
The material we now have falls broadly under the following heads.
(1)
Cole’s mobile phones records which show:
a)
that during the period 1 November 2 to 4 December 2002 Cole’s mobile phone.
(i)
called Cassidy’s mobile phone 103 times;
(ii)
is called by Cassidy’s mobile phone 53 times;
(iii)
called Murphy’s mobile phone 65 times;
(iv)
is called by Murphy’s mobile phone 76 times.
b)
also, on 3 December 2002 at 11.30pm Cole’s mobile phone called Murphy’s mobile telephone. At 12.41 on 5 December Cole’s mobile phone called a landline attributable to Cassidy.
c)
On 30 November 2002 Cole’s mobile telephone called The Thatched House public house on two occasions.
These telephone calls have to be seen against the context that the appellant’s mobile phone, 233, made and received the following calls in the same period;
i)
to Cassidy’s mobile phone 78 times
ii)
from Cassidy’s mobile phone 43 times
iii)
to Murphy’s mobile phone 16 times
iv)
from Murphy’s mobile phone 27 times
Much of the material had been disclosed at the trial. Cole’s mobile telephone records, however, had not. They were not disclosed, so it appears, because they were regarded as “sensitive” and in any event not material to be disclosed because it was not considered that the records might undermine the case for the prosecution. There was no PII hearing and it is our view that the records should have been disclosed. The matter does not on the face of it appear to have been properly considered by the prosecuting authorities, but for reasons that will become apparent it is not necessary to go into that issue. There is no suggestion of bad faith.
(2)
The complete document message form M.163, an internal police document, i.e. all three pages of it. What appears to have happened was this. The document was disclosed, but due to an administrative error the defence solicitors were only sent the first page. However, they never asked for the subsequent page or pages, although it would have been obvious on inspection of the front page that that was not the complete document. The front page contained information about Cole, including his mobile telephone number. The second and third pages contained some further information about him.
(3)
Police action 27, which indicates that the police were interested in any Asian associates of Cassidy (no doubt because of Alison Brighton’s evidence) and in which Cole is described as “is IC3 but is Asian-looking”. It appears the defence did not have this document because the defence solicitor was unable, because of other commitments, to complete the inspection exercise.
(4)
Various witness statements touching on Cole’s description or involvement in various events relating, broadly, to the background to the shooting.
45.
We have been provided with a helpful statement from Detective Chief Inspector Carr, which summarises the police interest in Cole during the investigation. DCI Carr was initially deputy senior investigating officer into the murder of Raymond Craven and later the senior investigating officer. This statement was prepared in November 2005. It was not of course in existence at the time of the investigation but it helpfully summarises information that could have been gleaned from various documents in the unused material. In summary, what he says is this.
46.
It was known at the time that Cole was a close associate of Cassidy. It was also known that Cole was of mixed race. There was not, and indeed never has been, any evidence or intelligence to connect Cole to the murder. The police never had reasonable suspicion on which to arrest Cole for the murder. Nevertheless, DCI Carr felt it prudent to commence administrative preparation for an identification procedure for Cole, should one become necessary. One never, in the view of the officer, became necessary. DCI Carr saw no reason to distinguish Cole from any other associates of Cassidy, Murphy or the appellant, who were of mixed race or dark skinned. Cole was, however, arrested on an unrelated matter. The arresting officer obtained an account of his movements on the night of the shooting and these were later confirmed by his girlfriend. The officer also formed the view that Cole was not of Asian appearance. Cole volunteered his mobile telephone number, something not done by either Cassidy, Murphy or the appellant. A search warrant was executed at Cole’s home address but nothing was found that could link him to the murder. His telephone billing was examined and showed, as we have mentioned, a pattern of contact with Cassidy and Murphy over a considerable period of time. That pattern was no different on the night of the shooting to any other night of the preceding weeks. All that could be deduced from the billing was that Cole had possibly been used as a conduit for communication between the parties in the dispute both before and after the shooting. Unlike Cassidy, Murphy and the appellant, Cole continued to use his mobile telephone after the shooting. It was decided there were no grounds for arresting Cole for the murder and no grounds to justify proceeding with an identification process. Surveillance was mounted upon a motorcar known to have been used by Cole. The reason for this was that there was evidence that Cassidy had been seen as a passenger in the vehicle and the police wished to locate Cassidy.
47.
We refer to the various categories of material beginning with Cole’s mobile phone records. It is important to have in mind the limited nature of what was not disclosed, namely calls from Cole. Calls to Cole could be found on the disclosed records relating to Cassidy and Murphy. Junior counsel for Cole at the trial, Mr Richard Pratt, recollects that he knew Cole’s mobile phone number. It was on the front page of M163. In any event, the appellant would have known it. No efforts were made by the defence team to seek further information about Cole’s mobile phone activity on the night of the killing or to analyse what was available by way of incoming calls. Mr Lawson-Rogers said that they had no reason to do so. The point can also be made that neither did the appellant suggest it. What Mr Lawson-Rogers says is that if the defence had been provided with Cole’s mobile phone records and had appreciated that Cole was a possible match to the driver of the get-away vehicle, there would have been discussion with the appellant about the possibility of introducing Cole into the case as a candidate for the driver of the get-away vehicle.
48.
As to M163, it is said not have reached counsel, even the first page, which certainly reached the appellant’s solicitors. What the document reveals is:
•
Cole’s mobile phone number.
•
that he had been on 8 December 2002 arrested on suspicion of another matter .
•
he was a good friend of the deceased.
•
he was last in the Thatched House Public House two weeks before the killing in company with Cassidy, Murphy and Thomas.
•
he is a friend of Cassidy.
•
he first learned of the murder at 23.00 hours on 3 December 2002 when he telephoned a friend called Pane. Pane was a taxi driver and was with Craven after he was shot.
•
At 00.45 hours on 4 December 2002 he was stopped by an armed response unit in Earle Road, Wavertree driving his Vauxhall vectra. The police said they were looking for a silver car.
•
he told the police that he did not have any mobile phone or land line number for Cassidy; a statement which it is now said was untrue.
The document reveals a number of other matters that are of no relevance to the present appeal.
49.
Turning to police action A27, this was raised on 4 December 2002 at 20.10 hours. It requested, “research any Asian associates of Cassidy or the injured parties.” The result records that Cassidy knew Cole who is “IC3 but is Asian looking.” This was in the unused material but did not reach counsel.
50.
There are several other actions and messages that, broadly, bear out the summary by DCI Carr to which have referred.
51.
It is a matter of some debate to what extent Cole matched the description “Asian looking”. Certainly the photographs we have been shown of Cole do not indicate he is remotely “Asian looking”.
52.
The fourth category we have described as various witness statements. Schofield was a cousin of Liam Navis and gave evidence at the trial. He was involved in the arrangements for the straightener and went to its intended scene. His witness statements referred to Cole, describing him as a mate and saying that Cole was also mates with Cassidy and Murphy. In one of his witness statements he referred to having met Cole and Payne at about 2pm on 3 December 2002. Cole told him Cassidy had just been in the Heron gym and Cassidy was fuming over Liam Navis offering him a straightener. Later in the same statement he said Billy Navis had told him that on 30 November 2002 Cole had phoned Craven at the Thatched House and told him, “you are all going to get shot.” Whether this was a threat or a warning is unclear. What is clear is that the whole of the defence team was aware of this hearsay statement but that it did not precipitate any action on their part any more than did the statement of Elaine Navis in which she said Craven had received a call from Cole in which Cole had said “ he’s gonna smoke everyone in the Thatched.”
53.
The defence team also had a statement from Danielle Lloyd in which Cole was described as, “of tanned complexion, mixed race but not black”. Cole had introduced her to Murphy and Cassidy. They also had a statement from Maria Magill, Cassidy’s girlfriend. She said: “he is of mixed race black/white, his skin is light so he just looks tanned….he has short dark hair.”
54.
There is one other piece of material to which we should refer. It does not relate directly to any of the grounds of appeal, because it emerged very late in the day. But it is another plank in the appellant’s argument that if its existence had been appreciated the case might have been run differently. This material came to the attention of the appellant’s advisers and the Crown the day before the adjourned hearing of the appeal. It comprises a message followed by an action. The message is that Shirley Jane Hennessy, a barrister, contacted the police on 6 December 2002 to report that she had seen a number of males at about 22.15 on the night of the murder running from Greenbank Park and about thirty feet away from her. The lead male was white, around 5ft 10 inches tall, aged seventeen to nineteen with short blond collar length hair, slightly spiky on top. He was wearing a red bomber jacket and dark trousers. The other males were white and of similar size and age. She was not prepared to make a written statement. An action was raised to ascertain the number of males, to which the answer was four. The lead male with the spiky hair appeared to have had it dyed blond.
55.
Mr Lawson-Rogers has no recollection of ever having seen this material. It is said the police made repeated but unsuccessful efforts to obtain a statement from Miss Hennessy, and what we do not know is why neither of the other defendants ever, so far as we are aware, pursued the matter. The material was available to all defendants in the unused material. The description of the lead male did not fit either Cassidy or Murphy. As far as the appellant was concerned it was never in his interests to introduce the possibility of a fourth man. We were never addressed at any length upon what might have been done with the Hennessy material had its significance been appreciated. We are not persuaded of the likelihood of any use being made of it on behalf of the appellant as it would not have helped, and might well have hindered, the argument that he did not match the description by Alison Brighton of the driver.
56.
We are grateful to Mr Lawson-Rogers for coming to court and giving evidence. He told us he never saw M163 and he had no discussion with the appellant about Cole being “Asian looking”. He never saw Cole’s mobile phone records for the obvious reason they were not disclosed. His junior’s position was the same. It was an important part of the appellant’s defence to challenge the allegation that he was the driver. The defence was aware of Cole being an associate of Cassidy and Murphy but they were not aware of the police interest in him. They would, subject to the appellant’s instructions, have deployed this and adduced the fact that Cole was not put on an identification parade. Put shortly, he said, “because we never made the link, we never undertook the exercise.” To suggest someone else was the driver would not have made the case against the appellant any worse. Evidence could have been obtained from the officer in charge of the case by cross-examination.
57.
When cross-examined by Mr John Benson QC for the Crown, Mr Lawson-Rogers made a number of, in our view important, concessions. First that he would be surprised if they had not asked the appellant for his help in identifying who was the third man. But re-examination he said that as the appellant was not there, “we would not have asked who was the driver?” Secondly, that the telephone evidence was the real problem and that all three phones had gone silent after the killing. Third, that the appellant was never going to give evidence and that he did not admit 233 was his mobile. Fourth, the appellant never made any suggestion who else might be in the frame for having assisted Cassidy and Murphy. As to Mr Russell’s evidence, as he only seemed to identify three people, they were content for his evidence to be read.
58.
We have been provided with a statement from the appellant saying that, if he had known all he now knows about Cole being a suspect and his phone calls on the day of the murder, he would have wanted the issue raised in court. We attach little weight to this statement; we attach rather more to the evidence of Mr Lawson-Rogers.
59.
The appellant, in waiving privilege, disclosed among other things, the notes of a consultation on 22 September 2003 and a proof dealing with various aspects of the evidence. His case was that he was not responsible for the shooting and he did not believe Cassidy or Murphy were either.
60.
Paragraphs 5 and 6 of the consultation notes are revealing as to the intended tactics at the trial. Paragraph 5 records the desire to keep a low profile and distance the appellant in the eyes of the jury from the co-defendants. A submission would be made (as it was) at the close of the prosecution case. It was a weak case. Paragraph 6 records:
“If we introduce speculation as to other possible murderers, there is a danger that we move closer to Cassidy and Murphy and might detract from the standpoint that we know nothing about these events. We want nothing to do with it.”
61.
The note also records that the appellant had heard that Cassidy was involved, so thought it was better to get rid of his telephone. Also, it was a small community where everybody knew everybody else. The word on the street was that Cassidy and Murphy were responsible and the appellant recognised he might be blamed by association.
62.
Apart from Cole’s mobile phone records it does not seem to us that the Crown failed in its disclosure obligations. In any event it seems to us there was sufficient material available to the defence for enquiries to be made about his mobile phone records. The defence had been supplied with his number (junior counsel at any rate knew about it) and the appellant could, at the least, have ascertained details of calls made to Cole from the material that had been disclosed. Most, if not all, of the material the appellant now has could, so it seems to us, with reasonable diligence on the part of the appellant’s then solicitors, have been available at the trial. That, however, does not provide the answer to this appeal.
63.
Mr Benson’s submissions can be summarised as follows. First, there was sufficient material known to counsel for the defence to have pursued the Cole aspect of the case had the defence been minded to do so. In this regard, a distinction has to be drawn between counsel’s position and the appellant’s position. The appellant knew a good deal more about Cole than did counsel, not of course the various documents that did not percolate through to counsel, but this was a close knit community and Cole was well known to the appellant.
64.
Mr Benson submits that the Cole aspect was not pursued, and, perhaps more importantly never would have been pursued, because of the appellant’s loyalty to his close friends and associates Cassidy and Murphy. Mr Benson submits, and we can see some force in this, that the introduction of Cole would necessarily have strengthened the case against Cassidy. The judge advised the jury to start with Murphy; if the case against him was established to go on to Cassidy and if it was established against both of them then to go on to the appellant. The jury appear to have accepted this advice because they returned verdicts first against Murphy and later against Cassidy and the appellant. The stronger the case against Cassidy the stronger the case against the appellant. The jury must have accepted the “Which way now, Pete”? evidence and the only candidate was the appellant. Cole’s name was not Pete. The material now disclosed by the defence reveals, as the Crown submitted all along, that 233 was the appellant’s phone. The phone records show how closely he was associated with Cassidy and Murphy and the fact that Cassidy, Murphy and the appellant all disposed of their mobiles shortly after the shooting, whereas Cole did not, was always, and would remain, a telling point against the appellant.
65.
If the appellant introduced Cole into the case he faced not only the anger of Cole but also that of Murphy and Cassidy. It seems to us that it would have been very difficult to introduce Cole into the case even as to a partial match to Alison Brighton’s description of the driver, without a very high risk of damaging Cassidy’s case (and in consequence his own). There would also, it seems to us, be a serious direct danger to the appellant by introducing Cole’s mobile phone records into the equation. First it would draw attention to the appellant’s closer association with Cassidy and Murphy and second, in the light of the “Which way now, Pete?” evidence it would bring the possibility of a fourth person in the car very much more into play. If Cole was going to be introduced into the case, it was going to have to be done as a positive assertion that he was the driver; it would be almost impossible, and probably ineffective, to advance such a case on a vague assertion. Any assertion that Cole was the driver, or even a vague floating of the possibility before the jury, would have entitled the Crown to adduce any evidence tending to exclude him from involvement in the crime.
66.
If all the additional material had been in the hands of and its significance appreciated by Mr Lawson-Rogers we think it likely he would have taken the appellant’s instructions upon what use might be made of it. We think it possible, but unlikely, that the appellant’s instructions would have been such that the trial took a significantly different course. We think it likely, although we cannot be certain, that the case would have been conducted in the same way as it was.
67.
Nevertheless, we go on to ask ourselves this question. What if the instructions to Mr Lawson-Rogers were to make the best use of it he could? It is impossible to predict with any precision how the trial would then have unfolded. Prudent counsel would proceed on a step by step basis, backing off when more damage than good was likely to be caused.
68.
This case does not fit into the ordinary category of one where the court is asked to consider fresh evidence on appeal. Nevertheless, we think the correct approach is to consider these grounds of appeal on the basis that all the material to which we have been referred, regardless of whether its existence was not disclosed or its potential significance not appreciated, is properly to be regarded as fresh evidence.
Section 23(1)
(c) of the
Criminal Appeal Act 1968
entitles the court to receive any evidence which was not adduced in the proceedings below if it thinks it necessary or expedient in the interests of justice to do so.
69.
The court is required, when considering whether to receive any such evidence, to have regard in particular to four considerations. These considerations are:
(1)
whether the evidence appears capable of belief;
(2)
whether it appears that the evidence may afford a ground for allowing the appeal;
(3)
whether the evidence would have been admissible on an issue which is the subject of the appeal;
(4)
whether there is a reasonable explanation for the failure to adduce the evidence at the trial.
However, the overriding consideration is the interests of justice.
70.
Taking these considerations in turn, the evidence appears capable of belief. It would have been admissible on the issue whether the appellant was one of the murderers. Apart from the mobile phone records of Cole, which should have been disclosed but were not, we do not think there is a reasonable explanation for failure to adduce the remainder of the evidence. Had the defence solicitors done their job properly it would have been in the hands of leading and junior counsel. The most critical question is whether the evidence, taken as a whole, may afford a ground for allowing the appeal.
71.
We have kept in the forefront of our minds the words of Lord Bingham in
R v
Pendleton
[2002] 1WLR72, 83F:
“But the test advocated by counsel in
Stafford
and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gives somewhat inadequate recognition. First, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in any case of 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. If it might, the conviction must be thought to be unsafe.”
72.
We are, as we have said, sceptical about the use to which the material would have been put. Mr Lawson-Rogers said in evidence that he knew nothing about Miss Hennessy, but that if he had he would probably have tried to have her interviewed. She had of course said she was not prepared to make a statement. But assuming this hurdle was overcome, and she was prepared to give evidence, where did that take the appellant’s case? Whilst on the one hand it might be said that her descriptions of the men, such as she gave, did not match the appellant or Murphy or Cassidy, she identified four men and the evidence was damaging to the appellant’s case, that the Crown was only suggesting three, and that Alison Brighton’s description of the driver did not fit him. We certainly did not get the impression from Mr Lawson-Rogers that the appellant would have been rushing to try and call Miss Hennessy as a witness.
73.
What then of the material relating to Cole? The fundamental difficulty for the appellant to bring Cole into the case was his friendship with Murphy, Cassidy and the appellant and the potential, and possibly unforeseeable, damage it might do to all their cases. There was some suggestion that the murder was committed by a wholly unrelated gang and may have been drug related. Murphy said he had sold the car on the afternoon of the murder to four men, one of whom was Asian. The introduction of Cole, a close friend of Murphy and Cassidy, as matching Alison Brighton’s description of the driver, was not going to help them.
74.
Introducing Cole, even peripherally, by cross-examining the officer in the case, seems to us to be an exercise that was unlikely to be productive. Any evidence that he could have given could not undermine the three strands of the case against the appellant. These were (1) friendship and close association with Cassidy and Murphy and presence at the proposed straightener hours before the shooting; (2) his mobile phone traffic with Cassidy and Murphy and the common feature of all the phones going silent, and (3) Penniston’s evidence, “Which way now, Pete?” which the jury plainly accepted. Furthermore the description of Cole in A27 as “Asian-looking” although superficially attractive as matching Alison Brighton’s description of the driver (dark, round eyes, Asian) is not borne out by the photographs of Cole, a matter which the police appreciated as their enquiries progressed.
75.
Also, Cole was never a suspect for the offence except in the very broadest sense of the word. He was never arrested and there was no evidence whatsoever to connect him with the crime (unlike the appellant). It is difficult to see how the police could have justified putting Cole on an identification procedure.
76.
Even if the appellant managed to introduce evidence about Cole to persuade the jury that he might have been the driver rather than the appellant, that still left Penniston’s evidence, which placed the appellant in the get-away car. The defence would still have faced the problem of explaining why the appellant was not a fourth person. What would the jury have concluded if they considered the position on the basis that Cole might have been in the car? The introduction of Cole, a man with darker skin, would have lessened or removed the problem which the jury faced with Alison Brighton’s evidence as to an Asian looking man who was definitely not white. It would not have affected the position regarding the evidence of Ryan Penniston, “Which way now, Pete?” That was evidence which we know the jury accepted and which they considered would in the circumstances only have been directed to the appellant: he could not otherwise have been convicted. The introduction of the Cole material would not have affected that conclusion.
77.
We have accordingly come to the conclusion that the test in
Pendleton
is not met. We consider that the fresh evidence, however introduced, would not reasonably have affected the decision of the jury to convict. We do not think the evidence would afford any ground for allowing the appeal and we decline to admit it. In our judgment the verdict is safe, with or without the fresh evidence.
78.
There is one further point with which we should deal. Mr Fitzgerald submitted, in the alternative, that because the issue of Cole as a suspect was never addressed by the appellant’s legal advisors he did not have a fair trial. We do not think that this way of putting it adds anything to the conventional approach to questions of fresh evidence which we have followed. If the evidence would not have affected the outcome, its omission does not mean that the trial was unfair.
79.
Accordingly the appeal against conviction is dismissed. | {"ConvCourtName":["Crown Court at Liverpool"],"ConvictPleaDate":["2003-10-27"],"ConvictOffence":["Murder","Causing grievous bodily harm with intent (Section 18 Offences Against the Person Act 1861)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Liverpool"],"Sentence":["Life imprisonment for murder","10 years imprisonment (concurrent) for each Section 18 offence"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["three victims (one murder, two GBH)"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Eyewitness testimony","Mobile phone records","Cell site evidence"],"DefEvidTypeTrial":["Offender denies offence","Challenged identification evidence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Rejection of no case submission","Misdirections to the jury","Lurking doubt","Non-disclosure of material evidence (re: Gerard Cole)","Fresh evidence"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Fresh evidence would not have affected the jury's decision","No misdirection by the judge","No unfairness in trial","Jury entitled to convict on evidence presented"]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO: 2021 02993 A1
[2022] EWCA CRIM 853
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 12 May 2022
Before:
LADY JUSTICE SIMLER
MR JUSTICE GARNHAM
RECORDER OF WESMINSTER
HER HONOUR JUDGE DEBORAH TAYLOR
REGINA
v
MOHAMMED SHAKIEL YASIN
__________
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 G AHMED
appeared on behalf of the Applicant
_________
J U D G M E N T
LADY JUSTICE SIMLER:
Introduction
1.
On 16 July 2021, in the Crown Court at Leeds before His Honour Judge Bayliss and a jury, the applicant was convicted of three counts of disseminating a terrorist publication, contrary to
section 2(1)
(a) of the
Terrorism Act 2006
(counts 2, 3 and 5). He was acquitted of a separate count (count 1) on the same indictment, and counts 4 and 6, which were alternative counts.
2.
On 24 August 2021 HHJ Bayliss sentenced the applicant to a Special Custodial Sentence of seven years, pursuant to
section 279
of the
Sentencing Act 2020
. That sentence comprised a custodial term of six years and an extended licence period of one year on each of the three counts to run concurrently. Relevant ancillary orders were made.
3.
The applicant now applies for an extension of time of 12 days in which to renew his application for leave to appeal against sentence and for a representation order after refusal by the single judge. Mr Ahmed appears on his behalf on a
pro bono
basis and has advanced submissions with focus and clarity, and we are particularly grateful to him.
The facts
4.
The facts giving rise to the offences are fully described in the Criminal Appeal Office summary and we do not repeat all that is set out there. In summary, the applicant sent two videos through WhatsApp which sought to encourage the recipient watching the videos to commit acts of terrorism. Count 2 related to the first video (referred to as the “knife video”), sent to Mohammed Sahil Khan at just after midday on 20 November 2018. It depicted the applicant sharpening two knives and speaking in Arabic the words, “May the peace, mercy and blessings of Allah be with you, brother Sahil. You know what this is for, don't you, that's one, Allahu Akbar.”
5.
Counts 3 and 5 related to the second video, the “meat cleaver” video. It was sent on 20 November 2018 to both Mr Khan and to the applicant's daughter, who was 18 at the time. It depicted the applicant wearing a headband with Arabic script whilst holding a meat cleaver. In the video the applicant recited an Arabic verse from the Quran, translated as, “Those who disobey the Prophet, peace be upon him, or think they know better and their opinion is better than the Sunnah, they need this.”
6.
On 21 May 2019 the applicant was arrested on suspicion of terrorist offences. His phone and his daughter’s phone were confiscated by police and analysed. He had deleted the videos from his mobile phone, but the meat cleaver video was found on his daughter's mobile phone. There was evidence that he had been in frequent contact with extremist Islamic preachers and travelled regularly to Jordan to meet them. Whilst in Jordan, the applicant mixed with people known to be Islamic terrorists. There was evidence he had spoken in social media posts and WhatsApp messages in admiring terms of those who had killed themselves in the name of Jihad. After his arrest by the police, the applicant denied the offending.
The sentence
7.
The applicant was born on 2 August 1972. He was 49 at the date of sentence. He had five previous convictions for eight unrelated offences dating back to the period 1991 to 2000. Those offences included an offence of battery in 2000 arising from an assault on his wife while she was heavily pregnant. He had no convictions for terrorism or related offences.
8.
The judge had a detailed pre-sentence report. We too have read that report, together with character references about the applicant which were also available to the judge.
9.
The Sentencing Council's Definitive Guideline for Terrorism Offences applies to all offences falling to be sentenced on or after 27 April 2018 irrespective of their commission date and applied to all three offences. The judge explained that the offending in count 2, where the jury concluded that they could only be sure that the applicant had been reckless as to the consequences, was properly characterised as culpability C - defined as cases where characteristics of categories A or B are not present. The video did not “encourage specific terrorist activity endangering life” and had a limited audience, so the judge found that the offence fell within category 2 for harm. That produced a starting point of 2 years’ custody and a range of up to three years.
10.
Counts 3 and 5 were much more serious, as the judge found. He concluded that these were category 1A in the guideline. The meat cleaver video was a clear incitement to terrorist activity, which placed it in category 1 for harm. There was culpability A because the applicant intended to encourage the recipients of those videos to engage in terrorist activity. He was in a position of trust, authority or influence over them. He abused that position to encourage them. Those conclusions reflected both the verdict of the jury that there was intentional encouragement and the clear assumed role as a religious leader amongst the group of whom Mr Khan was a part. It also reflected the applicant’s influence on his daughter’s religious development and the reality that she was his daughter and therefore in a relationship of trust, and the video provided instruction for specific terrorist activity endangering life.
11.
The starting point identified by the judge was one of five years’ immediate custody. The judge recognised that the count 2 offence had a lower starting point of two years’ custody but said that the video reflected in count 2 had to be viewed in the context of counts 3 and 5 and the much more serious nature in counts 3 and 5 had to be reflected. He said that he would pass concurrent sentences that reflected the whole of the criminality and accordingly identified the five year starting point for all three counts notwithstanding the difference between counts 2 and counts 3 and 5.
12.
There were aggravating features, including the fact that the offences were motivated by and demonstrated hostility based on the religious beliefs of the intended victims; the audience was specifically targeted, and, so far as count 5 is concerned, vulnerable and impressionable. Samir Yasin (the applicant’s 18 year-old daughter) was subject to intervention, having been referred to the Prevent Programme in March 2015 as a result of posts suggesting an aspiration to be a Jihadi bride. Pro-Islamic state images had been found on her telephone in October 2017 at Liverpool Airport and the applicant had himself expressed concern about her radicalisation to the police.
13.
The judge also referred to the deliberate use of encrypted communications to facilitate the commission of the offence or avoid or impede detection, and also to the deliberate removal of videos and chats surrounding that sending in order to cover up the applicant's activities.
14.
So far as mitigation is concerned, the judge expressly noted the applicant's limited recent or relevant convictions. He noted the evidence of good character, including from witnesses and from the applicant's extensive charity work. He recognised that the applicant was a family man with family responsibilities, and that there would be emotional and financial consequences, including so far as the applicant's wife, parents and children were concerned. Finally, the judge recognised the impact of the Covid pandemic on prison conditions. The judge concluded, nonetheless, that the aggravating features outweighed the mitigation factors in the case and warranted an upwards adjustment of one year from the five year starting point to produce a custodial sentence of six years on all three counts.
15.
By virtue of
sections 279
and 306 of the
Sentencing Act 2020
, offences contrary to
section 2
of the 2006 Act are specified terrorism offences within Part 3 of Schedule 18. This is determined by the date of sentence irrespective of the date of the offence, and the judge therefore considered the question of dangerousness within the meaning of
sections 254
and 255 of
the 2020 Act
. He took into account whether the automatic operation of the provisions of
section 278
of
the 2020 Act
would mean that an extended sentence was unnecessary. He concluded that it did not result in that conclusion. He concluded that the applicant was dangerous and sentenced the applicant to a Special Custodial Sentence of seven years, comprising the custodial term of six years and the extended licence period of one year to which we have referred.
The appeal
16.
In written grounds of appeal developed orally by Mr Ahmed four arguments are advanced to support the overall contention that the total sentence was manifestly excessive in this case. First, in writing, Mr Ahmed submitted that the judge was wrong to conclude that the applicant was dangerous; this was contrary to findings in the pre-sentence report and to the overall impact of the evidence before the court, including the absence of any relevant previous convictions. Secondly, the starting point of five years was too high for the offences on each of the counts. Count 2 had a starting point of two years, so to identify a five year starting point was plainly too high in respect of that count. But so far as counts 3 and 5 are concerned, there was no evidence that either of the two people who were sent the video actually watched it. There was no specificity in what was encouraged. Nobody was targeted or identified; and the videos themselves were sent to only two people. Moreover, the use of WhatsApp is common. Mr Ahmed accepted that it is encrypted, but that is very different from the use of an encrypted format such as EncroChat or other similar means.
17.
The third argument advanced is that the aggravating features did not justify the increase to six years. There was no particular evidence of any position of trust. Moreover, the judge effectively double counted by using the same factors that reflected culpability and harm to increase from a five year starting point to a six year custodial element. Finally, so far as mitigating factors are concerned, he submitted that the judge paid insufficient regard to the multiple mitigating factors in this case, not least the fact that there had been no previous incidents and nor were there any repeated incidents since the commission of these offences in the short period in 2018. For all those reasons, Mr Ahmed submitted that this was not the worst kind of offending and certainly did not warrant a custodial sentence of six years, which was manifestly excessive for all those reasons. Nor was an extended sentence necessary or warranted.
Discussion
18.
Dealing first with the challenge to the finding of dangerousness, it seems to us that this is not arguable. There was ample evidence available to the judge to support his conclusion. He presided over the trial and was therefore in the best position to make this assessment and to consider the risk that the applicant posed. The evidence included the applicant's known association with terrorists and individuals associated with terrorist organisations. It included the video footage itself depicting him brandishing particularly dangerous weapons and it included Islamic extremist mindset evidence. The evidence also included clear support for and glorification of the actions of those killed fighting the Syrian government for Islamic extremist groups, describing them as martyrs and seeking to arrange marriages for their widows or other members of their immediate families. It included a direct familial link to a UK citizen who died performing as a suicide bomber on behalf of al-Qaeda in Syria in 2014 - an act the applicant continued to seek to justify at trial. It included his own evidence at trial that he had not disavowed his beliefs and either sought to depict the evidence as taken out of context or admitted that his support for terrorist actions in Syria was undimmed. The evidence also showed that he had sought, with some success, to assume a role of religious leadership among his contemporaries in the UK and on the international stage. He had recorded speeches to his followers which incorporated a phrase that he cited often, “We love death like you love life; and also put questions on behalf of others to senior Islamic scholars, including a scholar known as al-Maqdisi. There were several examples of him seeking to influence the religious education of his daughter, including praising her for sending him a quote from Abu Qutada.
19.
There was also the pre-sentence report by Gail Wilson. She noted that the applicant continued to maintain his innocence and referred to his need to seek approval and acceptance which led to him ignoring the risks of associating with extremist individuals. She observed that he held a rigid point of view in religious terms and regarded it as a matter of grave concern that he had knowingly associated with extremists. She recorded that he held deeply unpleasant extreme views for which he sought approval and confirmation from any available and potentially disreputable source. She said that any assessment of future risk had to be approached with caution. It had to take account of nuanced issues and the insidious nature of terrorist offences. She concluded that there was a low risk of reoffending but a high risk of serious harm and that the applicant remained susceptible to further radicalisation, a risk not limited to his presence in a custodial setting. He remained prepared to meet with people who represented a proscribed group or organisation, and to seek to influence others.
20.
We are satisfied that there was an ample evidence base for the conclusion that the applicant was dangerous and that the contrary is not arguable.
21.
As for the challenge to the six year custodial element of the sentence, again we consider that the judge’s assessment was well within the range of assessments for cases of this kind and not arguably manifestly excessive or wrong in principle. The judge properly regarded counts 3 and 5 as reflecting culpability A. As we have said, that reflected both the verdicts of the jury in finding there was intentional encouragement and the applicant’s clear role as a religious leader amongst the group of whom Mr Khan was a part, together with his influence on his daughter’s religious development.
22.
So far as harm 1 is concerned, it seems to us that the fact that there was limited distribution of this video is immaterial. Harm here was properly assessed by reference to the fact that there was a statement or publication providing instruction for specific terrorist activity endangering life. That was a conclusion well open to the judge given the video was a clear incitement to attack apostates with a meat cleaver or similar weapon. While there was no evidence of recipients of either video having acted on or been assisted by the encouragement to carry out activities endangering life, this would have been a different factor indicating high harm and the absence of such evidence is not determinative. Here, moreover, one of the recipients was vulnerable and had been, at least partially, radicalised.
23.
It seems to us that the challenge to the aggravating factors identified by the judge is equally unarguable, save perhaps so far as Mr Ahmed's criticism of the judge's conclusion that the use of WhatsApp reflected a use of encrypted communications. We recognise the force of this criticism and the difference between WhatsApp and other encrypted communications, but do not consider it to be material in the context of this case. Even ignoring this feature, there was undoubtedly a relationship of trust between the applicant and his daughter. She viewed her father as an authority figure, with a significant role in her life, not least in the context of her religious education. There was also evidence that he was a prominent figure in his religious community. He was older than Mr Khan and the overall thrust of the evidence did not compel a conclusion that Mr Khan had derided or mocked the applicant. The judge was entitled to conclude that Mr Khan (like others) viewed the applicant as a prominent figure in the religious community and this was a relevant aggravating factor.
24.
Moreover, the judge was sentencing for three offences, two particularly serious. He made clear that he was reflecting the whole of the criminality for all three offences in concurrent sentences on all three counts. That was an entirely orthodox and appropriate approach.
25.
Having regard to the facts of these three offences, which are paradigm examples of offences contrary to
section 2
of
the 2006 Act
of particular gravity, we have concluded that it is not arguable that the sentence as a whole did not properly reflect the overall criminality involved in this course of offending, and/or that it was manifestly excessive.
26.
In those circumstances, notwithstanding the compelling submissions made on the applicant's behalf by Mr Ahmed, who has said all he could possibly have said, we refuse leave. Since no purpose would be serving in extending time given our conclusion, we refuse to extend time also.
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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 1400Email: [email protected] | {"ConvCourtName":["Crown Court at Leeds"],"ConvictPleaDate":["2021-07-16"],"ConvictOffence":["Disseminating a terrorist publication (counts 2, 3, 5) contrary to section 2(1)(a) of the Terrorism Act 2006"],"AcquitOffence":["Disseminating a terrorist publication (count 1)","Alternative counts (counts 4 and 6)"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Leeds"],"Sentence":["Special Custodial Sentence of 7 years (6 years custody + 1 year extended licence) on each of the three counts to run concurrently"],"SentServe":["Concurrent"],"WhatAncillary":["Relevant ancillary orders"],"OffSex":["All Male"],"OffAgeOffence":[46],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance","Relative"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["Mixed"],"VicAgeOffence":[18],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Video evidence","Social media posts","WhatsApp messages","Association with extremists","Expert report/testimony"],"DefEvidTypeTrial":["Offender denies offence","Character references"],"PreSentReport":["Low risk of reoffending","High risk of harm"],"AggFactSent":["Offences motivated by hostility based on religious beliefs","Targeted audience","Vulnerable and impressionable victim","Deliberate use of encrypted communications","Deliberate removal of evidence","Position of trust/authority/influence abused"],"MitFactSent":["Limited recent or relevant convictions","Evidence of good character","Extensive charity work","Family responsibilities","Impact of Covid pandemic on prison conditions"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Judge was wrong to conclude dangerousness","Starting point of 5 years was too high for all counts","Aggravating features did not justify increase to 6 years","Insufficient regard to mitigating factors"],"SentGuideWhich":["Sentencing Council's Definitive Guideline for Terrorism Offences","Section 279 of the Sentencing Act 2020","Sections 254, 255, 278, 306 of the Sentencing Act 2020","Section 2 of the Terrorism Act 2006"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Ample evidence for dangerousness","Judge's assessment within range for cases of this kind","Aggravating factors properly identified","Concurrent sentences reflected whole criminality","Sentence not manifestly excessive"]} |
Neutral Citation Number:
[2023] EWCA Crim 421
Case Nos: 202300434 A3
202300435 A3
202300436 A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PLYMOUTH CROWN COURT
Mr Justice Garnham
T20227049
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21 April 2023
Before:
LADY JUSTICE MACUR
LORD JUSTICE MALES
and
MR JUSTICE GOOSE
- - - - - - - - - - - - - - - - - - - - -
SOLICITOR GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- - - - - - - - - - - - - - - - - - - - -
Between:
REX
Appellant
- and –
(1)
BENJAMIN RICHARDS PARRY
(2)
THOMAS PAWLEY
(3)
CHAD PAUL BRADING
Respondents
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Tom Little KC
for the
Solicitor General
Sean Brunton KC and Ali Rafati
(instructed by
Walker Lahive Ltd
) for the
First Respondent
Ignatius Hughes KC and Barry White
(instructed by
Plymouth Defence Solicitors
) for the
Second Respondent
Joe Stone KC and Deni Mathews
(instructed by
Walker Lahive Ltd
) for the
Third Respondent
Hearing date: 5 April 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
.............................
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.
Lady Justice Macur:
1.
Benjamin Richard Parry (“BP”), Thomas Pawley (“TP”) and Chad Paul Brading (“CB”) were tried for the murder of David Crawford, aged 59. After a three-week trial they were convicted of manslaughter. On 13 January 2023, BP was sentenced to 12 years imprisonment. No separate penalty was imposed for ‘failing to comply with a notice issued under the Regulation of Investigatory Powers Act, 2000’, which had been issued requiring him to reveal the PIN to an encrypted telephone chat line. TP and CB were each sentenced to 4 years imprisonment.
2.
His Majesty’s Solicitor General seeks leave pursuant to section 36 of the Criminal Justice Act 1988 to refer those sentences to this Court as unduly lenient.
3.
David Crawford was a member of the Cornish based motorcycle group called the Red Chiefs, who describe themselves as a ‘support club’ of the Hell’s Angels - an international ‘outlaw’ motorcycle organisation. The offenders were all members of the Plymouth based branch of another international ‘outlaw’ motorcycle group called the Bandidos. CB was the President. The Red Chiefs and the Bandidos were rival groups. The wearing or flying of the group’s ‘colours’ on the other’s territory/county was regarded as insulting and provocative.
4.
During the early evening of 12
th
May 2022 members of the Red Chiefs and Hell’s Angels (both wearing their colours) had gathered at a Retail Park adjacent to the A38 Devon Expressway in Plymouth. Members of the Bandidos became aware.
5.
At about 7.30 pm there was a call between the ‘Sergeant at Arms’ of the Bandidos and CB. Shortly afterwards TP and CB drove towards Plymouth in TP’s Mercedes motor vehicle to look for members of the Red Chiefs/Hell’s Angels. They came across the rival gang at the Retail Park. TP called the Serjeant at Arms.
6.
BP travelled to meet TP and CB in his employer’s Ford Transit van after receiving a message from the Serjeant at Arms. His journey was recorded on his dash cam.
7.
At about 8.30 pm the Red Chiefs/Hell’s Angels, including Mr Crawford, began to leave the Retail Park and started travelling in a westerly direction towards the Tamar Bridge. Several of them stopped on the Devon side of the Tamar Bridge toll booths. The Mercedes containing TP and CB arrived just before 9 pm and stopped in the middle of the roundabout. As the Mercedes approached the roundabout a telephone call was made from CB’s telephone to BP’s telephone. Just after the start of that call most of the Red Chiefs/Hell’s Angels moved off towards Cornwall. However, Mr Crawford, who lived in Devon, headed eastwards towards Plymouth.
8.
TP and CB pursued him at speed in the Mercedes, cutting in front of one vehicle on the roundabout and then undertaking another. The motorcycle and the Mercedes came off the eastbound A38 at the first slip road at St Budeaux. Mr Crawford crossed the roundabout at the top of the slip road but then headed straight down the slip road with the aim of rejoining the A38 eastbound; he was followed by the Mercedes. Throughout, TP or CB were still speaking on the telephone to BP.
9.
BP travelled to the scene. As he joined the slip road Mr Crawford, sitting astride his motorcycle, and the Mercedes are clearly visible on the dash cam footage. The motorcycle was behind the Mercedes that had stopped in front of him on the slip road. As the van approached, Mr Crawford moved his motorcycle alongside the Mercedes, BP was observed to say something like “watch this” and struck the motorcycle directly from behind.
10.
Mr Crawford’s body was thrown upwards and onto the middle of the bonnet from where it pitched headfirst in front of the van. As the van ran over the motorcycle its front lifted off the ground. The deceased fell underneath the van and became trapped. BP did not stop but continued down the slip road back onto the A38. As he exited at the next junction (about 900 metres) Mr Crawford’s body came free from underneath the van onto the road surface.
11.
The post-mortem examination revealed numerous injuries to the body and were in keeping with a prolonged period during which the deceased was trapped/dragged along under the van. The cause of death was multiple injuries.
12.
BP was tracked to his home address and arrested. When interviewed under caution he provided a prepared statement to the effect:
“I did not intend to knock the motorcyclist off his bike. I did not intend to kill him or to even cause him any injury. I only intended to bump the back of his bike. When I realised I had knocked him off the bike I panicked and drove on. I did not realise he was still under the van until he became free of the van as I pulled off the Parkway again. I left the scene as I just panicked and was not thinking clearly. At no time did I intend to harm anyone.”
13.
TP was arrested on 14 May 2022. He was interviewed and produced a prepared statement which indicated that he and CB had followed Mr Crawford so that CB could talk to him about not wearing his colours in Plymouth. He had pulled up in front of the motorcycle to make him stop and they were alongside when, out of the blue, the van driven by BP turned up and ran over Mr Crawford.
14.
CB surrendered himself on the 15
th
May 2022. He was shown a clip of the incident and stated,
“From what it looks like there, I suppose, I genuinely think that was just a massive miscalculation on his part.”
When asked what he meant he replied
“Well, no one set out to kill anybody…no one has ever set out to kill anybody…that wasn’t meant to happen, that’s all I can say..”
15.
On 26
th
July 2022, all three offenders were arraigned and pleaded not guilty to the offence of murder. BP indicated that he would however plead guilty to the offence of manslaughter, although he did not do so. He pleaded guilty in front of the jury after the conclusion of the evidence and the jury consequentially convicted him of that offence upon direction of the judge. At trial, TP and CB sought to rely upon BP’s act as an overwhelming supervening event, which abrogated any of their responsibility for Mr Crawford’s death. As indicated above, they were convicted of manslaughter; all three offenders were acquitted of murder by the jury.
16.
When sentencing the offenders, the trial judge acknowledged the devastating loss caused by David Crawford’s death; he had been “utterly innocent in all this.” The Judge was satisfied, to the criminal standard, that:
i)
A telephone conversation took place between CB and BP, in the hearing of TP during which it was agreed that he would be stopped and told it was unacceptable for him to ride in his rival gang colours in Devon. He was to be given “a slap, I mean a punch or the like, an assault that would cause him some relatively minor injury or pain” to underline the point.
ii)
BP’s van, driven at a speed between 10 and 27 miles an hour, was driven directly into the back of the motorcycle with the consequences described above.
iii)
BP did not stop at any stage, including when it became clear to him that Mr Crawford’s body was ‘released’ from beneath the van.
iv)
TP and CB saw what happened but “did not intend [BP] to drive into Mr Crawford and …were utterly appalled at what had been done.” That is, there was a common enterprise between the three offenders to cause some harm to Mr Crawford, but not that he should be run down and seriously injured or killed.
v)
TP and BP did not assist Mr Crawford, nor call for others to do so.
17.
The judge considered that BP’s case fell within Category B of the Sentencing Council Unlawful Act Manslaughter Guidelines. Driving the van into the motorcycle involved “an intention…to cause harm falling only just short of GBH. Certainly, his death was caused in the course of an unlawful act which carried a high risk of death or grievous bodily harm, which was or ought to have been obvious to you.” The judge found additional aggravating factors to be the use of the van as a weapon; the assumption of “significant if not leading” role; planning the infliction of lesser harm; the significant mental and physical suffering caused to the victim; leaving the scene and the body of Mr Crawford, not seeking assistance for him and exposing other road users to risk of injury. The Regulatory notice offence was also to be treated as aggravating the offence of manslaughter. The available mitigation was genuine and profound remorse; limited previous convictions and ‘good behaviour’ in prison. The judge considered the offence to be “a moment of unaccountable and indefensible stupidity.” A 25% reduction was made from 16 years, the top of the Category B range, to reflect the indication of a willingness to plead to manslaughter at the Plea and Trial-Preparation hearing.
18.
The judge considered TP and CB’s cases to fall within Category C. They had participated in an unlawful act in which their intention was to cause ‘some harm.’ They had caused the motorcycle to stop. Culpability fell between the higher and lower categories, and the limited nature of the intention as found placed their cases towards the bottom of the relevant range. The aggravation included the fact that the van had been used as a weapon, albeit beyond their contemplation; the pain and suffering caused to Mr Crawford; the planning of the intended assault and driving away from the scene without helping the victim. TP’s mitigation was his previous positive good character and lack of previous convictions. CB’s mitigation was similar, albeit that he had some comparatively minor previous convictions.
Submissions
19.
We have had regard to all the written submissions in the Final reference and the Respondent Notices, which Counsel have adeptly amplified orally before us.
20.
Mr Little KC appears on behalf of His Majesty’s Solicitor General. He submits that, whilst all due deference must be afforded to the trial judge’s advantage over this Court in assessing the gravamen of the offence, the availability of the dash cam footage provides us with a similar insight against which to determine the application. Mr Little explicitly makes no challenge to the findings of fact made, including what had been the ‘common intent’ between the three offenders and explicitly concedes that TP and CB’s culpability is less than that of BP. The central criticism is that the trial judge failed to weigh the objective risk
and
the subjective intent of each of the offenders. If he had done so, then the offenders would fall either within a higher category of culpability, or else at the top of the range that was selected, before increasing the sentences to reflect the aggravating features which he identified.
21.
In BP’s case, the judge was correct to find that the high risk of serious harm or death posed by the driving of the van into the motorcycle was, or ought to have been obvious to the offender, regardless that his intent was found to have been to cause harm “falling just short of GBH”. Arguably, the nature of the act itself highlighted the ‘extreme character’ of the objective element of BP’s offending. However, if the ‘extreme’ character of the objective risk is predicated upon the use of the van as a weapon, then Mr Little concedes that it must not be ‘double counted’ as an aggravating feature. If the judge was not unreasonable in determining that the objective element was not of an ‘extreme’ character, the combination of subjective and objective elements was indicative of very high, or Category A, culpability. Alternatively, if the judge had reached a categorization that was reasonably open to him on the facts, then the aggravating features deserved far greater weight and, regardless of the mitigation, the sentence should have been significantly longer.
22.
In the case of TP and CB, whilst a distinction should be clearly drawn between them and BP, the offence would not have been committed if they had not been instrumental in bringing the motorcyclist to a halt. None of the factors indicating lower culpability, as identified in Category D, applied to them. They did intend some harm to befall Mr Crawford. The judge identified the relevant aggravating features and, although he was entitled to place them in Category C, it was unreasonable for him to select a starting point at the bottom of the range before discount for mitigation.
23.
Mr Brunton KC on behalf of BP reminds us that the dash cam footage is but one part of the judge’s analysis of culpability. He had observed BP during trial and had heard his evidence, and that of his character witnesses, in determining his intent. The judge found that it was an “aberration” that BP had “bumped” Mr Crawford off his motorcycle. This was equally consistent with a finding of ‘recklessness’ as identified in Category C culpability as it was an obvious high risk in Category B. Just because the judge identified it as an ‘obvious’ risk did not “worsen” what BP actually did. The speed at which he drove was not fast, the time scale in which the intention was formed was short; the tragic consequences were not intended or envisaged. It is “mechanistic” to add the culpability B factors together to reach a higher category. The judge had adopted a pragmatic approach and, after reduction for mitigation, reached the very top of the range in Category B before giving credit for the indication of plea. BP was not in a ‘leading’ role overall. The judge had reached a fair-minded conclusion that was within the reasonable band. The sentence was not unduly lenient.
24.
Mr Hughes KC on behalf of TP does not seek to defend his client’s participation in the act which brought Mr Crawford to a halt. He concedes that the jury’s rejection of an ‘overwhelming supervening act’ means that objectively they regarded TP’s (and CB’s) responsibility for the ultimate act not to have been abrogated by the unexpected action of BP. The judge was entitled to move outside the lowest category of culpability to reflect the aggravating features he identified. Thereafter, the judge plainly and correctly addressed the Sentencing Council Guidelines. He avoided an over mechanistic approach and reached an appropriate sentence which cannot be described as unduly lenient in TP’s case.
25.
Mr Stone KC on behalf of CB concedes that the sentence of 4 years is lenient but not that it is unduly so. He submits that the findings of fact made by the trial judge are critical and lead to a conclusion that a determination of culpability within Category C is clearly not incorrect or unreasonable. Since the findings of fact also admit Category D factors of culpability, it was reasonable for the judge to go to the bottom of the ‘mid’ range. The judge was clearly alive to the danger of ‘double counting‘ the aggravating features he identified in BP’s case when seen in the context of TP and CB’s circumstances.
Discussion
26.
We are in no doubt that we must accord great deference to the trial judge’s analysis of the circumstances of the offence, and agree with counsel for the three offenders that the dash cam footage, which the judge in his sentencing remarks rightly described as making for “sickening viewing”, is but one part of the sentencing exercise, particularly as regards an assessment of the offenders‘ intent. However, we agree with Mr Little that, in so far as it is necessary for us to do so, we are in as good a position as the trial judge to assess the ‘objective‘ element of the fatal incident.
27.
As it is, we do not disagree with the trial judge that the unlawful act which he described in accurate and measured terms, and which we witnessed on the video footage, “carried a high risk of death or GBH which was or ought to have been obvious to the offender.” It cannot realistically be argued that the judge’s description of the act as momentary, unaccountable and indefensible equates to ‘recklessness.’
28.
Further, we are satisfied that the judge sufficiently well recognised the aspect of vigilantism and correctly identified all aggravating features for the purpose of sentencing the three offenders.
29.
However, despite the measure of our agreement with the judge, we are persuaded that he failed to adequately reflect BP‘s subjective intent
and
the objective high risk he created of GBH or death into the assessment of overall culpability. There is an overlap between these factors in this case, but these are not two sides of the same coin. Although the judge was not unreasonable, and we find he was right, to ‘temper’ what would otherwise be arguably the ‘extreme’ character of the objective risk by reason of the comparatively lesser subjective intent, we consider that the combination elevated the offence into the category of very high culpability. We are persuaded that this error did lead the judge to pass an unduly lenient sentence in respect of BP, and that we should exercise our discretion to re-sentence him for the offence of manslaughter.
30.
We keep well in mind the respective balance of objective risk, as against BP’s subjective intent as the judge determined it to be. We caution ourselves to
“avoid an overly mechanistic application of
” factors used to inform categorisation of an offender’s culpability but are clear that BP’s culpability falls into Category A. The starting point is 18 years. The aggravating factors increase the sentence to 22 years. Previous positive good character and good behaviour in prison counts for little in the circumstances of such a case, but affording some discount we consider that the least possible sentence would be 20 years prior to reduction for indication of plea. Mr Little does not challenge the reduction made either in principle or extent and we agree with Mr Brunton that the judge was warranted to reduce the sentence by 25%. Consequently, we allow the application; we quash the sentence of 12 years in respect of manslaughter and substitute in its place a sentence of 15 years. There will be no separate penalty for the regulatory offence. The increase in the term of imprisonment impacts the order for disqualification. BP was disqualified from driving for 10 years (2 years discretionary period, 8 years extension). That part of the sentence will be quashed and substituted by an order that he be disqualified from driving for a period of 12 years (2 years discretionary, 10 years extension).
31.
However, we disagree that this finding and consequent re-sentencing exercise impacts upon the judge’s determination of the culpability of TP and CB. We do not accept Mr Little’s written submission, that the jury’s rejection of an “overwhelming supervening event “, means that the guilty verdicts necessarily indicated that they knew or ought to have known of the risk of GBH or death. The judge was entitled to regard the jury’s verdict as reflecting the continuation of the common intent to cause minor harm to Mr Crawford, as the judge found had been agreed upon between the three offenders, which was not eradicated by BP’s action of mowing down Mr Crawford.
32.
We consider the judge’s determination as to TP and CB’s respective culpability within Category C to be sufficiently articulated and to fall within the band of reasonable decisions open to him. Considering all circumstances, we tend towards the view that the sentence is lenient, but it is not unduly so. We refuse the application as regards TP and CB. | {"ConvCourtName":["Plymouth Crown Court"],"ConvictPleaDate":["2022-07-26"],"ConvictOffence":["Manslaughter"],"AcquitOffence":["Murder"],"ConfessPleadGuilty":["No"],"PleaPoint":["in front of the jury after the conclusion of the evidence"],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Plymouth Crown Court"],"Sentence":["Benjamin Parry: 15 years imprisonment (substituted on appeal), Thomas Pawley: 4 years imprisonment, Chad Brading: 4 years imprisonment"],"SentServe":["Single"],"WhatAncillary":["Benjamin Parry: Disqualified from driving for 12 years (2 years discretionary, 10 years extension)"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[59],"VicJobOffence":[],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Dash cam footage","Post-mortem examination","Telephone records"],"DefEvidTypeTrial":["Prepared statements by defendants"],"PreSentReport":[],"AggFactSent":["Use of van as a weapon","Significant if not leading role (BP)","Planning the infliction of lesser harm","Significant mental and physical suffering caused to the victim","Leaving the scene and not seeking assistance","Exposing other road users to risk of injury","Regulatory notice offence (BP)"],"MitFactSent":["Genuine and profound remorse (BP)","Limited previous convictions (BP)","Good behaviour in prison (BP)","Previous positive good character (TP)","Lack of previous convictions (TP)","Comparatively minor previous convictions (CB)"],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly lenient"],"AppealGround":["Trial judge failed to weigh the objective risk and subjective intent adequately; sentence did not reflect very high culpability for BP; sentences for TP and CB too low in range"],"SentGuideWhich":["Sentencing Council Unlawful Act Manslaughter Guidelines"],"AppealOutcome":["Allowed (BP): sentence increased to 15 years; Dismissed (TP and CB): sentences not unduly lenient"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":["Trial judge failed to adequately reflect BP's subjective intent and the objective high risk created into the assessment of overall culpability, leading to an unduly lenient sentence for BP"],"ReasonDismiss":["Judge's determination as to TP and CB's culpability within Category C was sufficiently articulated and reasonable; sentence is lenient but not unduly so"]} |
Neutral Citation Number:
[2011] EWCA Crim 524
Case No:
2011/0621/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 16 February 2011
B e f o r e
:
MR JUSTICE SILBER
THE COMMON SERJEANT OF LONDON
His Honour Judge Barker QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - -
R E G I N A
v
CC
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
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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 K Robinson
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - -
J U D G M E N T
1.
THE COMMON SERJEANT: CC is 35 years of age and a Turkish national. He appeared on 12th January 2011 at the Crown Court sitting at Leeds before His Honour Judge Hoffman having returned the day before from Turkey and there being in existence an outstanding warrant for his arrest. He was charged with failing to surrender to his bail. He pleaded guilty on that day. Two days later, on 14th January 2011, he was sentenced to nine months' imprisonment, with the two days spent on remand to count against the sentence.
2.
There is on this count an automatic right to appeal against sentence and so this matter has been referred to the Full Court in a timely manner by the Registrar.
3.
The background is this. Originally he was arrested and charged with rape. On 27th July 2009 he was due to surrender to the Crown Court but he failed to appear and thus the warrant was issued. He had fled to his native Turkey. The trial proceeded in his absence. It proceeded in May 2010 between the 18th and the 20th and the end result was acquittal. He has no known previous convictions.
4.
The learned judge in his sentencing remarks said he was making it clear that the appellant was being sentenced for this matter and not for being found not guilty on the rape count. It was nonetheless a serious attempt both to evade justice and to undermine the course of justice. The learned judge then outlined various things that had happened in the course of the trial. But he noted there had been a lengthy absence and thus a sentence towards the top end of the bracket should be merited.
5.
The written grounds are short and simple: too high a starting point and failure to take sufficient account of the plea. Miss Robinson this morning has underlined succinctly and helpfully those grounds.
6.
We have had the opportunity to consider this matter. This was a serious and a deliberate offence and it did show a complete disregard to the criminal justice system and to the court. Nevertheless, there must be a clear distinction between that attitude and his bizarre behaviour in conducting the trial whilst he was out of the jurisdiction. In our judgment the sentence in what is a most unusual and probably unique case is too high. It must be marked by an appropriate sentence which is towards the top end, but we think in our judgment the justice of the case can be met by a sentence of six months. We will quash the original sentence of nine months and substitute a sentence of six months. To that extent the appeal is allowed. | {"ConvCourtName":["Crown Court at Leeds"],"ConvictPleaDate":["2011-01-12"],"ConvictOffence":["Failing to surrender to bail"],"AcquitOffence":["Rape"],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[2],"SentCourtName":["Crown Court at Leeds"],"Sentence":["9 months' imprisonment"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[35],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["lengthy absence","serious and deliberate offence","complete disregard to the criminal justice system"],"MitFactSent":["pleaded guilty","no known previous convictions"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["too high a starting point","failure to take sufficient account of the plea"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Sentence Reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["sentence in a most unusual and probably unique case is too high"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
No:
2009/4605/A7
Neutral Citation Number:
[2009] EWCA Crim 2204
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 18 September 2009
B e f o r e
:
LORD JUSTICE HOOPER
MRS JUSTICE COX DBE
MR JUSTICE IRWIN
- - - - - - - - - - - - -
R E G I N A
v
MICHAEL MAY
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Miss Y Kresner
appeared on behalf of the
Applicant
- - - - - - - - - - - - -
J U D G M E N T
1.
MRS JUSTICE COX: This applicant, Michael May, who is now 53 years of age, pleaded guilty at the Southend Crown Court to recklessly acting in a manner likely to endanger an aircraft, contrary to article 73 to the Air Navigation Order 2005 made under the
Civil Aviation Act 1982
. On 31st July 2009 he was sentenced to a term of six months' imprisonment. His application for leave to appeal against that sentence has been referred directly to this court.
2.
The facts briefly are these. Whilst on holiday in Thailand, the applicant, who lives in Chadwell St. Mary in Essex, had purchased a laser device as a novelty. In the early hours of the morning on 25th April 2008 the crew of a police helicopter, who were carrying out a surveillance mission, were flying over Chadwell St. Mary when the applicant, who lived in a block of flats, shone the laser light into the cockpit of the helicopter. As a result the pilot was temporarily dazed and disoriented and had to terminate the surveillance. The crew were then forced to terminate the search in order to avoid potential injury to themselves. They were, however, able to identify the source of the light using thermal imaging and identified the block of flats, where the officers saw a window open and the applicant standing at it. Subsequently officers attended the flats and arrested the applicant.
3.
In his written basis of plea the applicant denied that his shining of the light was a deliberate and sustained attack by him, but he did accept that his actions were in all the circumstances reckless. He therefore fell to be sentenced on that basis.
4.
The applicant had only one previous conviction in 1996 for three offences of dishonestly obtaining property by deception for which he was fined. The judge treated him as effectively a man of good character.
5.
Passing sentence upon him, the judge referred to the very grave risks he had caused, creating life-threatening danger to the pilot, his crew and to members of the public on the ground if there had been an accident. He also referred to the fact that the use of such lasers was becoming increasingly common and to the need for a deterrent sentence in the circumstances. He took the view that the offence was so serious that only an immediate custodial sentence could be justified. He took into account the fact that no accident or injury was in fact sustained on this occasion and he had regard in addition to the applicant's personal mitigation, which included a number of continuing health problems. The sentence imposed was one of six months' imprisonment.
6.
On the applicant's behalf, Miss Kresner accepts, realistically, that this was a serious offence which crossed the custody threshold. She submits essentially that the judge failed sufficiently to take into account the applicant's significant disabilities. The applicant was seriously injured in a motorcycle accident in 1997. As a result of his injuries he now has limited mobility in both legs, needing a stick to walk even for short distances, and he has lost the use of his left arm and hand. He lives in sheltered accommodation and requires special equipment and adaptations to assist with his daily living. Miss Kresner's submission is that in view of those disabilities the custodial sentence imposed should have been suspended.
7.
We cannot accept these submissions. This was, as she acknowledges, a very serious offence and the judge was entitled to regard it as such. As the judge observed, the applicant's reckless behaviour not only endangered the lives of the helicopter crew but put at risk members of the public on the ground if there had been an accident. The consequences were potentially catastrophic. We accept of course that the applicant has a number of permanent disabilities which create problems for him in everyday living, but in our view the judge adequately took these into account in imposing the sentence that he did. We note in addition that the prison reports available to us today refer to the fact that the applicant's mobility problems have not prevented him from engaging in a variety of prison activities and courses, which have been of real benefit to him. In our judgment this sentence cannot arguably be said to be manifestly excessive or wrong in principle and we therefore refuse leave to appeal.
8.
We would add the following observations in this case. We note that, notwithstanding the applicant's plea to acting recklessly, the judge conducted a
Newton
hearing, apparently in order to determine whether on the facts the applicant's conduct had amounted to a deliberate and sustained attack on the helicopter. In our judgment this was an unnecessary step. By his plea the applicant had admitted that he was aware of the risks posed by what he was doing, but nevertheless continued deliberately to shine the light at the helicopter. It was therefore unnecessary, for the purposes of considering the appropriate sentence, to enquire further into the facts or the applicant's conduct at the time.
9.
We refuse leave to appeal against the sentence for the reasons we have given. | {"ConvCourtName":["Southend Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Recklessly acting in a manner likely to endanger an aircraft, contrary to article 73 to the Air Navigation Order 2005 made under the Civil Aviation Act 1982"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[],"SentCourtName":["Southend Crown Court"],"Sentence":["6 months' imprisonment"],"SentServe":["Single"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[52],"OffJobOffence":["Unemployed"],"OffHomeOffence":["Temporary Accommodation"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["crew of a police helicopter"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Temporary Accommodation"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Thermal imaging identification"],"DefEvidTypeTrial":["Written basis of plea"],"PreSentReport":[],"AggFactSent":["Created life-threatening danger to pilot, crew, and public; use of lasers becoming increasingly common; need for deterrent sentence"],"MitFactSent":["No accident or injury sustained; personal mitigation including continuing health problems; effectively a man of good character"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge failed to sufficiently take into account applicant's significant disabilities; sentence should have been suspended"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["This was a serious offence; judge was entitled to regard it as such; judge adequately took into account disabilities; sentence not manifestly excessive or wrong in principle"]} |
No:
200803398/A1
Neutral Citation Number:
[2008] EWCA Crim 2022
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 19th August 2008
B e f o r e
:
MR JUSTICE GAGE
MR JUSTICE TREACY
MR JUSTICE BEAN
- - - - - - - - - - - - -
R E G I N A
v
ISHMAEL JOHN
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Tel No: 020 7404 1400 Fax No: 020 7831 8838
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Mr T Jacobs
[solicitor advocate] appeared on behalf of the
Appellant
- - - - - - - - - - - - -
J U D G M E N T
1.
Lord Justice Gage: This appellant, Ishmael John, is now aged 24. On 30th April 2008 at Leeds Crown Court he pleaded guilty to two offences of possession of false identity documents with intent and one offence of possession of a false identity document. So far as the first two offences are concerned, he was sentenced to 15 months' imprisonment on each to run concurrently. So far as the third offence of possessing a false identity document, he was sentenced to six months' imprisonment concurrent with the other offences. The total sentence was therefore 15 months' imprisonment. Two further offences of possessing false identity documents were left on the file on the usual terms. He appeals by leave of the single judge.
2.
The circumstances of the offences are as follows. The appellant is a native of Zimbabwe. He and his family apparently supported the opposition party in that country and were, as a result, targeted with threats of violence. He arrived in this country on a date which is not entirely clear from the documents but is either 2002 or 2003. He applied for asylum on arriving in this country. His claim was refused in 2004, because in the view of the Home Office at that stage the political situation in Zimbabwe did not support the grant of asylum. He remained apparently in contact with the Home Office throughout his time in this country and has reported to them.
3.
In August 2007 he bought a false Malawian passport and a Home Office resident permit from an acquaintance. The documents were used to register with an employment agency in Leeds. He subsequently obtained employment via the agency for a total of some four days. The use of the documents to register with the employment agency is the conduct covered by the first two offences to which he had pleaded guilty.
4.
When the matters came to light, the appellant was arrested in March 2008. His home address was searched and a forged Home Office letter purporting to give him indefinite leave to remain in this country was found. He accepted in interview that he had obtained this letter with the intention of using it in a similar way to obtain employment. Possession of this document represented the third offence to which he pleaded guilty. In addition, he admitted in interview to further occasions on which he had obtained short periods of employment using false documents. Those matters were the two offences which were taken into consideration when he was sentenced.
5.
He is a man with one previous conviction of a minor nature in November 2003. It was for an offence of threatening and abusive behaviour.
6.
There was a pre-sentence report before the court which recommended a community order with a requirement of supervision and unpaid work. It was said that there was a low risk of him reoffending.
7.
In sentencing him the judge, having set out the facts as we have recorded, came to the conclusion that it was inevitable that an immediate custodial sentence should be passed. At page 3 of the transcript of the sentencing remarks, line 3, the judge said:
"On your behalf, Mr Jacobs has urged in your favour your plea of guilty, which I take into account and give full credit for. He also says you had rather have worked honestly. That may be true, but the fact is that you did work dishonestly. And although you have not claimed support from the National Asylum Support Service, although you would be entitled, I am satisfied that there was a reason for that, namely that you wanted to keep your remuneration out of sight of the authority."
8.
The judge went on to explain that these sort of offences had been considered by the Court of Appeal Criminal Division on a number of occasions and regarded as serious offences. He said:
"All these offences strike at the heart of immigration policy and deterrent sentences are called for."
In the circumstances he imposed the sentences to which we have previously referred.
9.
The grounds of appeal put forward by Mr Jacobs on behalf of this appellant focus on a recent decision of this court which was probably not before the judge. That is a decision in
Attorney General's Reference Nos 1 and 6 of 2008
[2008] EWCA Crim 677
. The court in that case dealt with two reference by the Attorney General involving similar offences to those with which we are concerned. However, the facts of the two reference were quite different. One,
Laby
, involved what the court described as an offence designed to undermine immigration control. The other,
Dziruni
, was quite different and has some but not complete similarities with the appeal before us.
10.
The respondent Dziruni was a native of Zimbabwe, who, like this appellant, entered this country on a valid passport. He was refused asylum but remained in this country and believed that he was not entitled to support from the National Asylum Support Service. Accordingly, he purchased and used false documents to obtain work. He did not want to be a financial burden on his family. He was sentenced by the judge to six months' imprisonment suspended for two years with an order that he performed 80 hours unpaid work. Of him the court said at paragraph 19:
"Judge Murphy [the sentencing judge] was faced with, on all the evidence, a decent young man, looking to find work and to earn more than £35 weekly subsistence allowance vouchers. He felt that he was a burden to his family and he wished to lift the burden. So he bought these false documents in order to enable him to obtain work. He knew he should not be doing so; he pleaded guilty. We emphasise, he was not someone hiding or trying to avoid removal out of this country, or using the documents for that purpose. His status may appear clear enough in law but in practice it was, to put it neutrally, confused. Precisely what his legal status is does not matter for the moment, but what is clear is that the authorities in this country were not prepared to, and did not intend to do anything to procure his removal because of the situation in his home country."
11.
We pause there to record that it is submitted on behalf of the appellant in the instant case that his immigration status was precisely the same as that of Mr Dziruni in the case which the court was dealing with in the
Attorney General's Reference
.
12.
Of the sentence imposed by the judge the court in the Attorney General's case,
Dziruni
, after dealing with the reference in respect of
Laby
, said at paragraph 31 and 32:
"Dziruni is a quite different case. The decision of Judge Murphy is not, in our judgment, open to the slightest criticism. The facts which he spelled out with such care speak for themselves. Suspending a sentence and requiring the offender to do some work for the country will sufficiently punish him and offer practical value to the community.
We understand that, in the light of the authorities and in the way in which a number of courts (we are told Manchester and Sheffield) have been approaching these issues, this application was justifiably made. We must, however, record that the sentence of Judge Murphy was not a lenient sentence at all. It was therefore certainly not an duly lenient sentence. It was a merciful sentence, in a case where the exercise of the judicial quality of mercy was entirely appropriate."
Accordingly the court refused to interfere with the sentence.
13.
As we say, it seems unlikely that this decision was before the learned judge. There are, however, some differences between the facts in that case and in the instant case. In the instant case the appellant used two different identities. In addition, the judge recorded that he was intending to keep out of sight of the authorities. Furthermore, he had one previous conviction, for admittedly a minor offence. Nevertheless, the decision in the
Attorney General's Reference
case is of significance.
14.
However, there are other decisions of this court which suggest that for offences such as these the appropriate sentence is in the region of 12 to 18 months: see, for instance, the decision in
Kolawole
[2005] 2 Cr App R(S) 14. Although this is not, as said by the court, specifically to be a guideline decision, it remains a case of some significance. In
R v Mabengo
[2008] EWCA 1699 the court took the opportunity of stressing the significance of
Kolawole
in cases of this sort.
15.
At paragraph 10 of the judgment of the court in
Mabengo and others
Goldring J, giving the judgment of the court, said of the four appellants before it:
"10. These four appellants had failed in their applications for asylum. It may be that they had subsequently renewed them. They remained in the United Kingdom. They knew they could not work. In order to deceive and to avoid their true status being discovered, they used false passports. That is a matter which in our view merits a more serious penalty than that that was substituted by this court in
Mutede
. It seems to us that the judge was entitled to impose sentences of twelve months' imprisonment and that they were not manifestly excessive or wrong in principle."
16.
So far as this appeal is concerned it seems to us that the facts of this case falls somewhere between the decision in
Mabengo
and the decision of the court in the
Attorney General's Reference of 2008
. There are differences in the instant appeal between all those authorities. The important fact, it seem to us, in this case is that this appellant is a Zimbabwean whose status in this country remains uncertain.
17.
However, taking into account all the facts of this case, we have reached the conclusion that an immediate custodial sentence was inevitable. We conclude that the sentence passed by the judge was longer than was necessary and was manifestly excessive. In the circumstances what we propose to do is to quash the sentences of 15 months' imprisonment. For those we propose to substitute sentences of eight months' imprisonment, each to be concurrent. The remaining sentence in respect of the third offence will stay as it is. Accordingly, the total sentence is eight months' imprisonment. To that extent and for those reasons this appeal is allowed. | {"ConvCourtName":["Leeds Crown Court"],"ConvictPleaDate":["2008-04-30"],"ConvictOffence":["possession of false identity documents with intent","possession of a false identity document"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Leeds Crown Court"],"Sentence":["15 months' imprisonment (two counts, concurrent)","6 months' imprisonment (concurrent with other offences)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":[],"OffAgeOffence":[24],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["used two different identities","intending to keep out of sight of the authorities","previous conviction (minor offence)"],"MitFactSent":["plea of guilty","did not claim support from the National Asylum Support Service"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence was manifestly excessive"],"SentGuideWhich":["Attorney General's Reference Nos 1 and 6 of 2008 [2008] EWCA Crim 677","Kolawole [2005] 2 Cr App R(S) 14","R v Mabengo [2008] EWCA 1699"],"AppealOutcome":["Appeal allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["sentence passed by the judge was longer than was necessary and was manifestly excessive"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2009] EWCA Crim 1871
Case No:
0805161 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 12 June 2009
B e f o r e
:
LORD JUSTICE SCOTT BAKER
MR JUSTICE KING
HIS HONOUR JUDGE MOSS QC
(Sitting as a Judge of the Court of Appeal, Criminal Division)
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R E G I N A
v
FAISAL KHAN MOHAMMAD
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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)
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Mr J Stone
appeared on behalf of the
Appellant
Miss A Felix
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE SCOTT BAKER: HHJ Moss will give the judgment of the court.
2.
HIS HONOUR JUDGE MOSS: On 16 September 2008 at the Crown Court at Isleworth, the appellant was convicted of wounding with intent to cause grievous bodily harm and was sentenced by Mr Recorder Mulholland to five years' imprisonment. He now appeals against conviction by leave of the single judge.
3.
On 25 March 2008 at about 7.30pm, Mr Gafur, the complainant, approached the appellant on the forecourt of a Tesco petrol station in Syon Lane, Osterley, to remonstrate with him about his driving. During the incident that followed, the complainant received injuries to his face, shoulder and hand, which were caused by the appellant's Stanley knife. The prosecution case was that when the complainant had approached the appellant to speak to him about his driving, the appellant, who already had a knife in his hand, reacted aggressively and slashed the complainant's face. The complainant responded by punching the appellant, and a struggle ensued. Mr Jehlwal, the appellant's companion, then pulled the complainant off the appellant and punched him twice in the face.
4.
The defence case was self-defence. It was the complainant not the appellant who was the aggressor. He had come up to the appellant with his fist clenched and then punched the appellant in the face. The appellant slapped him back, and in the struggle that followed, the complainant had grabbed the appellant's beard, pulled his face down and placed him in a dangerous choke hold. The appellant had been forced to take out his Stanley knife and slash the complainant with it in order to break the hold. The issue for the jury was whether the appellant was the aggressor or had acted in self-defence.
5.
The complainant gave evidence that on the evening of the incident he was driving along Boston Manor Road towards the A4 in his Ford Fiesta with his friend, Miss Aggarwal, when he noticed a blue van in the left lane. The van overtook him on the inside and then swerved into his lane causing the complainant to brake sharply. Both vehicles turned into Syon Lane, at which point the van was again behind him. The lanes merged into one, and the van driver, who was driving fast and erratically, swerved into the right lane causing the complainant to brake yet again. As they drove towards a mini roundabout the complainant sounded his horn, and the van driver responded by braking sharply several times. On the roundabout the van driver made a gesture and shouted at him. As a result he missed the turning to the Tesco petrol station where he was going.
6.
When he arrived at the petrol station he saw the blue van and went up to the appellant to make him aware of his driving. He asked, "What's up with your driving? You're going to hurt someone". The appellant, who had a knife in his hand, replied, "Do you want to fight me?" and took a few steps towards him. The appellant then slashed him across the left side of his face. Initially he thought he had been punched, and he responded by punching the appellant just behind the left ear. He then noticed the blood, pushed the appellant to the ground and they began to struggle. He was on top and held the appellant's left hand in which the knife was held in an attempt to disarm him. He held his other hand over the appellant's body. Miss Aggarwal got out of the car and said, "Please let go, he's a police officer". He was not in fact a police officer, but was nearly halfway through training.
7.
The appellant told him to get off and threatened to kill him if he did not do so on the count of three. As a result the complainant used his right hand to take hold of the appellant's hair. The appellant said that his friend was on the way and made further threats. Jehlwal then arrived, put one hand in the facial wound and pulled him off the appellant. Jehlwal punched him in the face twice, and then made his way to the van with the appellant. The appellant had tried to loosen his grip with the knife which caused the injuries to his wrist, but he was not sure when the injuries to his armpit occurred.
8.
In cross-examination he confirmed that he knew about approved restraints, dangerous locks and the difference between them from his training at Hendon. He denied going into Tesco to confront the appellant, or that he was still pressing his horn as he drove onto the forecourt. He also denied confronting the appellant aggressively or punching him. He did not, he said, grab the appellant's beard, pull his head down to crutch level and execute the hold that was shown in an exhibit placed before the court. He did not know anything about the hold. He also denied that the appellant was shouting that he should get off.
9.
Miss Aggarwal gave evidence. She confirmed that she was in the car with the complainant, and that the blue van, which was driving erratically, had cut in front of them on two occasions. On the second occasion the complainant hooted at the van, which then accelerated and stopped several times. This had confused the complainant, who missed the turning into the Tesco petrol station. They saw the blue van as they approached the petrol station. The complainant got out, went up to the appellant and said, "What's up with your driving?" She heard the appellant shout a response. The complainant, she said, was calm. As she looked out of the car to see what was going on, she saw arms flying around. She then saw the complainant fall to the ground, but could not get a proper view, and so she got out of the car and ran towards them. She saw the complainant and the appellant scuffling on the floor. The complainant was on top of the appellant, who was holding a Stanley knife in his right hand restraining him. She shouted continually, "He's a police officer, leave him alone". The appellant replied, "Tell him to get off me then". She was screaming, she said. People were watching but no one intervened. The appellant was swearing in an aggressive tone. She saw blood spurting out of his face, and then saw an Asian man running towards them. She thought he was going to help, but he grabbed the complainant from the back. The man and the appellant then punched the complainant. She continued screaming that the complainant was a police officer, and then said that the police were there. Both attackers then ran towards the van and drove off.
10.
In a statement read to the court, a doctor said that the cut to the complainant's mouth required over 30 stitches, and the cut to the left hand severed a tendon.
11.
The officer in the case gave evidence that the appellant gave a no comment interview, and thereafter produced a pre-prepared statement. One Anita Verma said that she worked as a civilian for the Metropolitan Police, and on 28 April 2008 she spoke to the appellant's wife, who reported that a van had been stolen from the junction of Victoria Road and St Leonard's Road in Ealing. According to Mrs Mohammad, the van was last seen on 25 March 2008.
12.
The appellant gave evidence that he was in the building trade and ran his own business. He had a clean licence, which he needed for his job as he drove frequently. He said that he is five feet, five inches tall, nine and a half stone and suffers from asthma. On 25 March he left home in the evening to pick up Jehlwal at Tesco's, and then go to the property he was working on in Morden. He did not notice the red Fiesta on Boston Manor Road, and he turned right onto the A4 and then drove up to the traffic lights with Syon Lane. He was in the left lane, a Mondeo was in the right, and the Ford behind it. In Syon Lane the road merged into one lane and he indicated, stuck his head out to stay thank you, and moved in front of the Fiesta. The Fiesta hooted, and when he looked into his rear mirror he saw the complainant gesticulating. The Fiesta, he said, then followed him through a mini roundabout, hooting and tailgating him. He was concerned, so at the second roundabout he went around entirely. The complainant followed him part of the way and then drove off. He then headed towards the Tesco garage. As he was standing at the pump, he saw the Fiesta driving back.
13.
The complainant, he said, got out and walked towards him with his fist clenched saying, "You fucking cunt, shall I teach you how to drive?" He, the appellant, was taken aback and replied, "I don't want no trouble, leave it out". The complainant ignored him, so he repeated himself, and was about to say it again when the complainant struck him in the face. He stepped back and then slapped the complainant to the left side of the face. The complainant, who was very angry, reached for his hair, pulled his face down and put him in a particular hold. He grabbed the complainant's legs and they both dropped. He fell forward on all fours. The complainant was sitting on the pedestal facing him. The grip was hard and he could not breath. He tried unsuccessfully to move the complainant's hand and begged him to stop. He then reached for the Stanley blade in his belt thinking that the complainant would let him go, but the grip tightened, so he waved the knife around three times in a circular movement before blacking out. He thought he was going to die, and the complainant would not let go. It was very painful and he could not breath. He only used three blows, and the next think he remembered was sitting back and taking a deep breath. He got up and ran to the van, drove a short distance and stopped. Jehlwal got in and they drove off. Jehlwal then jumped out after 20 metres and got into his own car.
14.
He, the appellant, suffered a bloody nose, cuts and scratches and a sprained neck. He decided not to go to work, and went to his mother-in-law's house to change his clothes and unload his van. He threw the knife in a public bin as there was no reason for him to be carrying one. He then went to his parents before going to stay at a mosque in Dewsbury.
15.
On 8 April, he contacted solicitors in Manchester and agreed to surrender to the police. He cut his hair beforehand as he was scared the police would catch and hurt him. He heard that the next day police had terrorised his family. He surrendered and was taken to Hounslow Police Station, where on the advice of his solicitor he gave a no comment interview. At the end of the interview he gave in his prepared statement. He denied that he had removed the tax disc and registration plates from the van. He left it near his mother-in-law's on 25 March, which was the last day that he had seen it.
16.
Cross-examined, he denied arming himself when he saw the Fiesta coming towards the petrol station. He accepted that he may have inflicted the injuries on the complainant, but denied doing so intentionally. He said that when the complainant was choking him, the complainant had said, "I'm going to kill you, I'm going to kill you". He did not remember this when making his statement. He confirmed that the complainant first approached him at the petrol station with the words, "You fucking cunt, I'm going to teach you how to drive". He did not give this specific detail in his prepared statement, but the gist of it was there. He accepted that he was cautioned prior to interview, but said the solicitor did not explain the meaning to him. He hid after the incident, and did not go to hospital to have his injuries seen to because he was scared. He did not trust the police, and feared that he would be harmed. He had not mentioned Jehlwal's name in interview because he said no one asked him about it. He was not listening to the questions and did not look at the transcript of the interview, with which he was provided later. He conceded later that he might be wrong about not being asked to name the person he was with.
17.
Jatinder Jehlwal said that he had known the appellant for eight years. They had agreed to meet at the Tesco garage, and he arrived shortly after 7 o'clock. On the forecourt he saw the appellant and the complainant fighting. The complainant had the appellant in a headlock between the pump and the van, and the appellant could not breath properly. He grabbed the complainant from one side and pulled him about two feet away. The appellant got up looking a bit dazed and got into the van. He said to the complainant, "Look at the state of you, go away", and then he got into the van. He denied punching the complainant and putting his fingers in the cut on his face. Cross-examined, he denied collaborating with the appellant or discussing the case with the appellant's family. He accepted that, after he pulled the complainant off the appellant, the appellant did not appear to black out.
18.
Eight character witnesses gave evidence of the appellant's good character, describing him as a trustworthy, reliable and hardworking individual who goes beyond the call of duty in his charity work and is not easily moved to anger. By his grounds of appeal, the appellant contends that his conviction is unsafe in that the Recorder erred in directing the jury that they were entitled to draw an adverse inference under
section 34 of the Criminal Justice and Public Order Act 1994
, where the appellant had exercised his right to silence in interview, but had given the police a full account of the incident in a pre-prepared statement from which it is said that he did not depart in evidence.
19.
Miss Felix, who appears for the respondent before this court and who appeared for the prosecution in the Crown Court, persuaded the Recorder that a direction pursuant to
section 34
was appropriate by reason of three matters, all of which had been raised in cross-examination with the appellant at trial: first, that the complainant's first words to the appellant on the garage forecourt were, "You fucking cunt, I'm going to teach you how to drive"; second, that while choking the appellant, the complainant had said, "I'm going to kill you, I'm going to kill you"; and third, that the appellant had not named in interview his companion, Mr Jehlwal.
20.
As to the first matter, the appellant had said in his prepared statement, "The Asian man jumped out of the car. He walked around the pump towards me. He was swearing and talking about my driving". As to the second, the appellant had said in his prepared statement, "I thought he was going to kill me". As to the third, while the appellant had not named his companion in his prepared statement and had failed to name him when asked in interview, he volunteered his name in his defence case statement served upon the prosecution before trial. In his defence case statement, the appellant said that he stood by his account given in his prepared statement.
21.
Mr Stone, who appears for the appellant and who appeared for him at trial, submits that the prepared statement could not have been fuller. It dealt with all material particulars. It contained no significant omissions. It was not inconsistent with the positive defence advanced at trial. There was no legitimate room for an adverse inference to be drawn against the appellant under
section 34
. He submitted in those terms to the Recorder. He submits to us that the Recorder adopted an overtechnical and unfair approach on the facts of this case. He should have directed the jury that no adverse inference was open to them by reason of the appellant's silence in interview.
22.
Mr Stone submits that the Recorder erred in giving the direction on the
section 34
, because the objective sought to be achieved by that section is early disclosure of a suspect's account, and not separately and distinctly subjection to police cross-examination. There is no place for any adverse inference where the defendant gave to the police his full account in a pre-prepared statement from which he did not depart in evidence, and this is so notwithstanding that it was not given in response to questioning, and it that he said no comment to all subsequent police questions. He relies for that proposition on the case of
R v Knight
[2004] 1 Cr App R 9
, a decision of this court. Of course, as Mr Stone rightly concedes in his grounds of appeal, in that case Laws LJ made it "crystal clear" that of itself the making of a prepared statement gives no automatic immunity against adverse inference under
section 34
.
23.
That proposition was emphasised by this court in
R v Turner (Dwaine)
[2004] 1 Cr App R 24
in which my Lord, Scott Baker LJ, said:
"Of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under s.34 ... It may be incomplete in comparison with the defendant's later account at trial or it may be inconsistent with that account. This court notes a growing practice, no doubt on advice, to submit a pre-prepared statement and decline to answer any questions. This, in our view, may prove to be a dangerous course for an innocent person who subsequently discovers at the trial that something significant has been omitted. No such problems would arise following an interview where the suspect gives appropriate answers to the questions."
24.
In this case, we have some sympathy with the contention that, so far as the first two matters are concerned, the appellant was doing no more than putting flesh on the bones of the facts which he had already clearly set out, namely the words said to have been spoken by the complainant when he swore, and the threats to kill which fortified the appellant in his belief that he was going to be killed by the complainant. As to the failure to name the companion, it cannot be said that the prosecution suffered any prejudice, or that the appellant gained any advantage by the refusal to name him in interview. He was, after all, correctly identified in the defence case statement such that it was possible to bring him to trial jointly with the appellant, although the prosecution did not proceed against him in the Crown Court on the charges faced by this appellant.
25.
It is clear from the summing-up that all these aspects of the case were pursued in cross-examination of the appellant at trial by Miss Felix. The jury were reminded of it. No doubt, Miss Felix was also able to comment to the jury along the lines advanced to this court, namely that the appellant was simply attempting falsely to vilify the complainant in order to bolster a dishonest defence of self-defence. Nevertheless, we are not prepared to say that the Recorder was wrong in law to give the jury the direction under
section 34
. It was a finely balanced decision, and the Recorder was entitled to come to the decision that he did.
26.
Nor are we impressed by the complaint made by Mr Stone that the Recorder failed adequately to remind the jury of the contents of the pre-prepared statement. He referred to the document and its contents more than once when dealing with the
section 34
direction, and the jury will have been provided with a copy of it. The statement was referred to by the Recorder in the course of his review of the appellant's evidence.
27.
This was a trial in which the fundamental issue was one of self-defence. It is clear that the jury listened to detailed and compelling evidence, which was fully tested, of the complainant and other witnesses of fact called by the Crown, and to the evidence of the appellant himself, supported by Mr Jehlwal, together with the evidence of a number of character witnesses. The
section 34
direction was carefully and fairly given.
28.
We are satisfied that, even were it given in error, which we doubt, it did not play any central part in the trial such that the jury were invited or likely to concentrate upon it to the prejudice of the appellant. The jury's attention was firmly directed by the summing-up to the factual issues in the case as raised by the evidence. In all the circumstances of this case, we are satisfied that the conviction of the appellant cannot be said to be unsafe, and this appeal is accordingly dismissed. | {"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":["2008-09-16"],"ConvictOffence":["Wounding with intent to cause grievous bodily harm"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Isleworth"],"Sentence":["5 years' imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Student"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Victim testimony","Eyewitness testimony","Medical report"],"DefEvidTypeTrial":["Offender denies offence","Self-defence claim","Character witnesses"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no relevant previous convictions","Good character evidence"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Recorder erred in directing the jury that they were entitled to draw an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994"],"SentGuideWhich":["section 34 of the Criminal Justice and Public Order Act 1994"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Recorder was entitled to give the direction under section 34; no prejudice to the appellant; conviction cannot be said to be unsafe"]} |
Neutral Citation Number: [2004] EWCA (Crim) 669
Case No:
2004 00140 A4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BASILDON
HH JUDGE LOCKHART
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
26 March 2004
Before :
LORD JUSTICE THOMAS
MR JUSTICE HOLLAND
HIS HONOUR JUDGE MICHAEL BAKER QC
(Sitting as an Additional Judge of the Court of Appeal)
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Between :
RICHARD THOMPSON
Appellant
- and -
THE QUEEN
Respondent
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Mr N Casey
for the Appellant
Hearing dates : 16,17 March 2004
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JUDGMENT
LORD JUSTICE THOMAS:
1.
On 31 October 2003 the appellant pleaded guilty to 12 counts of possession of indecent photographs or pseudo photographs of children contrary to s. 160(1) and (2A) of the
Criminal Justice Act 1988
; 11 of those counts related to specific images while the last count related to 3,735 other images in the defendant’s possession. On the 28 November 2003 he was sentenced by HH Judge Lockhart at Basildon Crown Court to 2 years imprisonment on each count, such sentences being concurrent with each other. He appeals against that sentence with leave of the Single Judge.
2.
The facts can be briefly summarised. The appellant was a man of 52 years of age. He ran his own business of fitting windscreens to buses. He was married with 3 children. One of those was aged 11, but the others were adults.
3.
On 26
th
March 2003 a search warrant was executed at the appellant’s home address. His computer was seized. When it was examined, it was found to have contained over 3,700 indecent images of children which had been downloaded from commercial sites on the internet, but subsequently deleted. When being interviewed he initially denied knowledge of the images but at a second interview in July 2003 admitted possession of the images. He said he had downloaded them from the internet, but then deleted them.
4.
As a consequence of his arrest and the discovery of the indecent photographs, he has been rejected by his family. He was of previous good character. There were two reports before the court which sentenced him; one of those was from a social worker who had been conducting individual sessions which he had attended. There was before us, in addition, a report from the prison at which the appellant was serving his sentence. This was a positive report which showed he had been making good use of his time in prison.
5.
In sentencing the appellant the learned Judge referred to the photographs which he had seen which related to the 11 specific counts. He described them as showing:
“in very unpleasant focus and close up, young girls engaging in sexual activity – intercourse – with other people (some adult, certainly). It is gross behaviour to be adopted towards any young child. In this case, two of the children were aged between five and six. It really does not bear thinking about as to what those little girls are going to make of their lives in later years, because each of them is a victim. Whether they will ever be able to recover from this is something that none of us will know”.
6.
He then referred to the fact that not only was he dealing with those specific images, but
“with another 3,735 cases – some of which (and I do not know how many) being category 4, in other words towards the more serious end of the scale of offending of this sort.”
7.
In his reference to category 4, the learned Judge was referring to the guideline case of
R v Oliver
[2002] EWCA Crim 2766
, 2003 2 Cr.App.R.(S.) 15 where at paragraph 10, Rose LJ giving the judgment of the Court categorised the levels of pornographic images of children as:
“ (1)
images depicting erotic posing with no sexual activity;
(2)
sexual activity between children, or solo masturbation by a child;
(3)
non-penetrative sexual activity between adults and children;
(4)
penetrative sexual activity between children and adults;
(5)
sadism or bestiality.”
8.
The Court made clear that among the factors to be taken into account in sentencing in such cases were whether the images were photographs or pseudo-photographs and the quantity of images at the different levels that the defendant had in his possession:
“15. Possession, including down-loading, of artificially created pseudo-photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children. But there may be exceptional cases in which the possession of a pseudo-photograph is as serious as the possession of a photograph of a real child: for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph. It is also to be borne in mind that, although pseudo-photographs lack the historical element of likely corruption of real children depicted in photographs, pseudo-photographs may be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable, and there to have equally corrupting effect. It will usually be desirable that a charge or count in an indictment specifies whether photographs or pseudo-photographs are involved.
….
“17. In relation to more serious offences, a custodial sentence between 12 months and three years will generally be appropriate for (a) possessing a large quantity of material at levels 4 or 5, even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at level 3; or (c) producing or trading in material at levels 1 to 3”…..
9.
In this particular case:
i)
The indictment did not identify whether the photographs in question were real photographs or pseudo-photographs, but it was accepted on the appellant’s behalf that the images were real photographs.
ii)
Save for one count, the indictment did not identify by its “jpg” or similar reference which count in the indictment related to which image; again counsel was able to agree which the images were when we viewed them.
iii)
In respect of the count in the indictment which covered possession of 3,735 other photographs, there was no information whether by way or schedule, admission or otherwise, as to the number of photographs which fell into each of the levels identified by this Court in
Oliver
.
iv)
Although the charge sheet which was provided to us to enable us to identify the photographs when we viewed them gave an indication of the age of the children in question by reference to “under 5” in one case and “under 10” or “under 12” or “under 16” in other cases, there was nothing before the Judge which contained any agreement on the age of the child. Again it was accepted on behalf of the appellant that the Judge had correctly identified the age of the children in two of the images as referred to in paragraph 5 above.
10.
Although three of the issues to which we have referred were resolved by counsel’s acceptance on behalf of the appellant of the position described, the position was different on the important issue as to the breakdown of the 3,735 images into the quantities at the different levels. Enquiries made on our behalf confirmed that the prosecution had not provided any schedule listing the 3,735 images and no question was raised by the Judge as to the deficiency in the information provided in respect of these images; it seems to us that the Judge allowed himself to be placed in a very difficult position in this case by not requiring to be told of the approximate number of images at each level contained in the count relating to the 3,735 images, so that he could properly proceed to sentence in accordance with the guidelines set out in
Oliver.
11.
In the light of the experience of some of the members of this constitution of the court and questions we raised with counsel, it appears that the situation that arose in this case is not uncommon. We would therefore suggest that in each case of this kind the following practices should be adopted in the drafting of indictments. The same practices might also be adopted in the selection of images for presentation in summary proceedings:
i)
In cases where there are significant numbers of photographs, in addition to the specific counts, the inclusion of a comprehensive count covering the remainder is a practice that should be followed.
ii)
The photographs used in the specific counts should, if it is practicable, be selected so as to be broadly representative of the images in the comprehensive count. If agreement can then be reached between the parties that (say) 5 images at level 2, 10 at level 3, and 2 at level 4 represent 500 level 2, 100 level 3 and 200 level 4 images in the comprehensive count of 800 images, the need for the judge to view the entirety of the offending material may be avoided.
iii)
Where it is impractical to present the court with specific counts that are agreed to be representative of the comprehensive count there must be available to the court an approximate breakdown of the number of images at each of the levels. This may best be achieved by the prosecution providing the defence with a schedule setting out the information and ensuring that the defence have an opportunity, well in advance of the sentencing hearing, of viewing the images and checking the accuracy of the schedule.
iv)
Each of the specific counts should in accordance with what was stated by this court in
Oliver
make it clear whether the image in question is a real image or a pseudo-image; the same count should not charge both. As this Court pointed out in
Oliver
, there may be a significant difference between the two and where there is a dispute, then there should be alternative counts. In the majority of cases there will be no doubt as to whether the image in question should be dealt with either as a real image or a pseudo-image.
v)
Each image charged in a specific count should be identified by reference to its “jpg” or other reference so that it is clear with which image the specific count is dealing.
vi)
The estimated age range of the child shown in each of the images should where possible be provided to the Court.
12.
We make these observations because, in our view, the Judge was placed in a position as regards this appellant where he had no information (apart from the 11 images set out in the counts dealing with specific images) as to the approximate quantity of the images at the different levels. There was no basis on which he could find on the information before him that there were any at level 4. Counsel for the appellant has taken the point that as the prosecution failed to identify the levels of the 3,735 other images and no request was made by the Judge prior to sentence for those to be identified, it would not be right to make an assumption against his client as to the number of images at the different levels which were encompassed within the 3,735 other images.
13.
It is because we see the force of that submission that we have set out the good practice in paragraph 11 above which we consider should have been followed in this case.
14.
Taking into account the unfortunate lack of information before the court, the fact that all the images were deleted from the computer by the appellant, that he was not in any way involved in distribution and that the images were used for his own personal purposes and the personal mitigation to which we have referred, we consider that the sentence passed by the learned trial Judge was too long. On the information before him, the Judge could not properly conclude that the appellant was in possession of a large quantity of material at level 4. In the circumstances, we consider that the appropriate sentence for this offence should have been 9 months imprisonment. We accordingly quash the sentence of imprisonment of 2 years and substitute one of 9 months.
15.
There is one other matter. The Judge also stated in his sentencing remarks:
“I make a Restraining Order in the terms as represented to me and I order that on release from prison you will register under the Sex Offenders Act …”.
16.
We enquired into the Restraining Order that is said to have been made by the learned Judge. No copy of the order was recorded on the court computer system and none could be found on the file. Enquiries were made of the court and of the Crown Prosecution Service (as counsel who had appeared for the prosecution at trial was overseas). None could recall to what the Judge was referring. This is another unfortunate aspect of the case. It is accepted on behalf of counsel for the appellant that an order should have been made disqualifying the appellant from working with children, having regard to the sentence he passed and to
S.28 Criminal Justice and Court Services Act 2000
. It may be that the judge was referring to this but no such order was made. We do not ourselves make such an order because the sentence of 9 months which we substitute for the sentence at trial is not a qualifying sentence for such an order. | {"ConvCourtName":["Crown Court at Basildon"],"ConvictPleaDate":["2003-10-31"],"ConvictOffence":["Possession of indecent photographs or pseudo photographs of children contrary to s. 160(1) and (2A) of the Criminal Justice Act 1988"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Basildon"],"Sentence":["2 years imprisonment on each count, concurrent (original)","9 months imprisonment (substituted on appeal)"],"SentServe":["Concurrent"],"WhatAncillary":["Sex Offenders Act registration"],"OffSex":["All Male"],"OffAgeOffence":[52],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":["two of the children were aged between five and six"],"VicSex":["All Female"],"VicAgeOffence":[5,6],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Computer evidence (indecent images)","Interview admissions"],"DefEvidTypeTrial":["Initial denial in interview"],"PreSentReport":[],"AggFactSent":["Large number of images","Some images at higher category (category 4)"],"MitFactSent":["Previous good character","Rejected by family as a result of offence","Positive report from prison","Images deleted by appellant","No distribution of images","Images for personal use"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge could not properly conclude that the appellant was in possession of a large quantity of material at level 4","Lack of information as to the breakdown of images at different levels"],"SentGuideWhich":["R v Oliver [2002] EWCA Crim 2766, 2003 2 Cr.App.R.(S.) 15","s. 160(1) and (2A) of the Criminal Justice Act 1988"],"AppealOutcome":["Allowed","Sentence quashed and substituted with 9 months imprisonment"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge had no information as to the approximate quantity of the images at the different levels","No basis to find there were any at level 4","Appropriate sentence should have been 9 months"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2012] EWCA Crim 2214
Case No:
2012/3360/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 3 October 2012
B e f o r e
:
THE VICE PRESIDENT
LORD JUSTICE HUGHES
MR JUSTICE WILKIE
MR JUSTICE POPPLEWELL
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R E G I N A
v
ROSIE LEE PETHERICK
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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)
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Miss M Russell
appeared on behalf of the
Appellant
Mr L Ingham
appeared on behalf of the
Crown
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J U D G M E N T
1.
THE VICE PRESIDENT: This defendant appeals against a sentence of four years and nine months which was imposed for the offences of causing death by dangerous driving and driving with excess alcohol in a case in which she had entered prompt pleas of guilty.
2.
In June 2011 she was 22 and she was taking an Access to Nursing course with a view to applying in due course for university admission in the hope of qualifying in midwifery. She was the single mother of a boy who was then 16 months old, born in February 2010. Some time before the events with which we are concerned, but not very long before, her relationship with the boy's father had come to an end. The boy was living with her. He had some but relatively limited contact with his father.
3.
On the night of Saturday 25th June 2011, this young woman spent the evening with a group of friends. They were two young men and two young women in all and they were at the studio of one of the young men, Mr Choudhery. This defendant and the two men, but not the other young woman, were drinking steadily. Between the three drinkers they consumed a large and then a small bottle of brandy. When they ran out they decided to go to an off licence to buy some more of the same. The shop was within walking distance, but this defendant had a car and she drove the whole group there; indeed they picked up another friend in the course of the short trip.
4.
On the way back the defendant was driving fast along an urban high street some time not long after midnight. It was the kind of street that has multiple fast food outlets, where there is plenty of traffic, both pedestrian and wheeled, even at that hour of the night. The car radio was turned up. The car was driven much too fast. Some or all of the men in the rear seat were calling for her to drive yet faster and more recklessly, but the woman in the front seat warned her that it was dangerous and that she should slow down. Sadly she followed the former rather than the latter encouragement. She overtook two vehicles but when she was trying to do the same thing a third time she failed to get back to the right side of the road, she struck an oncoming double decker bus and the offside of her car was ripped away. Mr Choudhery, who had been one of the rear seat passengers, was ejected by the impact from the car and suffered fatal injuries in the course of it. The other male passenger, a then boyfriend of hers called Mr Murphy, also suffered quite serious injuries including the collapse of both lungs and fractured ribs.
5.
The defendant's speed in the course of the closing stages of these manoeuvres was put at not less than 60 mph. Judge Bing rightly declined to be sure of the possibly higher figure that might have been suggested by some of the evidence. This was an urban high street of the kind we have mentioned, with a 30 mph speed limit. Sixty mph was far too fast for the conditions, even if the defendant had not also been significantly intoxicated. But she was. Her breath test analysis was 77 micrograms in 100 millilitres -- in other words more than double the legal limit for driving.
6.
If we may be allowed to say so, Judge Bing's approach to the very difficult task of passing sentence was principled, thorough and careful. He emphasised the fact that no sentence in a case like this can ever undo the damage that has been done nor assuage the grief of the bereaved. He rightly said that sentences in cases of this kind have to reflect the natural and often strong feelings of the public that the needless loss of another's life by this kind of driving cannot go unpunished. But at the same time, sentencing must take account of the person who is before the court. The judge went on scrupulously to identify the principal things which made this offence worse when compared with others of its kind, and on the other hand those features which went to reduce its gravity by similar comparison.
7.
As to the former, he identified, first, grossly excessive speed, responding as he said to being egged on by the passengers. The speed was reckless. Secondly, he identified correctly driving whilst intoxicated. It goes without saying that this woman ought not to have been anywhere near the wheel of a motorcar that night. Thirdly, he identified persistent and inappropriate overtaking. It was, we are afraid, devil may care driving.
8.
He did not add, but he might have done, that the defendant lied to the police that evening, saying initially that she had not been driving at all but that her boyfriend Mr Murphy had. It is right to say that she did not persist in that and the following day she all but admitted that it had been her who was driving. She also failed to tell the truth to the probation officer about the amount that she had had to drink. Next, she was driving a car which had been refused an MOT certificate and so it should not have been on the road at all. We say at once that its condition had nothing to do with the crash, but it was some further illustration of irresponsible driving and she did not tell the truth about that to the police either. Lastly, and perhaps most significantly, although it is clear that she was egged on by some or all of the rear seat passengers -- and despite Miss Russell's careful submissions it is not clear to us whether that necessarily included the unfortunate fatal victim or not and it probably makes very little difference -- she was egged on by some or all of the rear seat passengers, but she ignored the warnings of the only sober person in the car, who was the front seat passenger.
9.
So those features sadly made it a worse case than some others of its kind. In the scales on the other side the judge scrupulously identified the following. First, this defendant tendered a prompt plea of guilty. This always justifies a substantial reduction in sentence. In the present case, secondly, it was not for convenience, it undoubtedly reflected genuine remorse. There was clear evidence of that. The defendant, as some but not all who have behaved in this way do, had obviously confronted the grave wrong that she had done and understood it. She had sought counselling and she had sought some help to address the question of her drinking. Thirdly, the judge identified her relative youth and her previous good character. He had before him a number of constructive recommendations from family and from former teachers. In summary, the background seems to have been an unsettled and perhaps rather immature adolescent personality, with a history of mood swings and some difficult behaviour, but an adolescence which she was putting behind her. It was tempered, balanced, by a clear history of willing helpfulness to others in all kinds of fields. Moreover she was someone who had not only never previously offended against the law, but she had held down decent jobs and she cherished the ambition to do a really useful job in midwifery. The effect of her offence was likely to put that in very serious peril, not only obviously as she lost the opportunity through her own actions to follow the course that she wanted, but with this conviction on her record she may well find it difficult, we understand, to go into that profession in future. We do not know. Those of course were inevitable consequences of her own misconduct, but they are features of punishment additional to anything done by the court which she had brought upon herself and they ought to be recognised. The judge did recognise them.
10.
Lastly, the judge identified the effect on this young woman's then two year old son and on her relationship with him. She was his sole carer. It was the inevitable consequence of her offence that he was going to be separated from his mother for about as long as he had thus far lived. What actually happened was that the defendant, we accept, approached the problem with a good measure of responsibility. The child has not had to be taken into care as may happen in some of these cases. She initiated an extended family discussion involving the boy's father, from whom by then she was distant personally, and with his family. That family has assumed the care of the boy. It has all been done with the approval and support both of the defendant's own mother and of the local authority, so care has been taken and sensible and realistic arrangements have been arrived at. The arrangement appears to be working as well as one could hope and everybody concerned deserves a good deal of credit for making it work. But it is obviously correct that the rupture of the key relationship that this boy has up until now had is enormous and is likely on any view to endure for a period not very different from the time that he had lived up until then with his mother. We are told that weekly visits by him to the defendant are possible but those of course are inevitably not without difficulties. It cannot be easy for him. He has reacted emotionally and at times angrily. None of that is in the least surprising. He is too young to have it explained to him what is happening. The defendant for her part will undoubtedly fear that her relationship with him is going to be so damaged by the end of her sentence that it may be incapable of repair. Most of the indications are that father's family will understand that her relationship with him is absolutely critical, but the uncertainty remains and we accept that that is an additional punishment for her as well as a considerable impact on the boy himself.
11.
Faced with all that, the judge adopted a starting point of eight years after a hypothetical trial had it had to take place, which it did not. There has been no challenge, rightly, to that. That was precisely the starting point suggested for the most serious category of offences of this kind in the guidelines issued by the Sentencing Guidelines Council. In her written submissions, but not orally, Miss Russell raised the question of whether the judge had double counted the drink, but it is clear that he did not. Having put the case in the most serious category he did not elevate it within it for that factor. When he came to deal with the separate offence of driving with excess alcohol he correctly passed a concurrent sentence because he had taken the drink into account in fixing the sentence for the principal offences. So there was no double counting. The judge's approach in this, as in other respects, was impeccable. He reduced the sentence by the conventional one-third to recognise the plea of guilty. He appears to have worked on the basis that that took him to about five-and-a-half years and his actual sentence of four years nine months involved a further reduction of nine months for the personal factors in the case -- the personal mitigation available to the defendant, coupled with the inevitable effect on the child and his relationship with his mother.
12.
We deal briefly with one other submission, which is that the judge should further have reduced the sentence on the grounds that the defendant was an inexperienced driver. It is true that she had passed her test only about six months earlier, but the judge was right when he said that this was not a crash which was attributable to inexperience, it was a crash, sadly, which was attributable to recklessness. The guidelines expressly treat inexperience as distinct from recklessness or irresponsibility and the judge's approach was entirely in accordance with them. We accept that this was a case of youthful irresponsibility and an irresponsibility which, we think we can rightly say, is not likely to be repeated given the severity of the lesson which has been administered to the defendant.
13.
We are extremely grateful to Miss Russell for her realistic as well as eloquent submissions. She rightly puts the plea on behalf of this defendant essentially as a plea for mercy.
14.
The consequences of the defendant's own actions and the inevitable punishment which has had to follow both for her and for the child are undoubtedly far reaching. She has also, in addition to the features we have so far identified, inevitably lost the local authority tenancy that she had.
15.
Miss Russell's written submissions draw our attention to the fact that the article 8 rights to family life of the defendant's infant son were clearly engaged by the sentencing process. She has referred us in writing to two decisions of the Supreme Court,
ZH (Tanzania) v SSHD
[2011] UKSC 4
and, of closer relevance,
HH v Deputy Prosecutor of the Italian Republic, Genoa
[2012] UKSC 25
. It is enough to say of the former of those cases that the learning which we need is to be found in the latter of them. The rules for deportation are in any event different because there is specific provision in section 55 of the Borders Citizenship and Immigration Act 2009 which requires deportation decisions to comply with section 11 of the Children Act 2004 and to be made having regard to the need to safeguard and promote the welfare of children.
16.
More recently in
HH
the Supreme Court has considered the correct approach to the article 8 position of dependent children, not in sentencing directly but in cases where the extradition of one or more parents is sought. There are, however, in that case references by way of analogy and distinction to domestic sentencing. We think that in the context of a sentencing appeal such as this, it is not necessary to embark on any comprehensive analysis of the speeches of their Lordship in
HH
. Miss Russell rightly concedes that this is a case in which, sadly, a substantial sentence of imprisonment was absolutely unavoidable.
17.
We do think however that we ought to say these brief things by way of general observation. First, the sentencing of a defendant inevitably engages not only her own article 8 family life but also that of her family and that includes (but is not limited to) any dependent child or children. The same will apply in some cases to an adult for whom a male or female defendant is a carer and whether there is a marital or parental link or not. Almost by definition, imprisonment interferes with, and often severely, the family life not only of the defendant but of those with whom the defendant normally lives and often with others as well. Even without the potentially heart-rending effects on children or other dependents, a family is likely to be deprived of its breadwinner, the family home not infrequently has to go, schools may have to be changed. Lives may be turned upside down by crime.
18.
Second, the right approach in all article 8 cases is to ask these questions: A. Is there an interference with family life? B. Is it in accordance with law and in pursuit of a legitimate aim within article 8.2? C. Is the interference proportionate given the balance between the various factors? That is carefully set out by Lady Hale in her speech in
HH
. Although she was in the minority as to the outcome in relation to one of the persons sought for extradition, she gave at paragraph [30] this analysis with which there was general agreement. That approach is as true of sentencing as of any other kind of case in which family life is in question. Of course in sentencing, the first two questions will usually be straightforward. There will almost always be some interference with family life and it will be in accordance with law and due to legitimate aims. It is the third question which may call for careful judgment.
19.
Third, long before any question of article 8 or of the Human Rights Act 1998 was thought of, sentencing practice in England and Wales recognised that where there are dependent children that is a relevant factor to sentencing. That is most conveniently to be extracted from the careful words of Lord Judge, CJ, in
HH
at paragraphs 126 to 130, to which reference should be made if this point is taken. In particular, at paragraphs 128 and 129 he said:
"128. The continuing responsibility of the sentencing court to consider the interests of children of a criminal defendant was endorsed time without number over the following years. Examples include Franklyn (1981) 3 Cr App R(S) 65 Vaughan (1982) 4 Cr App R(S) 83, Mills [2002] 2 Cr App R (S) 229, and more recently Bishop
[2011] EWCA Crim 1446
and, perhaps most recently in Kayani; Solliman
[2011] EWCA Crim 2871
,
[2012] 1 Cr App R 197
where, in the contextOf child abduction, the court identified
'… a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.'
129. Recent definitive guidelines issued by the Sentencing Council in accordance with the Coroners and Justice Act 2009 are entirely consistent. Thus, in the Assault Guideline, taking effect on 13 June 2011, and again in the Drug Offences Guideline, taking effect on 29 February 2012, among other features the defendant’s responsibility as the sole or primary carer for a dependant or dependants is expressly included as potential mitigation."
20.
Fourth, it follows that a criminal court ought to be informed about the domestic circumstances of the defendant and where the family life of others, especially children, will be affected it will take it into consideration. It will ask whether the sentence contemplated is or is not a proportionate way of balancing such effect with the legitimate aims that sentencing must serve.
21.
Fifth, in a criminal sentencing exercise the legitimate aims of sentencing which have to be balanced against the effect of a sentence often inevitably has on the family life of others, include the need of society to punish serious crime, the interest of victims that punishment should constitute just desserts, the needs of society for appropriate deterrence (see section 142 Criminal Justice Act 2003) and the requirement that there ought not to be unjustified disparity between different defendants convicted of similar crimes. Moreover, as Sachs J pointed out in the South African Constitutional Court in
N v The State
[2007] ZACC 18
, in a case in which there was under consideration a specific provision in the Constitution which required the interests of an affected child to be "the paramount consideration", not only society but also children have a direct interest in society's climate being one of moral accountability for wrongdoing. It also needs to be remembered that just as a sentence may affect the family life of the defendant and of his/her innocent family, so the crime will very often have involved the infringement of other people's family life. There is a good example afforded by the striking facts of the second defendant Solliman in
Kayani and Solliman
[2011] EWCA Crim. 2871
at paragraph 54. He, by his crime of abduction of children, had utterly destroyed the abducted children's relationship with their mother and his well-deserved imprisonment was now to punish them again by depriving them of his own care as their otherwise unexceptional remaining parent. This present case is also one in which article 8 rights are affected not only in the defendant and her child but in the deceased and his family.
22.
Sixth, it will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.
23.
Seventh, the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver and
M v South Africa
is again a good example. Even with the express Constitutional provision there mentioned, the South African Constitutional Court approved the result in which in one of the cases a sentence of four years was necessary upon a fraudulent mother, despite the fact that she was the sole carer for a number of children who were likely to have to be taken into care during her imprisonment - see paragraphs 43 to 44. Likewise, in
HH
, the majority of the Supreme Court was satisfied that there was no basis on which the extradition to Italy could be prevented of a father who was in effect the sole carer for three young children, but who had been a party to professional cross border drug smuggling. His extradition of course meant not only his imprisonment, but his imprisonment too far away from the children's home for there to be more than the most rare of contact.
24.
Eighth, in a case where custody cannot proportionately be avoided, the effect on children or other family members
might
(our emphasis) afford grounds for mitigating the length of sentence, but it may not do so. If it does, it is quite clear that there can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges.
25.
Ninth, those briefly stated principles are we think sufficient to guide sentencing judges and do no more than reflect what has been the practice of the criminal courts since long before arguments were habitually couched in terms of article 8 or human rights generally. We add that we do not think that those principles are affected by the question which is sometimes raised and which has been adverted to in Miss Russell's written submissions, namely whether article 3 of the United Nation's Convention on the Rights of Children and the similarly expressed article 24.2 of the European Union Charter of Fundamental Rights, do or do not apply to the sentencing of adults. As to that, on the one hand it is difficult to imagine that the framers of those conventions can have meant to include the sentencing of adults as decisions "concerning children", any more than they meant to include other decisions such as, for example, the enforcement of judgment debts against parents or the termination of the employment of parents within that expression. If they did, that would involve a requirement that the effect on a child of such a decision should be "a primary consideration". Moreover, article 9 of the same convention makes clear that the separation of a child from parent may occur as the result of imprisonment which it clearly contemplates. As Lady Hale observed in
ZH (Tanzania
) it clearly distinguishes between the separation of a child and parent as a consequence of a decision as to the child's upbringing on the one hand and separation as a consequence of detention or imprisonment on the other. As against that, there are passages in
HH
where it appears to have been assumed, though without argument to the contrary, that article 3 at least does apply -- see passing references at paragraphs [16], [98], [143] and [155]. The reason why we say that it is not necessary to resolve that question in the sentencing in the Crown Courts is because it is clear from
HH
that even on that assumption and even if those provisions of those conventions applied, it is the balancing which is required by article 8 in the form that we have endeavoured to set it out which is the effective test for sentencing.
26.
So where does that leave us in the present case? There can be no getting away from the fact that this is a serious case of motor homicide. By modern standards of harm and culpability Miss Russell is plainly right that a substantial sentence of imprisonment was absolutely unavoidable. An innocent person has been deprived of his life by the recklessly bad driving of the defendant who ought not in her intoxicated condition to have been behind the wheel at all. There are of course worse examples of prolonged, deliberate, very bad driving, deliberate aggressive driving or of even grosser impairment by drink but this was a bad case. There was however real mitigation to be found in the defendant's youth and relative immaturity, her genuine remorse, her previous good character and good work record and in the fact that she appeared to have learned her lesson. There was likewise real reason for moderating the sentence to be found in the punishment which she had by her own actions brought upon herself, independently of what the court orders -- in particular by the effects of her behaviour on her relationship with her son and, more important, his relationship with her. The inevitable separation of mother and child comes undoubtedly at a very sensitive time in his upbringing.
27.
We would like to say that the judge's overall approach to the sentence in this case was immaculate. We differ only in the adjustment which we think should properly be made to reflect the combined factors of personal mitigation, coupled with the effect upon the child. Adopting the judge's identical approach, we start with eight years, had there been a trial; there was not. The plea of guilty reduces that not actually to five-and-a-half years but to five years four months. We would adjust that by a further 18 months and the result is a sentence of three years and 10 months. That is entirely consistent with the judge's approach and we think that it is the right outcome for this defendant on the facts of this case. We are conscious that she has had to sit for rather a long time listening to a judgment before she got to the answer, but the outcome is that the appeal is allowed to the limited extent of substituting a sentence of three years and 10 months for one of four and nine months. To that extent, but to that extent only, Miss Russell's plea for mercy succeeds. | {"ConvCourtName":[""],"ConvictPleaDate":[""],"ConvictOffence":["Causing death by dangerous driving","Driving with excess alcohol"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["Four years and nine months imprisonment (original sentence)","Three years and ten months imprisonment (substituted on appeal)"],"SentServe":["Single"],"WhatAncillary":[""],"OffSex":["All Female"],"OffAgeOffence":[22],"OffJobOffence":["Student"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":["Grossly excessive speed","Driving whilst intoxicated","Persistent and inappropriate overtaking","Ignored warnings of the only sober passenger","Lied to police about who was driving","Failed to tell the truth to probation officer about amount drunk","Driving a car refused an MOT certificate"],"MitFactSent":["Prompt plea of guilty","Genuine remorse","Relative youth","Previous good character","Held down decent jobs","Ambition to do useful job in midwifery","Sole carer for young child","Arranged responsible care for child","Effect of sentence on relationship with child"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Sentence should be further reduced due to personal mitigation and effect on dependent child"],"SentGuideWhich":["Sentencing Guidelines Council guidelines for causing death by dangerous driving","Section 142 Criminal Justice Act 2003"],"AppealOutcome":["Allowed and sentence reduced to three years and ten months"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Insufficient reduction for personal mitigation and effect on dependent child"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
No:
200402821/D2
Neutral Citation Number:
[2004] EWCA Crim 2724
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Monday, 18th October 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
- - - - - - -
R E G I N A
-v-
SOLOMON IGBEBION
- - - - - - -
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 S FIDLER appeared on behalf of the
APPLICANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE RICHARDS: The Court has before it an appeal and applications by Solomon Igbebion relating to sentences imposed on him on 5th April 2004 by His Honour Judge Walker, at Blackfriars Crown Court. On that occasion he was sentenced, first, to 9 months' imprisonment for an offence of attempting to obtain services by deception, following a conviction for that offence before the same judge and a jury on 24th September 1999. A consecutive sentence of 9 months' imprisonment was imposed for breach of bail, the circumstances of which we will describe in a moment. A further consecutive sentence of 18 months' imprisonment was imposed for an offence of having a false instrument, a matter committed to the Crown Court for sentence, following a plea of guilty in the Magistrates' Court. Finally, there was a concurrent sentence of 7 days' imprisonment for a driving offence, a matter also committed to the Crown Court following a plea in the Magistrates' Court. Thus the total sentence was one of 3 years' imprisonment.
2.
The appellant appeals, as of right, under
section 13 of the Administration of Justice Act 1960
against the conviction and sentence for the Bail Act offence. He applies for an extension of time in which to seek leave to appeal against sentence for the offences of attempting to obtain services by deception and having a false instrument. We grant the necessary short extension of time and leave to appeal against sentence in respect of those other matters and with the consent of Mr Fidler, who appears on the appellant's behalf, we treat this hearing as the hearing of the substantive appeal.
3.
The history of the various matters is as follows. On 6th May 1999 the appellant went to the Halifax Bank in Edgware Road, London. He stated that his name was Jason Richards and that he wished to apply for a personal loan in the sum of £7,000. He produced an acknowledgment slip from another Halifax account and a driving licence by way of identification. A different address appeared on the driving licence. When asked for additional identification he produced a gas bill. The suspicions of the bank supervisor were raised by the appellant's nervous disposition and by the fact that the documents appeared to be fake. The police were called.
4.
When questioned, the appellant claimed that he was applying for the loan for a friend. He was charged with attempting to obtain services by deception. The matter went to trial, which resulted in his conviction on 24th September 1999. Sentence was adjourned to 14th October 1999, for the preparation of reports. The appellant was granted bail with a condition of residence. In the event, he failed to surrender to bail and remained at large until 7th February 2003.
5.
In fact, on 14th October 1999 - the date of the adjourned sentencing hearing - a medical report was produced by the defence which resulted in the judge adjourning further to 12th November 1999 and ordering the production of a full medical report in order to determine whether the appellant was in breach. However, on 12th November the appellant failed to attend yet again and a warrant, not backed for bail, was issued. There the matter rested until 7th February 2003, when the appellant was stopped by police when driving a motorcar. The police officers conducted a search as the appellant was acting suspiciously. During the process he tried to run away. As he was apprehended a passport fell from his pocket. A search of the vehicle revealed a further two passports. All three documents appeared to have been altered by substitution of photographs. The offence of having a false instrument related to his possession of those passports.
6.
He was taken to the police station where a check revealed the outstanding warrant. He was granted police bail on the passport matters but, in relation to the warrant, he appeared in custody at Camberwell Magistrates' Court on 8th February 2003. Somewhat generously the magistrates granted him unconditional bail. He then failed to surrender to his police bail on 25th March 2003 and remained at large, yet again, until finally arrested for driving with excess alcohol on 21st January 2004. He then appeared at Tower Bridge Magistrates' Court on 30th January 2004, when he entered his pleas to the later offences and was committed to the Crown Court for sentence. In that way all outstanding matters came before the Crown Court on 5th April 2004.
7.
At the Crown Court, on 5th April, prior to mitigation, the judge heard defence submissions about the breach of bail issue and then gave a ruling in which he said that on the face of it there had been a clear breach of bail by the appellant, in absenting himself from the court in the latter part of 1999 and remaining at large until finally apprehended in 2003. He said in his ruling that the appellant's advocate had sought to raise what the judge regarded as no more than a 'shadowy possibility' that in February 2003 at the Magistrates' Court the appellant may have been told something which may have led him to believe that his breach of bail in 1999 to 2003 was not going to be pursued. But there had been no evidence from the appellant on the subject. Regrettably, the Magistrates' Court had not answered questions or notes in relation to events in February 2003 before that court, but given that there was nothing at all to support the proposition that the appellant's advocate was seeking to put forward in relation to those events, the fact that the Magistrates' Court had been unable to produce missing papers did not seem to the judge to avail the appellant at all. He went on to say that things might have been different if the appellant had advanced the relevant proposition on oath, but the appellant had not sought to do that and it seemed to the judge that there was nothing that should lead him to conclude otherwise than that the normal course of events should follow, namely that the appellant would have to be sentenced for a breach of bail. The judge did, however, make clear that he was not going to take into account the extra year of absence following the Magistrates' Court hearing in February 2003. The judge then invited the appellant's advocate to mitigate, which he did, following which the judge passed the sentences to which we have referred.
8.
Before we consider the grounds now advanced, we should say a little more about the appellant himself. He was born in December 1967 and is therefore 36 years of age. He had one previous conviction, in 1995, for using a document under the Road Traffic Act with intent to deceive, for which he received a community service order. On the occasion of sentencing for the present offences the court did not have the benefit of a substantive pre-sentence report concerning the appellant because of the appellant's failure to attend appointments.
9.
Mr Fidler, who appears before us as he did in the court below on behalf of the appellant, advances as his first ground the contention that the conviction for breach of bail was unlawful. The basis of that contention is that it is said that the appellant was not formally asked while at the Crown Court on 5th April 2004 whether he admitted the breach of bail. It is pointed out that the relevant offence under
section 6(1) of The Bail Act 1976
involves a failure to surrender to custody without reasonable cause and therefore it is necessary, where somebody has failed to attend at court in accordance with the requirements of bail, to determine whether that failure was or was not without reasonable cause. It is therefore necessary that the question whether the breach is admitted be put to the person concerned.
10.
It is submitted by Mr Fidler that the failure to put that matter to the appellant in this case was an irregularity that rendered what followed invalid. He invites the Court to issue a writ of venire de novo in order that the matter should go back to the Crown Court, so that the relevant question in relation to breach of bail can be put to the appellant.
11.
We have not received a transcript of what occurred at the Crown Court prior to the judge's ruling on the breach of bail issue, or in relation to what happened immediately after that ruling, but we proceed on the assumption that the question was not formally put to the appellant himself whether he admitted the breach of bail. It seems to us that, in the particular circumstances of this case, nothing turns on that omission. In
R v Hourigan
[2003] EWCA Crim 2306
, the Court pointed out that
section 6(1)
of the Bail Act envisages matters being dealt with by a relatively informal procedure. The Court said in paragraph 8:
"What, in our judgment, the judge should have done is put to the appellant, either directly or through his counsel, whether or not he admitted that he was in breach of
section 6(1)
and then there would have been absolutely no doubt about it."
In the present case, it is quite clear from the transcript of the judge's ruling on the breach of bail issue that the defence was given a full opportunity to indicate whether and to what extent issue was taken with the alleged breach of bail, and indeed to call evidence if it wished to do so. The submissions advanced by Mr Fidler on the appellant's behalf were advanced on the basis that a breach was admitted but that what had been said at the Magistrates' Court at the February 2003 hearing made it unfair for the appellant now to be punished for that breach. Those submissions were rejected, as we have already indicated. Inherent in them, however, was a plain admission of guilt of the Bail Act offence and, if the matter had been formally put to the appellant, as we accept it should properly have been put, there could only have been one answer. There was, in truth, no dispute over the appellant's guilt of the Bail Act offence. Mr Fidler proceeded to mitigate on his behalf on the basis that the offence was admitted.
12.
It seems to us that the way in which matters were dealt with, albeit less than perfect, was fully consistent with the principles set out in the judgment in
Hourigan
and that there is no basis for interfering with the conviction in respect of the Bail Act offence.
13.
The other aspect of the Bail Act offence is that of sentence. Mr Fidler submits that a sentence of 9 months' imprisonment consecutive for that offence is manifestly excessive. In his written submissions he referred to a number of cases which are in truth no more than examples of sentences passed in relation to particular facts. It is well established that in principle a sentence for failing to surrender to bail should be ordered to be served consecutively to any other sentence imposed at the same time for any other offence. The maximum sentence is 12 months. Even if one accepts that some modest allowance should be made for an admission of guilt, the fact is that, in the circumstances of this case, there was manifestly no defence to the charge and such allowance as might be made for a plea of guilty is very modest indeed. Having regard to those considerations, and the wider circumstances of the case, including, in particular, the length of time for which the appellant was at large, we are satisfied that the sentence imposed was neither wrong in principle nor manifestly excessive.
14.
We turn to consider the appeal against sentence in respect of the substantive offences. First, as regards the attempt to obtain services by deception, Mr Fidler emphasises the fact that although the attempt was to obtain £7,000, no loss was in fact suffered by the bank; it was only an unsuccessful attempt. He submits that, whilst the judge may not have been wrong to pass a custodial sentence in circumstances as they stood in 2004, he did indicate that he might have been persuaded to pass a non-custodial sentence, had the matter been dealt with in 1999 and had the appellant not absconded. Mr Fidler suggests that that tells in favour of only a short custodial sentence, and that the sentence of 9 months was manifestly excessive.
15.
In relation to the passport offence (the offence of having a false instrument) Mr Fidler emphasises that there was here no suggestion of actual use of the false passports. He refers to various cases including
R v Kefford
[2002] 2 Cr App R(S) 106 and
R v Silaiavski
[2000] 1 Cr App R(S) 23 and submits that an 18 month consecutive sentence for this offence was in itself manifestly excessive and leads to an excessive overall total.
16.
Whatever the position might have been, had the judge been considering the one offence by itself in October 1999, it is plain in our judgment that the combination of offences with which he was dealing in April 2004 make custody inevitable.
17.
As to the length of sentence, dealing first with the offence of obtaining services by deception, we accept that for an attempt of this kind, where the appellant was detected at a very early stage and no loss was suffered, it is generally appropriate to impose a lower sentence than for the full offence. On the other hand, the appellant did not have the mitigation of a plea, nor of previous good character. It seems to us that there is nothing wrong with the sentence of 9 months.
18.
As to the passport offence, a consecutive sentence was plainly right, given that this further offence was committed, not just while the appellant was on bail but while he was absconding in breach of bail. It is however relevant that this was simply a case of possession, not of use. Although there was more than one false passport in his possession, it is not possible, on the facts as known, to draw any inferences as to involvement in any wider criminal enterprise. In those circumstances, it seems to this Court that a sentence of 18 months consecutive, on a plea of guilty, was excessive and did produce an excessive total. What we propose to do is to reduce that sentence to one of 9 months' imprisonment still consecutive, which will meet the argument in relation to totality as well as in relation to the individual offence.
19.
For those reasons, we will allow this appeal to the extent of quashing the sentence of 18 months consecutive for the offence of having a false instrument and substituting a sentence of 9 months' imprisonment consecutive for that offence. As we have indicated, the rest of the matters stand.
20.
THE VICE PRESIDENT: Yes Mr Fidler?
21.
MR FIDLER: There is one matter, and that is on the basis that leave was granted on sentence, I ask for a representation order to be extended to allow-
22.
THE VICE PRESIDENT: We shall extend the representation order which relates to the bail matter to the sentence in relation to the passport offence.
23.
MR FIDLER: I am grateful, thank you very much, my Lord. | {"ConvCourtName":["Blackfriars Crown Court"],"ConvictPleaDate":["1999-09-24"],"ConvictOffence":["Attempting to obtain services by deception"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at Magistrates' Court (for false instrument and driving offence)"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Blackfriars Crown Court"],"Sentence":["9 months' imprisonment (attempting to obtain services by deception)","9 months' imprisonment consecutive (breach of bail)","18 months' imprisonment consecutive (having a false instrument)","7 days' imprisonment concurrent (driving offence)"],"SentServe":["Consecutive","Concurrently"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[31],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["offence committed while on bail","length of time at large"],"MitFactSent":["no loss suffered by bank (attempted deception)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","appeal against sentence"],"AppealGround":["conviction for breach of bail unlawful as not formally asked if admitted breach","sentence for breach of bail manifestly excessive","sentence for false instrument manifestly excessive"],"SentGuideWhich":["section 6(1) of The Bail Act 1976","section 13 of the Administration of Justice Act 1960"],"AppealOutcome":["Dismissed (conviction for breach of bail)","Allowed in part (sentence for false instrument reduced)"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["sentence for false instrument excessive as only possession, not use, and plea of guilty"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["defence given full opportunity to contest breach of bail; admission of breach inherent in submissions; no dispute over guilt; sentence for breach of bail not manifestly excessive; sentence for deception not wrong in principle"]} |
No:
201702588/B5-201702589/B5
Neutral Citation Number:
[2017] EWCA Crim 2314
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 20 December 2017
B e f o r e
:
LORD JUSTICE HOLROYDE
MRS JUSTICE McGOWAN DBE
MR JUSTICE LAVENDER
- - - - - - - - - - - - - - - -
R E G I N A
v
FAHAD EISA
- - - - - - - - - - - - - - - -
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 J Scouller
appeared on behalf of the
Applicant
Mr D Cooke
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
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.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (
Sexual Offences (Amendment) Act 1992)
, or where an order has been made in relation to a young person.
1.
LORD JUSTICE HOLROYDE: On 11th May 2017, after a short trial in the Crown Court at Croydon, this appellant, Fahad Eisa, was convicted by a jury of offences of theft and fraud. On the following day the Recorder, who had presided over the trial, sentenced him for the fraud to a term of 6 months' imprisonment suspended for 24 months, with a requirement to perform 90 hours’ unpaid work. The Recorder imposed no separate penalty for the offence of theft.
2.
Mr Eisa applied for leave to appeal against his conviction and against his sentence. His applications have been referred to the Full Court by the Registrar.
3.
The facts of the case can be very simply stated. Mr Stephen Boateng is the proprietor of a business which, amongst other things, leases cars for use as taxis. His evidence was that in May 2015 he leased such a car to Mr Eisa for £120 per week. In September of that year it was necessary to renew the licence permitting that car to be used for the purposes of a taxi. Mr Boateng provided Mr Eisa with the V5 logbook document, which Mr Eisa would need in order to be able to complete the formalities of renewing the licence.
4.
The prosecution case was that the appellant Mr Eisa then retained the V5, changed the ownership details, forged Mr Boateng's signature and posted the document to the DVLA in order, successfully, to register himself as the owner and keeper of the vehicle. It was further alleged by the prosecution that Mr Boateng's signature was later forged on a handwritten document which purported to be a receipt evidencing an agreement by Mr Boateng to sell the car to the appellant for £3,500.
5.
Mr Boateng reported the matter to the police. When arrested and interviewed the appellant's account was that he had agreed to buy the car for £3,500. He had already paid £3000, the final payment of £500 having been delayed only because Mr Boateng had not yet completed some repair work which he had agreed to carry out. The appellant denied that he had forged Mr Boateng's signature on the V5 document, saying that Mr Boateng had signed that document in his, the appellant's presence. In the first interview under caution the appellant did not mention the existence of a receipt; he did however refer to it in a second interview at a later date.
6.
The indictment charged the appellant in count 1 with theft of the motor vehicle, the registration number of which was particularised. Count 2 charged him with fraud, the particulars being that between 31st August and 10th October 2015 he had committed fraud:
"... in that, dishonestly and intending thereby to make a gain for himself, or to cause loss to another, or to expose another to risk of loss, he made a false representation to the DVLA which was false and which he knew was or might be untrue or misleading, namely that a motor vehicle [registration details given] had been sold or transferred to him."
7.
Prosecuting counsel very sensibly amended those particulars before the matter went to the jury, so as to make it plain that the allegation here was of an intention on the part of the appellant to make a gain for himself.
8.
At trial the prosecution called an expert handwriting witness. She compared reference signatures of Mr Boateng with the signatures on the V5 document and the handwritten receipt. Her expert opinion in relation to those two documents differed. As to the V5 document, she said that her findings provided very strong support for the proposition that it had been signed by someone other than Mr Boateng and weak support for the proposition that it had been signed by Mr Eisa. As for the handwritten receipt, her opinion was that she was unable to determine whether the signature on that document was a genuine signature by Mr Boateng or was a simulation of his signature, using a model signature with similar features. In that latter regard, it was part of the prosecution case to show that a document genuinely signed by Mr Boateng was in the possession of the appellant, so that a specimen of the signature was available to be copied.
9.
The appellant gave evidence in his own defence. His evidence was consistent with the account he had given in interview. He said that Mr Boateng had signed both the contentious documents. In addition, he called his partner as witness. She said that she had provided the appellant with £1,000 towards the purchase price of the car.
10.
The case therefore turned on disputed issues of fact as between Mr Boateng and the appellant, in particular as to the signatures on the two contentious documents.
11.
In discussions with counsel prior to closing speeches and summing-up the Recorder considered the matters of law which were to be dealt with in the summing-up. It was agreed between prosecution and defence counsel that a direction regarding inferences from silence, pursuant to
section 34 of the Criminal Justice and Public Order Act 1994
, was appropriate only in relation to the failure by the appellant to mention the existence of the receipt when he made a prepared statement at the time of his first interview. It should be noted that in that regard the appellant in his evidence had given an explanation of why he had failed to mention that document at that stage. One of the concerns of defence counsel was that in the later interview there had been an amplification of other matters which had been mentioned only briefly when the appellant was first questioned.
12.
It seems to us that this was, in essence, a very straightforward case. Part 25 of the Criminal Procedure Rules includes, at rule 25.14, provisions in relation to the giving of directions to the jury in a jury trial. Of particular relevance to the present case are these sections of that rule:
"(2) The court must give the jury directions about the relevant law at any time at which to do so
will assist jurors to evaluate the evidence.
(3) After following the sequence in rule 25.9 (Procedure on plea of not guilty), the court must—
(a) summarise for the jury, to such extent as is necessary, the evidence relevant to the issues they must decide;
(b) give the jury such questions, if any, as the court invites jurors to answer in coming to a verdict;
(c) direct the jury to retire to consider its verdict …"
For present purposes we need not read any more of that rule.
13.
In the present case directions of law could have been briefly given. Little needed to be said about the legal ingredients of the two offences charged. There was scope, after appropriate discussions with counsel, to assist the jury by identifying respects in which it was agreed between the prosecution and defence that, if the jury were sure of certain facts, the defendant would have been proved guilty of one or both offences, and that if the jury were unsure of his guilt they must acquit. Similarly the direction as to inference from silence could have been focused with sole reference to the one failure on which the prosecution relied. As to the facts, the issues between the prosecution and defence were stark and the jury could have been reminded of them in very brief terms.
14.
The grounds of appeal against conviction are that unhappily the learned Recorder failed adequately to direct the jury as to the law or properly to summarise the evidence. On behalf of the appellant Mr Scouller submits that the convictions are unsafe because the summing-up did not enable the jury properly to understand the issues which they had to resolve.
15.
Mr Cooke, responding to the appeal, submits that this was a short and straightforward case, that the Recorder said all that was required of him and that he directed the jury in sufficiently clear terms for the convictions to be safe.
16.
The grounds of appeal against sentence are that on a proper application of the Sentencing Guideline these offences either failed to cross the custody threshold or, if they did so, merited only a very short suspended sentence.
17.
We are grateful to Mr Scouller and to Mr Cooke, who have appeared before this court as they did below, for their very helpful written and oral submissions. We have sought their assistance on the specific question of whether the transcript of the summing-up is, to the best of their recollection, an accurate rendition of that which the Recorder said. They have confirmed that it is indeed accurate.
18.
In view of the conclusion to which we have come in relation to the appeal against conviction, we propose to give our reasons for our decision briefly. This was, as we have said, a straightforward and short trial in which the issues for the jury's determination could clearly be identified. We therefore see force in Mr Cooke's submission that the jury could not have been in any doubt as to the issues which they had to decide and properly decided those issues in favour of the prosecution. Nonetheless there are, in our judgment, at least three reasons why the convictions cannot be regarded as safe.
19.
First, with all respect to the Recorder, his directions as to law were insufficient. Initially he said nothing at all about the legal ingredients of the offences charged in the indictment. He did not indicate to the jury any respect in which it was common ground that a particular finding of fact would suffice to determine a finding of guilt on a particular charge. Instead he simply said this at page 4H of the transcript:
"Now, we have got the indictment. There is no particular point (unless anybody would want to have that) to look at it again; but I think it is relatively straight-forward. You have got an exhibit sheet and you have seen that already several times ..."
20.
As to the question of inference from silence, in contrast to what both counsel had submitted to him before closing speeches and summing-up began, the Recorder gave a direction in the following unhelpful terms:
"There may be the element here that you feel that something was mentioned and not mentioned because it was going to be looked at at a later stage. These are things sometimes quite dangerous about it. You have got to look at it from the point of view: what was said? He has given an answer to the questions, effectively, that have been put forward. But the fact of the matter is, if you feel that he has not given answers now, in evidence, then you look at it from the point of view that you may decide that those points were untrue because they have been invented to support his defence. But you may only draw that conclusion if you are satisfied of three things.
The prosecution case being presented at the time was such that it called for an answer. He could reasonably have been expected to mention the matters he now relies on at the time he was interviewed and the only sensible reason for not raising those matters is that he had not yet thought of them.
The defence invite you not to draw any adverse conclusion from any silence. They say that he did not tell the police about certain matters because he said enough what he thought. If that is right -- fine. That is perfectly acceptable. But you have to look at that and see whether or not you take it as an explanation of innocence. In those circumstances it would not provide any support for the prosecution case."
21.
At the conclusion of the summing-up both counsel were understandably concerned. In the absence of the jury they addressed the Recorder. They courteously endeavoured to assist him with certain aspects of his summing-up. He accepted their submissions.
22.
When the jury were called back in, however, the learned Recorder gave further directions which, we regret to say, did not assist the jury. As to the legal ingredients of offences the Recorder at page 13H said this:
"Thank you, members of the jury. Just a couple of things to clarify. Remember when, you are looking at count 1 and count 2, essentially for somebody who is going to be a thief or a fraudster, look at the elements of it. It is wrong to dishonestly appropriate goods of another unless you are going to get it back. In short, it is not if it is just a loan or anything like that. So dishonestly appropriating the goods of another person is a better way, perhaps, to look at it from the point of view of both theft and fraud on count 1 and count 2. It is shorthand. But the fact of the matter is if you go through it -- for example, stole a motor vehicle naming a Volkswagen Passat, etcetera, etcetera belonging to Stephen Boateng, you will look at it any way from the point of view that that is what the allegation is. Therefore, the allegation, if made sure, would be wrong. The same as well with the fraud. Committed fraud. We all know what fraud is, in that dishonestly and intending thereby to make a gain for himself he made a false representation to the DVLA, which was false. It is (inaudible), but never mind, namely that a motor vehicle named Volkswagen Passat etcetera, etcetera had been sold or transferred to him in breach of Section 2. The point is, Mr Boateng says, well that is not right; and Mr Eisa says, well that is right. So look at it from that point of view. Dishonest appropriation."
23.
As to his direction in relation to inference from failure to mention facts the Recorder at page 14E said this:
"Just a matter for clarification, when I was noting the interviews and so on, you must look on the interviews and what the defendant said in the police station and so on. The real point, and the only point actually on this, is that he did not say at the early stage he had mentioned a receipt. But he did later. So that is a relatively straight-forward matter. We have discussed that, so that should be entirely fine."
The jury were then invited to retire again. Counsel rightly felt that they could do no more. So the jury were left to consider their verdicts.
24.
Those directions of law are, as we have said, plainly insufficient. They were expressed in terms which cannot greatly have assisted the jury, and may indeed have confused them; and a number of important aspects of the necessary directions were omitted. Mr Scouller points to particular concerns that the jury may have misunderstood that they simply had to consider whether at some stage in the relevant events Mr Eisa had done something dishonest. He further expresses concern that the jury may have misunderstood that the fact that the appellant in his first interview did not say as much as he later said in a second interview, was a failure in relation to which an adverse inference could be drawn.
25.
The second reason why we do not feel these convictions can stand is that, again with respect to the learned Recorder, his summing-up as to the facts was so diffuse and unstructured that the jury could not realistically be expected to have derived any assistance from it. As we have indicated, the important facts could perfectly properly have been summed up extremely briefly. But it was necessary, in compliance with the Criminal Procedure Rule which we have quoted above, to assist the jury by reminding them of the features of the evidence which were key to their decisions on the relevant issues, and to do so in clear terms.
26.
We regret to say that this did not happen. By way of example, we quote the following passage from page 5B of the transcript in which the Recorder reminded them about the two contentious documents:
"The agreement. You must look at it from the point of view of your assessment. It is, of course, for example, page 9, 26th October 2015 -- there seems to be some sort of either confusion or other approach on this because, of course, there are other dates. Whether or not those dates are very important in the case is a point for you. But does it assess yourself -- the dates there? We have seen all those dates. When you look through it, it is a different date here and a different date there and all the rest of it. Are the dates relevant? The fact of the matter is you consider that; and you also have to look at it in the context of what is happening here. You will see on page 10 of the VQ5 there is the Metropolitan Police Station and the keeper details, etcetera."
27.
Thirdly, we are troubled by the manner in which the Recorder reminded the jury of the handwriting evidence. As we have indicated, the expert witness had expressed differing opinions about the disputed signature on each of the two contentious documents. The jury were not reminded of the terms of her evidence at all. They were instead given what was with respect a confused version of the standard direction about expert witnesses. But the Recorder then went on, having emphasised that the expert witnesses evidence was only part of the evidence in the case, to say this:
"It is a matter for you to look at the reference signatures of Stephen Boateng and Fahad Eisa. I think I can easily rely on you to look at that."
28.
It seems to us that that part of the summing-up was at least capable of being understood by the jury as an indication to them that they were at liberty to play the part of experts themselves, and to form their own opinions about a comparison of the reference and the disputed signatures. Counsel have confirmed in their oral submissions today that it had been no part of the case for either the prosecution or the defence to suggest that such an approach could or should be adopted. To consider directing the jury about such an approach would be to enter on very dangerous territory. If it could properly be done at all, which we doubt, it would have required the most careful direction. This is perhaps an illustration of one of the submissions which Mr Scouller made to us, that there was no clear indication to the jury of which parts of the summing-up constituted directions which they were bound to obey, and which part constituted reminders of evidence about which they were free to make their own decisions.
29.
In those circumstances and for those reasons, we are bound to conclude that these convictions are unsafe. We do so notwithstanding our ready agreement with Mr Cooke that this was a straightforward case in which the issues could and should have been made clear. But for the reasons which we have summarised, and which we do not think it right to amplify further, we cannot be satisfied that the jury were safely left to consider the important issues.
30.
It follows that these convictions must be quashed. The application for leave to appeal against sentence therefore falls away. We should record that from a reading of the papers our very provisional view was that it seemed unlikely that any arguable grounds of appeal against sentence would be made out. But we have not heard submissions upon it, in view of the conclusion which we have reached about the convictions, and we therefore say no more in relation to sentence.
31.
In those circumstances, we grant leave to appeal against conviction, we allow the appeal and we quash the convictions.
32.
Mr Cooke, where does that take us?
33.
MR COOKE: I am instructed not to ask for a retrial.
34.
LORD JUSTICE HOLROYDE: We can, I think, understand why that may be so. Thank you both. We are, I repeat, grateful to you for the help you have given this court, and we have endeavoured to make clear in our judgment that we feel you did all you properly could do in awkward circumstances in the court below. | {"ConvCourtName":["Crown Court at Croydon"],"ConvictPleaDate":["2017-05-11"],"ConvictOffence":["Theft","Fraud"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Croydon"],"Sentence":["6 months' imprisonment suspended for 24 months with requirement to perform 90 hours’ unpaid work (for fraud)","No separate penalty for theft"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Expert report/testimony"],"DefEvidTypeTrial":["Offender denies offence","Testimony of partner"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction","Sentence"],"AppealGround":["Recorder failed adequately to direct the jury as to the law or properly to summarise the evidence","Convictions are unsafe because the summing-up did not enable the jury properly to understand the issues","On a proper application of the Sentencing Guideline these offences either failed to cross the custody threshold or, if they did so, merited only a very short suspended sentence"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Recorder's directions as to law were insufficient","Recorder's summing-up as to the facts was so diffuse and unstructured that the jury could not realistically be expected to have derived any assistance from it","Recorder failed to properly remind the jury of the expert evidence and may have confused the jury as to their role"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2014] EWCA Crim 1722
Case No:
2014/0893/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 30 July 2014
B e f o r e
:
LORD JUSTICE TREACY
MRS JUSTICE SIMLER DBE
HIS HONOUR JUDGE BEVAN QC
(Sitting as a Judge of the CACD)
Between:
- - - - - - - - - - - - - - - -
R E G I N A
v
MICHAEL DEWDNEY
- - - - - - - - - - - - - - - -
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 Farmer
appeared on behalf of the
Applicant
J U D G M E N T
1.
LORD JUSTICE TREACY:
2.
This is a renewed application for leave to appeal against sentence after refusal by the single judge.
3.
The applicant pleaded guilty on 14th January 2014 at Norwich Crown Court to an offence of causing serious injury by dangerous driving. That is an offence contrary to
section 1
A of the
Road Traffic Act 1988
. This provision came into force in November 2012. The reference to serious injury is to physical harm which amounts to grievous bodily harm for the purposes of the Offences Against the Person Act.
4.
In addition, the applicant admitted driving with excess alcohol which had been committed to the Crown Court under the provisions of section 41.
5.
On 7th February 2014 he was sentenced to 32 months' imprisonment for the dangerous driving offence, with four months concurrent for the excess alcohol. He was disqualified from driving for three years and until an extended test is passed.
6.
The offence took place at about 8 am on Saturday 20th April 2013. The road concerned is a B road in a rural or semi-rural area. The applicant had been out all night at pubs or clubs or otherwise socialising. He had been drinking and was subsequently found to be one-and-a-half times the legal limit. In addition, blood analysis showed the presence of ecstasy, amphetamine and cannabis.
7.
At the time of the accident the applicant was driving his car with three passengers. The site of the accident was at a humpback bridge which had a straight approach to it. The applicant was driving fast as he approached the bridge. At least one passenger told him to slow down. The applicant in fact increased speed as he approached the bridge and made comments showing that he intended to take the bridge at speed. He ignored further warnings to slow down.
8.
The vehicle took off on the humpback bridge and when it regained contact with the road the applicant lost control and the vehicle somersaulted off the road before coming to rest in a field.
9.
There had been three bystanders who had witnessed the accident. It was obvious to them what was going to happen. Two of them estimated the applicant's speed as being in the region of 80 mph. Another put it at well in excess of 50 mph.
10.
The consequences for those in the vehicle were very severe but luckily not fatal. Amber Read, a female rear seat passenger who had to be freed from the vehicle by emergency services, sustained a brain haemorrhage, bilateral contusions of the lungs, several fractures of the thoracic spine with bleeding around the spine and heart. There was a large wound to her scalp which required stitching. Following surgery to her back, she has been left with rods permanently inserted. These are visible and have resulted in scarring. In addition, there were fractures of her clavicle and chest bones.
11.
Joseph Cork had one fractured and three crushed vertebrae and a fractured spine. He also had cuts to his head and both hands. Jason Chapman had an injury to his right shoulder blade and lost an area from his scalp which required stitching. He suffered back spasms for several weeks.
12.
All three of the passengers suffered continuing consequences from their injuries by the time of sentence, which was some nine months after the accident. Their victim statements show continuing pain, together with employment and psychological problems.
13.
The applicant himself was seriously injured. He suffered a fractured skull and a brain haemorrhage, a fractured jaw requiring plating and a fractured arm.
14.
There are matters about the applicant's previous history and/or background which are relevant. In 2006 when he was 14 he was convicted of dangerous driving. In the same year when he was 15 he was convicted of aggravated vehicle taking. By the time of this accident he had nine points on his licence. In 2010 he had used a mobile phone whilst driving and in 2012 he had used a vehicle without insurance.
15.
There was evidence that he had been using his mobile phone on the journey which led to this accident, albeit not in the immediate run up to it.
16.
His record also shows convictions for battery in 2009 and being drunk and disorderly in 2012. Both of those offences are drink related. There is also a 2012 conviction for possession of a class A drug.
17.
On the other side of the coin, the applicant had a satisfactory work record and some favourable character references. Given the location of the accident the road in question was not likely to be heavily used, although the applicant had no means of knowing what lay on the other side of a steep humpback bridge.
18.
For the applicant it is submitted that this was not a sustained piece of dangerous driving. Whilst the level of alcohol was unlawful it was not excessive and whilst the injuries caused to two of the passengers could be described as involving serious physical injury, it was possible to imagine cases where non-fatal catastrophic injury might be caused.
19.
Accordingly, it was submitted by Mr Farmer that this was not the most serious case of its kind and that a starting point of four years and six months, which is close to the maximum of five years, was wrong in principle.
20.
This relatively new offence reflected a decision by Parliament to meet a gap identified by both in judgments of this court and in public concern between the maximum sentence of two years for dangerous driving and the maximum sentence of 14 years for causing death by dangerous driving. It had been felt for many years that legislation failed to provide for circumstances in which not only had the driving been of a character likely to cause injury to life and limb, but had actually caused serious and significant injury to others. The result has been this new offence carrying a maximum of five years.
21.
There is of course no sentencing guideline in place for this offence. However, there is a guideline of the Sentencing Guidelines Council relating to causing death by dangerous driving. We think it helpful to have regard to that guideline in relation to the levels of offending identified there.
22.
The least serious, Level 3, is driving creating a significant risk of danger. Examples given are of driving above the speed limit, driving when deprived of adequate sleep or rest, a brief but obvious danger arising from a seriously dangerous manoeuvre and driving whilst avoidably distracted.
23.
Level 2 is described as driving that created a substantial risk of danger. Examples given are greatly excessive speed, gross avoidable distraction such as reading or texting over a period of time, and driving whilst impaired as a result of alcohol or drugs.
24.
Level 1 is described as covering 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. Examples given are a prolonged, persistent and deliberate course of very bad driving, the consumption of substantial amounts of alcohol or drugs leading to gross impairment, or a group of factors which in smaller number would place the offence in Level 2.
25.
The guideline recognises that the presence of aggravating factors or examples of seriousness will increase the starting point within a sentence range and may justify moving to the next level of seriousness.
26.
Given the level of the statutory maximum for the
section 1
A offence compared to that for the simple offence of dangerous driving, there will of necessity be a degree of compression in the sentences available to the court to reflect different types of dangerous driving and its consequences in the
section 1
A offence.
27.
It seems to us therefore that it is not a helpful exercise to indulge in considering the very worst imaginable type of case which would attract a sentence at the maximum. A more realistic approach is to identify a broader band of conduct which will represent the most serious offending within the ambit of the offence.
28.
It seems to us that whilst it might be arguable that the applicant's dangerous driving falls into the upper ranges of Level 2 rather than within Level 1, given the absence of prolonged very bad driving and gross impairment through the consumption of alcohol and/or drugs, the fact remains that this applicant did take a deliberate decision to ignore the rules of road safety in circumstances which inevitably caused very considerable danger to others. There may be a respectable argument that the driving did indeed fall within Level 1.
29.
However, even if the driving falls within the upper ranges of Level 2, there are a number of important aggravating factors. First, previous convictions for motoring offences, especially those involving bad driving. Secondly, and importantly in the context of an offence predicated upon the causing of serious injury to another, two of the passengers were seriously injured with continuing consequences for them and a third was significantly injured.
30.
Moreover, the offence was committed whilst the ability to drive was impaired not only by drink, but also by the consumption of drugs in circumstances where the offender had been up all night.
31.
In addition, the applicant had ignored warnings that he should moderate his speed and had responded to them by doing the very opposite. He accelerated harder as he approached the humpback bridge. This was deliberate risk-taking at high speed in very dangerous circumstances. We regard the culpability of the applicant in those circumstances as being extremely high, and within the context of this offence the harm done by his actions is again very high.
32.
In those circumstances, we consider that the judge was entitled to regard this offence as falling within the range of the most serious offences of this kind. Although the starting point of four years and six months was undoubtedly severe, we consider that it was deservedly severe. The judge then made some allowance for the applicant's personal mitigation and full allowance for early guilty pleas.
33.
In the circumstances the resultant sentence and disqualification were not manifestly excessive and this renewed application is refused. | {"ConvCourtName":["Norwich Crown Court"],"ConvictPleaDate":["2014-01-14"],"ConvictOffence":["Causing serious injury by dangerous driving","Driving with excess alcohol"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Norwich Crown Court"],"Sentence":["32 months' imprisonment for dangerous driving","4 months concurrent for excess alcohol","Disqualified from driving for three years and until an extended test is passed"],"SentServe":["Concurrent"],"WhatAncillary":["Disqualified from driving for three years and until an extended test is passed"],"OffSex":["All Male"],"OffAgeOffence":[21],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking&drugs"],"OffVicRelation":["Acquaintance"],"VictimType":["Individuals"],"VicNum":["three"],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Blood analysis","Bystander testimony"],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["Previous convictions for motoring offences","Two passengers seriously injured with continuing consequences","Offence committed while impaired by drink and drugs","Deliberate risk-taking at high speed","Ignored warnings to slow down"],"MitFactSent":["Satisfactory work record","Favourable character references"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Starting point of four years and six months was wrong in principle","Not the most serious case of its kind"],"SentGuideWhich":["Sentencing Guidelines Council relating to causing death by dangerous driving"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Judge was entitled to regard this as among the most serious offences of its kind","Sentence deservedly severe given aggravating factors","Full allowance made for early guilty plea and personal mitigation"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Resultant sentence and disqualification were not manifestly excessive"]} |
Case No:
2002/04091/D1
Neutral Citation Number:
[2004] EWCA Crim 07
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
His Honour Judge Robert Pryor QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Wednesday 21
st
January 2004
Before :
LORD JUSTICE RIX
MR JUSTICE McCOMBE
and
THE HON RECORDER OF MIDDLESBROUGH
(sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
Christopher John MINTERN
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Keith Hadrill
for the Appellant
Mr Stephen Parish
for the Crown
Hearing dates : 5
th
December 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Rix:
1.
On 19 June 2002 in the Crown Court at Winchester before HH Judge Robert Pryor QC and a jury the appellant, Christopher John Mintern, was convicted on two counts of conspiracy and a further count of attempting to damage property being reckless as to whether life would be endangered. On 12 July 2000 he was sentenced to a total of ten years imprisonment. The three counts were count 3, conspiracy to commit burglary, for which he was sentenced to six years, count 4, conspiracy to commit arson, for which he was given a consecutive sentence of 4 years, and count 5, attempting to damage property, for which he was given a concurrent sentence of four years. Mintern appealed against conviction with the leave of the single judge. On 5 December 2003 we heard his appeal and dismissed it, but reserved our reasons which are now contained in this judgment.
2.
Mintern was indicted with ten other co-defendants on an indictment which had originally contained 17 counts. By the time the indictment reached the jury the counts had been reduced to seven and had been re-numbered. Counts 3, 4 and 5 had originally been numbered 4, 5 and 7.
3.
Count 3 alleged that in the fifteen or so months between 13 January 2000 and 25 April 2001 Mintern and five co-accused had conspired together and with other persons unknown to enter buildings as a trespasser with intent to steal. The five co-accused were Danny Stevens, Joseph Smith, Paula Hinckley, David Clothier and Richard King. Stevens was found not guilty by the direction of the judge following a submission of no case to answer at half-time. Hinckley, who was Mintern’s girl-friend, was acquitted. Smith, as well as Mintern, was convicted. King pleaded guilty to a further conspiracy on count 8 and no evidence was offered against him on count 4. Clothier was also acquitted, the Crown offering no evidence against him but accepting a plea to offences of going equipped.
4.
Count 4 alleged that in the same fifteen month period Mintern had conspired with Stevens, Smith and Hinckley and with other persons unknown to destroy or damage by fire motor vehicles belonging to others. Stevens and Hinckley were both found not guilty by the direction of the judge following a submission of no case to answer. Count 5 related to a substantive offence arising out of a police car chase on 10 October 2000.
5.
Stevens was a major criminal who had already received a life sentence at an earlier trial. He was also indicted at this trial, in addition to counts 3 and 4 (the 2000 conspiracies) on which he was acquitted, on two further conspiracies to burgle and steal, one relating to dates in 1999 (the 1999 conspiracy) and one relating to later dates in 2001 (the 2001 conspiracy). To these he pleaded guilty by a change of plea at trial, and was sentenced to a total of 8½ years imprisonment. The trial was opened by the Crown on the basis that Stevens was a key player who lived on a caravan site which provided the metaphoric and geographic hub of the offences.
The prosecution case
6.
We can take the relevant factual background to this appeal in large part from the advice and perfected grounds drawn up by Mr Keith Hadrill, who appeared for Mintern at trial and again on this appeal.
7.
The two conspiracy counts alleged against Mintern were based around "ram-raid" burglaries which involved the use of stolen vehicles, often of the Range Rover 4x4 type, to ram the windows of commercial premises and to dislodge and make off with automatic telling machines (ATMs). The stolen ATM would then be moved to another location, either using the same 4x4 or another stolen vehicle, and the ATM would be cut open to get at the cash inside. The stolen vehicles would then often be set on fire and burned out, sometimes leaving the ATM inside or nearby. This was done to destroy evidence and founded the arson conspiracy. These operations occurred in Hampshire, Surrey and Berkshire.
8.
Count 5 related to a specific incident on 10 October 2000 when the police chased a stolen Mercedes estate containing three people wearing balaclavas. During the chase, the police car was rammed by the Mercedes operating in reverse in an attempt to disable the pursuing vehicle. Items such as sledgehammers, bolt croppers and a disc cutter were thrown out of the back of the Mercedes for the same purpose. The Mercedes was pursued down a track in Bracknell Forest and crashed. Its occupants fled. Mintern was found by a dog-tracker close by the abandoned Mercedes and there was a balaclava lying on the ground near where he was arrested. He was wearing mesh-type gardening gloves.
9.
The particulars of the counts 3 and 4 conspiracies given on the indictment merely alleged that the co-accused
"between the 13
th
day of January 2000 and the 25
th
day of April 2001 conspired together and with other persons unknown"
respectively to burgle and to damage or destroy by fire vehicles belonging to others. However, at the outset of the trial the prosecution placed before the jury a schedule (the "original schedule") which itemised the events which were said to form the particulars of the conspiracy counts. Items 5/25 on that schedule related to the two counts which made up the 2000 conspiracies. There were 21 such items the earliest of which was dated to 13 March 2000 and the last of which was dated to 9 March 2001. All 21 items involved burglaries or attempted burglaries, and a smaller number involved arson to vehicles involved in the burglaries.
10.
As for Mintern’s involvement in the conspiracies, the prosecution sought to prove that in particular by evidence falling under six main heads: a footprint, a jacket, a cigarette butt, a trip to New Milton, the Mercedes car chase, and association with two other vehicles, F223 KHO and G900 XFH.
11.
The footprint: A ram-raid occurred on 24 March 2000 at Southsea and an ATM was stolen. A Subaru bearing foreign number plates was seen driving away with its boot open and a bulky item in the back. A Subaru Impreza and an ATM were later found burned out in Bramshill Forest near Camberley. A shoe later seized from Mintern’s home in Camberley on 14 April 2000 was found to have the same tread pattern as a print lifted from the crime scene.
12.
The jacket: A ram-raid took place at the HSBC branch in Wokingham on 5 April 2000. CCTV evidence showed one of the participants wearing a dark jacket with silver or white stripes down the sleeves. A jacket similar in appearance was later found at Mintern’s home on 14 April 2000. There was no forensic scientific link between the jacket and the crime.
13.
The cigarette butt: On 28 June 2000 police officers lay in wait at a shop called Supermacs at Horndean Road, Bracknell. A ram-raid took place involving four vehicles and five people. One of the vehicles was a dark Mondeo, S747 MBK, which was detained at the scene. Four men were arrested, including a nephew of Hinkley, one Danny Coombes. The fifth man escaped in a stolen Shogun, but the description given for him did not fit Mintern. This Mondeo was alleged to have been used in two previous ram-raids (in May or June). The contents of its ashtray were analysed, and Mintern’s DNA was found on one cigarette butt and Hinkley’s on two other butts.
14.
The New Milton trip: Police surveillance at the home of Hinckley revealed that Mintern and others drove from there to New Milton in the New Forest on the evenings of 15 and again 17 August 2000. The car used on 15 August belonged to Hinckley and that used on 17 August belonged to Mintern. There was an attempted burglary on a store in New Milton on 31 August. The earlier trips were said to be by way of reconnoitre.
15.
The Mercedes car chase: We have already described this above. It occurred on 10 October 2000.
16.
Vehicles F223 KHO and G900 XFH: On 16 November 2000 F223 KHO, a Vauxhall Cavalier, was observed on Hinckley’s driveway, a few days after a ram-raid burglary at King and Sons in Sandhurst. The car was forensically linked to the burglary because fibres from it as well as glass from the burgled premises were both linked to the co-defendant Smith. On 29 November 2000 G900 XFH, a Vauxhall Belmont, was involved in a road traffic accident near Crowthorne in Berkshire. In a carpark close to the accident was a Citroen AX, which had been stolen only two hours before the accident and was on fire. Two weeks earlier the Vauxhall Belmont had been observed both outside Mintern’s home address and also outside Smith’s home. Indeed, Smith had a key to it. It was alleged that the Citroen was part of the conspiracy to commit arson and that the Belmont was to enable the conspirators to leave the area.
The applications at the close of the prosecution case
17.
At the close of the prosecution case counsel on behalf of Stevens made a submission of no case to answer on the conspiracy counts 3 and 4 on the basis that there was nothing to link him to the co-accused. The judge ruled in favour of that submission, saying that the evidence revealed more than one set of conspirators. The Crown responded with an application to amend the indictment to include two separate pairs of counts to cover the 2000 conspiracies: one pair against Mintern, Smith and Hinckley and persons unknown and another pair of counts against Stevens and persons unknown.
18.
The judge considered and rejected the prosecution’s application to amend the indictment so as to split the allegations of conspiracy as against Stevens and as against the other three co-defendants respectively. He was satisfied that there would have been no technical difficulty with an original indictment in that form, but that it would not be fair to the defendants as a whole to permit such an amendment at the close of the prosecution case, on the basis of their counsel’s assertion ("without it appearing quite unsupportable") that that would have affected the way in which they would have conducted their case.
19.
Mr Hadrill, on behalf of Mintern, for his part submitted that if the original conspiracies charged were now each to be seen as potentially covering two conspiracies, then the indictment was bad for duplicity and Mintern should also be acquitted on counts 3 and 4.
20.
The judge rejected that application. He said:
"I concentrate on those two particular counts because they are the ones which have led to the decision I made earlier today to conclude that there was no evidence to go before a jury to establish that Danny Stevens was part of either of the conspiracies alleged…But what emerged was that whatever evidence there might be as to Danny Stevens’ activities, there was nothing of any significance which could be placed before the jury to tie him in with the activities of the other three alleged conspirators…
In effect, what one is left with is evidence which does not establish the existence of a single conspiracy in which Danny [Stevens] can be shown to have been involved. If it establishes conspiracy, it establishes two conspiracies (or possibly more) but at least two….
I should go on from there to consider where that leaves the other three defendants, because it has been forcefully argued by Mr Hadrill on behalf of Christopher Mintern that if I direct the acquittal of one defendant to that conspiracy I really in logic should direct the acquittal of all of them on the basis that the conspiracy that the prosecution set out to prove has not been proved and therefore the case should not go on against the other three defendants. I do not accept that argument. I think that the effect of my order is to say that the evidence does not prove that Danny Stevens was involved with a conspiracy with the other three. It does not follow that the other three were not themselves involved in a conspiracy to carry out burglaries."
21.
The judge then referred to
R v. Griffiths
[1965] 49 Cr App R 275
, [1966] 1 QB 589 and
R v. Greenfield
[1973] 57 Cr App R 847
,
[1973] 1 WLR 1151
and found that the following dictum from the latter authority met the prima facie facts of the case as they had been revealed so far, where Lawton LJ had said (at 857):
"At the end of the prosecution’s case the evidence may be as consistent with the accused, or some of them, having been members of the conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged (despite evidence of the existence of another conspiracy) then the trial judge should let the case go to the jury."
22.
The judge next considered Mr Hadrill’s alternative submission on behalf of Mintern that to continue against the background of all the evidence which the prosecution had led would be unfair to Mintern and place him at some disadvantage: but the judge did not accept that submission. He said:
"The evidence remains the same. All it does is fail to prove the case of conspiracy against Danny Stevens. Its failure lies in failing to tie him into an agreement, not in failing to adduce evidence which might lead to the conclusion that he has been involved in ramraiding."
23.
The judge also accepted an application on behalf of Hinckley of no case to answer on count 4, which was not resisted by the prosecution. Mr Hadrill in his written submissions described this as an "unexpected success". As a result, a similar application was made on behalf of Mintern, but this was opposed by the prosecution and failed.
The grounds of appeal
24.
In these circumstances Mintern has essentially three grounds of appeal. The first and second arise out of Stevens’ acquittal at half time on counts 3 and 4, the third out of Hinckley’s acquittal at half time on count 4. The first is that when the prosecution evidence disclosed two pairs of conspiracies, one pair involving Stevens and the other pair not involving him, the judge erred in not directing an acquittal in respect of all the defendants on the ground that the counts charged against them were duplicitous. The second is that the judge erred in any event in not discharging the jury but allowing the case to continue against the defendants other than Stevens in circumstances where he had ruled that it would have been unfair to amend the indictment as requested by the prosecution. It is said that that unfairness embraced count 5 as well. The third ground is that the judge erred in not acceding to the parallel application on behalf of Mintern to find no case to answer on count 4, since the evidence against Hinckley was effectively the same as against him.
The consequences of the judge’s rulings
25.
The judge took care to inform the jury, when they returned to court, about the results of the submissions that he had been hearing at half time in their absence. He told them:
"So the conclusion that I have arrived at is that it is right for you to consider all the evidence that exists to see whether there is an agreement at all on both counts 3 and 4 and, if so, whether any of the defendants alleged was involved in it. But I am directing you now that on the evidence that exists at the moment the prosecution has not proved that Danny Stevens, whatever else he may have done, was not – the prosecution has not proved that he was involved in any agreement with the others."
26.
The prosecution immediately set about amending the schedule of itemised events which were said to make up the subject matter of the conspiracies on counts 3 and 4 (the "amended schedule"). There were now only 10 robberies or attempted robberies, between 24 March and 23 November 2000, together with their associated car burnings. The prosecution made it clear that they were confining the evidence on which they relied to the items scheduled in the amended schedule. That the schedule would have to be amended was recognised at the time of the submissions which had led to the judge’s rulings.
27.
In due course in his summing up, about which no criticism is made, the judge emphasised the need, before convicting any of the three co-defendants remaining in respect of counts 3 or 4, to find a single conspiracy to which each was linked; and he also emphasised the restricted case the prosecution was now making under those counts. Thus he said (at pages 20/21 of the transcript):
"Finally on this, it is important to remember this. That where, as in counts 3 and 4 in this indictment particularly, you have an allegation that the defendants took part in a conspiracy over a long period, it is important to remember that the prosecution must prove a single conspiracy. That is what has been charged and that is what the prosecution must prove. You have been told that more than once.
So if you have two alleged conspirators, A and B, and there is no evidence to link them into the same conspiracy, they cannot be convicted of conspiring together in that conspiracy. Whatever evidence there may be against each of them individually, they still cannot be convicted of conspiring unless they are linked together in the way I have indicated. That is why I directed you at the end of the prosecution’s case to acquit Danny Stevens. I concluded as a matter of law that there was not enough evidence of the link between him and the others to enable you to convict him as being involved in a single conspiracy with them. When a judge reaches a conclusion of that kind, it is his duty to direct the jury to acquit the defendant in question…It remains for you to consider whether the remaining defendants, or any of them, conspired together or with others in a single conspiracy. What the prosecution seeks to prove under counts 3 and 4 is that there was a longstanding agreement to carry out ram raids as and when the opportunity arose, and that each of the three defendants under count 3 and the two defendants charged under count 4 played some part in the course of conduct which had been agreed."
28.
He went on, in dealing with the evidence, to address the jury solely by reference to the amended schedule, to which he referred in terms (at p 48 of the transcript).
The first ground: duplicity
29.
On behalf of Mintern, Mr Hadrill submitted that counts 3 and 4 were duplicitous, or charged what he described as "rolled-up" conspiracies. In effect he argued that when the judge found that the prosecution’s evidence under counts 3 and 4 prima facie revealed two separate (pairs of) conspiracies, the duplicitous form of the indictment was revealed. It then became impossible to know whether the counts charged a conspiracy or conspiracies against Stevens (with persons unknown but not the other three accused, Mintern, Smith and Hinckley) or a separate conspiracy or conspiracies against Mintern, Smith and Hinckley (and persons unknown but not Stevens). Who was to say that the indictment charged the conspiracies which remained in the charge of the jury, as distinct from the conspiracies which, of the original accused, only involved Stevens? After all, the prosecution’s schedule which had begun by particularising 21 events between March 2000 and March 2001 became an amended schedule particularising only 10 events between March and November 2000. It was submitted that the evidence revealed that the counts had charged duplicitous pairs of conspiracies, that it was impossible to say that the conspiracies which remained in the charge of the jury were the conspiracies alleged in the indictment, and that in effect the prosecution had achieved an amendment of the indictment by restricting it to only part of what the prosecution had earlier presented to the jury as demonstrating the conspiracies alleged.
30.
On behalf of the Crown, however, Mr Stephen Parish submitted that duplicity was a pure matter of form, the indictment was not duplicitous in form and it did not matter that the evidence had revealed more than one conspiracy or that there was no evidence to link Stevens into a conspiracy involving the other three. Thus the conspiracies of which Mintern had been convicted were the conspiracies charged in the indictment even if some of the incidents previously relied on were abandoned half-way through the trial. Essentially all that had happened was that it had been determined at the half-way stage that one of the four alleged conspirators had not been party to the conspiracies charged.
31.
Both counsel submitted that
Griffiths
and
Greenfield
supported their respective cases. We therefore turn to those authorities.
32.
The usual point for which
Griffiths
is cited is that the practice of adding a "rolled up" conspiracy count to a number of counts charging substantive offences should be discontinued (at 288/9). It is in this sense that one speaks of a conspiracy count as "rolling up" a number of substantive counts, whether charged or not charged. The prosecution was castigated as overburdening the jury. The case is also authority for the proposition that a "wheel conspiracy", where each conspirator is alleged to conspire with a central conspirator but not with the other named conspirators, is unknown to the law. A number of farmers had been accused of conspiring to defraud the government in the matter of lime subsidy. Each, however, had acted independently of the other farmers, although they had all bought from the same supplier. The farmers’ convictions were therefore quashed. The judgment of Paull J went on to consider nevertheless whether the convictions of the two central characters could stand, but it was held that they could not, on the ground that the judge’s summing-up had been defective and their convictions were therefore unsafe. Nothing was said about a duplicitous indictment. The judgment ended as follows (at 296/7):
"The fundamental mistake was even to attempt to try the matter as one case. In addition the learned judge was certainly not helped either by the somewhat confused way in which the case was developed for the prosecution by way of submissions, nor by the fact that no counsel for the defence even suggested that the conspiracy charge could not stand on the evidence presented by the prosecution, nor suggested that, in fairness to the accused, the case should not be tried as one conglomerate whole. The fact, however, is that the trial of this case and the summing-up are so unsatisfactory that none of the verdicts can possibly stand. The case started as a fraud by under-delivery of lime. When the whole of the prosecution evidence had been tested on this basis, the case began to change to lime for the cost of the subsidy. It was then seen that this would not do, at least in many of the cases, and the case then changed to a case of the parties exaggerating the value of the goods taken in exchange. Not only were the precise charges which finally remained never explained to the jury, but, as was pointed out by Lord Goddard C.J. in the case of ABBOTT
(1955) 39 Cr.App.R. 141
, at p. 151;
[1955] 2 Q.B. 497
, at p.506: "It cannot be right for a judge to leave a case to the jury where the whole structure upon which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case.""
33.
That passage was relied upon by Mr Hadrill, but in our judgment any relevance it has is primarily or exclusively to the second ground of appeal.
34.
In
Greenfield
the defendants had been charged inter alia with conspiracy to cause explosions. A ground of appeal was that that conspiracy count was bad in law. The prosecution sought to prove the conspiracy by calling evidence about 25 explosions or attempted explosions within the 3½ year period of the conspiracy alleged. A schedule was prepared. In the course of the trial the prosecution, while maintaining their original case that all 25 incidents were the responsibility of the same persons, also developed an alternative case
viz
that at least half of those incidents were "and that all the accused had conspired to effect those incidents" (at 853). Lawton LJ explained the matter as follows (at 855):
"Mr Lowry submitted that count 1 was bad in law because, as the trial progressed, the evidence was consistent with the existence of more than one conspiracy. In our judgment that did not make the count bad in law. A conspiracy count is bad in law if it
charges
the accused with having been members of two or more conspiracies. This is elementary law. We have had to consider whether count 1 did charge more than one conspiracy. It referred to one conspiracy only…Mr Matthew’s opening made clear that the prosecution was alleging that there was only one conspiracy which all the accused had joined. We mention this incident because judges may be in doubt as to what they should consider before deciding whether a conspiracy count is bad for duplicity. They should look first to the count itself. In most cases it will be unnecessary to look at any other material. If particulars of the count have been requested and given, these too should be considered…
Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of the count..."
35.
Lawton LJ then went on to give two examples of counts which were bad for duplicity. One was in
R v. West
[1948] 32 Cr App R 152
,
[1948] 1 KB 709
, where the count alleged conspiracy to infringe Defence Regulations which had changed over the course of time: it followed necessarily that such a conspiracy could not have been formed all at one time. The other example given was
R v. Davey
[1960] 45 Cr App R 11
,
[1960] 1 WLR 1287
: the 11 year conspiracy there alleged to defraud certain companies again could not have been formed all at one time, for some companies had not been incorporated and some had already been wound up at times when some of the alleged conspirators had not been said to have joined it. In contrast to these two cases Lawton LJ cited
Griffiths
as an example where the conspiracy alleged had not been duplicitous (at 856):
"…the conspiracy count alleged one conspiracy and was not bad for duplicity; but the evidence led to support that count wholly failed to prove the conspiracy charged. Instead of proving that the accused had all conspired together for a common purpose, it proved that many of them had conspired with one of their number for their own purposes. No such common purpose as charged was ever established and so, as a matter of proof, there had to be an acquittal."
36.
Lawton LJ then returned to the case before him (at 856/7):
"In our judgment, the distinction which exists between form and proof is the clue to the problem provided by this case. The prosecution was alleging that these appellants and the other accused had had a common purpose to cause explosions. All the accused in their several ways challenged this basic allegation of a common purpose; and they did so by alleging that the evidence revealed the possibility that those charged may have had in relation to some of the incidents purposes which were not common at all. What they were doing was challenging the existence of the conspiracy as charged, which is but a way of saying that they were denying that the prosecution had proved their case. A charge which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the accused being a member of a conspiracy other than the one charged. Such evidence may make it impossible for the prosecution to establish the existence of the conspiracy charged. GRIFFITHS (
supra
) was such a case. At the end of the prosecution’s case the evidence may be as consistent with the accused, or some of them, having been members of a conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury.
"That was happened in this case. James J. allowed the case to go to the jury and directed them in the clearest terms that before convicting anyone they had to be sure that the prosecution had proved the existence of the conspiracy charged. Thus at the outset of his summing-up he said this: "Remember this, the longer a conspiracy is alleged to have lasted, the more important it is that one should look with care, to make sure it is one and the same agreement that is being alleged and not a different number of agreements within that one period. The Crown say here that there was one and the same throughout." This direction was repeated over and over again during the long summing-up which this lengthy trial made necessary. In our judgment the conspiracy count was not bad in law and the direction to the jury on it was correct."
37.
Mr Hadrill submitted that in this case the judge’s acceptance that the evidence prima facie demonstrated two separate pairs of conspiracies to only one of which the accused other than Stevens might belong caused a situation which went beyond what Lawton LJ was contemplating in
Greenfield
. It is true that in that case the alternative cases presented by the prosecution remained only that, cases for the jury to consider. Even so, for that very reason the matters there presented went beyond the present, because they permitted the possibility that the incidents which did not form part of the alternative case were caused by an alternative conspiracy. In the present case the judge’s ruling and the prosecution’s reaction to it, the amendment of their schedule, ensured that what was presented to the jury was a single conspiracy only, embracing part of the original incidents scheduled (as in
Greenfield
), to which all the accused still left in to answer counts 3 and 4 were alleged to be party. Moreover, the essential distinction drawn by Lawton LJ, between a count which is duplicitous in form and one which merely turns out to be so when the evidence is in, as he put it "despite evidence of another conspiracy", entirely supports the lawfulness of the present counts 3 and 4. Mr Hadrill does not submit that those counts were duplicitous in form. While we think that the distinction between conspiracies which are duplicitous in form and those which are not may in certain cases be difficult to draw, as will often arise with a formal test, we were not asked to consider further the cases of
West
and
Davey
cited by Lawton LJ, and the possibility that counts 3 and 4 could be interpreted as being duplicitous in form was in any event not contended for.
38.
In our judgment, the true ground on which the conduct of the trial and its convictions are to be challenged, if at all, is the second ground which raises the question of the fairness of the proceedings when once it had emerged that the evidence presented to the jury and the incidents scheduled by the prosecution did indeed cover two separate (pairs of) conspiracies. This is we think indicated by those passages in both
Griffiths
and
Greenfield
in which the fairness of the proceedings and of the judge’s directions was considered. It is also indicated by the cases referred to in a separate passage in
Archbold
, 2004 ed, at para 7-78 (
cf
para 1-135 where
Griffiths
and
Greenfield
are discussed), to which the court drew attention but which otherwise were not cited.
39.
Thus in
R v. Thompson
[1914] 2 KB 99
an objection taken at trial that a count was duplicitous was dismissed and a conviction was obtained, but on appeal although it was held that the indictment had indeed been duplicitous in that it had charged more than one offence in each count nevertheless the conviction was upheld under the proviso. That case concerned incest. Sir Rufus Isaacs CJ, giving the judgment of a five judge court of criminal appeal, said (at 104/5):
"If we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment in this form we should have felt bound to quash the conviction whatever our views might be as to the merits of the case. It must not be thought that we are deciding that such objections should not be allowed to prevail either at the trial or in this Court. An indictment so framed might undoubtedly hamper the defence, and if it did we should undoubtedly give effect to the objection…One of the objects of section 4 [the proviso] was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice."
40.
In
R v. Wilmot
[1934] 24 Cr App R 63
, on the other hand, a duplicitous indictment in a driving case led to the quashing of a conviction without more ado and even though the point had not been taken at trial. It was indicated that the vice of duplicity was that the defendant cannot know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading
autrefois acquit
. In
R v. Jones
[1974] 59 Cr App R 120
one of the counts charged several incidents of affray in a single duplicitous count. The point had been taken even before arraignment and the conviction was quashed: James LJ said (at 128):
"If satisfied that no injustice would have been caused, [the judge] should have directed an amendment of the indictment. Alternatively he should have put the Crown to election as to the affray in respect of which the Crown would proceed. He did not do so. In those circumstances there was an error of law."
41.
Coming to modern times,
R v. Levantiz
[1999] 1 Cr App R 465 reviewed these and many other cases. The appellant had been convicted on a count of supplying heroin which this court assumed for the sake of argument had duplicitously combined a series of separate supplies. Buxton LJ pointed out that
Thompson
"is an authority of this Court that has stood for more than 80 years and has been followed on a number of occasions" of which he gave examples (at 475). He then turned to cases such as
Wilmot
and
Jones
which had been relied on for the submission that a duplicitous indictment could not lawfully lead to a conviction or one that could be sustained as safe and demonstrated that they did not support such a conclusion contrary to the authority of
Thompson
. He also concluded that no injustice or handicap had been done to the appellant there, whose conviction was upheld despite the assumption of duplicity made in his favour.
42.
Mr Hadrill did not dispute this principle, recorded in
Archbold
in the passage just cited, but sought to show in his second ground that Mintern had suffered an injustice. We mention the principle here for it seems to us to support the distinction drawn by Lawton LJ between initial formal duplicity and the development of evidence at trial. If an indictment is formally defective because duplicitous, that should be identified and rectified for all the reasons (referred to above in
Wilmot
) why duplicitous counts may cause difficulties at trial and thereafter. If, however, an indictment is not duplicitous but evidence reveals that where one offence had been thought to have been charged there had emerged more than one or the possibility of more than one, then special precautions may need to be taken to ensure that the difficulties of duplicity are avoided. There was no duplicity in
Griffiths
, but the case as it developed at trial ran into the gravest difficulties which were never overcome, if indeed they were not insuperable. There was no duplicity in
Greenfield
, but the emerging problems at trial were addressed by what this court regarded as suitable directions. In other cases, like
Thompson
and
Levantiz
, there was duplicity, real or assumed, but there was on the facts no embarrassment or prejudice at trial, and convictions were upheld. A trial should not begin with a legally defective indictment, but in all cases it is the substance of the quest for fairness and not the mere form that is important. The question is how these considerations affect the present appeal, and we therefore turn to Mr Hadrill’s second ground.
The second ground: unfairness
43.
Mr Hadrill’s submission under this ground is that the question of fairness had really been answered by the judge’s own decision that it would have been unfair to have permitted the prosecution to amend the indictment to introduce a new pair of counts against Stevens and thus formally to separate him and the other accused on counts 3 and 4. He submitted that the judge should have permitted the amendments requested and then, on the basis of his finding of unfairness, discharged the jury so that separate re-trials could be conducted. As it was, the three defendants including Mintern left in on counts 3 and 4 were prejudiced.
44.
Our difficulty, however, is in understanding how the three defendants were in fact or could in theory have been prejudiced or embarrassed, and nothing that Mr Hadrill said made this matter clearer. It seemed that his main complaint was that Stevens, who on his own admission in an intercepted conversation which had been put before the jury by the Crown was the biggest burglar in that region, had been acquitted of the 2000 conspiracies, while the three other defendants remained on trial. Thus the submission made was that in fairness if one defendant was successful at half-time, then all should have been. On an altogether contrary tack, reliance was placed on evidence subsequently introduced by Stevens (through the relevant investigating police officer) of a further 65 ram-raids carried out in the same area over the same time-scale, of which he said he was innocent: it was suggested that this could have thrown suspicion on the co-defendants and complaint was made that the prosecution could well have re-examined the police officer to show that such cases could be traced to Stevens through either relatives or other associates of his.
45.
However, we are wholly satisfied that there was no unfairness to Mintern or his remaining co-defendants on counts 3 and 4. As was submitted on behalf of the Crown, we consider that if anything Mintern was assisted by the establishment in evidence led by the Crown that Stevens, with other persons unknown – for it was plain that ram-raiding could not be carried out by one person – but
not
the co-defendants, was implicated in incidents which had been originally scheduled against the accused but had now been dropped from the Crown’s amended schedule. In other words, ram-raids were not so unusual that any evidence linking Mintern to one such raid would necessarily link him to other raids too. The co-defendants were in a position to place any and all raids still blamed on them at the door of Stevens and his gang. In the meantime the Crown accepted, by the amendment of their schedule, that Mintern had nothing to do with the raids now omitted from the amended schedule. As for the judge’s ruling against an amended indictment, it seems to us that his predominant concern was of any unfairness to Stevens, who was otherwise entitled to an acquittal on these counts. In any event, the judge had to decide in the balance of his discretion whether in the absence of an amendment to charge Stevens with two new counts of conspiracy it would be right to discharge the jury in respect of the existing counts against the other three defendants, once the prosecution schedule had itself been amended. We do not think that he can be shown to have erred in the exercise of that discretion.
46.
Finally, we have in mind the judge’s clear and helpful comments and directions to the jury both at the time of explaining what he had done in directing acquittals on counts 3 and 4 in favour of Stevens and in his later summing-up. At the end of the day, the case made against Mintern and his two remaining co-defendants was a limited and restricted one in circumstances where the Crown had to accept that other ram-raids were being carried out pursuant to other conspiracies not involving them: and the jury were so directed.
47.
As for count 5, whatever ramifications it had for the other counts, the evidence against Mintern there was extremely strong and seems to us to be wholly unconnected with the arguments raised on the other counts.
48.
We therefore found that Mintern’s second ground failed as well.
The third ground: Hinckley’s acquittal on count 4
49.
We think that there is no substance in this ground. In effect, Mr Hadrill’s submission is that the evidence against Hinckley and Mintern on count 4 was essentially the same, so that if a submission of no case to answer was accepted on Hinckley’s behalf, it should have borne fruit for Mintern as well. We do not agree. The judge was entitled to think that the evidence against Mintern went beyond that against Hinckley; and in any event, if Hinckley was lucky in having the Crown not oppose the submission in her case, that says nothing for the situation where Mintern is concerned. A submission was only made in Mintern’s case when Hinckley’s was accepted. That is consistent with our way of looking at the matter. In our judgment there was ample evidence in Mintern’s case to justify the judge’s decision to refuse to direct his acquittal on count 4 at half time.
Conclusion
50.
It follows that we reject all three grounds for the reasons given above. In the circumstances Mintern’s appeal was dismissed. | {"ConvCourtName":["Crown Court at Winchester"],"ConvictPleaDate":["2002-06-19"],"ConvictOffence":["Conspiracy to commit burglary","Conspiracy to commit arson","Attempting to damage property being reckless as to whether life would be endangered"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Winchester"],"Sentence":["6 years imprisonment (conspiracy to commit burglary)","4 years imprisonment consecutive (conspiracy to commit arson)","4 years imprisonment concurrent (attempting to damage property)","Total: 10 years imprisonment"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individual person"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","DNA match (cigarette butt)","Footprint evidence","Surveillance evidence","Forensic evidence (fibres, glass)"],"DefEvidTypeTrial":["Submission of no case to answer"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[10],"AppealAgainst":["Conviction"],"AppealGround":["Counts were duplicitous (duplicity)","Unfairness in not discharging jury after acquittal of co-defendant","No case to answer on count 4 (parity with co-defendant)"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Indictment not duplicitous in law","No unfairness or prejudice to appellant","Sufficient evidence against appellant on count 4","Judge's directions to jury were clear and fair"]} |
Neutral Citation Number:
[2013] EWCA Crim 2636
No. 2012/01094/C3 & 2012/01054/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 12 December 2013
B e f o r e:
LORD JUSTICE LAWS
MRS JUSTICE THIRLWALL DBE
and
THE RECORDER OF MAIDSTONE
(
His Honour Judge Carey
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - - - -
R E G I N A
- v -
PHILIP HAMMOND
ANDREW RYBAK
- - - - - - - - - - - - - - - - - -
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 F R Holland QC
appeared on behalf of the Applicant Hammond
Miss R Brander
appeared on behalf of the Appellant Rybak
Mr M Chawla QC
appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - -
J U D G M E N T
Thursday 12 December 2013
LORD JUSTICE LAWS:
1. On 25 January 2012 after a 64 day trial at the Southwark Crown Court before Her Honour Judge Taylor and a jury the appellant Rybak was convicted on five counts of conspiracy to corrupt. The applicant Hammond was convicted on four counts (counts 1 and 3-5). On 31 January 2012 Rybak was sentenced to five years' imprisonment and Hammond to three years' imprisonment. Both were disqualified from being a company director for ten years.
2. There were four co-accused. One, Marchment, has not been apprehended. It appears he is in the Philippines with which the United Kingdom has no extradition treaty. Saunders was convicted on counts 1-3 and 5 and was sentenced to three and a half years' imprisonment. Smith was convicted on count 5 and received a suspended sentence. The jury were unable to reach a verdict in respect of Storey. After the Crown indicated that they would not seek a retrial, he was acquitted on the judge's direction.
3. Rybak appeals against his conviction on one ground (ground 3) by leave of the single judge. He seeks to renew ground 2 after refusal by the single judge. He does not seek to renew the remaining ground 1. Hammond renews his application for leave to appeal against conviction after refusal by the single judge. He also seeks to advance a fresh ground (Rybak's ground 3 on which leave has been granted).
4. The Crown case was that the defendants, including Marchment, were involved in corrupt contracts in the context of five projects in the international oil and gas engineering industry. In each project one or more of the defendants was employed by the procurement company acting on behalf of the company which was commissioning the project. For count 1 the defendant so employed was Saunders. For counts 2 and 3 it was Saunders and Marchment. For count 4 it was Marchment. For count 5 it was the appellant Rybak and Saunders. The insiders within the procurement companies then passed on confidential to others: counts 1, 3 and 4 to the two appellants (as we may call them); count 2 to Rybak; count 5 to Smith and, allegedly, Storey. The recipients of the confidential information then passed it on to one or more of the companies bidding for the contract. In return they sought payment of a so-called commission (generally between three and six per cent of the value of the contract). Sometimes this was paid, sometimes not. In many cases the appellants used false names in the course of this process.
5. The defence case, in general terms, was that there was no corruption. Whatever money made its way back to the insiders in the procurement companies was in repayment of previous loans. Rybak did not give evidence. Hammond did.
6. Just before the close of the Crown case (day 25 of the trial) it was indicated in open court that Rybak wished to dispense with the services of his leading and junior counsel, and from day 26 he represented himself. This circumstance has figured large in the argument before us.
7. We turn first to the sole ground on which the single judge gave leave to appeal (Rybak's ground 3). The allegation is that the proceedings were a nullity for want of compliance with section 2(3) of the Prevention of Corruption Act 1906. Section 2 of the 1906 statute so far as relevant provides:
"(1) A prosecution for an offence under this Act shall not be instituted without the consent, in England of the Attorney-General ....
....
(3) Every information for any offence under this Act shall be upon oath.
...."
8. The appellants were not charged with a substantive offence under the 1906 Act. As we have indicated, they were charged with conspiracy to commit such an offence, contrary to section 1(1) of the Criminal Law Act 1977. The Attorney-General's consent was given to the case being brought, but the submission is that the requirement of an oath in section 2(3) must apply to such a charge, just as it would to a substantive charge under the 1906 Act. The argument has been re-cast somewhat in her skeleton argument by Miss Brander for Rybak, perfected on 6 December 2013. The essential steps, which have been elaborated in the course of her clear and helpful oral submissions this morning, are as follows:
(1) The requirement for the Attorney's consent imposed by section 2(1) of the 1906 Act applies also to a charge of conspiracy to commit an offence under the Act: see
R v Attorney-General, ex parte Rockall
[2000] 1 WLR 882
, 884, and in particular section 4(3) of the Criminal Law Act 1977, upon which Miss Brander placed emphasis this morning.
Section 4(3) provides:
"Any prohibition by or under any enactment on the institution of proceedings for any offence which is not a summary offence otherwise than by, or on behalf or with the consent of, the Director of Public Prosecutions or any other person shall apply also in relation to proceedings under section 1 above for conspiracy to commit that offence."
So it is submitted that the requirement of an oath under section 2(3) must likewise apply to a conspiracy charge. The premise of the argument is that section 2(3) constitutes or includes a prohibition within the meaning of section 4(3) of the statute of 1977.
(2) Miss Brander refers to
R v Nusrat Ghafar
[2009] EWCA Crim 2270
. There it was held that a conviction for a substantive offence contrary to section 1 of the 1906 Act was a nullity for failure to comply with the oath requirement of section 2(3). In fact, the case was listed for an appeal against sentence, but the Crown announced that section 2(3) had not been complied with and invited this court to quash the conviction.
Mr Holland QC, who appears on behalf of Hammond, indicated that the matter did not arise entirely ex improviso; the Crown may have had some time to think about it. That may be so.
(3) Given steps (1) and (2), it is submitted that a want of compliance with section 2(3) will vitiate a conspiracy conviction.
(4) Miss Brander draws attention in her written argument to the procedural history of offences under the 1906 Act. She has referred this morning also to The Royal Commission on Criminal Procedure of 1981. Offences contrary to section 1 were misdemeanours, so that there was no power of summary arrest, and all prosecutions had to be started by way of information. That was the position in 1906. The distinction between "felonies" and "misdemeanours" was abolished by section 1 of the Criminal Law Act 1967, but proceedings for 1906 Act offences still had to be started by information because the power of arrest without warrant applied only in relation to offences carrying a penalty of five or more years' imprisonment. 1906 Act offences carried a maximum of two years' imprisonment. That was so until the maximum was increased to seven years' imprisonment by section 7 of the Criminal Justice Act 1988. There are other changes also that were effected by the Police and Criminal Evidence Act 1984.
9. Miss Brander's overall submission in relation to this history is that these modernisations cannot have been intended to remove what she submits is the safeguard imposed and guaranteed by section 2(3) of the 1906 Act.
10. With respect to her submissions, which have exhibited a conspicuous ability, we do not accept these arguments for the following reasons:
(1) There is, in our judgment, an important contrast between section 2(1) and (3) of the 1906 Act. Section 2(1) refers to a prosecution for an offence under the Act. Section 2(3) refers only to a case where an information is laid, not necessarily to every prosecution, whether or not in 1906 every case under the Act must have been commenced by information - and we well understand why Miss Brander says that is so. That is not now the case, and was not the case when the appellants were prosecuted. Had Parliament intended that the provision of section 2(3) should follow the modernisations of criminal procedure which succeeded 1906 and had the effect that only some cases under that Act might be started by information, why then Parliament could well have so enacted. But it did not. It seems to us that the conclusion is that the scope or reach of section 2(3) extends only to cases where a prosecution was started by an information properly so-called. In this case the appellants had been arrested under the powers of the Police and Criminal Evidence Act. It was not a case where any information was involved. This aspect was absent from
Nusrat Ghafar
.
(2) It seems to us, with respect to Miss Brander, that the requirement of an oath in section 2(3) does not constitute a prohibition within section 4(3) of the Criminal Law Act 1977. That is so, first and foremost, as a matter of language. Had Parliament intended that the section 4(3) provision should apply to a case in which the procedural requirement was not a prohibition but rather the need for an oath, as in section 2(3), again that could have been so provided.
(3) We note the reference in the 1981 Royal Commission on Criminal Procedure (the Philips Commission) at paragraph 182:
"Where proceedings follow an arrest without warrant and the accused is charged by the police there is, as a matter of law, an 'information' which has been 'laid'. This, however, is a legal fiction."
Miss Brander deployed the terms of The Royal Commission in order to show that in substance and reality the laying of an information was generally a necessary step in the institution of criminal proceedings. But that is so, as this passage demonstrates, only to the extent that in some, indeed many, cases the information has to be regarded (as is there stated) as a legal fiction. For present purposes the point is that section 2(3) must surely refer, and refer only, to a case where there is, in fact not fiction, an information. We see no warrant for supposing that the section 2(3) requirement should be read as applying in any case where an information as such was not laid.
In all these circumstances it is unnecessary to go into the question whether section 123 of the Magistrates' Courts Act 1980 bites upon the case. Out of deference to Miss Brander's argument - she rightly drew this provision to our attention - we will set out its brief terms:
"(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint."
There must be strong arguments to the effect that a failure to fulfil section 2(3) of the 1906 Act would be a defect in substance to which section 123 would apply. The matter may not be entirely beyond doubt, not least given the authority cited by Miss Brander:
New Southgate Metals Ltd v London Borough of Islington
[1996] Crim LR 334.
11. For all these reasons, in our judgment, section 2(3) of the 1906 Act has no application to this case.
12. Before leaving the point, we should note that Mr Holland QC has submitted that Hammond should have had leave on the section 2(3) point (at any rate once Rybak was granted leave) so that Hammond would have been supported by public funds and his counsel could properly and in good time consider this issue relating to section 2(3). Mr Holland submits that Article 6 of the European Convention on Human Rights so requires.
13. However, in our judgment there is nothing whatever that could sensibly be added to Miss Brander's skilled and comprehensive submissions. Had Mr Holland this morning sought an adjournment to consider the point further for himself, there would, with respect to him, have been no basis for it. There is nothing in this complaint. There was plainly no violation of the Convention.
14. We turn to Rybak's ground 2 on which the single judge refused leave. It is said that the trial judge failed adequately to ensure that Rybak was not unduly prejudiced by his lack of representation from day 26 of the trial onwards. It is said that the judge in particular failed to explain three matters to the jury at the first opportunity after Rybak began to represent himself. They were: (1) that self-representation was a course properly open to any defendant; (2) that the jury should bear in mind the difficulty of properly presenting a defence; and (3) that the relevant background to the appellant's decision to represent himself should have been explained. It is this last point upon which the argument has focused this morning.
15. As we have indicated, the jury were told just before the end of the Crown case on day 25 that Rybak wished to dispense with the services of his leading and junior counsel. The case was adjourned overnight for him to consider his position. The following day there was an extended discussion between Rybak and the judge about the difficulties of self-representation as to which the judge provided Rybak with her written note (see transcript day 26 page 10, line 3). He was given time specifically to consider whether he wished to represent himself or, in the event, retain his legal team, and also whether he would choose to give evidence. We have read the whole transcript for day 26 (page 9, line 15 to page 32, line 23) in which, at length, Rybak affirmed his decision to dispense with counsel. The judge concluded (page 32, lines 20-23) that he should not have the adjournment that would be necessary for the appointment of new counsel.
16. The judge's refusal of his application for fresh counsel was the subject of Rybak's first ground of appeal, which has not been renewed following refusal by the single judge. However, the discussion with the judge remains relevant to ground 2 because, in our judgment, it exemplifies the care taken by the trial judge to see that Rybak was fairly treated in the event that he would be representing himself. So, indeed, do the exchanges the day before. This following passage from day 26 (page 11, line 18) illustrates the point. The judge said:
"I explained to you yesterday the effects and consequences of not giving evidence and I am going to make clear that that will be your only opportunity to give evidence, that is to say, to set out your version of events or give any explanation of those events or any documents. You will not be able to change your mind and give evidence after other defendants.
Further, a closing speech when you have not given evidence is not a chance to explain or give evidence about what others have said or adopt what they have said or to give explanations about the documents in evidence in the trial. You will be limited to arguments and comment, which is not the same as evidence, on the evidence which has been given in the course of the trial. That requires skill, and the serious risk you run is that, if you do not have these skills, you may do your case harm.
You will be provided, if you choose to do that, with the daily transcripts of evidence to assist you and any further documents which are provided in the remainder of the trial and in due course, once the evidence is completed, I will give further consideration to any guidance or assistance you may need as to your closing speech.
Now, I have said that because it expands a little on what I said yesterday. I am going to give you a copy of that now so that you have it in writing and you can consider it. I am going to ask you if you need time to consider your decision, bearing in mind what has just taken place, and whether or not you want to say anything about that and the timing of any provision of this additional information.
MR RYBAK: There are a few things I would like to say. First of all is that my reliance on my speech, just to clarify again, is not to provide any fresh evidence at all, merely to comment on the evidence which has been introduced into the court including such evidence as I elicit during cross-examination, and to invite the jury to infer or to conclude at their option what may in fact be an interpretation of that evidence.
I don't intend to say, 'This is what happened', or, 'I believe that means this'. I am going to invite the jury to conclude and make their own conclusions from the evidence which I shall elicit. The only difference is that it would mean that my cross-examination will - no intention of making any allegations. It will just be a question of eliciting perhaps more detail in order to have the full picture that I need to be able to put to the jury, if you follow -
JUDGE TAYLOR: You are entitled to ask questions if you represent yourself -
MR RYBAK: Yes.
JUDGE TAYLOR: - of the other defendants in a proper manner."
That passage exemplifies not only the care taken by the judge to be helpful to Rybak, but also the intellectual capacity to pick up and absorb the points that was demonstrated by Rybak. So does his careful consideration of whether he should give evidence, for which he was given time (see day 26, page 43, line 12), and also his applications for disclosure (see page 43, line 24 and following). All of this took place in the absence of the jury.
17. At length the jury returned to court. The judge addressed them about the fact that Rybak now proposed to represent himself. This passage is important for Miss Brander's principal argument addressed to us this morning (day 26, page 65, line 22):
"JUDGE TAYLOR: Members of the jury, just to let you know what the situation is, the defendant Mr Rybak himself has decided to dispense with the services of his counsel. He was given time to consider and I have refused his application to have alternative counsel and, therefore, from now on he is going to represent himself.
It has been explained to him that he will be subject to the same rules of evidence and procedure as counsel would have been had they continued to represent him and which apply to all the other defendants and the prosecution in this case.
It has also been explained to him that my role in this case is to ensure that the trial is fair, and that there may be some occasions when he needs some guidance so that he complies with those rules, so as to ensure a fair trial not only for himself but also the other defendants and the prosecution.
He has been provided with all the materials counsel have had on his behalf and will continue to be provided with them throughout the trial.
We are going to adjourn now until tomorrow morning to allow him best to consider how to present his case."
18. As is apparent, that passage includes no explanation of why Rybak had dispensed with his counsel. This is the focus of Miss Brander's complaint this morning.
19. Mr Holland, acting for Hammond, had raised a concern (see day 26, page 52, line 20 to page 52, line 10) to the effect that the jury might assume that Rybak was guilty but unwilling to plead guilty unless something was said about the reason for his counsel's absence; and Hammond was, of course, closely associated with Rybak. This suggestion is echoed in the submissions supporting this ground of appeal in which Mr Holland has vigorously joined.
20. We consider, however, that this concern is in the end misplaced. First, it was not clear whether Rybak would give evidence or what precise course his case would take. That raises some uncertainty as to the wisdom of including explanations of the kind suggested in what was to be said to the jury on day 26. Mr Rybak, for all anyone knew, might wish to give his own account to the jury of his dispensing with counsel.
21. Secondly, and we think more important, an explanation by the judge as to counsel's sudden absence would, as it seems to us, inevitably have invited the jury to speculate as to why counsel were dismissed. Mr Holland has submitted that in the circumstances of this case no harm might be done. But this seems to us to be a case where a decision to give some such explanation would in the circumstances float at least as many dangers as saying nothing at all.
22. Further, it is to be noted that in the summing-up the judge said this (day 50, page 37, lines 17-25):
".... you are aware at the close of the prosecution case that Mr Rybak decided to dispense with his counsel. He is entitled to do that and you should not speculate as to the reasons and it is not something which you should hold against him. He was refused alternative representation and as a result has been representing himself. You should treat his case in the same fair way as if he had been represented and in the same way as the other defendants."
Of course, something like that might have been said by the judge at an earlier stage. Certainly it was entirely appropriate that it should be said in the summing-up, by which time manifestly the evidence was complete, as were counsel's speeches.
23. It is, it seems to us, quite clear from the learning on this subject (see
R v De Oliveira
[1997] Crim LR 600) that the directions to be given to the jury where a defendant chooses to be, or becomes, unrepresented are very much to be tailored to the particular case. No doubt there were different ways of dealing with the matter. The course taken by the judge cannot, in our judgment, be said to undermine the safety of Rybak's conviction. Although the judge did not spell out in terms the difficulties faced by a defendant acting in person, it is entirely plain that she was at pains to ensure that he was not prejudiced. She invited him to provide her with relevant documents in advance of his cross-examining a co-defendant so that she might warn him of any issues of admissibility. The jury were told that there would be occasions when he would need guidance to comply with proper procedures. They and the judge were, we emphasise, dealing with an intelligent and resourceful defendant. Thus we do not accept (see paragraph 55 of Miss Brander's skeleton argument) that Rybak was put to any prejudicial difficulty in relation to the admissibility of documents which he wished to put to the co-defendant Saunders. Their admissibility was discussed in the absence of the jury. Rybak was given careful and detailed advice - in the absence of the jury. Mr Holland (acting for Hammond) plainly participated in these discussions, with no prejudice that we can see to either Rybak or to Hammond.
24. Rybak was courteously assisted about other matters. The judge invited him to let her have a copy of his draft closing speech. He declined. He was given a non-sitting day to finalise it. The judge hoped to minimise any necessary interruptions. In the event, he spoke for six hours. The judge had to interrupt on many occasions to remind him not to give evidence. He had been very carefully warned about that. The judge acted entirely properly.
25. Finally, in relation to the closing speech the judge was, it seems to us, quite entitled to indicate, as she did (on the second day of his speech) that he should draw it to a close by lunchtime that day. No doubt Rybak was under some strain in this long and complex trial. But he was carefully and courteously assisted by the judge in acting as a defendant in person, and that was, of course, wholly his own choice.
26. On the specific point that it would have been better to give an explanation to the jury as to why Rybak's counsel's services had been dispensed with, we cannot conclude that the judge's decision not to go down that route in the least impedes the safety of Rybak's conviction.
27. We turn to Hammond's application. So far as he seeks to rely on Rybak's ground relating to the 1906 Act, we have already dismissed that.
28. Hammond's first ground of appeal is to the effect that the judge failed to order disclosure in relation to the alleged corporate bad character of the procurement companies.
29. The third ground of appeal is a complaint that the judge misdirected the jury in relation to the "Ecodyne admission".
30. It is unnecessary for us to go into these two grounds because Mr Holland has, fairly and frankly, told us in terms that they do not stand on their own. They are consequences of the circumstances that arose by reason of the fact that Rybak represented himself.
31. What remains live is Hammond's second ground of appeal in which it is said that his trial was unfair because his defence was undermined or prejudiced by the conduct of Rybak's case when the latter acted in person.
32. Hammond's case was that he was an outsider to the industry and had learnt all about it from Rybak. A number of complaints are made on his behalf. At one stage the judge held an ex parte hearing with only Rybak and his then counsel present. The fact that Rybak was not allowed fresh counsel is relied on (at any rate in writing) by Mr Holland, as is the fact that the jury were not given an explanation of why Rybak had dismissed his counsel. We have already said that Mr Holland participated in this part of the submissions advanced by Miss Brander and indeed, as in her case, it was the focus of his argument this morning. Particular attention is drawn to the fact that, during the prosecution case, Rybak's counsel had conceded confidentiality and did not explore industry practice. As Mr Holland put it this morning, there was at any rate a difference of view between Rybak and his leading counsel as to how the case was to be put. Mr Holland supports Miss Brander's submission that an explanation should have been given to the jury as to why counsel's services had been dispensed with. We have already indicated that we regard such a course as tantamount to an invitation to the jury to speculate. The eventuality of a hearing in chambers, without Mr Holland being present, or the scope of legal professional privilege, upon both of which Mr Holland has briefly addressed us this morning, do not in either case diminish that conclusion. It is clear to us - and indeed Mr Holland accepts - that he was able to cross-examine the prosecution witnesses as he chose. It does not seem to us that the fact that Hammond's case was that he was a newcomer or an outsider and had learnt what he knew from Rybak is any inhibition upon the cross-examination of prosecution witnesses as to whether or not, in truth, the information being passed was confidential.
33. As we have said, the judge acted perfectly properly throughout in dealing with Rybak as a defendant in person. Moreover, it is important from Hammond's point of view to bear in mind that Rybak was only ever permitted to act in accordance with the rules of evidence. Hammond, for his own part, was able to give evidence that he was an industry outsider and relied on Rybak.
34. The reality here is that Hammond was in the same position as any co-defendant in a multi-handed conspiracy trial. No doubt there were difficulties; there very frequently are. It is perhaps to be noted that Mr Holland, entirely properly, sought to undermine Rybak in his final speech. In addition, as we have already indicated, it was open to him to cross-examine the Crown witnesses as he thought fit.
35. We do not for a moment suggest that the task of counsel acting for Hammond was in any sense an easy one. Where, however, we are clear is in our conclusion that the passage of events relating to Rybak and his decision to represent himself from day 26 does not in the least degree undermine the safety of Hammond's conviction.
36. Accordingly, Hammond's applications are refused, and Rybak's appeal is dismissed.
MR HOLLAND:
My Lord, may I rise on a slightly self-interest basis to ask whether my Lords would grant a representation order for today on the technical grounds?
(
The court conferred
)
LORD JUSTICE LAWS:
As a tribute to your charm and to nothing else, Mr Holland, we will accede to that application.
MR HOLLAND:
Thank you very much, my Lord. | {"ConvCourtName":["Southwark Crown Court"],"ConvictPleaDate":["2012-01-25"],"ConvictOffence":["Conspiracy to corrupt"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Southwark Crown Court"],"Sentence":["Rybak: 5 years' imprisonment and 10 years' disqualification from being a company director","Hammond: 3 years' imprisonment and 10 years' disqualification from being a company director"],"SentServe":[],"WhatAncillary":["Disqualification from being a company director for 10 years"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[4],"AppealAgainst":["Conviction"],"AppealGround":["(Rybak) Proceedings were a nullity for want of compliance with section 2(3) of the Prevention of Corruption Act 1906","(Rybak) Trial judge failed to ensure Rybak was not unduly prejudiced by lack of representation from day 26 onwards","(Hammond) Judge failed to order disclosure in relation to alleged corporate bad character of procurement companies","(Hammond) Judge misdirected jury in relation to the 'Ecodyne admission'","(Hammond) Trial was unfair because defence was undermined or prejudiced by conduct of Rybak's case when acting in person"],"SentGuideWhich":["section 2(3) of the Prevention of Corruption Act 1906","section 1(1) of the Criminal Law Act 1977","section 4(3) of the Criminal Law Act 1977"],"AppealOutcome":["Dismissed","Applications refused"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["section 2(3) of the 1906 Act has no application to this case","Trial judge took care to ensure fairness to Rybak as a litigant in person","No prejudice to Hammond or Rybak from the way the trial was conducted","No basis for complaint regarding lack of explanation to jury about Rybak's self-representation","Judge acted properly throughout in dealing with Rybak as a defendant in person"]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2021] EWCA Crim 523
CASE NO 202002922/A4
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 24 March 2021
LORD JUSTICE DINGEMANS
MR JUSTICE SPENCER
HIS HONOUR JUDGE PATRICK FIELD QC
(Sitting as a Judge of the CACD)
REGINA
V
MARK ANTHONY ZOTH
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
1.
MR JUSTICE SPENCER: This is a renewed application for leave to appeal against sentence, following refusal by the single judge.
2.
On 23 October 2020 in the Crown Court at Preston, the appellant (now aged 33) was sentenced by His Honour Judge Knowles QC to a total of 28 months' imprisonment made up as follows. For an offence of having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988, the sentence was 16 months' imprisonment. There had been a late plea of guilty to that offence. For an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, there was a sentence of 9 months' imprisonment consecutive. For a racially aggravated offence of causing harassment, alarm or distress, contrary to sections 28 and 31 of the Crime and Disorder Act 1988 the sentence was 3 months' imprisonment, again consecutive. These latter two offences had been committed while on bail for the first offence. The applicant had been committed for sentence to the Crown Court in respect of those two offences having entered a guilty plea in the Magistrates' Court for which he received full credit.
3.
The first offence in time was committed on 18 January 2019. The appellant ordered a taxi to take him from his home in Troy Street, Blackburn, to The Farthings public house. During the journey the applicant told the taxi-driver that he had had an argument with someone at the public house and was going back there to stab that person. The applicant was sitting in the front passenger seat. The taxi-driver could see that the applicant was hiding something down his left side. The applicant then produced a knife and showed it to the taxi-driver. It was a large kitchen knife with a blade about 8 inches long. The taxi-driver tried to dissuade the applicant from using it. He pleaded with him not to do so. At the end of the journey the applicant paid the fare, got out of the taxi and walked towards the public house. The taxi-driver was so concerned that he telephoned the police to report what had happened.
4.
Police officers attended the applicant's home address where they found the applicant and the knife. In interview he denied that he had produced the knife in the car. He was bailed. He appeared at the Magistrates' Court on 31 October 2019 and was sent for trial to the Crown Court. At a hearing in the Crown Court on 5 December he pleaded not guilty. The case was adjourned for trial and he was granted unconditional bail.
5.
The remaining two offences were committed whilst on bail, just over two weeks later on 23 December 2019. The applicant had been at the home of a man called Ward; another man, Michael Seddon, was present. They had all been drinking together throughout the day. At one stage the applicant and Seddon argued over some missing alcohol. The police were called and the applicant was required to leave. Later the applicant returned to the address and became verbally abusive towards Ward. Seddon intervened and got the applicant in a headlock. The applicant twisted himself out of the headlock. He bit Seddon on the left cheek and punched him to the head five or six times. Police officers attended again and arrested the applicant as he was leaving the address. As he was being taken to the police van, and for a second time in the custody suite, the applicant racially abused PC Ahmed calling him a "nigger" and "a fucking Paki". In interview the applicant admitted these offences, saying he was drunk at the time.
6.
There was a victim personal statement from the police officer. He had been particularly upset and distressed by the racist abuse.
7.
The applicant had a very bad record for offences of possessing bladed articles and offensive weapons, with three separate convictions in 2008, 2010 and 2018. In 2008 the weapon was a meat cleaver which he was brandishing, making threats to people he had overheard making disparaging comments about him at a party. In 2010 the weapon was a knife. In 2018 he armed himself with a kitchen knife when he found he was being chased after causing criminal damage to a car. The pre-sentence report described these offences as bearing "stark similarities" to the current offence, demonstrating that the applicant would intentionally arm himself with a knife or a weapon as a means of threatening others with whom he felt aggrieved, or as a means of perceived self-defence.
8.
In passing sentence the judge said that on this occasion the applicant had armed himself with a knife and booked a taxi with the express purpose of going, in drink, to stab a man in a public house. That is what he told the taxi-driver he intended to do, showing him the knife. Under the relevant Sentencing Council Guideline there was higher culpability because it was a bladed article and category 2 harm. The starting point under the guideline was 6 months and the range up to 12 months' custody, but the judge concluded that the following aggravating features took the offence to the very top of the range and beyond: first and foremost the applicant's previous convictions, particularly for carrying weapons; committing the offence in drink; deliberately arming himself for the purpose of going to the public house and showing the knife to the taxi-driver and not being put off by his pleading to desist. The judge said there would be reduced credit of somewhere between one-tenth and one-fifth. The sentence was 16 months, suggesting that the starting point was in the range of 18 to 20 months after trial. That was by no means excessive in the circumstances.
9.
The judge described the biting as a particularly unpleasant form of the offence of assault and the applicant was fortunate that the injury was not much more serious. We have seen ourselves a photograph of the prominent bite wound to the victim's cheek. The offence was aggravated by drink and very seriously aggravated by the fact that it was committed whilst on bail. As a category 2 offence the starting point under the relevant guideline was 26 weeks and the range up to 51 weeks' custody. A sentence above the range would have been justified. The judge allowed credit of one-third; the sentence was 9 months.
10.
For the racially aggravated abuse of a police officer doing his duty the sentence was 3 months' imprisonment, again with credit of one-third for the early guilty plea.
11.
The judge expressly took into account current prison conditions. He also had regard to the letter the applicant had written expressing his intention to change his ways. The judge took into account the delay. He said in terms that he had regard to totality but each sentence had to be consecutive, making a total of 28 months.
12.
The grounds of appeal, settled by counsel who represented the applicant below, focus principally on the sentence for the knife offence in the taxi. It is submitted that the judge was wrong to go above the range of 12 months for category 2. The grounds of appeal did not challenge the sentence for assault occasioning actual bodily harm, nor, as we read it, the racially aggravated disorderly behaviour. It is conceded that consecutive sentences were appropriate but it is said that the totality of the sentence was manifestly excessive.
13.
The applicant, in correspondence with the Registrar on renewal of this application, still insists that he had made no mention to the taxi-driver of his intended use of the knife: he had not threatened to use the knife on anyone; he had simply explained to the taxi-driver
that he had fallen out with someone at the pub. We observe that if this were true, there would have been no need for the taxi-driver to take the very responsible step of calling the police.
14.
In refusing leave the single judge said this:
"You were sentenced to 16 months on a late guilty plea for possession of a knife. You had it with you in a taxi when you were in drink. You produced it to the taxi driver and announced to him that you planned to use it on someone in a pub with whom you had fallen out. The threat was credible to the extent that he reported you to the police for making it. You have many previous convictions which reveal in you a propensity to resort to threats and violence and carry offensive weapons when it suits your purpose to do so. The judge was not only right to categorise your crime as falling within category 2A of the relevant guideline but also to find that the circumstances of this case and your terrible history meant that he should sentence outside of the normal range for offences of that category. He explained why he was doing so. The sentences for the offences of assault and racially aggravated harassment are unexceptional. They were committed on bail and against the criminal background to which I have already referred. The total term cannot be said to be manifestly excessive."
15.
We entirely agree with that analysis. The total sentence of 28 months' imprisonment was just and proportionate. There is no arguable merit in this appeal and the renewed application is 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 Preston"],"ConvictPleaDate":["2020-10-23"],"ConvictOffence":["Having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988","Assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861","Racially aggravated offence of causing harassment, alarm or distress contrary to sections 28 and 31 of the Crime and Disorder Act 1988"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["late plea of guilty (knife offence)","guilty plea in Magistrates' Court (other two offences)"],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Preston"],"Sentence":["16 months' imprisonment (knife offence)","9 months' imprisonment consecutive (assault occasioning actual bodily harm)","3 months' imprisonment consecutive (racially aggravated harassment)"],"SentServe":["Consecutive"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[32],"OffJobOffence":[],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":["Yes-drinking"],"OffVicRelation":["Acquaintance","Stranger"],"VictimType":["Individual person","Individual person"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":["Yes-drinking"],"ProsEvidTypeTrial":["Victim testimony","Police evidence","Victim personal statement"],"DefEvidTypeTrial":["Offender denies offence (knife)","Admission in interview (other offences)"],"PreSentReport":[],"AggFactSent":["Previous convictions for similar offences","Offence committed while on bail","Offence committed in drink","Deliberately arming himself","Showing knife to taxi-driver","Biting as particularly unpleasant form of assault"],"MitFactSent":["Letter expressing intention to change","Judge took into account delay","Judge took into account current prison conditions"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Judge was wrong to go above the range for category 2 (knife offence)","Totality of sentence was manifestly excessive"],"SentGuideWhich":["Sentencing Council Guideline (bladed article)"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge was right to categorise crime as falling within category 2A of the relevant guideline","Circumstances and history justified sentence outside normal range","Sentences for other offences unexceptional","Total term not manifestly excessive"]} |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202301053/A3
Neutral Citation Number:
[2024] EWCA Crim 473
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 24 April 2024
Before:
LORD JUSTICE MALES
MR JUSTICE HILLIARD
RECORDER OF NORTHAMPTON
(HIS HONOUR JUDGE MAYO)
(Sitting as a Judge of the CACD)
REX
V
MICHAEL JAMES PATRICK DERRANE
__________
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 C KNOX
appeared on behalf of the Applicant.
MR S GRATTAGE
appeared on behalf of the Crown.
_________
J U D G M E N T
1.
MR JUSTICE HILLIARD: On 22 May 2020, in the Crown Court at Leeds, the applicant pleaded guilty to counts 1, 3, 4 and 5 on indictment T20207246. On 13 April 2021, he pleaded guilty to counts 1, 4 and 6 on indictment T20207416. On 10 June 2021, he changed his plea to guilty on count 3 on indictment T20207416 and on 1 March 2023, at the age of 50, he was sentenced as follows. Indictment T20207416, count 1, conspiracy to transfer prohibited weapons, 9 years and 7 months’ imprisonment; count 3, conspiracy to supply heroin, 9 years and 7 months’ imprisonment to run consecutively. Count 4, conspiracy to supply cocaine, 9 years and 7 months’ imprisonment to run concurrently. Count 6, conspiracy to supply cannabis, 3 years and 6 months’ imprisonment to run concurrently; and on indictment T20207246, count 1, possessing a prohibited weapon, 5 years and 3 months’ imprisonment; count 3, possessing ammunition without a certificate, 2 years and 3 months’ imprisonment; count 4, possessing skunk cannabis with intent to supply, 2 years and 6 months’ imprisonment; count 5, possessing ammunition without a certificate, 2 years and 3 months’ imprisonment. All the sentences on that indictment were ordered to run concurrently and thus the total sentence was one of 19 years and 2 months’ imprisonment.
2.
He now applies for leave to appeal against sentence and for a representation order after refusal by the single judge. The offences came to light as a result of the interception of material using the EncroChat encrypted messaging service. Conversations between the applicant, the co-accused, Alsi Vata, and others were captured between 10 October 2019 and 13 May 2020. As regards indictment T20207246, on 22 April 2020, at about 10.00 am, the applicant was driving a Volkswagen Caddy van which was being followed by surveillance officers. He drove from Wakefield to Manchester and back, arriving just before 3.25 pm. He met two other men, Mr Orimas and Mr Rokinas. They indicated to the applicant to drive his vehicle into a quiet side road. Mr Orimas entered the passenger door of the van. Mr Rokinas was observed to put a cardboard box into the back of the van. Armed police intervened and all three men were arrested.
3.
Police officers searched the van. In a compartment above the driver’s seat, an officer found a bag containing a Grand Power 9 mm pistol and a quantity of bullets. There was also a separate bag containing a quantity of UK banknotes. A cardboard box in the rear of the van was found to contain two bags of herbal cannabis (“skunk”), each weighing 991 grams. The approximate wholesale value of the drugs was £5,000, with a street value of £20,000.
4.
The firearm and ammunition were submitted to a laboratory for analysis. The gun was capable of semi-automatic and fully-automatic fire. The bullets were confirmed to be ammunition. They were suitable for use with the gun. A search was carried out at the applicant’s home address, and a further quantity of bullets was recovered. Cash totalling £2,100 was also found.
5.
The applicant gave a prepared statement when interviewed, saying that the £2,100 was payment to store the ammunition found at his home address and to deliver the weapon in the box, which he now knew to contain cannabis and cash to a third person whom he could not name for fear of retribution.
6.
As regards indictment T20207416, count 1 charged a conspiracy to breach section 5(2A)(b) of the Firearms Act 1968, reflecting an ongoing trade in firearms carried out by the applicant and others. Messages showed the applicant acting as a go-between for those seeking to obtain handguns. He received requests for such weapons from various people, including Vata, identified a source for the weapons (normally a contact in Manchester), brokered the sale and supplied the guns. There were frequent references to delays in obtaining further weapons due to Covid restrictions and indications that the weapons were being imported from Spain. There was evidence that the applicant had previously supplied two handguns to Vata in this way.
7.
On 29 March 2020, there was extensive communication between the applicant and Vata. The applicant said that he had access to one silver and one black gun and had another two put down but was unable to access them due to Coronavirus at that time. Through 29 and 30 March, the messages continued as the applicant confirmed the vehicle he would be driving and the location of the meeting. Vata sent him images of bundles of cash. The applicant said, “Okay, as I am driving 300 miles with two straps and it’s very dangerous to be on roads at moment.”
8.
The exchange took place on 30 March in St Albans. Vata’s Ford Transit van was captured on ANPR cameras making the journey from Central London to St Albans. The applicant sent a photo of his trainers and trousers to Vata to help him identify him on arrival. After the exchange, Vata travelled to Charlton, where he remained for about 2 hours and then sent messages to the applicant seeking a further weapon, having apparently passed the black gun to an associate of his. The applicant responded that the weapon had already been sold and was in Spain. On 16 April, Vata chased the applicant for “sweets” (meaning bullets). The applicant replied that they were still in Spain and he could not get them sent, pointing out, “You’ve got enough to kill someone, only need one”.
9.
In the period from 27 March to 22 April 2020, the applicant supplied at least one further firearm to Vata on 30 March, and was in the course of supplying another, along with ammunition, when he was arrested on 22 April and the weapon seized. That was count 1 on the T20207246 indictment.
10.
On 19 April, a deal for the supply of another firearm to an associate of Vata’s collapsed at the last moment when the customer could not arrange collection. The applicant messaged Vata, “Mate, happens all the time with them. I get two or three sales a week. Lucky if one goes through. Don’t worry, it’s gone. His loss.”
11.
Count 3 related to the applicant’s ongoing involvement in the supply of multi-kilogram batches of heroin. He kept notes on his mobile phone in relation to all of the classes and types of drugs he was supplying and brokering, amounts owed and courier costs, running to many pages and hundreds of thousands of pounds. EncroChat material from his device showed him regularly contacting people, seeking to obtain “bottoms” (slang for heroin) or offering to supply heroin to others. Several actual supplies were arranged and carried out on 7 April 2020. The applicant messaged a user named “Codfudge”, “Keep the money for the bottoms so that leaves £21,500. I pay my mate that, and as soon as get hold Cov I get sorted. Is that okay?”. There were many further discussions relating to money owing in tens or hundreds of thousands of pounds for heroin. Notes found on the applicant’s mobile phone recorded debts for “bottoms” in the tens of thousands of pounds. His trade in heroin had a wide geographical spread. On 10 April, he told a contact that he needed 10 kilograms of heroin to be delivered to Oxford, London and Leicester, and was brokering a deal with Codfudge to a total value of £187,500. There was also evidence of several more supplies to Nottingham.
12.
Count 4 reflected the applicant’s involvement in obtaining and supplying cocaine throughout the period. The chats showed him buying and selling, brokering sales and arranging deliveries of cocaine. On 9 April, the applicant sent a picture of a block of cocaine to nine different contacts on EncroChat and subsequently agreed a sale to one of them. Vata was someone from whom the applicant sought to obtain cocaine and Vata himself was involved in supplying kilogram blocks of the drugs to others. On 12 April, the applicant agreed to obtain cocaine from Vata to be supplied to one of his customers in Nottingham. On 16 April, Vata sent pictures of further blocks to the applicant who said he could not afford them at present because he had taken three similar blocks on credit.
13.
Count 6 related to a conspiracy to supply cannabis. When the applicant was arrested on 22 April, he had just collected 2 kilograms of skunk cannabis for onward supply. The supply of those drugs was organised by Vata, who had previously supplied similar drugs to him. The applicant told Vata that his customers were very pleased with the product they had received previously.
14.
Between 14 and 17 April, the applicant discussed the purchase of 11 kilograms of cannabis with Vata and on 16 April, Vata told him there was 7 kilograms available for collection from “the usual place”. A supply took place on 16 April, when the applicant and Vata met at an address in Dewsbury. Messages from Vata to the applicant said that there would be 11 not 7. The applicant confirmed that he could “place all the weights okay.”
15.
On 21 April 2020, Vata messaged the applicant, “Yes, you’ll be at least 47.3 for dogs and 1K for strap drink” (meaning £47,000 for cannabis and £1,000 being the payment for his moving of the firearm). Later the same day, the applicant complained about delivering items to associates of Vata’s not known to him and highlighted the risk that he was running in doing so whilst on a life licence.
16.
Chat evidence showed that the applicant was actively attempting to obtain high quality cannabis throughout and supplied it on when he did. He also discussed a cannabis farm property that he and his business partner had obtained and was ready to go in Northampton. Vata offered to “take the property off your hands as I was the biggest cropper’s biggest client. So I have people in every city”.
17.
The applicant was 50 years old at the date of sentence. He had a number of previous convictions, including for offences of dishonesty and violence. In 2001, he was sentenced to 4 years’ imprisonment for blackmail. In 2004, he was sentenced to life imprisonment for an offence of wounding with intent. We have been told that the minimum term was 2 years and 2 months’ imprisonment, but that the applicant was not initially released on licence until 2012.
18.
The applicant told the author of a pre-sentence report that he had first been released in 2012 and was subsequently told by the police there was a threat to his life. He was given an Osman warning in 2014. He was recalled to custody when he failed to live in approved premises. He said that after his final release in 2015, he relocated to the Newcastle area to break with previous ties and then led a law-abiding life. His partner had received threats via social media. He was told that if he transported the items in his possession on arrest, then no harm would come to her. Plainly his activities went far beyond simply transporting items on one day. He had been employed as a regional sales manager for a steel fabrications company. The judge had a letter from the applicant which set out the programmes he had engaged with whilst in custody and before being released on life licence and in which he explained that he had only agreed to deliver the items to satisfy those who were threatening his partner. His partner also spoke in a letter to a better side of the applicant and confirmed that she had been threatened in February and March 2020. There were also impressive testimonials from a prison chaplain, and evidence of progress the applicant had made whilst on remand in custody for these offences. We have read all the material, and it is clear that he has sought to make the best of his recent time in custody. That is very much to his credit.
19.
When he passed sentence, the judge said that the applicant’s part in the firearms conspiracy fell into category 1 for harm and category A for culpability, for the purposes of the applicable sentencing guidelines. The judge was entitled to find that this was a large-scale commercial and highly sophisticated enterprise. Guns were coming from abroad and there were obvious connections with other serious criminal activity, namely drugs. Culpability was high. The applicant was properly described as a key facilitator.
20.
Such an offence has a starting point of 20 years’ custody. In addition, he had a leading
role in a category 1 offence, for supplying Class A controlled drugs. A leading role was demonstrated by his organising buying and selling on a commercial scale. Again, a sentence of 20 years or more could be appropriate in respect of both the heroin and the cocaine. The operation was on the most serious and commercial scale, and the quantities involved were significantly higher than the indicative amounts for category 1 harm, namely 5 kilograms.
21.
The judge said that the sentences for the drugs offences and the firearms offences should be consecutive although account had to be taken of totality. He took account of the applicant’s personal mitigation which we have already referred to and of his previous record. The judge said that the applicant had been using the EncroChat phone since at least October 2019. The messages to his partner had not caused him to start offending. We will return to this aspect in due course.
22.
The judge took account of the difficulties in prison arising out of the pandemic and said he would reduce the sentence by 34 months which was the period the applicant had spent in custody whilst on recall under life licence and which would not count towards this sentence. There is no automatic entitlement to this, but the court retains a general discretion so as to achieve a just result - see
R v Kerrigan
[2014] EWCA Crim 2348. He said he would give credit of one-third for the plea of guilty on count 1, even though there had been an abandoned basis of plea. The sentences on counts 3 and 4 would attract credit for plea of 20 to 25 per cent. There is no complaint about the amount of these reductions.
23.
The judge took a starting point of 19 years’ imprisonment on count 1, which he reduced by 2 years on account of personal mitigation. Credit for plea resulted in a term of 12 years and 8 months’ imprisonment. On counts 3 and 4, he took a starting point of 20 years’ imprisonment, which he reduced by 2 years on account of personal mitigation. Credit for plea resulted in a term of 14 years’ imprisonment. Consecutive sentences would result in a term of 26 years and 8 months’ imprisonment. The judge reduced this to 22 years on account of totality and then made a further reduction of 34 months for time spent which would not count. The result was a total sentence of 19 years and 2 months’ imprisonment which the judge then divided between the respective counts.
24.
It is now argued on the applicant’s behalf by Mr Knox that the judge’s figures were too high and did not take sufficient account of totality, pressure that the applicant had been under and of the undoubted efforts he had made whilst in custody. It is said that the judge was in error in saying that the applicant had used an EncroChat phone since October 2019 and that this related to the phone of a co-accused. The applicant’s phone was only reviewed from the end of March 2020. We will proceed on the basis of the information given to us by Mr Knox. Mr Knox has advanced all these submissions to best effect.
25.
We have given them careful consideration. Having done so, we are satisfied that a sentence of 19 years and 2 months’ imprisonment, after credit for plea, was a sentence that the judge was entitled to come to. It took sufficient account of how the applicant said he had become involved but the messages we have recounted do reveal participation that shows enthusiasm rather than reluctance. Why ever he became involved in the first place, the applicant was then an active and eager participant. He was involved with large amounts of heroin and large amounts of cocaine. The sentences for these different drugs and for the cannabis were ordered to run concurrently. The firearms conspiracy was also extremely serious. The applicant had himself observed that only one bullet was needed to kill someone. All the while, the applicant was on licence from a life sentence. The applicant had made specific reference to this in a message and was not deterred by it. The judge made specific allowances for the applicant’s personal mitigation, a reduction of 4 years in all, and for time spent on remand. These were all matters for the judge to assess and balance. In all these circumstances, it is not arguable that the sentence was in anyway wrong in principle or manifestly excessive and this application must be refused.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400
Email: [email protected] | {"ConvCourtName":["Crown Court at Leeds"],"ConvictPleaDate":["2020-05-22","2021-04-13","2021-06-10"],"ConvictOffence":["conspiracy to transfer prohibited weapons","conspiracy to supply heroin","conspiracy to supply cocaine","conspiracy to supply cannabis","possessing a prohibited weapon","possessing ammunition without a certificate","possessing skunk cannabis with intent to supply"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":["at first court appearance","on re-arraignment"],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":["conspiracy to transfer prohibited weapons: 9 years and 7 months’ imprisonment","conspiracy to supply heroin: 9 years and 7 months’ imprisonment (consecutive)","conspiracy to supply cocaine: 9 years and 7 months’ imprisonment (concurrent)","conspiracy to supply cannabis: 3 years and 6 months’ imprisonment (concurrent)","possessing a prohibited weapon: 5 years and 3 months’ imprisonment (concurrent)","possessing ammunition without a certificate: 2 years and 3 months’ imprisonment (concurrent)","possessing skunk cannabis with intent to supply: 2 years and 6 months’ imprisonment (concurrent)","possessing ammunition without a certificate: 2 years and 3 months’ imprisonment (concurrent)","Total: 19 years and 2 months’ imprisonment"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[50],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["EncroChat messages","surveillance","ANPR cameras","mobile phone notes","laboratory analysis of firearm/ammunition"],"DefEvidTypeTrial":["prepared statement by applicant"],"PreSentReport":[],"AggFactSent":["offence committed while on life licence","large-scale commercial and highly sophisticated enterprise","guns imported from abroad","connections with other serious criminal activity (drugs)","leading role in category 1 offence for supplying Class A drugs","quantities significantly higher than indicative amounts for category 1 harm"],"MitFactSent":["personal mitigation (pressure/threats to partner)","efforts made whilst in custody","progress on remand","employment as regional sales manager","impressive testimonials from prison chaplain"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["sentence"],"AppealGround":["sentence too high","insufficient account of totality","insufficient account of pressure applicant was under","insufficient account of efforts made in custody","error regarding EncroChat phone usage period"],"SentGuideWhich":["applicable sentencing guidelines for firearms conspiracy (category 1 harm, category A culpability)","R v Kerrigan [2014] EWCA Crim 2348"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["sentence was one the judge was entitled to come to","sufficient account taken of applicant's circumstances","applicant was an active and eager participant","seriousness of offences justified sentence","allowances made for mitigation and remand time","not arguable that sentence was wrong in principle or manifestly excessive"]} |
Case No:
201101429D4
&
201102705D4
Neutral Citation Number:
[2011] EWCA Crim 2991
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT IPSWICH
HHJ GOODIN
T20067220
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/12/2011
Before :
LORD JUSTICE HOOPER
MR JUSTICE EDWARDS-STUART
and
HIS HONOUR JUDGE METTYEAR
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :
(1)
MICHAEL JAMES
(2)
RAYMOND FRANCIS BLACKBURN
Appellants
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR. S. MINIHAN
appeared for the
1
st
Appellant.
MR. N. WAYNE
and
MR. A. FITCH-HOLLAND
appeared for the
2
nd
Appellant.
MR. A. ABELL
appeared for the
Respondent.
Hearing date: 2
nd
December 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hooper :
1.
The appellants appeal with leave against confiscation orders made by HHJ Goodin at Ipswich Crown Court on 8 December 2010 after a five day hearing. The appeal concerns only the benefit figure. In the case of the appellant James, the benefit figure was £159,521.00. In the case of Blackburn the figure was £135,371.00. Both figures were said to represent the benefit from their criminal conduct. No reliance was placed on the criminal lifestyle provisions.
2.
This is another confiscation case involving tobacco, this time hand rolling tobacco (HRT).
3.
The benefit figure represented in large measure unpaid excise duty on over 1000 kilos of HRT which was found in a factory or in a garage to which it had been sent from the factory for processing
or which had passed through either of the premises”. The unpaid excise duty was £119,748.18 which had increased because of the change in value of money to £127,503. That figure of £127,503 was held by the judge to be part of the benefit figure for both appellants. Given that the appellant had realisable assets it seems likely that, if the order is not quashed, there would be full, or almost full, double recovery
No or no meaningful confiscation orders were made against the convicted co-defendants.
. If that were to happen the state would receive twice the amount of the unpaid duty. In
May
[2008] UKHL 28
;
[2008] 1 AC 1028
;
[2009] 1 Cr App R (S) 31
, Lord Bingham said:
45. ... There might be circumstances in which orders for the full amount against several defendants might be disproportionate and contrary to article 1 of the First Protocol, and in such cases an apportionment approach might be adopted, but that was not the situation here and the total of the confiscation orders made by the judge fell well below the sum of which the Revenue had been cheated.
4.
No claim was made for any benefit arising from sales of any HRT.
5.
The raw tobacco was delivered to the “factory”, namely an industrial unit in Stevenage, where it was processed in a machine that produces tobacco that can be smoked and can be sold as HRT. Blackburn was the “manager” of the factory. From the factory the tobacco went in boxes to the garage adjoining the home in Essex of the appellant, James. There it was put into, or was to be put into, 50 gram counterfeit plastic pouches to be sold under a well known trade name.
6.
Duty becomes payable at the moment tobacco is processed into a smokeable condition. Thus duty was payable as it came out of the machine or a little later. The tobacco was smokeable by the time that it was packed into the boxes before leaving the factory. This is now accepted on behalf of Blackburn.
7.
The judge, at the request of the prosecutor, added a figure to the unpaid excise duty a figure to represent expenses which it was said the appellants had incurred. Thus, for example, Blackburn had bought scales, saw blades for the machine (£50), had paid some rent, had paid money out as wages to those working in the factory and had paid other miscellaneous expenses and that was held to be a benefit, in the total amount of £6960.00, increased to £7411.00 by reason of a change in the value of money. For reasons which will be given by Mr Justice Edwards-Stuart, those expenses cannot to be treated as benefit and to that extent the benefit figure was wrong.
8.
That leaves the unpaid excise duty.
Facts
9.
We shall set out the facts and background in a little more detail.
10.
On 18
th
March 2008 in the Crown Court at Ipswich (HHJ McKittrick) the appellants were convicted of conspiracy to contravene section 170 of the Customs and Excise Management Act 1970. Blackburn was sentenced to 3 years’ imprisonment and James to 2 years’ imprisonment.
11.
Unfortunately much time passed before the confiscation hearing took place (albeit for good reason) and HHJ McKittrick was unable to hear the confiscation applications.
12.
The two appellants and their co-accused were involved in a conspiracy to evade duty payable on hand rolling tobacco indicted between 7
th
May and 11
th
August 2006. There were two known premises involved, one being a fully operational tobacco factory in a large outhouse (unit 15) at a poultry farm in Stevenage which received boxes of raw leaf tobacco. This was treated with liquid chemical and processed through an industrial tobacco cutting machine into processed hand rolling tobacco. The processed product was packed into smaller boxes and sealed. These boxes were then transported by Charles to second premises, the garage of 29 Rockingham Avenue, Hornchurch, Essex. The boxes were opened, the tobacco weighed and put inside counterfeit 50 gram tobacco pouches for sale. There was no direct evidence as to who had done that, but, given the jury’s verdict, James must, at the least, have allowed that to happen knowing that HRT on which no duty had been paid was being packaged in his garage.
13.
Unit 15 was raided on 10
th
August 2006 by HMRC officials and Blackburn was one of four men arrested there.
14.
The same afternoon James was arrested at the Hornchurch premises which he owned. A co-accused Charles, who died prior to trial, was also arrested there having that day, as he had earlier, driven a van containing boxes of processed tobacco onto the driveway. HMRC officials seized 3.027 tonnes of raw leaf tobacco from Unit 15 and a total of 521.9 kilograms of processed hand rolling tobacco either from the factory or the van. 43,000 empty counterfeit pouches were seized from the garage or the back of the van.
15.
Unit 15 had been rented by a man giving the name Peter Ward from 8
th
May 2006 at a rent of £500 per month. A total of £2,500 was paid in cash. The unit was modified by upgrading the electrical supply and building a partition wall. A man giving the name Ray contacted the lessors over a drainage problem. The contact number he gave was that of Blackburn’s mobile phone. Officers had kept surveillance on the various conspirators between 13
th
June 2006 and 10
th
August 2006. On 9
th
August officials also placed hidden visual recording equipment in Unit 15. Blackburn declined to answer questions in interview stating he did not have his medication and felt stressed and tired. He declined to suspend the interview to give him the opportunity to see a doctor. James agreed that 29 Rockingham Avenue was his home and was self employed. He said that he had allowed people to store items in his garage because he had been in trouble and someone had sorted it out for him. He declined to answer further questions.
16.
As against James, the prosecution relied on three withdrawals of £10,000 in cash withdrawn on 8
th
June, 7
th
July (two days after the transfer of some of the HRT from the factory to the garage) and 10
th
August 2006 (the day on which James and Charles were arrested, as well as the other defendants).
Who is liable to pay the excise duty?
17.
In
R v Smith
[2001] UKHL 68
,
[2002] 1 Cr App R 35
,
[2002] 1 WLR 54
the House of Lords held that an importer of uncustomed goods, in this case cigarettes, who intends not to enter them for customs purposes and not pay any duty on them, derives a benefit under
section 74 of the Criminal Justice Act 1988
through not paying the required duty at the point of importation, where the goods are forfeited by HM Customs following importation, before their value can be realised by the importer.
18.
In
Waya
, UKSC 2010/0088, which will be re-argued before nine Justices of the Supreme Court next year, the parties have been sent a note which, amongst other things, asks the question: “Did Parliament intend that confiscation proceedings should be brought in respect of property that has been restored by or recovered from the defendant.”
See for example
CPS v N and other cases
[2009] EWCA Crim 1573
,
[2010] 1 Cr App R (S) 82
.
The note also states that “it may be that the Court should reconsider” whether
Smith
was correctly decided.
19.
Only the person or persons who are personally liable to pay the duty will have obtained a pecuniary advantage by evading its payment. Absent that liability, they will not have obtained a benefit in accordance with
section 76 of the Proceeds of Crime Act, 2002
and its predecessors. This was established by the House of Lords in
May
;
Jennings
[2008] UKHL 29
;
[2008] 1 AC 1046
;
[2008] 2 Cr App R 29
and applied in
Chambers
[2008] EWCA 2467 and
Mitchell
[2009] EWCA Crim 214
.
20.
However, it does not follow from the fact that a person evades the duty which he personally owes, that he has necessarily obtained a benefit by evading it. We shall come back to that shortly.
21.
It is not disputed that a person holding the tobacco products at the excise duty point, namely at or shortly after the tobacco emerged form the machine, is the person holding the tobacco products at that time or any person who caused the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point: see the Tobacco Products Regulations 2001 2001/1712, the validity of which and the meaning of which was discussed in
White and others
[2010] EWCA Crim 978
, paras. 56 and following. There can be more than one person who owes the duty and, under the Regulations, each is liable jointly and severally. However, HMRC can only recover the amount of the duty owed. There can be no double recovery. The word “holding” has not been authoritatively determined but a person would “hold” the HRT if he owned it or probably had possession or control.
The appellant James- was he liable to pay the duty?
22.
James would have been liable to pay the duty if he was holding the tobacco products at the time that excise duty became payable or if he caused the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point of time. In order to satisfy either requirement it would have to be shown by the prosecution, on the balance of probabilities and on the facts of this case, that James had, contrary to the evidence which he gave, some financial stake in the illegal operation. If he was a part “owner” of the tobacco, that would suffice.
23.
We turn to the ruling of HHJ Goodin. He held that James was the provider of accommodation and facilities for packing and distribution and this was crucial to the success of the enterprise. The judge went on to say:
“He wasn’t plainly located often on the scene of Unit 15 but he was in my view a visitor for planning meetings for the furtherance of the conspiracy to those premises. [He was] responsible for causing the tobacco to arrive at the duty point where indeed it seems to me [he] helped”.
24.
The prosecution accept that the judge was wrong to make the finding that James was a visitor for planning meeting
s
. The only evidence from which the presence of James at the factory could be inferred was the sighting on one occasion, the 29
th
June 2006, of his Cherokee jeep at the factory. James was himself not seen there. James gave an explanation for the presence of his jeep there - it was being driven by Charles, the co-defendant who had died and who drove the tobacco (albeit not in the jeep) from the factory to the garage. If the judge was going to rely on that one sighting from which to infer that James had attended a planning meeting and was responsible for causing the tobacco to arrive at the duty point because he had “helped”, then the judge should have given reasons for not accepting the evidence of James.
25.
The judge went on to hold in one sentence that that the three sums of £10,000 withdrawn on 8
th
June, 7
th
July and 10
th
August were payments “for or associated with tobacco produced at the factory”. The appellant gave evidence that he withdrew the sums to gamble with bookmakers and had produced to the judge a considerable body of documentary evidence which showed that he was a heavy gambler and had made numerous withdrawals of cash in large and round sums of money both before and after these withdrawals. The judge accepted that James “may well” have been a gambler and gave no reasons for his conclusion. Furthermore the evidence relating to the withdrawals relied upon by the appellant was introduced at the trial. That is important because the trial judge, having heard that and the other evidence, concluded in his sentencing remarks that the role of James was to allow his premises to be used as a base for the distribution of the processed tobacco and that James had played a lesser role than Blackburn. The trial judge said that it was plain that James was responsible for distribution as opposed to processing and that: “Never shall processing and distribution meet.” If HHJ Goodin was right, then the trial judge should have sentenced James as a financier of the unlawful enterprise whose responsibility was greater than that of Blackburn. Whilst not saying that a judge hearing a confiscation case may not reach a different conclusion than the trial judge, the confiscation judge will normally be expected to explain far more fully than did HHJ Goodin why he has reached a different conclusion on the same evidence considered by the trial judge. This HHJ Goodin did not do.
26.
This is not a case where it would be right for the Court of Appeal to conduct a completely new hearing on the issue of benefit and we therefore quash the finding of benefit in so far as it related to evaded excise duty. The judge also held that the £30,000 (uplifted to represent a change in the value of money) was a benefit. For the reasons which Mr Justice Edwards-Stuart analyses and rejects below, the judge was in any event wrong to find this sum to be a benefit even if it had been used to fund the operation. It follows that the confiscation order made against James is quashed.
The appellant Blackburn - was he liable to pay the duty?
27.
In this part of the judgment we deal only with that part of the alleged benefit which represents the evaded duty.
28.
Blackburn’s role was set out in an agreed note prepared for the confiscation hearing. That reads:
Statement as to role
Raymond Blackburn was described by HHJ McKitterick as the local manager, when sentencing him.
There is no evidence that Mr Blackburn financed the purchase of the raw leaf tobacco.
Mr Blackburn accepts the following:
He was first observed on the 29
th
June 2006 at the unit.
He was made aware that the tobacco cutting machinery was being delivered to the Unit and assisted in putting it into the unit.
He loaded tobacco onto the machinery, for the machine to process the tobacco. There is no evidence that the machinery was operated in the absence of Eric Cuerton.
He was responsible for running, safety and security at Unit 15.
He was responsible for preparation/modification of the unit so that processing could take place.
He recruited labour to assist in processing of the tobacco – Mr Warr and Mr Chuter.
He assisted in the transportation of the raw leaf tobacco from its stored location, said in evidence to be in Grimbsy.
He obtained and paid for materials for the day to day running of the unit (see Albany notebook).
He liaised with the landlord of Unit 15 including on occasions the payment of rent on the unit.
He wrote on the wall the recipe for blending the hand rolling tobacco. Mr Blackburn said he obtained this recipe from another.
29.
The effect of this agreed note is that Blackburn was in effect the local “salaried” manager of the factory with no proprietary interest in the tobacco. It might have been agreed or, if not agreed, decided that the £6960.00 which Blackburn spent on miscellaneous expenses was an investment by Blackburn in the unlawful enterprise. However it was agreed that was no evidence that Mr Blackburn financed the purchase of the raw leaf tobacco. It must follow that it had to be assumed that that Blackburn expected to be reimbursed for the expenses, albeit that there was no evidence that he was reimbursed.
30.
Was Blackburn either holding the HRT or did he cause the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point of time? In
Mitchell
[2009] EWCA Crim 214
, a post
Chambers
decision discussed in
White and others
in paragraphs 105-115, the Court said that they had not heard full argument on the point but that it appeared that the words causing the tobacco products to reach the excise duty point were directed at the person who had real and immediate responsibility for causing the product to reach that point. In paragraph 115, the Court in
White and others
said that the correctness or otherwise of this obiter passage might have to be considered should the point arise. One of the problems for criminal courts in this area is that any interpretation given to the Regulations must be the same as the interpretation that would be given to the Regulations in civil proceedings (court or tribunal) concerning excise duty. Furthermore when construing the word “cause” in criminal cases, it is normally given a broad meaning: see
Williams
,
[2010] EWCA Crim 2552
;
[2011] 1 W.L.R. 588
, applied in
H
[2011] EWCA Crim 1508
.
31.
Whatever the precise meaning of the words “holding” and “causing”, it seems to us that the appellant as the local manager albeit with no ownership of the tobacco falls into one or both of these categories. The judge was therefore entitled to find that he caused the tobacco to arrive at the duty point.
Did Blackburn obtain a benefit?
32.
The judge took the view that, having found that Blackburn caused the tobacco to arrive at the duty point, he had obtained the benefit in that amount. It is submitted on behalf of Blackburn that he was wrong to so find in the light of
May
and
Sivaraman
[2008] EWCA 1736;
[2009] 1 Cr. App. R. (S.) 80
; [2008] Crim. L.R. 989.
33.
In
May
Lord Bingham, giving the opinion of the Appellate Committee, said (paragraph 48(6)):
D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.
34.
Blackburn, on the agreed facts, had no interest in the tobacco or the proceeds of sale. On the other hand he was more than a courier or custodian and it would be difficult to categorise him as a very minor contributor to an offence.
35.
In
Jennings
the House of Lords said:
13. ... It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. This must ordinarily mean that he has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else.
36.
In this case Blackburn, if not repaid the £6960.00, had lost that money and had made no money at all, given that HMRC had intervened before any distribution had effectively taken place.
37.
We turn to
Sivaraman
. The appellant was the manager of a service station who accepted deliveries of “off road” diesel fuel on behalf of his employer, which was then sold to customers without the payment of duty. The Court (Toulson LJ, Jack J and HHJ Mettyear) held that his benefit was the amount paid to him by his employer for his participation in the scheme, not the duty evaded. The respondent seeking unsuccessfully to uphold the confiscation order made against the appellant which reflected the duty evaded, argued that, applying the passage in
May
(paragraph 34 above), the appellant was not a mere minor contributor but that he played a significant role as the petrol station manager. As to this the Court said:
The way in which he sought to deploy that sentence illustrates the need for care in the way that courts approach judicial commentary, the purpose of which is to elucidate and not stand in the place of the underlying principle.
38.
The Court asked whether the appellant was a joint purchaser of the fuel for resale as DERV who, by his conduct, jointly gained the pecuniary advantage of being able to resell it as DERV without having incurred the duty which would have had to be paid on purchasing DERV; or was he acting just as an employee? The Court held that he was the latter and quashed the confiscation order.
39.
In the light of
Sivaraman
, it seems to us that Blackburn’s appeal against the confiscation order in so far as it represented the unpaid excise duty must succeed. In these circumstances we do not need to address the post hearing submissions that were sent to us on the question of whether or not Blackburn had the necessary intent to evade the duty.
Mr Justice Edwards-Stuart
40.
We turn now to the question of the expenses incurred by Blackburn. Blackburn's case was that he was never reimbursed for these expenses, and there was no evidence or finding to the contrary. We therefore proceed on this basis.
41.
The expenses in question fall broadly into three types. First, the purchase of equipment or materials for the purpose of the venture. Second, payments by way of rent for Unit 15, “the factory”. Third, payments for casual labour for work in connection with the venture. In all, these amounted to about £7,000. For convenience, we will set out below those provisions of the
Proceeds of Crime Act 2002
(“
POCA
”) that are of particular relevance to this issue, bearing in mind that the exercise that the court is undertaking is to decide whether the appellant has benefited from his particular criminal conduct: see
section 6(4)
.
Section 76
of the Act provides:
(1)
Criminal conduct is conduct which
(a)
constitutes an offence in England and Wales
. . .
(3)
Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs
(a)
conduct which constitutes the offence or offences concerned
. . .
(4)
A person benefits from conduct if he obtains property
as a result of or in connection with
the conduct.
(5)
If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (Emphasis added)
42.
Section 84 of the Act provides that property is held by a person if he holds an interest in it.
The purchase of equipment or materials for the purpose of the venture
43.
It was not disputed that Blackburn purchased these items, which included things such as weighing scales, cardboard boxes and sundry building materials, from ordinary commercial suppliers in the usual way. He paid in cash. In relation to the cardboard boxes and packaging tape, it was said that he asked the supplier if the transaction could be done "
without a ticket
", but the request was refused.
44.
In our judgment it is quite clear that these were ordinary everyday transactions that were perfectly lawful in themselves. True it is that Blackburn intended to use these items in an unlawful venture, but there is no reason to believe that that would have been known to the supplier. If, for example, on returning to the factory Blackburn had discovered that the cardboard boxes were damp, there would probably have been nothing to prevent him from returning to the supplier and rejecting them, demanding the return of the price. The supplier would not have been entitled to refuse on the ground that he had since learned that Blackburn wanted the boxes in order to transport illegally processed tobacco products, because Blackburn did not have to rely on any particular purpose for which he bought the goods in order to complain that they were not of merchantable quality.
See
Tinsley v Milligan
[1994] 1 AC 340
. Where property has passed pursuant to an illegal contract, relief will not ordinarily be refused to the person who acquired the property on the ground of illegality unless he has to rely on the illegal conduct in order to establish his title.
45.
There is no suggestion that Blackburn paid anything other than the normal retail price for any of these items. At the outset we remind ourselves of the summary of the relevant principles given by the House of Lords at the conclusion of its opinion in
R v May
[2008] 1 AC 1028
, which included the following passage:
“The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from the relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? . . . These are separate questions calling for separate answers, and the questions and answers must not be elided.”
46.
Looking at the matter broadly and addressing the first of these questions, we do not see how it can be said that Blackburn derived any benefit from buying these items. He paid for them and received goods in return to the same value. He gained nothing (in monetary terms) by the transaction. There was no pecuniary advantage. In these circumstances, it would be strange if the relevant legislation compels the conclusion that he had derived a benefit, measurable in money terms, from these transactions.
47.
We do not think that the relevant provisions of
POCA
do compel this conclusion. First, Blackburn did not obtain the items
as a result of
any criminal conduct. He obtained an as a result of a lawful transaction with the supplier.
48.
Second, he did not obtain the items
in connection with
any criminal conduct. His criminal conduct in participating in the conspiracy formed no part of the transactions by which he acquired the various items. Their acquisition was by way of lawful purchase for value. We accept that these transactions were entered into
for the purpose of
criminal conduct, but that is not necessarily a state of affairs caught by
section 76(4)
.
49.
We accept also that the expression "
in connection with
" widens the meaning of the words "
as a result of
": see
R v Waller
[2009] 1 Cr App R (S) No 76, at page 450. In our view, the expression was probably intended to cover the type of situation where a person obtains property in anticipation of the criminal venture. For example, suppose that A is provided with a car (which is registered in his name) by someone planning a criminal venture, ostensibly for A’s own use but really with a view to him using it also in order to act as a courier to transport illegal tobacco products for that criminal venture. In this situation it is clear that A has obtained the car
in connection with
his subsequent criminal conduct of transporting the illegal goods, although it may be open to argument whether he also obtained the car
as a result of
any criminal conduct.
50.
In fact, this example is very similar to the facts of the leading case of
R v Smith
, which we have already mentioned. Smith bought a motor vessel with £55,000 provided by his co-defendant, John Marriott. Smith effectively acted as Marriott's shipowner and captain. When, as part of a smuggling operation, the vessel was sailed up the Humber estuary laden with cigarettes on which duty had not been paid, the benefit that he was found to have obtained from his criminal conduct included not only the duty evaded on the cigarettes but also the value of the vessel. That was because he had obtained the vessel in connection with the commission of the offence. Whilst this decision may have its critics on the ground that the defendants were treated as having benefited to the full extent of the amount of the duty evaded whilst having been deprived of the opportunity to sell the cigarettes, we do not understand there to have been any criticism of the conclusion that the vessel was properly treated as property obtained in connection with a commission of an offence (a point which was not argued in the House of Lords).
51.
We were referred by Mr Abell to the decision of
R v Waller
, to which we have referred briefly above. The defendant was stopped at the Channel Tunnel by British customs officers, who found 250 kg of undeclared hand rolling tobacco in the boot of his car. The defendant admitted to buying the tobacco for himself, his family and his friends. He said that he had spent £2,000 of his own money and £12,000 given to him by three other people. He accepted that he bought the tobacco with the intention of evading duty.
52.
In the subsequent confiscation proceedings the Crown contended that the defendant’s benefit amounted to £41,505, being the total of the evaded duty of £27,505 and £14,000, being the value of the cigarettes. The issue on the appeal related to whether the confiscation order should have included the value of the tobacco as well as the evaded duty. The case for the defendant on this aspect was that the judge should not have included the value of the tobacco as it had been purchased legitimately. The Crown’s response was that the whole enterprise was one tainted with criminal intent
We note that a very similar metaphor (“
tainted with illegality
”) has attracted judicial criticism for its imprecision: see
Euro-Diam v
Bathurst
[1990] 1 QB 1, Staughton J at 15.
from its outset since, without dutiable goods to smuggle, there can be no pecuniary advantage.
53.
The court gave six reasons in support of its conclusion that the judge was right to make a confiscation order not merely that the value of the duty but also the value of the tobacco. The first reason was based on the concluding paragraph of the judgment of the House of Lords in
May
, which stated:
“(6)
[The defendant] ordinarily
obtains property
if in law he
owns
it, whether alone or jointly which will ordinarily come out a power of disposition will control, as where a person directs a payment or conveyance of property to somebody else."
54.
The third reason was expressed in the following terms:
“Our third reason for accepting the contentions of the respondent flows from the wording of the statutory provisions because the court has to ask itself two questions. The first is whether the defendant has benefited from his criminal conduct. In this case, the answer must be in the affirmative, as the appellant obtained tobacco which he purchased. The second question, based on s. 76(4) is whether the appellant obtained property "as a result of or in connection with" the conduct of evading excise duty. In this case the answer must be that the appellant obtained property, namely the tobacco. This was the only property that he obtained and in reaching that conclusion, we have noted the width of the words used in the statutory provision because they talk about a person obtains property "as a result of or in connection with his conduct". The words "as a result of" apply to any consequence, while the words "in connection with" widen that meaning. In our view, the acquisition of property and this tobacco falls clearly within both categories."
55.
It is clear on the facts of that case that the enterprise demanded the prior purchase of the tobacco outside the United Kingdom with the consequence that it was obtained “
as a result of
” the criminal conduct, namely the smuggling enterprise. It is evident also that it was obtained
"
in connection with
" the smuggling enterprise, since the tobacco was itself the subject of the operation. Leaving aside the defendant’s admission, it was not as if there could have been any other conceivable reason for buying such a large quantity of tobacco outside the United Kingdom: the defendant and his friends could hardly have wanted to buy it just in order to set up a stockpile of tobacco on the mainland of Europe.
56.
However, the decision is not without its critics: see
Archbold
, 2012 Edn, at 5-1051, where the editors refer to an article in which the decision is criticised on the grounds that it misapplies
May
and is out of line with
Smith
(because in that case it was never suggested that the benefit included the value of the smuggled goods).
57.
We consider that there is a significant difference between the purchase of the tobacco in
Waller
and Blackburn's purchases of the various items with which we are concerned in this case. Mr Waller's purchase of the tobacco was central to the smuggling operation on which he had embarked since the tobacco in question was the very thing that was to be smuggled. In those circumstances it is unsurprising that the court concluded that the purchase of the tobacco was
in connection with
the criminal conduct: it formed part of it.
58.
Turning now to the judgment in the present case, the judge dealt with the issue of the outlay on the purchase of equipment for the enterprise, such as the scales, boxes and so on, in a single sentence. He said, very simply, that those expenses "
are in my judgment caught by the legislation
". He gave no reasons.
59.
For the reasons we have given, we consider that the sums spent by Blackburn on the purchase of equipment or materials for the purpose of the venture are not caught by the legislation. Accordingly, they did not form part of the benefit.
60.
We should add that the Crown did not seek to include in the assessment of the benefit to Blackburn any sums in respect of either the raw tobacco that was found at the factory or in respect of the HRT that was produced or seized. It is not obvious to us why the Crown chose to omit these whilst including the items purchased by Blackburn.
Payments by way of rent for the factory building
61.
As the agreed statement of Blackburn’s role records, he paid some of the rent for Unit 15 during the relevant period (£2,000, according to his notes). As we have already mentioned, a man giving the name Peter Ward rented the unit from 8 May 2006 at a rent of £500 per calendar month (this was stated in the Crown’s opening note for the trial).
62.
In
Jennings
the House of Lords held that “
obtains
” must ordinarily mean obtaining property so as to own it, thereby ordinarily connoting a power of disposition or control. Since it appears that the agreement to rent Unit 15 was not in Blackburn's name, or at least the Crown did not prove that it was, it seems to us that the payment of the rent did not confer on Blackburn any right of disposition or control over the unit.
63.
The most that can be said is that the payments of the rent enabled “Mr Ward” to continue to enjoy the rights under the agreement with the lessor. Whilst it may be argued that he (Ward) thereby obtained property, we consider that the relevant evidence, namely that Blackburn paid the rent for certain months out of his own pocket, fell short of establishing that Blackburn obtained any property, or any property rights, that amounted to a benefit.
64.
However, if we are wrong about this, for much the same reasons that we have given in relation to the purchases of the items of equipment, we would have concluded that these payments in respect of the rent were not made
in connection with
the criminal conduct within the meaning of the legislation (we are assuming, because there was no evidence to the contrary, that the rent was in line with prevailing market rates). It is true that Unit 15 was rented for the purpose of enabling the criminal conduct to take place, but the arrangement to rent it was a contract that was not in itself in any way unlawful. Unlike the tobacco in
Waller
, the unit could have been put to another purpose or those controlling the enterprise might have changed their minds - perhaps because they thought that Unit 15 was under observation - and decided at the last minute to terminate the arrangement and to use another building.
65.
We accept that, because the payment of rent was a continuing outlay, the connection to the criminal conduct is closer than in the case of the individual expenses. However, since this is a criminal statute and the confiscation process is not to be applied so as to operate as a fine (see
Jennings
, at paragraph 13), we consider that the words “
in connection with
” must be given a narrow construction provided, of course, that such a construction is consistent with the ordinary use of the statutory language. In these circumstances and for the reasons that we have given we consider that by paying the rent Blackburn did not obtain a benefit that is caught by the legislation.
Payments for casual labour for work in connection with the venture
66.
Mr Abell submitted that in paying for the casual labour Blackburn obtained a pecuniary advantage and that this advantage was gained
in connection with
the criminal conduct.
67.
In
R v Olubitan
[2004] 2 Cr App R(S) No 14, May LJ said, at page 78:
“The section [
section 71
(1A) of
the 1988 Act
, the precursor to
s 6 of POCA
] is not to be construed so that a person may be held to have obtained property or derived a pecuniary advantage when a proper view of the evidence demonstrates that he has not in fact done so.”
This passage was cited with apparent approval by the House of Lords in
May
, at paragraph 19.
68.
In our judgment, Mr Abell’s submission falls at the first fence. We cannot see how a person who pays for services at a market rate can be said to have obtained a pecuniary advantage. It seems to us that, in terms of gain, the transaction is financially neutral.
69.
It may be that, if one looks at it from the other end of the telescope, one could say that the men engaged to work at the factory on a casual basis thereby obtained a pecuniary advantage in the sense that they received money in return for their labour.
By analogy with the now repealed
section 16(2)(c)
of the
Theft Act 1968
.
But whether or not that is the case, it is hard to see how the employer obtains a similar pecuniary advantage in circumstances where (a) he obtains no money as a result of the transaction and (b) the labour he obtains is paid for at the going market rates.
Conclusion in relation to expenses
70.
We conclude that none of the items of expenditure incurred by Blackburn that were treated as part of the benefit in the confiscation proceedings was caught by the legislation. Accordingly, that part of the decision of HHJ Goodin must be set aside.
Conclusion
71.
It follows that the confiscation orders in respect of both appellants are quashed. | {"ConvCourtName":["Crown Court at Ipswich"],"ConvictPleaDate":["2008-03-18"],"ConvictOffence":["conspiracy to contravene section 170 of the Customs and Excise Management Act 1970"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Ipswich"],"Sentence":["Blackburn: 3 years’ imprisonment","James: 2 years’ imprisonment"],"SentServe":[],"WhatAncillary":["confiscation order (quashed on appeal)"],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["surveillance evidence","visual recording equipment","financial records (bank withdrawals)","seizure of tobacco and counterfeit pouches"],"DefEvidTypeTrial":["defendant's explanation for cash withdrawals","evidence of gambling habits"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["James played a lesser role than Blackburn","no evidence that Blackburn financed the purchase of the raw leaf tobacco"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["confiscation order"],"AppealGround":["confiscation order wrongly included benefit figure for unpaid excise duty and expenses"],"SentGuideWhich":["section 76 of the Proceeds of Crime Act 2002"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["confiscation orders could not be upheld as benefit was wrongly calculated; neither appellant obtained a benefit as defined by law"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2008] EWCA Crim 474
No:
200800458/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 25th February 2008
B e f o r e
:
LORD JUSTICE THOMAS
MR JUSTICE IRWIN
MR JUSTICE COULSON
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
SAMUEL ROBERT LAWLOR
- - - - - - - - - - - - - - - - - - - - -
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 G Pottinger
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
Mr Justice Irwin: On 13th February 2007, in the Crown Court at Birmingham, before Mr Recorder Tickle, this applicant pleaded guilty to inflicting grievous bodily harm. On 30th March 2007 he was sentenced for that offence by Mr Recorder Lopez to 18 months' detention in a young offenders institution, suspended for two years, with an unpaid work requirement for 200 hours pursuant to
section 199 of the Criminal Justice Act 2003
. He was ordered to make a considerable payment towards prosecution costs and to make a more modest payment in compensation. A further count on that indictment was ordered to remain on the file on the usual terms.
2.
The present proceedings arise in the form of an application for an extension of time of 263 days for leave to appeal and for leave to appeal against sentence. The application has been referred to this court by the registrar who has granted, properly, a representation order for counsel here today.
3.
The facts can be summarised as follows. At approximately 8.00 p.m. on 28th September 2006 the complainant, Mr Cleaver, was with his girlfriend on Trittiford Road in Moseley in Birmingham. They had an argument as they walked along. The applicant was on the other side of the road. He approached them as he crossed the road to their side. He walked straight up to the complainant and punched him to the face without any warning. The complainant fell to the floor. The applicant then walked off, but said something rather aggressive to the lady as he did so. Whilst he was on the ground the complainant slipped into unconsciousness as he bled heavily from his mouth. Another witness described how the complainant at that stage appeared to him to be choking on his own blood. The complainant was taken to hospital where he was operated on for a broken jaw. It had been broken on both sides.
4.
When he was arrested and interviewed, on 5th October 2006, this applicant claimed that he thought the complainant was pulling a knife on him and that was why he had reacted as he did.
5.
It was noted when the original recorder ordered the preparation of a pre-sentence report he had indicated he would impose a non-custodial sentence if the risk of reconviction was low. That was a very generous approach to take. We would wish to emphasise again that when ordering the preparation of such reports it is not usually sensible to give indications of that kind. Of course non-custodial sentences must be in contemplation when a matter is adjourned so that the report can be prepared in a case of this kind. It is not normally wise to give a positive indication that there will be a non-custodial disposal which can subsequently be taken as a promise. In any event, in this case this was an over-generous indication, given the facts of the case.
6.
However, when the second recorder, Mr Recorder Lopez, came to sentence this appellant, he took the view that he should honour the indication that had been given, because the pre-sentence report, as it turns out wrongly, indicated that there was a low risk of re-offending in the case of this applicant. So, as a consequence, the sentence we have indicated was passed by Mr Recorder Lopez, who told the applicant that he should be extremely careful with his temper as he had caused serious injury and was lucky that he had not caused even more damage. Mr Recorder Lopez rightly said that this offence clearly crossed the custody threshold but he gave the sentence of 18 months, suspended for two years with an unpaid work requirement, as we have outlined.
7.
This was a generous sentence given the nature of the assault, even despite the applicant's previous lack of convictions, his plea and his then assessed low risk of re-offending. However, that was a optimistic prognostication. The applicant has committed a further offence of a similar nature, for which he now awaits sentence. It was as a result of that arrest that counsel, looking at the applicant's record, realised that there is a problem in the suspension of an 18 month period of detention. We commend the vigilance of counsel. The problem is that the court has no power to suspend a sentence which is longer than 12 months: see
section 189 of the Criminal Justice Act 2003
. Thus, the recorder's sentence was illegal.
8.
The applicant is granted an extension of time of 263 days, is granted leave to appeal and the sentence is quashed. The powers of this court are constrained by
section 11(3) of the Criminal Appeal Act 1968
, with the effect that the appellant cannot be dealt with more severely on appeal than the overall effect of the sentence received below. Therefore, we substitute a 12 month sentence of detention in a young offender institution, suspended for two years, for that passed by the recorder. | {"ConvCourtName":["Crown Court at Birmingham"],"ConvictPleaDate":["2007-02-13"],"ConvictOffence":["inflicting grievous bodily harm"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court at Birmingham"],"Sentence":["18 months' detention in a young offenders institution, suspended for two years, with an unpaid work requirement for 200 hours","payment towards prosecution costs","compensation payment"],"SentServe":["Single"],"WhatAncillary":["unpaid work requirement for 200 hours","payment towards prosecution costs","compensation payment"],"OffSex":["All Male"],"OffAgeOffence":[0],"OffJobOffence":["Other"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":["All Male"],"VicAgeOffence":[0],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":["Offender claims self-defence"],"PreSentReport":["Low risk of reoffending"],"AggFactSent":["serious injury caused"],"MitFactSent":["offender showed genuine remorse","Offender has no relevant previous convictions","plea of guilty"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence was unlawful as it exceeded the maximum period for a suspended sentence"],"SentGuideWhich":["section 189 of the Criminal Justice Act 2003"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["sentence was illegal as the court had no power to suspend a sentence longer than 12 months"],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
Neutral Citation Number:
[2017] EWCA Crim 1466
Case No.
2017/00311/C5
&
2017/03242/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Thursday 7
th
September 2017
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE PHILLIPS
and
MR JUSTICE GARNHAM
_________________
R E G I N A
- v -
LAWRENCE BURNS
____________________
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 A Davies
appeared on behalf of the Applicant
Mr W Weekes
appeared on behalf of the Crown
______________________
J U D G M E N T
(Approved)
LORD JUSTICE DAVIS:
I shall ask Mr Justice Phillips to give the judgment of the court.
MR JUSTICE PHILLIPS:
1. On 15
th
December 2016, in the Crown Court at Cambridge, before His Honour Judge Cooper and a jury, the applicant (now aged 23) was convicted of stirring up racial hatred by publishing written material, contrary to
section 19(1) of the Public Order Act 1986
(count 1); and of stirring up racial hatred through words or behaviour, contrary to
section 18(1)
of the same Act (count 2). On 10
th
March 2017, the applicant was sentenced to three years' imprisonment on the first count and to a consecutive term of one year's imprisonment on the second count. The total custodial sentence was, therefore, four years' imprisonment. A Criminal Behaviour Order was made for a period of six years.
2. The applicant renews his applications for an extension of time, and for leave to appeal against conviction, following refusal by the single judge on the papers. The applicant's applications for leave to appeal against sentence and for an extension of time for so doing have been referred to the full court by the Registrar.
3. The relevant facts are as follows. The applicant was a member of National Action, a far-right white supremacist group, and was an avowed racist.
4. Between August and September 2014, when he was aged 20, he posted a series of virulently racist updates, comments and links to a Facebook account he operated under an alias. Those posts gave rise to count 1. The comments contained many vile and deeply offensive comments directed at, in particular, the Jewish and Afro-Caribbean communities. The gist of the messages was to promote militant action against them, with the aim that they should be eliminated, with a view to protecting what the applicant described as "an advanced warrior race consisting of white men and women".
5. If there is any doubt about the appellant's state of mind and intention, it was dispelled by material found on electronic media belonging to him, including e-books, expressing extreme anti-sematic views and extolling Adolf Hitler as "the ultimate being".
6. The Facebook account had 98 "friends", some (but not all) of whom appeared to be located overseas. However, the account was not locked and so could be readily accessed by any user of the internet. It is not in dispute that the applicant posted the relevant material whilst in this jurisdiction.
7. Count 2 related to a speech made by the applicant on 23
rd
May 2015, whilst he was aged 21 and whilst he was on bail for the offence charged in the first count. During a demonstration staged outside the United States Embassy, the appellant spoke, using highly inflammatory language directed towards non-white immigrants and Jews. He alleged that the former were "rapists, robbers and murderers" and that the latter were "parasites and bankers" who wanted to create a "mongrelised" race. The speech was filmed. The appellant subsequently indicated in an online post that he knew that the video was to be posted on YouTube, which indeed it was.
8. The applicant's defence at trial was that his postings on Facebook were intended to be "private banter" and that his speech, whilst not banter, was not intended to stir up racial hatred and was unlikely to do so.
9. The jury, not surprisingly, rejected those contentions in finding him guilty on both counts.
The renewed application for leave to appeal against conviction
10. The first ground of appeal relates to the judge's ruling that, for the purposes of the offences under
sections 18
and
19
of
the 1986 Act
, it was not necessary that the intended or likely stirring of racial hatred be in the jurisdiction of England and Wales. Mr Davies, who has appeared today for the applicant, relies upon the general principle that offences are not intended to be extra-territorial in effect; but he accepts, following the Court of Appeal decision in
R v Sheppard and Whittle
[2010] EWCA Crim 65
,
[2010] 1 WLR 2779
, that it is sufficient for the purposes of these offences in relation to publication that the relevant actions of the defendant in publishing took place in this jurisdiction, even if the relevant website was hosted overseas. His contention before the learned judge, and before us today, is that it is necessary that the racial hatred in question is intended or is likely to be stirred up in this jurisdiction.
11. In a careful ruling, the learned judge rejected that contention. We entirely agree with his decision. We see no merit in the argument. The question is: what was the intention or likelihood of the person making the publication or using the relevant words or behaviour? If that person was in the jurisdiction at the time when he carried out such actions, then there is no difficulty with territoriality. The fact that the hatred in question may be stirred up overseas does not, in our judgment, give rise to any arguable point. We reject that argument.
12. The second ground in relation to conviction arises from a jury note which was in the following terms:
"Should our deliberations on the speech … be constrained only to the [applicant's] behaviour and speech or do we consider the dissemination of the whole content of the video on YouTube as specific intent or likelihood of stirring up of racial hatred?"
13. The learned judge gave a careful direction in relation to both "intention" and "likelihood". He directed the jury that, in considering what was the applicant's intention or what was otherwise the relevant likelihood, they were entitled to take into account all matters or circumstances which obtained at the time of the speech.
14. Mr Davies has submitted to us today that to allow the jury to consider the subsequent posting on YouTube was impermissible because it permitted the taking into account of subsequent matters which were not relevant or admissible in considering the applicant's intention or otherwise the likelihood of stirring up racial hatred.
15. Again, we see no merit in that contention. The question of what was a defendant's intention, or otherwise the likelihood of a matter occurring, must be judged at the relevant time; but there is no reason why it must be considered only in relation to matters which had occurred at that time. There is no reason why subsequent events cannot be considered in forming a view as to what was the intention or likelihood at that time. The judge's direction was entirely conventional and correct. There is no merit in that argument. The renewed applications in relation to conviction are, therefore, refused.
The applications in relation to sentence
16. The judge correctly set out the fact that, whilst freedom of speech is a fundamental freedom of our society, the applicant's conduct in this case went far beyond what was regarded as acceptable. It was designed publicly to promote racial hatred, to mobilise the applicant's listeners, and to encourage them to move from ideas into action.
17. We entirely agree with the learned judge that a custodial sentence was necessary – and indeed one with a deterrent effect. The learned judge approached sentence on the basis that, although the applicant had some previous convictions, none was relevant to these matters. But he took the view that consecutive sentences were appropriate. That is a sentiment with which we agree. He indicated that he regarded a sentence of three years' imprisonment as appropriate on the first count and that he would have imposed a consecutive sentence of two years' imprisonment on the second count, but he reduced the second sentence to one year's imprisonment to take account of the principle of totality. That gave rise to a total sentence of four years' imprisonment.
18. In our judgment, however, the judge's approach did not take sufficient account of the applicant's young age at the relevant time (20 at the time of the publications on Facebook, and 21 at the time of the speech). It is also the case that evidence was adduced that the applicant is of low intellect and has a poor educational background. He was undoubtedly immature at the time of these offences.
19. We have been referred to the decision in
Sheppard and Whittle
, to which we have already referred, in which Sheppard, who was sentenced for 16 offences and who had previously been convicted of two similar offences for which he had received a sentence of nine months' imprisonment, received a sentence of three years' imprisonment; whereas Whittle, who was convicted of five counts, received a sentence of 18 months' imprisonment.
20. We were also referred to
R v Bonehill-Paine
[2016] EWCA Crim 980
, in which the Court of Appeal dismissed an appeal against a total sentence of three years and four months' imprisonment in respect of one conviction for an offence under
section 19 of the Public Order Act 1986
, although it was accepted that the appellant in that case had previous convictions for similar offences.
21. In our judgment, particularly given the applicant's young age, and taking into account the cases to which we have been referred, we consider that the sentence in this case was manifestly excessive. Accordingly, we grant the extension of time sought and give leave to appeal against sentence. We will quash the sentence of three years' imprisonment on count 1 and substitute for it a sentence of 18 months' imprisonment. We will leave undisturbed the sentence on count 2 of one year's imprisonment. The resulting sentence in total is one of two years and six months' imprisonment.
LORD JUSTICE DAVIS:
The appeal is allowed to the extent indicated.
_________________________________ | {"ConvCourtName":["Crown Court at Cambridge"],"ConvictPleaDate":["2016-12-15"],"ConvictOffence":["Stirring up racial hatred by publishing written material (section 19(1) of the Public Order Act 1986)","Stirring up racial hatred through words or behaviour (section 18(1) of the Public Order Act 1986)"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Cambridge"],"Sentence":["3 years' imprisonment (count 1)","1 year's imprisonment consecutive (count 2)","Criminal Behaviour Order for 6 years"],"SentServe":["Consecutive"],"WhatAncillary":["Criminal Behaviour Order for 6 years"],"OffSex":[],"OffAgeOffence":[20,21],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Has learning difficulties"],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Individuals"],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Electronic media evidence (e-books, Facebook posts)","Video evidence (speech filmed and posted on YouTube)"],"DefEvidTypeTrial":["Offender denies offence (claimed Facebook posts were 'private banter', speech not intended to stir up hatred)"],"PreSentReport":[],"AggFactSent":["Offence committed while on bail (count 2)","Offence designed to promote racial hatred and mobilise listeners"],"MitFactSent":["Offender was young at time of offence (20 and 21)","Offender is of low intellect and poor educational background","Offender was immature at the time of the offences"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Sentence is unduly excessive"],"AppealGround":["Territoriality: whether racial hatred must be intended or likely to be stirred up in this jurisdiction","Jury direction: whether jury could consider subsequent posting on YouTube in assessing intent or likelihood"],"SentGuideWhich":["section 19(1) of the Public Order Act 1986","section 18(1) of the Public Order Act 1986"],"AppealOutcome":["Conviction appeal refused","Sentence appeal allowed and sentence reduced"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":["Insufficient account taken of applicant's young age at time of offences","Evidence of low intellect and poor educational background","Applicant was immature at the time of the offences"],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No merit in territoriality argument; correct application of law","Jury direction was conventional and correct; no merit in argument"]} |
Case No: 2001/00805 S4 & 2001/03154 S4
Neutral Citation Number:
[2003] EWCA Crim 2957
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL ASSIZES
Mr Justice Cassels
Royal Courts of Justice
Strand,
London, WC2A 2LL
Tuesday 28
th
October 2003
Before:
LORD JUSTICE RIX
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE DAVIS
- - - - - - - - - - - - - - - - - - - - -
Between:
George KELLY & Charles CONNOLLY (both deceased)
Appellants
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr A Newman QC, Mr M Wolff & Mr R Makin (Solicitor Advocate) for Kelly
Mr W Waldron QC and Mr S Berkson for Connolly
Mr S Pownall QC for the Crown
(In the matter of a reference to the Court of Appeal by the Criminal Cases Review Commission by the applicant Kathleen Hughes, the daughter of George Kelly now deceased, and
In the matter of a reference to the Court of Appeal by the Criminal Cases Review Commission by the applicant Eileen Connolly, the widow of Charles Connolly now deceased)
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Rix:
Introduction and synopsis
1.
Over 50 years ago, on Saturday 19 March 1949 at about 9.35 pm, a notorious double murder occurred at the Cameo Cinema in Liverpool. Its manager, Leonard Thomas, and assistant manager, John Catterall, were shot dead in the former’s office in the course of a robbery of the day’s takings.
Charles Connolly
and
George Kelly
were subsequently tried in Liverpool for those murders. The Crown alleged that Kelly was the gunman and Connolly his lookout. Kelly and Connolly were arrested on 30 September 1949, on the day following police statements implicating them were made by
James Northam
and
Jacqueline Dickson
. Two weeks earlier, on 15 September 1949, a prisoner called
Robert Graham
had made a police statement that a man known as
Donald Johnson
had confessed to him, Graham, while in prison, that he, Johnson, had committed the murders and the robbery. Despite that statement, in November 1949 Graham made further statements to the police concerning further alleged prison confessions to the murders, this time by Kelly and Connolly. Graham said that each of them had confessed their roles to him while they were together in Walton Prison between 14 and 16 November 1949. Notice of the additional evidence of what we shall for the sake of convenience describe as Graham’s second statement (in fact it would seem that there was no second statement as such but a series of at least three interviews) was served on the defence on the first day of their joint trial, which lasted from 12 to 28 January 1950. Thus it had not been available at the committal proceedings in October 1949. Graham’s first statement was never disclosed to the defence, nor even to prosecuting counsel. The discovery of that first statement, still present in police files, in the early 1990s ultimately led to applications to the Criminal Cases Review Commission (CCRC) and, in 2001, to these references by the CCRC to the Court of Appeal.
2.
Johnson had already stood trial charged with being an accessory after the fact to the murders and had been acquitted at the direction of the judge, at the time when Graham, in his first statement, said that he (Johnson) had confessed to carrying them out himself. Johnson’s trial took place in June 1949, soon after he had made unsigned statements to the police on 2 and 6 May in which he had confessed to helping the gunman, whom he described and disguised as “Charlie Duggan” (or “Dugan”), dispose of the gun. He was acquitted because the judge ruled that the second of his police statements had been obtained by inducements and was inadmissible. Graham said that following that acquittal Johnson, who at this time was in custody on another matter, had returned to prison and told him in glee that he had committed the murders himself and now could no longer be prosecuted for them.
3.
That account was given, as we have said, in Graham’s first statement dated 15 September 1949. Graham’s statement was made to
Detective Chief Inspector Balmer
who was conducting the police investigation into the murders. CI Balmer reported on this development to his superior, Chief Superintendent Smith, in writing dated 17 September 1949. He said: “I am satisfied GRAHAM is telling the truth. Whether JOHNSON is, is of course, a different matter.” CS Smith endorsed the report on 20 September 1949 as follows: “I beg to report that although the statement of GRAHAM is very interesting, it does not seem that we can do anything further regarding JOHNSON at the moment.” The report was then passed to the Assistant Chief Constable, who initialled it and added the word “Seen”.
4.
The subsequent statements of Northam and Dickson were also made to CI Balmer, as was Graham’s second statement. In the course of his evidence at the joint trial, CI Balmer said that the first time he had met Graham in connection with the case was on 19 November 1949
CI Balmer said, in answer to a question from the judge, that “The first time I saw him in connection with this case was on this date – 19
th
March”. The reference to “March” was clearly a slip for “November”, since 19 November not March was the subject matter of the questioning at this point and “this date” had already been identified as 19 November. 19 March was the date of the murders.
. At Kelly’s re-trial Graham also said that he had first met CI Balmer on 19 November (both in cross-examination and re-examination), that “the only persons who ever spoke to me about this case was Kelly and Connolly”, and that “I am on oath in this box and I can only say I knew nothing about it until I was told by these two people charged with it”. A short while later, in direct answer to the judge, Graham again said that he first saw CI Balmer on 19 November. All that evidence was false and probably deliberately so. CI Balmer died on 3 May 1970, and thus no explanation from him regarding the non-disclosure of Graham’s first statement or any other matter is available.
5.
Despite the evidence of Northam and Dickson, and the evidence of Graham concerning the prison confessions of Kelly and Connolly, their first trial, before Oliver J, ended on 28 January 1950 without any verdicts. Within two days the Liverpool Echo was reporting that the retrial would take place, again in Liverpool, at the next assizes commencing on 31 January 1950. In the event, there was a slight delay, during which the trials of Kelly and Connolly were split. Kelly’s retrial began on 2 February and ended on 8 February with his conviction. He was tried only for the manager’s murder. He was sentenced to death. The judge, Cassels J, said that “the Jury have rightly found you guilty”. He commended Northam and Dickson for their evidence and said he would forward a recommendation regarding Graham. Kelly’s appeal was heard and dismissed on 10 March. He was hanged on 28 March. His daughter, Kathleen Hughes, is now the applicant in the reference which has led to this appeal.
6.
In a letter dated 28 February 1950 from the Deputy Director of Public Prosecutions, to the Under Secretary of State at the Home Office, the former wrote as follows:
“The all-important evidence for the prosecution consisted of a woman named Dickson and a man named Northam, both persons of bad character, who swore that they were in a Public House on the night of the murder with Kelly and Connolly, that they heard the robbery of the cinema planned by these men, and that after the shooting, Kelly admitted that he had shot the Manager and the Under-Manager and Connolly stated that he had waited outside the cinema but that he ran away as soon as he heard the shots. Graham corroborated the evidence of Dickson and Northam, because he swore that in conversations which he had with both accused in prison, each admitted to him the part which each had played in the commission of the crime, which was substantially the same as the admissions which they had made to Dickson and Northam prior to their arrest.
“I am of the opinion that but for the evidence that Graham gave before Mr Justice Cassels, Kelly would not have been convicted.”
7.
The Under Secretary replied on 13 March 1950 to confirm the Secretary of State’s decision to recommend the remission of the remainder of Graham’s sentence and his immediate release from custody.
8.
Connolly was due to be tried separately on 13 February 1950, soon after Kelly’s conviction. On that day, in circumstances which we will need to consider in detail below, he was given the opportunity to plead to new charges of robbery and conspiracy to rob. He pleaded guilty, and was sentenced to ten years imprisonment on the count of robbery and two years concurrent on the count of conspiracy. The prosecution offered no evidence on the counts of murder, and the jury were directed to acquit.
9.
Connolly was released from prison in about 1956. He died on 18 April 1997. His widow, Eileen Connolly, is now the applicant in the reference which has led to this appeal.
10.
Before his death Connolly, then a hotel doorman, met a businessman who was a guest in the hotel where he was working. That was in the middle of 1991. The businessman was Mr Luigi Santangeli, who as a teenager had tried to attend the joint trial in Liverpool, but failed because of the great number of people queuing to get in. As a result of what he was told by Connolly, Mr Santangeli resolved to research the case. Connolly had said that neither he nor Kelly had been involved in the murders. Mr Santangeli believed him and felt he had a responsibility to bring the matter into the public domain. Later that year he obtained access from the police to the case papers. Among them he found the original manuscript and a typed version of Graham’s first statement. A visit to the public records office in July 1994 produced the notice of additional evidence dated 12 January 1950 relating to Graham’s second statement. Also in 1994 he visited the cells in Walton Prison where Kelly and Connolly had been kept on remand awaiting trial. At his request recordings were made of interviews with Connolly conducted in August 1993 and October 1994 by Mr Roger Phillips and Mr Roger Wilkes respectively, both BBC journalists: the transcripts of those interviews are among the material which has come before this court as a result of the CCRC references.
11.
Also among that material are the statements and additional statements of Northam and Dickson made on 29 September and 10 October 1949. These were not mentioned in the judge’s summing up of the re-trial and do not appear to have been disclosed to the defence: although the defence may have known of their existence there is no sign that they knew of their contents. The significance is that a comparison of the earlier statements with the additional statements, and of the statements as a whole with evidence given at committal and at trial, may have affected those witnesses’ credibility.
12.
The grounds of appeal in the case of Kelly are that his conviction is unsafe because (1) Graham’s first statement was not disclosed; (2) Northam’s and Dickson’s statements were not disclosed; and (3) Kelly’s retrial was severed from that of Connolly’s without just or legal cause. The grounds of appeal in the case of Connolly are that his conviction is unsafe because (1) his guilty pleas were induced by duress of circumstances and/or oppression such as effectively denied him a free choice in making his plea; and (2) the first statement of Graham and the statements of Northam and Dickson were not disclosed.
13.
On behalf of the Crown, Mr Pownall QC accepted the authenticity of Graham’s first statement and that even under the duties of disclosure which applied in 1949 it should have been disclosed and was not. Furthermore he accepted that its disclosure would have been likely to have undermined the integrity of at least Graham and CI Balmer, that the importance of Graham’s evidence was accurately reflected in the deputy DPP’s letter (see para 6 above: “but for the evidence that Graham gave…Kelly would not have been convicted”), and that the integrity of CI Balmer was also of paramount importance. He said: “If Graham’s account had been severely undermined by reason of his earlier account, an already weak case became significantly less compelling.” In these circumstances the Crown felt unable to argue that the remaining evidence was of such quality or strength as to permit submissions that the conviction of Kelly was safe. Nevertheless, Mr Pownall submitted that if this had been a modern case, and Kelly were alive, the Crown would have sought a re-trial.
14.
In the circumstances, Mr Pownall did not address the two other grounds in Kelly’s appeal at length. He submitted, however, that although the defence were aware of the fact that both Northam and Dickson had made statements to the police, they either chose not to see them or asked and were refused. Nevertheless, he accepted that they were clearly disclosable and should in fairness have been disclosed, and that if they had been, the defence would have been able still further to undermine the prosecution case. He submitted that if these further non-disclosures had stood alone, the conviction would have remained safe: as it was, they added significant weight to the principal ground of appeal.
15.
As for severance of the re-trial, Mr Pownall accepted that no proper basis existed for it, but again submitted that the fact that Kelly stood trial alone would not of itself have rendered the verdict unsafe.
16.
The Crown therefore did not seek to uphold the conviction of Kelly for murder. It did, however, seek to uphold Connolly’s convictions, on the ground that his pleas of guilty were unequivocal, freely tendered and not attributable to undue pressure. Nor, it was submitted, were they founded upon any understanding that there was no other material (the undisclosed statements) capable of undermining Graham, Northam or Dickson’s evidence. Moreover, the application to sever his trial from Kelly was made by his own counsel, in his presence and thus presumably with his authority.
17.
At the hearing of these appeals we decided that they should both be allowed. We gave brief reasons at the time, while reserving our fuller judgment. We said (inter alia):
“Although there was other significant evidence in [Kelly’s] trial, in particular the evidence of the witnesses Northam and Dickson, who said that Kelly and Connolly had in their presence planned the robbery of the Cameo Cinema and had later confessed to what had happened there, in the case of Kelly that he had fired the fatal shots and in the case of Connolly that he had stood outside when Kelly went into the manager’s office, both of those witnesses, Northam and Dickson, were treated as accomplices and the judge, Cassels J, directed the jury that they should be cautious about convicting Kelly without corroboration. He also directed the jury that they could find corroboration in the evidence of Graham. If Graham’s earlier statement implicating Johnson had been disclosed, Kelly’s counsel could have made effective use at trial of the oddity that in September 1949 Graham had implicated Johnson and in November 1949 had implicated Kelly (and Connolly) as the Cameo Cinema culprits. The defence might well have been able to discredit Graham’s evidence in the eyes of the jury, and in doing so, might also have been able to call into question certain aspects of the police investigations and evidence…
“The Crown’s case against Kelly was entirely circumstantial, lacked any forensic support, and rested essentially on the evidence of Northam, Dickson and Graham. The Crown recognised at the time that Graham’s evidence had made a significant contribution to Kelly’s conviction, and Graham was promptly rewarded by his immediate release from his then current sentence. The jury at the first joint trial of Kelly and Connolly had been unable to agree a verdict. The Crown acknowledges that the failure to disclose Graham’s earlier statement was in breach of the Crown’s obligations, even as the law recognised them to be at the time.
“We therefore agree that the Crown’s failure to disclose Graham’s earlier statement renders Kelly’s conviction at his retrial unsafe. Unfortunately, Kelly was sentenced to death and, after losing his appeal, hanged.
“In the case of Connolly, the matter is complicated by the fact that his trial was severed from that of Kelly. If it had not been, as it should not have been, Connolly may well have been convicted as well, although his case was different since the Crown did not allege that he had been in the manager’s office at the time of the murders. Following Kelly’s conviction at his retrial, however, Connolly pleaded not guilty to murder, but guilty to new charges of robbery and conspiracy to rob which were added at the last moment to the indictment. The question is whether Connolly’s pleas of guilt to the robbery charges are undermined so as to render his convictions on those charges unsafe in the light of the Crown’s failure to disclose Graham’s earlier statement and also in the light of the circumstances in which those pleas were tendered. The Crown has submitted that those pleas were entirely voluntary and that those convictions remain safe. We disagree. Once Kelly’s conviction has been declared unsafe for the reasons stated above, it is in our judgment unrealistic to regard Connolly’s convictions, albeit in terms of robbery rather than murder, as safe. If Kelly cannot safely be regarded as the murderer, Connolly cannot safely be regarded as his accomplice in a case where the evidence against the two was essentially the same and came from the same sources. If anything, the evidence against Connolly was weaker. Kelly’s conviction, moreover, had been obtained in part by reason of the non-disclosure of Graham’s statement. Connolly’s convictions, although the product of pleas of guilt, can themselves be said to be founded in part on the Crown’s failure to make proper disclosure of the Graham statement as well as on the unenviable position of Connolly who, despite the earlier maintenance of his innocence, had to face up to the fact that Kelly had been convicted and sentenced to death. In those circumstances his own counsel said, in mitigation, that he had advised him to plead guilty on the terms available to him. Had Graham’s earlier statement been available, Connolly’s counsel’s advice may well have been very different. ”
18.
We turn to a fuller and more detailed explanation of our reasons for allowing the appeals of both Kelly and Connolly and quashing their convictions.
The murders
19.
The murders took place at about 9.35 pm on the night of Saturday 19 March 1949. Witnesses who heard the gunshots said variously that they occurred at times between 9.32 and 9.40. Eye witnesses among the staff who saw the gunman leave but could not identify him, described him as wearing a brown overcoat with a belt, a trilby hat pulled down over his head and a black silk scarf masking the lower part of his face. The Home Office pathologist’s evidence is significant. Dr Grace said the manager had died from a single bullet wound (which entered the body on the left side of the chest), but that the assistant manager had been shot three times: once through the palm of the right hand (consistent with the hand being raised in an attitude of self-protection), once into the chest by the collar-bone and out again following a superficial course, and thirdly, the fatal shot, in the back. That third shot struck a rib and “went right down through the body and through the liver, causing death, and lodged on the inside of the top of the thigh”. This caused Dr Grace to consider that Mr Catterall was probably on his hands and knees at the time.
20.
Another witness, Dr Firth, who gave evidence concerning the murder weapon (which was never found) said that the cartridge cases found at the scene revealed that the bullets had undoubtedly been fired from an automatic pistol.
21.
The murderer appears to have known the cinema well enough to get to the manager’s office, and to cut the wires of a telephone from which the staff sought to raise the alarm.
22.
One of the cinema staff who saw the gunman leave was the cinema fireman. He saw the gunman come out of the manager’s office with the gun in his hand.
Johnson’s role
23.
As stated above, Johnson was prosecuted as being an accomplice after the fact, but was acquitted on the direction of the judge. He immediately thereafter was said by Graham to have confessed in prison to being the actual gunman. Johnson’s confession to the police was ruled inadmissible because he had been promised bail (in the hope that he would lead the police to the murderer): indeed, a policeman had stood surety for bail.
24.
Johnson’s (unsigned) statements to the police were to the effect that he had gone with the gunman to the cinema earlier in the week to reconnoitre the place (and that he was in any event familiar with the cinema) and had been shown the gun (which he drew, a picture of an automatic pistol), and had arranged to meet the gunman again outside the Boundary Hotel a short distance from the cinema at 10.45 pm on the Saturday night. While waiting there, a policeman had checked his identity card (a fact later verified by PC 247, PC Thompson): after which the gunman had approached him and given him the gun to conceal, which he had done. In a police report dated 16 May 1949 made by Chief Inspector Morris, reference is made to the statement of PC Thompson to the effect that he had seen a man outside the Boundary Hotel at 10.15 on the night of the murders. The man appeared uneasy and was looking around him. The officer asked what he was doing and was told that he was waiting for someone. The officer then asked him for his identity card, which was produced; but no note was made of it at the time. CI Morris’s report comments that, although it would seem that Johnson planned to plead not guilty, as far as could be checked everything said by him had been found to be true. According to a further detailed report concerning the police efforts to solve the crime and Johnson’s trial made by CS Smith dated 22 June 1949, PC Thompson testified at Johnson’s trial to speaking to a man whom he identified as Johnson. The report also refers to the statement of a prisoner, Bernard
McBride, who said that while in custody Johnson continually reiterated his knowledge of the crime, the murderer and where the gun was concealed.
25.
Johnson was acquitted on 15 June 1949. Graham’s first statement, dated 15 September 1949, said that in the week before his trial, after a visit from Johnson’s counsel, Miss Rose Heilbron KC, Johnson told him that she had advised that everything turned on legal argument, and that if she failed on that, he would get life. He said: “Well, if it fails I’m going to tell the truth and go into ‘High Wing’ [ie the condemned cell], I couldn’t do 20 years in here.” After his acquittal, however, “he was in great spirits and has been ever since” and spoke often of how he had committed the murders. The statement continued:
“He said, ‘I had the place lined up for some time. I often used to go there. Anyway on this night I went up to the manager’s office…When I asked them for the cash one of them went for me so I let him have it right away. The other fellow then went for me so I put a bullet in him too but it went into his neck and he dropped to his knees and turned over. The first was killed right away and I thought to myself well, this bugger might recognize me, so I shot him in the back to finish him off. I put three bullets into him before he went out, but the first chap went out when I put the first in him…as I was going out I bumped into the fireman by the top of the stairs. How that fellow didn’t recognize me I don’t know…
“I ran out but funny enough I didn’t like to leave the district. I mooched around and then to finish it off I was stopped by a copper. He asked me for my identity card and I thought he was going to search me but he didn’t. If he had I was finished because I had the gun on me then. Anyway I went and got rid of it right away…
“He also told a prisoner named McBRIDE that he’s done it.
“I am willing to give evidence any time you want.”
26.
Following the submission of this statement to the CCRC, forensic investigations were carried out into its authenticity. An original handwritten statement and a typed copy were examined. The conclusions were that they were genuine and they are acknowledged by the Crown to be so. The typed copy states that it was taken by CI Balmer.
27.
It is plain from the joint trial and Kelly’s second trial, and acknowledged by the Crown, that the statement was not disclosed. The Crown’s acceptance that its non-disclosure renders Kelly’s conviction unsafe is made irrespective of the motivation of such non-disclosure. Mr Pownall submits that its survival, together with CI Balmer’s report on it dated 17 September 1949 which was itself seen and countersigned by CI Balmer’s superiors, indicates that there was no conspiracy or bad faith involved. The non-disclosure of the statements of Northam and Dickson as well may simply suggest that there was a practice of non-disclosure of statements: even though it is conceded that even at that time the obligation of disclosure of such statements in the interests of fairness already existed. Nevertheless, when the evidence of Graham at both trials and of CI Balmer at the first trial (see para 4 above) to the effect that the two had not met in the context of the case prior to 19 September is taken into account, and in the absence of any explanation for such testimony, the conclusion that such evidence amounted to deliberate concealment becomes at the least highly likely.
28.
The importance of such non-disclosure is not in dispute, and that significance is enhanced if non-disclosure is viewed as concealment. The mere fact that Graham allegedly received confessions of the murders from two different sources would of itself have cast doubt on the totality of his evidence. So would his inaccuracies or lies about his first meeting with CI Balmer, just as the latter’s evidence would have been similarly undermined. Of particular importance, moreover, are the details of the shootings described in Graham’s first statement. From where did Graham get those details? It is not suggested that they were available in the press. They more or less accurately reflect Dr Grace’s testimony. Graham could only have got them from Johnson or the police. Johnson could only have got them because he knew the gunman or was himself the gunman. Some of them emerged again in Northam’s evidence (see below). Northam said that he met Kelly on Monday, 21 March (two days after the murders) and that Kelly then told him what had happened in the manager’s office: he had shot the manager (once) when another man walked into the room, who, after he had also shot him, “fell to his knees” and was then shot again. Without any knowledge of Graham’s first statement, this evidence from Northam was naturally viewed as highly probative. The judge himself understandably stressed this evidence at the very end of his summing-up, linking it with Graham’s evidence of Kelly’s confession to him, when he said:
“ “He fell to his knees” – according to Dr Grace the bullet that killed Catterall, the assistant manager, entered his back, struck his rib, went right down the body and went through the liver on the way down and was finally found on the inside of the thigh. Was Catterall shot while he was on his knees? Who knew that? Only one person. Has Graham imagined his evidence? If you have a reasonable doubt, you will find him not guilty. If, upon the evidence, you come to the conclusion that George Kelly is the man who, on that night of March 19
th
of last year, shot that cinema manager, Leonard Thomas, and thus brought his life of 44 years to an end, you will find him guilty. Will you now please consider your verdict.”
29.
If Graham’s first statement had been disclosed, the judge could not have ended his summing-up in this way. The implicit reference to Kelly as the “Only one person” who could have known that Catterall was shot while he was on his knees could not have been made. On this point alone Northam’s evidence would have been scrutinised with knowledge of what Graham had said in his first statement as to what Johnson had allegedly told him. Moreover in this respect Graham’s evidence as corroboration of Northam’s would have suffered a double blow: both because of Graham’s own first statement, and because Northam’s reference to Catterall being on his knees would have lost its power and become suspect in itself. We will revert to some further difficulties about Northam’s and Dickson’s evidence below.
30.
Graham’s first statement was made before the committal proceedings and thus its details could not have been obtained from press reports. In addition to the details of the shootings which correspond to Dr Grace’s findings, statements of PC Thompson, of the fireman (Joseph Griffin), and of the prisoner McBride were consistent with or confirmed details of Johnson’s alleged account to Graham.
Graham’s second statement
31.
It appears that there was no such second statement as a document in itself, at any rate none has been found, and that is so despite CI Balmer’s evidence that Graham had signed a statement. Instead it appears that Graham’s ultimate evidence was based on the notice of additional evidence served on 12 January 1950, which is itself drafted in the form of a statement. Thus it begins: “TAKE NOTICE that upon your Trial an additional witness will be called of whose evidence the following is a copy: ROBERT GRAHAM, 16 Charlotte Street, Preston, says:…” It also appears that this additional evidence came forward as a result of (at least) three interviews between Graham and CI Balmer on 21, 23 and 28 November 1949. There are no immediate records of those interviews, but there is a report by CI Balmer dated 30 November 1949 which purports to set out verbatim what Graham said, and from which it appears that their first meeting was on 21 November and not 19 November as CI Balmer had said at the first trial and Graham had said at both trials. An oddity is that in the joint trial CI Balmer gave evidence that he saw Graham on 19 November and that Graham then began to make a statement, but something happened and he left over the statement until 21 November, and then had seen Graham twice more – so, all in all, four meetings. The report, however, refers only to three meetings.
32.
Thus the report states that on 21 November CI Balmer received a telephone call from the Preston police to tell him that Graham, then in Walton Prison, wanted to see him about the Cameo murders; and that the other two meetings were also at Graham’s request. The effect of Graham’s second statement and evidence was that he, Kelly and Connolly were in separate cells in the prison’s hospital. Kelly and Connolly could not communicate with each other from their cells and were not allowed to exercise together, but he, Graham, exercised with each of them on alternate days. They used him to pass messages to each other, and to find out what the other was going to do. He had not known either of them before. He met Connolly first, on 14 November, when Connolly told him what he was in for, but that he had nothing to do with the murders “other than being in the same company with the fellow that did it”. He then explained that he was in a pub with Kelly, Northam and Dickson and they decided on a job at the Cameo and he went there with Kelly and Kelly did the shootings, while he stayed outside the door. Next day Graham spoke to Kelly. Kelly said he borrowed a coat from Northam, that he shot the fellows but Connolly would not go in; then he got rid of the hat and coat and “was in my pub having a drink five minutes later. My life hangs on that five minutes”. The next day Graham met Connolly again. Connolly complained that Kelly had foolishly pretended on the day of their arrest that they did not know one another. Graham also said that Kelly told him that when he and Connolly met up at the Star pub on the day after the murders (Sunday 20 March) he called Connolly “a yellow bastard” and told Northam that he would give him back his coat the next day; also that on the day of his arrest, he had gone to see CI Balmer about an entirely different matter “and the next thing I was told was that I was going to be charged with murder”.
33.
CI Balmer commented in his report that Graham had told him things “which were not known to any members of the public, and were not referred to in any press reports. These facts were solely known to Ch. Supt. Smith, myself, and the prisoner who uttered them. It is obvious, therefore, that GRAHAM is telling the truth.” CI Balmer then identified these facts, of which there were three: (i) Connolly said that he had sent for CI Balmer soon after his arrest, but changed his mind about saying anything and made an excuse; (ii) Connolly said that on the day before the murders he had just drawn £15 in wages; (iii) Kelly’s comment about the circumstances of his arrest (above). CI Balmer’s reference to press reports was relevant, since Graham was on remand without loss of privileges and had access to newspaper reports about the committal proceedings.
34.
At Kelly’s retrial Cassels J summed up Graham’s evidence in very much the terms found in CI Balmer’s report and in the notice of additional evidence.
35.
Kelly at both his trials and Connolly at the joint trial each gave evidence denying any such conversations with Graham. Kelly said that they had no need to use him to pass messages between them, since they could communicate with each other from their respective cells without difficulty. This was a matter investigated by Mr Santangeli on his visit to the hospital wing at Walton Prison, then in the same condition as in November 1949. Kelly’s and Connolly’s cells had been identified at the trials. In his statement to the CCRC Mr Santangeli said that he, Mr Bill Morrison (playwright) and the assistant governor had conducted an experiment and found that communication between the cells was possible without shouting, albeit at a voice pitch above normal conversational level. The Crown accepted that, contrary to Graham’s evidence, it was possible for Kelly and Connolly to speak to one another from their respective cells. Although a subsidiary matter, and evidence which clearly could have been obtained for trial, this is a further pointer to the unsatisfactory nature of Graham’s second statement when once that is viewed in the light of the non-disclosure of his first statement and his false evidence which concealed the occasion of its making.
Northam’s and Dickson’s evidence
36.
We have already referred to the Crown’s acceptance that Northam’s and Dickson’s statements were not disclosed to the defence, although the existence of at any rate their first statements, those made on 29 September 1949, was known.
37.
The full history of Northam’s and Dickson’s roles in the case is complex, and since the Crown accepts that Kelly’s conviction is not saved by their evidence we do not think that it is necessary to set it out in full. Nevertheless, as briefly as we can, the position is as follows.
38.
At the trials Northam and Dickson gave evidence directly implicating Kelly and Connolly both in the planning of the Cameo cinema robbery on the evening of 19 March at the Beehive pub and in subsequent confessions, for instance on Sunday 20 and Monday 21 March, as well as about the lending by Northam to Kelly of Northam’s coat, and other incriminating matters. If that evidence had come forward from entirely independent witnesses and did not suffer from certain defects which we will seek to set out, it might have been considered to be powerful material. As it was, they were rightly regarded as accomplices on whose evidence Cassels J had to direct the jury that it would be dangerous to convict without corroboration:
“Let me warn you that it is dangerous to convict a prisoner on the uncorroborated testimony of accomplices, although it is within your province to do so if you choose…The evidence of one accomplice cannot be corroborated by another…But a prisoner’s conduct in the circumstances of the case may be corroboration. Graham’s evidence, if you accept it, may be corroboration, because you may think it strengthens the other evidence. That is a matter for you. Whatever description may be given to Graham – and you may think that he has laid himself open to many – but whatever description is given to that man, he cannot be described as an accomplice. A description of the coat worn by the murderer that night may also be corroboration. That again is a matter for you.”
39.
Apart from the last throwaway line about the coat, the judge focussed upon Graham’s evidence as the possible corroboration; and it was to Graham’s evidence that the judge returned, as set out above, in the closing lines of his summing-up.
40.
On 4 April 1949 the police received an anonymous letter from someone who wrote that they were “turning informer for gain”. The letter said that the writer and others including a girl had heard about the murderer’s plan for the robbery: in the end “only two went” and one of them lost his nerve and would not go in and “has not been seen since”. The writer had seen the murderer “5 days ago” and was told that he was “in it with him”: therefore “what I want to know is how I stand…if I turn King’s evidence.” As proof of truth the writer said that the gunman had thrown the gun in the pond in the park on Edge Lane. (The pond was subsequently dragged, but no gun was found, although CI Balmer said that he considered that it could still be buried there in the mud.) The letter asked for a reply via the personal column in The Echo, and offered “both there names also some of the bullets he left with me”, provided a promise of immunity was given. The police responded as asked, but heard nothing further. The letter is referred to in the report of CS Smith dated 22 June 1949, following the failure of the Johnson trial.
41.
The same report states that at some time after the letter was received Dickson “appeared on the scene” and stated that the letter had been written by Connolly. He was therefore interrogated, but he ridiculed Dickson’s allegations and “his alibi appeared to be perfect”. Dickson then disappeared. Her partner was Northam. The rest of the report is concerned with Johnson and his trial.
42.
The anonymous letter was in evidence at the trials. Northam and Dickson said it had been written by themselves and contained both truth and lies.
43.
It appears from the evidence of CI Balmer at the retrial that on 13 May 1949 Dickson “sent for” him. On that occasion she said nothing about Kelly, and nothing about the meeting at the Beehive on the evening of 19 March or any other meetings with Kelly or Connolly. She merely told CI Balmer to see Connolly. CI Balmer did not say that she told him that Connolly was the writer of the letter, as CS Smith’s report had it. CI Balmer therefore saw Connolly, but got no information from him. He saw Dickson again on 16 May, and she told him “I told you to get Connolly; let him talk. If the gang want to get anybody, they can get him, not me.” CI Balmer then said he saw Dickson a third time on 23 May: she again said nothing about the Beehive.
44.
In the meantime the police were concentrating on Johnson, from 2 May, when he was seen for the first time, until his acquittal on 15 June.
45.
Then on 29 September 1949 both Dickson and Northam made statements. They had been promised immunity. At the retrial CI Balmer said this was the earliest date he learned from those witnesses about Kelly being involved in the murders.
46.
Northam’s statement of that date began by saying “I want to tell the whole truth about the Cameo Murder…” He related how on the evening of Saturday 19 March he and Dickson had met Kelly and Connolly in the Beehive. They discussed possible robberies. One venue mooted was a funfair, where Kelly said they would have to cut the wires – Northam said he saw the two prongs of a pair of pliers sticking out “when his coat or mac was open”. It was Connolly who first mooted the Cameo, adding that a gun (or dummy) would be necessary. Kelly then pulled out a gun and a handful of bullets and loaded the magazine. Northam refused to go along with them. He and Dickson went home. On the next day, Sunday 20 March, the murders were in the papers, but “Jacky [ie Dickson] and me stayed in Birkenhead all day.” On Monday, 21 March, Northam met Kelly outside the Palais de Luxe. They discussed the murders, and Kelly accused Connolly of letting him down – “he’d got scared and was yellow”. He described the shootings, first the manager (“I shot him”) and then the assistant manager who came in at that point (“I saw red then and shot him once. He dropped on his knees and said something to me and so I shot him again…”). He could not open the door and so shot the lock off. He ran off, and Connolly was nowhere to be seen. Later Northam got worried and wrote the anonymous letter and gave it to Dickson to post: but he was too scared of Kelly to answer the police’s personal advertisement in The Echo.
47.
It may be observed that there is nothing in that statement about lending Kelly his coat; nor about its return; nor about meeting Kelly and Connolly on Sunday 20 March. The reference to the pliers sticking out “when his coat or mac was open” was an oddity. Mention of pliers was relevant, for the cinema’s telephone wire had been cut, but nothing was said about this during his evidence at trial, and talk of “his coat or mac” did not suggest the lending of Northam’s own coat.
48.
The omission about the coat was dealt with in Northam’s statement of 10 October 1949. He said Kelly asked him to lend it to him “as he was cold”, which he did. Kelly left the pub wearing it “with the belt fastened around him”. Kelly showed a woman’s small brown apron which he said “would do for a mask”. At their meeting on Monday 21 March Kelly said he would fetch the coat and returned with it within 15 minutes. Northam handed to the police an overcoat on 10 October, which he said was the coat in question, “but I cannot now find the belt off it. It has the belt loops on it.” (The overcoat was recovered from the home of Kelly’s parents.) He also said that on the Monday Kelly told him both that the gun was in the soil in the park and that it was in the lake. There was still nothing about a meeting on Sunday 20 March.
49.
In her statement of 29 September Dickson gave similar evidence about the conversation “in a passage” in the Beehive on the Saturday night. She too said nothing about the lending of a coat, and nothing about a further meeting on the Sunday: Northam and she stayed in Birkenhead. On the Monday she went with Northam to Liverpool, left him at Lime Street, and when she met up with him again, he told her he had met Kelly. A few days later she met Connolly, and he had given her a handkerchief filled with bullets: when she showed them to Northam, he kept six and later gave them back to her, and she threw them down a drain. About two weeks after that she saw Connolly again, and he then told her that he and Kelly had gone to the Cameo, and he waited by the door when Kelly went inside. He ran away when he heard a shot. She posted the anonymous letter to the police which Northam had written. In the final paragraph of her statement she said that in the Beehive on the night of the murders Kelly had been wearing “a dark raincoat or overcoat with a belt around it”. However, Dickson also made a brief further statement on 10 October in which she said that Northam lent Kelly his overcoat as Kelly was cold, and she identified the overcoat that Northam had provided to the police as the overcoat in question, save that on 19 March it had had a belt which Kelly had fastened. She also said that before Kelly had left the pub that night he took a trilby hat “from his jacket pocket” and also showed them a small brown apron which he said would do for a mask. However, like the evidence about the pliers, the evidence about the trilby hat was not advanced either at the committal or at the trials. Those omissions suggest that not even the prosecution had access to Northam’s and Dickson’s statements.
50.
It was only at the committal proceedings, which took place from 19 to 22 October 1949, that Northam and Dickson said that on Sunday 20 March they had not stayed at home in Birkenhead but had gone, by arrangement made the previous evening, to meet Kelly and Connolly at a pub in Brownlow Hill in Liverpool (the White Star). Connolly was scared and talking of leaving the country. Kelly, however, acted confidently and said CI Balmer had been to see him at home that morning (which had in fact happened) and that he had a good alibi. He called Connolly a yellow bastard, and threatened him (and Northam and Dickson). Northam asked for his coat back, and Kelly said he would fetch it the next day. Dickson also said that Kelly advised Connolly to get himself an alibi, and Connolly said he would figure one out with his wife.
51.
These developments in the accounts of Northam and Dickson were obscured in the evidence given at the retrial by reason of the non-disclosure of their statements. Thus at the joint trial CI Balmer had said that he had first taken a statement from Northam and Dickson on 29 September. At the retrial Northam said that he had first told the police about the Beehive meeting (Saturday evening) and the White Star pub meeting (Sunday) and the Lime Street meeting (Monday) in September, but had omitted any mention of lending his overcoat until 9 or 10 October. That last fact appears to have been known to Miss Heilbron, cross-examining on behalf of Kelly, but it is not clear how she came to that knowledge. It may be that it emerged as a result of Northam’s production on 10 October of the overcoat to the police. In re-examination by Mr William Gorman KC, who was leading for the Crown, there was this passage:
“Q. On the 29
th
September when you gave that statement to the police did you then omit anything at all of what you have given in evidence, either before the Magistrates or here? A. Nothing at all – just the overcoat.”
52.
That demonstrates that even prosecuting counsel was not aware of the contents of the 29 September statements. Northam’s answer, like his answer in cross-examination, was also a lie, so far as concerned any mention of the meeting on the Sunday at the White Star. So it was that the judge summed up this part of his chronology as follows:
“September 29
th
: Northam gives all the details to the Police except about the overcoat … October 10
th
: the coat handed to the Police.”
53.
CI Balmer in his evidence also obscured the same point. Miss Heilbron asked:
“Q. Would you tell my Lord and the Jury what was the earliest date you learned from Northam and Dickson about Kelly being involved in this murder? A. The 29
th
September.
“Q. What was the date you heard of the Beehive? The same date.
“Q. And the interview on the Sunday? A. Well, I take it about the same date.
“Q. And the Monday in Lime Street? The same date…
“Q. The first you learned of the overcoat was October 10
th
? A. Yes.”
54.
Thus CI Balmer deliberately, as it would appear, obscured the point that not only had the evidence about the Sunday meeting at the White Star not emerged at the time of the first statements, but that those statements positively asserted that the witnesses had stayed at home in Birkenhead all day. CI Balmer was, however, well aware of the late appearance of the meeting at the White Star on Sunday, for on 26 October 1949, a few days after the committal proceedings, he wrote a report about it to CS Smith. In it he referred to his earlier report of 12 October and stated that since that time Northam and Dickson had “recalled a further meeting”, and he set out their further evidence. He also stated: “The additional information was given to us by the witnesses NORTHAM and DICKSON prior to the Court proceedings and was embodied in their statements.” However, no supplementary or refashioned statements have been found.
55.
Two further points about the late appearance of evidence about the Sunday meeting may be mentioned. One is that, in the absence of any mention of it, Northam has his next meeting with Kelly, that in Lime Street on the Monday, as being the occasion when Kelly told him about the murders. If, however, they had met on the Sunday, it would have been more likely for that conversation to have occurred on that day rather than on the Monday. Secondly, part of Graham’s second statement has Kelly make reference to the Sunday meeting: how he had met Connolly and Northam at the Star on that day, and arranged to return the coat, and called Connolly a yellow bastard. The link between a vulnerable part of Northam’s and Dickson’s evidence and material contained in Graham’s second statement (made of course in November 1949 and thus after the committal proceedings) magnifies the potential consequences of the non-disclosures on the fairness of the trial and the safety of Kelly’s conviction.
Kelly’s evidence
56.
Kelly gave evidence in his defence at both trials. He said that on the evening of 19 March he was in the Coach and Horses (some distance from the Beehive) with a man called Skelly, and later had been in the Leigh Arms, then at the Spofforth Hotel, and then back to the Leigh Arms and was there at the time of the murders and until closing time. The licensee of the Leigh Arms, Frederick Thomalla, who was called by the defence, said he saw Kelly, who was a regular, enter the premises at 9 pm, without a coat or a hat. The licensee of the Spofforth Hotel, a Mr Ellis, another prosecution witness, said he saw Kelly in his pub between 9.15 and 9.25 pm, again without coat or hat. Another prosecution witness, the barmaid Edna Bore, saw Kelly at the bar of the Leigh Arms at 9.45 pm. The clock at the Leigh Arms was set ten minutes fast. Kelly called two brothers, Reginald and Walter Brampton, to say that he was back at the Leigh Arms by about 9.30 pm.
57.
The prosecution case was that Kelly had sufficient time to obtain the overcoat and hat from wherever he had stowed them, commit the murders, discard the coat (and put it or hide it somewhere safely, for on the prosecution case it was returned to Northam), and dispose of the gun in the park, some distance away, and arrive back at the Leigh Arms by 9.45 pm.
58.
In this connection the evidence of Mr Thomalla, the licensee, was important, for he said he saw Kelly at the Leigh Arms both before and after the murders. Mr Thomalla was a former police officer, who had given a statement to CI Balmer. At the retrial he said that the second time he saw Kelly was at 9.50 pm in the buffet, again in a suit, his usual clothes, not a coat. He was cross-examined by Mr Gorman for the Crown. Mr Gorman put to him his signed statement, which read: “I am quite definite that George Kelly was not in my house at 9.30 p.m. on the night of the Cameo murder, but he was in the buffet at ten to 10.” Mr Thomalla told Mr Gorman that he “could not say it is true” and denied making that statement to CI Balmer. He said that what he had told CI Balmer, when he was asked by him if Kelly was in his pub at 9.30, was “Not to my knowledge”. Mr Gorman pursued the point:
“Q. Why did you sign it? A. At the moment I signed this I was in a motor car, and I did not notice the word “definitely”.
Q. What did you, a police officer of 23 years’ service, think you were signing? A. I signed that statement going along in a motor car.
Q. Do you say you did not read it? A. I did not read it.
Q. When did you decide that he may have been in at half past 9? A. When I told Mr. Balmer.
Q. Then why did you not say to Mr Balmer: “I am not sure about it; he may have been in or he may not have been “? A. When I signed that I did not read it. I thought Mr. Balmer had put in “to my knowledge”.”
59.
The strange discrepancy that has now emerged by reason of the material which has come forward as a result of the CCRC references, to which Mr Pownall himself has drawn attention in his skeleton, is that in a draft unsigned statement for Mr Thomalla dated 4 October 1949 which CI Balmer has referred to in and attached to his report dated 12 October 1949, Mr Thomalla is represented as saying
not
what was in his signed statement
but
the following:
“Although I saw Kelly about 9.0 p.m. and again just before closing time,
I cannot say whether or not he was in the house between those times
. It would have been easy for him to leave between those times and I certainly did not serve him with any other drink” (emphasis added).
60.
We are not sure whether Mr Thomalla made two statements and stuck to his first rather than his second (as Mr Pownall submitted), or whether Mr Thomalla’s remarks to the police were first drafted in one form and then drafted in another, in the form which he ultimately signed – in a motor-car. We would rather infer from the evidence which he gave at trial and the material we have seen (and we have not seen any signed statement) that the latter is what happened.
CI Balmer’s role
61.
The death of CI Balmer and thus the unavailability of any new evidence from him, or indeed from any other member of the police team investigating the Cameo murders, concerning the matters on which the appellants rely render the task of this court in assessing his role in the investigations and at trial difficult and troubling. The Crown accepts that on any view of the reason for the statements’ non-disclosure, even mere inadvertence, Kelly’s conviction is unsafe. It does appear, however, that, in addition to the non-disclosures, CI Balmer’s evidence was tailored to conceal both the fact that he had in September 1949 taken Graham’s first statement and the fact that Northam and Dickson had changed their account in relation to Sunday 20 March. Moreover, both Graham and Northam similarly concealed the same respective vulnerabilities concerning their evidence, apparently confident that the truth would not emerge.
62.
As the Crown acknowledged, the integrity of CI Balmer was of paramount importance in the case. His evidence challenged Kelly’s alibi at several points, such as his account of what Kelly had said to him, when he visited him at his home on 20 March, about his whereabouts the previous evening. CI Balmer’s evidence was in turn challenged in cross-examination by Miss Heilbron. In this connection the discrepancy about Mr Thomalla’s statement is again relevant. CI Balmer was concerned with the close timings of the evidence about Kelly’s alibi and referred to them in his report of 26 October. He there pointed out that the Leigh Arms was an eight minute walk from the Cameo, and he discussed the timings of various sightings of Kelly at that pub.
63.
In the circumstances we agree with Mr Pownall’s acceptance on behalf of the Crown that the matters identified before us must raise at the very least the strong possibility that proper disclosure might have undermined not merely Graham’s evidence, but also the integrity of CI Balmer which was itself central to the prosecution’s case.
The splitting of the retrials
64.
The joint trial ended on 28 January 1950 without any verdicts. On 30 January The Echo published a report that the retrial would take place at the next assizes commencing on 31 January. On that day Miss Heilbron, for Kelly, appeared before Oliver J, who had conducted the joint trial, to make an application and was referred to Cassels J. It is clear from the transcript of the hearing that day before Cassels J that an administrative decision had already been made that the retrial would be split for the convenience of counsel. It would seem that this decision was occasioned by the Parliamentary duties of Mr Basil Nield KC, as he then was, who had defended Connolly. Thus Miss Heilbron had to apply for a joint trial, objecting to the decision that had already been taken. She began:
“I understand that this case is to be re-tried separately, that is to say, Kelly is to be tried first. My first point, on behalf of Kelly, is that I object to the re-trial separately.”
65.
Among the reasons she cited was reliance on the authority of R
v. Grondkowski and Malinowski
[1946] KB 369
. The judge asked Connolly’s junior counsel then in court, Mr Clover, what his attitude to Miss Heilbron’s application was. Mr Clover said he had had no notice of it and no specific instructions. The Crown’s counsel, Mr Blackledge, said he had nothing to say on the subject. The judge said he would hear the matter debated on the first day of trial, which he was prepared to postpone until 2 February.
66.
On that day, in the presence of both accused, Mr Edmund Rowson KC, who in the meantime had replaced Mr Nield as Connolly’s leading counsel, asked for a separate trial. Miss Heilbron, for Kelly, asked that the retrial should be a joint one, like the first trial, and developed her reasons. Mr Gorman, for the Crown, merely said that it was a matter for the judge’s discretion “and I do not think it proper to say one word as to the exercise of that discretion”, but, in answer to the judge, he said he offered no objection to a separate trial. Mr Rowson did not volunteer, and was not asked to advance, any reasons for his request for a separate trial.
67.
The judge said:
“The Court has considered the possibility of there being a separate trial in this case. Objection has been taken to that by learned Counsel appearing for the defence of the prisoner George Kelly. Learned Counsel appearing for the defence of the defendant Charles Connolly has formally applied for a separate trial, and learned Counsel for the prosecution says that he takes no part in the matter other than to say that the matter is one for the exercise of judicial discretion.
“In the exercise of that judicial discretion, I direct that there shall be in this case a separate trial, and that the first of the defendants to be tried shall be George Kelly. A separate trial provides a plain issue for the jury concerning the one person to be tried. So far as I read the depositions, they seem to disclose that the two cases for the Prosecution differ in fact and in law in some important respects. A separate trial eliminates any evidence which is not directly against the person tried. I have come to the conclusion that it is in the interests of justice that the jury, in a long case like this, particularly on a re-trial and on a capital charge, should not have to dissect the evidence of individual witnesses and relate it to more than one person under trial. I do not think that the Defence is prejudiced, but, on the contrary, it may well be favoured by a separate trial, in that there will be before the jury no evidence other than that relevant to the issue being tried concerning one prisoner. Witnesses, whether for the prosecution or Defence, will be cross-examined once only, and the jury’s task and recollection will be simplified. I therefore direct, as I stated at the beginning, that there shall be a separate trial, and that that of George Kelly shall be taken first.”
68.
On these appeals, Mr Pownall for the Crown does not seek to support that decision as being a proper exercise of the judge’s discretion but acknowledges that no proper basis existed for the trials of Kelly and Connolly being severed within five days of a jury failing to reach verdicts against either. We think that concession to be rightly made. In
Grondkowski and Malinowski
, which, although cited by Miss Heilbron, the judge did not address, Lord Goddard LCJ said at 371:
“Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be.”
69.
That case involved cut-throat defences, but Lord Goddard went on to emphasise that even in such cases the interests of justice would usually favour a joint trial. The cases of Kelly and Connolly, however, did not involve cut-throat defences, but complete denials: and although there were some differences in the Crown’s case against each, in particular that Connolly was only a secondary party and of course the Crown had to deal separately with the alibis of each, nevertheless in essence the Crown relied on the same evidence and principally on Northam, Dickson and Graham against both. The judge considered that Kelly would not be prejudiced and could even be favoured by separate trials, but it is hard to see the basis for either proposition. The jury would have heard Connolly’s evidence as well as Kelly’s, ie that not only was Connolly not a party to the murders, but he did not plan it with Kelly or go with him to the Cameo; and in general his evidence would have added his contradictions to the evidence of Northam, Dickson and Graham.
70.
What is also disturbing is that it is clear that the original decision in favour of a split trial was ascribed to the convenience of counsel, and yet nothing was said about that by Cassels J in giving his reasons for the exercise of his discretion – even though when the issue came to be debated no reasons had been advanced on behalf of either the Crown or Connolly as to why there should be split trials. In his skeleton argument Mr Pownall accepted that “The reason for ordering separate trials though largely left unsaid in the course of argument appears to have been the fact that Connolly’s Counsel Mr Nield was involved in Parliamentary business”.
71.
Mr Pownall nevertheless submitted that this error would not by itself have rendered the conviction of Kelly unsafe, and that it was, in itself, of no real weight. The test stated by Lord Goddard in
Grondowski and Malinowski
at 374 is:
“The real test, after all, which must be applied by a court of criminal appeal on a matter which is essentially one of discretion is, has the exercise of discretion resulted in a miscarriage of justice? If improper prejudice has been created whether by a separate or by a joint trial – for as we showed at an earlier stage of this judgment prejudice might be caused to one prisoner by ordering a separate trial on the application of the other – this court will interfere but not otherwise.”
72.
This issue was itself raised on Kelly’s 1950 appeal, but rejected. Mr Pownall submits that nothing new has arisen since then to make it proper for this court to take a different view.
73.
We see the force of that submission (even though a transcript of the judgment on appeal is not available); and, since we agree with the Crown’s concession that Kelly’s conviction is rendered unsafe by the non-disclosure of Graham’s first statement (and, in conjunction with that, by the further non-disclosures of Northam’s and Dickson’s statements), it is not necessary for us to form a judgment about the independent effect of the erroneous splitting of the retrials. That, however, is subject to two further considerations. The first, is that we consider that the matter of the splitting of the retrials cannot be divorced from the new material which has emerged about the non-disclosure of the statements: and that viewed in that light, of which this court in 1950 did not have the benefit, the splitting of the trials becomes a material and substantial ingredient in our overall conclusion that Kelly did not have a fair trial and that his conviction is unsafe.
74.
The second, is that on behalf of Connolly Mr William Waldron QC submitted to us that the decision to split the retrials was in truth conditioned not only on the convenience of counsel but on something further, namely an at least incipient discussion of a deal between the Crown and Connolly’s counsel that, if he would plead guilty to robbery, he would be acquitted of murder and receive a sentence of ten years. Indeed, as part of his submissions in relation to severance, Mr Newman QC, on behalf of Kelly, had submitted that there was an irresistible inference that the essence of such an accommodation had already been reached between the Crown and Connolly’s lawyers. Although the severance of the retrials was not a separate ground of appeal in the case of Connolly’s appeal, as it was in Kelly’s case, nevertheless as oral argument progressed it became clear that on analysis Connolly’s ground of appeal to the effect that his plea of guilty was obtained by undue pressure incorporated a complaint that part at least of that pressure was brought to bear on him by reason of the improper splitting off of his retrial. Mr Pownall, on the other hand, submitted that the splitting of the retrials and Connolly’s guilty plea were separate matters, and that just as the latter was unequivocal and voluntary, so the former must have been fully discussed with and authorised by Connolly: and in this connection Mr Pownall referred to the facts that on 31 January Mr Clover said that he had no specific instructions from Connolly, while on 2 February Mr Rowson applied for a split trial in the presence of Connolly. The question, he argued, must have been discussed in the interim.
75.
We therefore turn to the circumstances of Connolly’s plea at his retrial.
Connolly’s guilty plea
76.
Connolly had pleaded not guilty at the joint trial and given evidence in his defence. How did he come to plead guilty to new charges of robbery and conspiracy to rob? Inevitably, the material on this issue now before this court is new. In principle all of it could of course have been before the trial judge. In practice, however, such material inevitably emerges only after the event. In the present case, that material largely consists of the transcripts made from the taped interviews given by Connolly in 1993 and 1994. There is also some correspondence with his trial solicitor, Mr Maxwell-Brown, and an unsigned record of an interview with Mr Maxwell-Brown conducted by Detective Superintendent Semple at the former’s home on 17 January 2003. DS Semple was in charge of the police enquiries which were necessitated by the CCRC references. Mr Maxwell-Brown is now very old and the Crown did not require his attendance at court. Everyone else who might have been able to assist is now dead. Mr Pownall did not formally object to admitting the transcripts, but he submitted, we think rightly, that they should be viewed with the greatest circumspection. He does, however, positively rely on the Maxwell-Brown material.
77.
On 18 December 1991, which is after Mr Santangeli had taken an interest in his case, Connolly wrote to Mr Maxwell-Brown asking him to confirm that “I was advised by Mr Rowson KC to plead guilty”. On 30 December 1991 Mr Maxwell-Brown replied that he was unable to do so and continued:
“After Kelly had been found guilty by the jury on his re-trial for murder, Counsel for the Crown informed Mr Rowson that the Prosecution would be prepared to seek the approval of the trial Judge, to the addition to the indictment against you of a charge of robbery. Also, if you were prepared to plead guilty to the lesser charge, the Court would be asked to consent to the murder charge being withdrawn. We were informed that this proposal had been mentioned to the Judge who had indicated his approval of the matter proceedings in that way.
“Mr Rowson, Junior Counsel and myself immediately arranged to see you at Walton and what had been proposed was explained to you. No advice as to how you should plead to either charge was sought by you or offered by Counsel nor, I have no doubt whatsoever, would experienced Counsel, such as Mr Rowson, even consider doing so.”
78.
There the matter rested, for Mr Maxwell-Brown ended his letter by saying that he regarded the correspondence as closed, until Connolly’s taped interviews. These were extensive and dealt with many matters, but we refer to them only for what Connolly there said about the circumstances of his plea. In the first of them, held on 26 August 1993, Connolly said that after the end of the first trial he did not see Mr Nield again; and that he did not see his new silk, Mr Rowson, until two days before his retrial (which was due to begin on 13 February 1950). In the meantime, although he had been present in court when it was decided to split off his trial, he had not been consulted upon that: “I didn’t have any say in the matter. I was just sitting there.” Then, at the conference two days before his retrial Mr Rowson, Mr Clover and Mr Maxwell-Brown came to see him. Mr Rowson said he had no chance of an acquittal (“The evidence against him [ie Kelly] is against you…”) and sought to persuade him to accept a deal, if one could be made, in order to save his life from the gallows. Otherwise his conviction would be just a formality. At first he refused, asserting his innocence, and then he said he would consult his parents (he was 26), but Mr Rowson said he could not do that, it was between them; and “Good God man…can’t you see I’m trying to save your life?” He asked what he would get, and was told ten years. “I said how do you know I’ll get ten years? He said I know you’ll get ten years and that was it.” Connolly said he’d think about it. In the end, he only finally made up his mind in the taxi going down to court. In court, he was surprised by having put to him an additional charge of conspiracy which Mr Rowson had not mentioned, and he said “Not guilty”: but Mr Rowson turned to him in the dock and said it did not matter, it was a formality, and so he pleaded guilty to that as well. But he was, he said, completely innocent.
79.
Over a year later, on 25 October 1994, Connolly was interviewed again, this time by a different journalist. Connolly’s account of his sole consultation with Mr Rowson was the same; as was his description of his last minute decision and the mix-up over his plea to the charge of conspiracy (Mr Rowson: “it’s immaterial, the sentence is still the same”). But he also went into further detail about his motivation. He was concerned to be reassured that a plea of guilty would not affect Kelly’s appeal. He also said – “I think it’s only fair to say that the strongest instinct in man prevailed and that’s to save my own life.” He told his mother about it and she said “do what you want but I would sooner have you alive than dead”. But he had spent the rest of his life telling people of his innocence.
80.
He was also taken again to the argument about the split trial. He confirmed that he had no say in it all. In the cells, he asked Mr Clover why, if there were to be separate trials, he could not go first, and was told the argument was over.
81.
He was asked about Mr Rowson’s plea in mitigation. The transcript of 12 February 1950 shows the following:
“The difficulty of Connolly became obvious from the moment that a jury had accepted, as one must assume they had accepted, the evidence of Northam, Dickson and Graham. In those circumstances, my Lord, it was obvious to anyone that there would be some difficulty in persuading a jury, as was attempted at the first trial of Connolly, to accept his evidence of an alibi. In those circumstances, my Lord, he has, on my advice and those interested in the Defence in this case, pleaded guilty to the charge of robbery.”
(Mr Pownall submitted that that passage did not amount to a statement by Mr Rowson that he had advised Connolly to plead guilty and so did not confirm Connolly’s evidence that he had so advised him, and in any event did not confirm any degree of pressure.) Mr Rowson continued his mitigation by reference to those passages in the evidence of Northam, Dickson and Connolly which would permit the submission that Connolly’s role was a subsidiary one and that
“he had not the slightest intention or knowledge that violence was going to be used. No doubt the fact that all that evidence was given by those three has induced the Prosecution in this case to accept the plea of not guilty”.
82.
So far there was nothing in Mr Rowson’s mitigation, over and above the plea of guilty itself, to compromise Connolly’s case that he only accepted a plea of guilty to robbery under undue pressure. Towards the end of the mitigation, however, there was this passage:
“To a very great extent I venture to think, my Lord, that the events with which he was mixed up were not really the outcome of his own desire in any way, and he does, through me, for what it is worth, express his very deep regret for having been mixed up in this matter. It is a regret that is not expressed here for the first time, because he expressed it to Graham in Walton Gaol when he told him that he had been a fool to be mixed up with the job.”
83.
It was this passage which Mr Pownall relied on to submit that Connolly’s plea was an entirely voluntary one and that at that time he fully accepted his guilt as a participant to robbery. In his second interview Connolly was asked about this passage. Connolly answered the question rather obliquely by reference to an earlier incident in his life when he struck a doorman at a dance because he would not let him in. He pleaded guilty, and received a fine and a suspended sentence. Mr Rowson referred to this previous conviction in the course of cross-examination of the police officer who was dealing with Connolly’s record. He suggested to the officer that the assault on the doorman had happened because Connolly was drunk: to which the officer merely replied, “Possibly”. In his interview Connolly said:
“…I was dance crazy you know – he said it was a bit too late you can’t come. I said I’ve paid to come in. One word led to another and I hit him…Mr Rowson brought this up, said the case of Connolly’s past of an assault to this doorman was when he was drunk and had no control over…I didn’t say…that’s what I’m trying to get over to you, the same thing as he’s saying, what you just repeated now.”
84.
This is a little obscure, but we interpret it as meaning that Connolly was denying that he had instructed Mr Rowson to apologise on his behalf, just as he was denying that on the earlier occasion he had struck the doorman in drink, as distinct from frustration at being denied access to a dance he had paid to go to.
85.
In the light of Connolly’s appeal Mr Maxwell-Brown was interviewed on 17 January 2003. DS Semple then wrote up a record of the interview and submitted it to Mr Maxwell-Brown for his comments. It was returned with manuscript amendments, but unsigned. In relevant part it reads as follows (the manuscript additions are italicised):
“Mr Maxwell-Brown remembers being approached by the prosecution the day before the trial date regarding Connolly’s plea. He stated that he would be pleading not guilty. He told counsel about the approach that had been made but was then not involved in the subsequent talks between prosecution and defence counsel and the presiding judge.
“He was aware that there was talk of a deal but that the judge was not happy initially and counsel made a second approach to the judge…Finally an agreement was reached and Mr Maxwell-Brown was informed that an alternative charge of robbery would be put on the indictment. He and defence counsel, Mr Rowson
and Mr Gordon Clover
, went to see Connolly and explained the situation. There was very little time, he thinks it may have been that same afternoon.
“Connolly had been aware that Kelly had been found guilty of murder and was reminded of this fact by Mr Rowson and Mr Maxwell-Brown, who wished to ascertain what Connolly would plead. The situation in relation to the prosecution approach and a possible charge regarding robbery were explained to him. Connolly asked what he would get for the robbery charge and Mr Rowson informed that he would
probably
get ten years imprisonment. Connolly wanted to see his wife or family and Mr Rowson pointed out that it was he, not his wife, who was going to hang. He was repeatedly told that it was a decision, which he himself would have to make.
“
So far as I can remember, the meeting lasted
about half an hour
and
Connolly
decided
that he would plead guilty to the alternative charge…Mr Maxwell-Brown does not
now
remember anything
specifically
about a conspiracy charge
, but has no doubt that it would have been mentioned at this meeting
. Although Connolly was given ‘advice’, it was in the form of answers to his questions not that he was advised to plead guilty to robbery. Connolly never protested about pleading guilty to robbery. He was not shocked by the suggestion; he was paying attention and made his own decision. Having made his decision he
appeared to be
relieved.”
86.
Mr Pownall submitted that Mr Maxwell-Brown’s recollections were inconsistent with and did not support Connolly’s account. There are some differences, in particular in respect of a concluded decision, reached by the end of the meeting, with which Connolly was comfortable, but in the main we think that it confirms rather than contradicts the earlier account and, if it is inconsistent with anything, it is with Mr Maxwell-Brown’s own letter of December 1991. Thus the meeting took place only a day or so before the day fixed for trial; a deal had already been reached with the Crown which Mr Rowson presented to Connolly at their conference; there was very little time (for a life and death decision); Mr Rowson had given firm advice, reminding Connolly of Kelly’s conviction; Connolly did want to consult his family but was reminded in graphic terms by Mr Rowson of the consequences of a wrong decision; ten years were spoken of as the sentence he would receive; and nothing was said (or could be remembered as being said) about a charge of conspiracy.
87.
Mr Pownall points out that there is nothing on the transcript of Connolly’s plea of guilty which reflects his account of what happened when the conspiracy charge was put to him. But it is possible that the stenographer would not have heard Mr Rowson’s comment to Connolly; and may well merely have recorded the final answer of guilty. The point is in any event not determinative.
88.
In our judgment, for all that we have considered those transcripts with circumspection, the essential lines of Connolly’s account of the meeting seem to be genuine. There was some debate before us about the extent to which it was proper for counsel to advise a defendant as to his plea: but in our view it is unrealistic to suppose that against the background of Kelly’s conviction experienced counsel would have been doing his practical duty if he did not impress his client with his view of the likely consequences of a decision in one direction or another: and especially in a case where, without previously taking instructions from the client, a deal had already been reached with the prosecution. No doubt Mr Maxwell-Brown is right to say that Connolly was also told that ultimately the decision was his: but it is difficult to suppose that he was not urged to think of his own safety.
89.
We are sceptical that the rather carefully phrased passage cited above from Mr Rowson’s mitigation concerning Connolly’s regret can be relied on as confirmation of Connolly’s genuine acceptance of guilt. However, whether in the overall context of the case it can be said that Connolly suffered from undue pressure is a question we will come to below. But we are satisfied that he received advice in the strongest terms that he should accept the deal that was on the table. Mr Rowson himself told the judge that Connolly pleaded guilty “on my advice”.
90.
Mr Maxwell-Brown said nothing to suggest that the availability of the deal had been discussed at some earlier time than a day or so before Connolly’s retrial. Nevertheless, Mr Waldron submitted that the circumstances in which Connolly’s retrial was split off points towards the probability that there had already been some discussion between lawyers at some level as to a possible deal; and Mr Newman had put a similar submission even more strongly. Mr Newman pointed out, correctly, that the application was for a split trial, not for an adjournment to accommodate Mr Rowson’s late entrance. The decision to split the trials is sufficiently strange to give some force to those submissions; but it still remains possible that that decision may well be sufficiently explained by the need to replace Mr Nield as Connolly’s leading counsel: there appears to have been an unspoken understanding, which emerged explicitly in the judge’s decision, that if the trials were to be split Kelly’s would go first. We are not satisfied that any discussion of a deal with respect to Connolly’s role did enter into the judge’s decision to split off and put back his retrial. Whether it entered into the Crown’s or Mr Rowson’s calculations is impossible to say.
91.
In the circumstances we do not think it matters very much whether instructions were received from Connolly authorising the splitting of the retrials. He had lost Mr Nield, in whom he had, as he said in his taped interviews, reposed trust. We accept that he had yet to meet Mr Nield’s replacement, Mr Rowson. The initial decision to split the trials had been taken over his head and without his instructions, as Mr Clover’s comment at the hearing of 31 January 1950 makes clear. The reasons for Mr Rowson’s formal application on 2 February 1950 for a split trial were never articulated. In the circumstances they remain speculative. Was it to enable a new leader to master the brief? If so, then Connolly must have felt that he was left in the lurch. Was it because there was a calculation that if Kelly were acquitted, the Crown would drop its case against Connolly, whereas if Kelly were convicted, a deal could be made, as in the end it was? If so, we are satisfied on both Connolly’s and Mr Maxwell-Brown’s accounts that that was not explained to him. We are therefore inclined to accept that Connolly’s account that he was never consulted is at the very least a realistic possibility. Mr Maxwell-Brown did not say – of course he may not have been asked – that Connolly was consulted. Connolly’s statement that, after the judge had made his decision to split the trials, he asked Mr Clover if his trial could go first, is inconsistent with him being told that the need to defer his trial was due to the change in counsel. He was not told of the possibility of a deal. But even if instructions to split the trial were sought, that must have happened in a most perfunctory way, for what could he be told? In the circumstances he must simply have been prepared to follow advice, the reasoning of which remains obscure. There is something deeply unsatisfactory about the difficulty of resolving such issues after all this time, when all the leading actors are dead or unavailable for examination. What remains, however, is this: that, as a result of a ruling to split the trials which in our judgment, as well as on the Crown’s concession, should not have been made, Connolly was left shortly before his retrial with a life and death decision whether to accept a deal, negotiated without his involvement, which involved his pleading guilty to robbery.
Kelly’s 1950 appeal
92.
Kelly’s appeal was heard on 6 March 1950 before Lord Goddard CJ. There is no transcript available in respect of the proceedings on that day, but, in addition to grounds already lodged Miss Heilbron raised a new point, of which she had only just learned, regarding the possible disqualified status of a member of the jury. The appeal was therefore adjourned to 10 March for enquiries to be made. On that day the appeal in relation to the lodged grounds of appeal was dismissed: as stated above, one of those grounds related to the splitting of the retrials, but the others related to the summing-up. No transcript exists of the judgment, but a press report in The Echo says that Lord Goddard described the appeal as hopeless. Then, on 15 March a separate judgment was delivered, which does exist, dealing with the point about the status of the jury. The submission that the trial was a nullity was rejected.
The law in relation to appeals from old convictions
93.
It has been established in
R v. Bentley
[2001] 1 Cr App R 21
at para 4 (per Lord Bingham of Cornhill CJ) that in reviewing the safety of old convictions pursuant to references from the CCRC –
“The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under
section 1
of
the 1968 Act
.”
See also
R v. King
[2000] 2 Cr App R 391 at 402, where Lord Bingham again stressed that this court is concerned only with the safety of the conviction.
94.
In this case, however, it is not controversial that even in 1950, let alone today, the requirements of a fair trial required the disclosure of Graham’s first statement and the Northam and Dickson statements: see
R v. Ward
(1993) 96 Cr App R 1
at 23/25, which discusses the position at any rate 30 years ago in 1974, and particularly this passage at 25:
“To return, however, to the position in 1974, Mr Mansfield submits, rightly, that paragraphs 443 and 443a of
Archbold
(38
th
ed.) were by no means exhaustive. They were merely aspects of the defendant’s elementary common law right to a fair trial which depends on the observance by the prosecution, no less than the court, of the rules of natural justice. No authority is needed for this proposition but it is illustrated by the decision of the Divisional Court in
Leyland Justices, ex p. Hawthorn
[1979] Q.B. 283
. On the broad basis of this right, the defendant is plainly entitled (subject to statutory limitations on disclosure, and the possibility of public interest immunity, which we discuss below) to be supplied with police evidence of all relevant interviews with him. We would adopt the words of Lawton L.J. in
Hennessey
(1979) 68 Cr. App. R. 419, 426, where he said that the courts must,
“keep in mind that those who prepare and conduct prosecutions owe a duty to the Courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence …” ”
The new evidence
95.
We have received and already discussed in our judgment above a body of new evidence, which includes the undisclosed statements themselves, the police reports of the 1949 investigations, the statement of Mr Santangeli, the transcripts of Connolly’s taped interviews (together with statements from the journalists who conducted them), the Maxwell-Brown material, and statements from the appellants’ families. The Crown does not oppose the reception of any of this new evidence under the provisions of
section 23(1) of the Criminal Appeal Act 1968
, subject to its caution about the taped transcripts. Mr Pownall accepts Mr Santangeli as a witness of the highest integrity.
Kelly’s appeal
96.
We are now in a position to revert to our reasons for concluding that Kelly’s conviction is unsafe and thus for allowing his appeal.
97.
The non-disclosure of Graham’s first statement, and to a lesser but cumulative extent the non-disclosure of Northam’s and Dickson’s statements, deprived Kelly and his lawyers of highly relevant material. Subject only to the fact that Miss Heilbron was plainly aware of the existence of at least some of the latter statements (and of the fact that the lending of the overcoat was not mentioned until 10 October), and thus subject to the possibility that the non-disclosures were simply part of a local culture, there is every sign that those non-disclosures, and particularly that of Graham’s statement, were due to deliberate concealment. Indeed, the lies of Graham and CI Balmer in relation to when they first saw one another in relation to the Cameo murders are a strong indication of the need for concealment. The similar lies in relation to the time when the Sunday meeting at the White Star was first revealed to CI Balmer suggest the same conclusion in respect to the statements of Northam and Dickson. Disclosure of the statements would have enabled Miss Heilbron to go further than she was able in attacking the credibility of all three principal witnesses for the Crown.
98.
Did the non-disclosures make the conviction of Kelly unsafe? In our judgment, they did. The evidence against Kelly was, in Mr Pownall’s words, far from overwhelming. There was no forensic or scientific evidence to link Kelly with the murders. He was not identified at the scene. Northam and Dickson were rightly treated as accomplices. The jury were therefore cautioned against convicting without corroboration. The only corroboration they were offered apart from Graham’s evidence was the coat: it is true that the gunman was seen wearing a belted overcoat, but the only thing to connect Kelly with such a coat was Northam’s and Dickson’s evidence. Outside that evidence he was never seen in hat or coat. The essential corroboration presented to the jury was Graham’s evidence. It was with that that the judge concluded his summing-up – as well as with the point from Northam’s evidence that Kelly had said that the assistant manager was “on his knees” when he shot him again. Unwittingly, however: for that point, which must have seemed so powerful at trial, would have been revealed by disclosure of Graham’s first statement to have been more than double-edged.
99.
On the prosecution’s own case, Kelly’s opportunity to commit the murders was very narrow. He was at the Spofforth Hotel as late as 9.25 pm. He was in the Leigh Arms at 9.45 pm. The shooting was at around 9.35 pm. Kelly had to obtain the hat and coat and go to the Cameo. There was a side door to the cinema at the bottom of a spiral staircase from which the gunman escaped, but that could not be opened from outside. The cut telephone wires were at the bottom of the spiral staircase. They must have been cut in advance of the shooting. The gunman had difficulty getting out of the manager’s office because the lock was shot off. He had to get rid of the gun (on the prosecution’s case, in the lake in the park), stow away the hat and coat, and return to the Leigh Arms.
100.
The prosecution itself did not regard its case as strong. A minute in the DPP file dated 13 October 1949, just before the committal proceedings, says “It is not a strong case.” A letter dated 14 October to the DPP from the prosecuting solicitor says: “You will probably agree that the evidence is not very strong.” After the committal a report dated 22 October says: “A strong prima facie case has been established against both accused, but it will require to be well supported at trial”. It was supported by Graham’s second statement, but to the exclusion of his first. After Kelly’s conviction, the deputy DPP wrote (see above) that in his opinion that conviction would not have happened but for Graham’s evidence. The Crown accepts that opinion as correct. Northam’s and Dickson’s evidence suffered from the deficiencies which Miss Heilbron was able to elucidate at trial (the ambivalent letter, the failure to mention anything prior to 29 September, the failure to mention the lending of the overcoat until 10 October) but in addition the concealed failure to mention the meeting on Sunday until the committal proceedings. Thus Graham’s evidence was at the forefront of Mr Gorman’s powerful speech for the prosecution.
101.
However, if Graham’s first statement had been disclosed, it is difficult to think that his evidence would have had the impact which Mr Gorman obviously believed it forensically deserved. It is not impossible that Graham would never have been called. If the statement had been disclosed between the first trial and the retrial as it should have been, all the more so in that CI Balmer in his evidence at the first trial had lied about meeting Graham for the first time in the case on 19 September (Graham had similarly lied about the date of his first meeting with CI Balmer), it is not impossible that the retrial would not have taken place.
102.
In all these circumstances we consider that Kelly did not have a fair trial, his conviction is unsafe and must be quashed, and the appeal constituted by this reference must be allowed. We would merely add as a postscript, because no point was taken on it at these appeals, that the judge gave no direction to the jury as to how they should view Graham as a witness, other than that he may be regarded “as of importance” and that his evidence could corroborate that of Northam and Dickson. There was no warning of caution in that he may have been seeking an advantage for himself. In this connection, see now
Benedetto v The Queen
[2003] UKPC 27
,
[2003] 1 WLR 1545
, in particular at paras 32/33.
The law in relation to appeals from pleas of guilty
103.
It follows that if the retrials had not been severed, and if both Kelly and Connolly had been convicted at their retrial, Connolly’s conviction would have been quashed for the same reasons. Does it matter that Connolly pleaded guilty to the new charges of robbery and conspiracy to rob? Mr Pownall submits that it does and that Connolly’s conviction is safely based upon his own unequivocal plea.
104.
This is not because a plea of guilty in law prevents a finding on appeal that the conviction is unsafe. Mr Pownall acknowledges that that is so, and that “conviction” in
section 2(1) of the Criminal Appeal Act 1968
includes a conviction upon a plea of guilty. Thus a plea of guilty is not necessarily a bar to an appeal against conviction:
DPP v. Shannon
[1975] AC 717
,
59 Cr App R 250
. But he submits that there was nothing in the facts to remove Connolly’s case from that of a voluntary plea. Similarly, Mr Waldron acknowledges that the existence of the death penalty at that time, being sanctioned by law, could not by itself render Connolly’s plea one obtained by duress. But he submits that it is relevant as a factor to be taken into account when attention is focussed on those matters which affected his decision and were not in accordance with law.
105.
In
R v. Forde
[1923] KB 400
Avory J said at 403 that –
“A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.”
Subsequent authority has shown, however, that that is too narrow a formulation.
106.
In
R v. Peace
[1976] Crim LR 119 it was held that an accused who pleaded guilty following and adopting the advice of his counsel, albeit unhappily and with reluctance, could not be said to have lost his power to make a voluntary and deliberate choice and thus say that his plea amounted to a nullity. An appeal could only lie where it had been entered under pressure or threats or the like in circumstances in which the defendant had no free choice but was driven to adopt a certain course whether he liked it or not. It would be a serious matter if it was accepted as a principle that where counsel gave strong advice to a client indicating the prospect of his being found guilty as an alternative to pleading guilty, it was then to be said that the plea was not really his own but something which had been forced on him. It was a question of fact in every case.
107.
R v. Turner
[1970] 2 QB 321
,
54 Cr App R 352
is the leading authority on plea bargaining. It held that counsel must be free to do his duty of giving the accused the best advice he can and if need be in strong terms, but will emphasise that he should not plead guilty unless he has committed the acts constituting the offence charged.
108.
R v. Inns
(1975) 60 Cr App R 231
is an example of a defendant adjudged not to have a free choice. There the pressure was put on him by his counsel’s report of conversations with the judge. Lawton LJ said (at 233):
“When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all.”
109.
R v. Hunt
[1986] QB 125, 82 Cr App R 244 concerned the case of a plea of guilty following an erroneous ruling by a judge on a point of law, there the meaning of “controlled drug”. This court held that the judge had given a correct ruling, but on erroneous grounds. At 132, 249 Robert Goff LJ said –
“Since the applicant’s plea of guilty was founded upon that ruling, we shall grant the applicant leave to appeal from his conviction.”
110.
However, the appeal was dismissed because, although had the judge’s grounds been correctly formulated the accused could in theory have adduced relevant evidence on the issue of his guilt, in practice he would not have done. Therefore his conviction would have been inevitable.
111.
In
R v. Preston
(1992) 95 Cr App R 355
this court adopted Robert Goff LJ’s test that a plea of guilty following an erroneous ruling of law must be
founded on
that ruling. Woolf LF (at 381) referred to Viscount Dilhorne’s dictum in
Shannon
at 757 and 264 that –
“the respondent
having pleaded guilty
, [the court of appeal] had only power to quash the conviction if either there had been a wrong decision on a question of law or a material irregularity in the course of trial”
and continued:
“It is not any error of law or any irregularity which is sufficient for this purpose…In our judgment before an appellant who has pleaded guilty can rely upon an erroneous ruling on a point of law or a material irregularity, he must show that his plea “was founded” upon the erroneous ruling of law or material irregularity.”
112.
Woolf LJ then went on to distinguish between a situation where a plea was influenced by the judge’s rulings and a situation where the defects in the rulings were critical. In that court’s opinion what was critical was a separate decision by the judge to admit certain evidence, as a result of which “Preston had no prospect of successfully contesting his guilt” (
ibid
).
113.
We now come to the first of a number of recent authorities which are of particular relevance to Connolly’s appeal because they concern the effect of non-disclosure on pleas of guilty.
R v. Schlesinger
[1995] CLR 137 arose out of the background facts to the Scott Inquiry about arms to Iraq. In 1985 the defendants had been convicted of illegally exporting arms to Iraq. In the preparations for trial the defendants had been told that the arms they had supplied, although paid for by Iraq, were really presents for Sudan and Jordan. They were assured that they would get witnesses from the embassies of those countries in Britain to support that account, but then learned that authority for such witnesses to give that evidence had been withdrawn. What they did not know, and was only revealed as a result of the Inquiry, was that the embassies had been approached on the initiative of the Customs and the Foreign Office (in the belief that the account of the arms really being presents to Sudan and Jordan was false) to scotch any possibility of such statements. Ignorant of this non-disclosure, the defendants pleaded guilty, assisted in that decision by being told that they did not face a prison sentence in any event. It was conceded for the Crown that what had occurred was an indefensible abuse of process, but nevertheless the appeals were resisted. It was submitted for the appellants that the prosecution would have been stayed if the court had known the truth of these matters. This court agreed that was so, and that the convictions should be set aside irrespective of prejudice; but in any event on the ground of prejudice. The digest of the report states (at 139):
“Whilst the Court was usually slow to set aside pleas of guilty which had been unequivocally made, where they had been made in ignorance of malpractice having operated to a defendant, different considerations might apply.”
114.
The brief comment by the late Professor Sir John Smith QC reads:
“The appellants had pleaded guilty but they would, apparently, not have done so if the witnesses whom they hoped to call had been available. Guilty or not, their right to have the charge against them proved beyond reasonable doubt had been, at least, impaired. It seems there was really no need to rely on the extension of the concept of abuse of process made in the
Horseferry
Road case. A defendant does not get a fair trial if he is precluded from calling witnesses whom he believes to be necessary to his defence.”
115.
R v. Blackledge
(1996) 1 Cr App R 326
was another case arising out of the arms to Iraq affair. Licence to export the arms to Jordan had been obtained, and the defence was that the authorities knew that Jordan was being used as a conduit for exports to Iraq and were turning a blind eye. The defendants sought disclosure of policy and guideline documents governing the grant of export licences, but were refused by the trial judge, whereupon, after assurances from the prosecution that they would not be presenting the case as one of the utmost gravity and indications from the judge that suspended sentences could be expected, they changed their pleas to guilty. Subsequently, ministerial documents came to light substantiating the defendants’ allegations. Their appeals were allowed. It was held that the failure to disclose was a material irregularity and that the guilty pleas had been founded on that irregularity. Lord Taylor CJ said this (at 338/339):
“It is submitted that the material irregularity created by the non-disclosure deprived the appellants of material which would have enabled them to make properly informed decisions as to what course they should take…Even without that documentation, the appellants could have run their defence and given evidence in support of it. It is stressed, however, that in addition to being deprived, so to speak, of ammunition, the appellants were put into a difficult dilemma. For the offences charged, they could have been sentenced to a substantial period of imprisonment. At the time of the trial, after the second Gulf War, they had an understandable fear as to what sentence a court might consider properly reflected public disapproval of assistance to Saddam Hussein. In those circumstances, the prospect of a muted presentation of the facts by the prosecution, followed by a suspended sentence, put pressure on the defendants to go quietly…We have considered the aggregate of all the unusual circumstances of this case – the material irregularity, the judge’s ruling based on an unawareness by him and by prosecuting counsel of the undisclosed documents, and finally the pressure added to those factors by the discussions leading to the changes of plea. We consider the pleas of guilty to be “founded on” the material irregularity and the judge’s ruling coupled with the pressure to which we have referred. In the result, we cannot regard the convictions as safe and satisfactory.”
116.
In
R v. Togher
[2001] 1 Cr App R 33
the appellants were indicted for importing drugs on two separate indictments (the “Frugal” and “Madrid” indictments). They were convicted on the first (Frugal) and pleaded guilty on the second (Madrid). Their appeal against their conviction on the first indictment was allowed and a retrial ultimately stayed on the ground that the prosecution had at the first trial by reason of non-disclosure deprived the defence of its ability to mount a challenge to the integrity of the prosecution. They then appealed against their conviction on the second indictment, but failed. The case is principally authority for the proposition that a broad approach (as per
R v. Mullen
[1999] 2 Cr App R 143, [2000] QB 520) should be adopted to the statutory test of safety so as to embrace not only circumstances where the conviction might be wrong but also where the appellant had been deprived of a fair trial. In applying that broad test, this court nevertheless concluded that the retrial judge had been wrong to find that there had been any abuse of process requiring the staying of the retrial. Lord Woolf CJ concluded as follows (at paras 58/59):
“58…The defendants had not lost the ability “properly to defend themselves” at a retrial when they would be well aware of the failures on the part of the prosecution. The defendants could, if they were prepared to take the consequences of doing so, exploit the earlier non-disclosure to challenge the bona fides of the officers in charge of the prosecution “viewed as a single entity”.
“59. The shortcomings on the part of the prosecution are not of the category of misconduct which would justify interfering with the defendants’ freely entered pleas of guilty. We see this case as being in a wholly different category from the exceptional case Lord Lowry was considering in his speech in
Bennett
. When the appellants pleaded guilty they were not aware of the matters relied upon before Turner J. for obtaining a stay of the retrial, but they were aware that they were appealing against their conviction. They therefore should have appreciated that the appeal against their conviction might succeed. If this had happened they would still be bound by their pleas of guilty. They were never ignorant of any evidence which went directly to their innocence of guilt. They were only unaware of material which could, but for their pleas, have been used to attack the credibility of the prosecution witnesses. Ignorance of this kind does not justify reopening their pleas of guilty. While there was an irregularity in their trial on the Frugal indictment, the appellants’ pleas to the Madrid indictment were not “founded on” and were independent of that irregularity.”
117.
Both parties relied on that authority. Mr Pownall submitted that the non-disclosures in this case were similar to those in
Togher
and that the last four sentences just cited are directly applicable. Mr Waldron, however, submitted that the ultimate test proposed is whether the misconduct complained of “would justify interfering with the defendants’ freely entered pleas of guilty” and that in this case it clearly would. We would observe that it is clear from the facts discussed elsewhere in Lord Woolf’s judgment that the non-disclosure in question related to the authorisation of covert surveillance work which had produced 57 tape-recordings which were disclosed in the course of the Frugal retrial. The argument was that, although the new material “did not relate to any issue of fact in the trial which had taken place” (at para 35), the possibility that the surveillance was not properly authorised could lead to an attack on the integrity of the investigation in a case where the defendants alleged that they had been framed. That was the context in which Lord Woolf said that the material of which the defendants were unaware did not go directly to their guilt.
118.
R v. Bhatti
(CACD, 19 December 2000, unreported) contains an extensive summary and analysis of the relevant authorities. The appellant pleaded guilty to causing death by dangerous driving on the basis of a police report that the cause of the accident was the combination of the driver’s poor steering and harsh acceleration. A defence report said a component failure could not be ruled out. The car had been scrapped. The appellant was told that the police expert could not accept the opinions of the defence expert. The appellant pleaded guilty. Later the CPS informed the appellant that independent experts had reviewed the police expert’s report and found it “totally unreliable and riddled with error”. The appeal was allowed. Potter LJ said (at paras 30/33):
“30. However, when the appeal is in respect of a conviction following a plea of guilty the considerations which apply are very different and the circumstances in which it may be appropriate or proper to allow an appeal are of necessity very limited. That is because the safety of the conviction depends not on some legal error or procedural irregularity which has arisen in the course of the adversarial process of the trial, thereby leading to a verdict of guilty which might otherwise have been not guilty; it rests upon the question whether, and in what circumstances the Court should look behind the plea of guilty (which represents a voluntary recognition of guilt) and enter on an examination of the reasons or motives of the defendant in deciding so to plead. That in turn requires the Court to reach a decision based not upon objective matters of record, namely the procedures adopted and decisions reached openly in the course of the trial, but on the subjective recollection and subsequent account of the appellant and/or his advisers as to the reasons for his plea. Such a procedure is an inherently unsatisfactory basis for interference with an unequivocal plea, voluntarily made at the proper time, for reasons or motives which may be infinitely various. Of course, if the defendant can establish that he pleaded guilty without understanding the nature of the charge or otherwise without intending to admit his guilt of what was alleged, the conviction may be quashed; as may also be the case if the appellant can show circumstances which effectively deprived him of a free choice as to plea: see
Archbold
(2001) at paragraph 7-103 and cases there cited [see now
Archbold
(2003) at para 7-291]. In such cases the voluntary nature of the plea is vitiated.
“31. It will also sometimes be the case that an appellant can establish that, as a result of trial processes prior to his plea, such as an erroneous ruling on a point of law (see
R v. Preston
95 Cr App R 355
at 381) the basis of the plea is fundamentally undermined. Similarly, where by reason of some act of deception or non-disclosure on the part of the prosecution the appellant has effectively no alternative but to plead guilty, when he would not otherwise have done so, his conviction may thereafter be set aside (see for instance
R v. Schlesinger and others
[1995] Crim LR 137 and
R v. Blackledge and others
[1998] 2 Cr App R 100
). However, that will not be the case where, in the face of evidence bona fide presented by the prosecution, the accused has pleaded guilty on the basis of advice from counsel, however reluctantly accepted: see
R v. Peace
[1976] Crim LR 119. As made clear in
R v. Boal
(1992) 95 Cr App R 272
, although a plea of guilty does not deprive the court of jurisdiction to hear an appeal against conviction, it is highly relevant to the issue whether the conviction is unsafe that the defendant knew what he is doing, intended to plead guilty, did so without equivocation and after receipt of expert advice…
“33…Thus once the defendant has pleaded guilty and been sentenced on the basis of his plea, it will only be in the rarest of cases that circumstances should be regarded as vitiating or undermining the voluntary nature of the plea to such an extent that the conviction should be regarded as unsafe. Certainly it will not in the ordinary way be sufficient to demonstrate that the evidence of a particular witness, which at the time appeared reliable, has been shown subsequently to be unreliable or untrue.”
119.
In the light of these principles Potter LJ turned to the facts of the case:
“35…As a result, we are satisfied that:
1.
Had the Crown prior to the appellant’s plea of guilty been aware of the deficiencies of PC Desmond’s report the prosecution would not have proceeded.
2.
Equally, and in any event, had the defence been aware that the report was not reliable, the appellant would not have entered a plea of guilty.
3.
Had the deficiencies of the report emerged and had the Crown disclosed them at any stage prior to sentence, as we are satisfied would have been done had the truth been known, the defendant would have sought to vacate his plea of guilty.
4.
The Crown would have supported the appellant in that application and, had it been successful, would have elected not to proceed.
5.
If, contrary to what we are told would have happened, the Crown had proceeded, the defendant would have called his expert witness to attest to the possibility of mechanical failure in which event it is possible, and indeed probable, that the jury would have acquitted the defendant.
“36. In those circumstances, we are satisfied that the assumption of both the prosecution and the defence as to the reliability of PC Desmond’s report as to the reasons for the accident and his dismissal of the suggestion of mechanical failure, and the subseq
uent revelation of the worthlessness of that report and opinion fatally undermine the plea.”
120.
Mr Pownall submitted that items 1-4 in the citation of para 35 above did not apply in the present case.
121.
Finally, in
R v. Montague-Darlington
[2003] EWCA Crim 1542
(unreported, CACD 23 May 2003) the appellant had pleaded guilty to importation of 90 packages of cocaine which she had swallowed. She was advised that she had a defence of duress, but chose to plead guilty. A year later the solicitor to the Customs wrote to her solicitors to inform them of material which had only recently come to the former’s attention and to say that if it had been to hand in time he would have regarded it as disclosable but likely to attract public interest immunity. This court was satisfied that the material was disclosable but that rather than disclose it the prosecution would not have been commenced or proceeded with. Kennedy LJ said:
“7. This court will only rarely entertain an appeal against conviction where there has been a plea of guilty, but the circumstances in which an appeal may be successful are not confined to those identified by Avory J in
Forde
[1923] 2 KB 400
, as is clear from the recent judgment in
Togher
[2001] 1 Cr App R 457
. The court has to consider whether the appellant had a fair trial. It is difficult to see how the appellant can be said to have had a fair trial when it is now the case for the prosecution that she should not have been tried at all. Furthermore if, when advising in relation to plea, her legal advisers had access to all of the relevant material it is clear that she would have been strongly advised not to plead guilty, and there is no reason to think that she would have refused to accept that advice.”
Connolly’s appeal: discussion and conclusion
122.
In the light of these authorities Mr Pownall submitted that Connolly’s plea was voluntary, not born of undue pressure, and not founded on any material irregularity or error of law, and that his convictions therefore remain safe. In particular, he submitted that the severance of Connolly’s trial was authorised by him; that Mr Maxwell-Brown’s evidence demonstrates that the plea was voluntary; that Graham was not the only witness in the case; that even if Graham’s statement had been disclosed, there would probably have been a trial in any event, just as the committal was achieved without Graham’s evidence; that there was independent support for Northam’s and Dickson’s accounts in the facts that Connolly handed in his notice on 23 March 1949, applied for a free passage to Australia on 31 March 1949, and had lied to the police by saying that he had been at work on the day of the murders; whereas his alibi that he had been at a dance with his wife was capable of being subject to detailed attack.
123.
However, we have already rejected a finding that Connolly was consulted about the severance of his trial: we consider that, to put it at its lowest, there was a realistic possibility that he was not. As for Mr Rowson’s consultation with Connolly shortly before his trial, we have already found that Connolly’s account is to be broadly accepted, and that in its essence it is supported by Mr Maxwell-Brown’s evidence: indeed, given Mr Maxwell-Brown’s earlier letter of December 1991, we consider that if there is any difference between the accounts we would prefer Connolly’s. We regard his account of the consultation as having the ring of truth. We think that Mr Rowson went to the very limit of what his duty allowed in giving strong, realistic and practical, indeed life and death, advice: we doubt that any leader placed as he was would have acted differently, but it must have amounted to enormous, indeed irresistible, pressure to take the course which would preserve life rather than gamble it. We agree that there was nothing illegitimate in such advice in itself, and that the mere existence of capital punishment was part of the fabric of the then law and could not in itself constitute unlawful or undue pressure. However, that penalty, the availability of the deal, and the advice tendered by Connolly’s lawyers (for we feel sure that no one at that consultation disagreed with Mr Rowson’s advice) did not stand alone. The police had failed to provide even for prosecuting counsel, let alone for the defence, to have the statements of the three leading witnesses in the case. Even if the non-disclosure of Northam’s and Dickson’s statements may not have been enough by themselves to have rendered Kelly’s conviction unsafe, a question we have not had to determine, it added materially to the vice of the non-disclosure of Graham’s first statement, a matter which the Crown acknowledges by itself requires the quashing of Kelly’s conviction. We consider that those non-disclosures meant that Kelly did not have a fair trial, and the severance of the retrials in the event compounded that unfairness. It was Kelly’s conviction on a capital charge in an unfair trial that was the critical background to the advice tendered by Mr Rowson – who was of course ignorant of the non-disclosures – and to the deal negotiated with the prosecution which he held out to Connolly.
124.
We do not think it wrong in these circumstances to say that Connolly’s decision to plead guilty was founded on an unsafe conviction in an unfair trial. Both parties to the plea bargain negotiated on behalf of Connolly, and indeed the judge who had to approve that bargain, were acting on the basis that Kelly had been properly convicted in a fair trial. Although Kelly had his appeal, it is plain that, as matters were then known, that appeal was given no weight in the scale. It seems to us that the cases which are closest to the present are
Schlesinger
and
Blackledge
and, in a slightly different way,
Bhatti
. Those cases indicate that the concept of a plea of guilty being founded on an irregularity goes wider than the paradigm case of a plea which turns entirely on, say, a decision of law as to the width of a statute imposing criminal liability. The passage cited above from
Blackledge
in particular illustrates how, in a far less serious context, the dilemma faced by a defendant may be part of a combination of circumstances which effectively undermines or vitiates the essential condition of a plea being voluntary.
125.
As for
Togher,
we consider that the circumstances there were very different. The Madrid indictment (concerning 33 kilos of cocaine seized by the Spanish at a hotel in Spain) related to a different consignment of drugs from that involved in the Frugal indictment (which concerned 309 kilos of cocaine seized in Sussex where the drugs had been brought on a boat called the
Frugal
). The non-disclosure did not even relate to any issue of fact in the Frugal indictment, let alone the Madrid indictment. The submission was merely that the new material, if known about in time, might have enabled the defendants to develop a collateral attack on the credibility of the investigation and, so it was merely assumed (at para 7), would have led the defendants to defend the Madrid indictment. There was no submission, as far as we can see, that the pleas were other than freely entered. That is why Lord Woolf began his concluding reasoning at para 59 with the
premise
that the defendants had freely chosen to enter pleas of guilty, when he said: “The shortcomings on the part of the prosecution are not of the category of misconduct which would justify interfering with the defendants’ freely entered pleas of guilty”. He had previously described those shortcomings as “regrettable muddle and confusion and incompetence” (at para 58). In those circumstances it is not surprising that the defendants’ submission that the non-disclosure by itself somehow unlocked their voluntary acceptance of guilt failed. In the present case, however, the non-disclosure, in the case of Graham, went to the credibility of critical corroborative testimony which spoke directly of the defendants’ own confessions, and, in the cases of Northam and Dickson, went to the credibility of the main prosecution witnesses whose testimony again spoke directly of the defendants’ prior planning and subsequent confessions; and all in circumstances, unlikely to be repeated, where one defendant was forced by an unsupportable decision to sever the retrials to choose, following the conviction of the man he denied being his accomplice in guilt, between his desire to plead his innocence and his desire to save his life.
126.
The test of a plea of guilty being “founded on” some material irregularity or error of law expresses a strong and determinative causal connection. The critical and fundamental causative part which the trial of Kelly played in the decision of Connolly can be illustrated by the consideration that if the retrial had not been wrongly severed, Connolly would have been tried with Kelly, and either suffered his fate, or acquitted on the basis on which the Crown were ultimately prepared to accept a plea of not guilty to murder. The critical part which Graham’s evidence played in the trial of Kelly is demonstrated by the fact that if his first statement had been disclosed, it is entirely possible that he would never have been called, or if called discredited: in circumstances where the view expressed after the event was that his was the evidence without which Kelly’s conviction would not have been secured. And if the disclosure had taken place between the first joint trial and Kelly’s retrial, then in the light of the lies told at the first trial, it is possible that there may have been no second trial at all. Moreover, if immediately after Kelly’s retrial the non-disclosures (and lies) had come to light and been understood as they have now been understood, then the Crown would then have been acknowledging that Kelly’s conviction could not survive and it is highly unlikely that Connolly would have been advised in the way in which he was advised, or that he would have changed his plea to one of guilty (see
Bhatti
).
127.
Ultimately, however, the test is of the safety of the conviction. For the reasons expressed in
Bhatti
the scope for finding that an unequivocal and intentional plea of guilty can lead to an unsafe conviction must be exceptional and rare. However, undue pressure or errors of law or unfairness in the trial process may all be of such an important causative impact on the decision to plead guilty that the conviction which follows on such a plea can, in an appropriate case, be described as unsafe. In our judgment such is this case. Ultimately, as the authorities emphasise, it is a question of fact in each case.
128.
In the circumstances the factors raised by Mr Pownall in his final submission as supporting the safety of Connolly’s conviction are really neither here nor there. They did not lead to a conviction at his first trial and were not tested in a retrial. If Kelly, the alleged gunman and thus primary party cannot be regarded as safely convicted, it is unrealistic to regard Connolly, an allegedly merely secondary party, as safely convicted once the basis for upholding his conviction on his own plea is fatally undermined. In certain respects, for instance the irrelevance in the case of Connolly of Northam’s and Dickson’s evidence about the coat and the absence of any evidence against Connolly of knowledge that the assistant manager had been shot while on his knees, the evidence against Connolly was weaker than that against Kelly. In any event, the matters raised by Mr Pownall are controversial. Thus, as to working on the Saturday: he had not worked on the Saturday, but he had on the Friday, and at the first trial Oliver J had said (The Echo report of the summing-up):
“That was on May 14 and the murder was 8 weeks before. The jury might think quite possibly that the man be honestly mistaken, when he said he was at work at Bibbys because he was in fact at work there up to March the 18
th
…”
129.
Similarly, as for planning to go to Australia, at the first trial evidence was given by Revd Thomas Frayne that Connolly had consulted him about leaving for Australia already in about May 1948. As for his alibi, Connolly’s wife said that they had been out dancing together on Saturday 19 March: she was attacked in cross-examination on the basis that she had muddled the date and that she was thinking of some other Saturday: but she was able to prove that she had the date right by reference to a letter post-marked 18 March. In the end, the dispute about the alibi was as to whether Connolly was seen at the dance before or only after 10 pm: witnesses were called by prosecution and defence respectively on either sides of that issue. When it was tried, at the first trial, Connolly was not convicted.
Conclusion
130.
For these reasons we considered that both convictions were unsafe, and we therefore allowed the appeals in the references concerning both Kelly and Connelly and quashed their convictions. As we intimated at the time of the hearing of these appeals, in the light of our decisions the Cameo murders remain an unsolved crime. If these appeals had happened timeously, fresh trials might have been held, if the Crown would have proceeded with them in the light of the new material, and these matters could have been subjected to the scrutiny of a new jury. As it is, that cannot happen. However, having considered that there was in these cases a breakdown in the due administration of justice and a failure to ensure a fair trial, we consider that the consequence was a miscarriage of justice, which must be deeply regretted. | {"ConvCourtName":["Liverpool Assizes"],"ConvictPleaDate":["1950-02-08","1950-02-13"],"ConvictOffence":["Murder (Kelly, manager's murder)","Robbery (Connolly)","Conspiracy to rob (Connolly)"],"AcquitOffence":["Murder (Connolly)"],"ConfessPleadGuilty":["No","Yes"],"PleaPoint":["At retrial (Kelly: not guilty)","At retrial (Connolly: guilty to robbery and conspiracy to rob)"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Liverpool Assizes"],"Sentence":["Death (Kelly)","10 years imprisonment (Connolly, robbery)","2 years imprisonment concurrent (Connolly, conspiracy to rob)"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individuals"],"VicNum":["2"],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Testimony of Northam and Dickson (accomplices)","Testimony of Graham (alleged confessions in prison)","Police evidence (CI Balmer)","Anonymous letter","Physical evidence (overcoat, bullets, telephone wires cut)","Pathologist report (Dr Grace)","Eyewitnesses (cinema staff, fireman)"],"DefEvidTypeTrial":["Alibi evidence (Kelly)","Testimony of Kelly and Connolly denying confessions","Testimony of licensees and barmaid re: Kelly's whereabouts","Testimony of Connolly's wife re: alibi"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Other"],"CoDefAccNum":[1],"AppealAgainst":["Conviction unsafe"],"AppealGround":["Non-disclosure of Graham's first statement","Non-disclosure of Northam's and Dickson's statements","Severance of retrials without just cause (Kelly)","Connolly's guilty plea induced by duress of circumstances and/or oppression (Connolly)"],"SentGuideWhich":["section 23(1) of the Criminal Appeal Act 1968"],"AppealOutcome":["Allowed & Conviction Quashed"],"ReasonQuashConv":["Non-disclosure of key witness statements (Graham, Northam, Dickson)","Deliberate concealment by police and witnesses","Unfair trial due to lack of disclosure","Severance of retrials compounded unfairness (Connolly)","Connolly's guilty plea founded on unsafe conviction in unfair trial"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]} |
Neutral Citation Number:
[2019] EWCA Crim 1151
Case Numbers: 201801837/01838/018392019/00677/B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
Mr Justice Langstaff
T20177121
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Thursday 27 June 2019
Before:
LORD JUSTICE LEGGATT
MR JUSTICE NICOL
and
MR JUSTICE BUTCHER
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
(1)
JORDAN RAY SMITH
Appellants
(2)
RICARDO LIVINGSTONE-WRIGHT
(3)
JORDAN PERRY
(4)
SARA HODGKINSON
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Greg Unwin
appeared on behalf of the
Appellant Smith
Mr Michael Mansfield QC
appeared on behalf of the
Appellant Livingstone-Wright
Mr Michael Borrelli QC
appeared on behalf of the
Appellant Perry
Mr Hugh French
appeared on behalf of the
Applicant Hodgkinson
Mr Adam Feest QC
appeared on behalf of the
Crown
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Leggatt:
1.
On 4 April 2018 in Winchester Crown Court, following a trial before Langstaff J and a jury, the three appellants, Jordan Smith, Ricardo Livingstone-Wright and Jordan Perry, were convicted of attempted murder. Their co-defendant, Sara Hodgkinson, was convicted of encouraging or assisting the commission of an offence contrary to
section 45
of the
Serious Crime Act 2007
. They were sentenced as follows: Smith was sentenced to 31 years’ imprisonment; Livingstone-Wright and Perry were each sentenced to 30 years’ imprisonment; and Hodgkinson was sentenced to 4 years’ imprisonment.
2.
Smith, Livingstone-Wright and Perry appeal against their convictions. Hodgkinson has applied for leave to appeal. Her application is contingent on the success of the appeals. It is common ground that, if the three appellants succeed on their appeals and their convictions are quashed, Hodgkinson must also be entitled successfully to appeal against her conviction because there would in that event be no offence proved which she could be said to have encouraged or assisted. If, on the other hand, the appeals of the three appellants fail (and the reality is that their appeals stand or fall together) it is accepted on behalf of Hodgkinson that there is no other ground on which she can pursue an appeal against her conviction
The background
3.
The person whom the appellants were accused of attempting to murder was a man called Jay Sibley. In February 2017 Sibley was staying with his girlfriend Natasha Chamberlain at the flat of his friend Richard Stanhope at 81 Athena Avenue,
Waterlooville in Hampshire. At about 12.45am, in the early hours of 13 February, Sibley and Stanhope left the flats to supply some drugs to Hodgkinson. No sooner had they stepped outside the communal entrance to the flats than two men ran out from behind some bushes. One of them shot Sibley in the face with a sawn-off shotgun. The attackers immediately ran off and Hodgkinson also left the scene.
4.
The prosecution case was that the attack was carried out by the appellants, who ran a rival drug dealing network, in revenge for an incident that occurred earlier that evening. Only a short distance away from Athena Avenue is a house at 2 Tor Close, which the appellants were using as a base for their drug dealing operations. The house belonged to a man called Steve Antrim (known as ‘Mince’). Also living there were a woman called Marie Moore, and a young man known as ‘Ox’ who worked for the appellants. Marie Moore gave evidence that on the evening of 12 February three men forced their way into the house and stole drugs and money belonging to the appellants’ drug dealing network. Marie Moore said she recognised one of the men as a runner for a rival drugs network known as the ‘Adam and Sticky’ network. It seems that the Adam and Sticky network had previously been operating out of 2 Tor Close, before Mince kicked them out and agreed instead to host the appellants’ network at his property.
5.
Marie Moore gave evidence – and this is the subject of one of the grounds of appeal – that Mince had told her that, after he kicked them out, the Adam and Sticky network had relocated to Stanhope’s address and also that he had seen Sibley selling drugs for that network in a nearby alleyway. In fact, according to the prosecution, that information was incorrect in so far as Stanhope and Sibley were actually working for a different drugs network again, referred to as the ‘Aaron and Tony’ network.
6.
Immediately after the robbery at 2 Tor Close, at about 9pm, Marie Moore and Ox made telephone calls to the appellant Smith and told him what had happened. Smith contacted the other two appellants, who were in different parts of South West London. By 11pm they had all met up, and at around 11.30pm they set off in two cars and drove down the A3 to the Portsmouth area. They were heading for Waterlooville.
7.
CCTV footage from a camera at South Downs College (which is very near to Athena Avenue and also to Tor Close) showed what the prosecution asserted were the appellants’ two cars passing the camera at 00:38 and 00:43. The second car was shown passing the camera again, travelling in the opposite direction, almost exactly five minutes later at 00:48, followed within 40 seconds by the other car. Also at 00:48 Stanhope made a 999 call, which must have been made almost immediately after the shooting.
8.
Apart from this extraordinary coincidence of timing, the prosecution relied on the involvement of Hodgkinson whose role on their case was to lure Sibley out of the flats. The prosecution adduced evidence of previous association between Hodgkinson and Livingstone-Wright and Smith, and of communications between them shortly before the shooting.
9.
At 22:37 on the evening of 12 February Smith texted Hodgkinson’s number to Perry, who was with Livingstone-Wright at the time. Shortly afterwards, Livingstone-Wright called Hodgkinson. Shortly after that, Hodgkinson made arrangements with the owner of the house she was living in for him to take her in his van to a cash machine to get money out, as her benefit money was due at midnight, and then to buy some drugs.
10.
At 23:56 there was another short call from Livingstone-Wright to Hodgkinson. At 00:10 Hodgkinson withdrew £100 from her account. At 00:19 she called the Aaron and Tony drugs line. Within two minutes there was a call from that line to Stanhope. There were further short calls from Livingstone-Wright to Hodgkinson at 00:25 and 00:39. At 00:43 there was another call from Hodgkinson to the Aaron and Tony line, followed by a call from that line to Stanhope. Those last phone calls immediately preceded the shooting.
11.
An allied feature of the evidence on which the prosecution also relied was that, in these communications, Hodgkinson arranged to meet Stanhope and Sibley twice. Stanhope and Sibley gave evidence that, as a result of her first request for drugs, she met them on the opposite side of the green from Athena Avenue and bought a few wraps of cocaine. She told them that she wanted to buy some more wraps but needed first to get some more money. She said this despite the fact that (unknown to them) she had already taken the necessary funds out of the cash machine. She told a different story to the man who had given her a lift in his van. According to his evidence she said to him that the dealer had only given her half the drugs and that she had to go back for the rest when he had sorted them out. On the prosecution case Hodgkinson was, on this evidence, playing for time until the appellants arrived and was setting things up to lure Stanhope and Sibley out of the flats again as soon as the appellants had arrived, which explains why she made the second call to the drug dealing line at 00:43.
12.
Two of the appellants, Smith and Livingstone-Wright, gave evidence at the trial. Their case was that they had indeed travelled to Waterlooville after the robbery at 2 Tor Close, but the purpose of their trip was to collect money, deliver more drugs and move their operation to a new location now that it had been compromised.
13.
An unusual feature of this case, which lies at the heart of these appeals, is that evidence was given by the victim of the shooting (Sibley) and his friend (Stanhope), who were called as witnesses by the prosecution, on which the defence strongly relied. Each of these witnesses gave evidence that he recognised someone who took part in the attack, and in each case the person identified was not one of the appellants. The person identified by Sibley was a man called Barry Baker and the person identified by Stanhope was a man called Chrissy Fagan. Furthermore, Baker and Fagan are both white in skin colour, whereas the appellants are black. The appellants relied on this evidence as positively showing that they did not carry out the shooting.
14.
At the end of their case the prosecution adduced evidence of enquiries they had made into mobile telephone activity and CCTV footage with the aim of trying to establish whether Baker or Fagan could have participated in the shooting. There was a CCTV camera outside the front entrance of Fagan’s flat, and this showed him entering the flat well before the shooting. He was arrested at his flat after the shooting occurred later that night and when he answered door to the police he was wearing the same clothes as he was seen to be wearing when he had entered the flat earlier in the evening. The CCTV footage also confirmed that he had not left the flat through the front door in between those sightings. He could have got out at the back down a ladder, but there was further evidence that on any of the three main routes he might have taken to get to Athena Avenue there were CCTV cameras and he did not appear on any of the relevant CCTV footage.
15.
Baker lived much closer to Athena Avenue. There was no CCTV camera directly outside his home and the prosecution accepted that it would have been perfectly possible for him to get to Athena Avenue without being recorded on CCTV.
16.
The mobile phone evidence was relied on by the prosecution for the absence of any communication between Baker or Fagan and any other relevant person during the relevant period: in particular there was no evidence of any communication between either of them and Hodgkinson.
17.
The defence made an application under
section 78
of the
Police and Criminal Evidence Act 1984
to exclude this evidence, but the judge rejected the application and allowed the evidence to be adduced.
Ground 1: the handling of the identification evidence
18.
The first ground of appeal is that the trial was unfair because of the way in which the evidence relating to the identification by Sibley and Stanhope of the people who carried out the attack was dealt with. Leading counsel for Livingstone-Wright,
Mr Mansfield QC, whose strongly argued submissions have been adopted by the other appellants, makes two principal criticisms: one relating to the exercise of discretion by the prosecution and the other relating to the exercise of discretion by the judge.
19.
First and foremost he has submitted that the prosecution ought to have challenged the identifications made by their witnesses Sibley and Stanhope when they gave evidence and tested the accuracy of their evidence on what was the core issue in the case. The prosecution could and should have done this, he submitted, without cross-examining the witnesses and asking them leading questions which the prosecution was not entitled to do, but by nevertheless giving them the opportunity to confirm or qualify their evidence when asked to consider possible reasons why they might have been mistaken in their identifications. The failure to do this, he submitted, was unfair, both to the witnesses, who were not given an opportunity to deal with criticisms made by the prosecution of the reliability of their evidence, and to the defence, who were put in the invidious position of not knowing what the witnesses would say if their evidence was probed in this way and who for proper and understandable reasons took the decision not to ask such questions themselves. The jury, he argued, was therefore deprived of the opportunity to see the identification evidence tested in the way that it ought to have been in the interests of justice and which might have strengthened the defence case.
20.
Mr Borrelli QC on behalf of Mr Perry, whilst adopting these submissions, also advanced an alternative argument. He submitted that the prosecution could have approached the matter by probing the reliability of the identifications made by Sibley and Stanhope before the trial in an additional interview, of which a transcript or recording could then have been made available to the defence. This would have enabled the defence to take an informed decision about whether they wished to ask any further questions.
21.
Mr Borrelli relied in this regard on a passage in the guidelines published by the Ministry of Justice for “Achieving Best Evidence in Criminal Proceedings” in relation to interviewing victims and witnesses, where at paragraph 2.163 it is said:
“Whatever the reason for the significant evidential inconsistency, occasions may arise where it is necessary to ask the witness to explain it.”
Principles are then set out which should be taken into account in deciding what course to follow. These include guidance that:
“● Explanations for evidential inconsistencies should only be sought where the inconsistency is a significant one;
●
Such explanations should only be sought after careful consideration has concluded that there is no obvious explanation for them;
●
Explanations for evidential inconsistencies should only be sought after the witness’s account has been fully explored, either at the end of the interview or in a further interview, as appropriate;
●
Interviewers should always be aware that the purpose of asking a witness to explain an evidential inconsistency is to pursue the truth in respect of the matter under investigation; it is not to put pressure on a witness to alter their account;…”
22.
Mr Borrelli submitted that, applying those principles, the prosecution ought to have formed the view that it was necessary to ask these witnesses to give explanations, if they could, for inconsistencies between their evidence and the prosecution case, which asserted that their evidence was mistaken.
23.
The second exercise of discretion challenged by the appellants is the judge’s exercise of discretion in rejecting the application to exclude the evidence relating to the whereabouts and possible involvement of Baker and Fagan. Mr Mansfield submitted that, in allowing this evidence to be adduced, the judge permitted the prosecution to undermine their own witnesses and to do so in circumstances where the reasons for suggesting that their evidence was unreliable had not been put to them or explored with them. That, he submitted, compounded the unfairness. That unfairness, Mr Mansfield further argued, was in addition compounded by observations that the judge made about the evidence of these witnesses in summing up and, in particular, by directions that he gave to the jury about the need for caution in considering evidence of identification. Such directions, Mr Mansfield submitted, are appropriate where identification of a defendant is in issue in order to protect the interests of the defence, but they are not appropriate in a case such as this, where it is the prosecution witness whose identification is relied on by the defence but which it is suggested may be mistaken.
The applicable principles
24.
Before addressing these arguments, we think it important first of all to be clear about the legal principles which govern the situation in which the prosecution form the view that part of the evidence of a witness whom they intend to call is reliable but that part of the witness’s evidence is not reliable or even untruthful. A submission was made at the trial and was repeated certainly in Smith’s grounds of appeal, although it has not been developed in the oral argument this morning, that for the prosecution to adduce evidence which contradicts evidence given by their own witness without seeking to treat the witness as hostile is contrary to
section 3
of
the Criminal Procedure Act 1865
.
Section 3
of
that Act
, which is still in force, provides:
“A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.”
25.
It is clearly established that the term “adverse” in this provision means “hostile”. The section could be read as indicating that it is only when a witness has been designated
by the judge as hostile that the party who has called the witness may be allowed to adduce other evidence to contradict evidence which the witness has given. However, very soon after this statutory provision (originally contained in the Common Law Procedure Act 1854) was enacted it was held in
Greenough v Eccles
(1859) 5 CB (NS) 786 – an authority which has never since been doubted – that this is not the effect of the section. In rejecting such an interpretation, Williams J said (at 803) that:
“it is impossible to suppose the legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own witness by other evidence relevant to the issue,-- a right not only fully established by authority, but founded on the plainest good sense.”
He concluded (at 804) that the preferable interpretation of the section was that:
“... in case the witness shall, in the opinion of the judge, prove ‘hostile’, the party producing him may not only contradict him by other witnesses, as he might heretofore have done, and may still do, if the witness is unfavourable, but may also, by leave of the judge, prove that he has made inconsistent statements.”
Willes J and Lord Cockburn CJ agreed – Lord Cockburn suggesting that the better course was to consider the second branch of the section, by which he meant the part which allows the witness to be contradicted by other evidence, as “altogether superfluous and useless”.
26.
Much more recently, in
R v Cairns
[2002] EWCA Crim 2838
;
[2003] 1 WLR 796
, this court confirmed that the prosecution may properly call a witness and rely on only part of the evidence given by the witness while at the same time calling other evidence to contradict such part of the evidence given by the witness as the prosecution does not rely on. Keene LJ, who gave the judgment of the court, said at para 36:
“We know of no principle of law or justice which requires the prosecution to regard the whole of a witness’s evidence to be reliable before he can be called as a prosecution witness. If it is open to the prosecutor to form the view that part of a witness’s evidence is capable of belief, even though the prosecutor does not rely on another part of his evidence, then the prosecutor is entitled to exercise its discretion so as to call that witness. That must be so, since part of the witness’s evidence could be of assistance to the jury in performing its tasks, and it would therefore be contrary to the interests of justice to deprive them of that assistance.”
27.
That case was in some ways a stronger case than this, since the position of the prosecution in the
Cairns’
case was not, as it is here, that part of the evidence given by a witness whom they proposed to call was honestly mistaken: their case was that the evidence was deliberately false and given with the aim of seeking to exculpate one of the defendants who was the witness’s wife.
28.
The relevant principles can, we think, be summarised as follows:
(1)
Subject to the overall control of the court, the prosecution has a discretion as to what witnesses to call at a trial, but that discretion must be exercised in accordance with the interests of justice and the general duty of the prosecution to put all evidence which it considers relevant and capable of belief before the jury.
(2)
It is open to the prosecution - and indeed the interests of justice may require it - to call a witness to give evidence only part of which the prosecution considers to be worthy of belief.
(3)
In such circumstances the prosecution is in principle entitled to adduce other evidence to contradict that part of the witness’s evidence which the prosecution considers to be inaccurate or false, and to invite the jury to reject that part of the witness’s evidence.
(4)
That may be done without applying to treat the witness as hostile. However, unless the witness is declared hostile, evidence adduced to contradict the witness may not include a previous inconsistent statement of that witness, nor is the prosecution, as the party calling the witness, entitled to cross-examine the witness.
The circumstances of this case
29.
In the way that the appeals have been argued this morning, we do not understand those principles to be disputed. But in our view they provide a complete answer to the criticism made of the judge’s exercise of discretion in allowing the prosecution to adduce evidence which contradicted the identification evidence given by their witnesses in circumstances where the prosecution case was that those identifications were mistaken. There is no principle of law which was contravened by that approach.
30.
The other criticism made – which we take to be the central criticism – concerning the prosecution decision not to probe the evidence of Sibley and Stanhope and not to explore with them, whether before the trial or at the trial, reasons why their identifications might be mistaken requires to be examined more closely. It is important to focus on what exactly the prosecution case was in relation to the evidence of identification.
31.
The prosecution did not dispute the honesty of the identification evidence given by those witnesses. Nor did it dispute that the degree of confidence and certainty with which the witnesses believed their identifications to be accurate was as they had described in interview. In those circumstances there was no point in asking questions of them such as “Are you sure?”, because Sibley in particular had already made it clear that he was 100%, if not “110%”, sure of the accuracy of his identification of Baker and the prosecution did not seek to dispute or challenge the position that this was indeed his subjective conviction. The prosecution view, and their case, was that there were nevertheless objective reasons for concluding that the witnesses were mistaken, albeit entirely honestly mistaken.
32.
Those reasons were of two kinds. In the first place, it is the experience of the legal system and has long been recognised as a result of numerous cases of mistaken identification, including cases in which evidence was given with the utmost conviction, that there are dangers of relying on identification evidence. They are reflected in the well-known guidelines laid down by the Court of Appeal in
Turnbull
[1977] QB 224
in response to widespread concern at that time aroused by cases of mistaken identification. These guidelines reflect the experience of the courts that mistaken identifications all too frequently occur; that mistakes may be made even when the witness believes that he recognised someone he knew; and that the degree of confidence felt by a witness that he has correctly identified someone is not a reliable indicator of the accuracy of the identification. The
Turnbull
guidelines also highlight the importance of carefully examining the circumstances in which the identification was made, including such matters as the length of time for which the witness had the person under observation, the distance, the light, how good a view the witness had and so forth.
33.
In the present case the circumstances in which the identifications were made raised, very obviously, the potential for error. It is apparent that Sibley and Stanhope had only a fleeting glimpse of their assailants (and Stanhope was unclear whether there was more than one) under very poor conditions. It was dark. Scarcely had they come out of the door of the flats when the man who shot Sibley emerged from some bushes and ran towards them. According to Sibley, this man had a scarf around his face and he could only see the man’s eyes. The man who Sibley identified was not in fact the man who shot him. But he said that he recognised a second man who was behind the shooter and that that man was Barry Baker - someone he had met on a number of occasions and who had a reputation for robbing drug dealers. Sibley (as mentioned) expressed complete confidence in that identification, saying that he was absolutely certain of it. It is worth, however, reading an answer that he gave in one of the police interviews when he was asked the neutral question “What can you see on that night?” Sibley replied:
“I didn’t really see it, that’s what I’m saying, I didn’t really see him. He was behind matey, so I didn’t ... I see him as he was coming out the bushes. And I’ve clocked matey and I thought, who’s that? Then him and I thought, oh Barry, and then that was it, he was behind matey. They was walking towards me, both of them, but Barry was behind him so I didn’t even see him, didn’t even see him.” He was then asked:
“So if you had to put your finger on one thing that said why you know it’s Barry, what would that be?” To which Sibley replied:
“Cause I see him as they come out the bushes. As he come out ... he was the first one that [I] clocked because I noticed him. And I know it was him without a shadow of a doubt ... The man who shot me, he came out the bushes first. Barry was behind him, and at the angle they was in I could see him from there.”
The interviewer then went on to explore with him how he recognised Barry and other matters of that sort.
34.
The identification evidence of the prosecution witnesses as it stood was very favourable to the defence. The defence could rely on the expressions of certainty to which I have referred. If the prosecution had adopted the course of probing the reliability of the evidence by drawing attention to its potential weaknesses and inviting the witnesses to comment on those, they might certainly have succeeded in undermining it. But we do not see how the failure to do this can reasonably be said to have prejudiced the defence. Nor do we think the prosecution can reasonably be criticised for not following that course in circumstances where, if they had succeeded in undermining the evidence of their own witnesses, they would undoubtedly have been open to criticism by the defence.
35.
Furthermore, if the defence wished to probe the evidence themselves, they had the opportunity to question the witnesses when they gave evidence and to ask what further questions they thought fit. The fact that the defence took the decision, for the most part, to stick with what they had already does not demonstrate any unfairness: it is the kind of tactical decision that arises day in and day out in the criminal courts.
36.
To illustrate the delicacy of such a decision, we mention a passage from the cross-examination of Stanhope by Mr Hossain QC, trial counsel for Smith, to which Mr Feest drew our attention this morning. Mr Hossain did ask some questions of Stanhope and, in particular, asked him about the skin colour of the man he identified as Chrissy Fagan. He asked the question, “Why white?”, to which the answer given was:
“Well, I thought he was someone but I was high on drugs and that. He wasn’t wearing gloves. I can’t remember seeing his hair.”
It might be thought that this evidence did not advance the defence case.
37.
We see no unfairness in the situation where the defence had the choice whether to rest on the favourable evidence that they already had or to seek, if they could, to elicit through cross-examination evidence that was even more helpful to their case.
38.
Nor, in our view, was there any unfairness to the witnesses themselves. To say, as the prosecution in effect did, ‘We do not doubt at all your honesty and veracity and the confidence with which you have made your identifications, but we contend that objectively there are reasons why we submit that you must have been mistaken’ – and to adopt that position without probing or challenging the evidence given by the witnesses – is not, in our view, unfair in any way to them. It does not cast any aspersion on their character. Nor can we see what they could reasonably have said in answer to such points as might have been put to them which they had not said already. To suggest to a witness that you might, even though you honestly believe that you have identified a particular person, be mistaken for various objective reasons is not something on which the witness can do more than express an opinion of doubtful admissibility.
39.
We would add that it was clearly appropriate for the judge to direct the jury about the need for caution in approaching the evidence of identification, and the reason for it, and to invite the jury to consider carefully the circumstances in which the identifications were made. The potential dangers of identification evidence and consequent need for care are matters which may not be known to jurors in the way that they are well known to those with experience of criminal justice. Nor do they depend on which party at the trial is relying on such evidence. In this case the judge gave proper assistance to the jury in how to approach the identification evidence, whilst rightly emphasising that the burden was on the prosecution to make the jury sure that the identifications were mistaken.
40.
In sum, it seems to us that the way in which the identification evidence was presented at the trial was as fair and as favourable as it could have been to these appellants. There is, in our view, in these circumstances no legitimate basis for the first ground of appeal.
Ground 2: evidence of Marie Moore
41.
The second ground of appeal relates to a different part of the prosecution evidence. The appellants contend that the judge was wrong to allow the prosecution to adduce the evidence given by Marie Moore of the conversation she said she had had with Steve Antrim (known as ‘Mince’), the owner of 2 Tor Place. That evidence, to recap, was that when he had kicked out the Adam and Sticky drug dealing network they had moved to Stanhope’s address, and also that he had seen Sibley supplying drugs for the Adam and Sticky network in a nearby alleyway. The obvious relevance of that evidence was that it provided a potential explanation for why Sibley and Stanhope had been attacked even though they were not in fact working for the Adam and Sticky network, who were believed to be responsible for the robbery that evening at 2 Tor Place. The fact that Marie Moore believed that Sibley and Stanhope were working for the Adam and Sticky network as a result of what Mince had told her, and that Mince had evidently believed that, was capable of supporting an inference that the appellants were also told this in the communications which took place after the robbery – although Marie Moore said that she could not remember communicating this information to them. At the very least, the evidence provided an answer to the argument which it was otherwise open to the appellants to make that the appellants had no possible motive for attacking Sibley or Stanhope because they were not working for the Adam and Sticky network but for the Aaron and Tony network.
42.
This evidence of Marie Moore was not hearsay evidence because the prosecution were not seeking to rely on her conversation with Mince as evidence of the truth of what was said but only for the fact of what was said.
43.
It is argued that because Mince was not called as a witness there was prejudice to the defence as they could not test the evidence of Marie Moore against the evidence of the person who was alleged actually to have made the statement. However, as was specifically accepted by Mr Hossain in his written grounds of appeal, Mr Antrim was not likely to be a very reliable witness. In any case, in circumstances where the truth of what he allegedly said was not in issue but only the factual question of whether or
not he said it, fairness was achieved through the opportunity to cross-examine and test the evidence of the person who testified that the statement had been made to her, namely Marie Moore.
44.
Mr Unwin, who argued this part of the case skilfully on behalf of the appellants this morning, also submitted that the evidence should have been excluded because there was no reasonable basis on which a jury could properly infer that the information (accepting, for this purpose, that it was conveyed to Marie Moore) had been communicated, whether by her or by anyone else, to the appellants.
45.
We do not accept that submission. For the purpose of deciding whether they could properly make that inference, the jury was entitled to consider the whole of the evidence, including the evidence which strongly tended to indicate that it was indeed the appellants who had carried out the attack on Sibley that evening.
46.
It is right to say that in summing up the judge did not explain to the jury as clearly as he might how they should approach this evidence and mistakenly referred to it as a “hearsay”; but he clarified the position in response to a note sent by the jury during their deliberations in which they asked:
“What weight should we attach to the hearsay evidence that Mince had said that Jay Sibley and Richard Stanhope worked for Adam and Sticky from Athena Avenue, especially since it is unknown whether this was communicated to Big G [Big G being the name for the appellants’ drug dealing network]?”
By that question, the jury showed that they had a sound understanding of the potential relevance of the evidence and of its limitations since, as they noted, there was no direct evidence that the information had been communicated to the appellants.
47.
In dealing with that jury note the judge directed the jury as follows:
“The Crown in their submissions are saying, well everyone was talking about the move to Richard Stanhope’s and you can infer that somebody would have mentioned it. That’s their approach. It’s a matter for you entirely what you make of it, but if you’re not sure there was such communication of that, then really the first part of your question falls away, you don’t really need to consider what weight you place on evidence if it wasn’t communicated.”
48.
That direction, as it seems to us was, if anything, unduly favourable to the defence because it indicated to the jury that they should disregard the evidence unless they were sure that there was a communication of the information to the appellants. It seems to us that, on a correct legal analysis, the jury did not need to be sure of that fact in order to treat the evidence as relevant. At the end of the day all that they needed to be sure of in order to convict the appellants was that they were responsible for the shooting. Evidence indicating that information linking Stanhope and Sibley with the Adam and Sticky network may have been communicated to the appellants was relevant evidence which the jury could properly take into account in reaching their overall conclusion. But in any event no criticism can reasonably be made of the introduction of that evidence in circumstances where the judge gave the jury the direction that he did. We accordingly reject this ground of appeal.
Ground 3: no case to answer
49.
The third ground of appeal is that the judge was wrong to reject a submission made at the end of the prosecution case that there was no case to answer.
50.
We do not think it necessary to lengthen this already long judgment by dealing in any detail with that argument. It is sufficient to say that, in our view, there was ample evidence adduced by the prosecution, some of which we have referred to earlier in this judgment, which justified the judge in leaving the case to the jury and on which a reasonable jury could properly convict these appellants.
Conclusion
51.
In these circumstances we consider that the convictions of these appellants are safe and the appeals must therefore be dismissed. Hodgkinson’s application for leave to appeal must, in consequence, also be refused. | {"ConvCourtName":["Winchester Crown Court"],"ConvictPleaDate":["2018-04-04"],"ConvictOffence":["Attempted murder","Encouraging or assisting the commission of an offence contrary to section 45 of the Serious Crime Act 2007"],"AcquitOffence":[],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Winchester Crown Court"],"Sentence":["Jordan Smith: 31 years’ imprisonment","Ricardo Livingstone-Wright: 30 years’ imprisonment","Jordan Perry: 30 years’ imprisonment","Sara Hodgkinson: 4 years’ imprisonment"],"SentServe":[],"WhatAncillary":[],"OffSex":["Mixed"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":["1"],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["CCTV","Mobile telephone activity","Victim testimony","Witness testimony (Stanhope, Marie Moore)"],"DefEvidTypeTrial":["Offender denies offence","Identification evidence from victim and witness not matching defendants"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[3],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Unfair handling of identification evidence","Improper admission of Marie Moore's evidence","No case to answer at end of prosecution case"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["No unfairness in handling of identification evidence","Proper legal principles applied to prosecution and judge's discretion","Jury properly directed on identification evidence","No error in admitting Marie Moore's evidence","Ample evidence for case to go to jury","Convictions are safe"]} |
Case No:
201701203 C5
Neutral Citation Number:
[2017] EWCA Crim 1778
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HIS HONOUR JUDGE THOMAS QC
T20150784
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15/11/2017
Before:
LORD JUSTICE DAVIS
MR JUSTICE LAVENDER
and
SIR NICHOLAS BLAKE
- - - - - - - - - - - - - - - - - - - - -
Between:
R
Respondent
- and -
DAVID ERNEST FLETCHER
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Rodney Ferm
for the
Appellant
Ian Howard
for the
Crown
Hearing date: 19 October 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Davis:
Introduction
1.
This appeal against conviction is based on what is said to be an inconsistency between the verdicts of a jury. Appeals advanced on such a basis only relatively rarely succeed. But it is said that the present case is one in which the appellate court should interfere.
2.
The appellant had faced trial at the Bradford Crown Court on an eight count indictment. He was on Counts 1 to 7 charged with indecent assault on a male contrary to
s. 15(1)
of the
Sexual Offences Act 1956
. On Count 8 he was charged with sexual assault contrary to
s. 3
of the
Sexual Offences Act 2003
. The complainant, who may be styled G, was the same on each count. At the conclusion of the trial before HHJ Roger Thomas QC and a jury the appellant was on 24 February 2017 convicted on two counts (Counts 2 and 3 on the indictment). He was acquitted on the remaining counts.
3.
He was in due course sentenced to a term of three years imprisonment on each count concurrent (subsequently reduced by this court to a sentence of one year’s imprisonment on each count concurrent). He has been required in consequence to register under the provisions of the
Sexual Offences Act 2003
.
Background facts
4.
The complainant, G, was born on 3 August 1976. He has a younger sister. He had a somewhat troubled upbringing. Among other things, his mother, a single parent, had significant health and other problems and struggled to cope. From the age of five to the age of nine G attended primary school in Bradford. At the age of nine, in 1985, he moved to middle school in Bradford. He struggled at school. Throughout that time the appellant was deputy headmaster at the primary school in question, although he did not actually teach G. In that time the appellant and his wife came to know G’s family; and it also seems that G’s sister was friendly with the appellant’s daughter. It was not in dispute that G thereafter would sometimes visit and also on occasion stay over (in effect as a form of respite for the mother) at the home of the appellant and his wife.
5.
In 1985 the appellant and his wife had bought a house in Long Lane, Queensbury, Bradford. There was evidence that it needed renovation and was not fit for occupation until 1986. It had around 2 acres of land attached, which they came to use in effect as a smallholding. In the summer of 1988 they then moved to a different house, the Old Sweet Factory in Wheatley, which did not have any significant land attached to it. They lived at the Old Sweet Factory until April 2007, when it was sold and they moved elsewhere. The appellant had in the meantime become head teacher at another school in 1990 and subsequently was ordained in 2001.
6.
G (who had maintained social contact with the appellant and his wife until 2004) first made complaint to the police in 2014 that on a number of occasions he had been indecently assaulted by the appellant, both at the Long Lane address and at the Old Sweet Factory. He was to say that the offending first started when he was about nine years old, after he had gone to middle school, saying that it was “at the goats.” He said that it would continue at the Old Sweet Factory (where there were no goats) and indeed continued beyond the time he reached the age of sixteen. In the event, Counts 1 to 7 on the indictment spanned the period 3 August 1985 to 2 August 1992: Count 1 being for the period 3 August 1985 to 2 August 1986, Count 2 being for the period 3 August 1986 to 2 August 1987 and so on. Each such count of indecent assault was asserted at trial to be a “specimen” count; although no count was actually framed on the indictment as a multiple-incident count. Count 8 was charged as a specific count of sexual assault relating to an incident allegedly occurring much later, between December 2002 and May 2004 (originally put, before amendment, as occurring between March 2009 and March 2011).
7.
In each case on Counts 1 to 7 the offence was tersely particularised on the indictment by stating that, in the relevant period for each count, the appellant “indecently assaulted” G, giving his age in such period in each case.
8.
In summary, the prosecution case was that the appellant regularly indecently assaulted G by touching him over his clothing, both in the area of his genitals and chest (the appellant sometimes also putting his hand on his chest under his clothing). It was also said that the appellant would grind or push against G from behind and would also kiss him (G described it as “snogging” and referred to the prickles from the appellant’s facial hair). G said that it started at Long Lane, “at the goats”, where he would regularly visit. It continued, he said, after the move to the Old Sweet Factory.
9.
As to Count 8, G said that this incident occurred when he and his wife to be (whom he had met in 2001) had gone to dinner with the appellant and his wife at the Old Sweet Factory. This was shortly before they married (in June 2004). While there the appellant whilst in the kitchen had pushed himself against G and tried to kiss him. There was evidence from G’s wife that G had appeared flustered at the end of that evening and a week or so later he told her what he said had happened. Thereafter, at all events, relations between the families were broken off. Subsequently, according to G’s wife, G had told his wife of the abuse he said he had suffered as a boy from the appellant. The police were, however, not informed until 2014, G having also told a Church Archdeacon in that year.
10.
When arrested and interviewed the appellant answered questions in full. He denied all the allegations. He suggested that they were fabricated because G was angry that the appellant – who had in the meantime been ordained – had not been in a position to officiate at G’s wedding in 2004: which, he suggested, was why social contact had then ceased.
The proceedings at trial
11.
The essential issue at trial was whether the various allegations were true.
12.
It was common ground that this was ultimately a word against word case. There was no independent corroboration for G’s account of events relating to Counts 1 to 7. As for Count 8, G’s allegations potentially had some support from his wife’s account of his demeanour that evening and his subsequent complaint to her. On the other hand, G had said that the appellant’s wife had or would have seen what occurred in the kitchen: and she gave evidence at trial wholly denying seeing anything untoward, either then or on any other occasion.
13.
We gather that G’s evidence in chief was given by way of his ABE interview. This court was provided with a transcript. The court was not, however, shown a transcript of the cross-examination of G.
14.
The actual transcript of the ABE interview provides a version of events which, as transcribed, does not, with respect, always give an altogether clear or coherent recital of events. However, G was to say that the appellant would take him to the house in Long Lane, albeit he never took his sister (there was, however, evidence from G’s mother, called by the prosecution as a witness, that the sister would sometimes go: as was also the evidence of the appellant and his wife and daughter). G among other things said “he used to have me helping with goats and stuff, I must have been about nine, so I’d just left primary school….” G also said that there was a period of time, when he was aged between twelve and thirteen, when he had gone to Cornwall for a few months and attended a local school in Cornwall before returning. He said that the offending reoccurred at the Old Sweet Factory after he returned from Cornwall. G gave further evidence about what he said had occurred. So far as Long Lane was concerned, he among other things said: “he’d start messing about, he were messing about at first….. doing bedding on straw, goats and stuff, like, starting…. and then it’d end up…. not touching genitals, touching, but touching everywhere else and kissing me like a girl….” He went on to say that “the goats were the first thing… It’s just what happened when we were bedding out…. Looking back, you think, you know, you think it’s just messing about but it weren’t, it were touching….” He went on to indicate where he had been touched. He went on to say “…but that were away from everyone as well, cos we were mucking out, weren’t we?” Concerning later incidents, he said he would see the appellant around once a week (that was in issue at trial). When asked how many times these things happened, he said: “As soon as he could get away, as soon as no one were there.”
15. It was not in dispute that G had remained in contact with the appellant and his family until 2004 but not thereafter. His mother was to say in evidence that, as a child, G had seemed happy to go and visit the appellant and never said to her that anything wrong had happened.
16. One feature of G's ABE interview is that much of it included allegations by G of (altogether more serious) sexual abuse of him as a child by another, very prominent, individual in the local community. Indeed it was suggested at trial that this may have tainted G's perception about the appellant's own conduct. It was also suggested that his complaints may have been prompted by a bitter and deluded relative (since deceased).
17.
The appellant gave evidence at trial in line with his interview. He totally denied all the allegations. His wife also gave evidence, as did other witnesses. A considerably amount of character evidence was also adduced, attesting to the appellant's attributes and good service. The appellant had no previous convictions of any kind.
The summing-up
18. No criticism of any sort is made as to the fairness or balance of the summing-up.
19.
The judge – who of course gave the required direction as to burden and standard of proof - pointed out that there was "a dramatically opposed clash of evidence. It happened in these ways, [G]; no such thing happened, the defendant”. Dealing with the indictment, the judge also pointed out that the first seven counts covered the period when G was aged between nine and sixteen (then giving appropriate direction relating to the lapse of time). The judge noted that these had been described at trial as "specimen" counts. As to that the judge said:
“If you are going to convict the defendant on any one count you would have to be sure that the conduct that he [G] generally describes, those various acts, not all of them but an act during that particular year, whichever count you are looking at, that it did happen on at least one occasion about which you are all agreed during that year of his childhood...”
The judge went on to give a full separate treatment direction. Amongst other things he said this (saying that he would come on to Count 8 separately):
“Counts 1 to 7 they are separate counts but this is not a situation where you can say to yourselves: well we are sure he has done it and therefore guilty across seven counts. Each count has to be looked at separately and individually... there [are] eight verdicts to return here, individual separate verdicts in relation to each count.”
21. The judge had noted in the course of the summing up the effectively unchallenged evidence of the defence that the goats only arrived at Long Lane in around October 1986: which was after the period specified in Count 1. As to Count 4, it was also noted by the judge that in the period between August 1988 and August 1999 G's own evidence was that he had for much of that time been in Cornwall. Having made these observations as to timings the judge then said:
“So I go back to what I was saying, each count does need that separate and individual consideration in terms of did anything happen at all in that year, of course the defence case is nothing happened in any year, but did anything happen in a particular year, are you sure of it, and look at the particular year as well as the particular conduct, that is the task ahead of you.”
22.
The judge summarized the facts and the issues arising on all the evidence relating to the counts. The judge set out the respective cases of the prosecution and defence. In the result the jury convicted on counts 2 and 3 and acquitted on the remaining counts, as we have said.
The legal principles
23. There was no dispute before us about the applicable legal principles. They are authoritatively set out in the recent decision of a constitution of this court in the case of
Fanning, Kerner, Osianikovas
and
de Jesus
[2016] EWCA Crim 550
, [2016] 2 Cr. App. R. 19. That decision itself confirmed the previous Court of Appeal decision in
Durante
[1972] 3 All ER 962
.
24. In
Durante
, Edmund Davies LJ, giving the judgment of the court, cited with approval the remarks of Devlin J in the unreported decision of
Stone
(1954). Devlin J there had said:
“When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.”
Edmund Davies LJ then formulated the position as this:
“...the burden is on the appellant to show that the verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court.”
On the facts of that particular case, (where, as it happens, the trial judge had directed the jury that the two counts in question did not necessarily stand or fall together), it was held that the appellant had discharged the burden resting on him.
25. Those principles were affirmed in
Fanning
. It was there also pointed out, by reference to statements in earlier authority, that the jury is "not a precision instrument" and that "if a flawless process of reasoning were required a jury would be a strange body from which to require it." It was also stressed that the court must be careful not to usurp the role of the jury.
26. A further principle in this context - and relevant to the present case - was affirmed in
Fanning
. That is to the effect that, where a complainant’s credibility is in issue and that complainant's evidence is uncorroborated, guilty verdicts are not to be regarded as unsafe just because the jury also has returned not guilty verdicts in relation to other counts based on that complainant's allegations: see, for example,
Cilgram
[1994] Crim LR 587. It thus is generally permissible for a jury to be sure of the credibility or reliability of a complainant on one count on an indictment but not on another count. A jury therefore is not to be treated as having rejected a witness's evidence altogether just because it is not convinced of the defendant's guilt on a particular count: see
Fanning
at paragraph 27. Accordingly there is no necessary irrationality in, for example, convicting on one count and acquitting on another even where both counts relate to the same sexual encounter: the case of
Osianikovas
itself being such a case. As the court, however, also went on to say (in dealing with the case of
de Jesus
): "…although there should be no differentiation as a matter of law between a single event and a series of events, the potential for different verdicts is greater than if the court is trying a number of counts arising from a single episode": see paragraph 100.
28. Yet further, even where a strict logical inconsistency can be identified it by no means follows that the verdicts are so inconsistent as to require the court to interfere: as the case of
Segal
[1976] Crim LR 324 and the Australian case of
McKenzie
v
R
[1976] 190 CLR 348, both cited with approval in
Fanning,
demonstrate.
29.
Finally, the court in
Fanning
emphasised (at paragraphs 29 and 30) that it will not usually be open to a defendant to complain of inconsistent verdicts where a jury has, without objection, been given a conventional separate treatment direction in the summing up. After all, it is difficult to complain of a jury acting illogically or irrationally when it returns verdicts in a way that it has been instructed it was legally entitled to do.
Disposal
30. We turn to our conclusion in the present case.
31. On one, simple, view there is no illogicality or inconsistency here at all. The jury was, in principle, not required either to accept or to reject G's evidence in all respects. Further, it had been given a full separate treatment direction. On that basis alone it can be said that the verdicts cannot be held to be so inconsistent that no reasonable jury could have reached the conclusion that the verdicts could stand together.
32.
However, we do not think that it would do justice to Mr Ferm’s careful and persuasively put arguments to dispose of this appeal on so summary a basis. Indeed we apprehend that it was those arguments, as presented in writing and subsequently orally and in writing supplemented before us, that persuaded the single judge to grant leave to appeal in this case.
33. Mr Ferm, understandably enough, put emphasis on the acquittal on Count 8. That was the most recent incident in point of time, occurring (as alleged) when G was an adult and when his memory would have been fresher. Further, the allegation had some degree of support from his wife’s evidence. Yet the jury acquitted. Mr Ferm thus queried how the jury nevertheless could be sure of guilt on two, very much earlier, incidents when G was a child and when his evidence was wholly uncorroborated. We see the point. But Count 8 related to a quite separate and self-contained incident and the evidence both of prosecution and of defence witnesses was different. It cannot be assumed that the assessment of G's evidence relating to that particular count was required to be taken by the jury as the key to the assessment of his credibility and reliability on all the other counts. Thus the acquittal on Count 8 cannot of itself vitiate the conviction on other counts relating to much earlier incidents: as Mr Ferm rightly accepted.
34. It also cannot be said that there is any logical or other inconsistency between the acquittal on Count 1 and the convictions on Counts 2 and 3 - those three counts covering events at Long Lane - if only because there was the clear distinction arising from the date when the goats actually arrived late in 1986. Likewise, with regard to the Old Sweet Factory, Count 4 potentially had a clear differentiation: since that count spanned the period when, on G's own evidence, he was for several months in Cornwall.
35. Mr Ferm accepted all this - indeed it explains, he said, the judge’s separate treatment direction in the summing up. But he said that there was more. In particular, his point was that the jury also acquitted on Counts 5, 6 and 7 whilst at the same time convicting on Counts 2 and 3. He submitted that no rational basis for this differentiation can be discerned. He submitted that the evidence of G had drawn no difference in type with regard to the conduct alleged as between Long Lane and the Old Sweet Factory. It was not said, for example, that there had been any progression or variation in the type of sexual abuse alleged as between the two venues. He submitted that there was no additional evidence specific to what happened at Long Lane; and, on the contrary, those matters related back furthest in time and when G was at his youngest. True it was that G had "anchored" those particular allegations relating to Long Lane by saying that they had occurred "at the goats" - but that, he submitted, was of no true materiality given that it was always common ground that G had on a number of occasions been to Long Lane "at the goats".
36. For his part, Mr Howard for the Crown drew attention to the way in which the indictment had been framed and the way in which the judge had in consequence summed up to the jury. He stressed that each of Counts 1 to 7 of the indictment was specific as to the year in which what was alleged happened and as to the age of G at the time. Thus the emphasis of G on what happened occurring “at the goats”, after he had gone to middle school, was material to the jury's consideration not only of
what
happened but
when
it happened: as the summing up had specifically required the jury to consider. Thus there was a differentiation in at least this respect between these counts and the counts relating to the Old Sweet Factory. (Those are points of a general kind, we note, also considered material by the court in disposing of the case of
Fanning
, on its facts: see paragraphs 38 to 40 of the judgment.) In any event, Mr Howard said, there were other differences as to the evidence relating to the individual counts. For example, G had said that the abuse at Long Lane occurred whilst the goats were being bedded out; but there were was no such level of detail with regard to what is said to have later occurred at the Old Sweet Factory whilst G was still under the age of sixteen.
37.
We have carefully considered the points made. On one view, the jury's decision to acquit on count 5, 6 and 7 but to convict on counts 2 and 3 - counts 1 and 4 are much more easily explained - may seem surprising: the more so, perhaps, when set in the context of the acquittal on count 8 also. But the authorities are clear that what may seem to an appellate court (which of necessity has not heard or seen the witnesses at trial) to be surprising is not of itself enough to entitle it to set aside verdicts of a jury on the ground of inconsistency. Indeed in a case such as the present it could involve the court attempting to engage in a degree of post - trial rationalisation which accords to a jury's reasoning the requirements of a precision instrument: which again this court should not do.
38. We are in any event not able to say, from the materials which we have seen, that the evidence which G gave as to what occurred was in effect undifferentiated between what happened at Long Lane and what happened at the Old Sweet Factory. It is possible, at all events, to extract a greater degree of specificity from the transcript of the ABE interview as to the alleged events at Long Lane (for example, that the indecent assaults occurred while mucking out) as compared to the very generalised evidence about what occurred thereafter at the Old Sweet Factory (apart from count 8). It may be – we have no way of knowing ourselves – that this may have been reinforced in the minds of the jury as a result of the oral evidence. The jury may well have concluded that with regard to Long Lane it was persuaded on Counts 2 and 3, by the evidential details provided, for each year as charged (Count 1 having the obvious difference as set out above) but may have been left in doubt by reason of the lack of detail on Counts 4, 5, 6 and 7. We cannot, at all events, say that the jury’s verdicts are wholly inexplicable. The verdicts are not so inconsistent as to demand interference by the court.
39. Moreover, the judge had in terms given a very full separate treatment direction to the jury, without objection. It is also perhaps a point of comment that – whilst the potential differences for Counts 1, 4 and 8 were clear and spelled out in the summing-up – the trial judge, who had heard all the evidence, had not thought it appropriate to give the jury a “steer” as to there being any difficulty in reaching different verdicts between Counts 2 and 3 on the one hand and Counts 5, 6 and 7 on the other hand.
Conclusion
40.
It is essential in cases of this kind that the appellate court should adhere to the principles of
Durante
, as explained and confirmed in
Fanning
. Although the powerful arguments of Mr Ferm have given us some cause for hesitation, our ultimate conclusion is that, on the facts of this particular case, there is no inconsistency here such that the verdicts cannot stand and such that this court is required to interfere. The appellant has not discharged the burden on him in this regard. The convictions are to be regarded as safe. That being so, we must dismiss this appeal against conviction. | {"ConvCourtName":["Bradford Crown Court"],"ConvictPleaDate":["2017-02-24"],"ConvictOffence":["Indecent assault on a male contrary to s. 15(1) of the Sexual Offences Act 1956 (Counts 2 and 3)"],"AcquitOffence":["Indecent assault on a male contrary to s. 15(1) of the Sexual Offences Act 1956 (Counts 1, 4, 5, 6, 7)","Sexual assault contrary to s. 3 of the Sexual Offences Act 2003 (Count 8)"],"ConfessPleadGuilty":[],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[],"Sentence":["Three years imprisonment on each count concurrent (subsequently reduced by this court to a sentence of one year’s imprisonment on each count concurrent)"],"SentServe":["Concurrent"],"WhatAncillary":["Required to register under the provisions of the Sexual Offences Act 2003"],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Complainant testimony (ABE interview)","Testimony of complainant's wife","Testimony of complainant's mother"],"DefEvidTypeTrial":["Defendant testimony","Testimony of defendant's wife","Testimony of other witnesses","Character evidence"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no previous convictions","Considerable character evidence attesting to attributes and good service"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Jury returned inconsistent verdicts; convictions on some counts and acquittals on others based on same complainant's evidence"],"SentGuideWhich":[],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Jury was given a full separate treatment direction; verdicts not so inconsistent as to demand interference; possible rational basis for differentiation between counts; convictions are safe"]} |
Neutral Citation Number:
[2010] EWCA Crim 2335
Case
No: 201001442 A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date: MONDAY, 20TH SEPTEMBER 2010
B e f o r e
:
LORD JUSTICE LEVESON
MR JUSTICE DAVIS
MR JUSTICE LLOYD JONES
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
BENJAMIN ALAN COOPER
- - - - - - - - - - - - - - - - - - - - -
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 J Samuels Qc
Appeared On Behalf Of The
Applicant
Mr H L Bentham
Appeared On Behalf Of The
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LEVESON: On 8 February 2010 in the Crown Court at Preston before Nicol J this appellant pleaded guilty to manslaughter by reason of diminished responsibility and attempted murder. On 16 September 2010 he was sentenced for manslaughter to imprisonment for public protection pursuant to
section 225
of the
Criminal Justice Act 2003
with a minimum term of 6 years, less time spent on remand, and for attempted murder to a similar sentence with a minimum term of 4 and a half years, less time spent on remand. On both counts a Hospital and Restriction order was made pursuant to
section 45
A of the
Mental Health Act 1983
as amended, directing that the appellant was to remain at Guild Lodge secure accommodation, as opposed to prison. The effect of this order was to make the appellant subject to the restrictions contained within
section 41
of the
Mental Health Act 1983
concerning his release from hospital, where upon depending upon any prior assessment of the Parole Board he would be returned to prison. He now appeals against sentence by leave of the single judge.
2.
The facts can be recited comparatively briefly. The appellant lived in Millam with his partner, Claire Marshall, their three year old daughter and Miss Marshall's daughter from a previous relationship. The appellant was drinking too much and taking excessive amounts of illicit drugs, which affected his character and the way he behaved. His relationship with Miss Marshall as a consequence broke down in January 2008. After they parted company the appellant obtained an order that he should be allowed to see his daughter, which regularly he did.
3.
At about 9.30 on 24 January 2009 the appellant arrived at Miss Marshall's home by prior arrangement to collect his daughter. The appellant then jumped on Miss Marshall and started hitting her until she fell to the floor. He removed his pen knife and made a determined attempt to cut her head from ear to ear. Presumably finding the knife inadequate, he then went into the kitchen and grabbed a larger knife. Miss Marshall's elder child tried to stop the appellant, but he held the knife up to her. The appellant continued to attack Miss Marshall with the larger knife. The child ran from the house with her little sister and tried to get help from neighbours.
4.
The next door neighbour, Mr Morris, was at home when Miss Marshall's daughter banged on the door shouting hysterically for help. Mr Morris attempted to pull the appellant off Miss Marshall, but was unable do so. As a result, he drove to the police station to bring back the police. In the meantime, the appellant had left the house and driven off. He was covered with blood. When the police arrived they found Miss Marshall lying face down with the knife on her back.
5.
The attack was of the utmost savagery. 21 incised wounds to the head and neck, 12 wounds to the right arm and 8 wounds to the left arm were found, as well as lesser injuries to the lip and mouth. The injuries were multiple and extensive, with both superficial and deep incised wounds to the neck and lower part of the face. Many were caused by cutting or the slashing motion of the weapon, others by deep, penetrating stab wounds. The wounds encircled the whole of the neck, cutting through skin, the superficial anterior and lateral neck muscles and the posterior para-spinal muscles. The spine had also been damaged. In the opinion of the pathologist, the appellant had been trying to cut off Miss Marshall's head. She died very quickly after the attack, her vital organs and arteries having been severed.
6.
In the mean time the appellant had driven to the home of his step-father, Gerald Fern. He knocked on the door covered in blood. Mr Fern let him in and asked what he had been up to. The appellant replied he had been doing a bit of butchery and had come to borrow a meat cleaver and a knife. Mr Fern pointed out the knife draw and went into the dining room. As he turned his back, the appellant picked up the meat cleaver and struck Mr Fern two forceful blows on the head, stunning him. A struggle ensued. The appellant pulled a second knife from the drawer and attempted to wound Mr Fern. The struggle moved into the street, where Mr Fern eventually managed to disarm the appellant, by which time he was bleeding heavily and had been severely injured. The appellant ran back inside, picked up two other knives, and returned to attack Mr Fern once more. The struggle recommenced until the appellant suddenly announced "that's enough." Mr Fern asked why. The appellant replied "Claire is in a worse state than you are". There were a number of eye witnesses to the attack, and the police were soon on the scene.
7.
Mr Fern was airlifted to hospital. Had he not arrived so quickly he may not have survived. He suffered a severe laceration to the right ear, which was nearly completely cut off. He had lacerations to the left forehead and left neck, a bruised and swollen right eye, several deep cuts to the right arm and deep lacerations to his skull, right shoulder, chest and back. He had significant injuries to the tendons of his right arm. It was unknown whether the functions of his arm would be permanently affected.
8.
The appellant was arrested nearby. He was briefly examined by a psychiatrist before he was interviewed. He gave a detailed account in the interview, describing the weapons and attacks. He said he felt frenzied at the time. He thought Miss Marshall was going to have him murdered so he had seized the initiative. He had attacked Mr Fern, as if he was going to get killed himself he might as well go and get Mr Fern. He would not admit wanting to kill Miss Marshall, but he did accept that probably he wanted to inflict serious injury upon Mr Fern, although he did not know if he actually wanted to kill him.
9.
The import of these offences is described in moving terms in victim personal statements from Miss Marshall's daughters, her father and the grandparents of two of her children, who are now looking after all three girls. The effects of these offences will clearly be with them forever.
10.
The appellant is now aged 36 and was of prior good character. Although he had no previous history of prior mental disorder, he was clearly, at least in substantial part, in the grip of serious mental disorder at the time of this offending. Initially he was considered unfit to plead and for the purposes of sentence there were not only a number of reports prepared covering his fitness to plead, but also a series of psychiatric reports dealing with the question of diminished responsibility. In particular a report of 21 November 2009 provided on behalf of the appellant by Dr Green stated that the appellant suffered from a major mental illness classified as a delusional disorder or paranoid schizophrenia. Had he not been suffering from a severe mental illness the offences would not have occurred. They were driven, he concluded, by his delusional beliefs. The severity of the illness indicated that his responsibility for his actions was substantially diminished. He recommended a hospital order with indefinite restriction.
11.
In a report dated 25 November 2009 prepared for the Crown, Professor Peckitt noted the appellant's heavy drug misuse coupled with aggressive and abusive elements of his personality, which he concluded gave rise to the situation in which he had developed an acute and severe delusional disorder. He considered his possessive, abusive and violent conduct towards his former partner possessed a significant element in the creation of risk when he became unwell. He concluded that the appellant exhibited the signs of threat control override syndrome, suffering from a severe mental disorder at the time of both offences. He also recommended detention under the Mental Health Act, observing that a restriction order under
section 41
would be appropriate because the risk to the public was manifest, and the need for long term supervision almost unquestionable. He raised the alternative disposal of a hybrid order, reserved for cases in which he considered that there was a high level of culpability. Such a sentence would be optimised without loss of opportunity for care and rehabilitation. He also concluded that attaching a tariff of more than five years might undermine and paradoxically weaken the benefits of mental health treatment.
12.
A further report was available from the psychiatrist who had been responsible for the appellant's treatment, Dr Abdur. He confirmed that the appellant was suffering from a severe psychiatric illness, paranoid schizophrenia, which is a mental disorder within the meaning of
the Act
. The condition, he concluded, had deteriorated in the weeks leading up to the offences, and the appellant's illness required continuing detention in a secure hospital for appropriate treatment. It was highly likely that he was driven by his delusional beliefs when he committed the offences and was suffering from paranoid schizophrenia.
13.
When passing sentence the judge, who had heard both Dr Green and Professor Peckitt give evidence at length, observed that these were appalling crimes. If the appellant had not been suffering from a mental disorder, they would have led to extremely lengthy sentences of imprisonment. He accepted the conclusion of the doctors that the appellant was suffering from a severe psychotic mental disorder, probably taking the form of paranoid schizophrenia. He went on that the abnormality of mind from which he was suffering was directly linked to his attack on Claire. He attacked her because in his disturbed state he believed that she was planning to kill him. He could have given no thought of the impact on Claire's daughters, especially the two who had witnessed events. In a person of sound mind, indifference or thoughtlessness of this kind would be a further aggravating feature, but the learned judge proceeded on the basis that this was an aspect of the delusional disorder which had such power over the appellant.
14.
He also concluded that the appellant was still suffering from a serious mental disorder when he attacked Gerald Fern, a quarter of an hour later. The link, however, was less clear cut. The appellant thought that Mr Fern had been involved in financial conspiracy against him, but did not consider that he was at immediate risk from him. He felt he crossed the point of no return so, "might as well" settle his deluded account with him, too. Even from that distorted perspective, the learned judge concluded that the attack was an act of revenge, not self-defence.
15.
The judge accepted that neither offence would have occurred but put for the appellant's illness. Whilst he suffered a complete loss of control prior to killing Claire, he had regained some control by the time he came to attack Gerald. The appellant's disorder was clearly of a nature and degree that made detention in hospital to obtain medical treatment appropriate. Such medical treatment was available, and he had responded positively to the treatment so far. The judge, however, went on:
"While I accept that you need treatment for your mental disorder in your case, the sentence I must impose must also meet two other objectives. Your psychosis can cause you to be an extremely dangerous person, as these offences demonstrate. There should be no question of release until the responsible authorities are clear that you no longer represent a danger to public safety. Second, while your responsibility for these crimes is diminished by your mental disorder, it is not wholly extinguished. A significant degree of responsibility remains. You have pleaded guilty to manslaughter on the basis of diminished responsibility. Once you were in the grip of the severe psychosis, I accept that your responsibility for Claire's death was very considerably diminished. It is not, though, eliminated entirely. Professor Peckitt thought that it was overwhelmingly likely that this psychosis was stimulated by your misuse of illegal drugs, particularly amphetamines, and, somewhat ironically, your withdrawal from them in the Autumn of 2009. Dr Green thought it was more likely than not that your drug abuse contributed to your illness. It is true that you had not taken illegal drugs or alcohol at the time of these offences. I accept that you would not have foreseen that these drugs would drive you to mental disorder, but by starting to take them you did voluntarily embark upon a course which was to have such tragic consequences. For that you must bear some responsibility. That applies as much to the attack on Gerald. Here, too, the attack would not have happened but for your delusions, yet you had regained sufficient control after killing Claire to drive your car to his house and to appear relatively calm when you first spoke to him. Although you thought that Gerald was part of the conspiracy against you, your attack on him was not prompted by the same motives as had been your attack on Claire. This means that the difference between these two offences is not just the illegal one, but there is no partial defence to the offence of attempted murder based on diminished responsibility. For these reasons I consider that I must impose a sentence of imprisonment. You undoubtedly pose a very significant risk of causing very serious violence to members of the public. That risk may diminish as treatment continues to be successful, but when, if at all, that will occur is uncertain. The risk will continue for an indefinite time into the future. Only an indeterminate sentence of imprisonment will adequately protect the public."
16.
Mr Samuels QC, who appears for the appellant in this court as he did before Nicol J, has taken us to the origins of
section 45
A of the
Mental Health Act 1983
, to be found in the White Paper, Protecting the Public, published in 1999, which included the following analysis:
"8.12. The government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection to the public, and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a "hybrid order" for certain mentally disordered offenders, for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order will enable the court in effect to pass a prison sentence upon an offender and at the same time his immediate admission to hospital for medical treatment.
8.13. The hybrid order, together with other proposals amending the detail of the
Mental Health Act 1983
would substantially increase the flexibility of arrangments for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular it would enable the court to deal with some of the most difficult cases in a way which took proper account of the offender's need for treatment, the demands of justice and the right of other people to be protected from harm.
8.14. Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender's detention in hospital for treatment or to sentence him to imprisonment or to make some other disposal. In some cases an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence, notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirement of sentencing in such cases to be met. Under an order an offender would remain in hospital for as long as his mental condition required but if he recovered or was found to be untreatable during the fixed period set by the court he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorders by the Department of Health and Home Office working group on psychopathic disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by Mental Health legislation."
17.
Legislative effect was given to this proposal by
section 45
A of
the 1983 Act
initially in respect of psychiatric disorders, but now extended to all forms of mental disorders. Mr Samuels places particular emphasis on paragraph 8.12 and the need for the requirement that an offender retain a significant degree of responsibility for their offence. He also argues that the only two examples of this power being considered by this court,
Staines
[2006] EWCA Crim 15
and
House
[2007] EWCA Crim 2559
, were cases where the order was appropriate because of the uncertain nature of the appellant's condition, although his suggestion that a mental illness will require treatment and a psychiatric order is likely to merit imprisonment is not reflected in the authorities. In reality, those suffering from a mental illness such as depression may very well retain significant responsibility for their offending, albeit that the responsibility is substantially diminished, but not extinguished by reason of their illness.
18.
Mr Samuels does not seek to challenge the assertion that a substantial period of treatment is likely to be necessary. He submits the pitfall of the sentence is that at the time when a Mental Health Tribunal is prepared to conclude the appellant no longer suffers from a mental illness sufficient to warrant detention in hospital, his therapeutic rehabilitation could be thwarted because the Parole Board would have different criteria to consider. Based on the evidence of Dr Green, he describes the result, in all probability, would be a transfer back to a prison and a heightened risk of relapse with a significant danger to staff and prisoners within the prison setting, before a transfer back to hospital might be affected. Pausing there, we observe that if the appellant's therapeutic rehabilitation were to be so fragile that a prison setting, however structured to deal with one who had suffered serious mental disorder, might cause it to reemerge, for our part we would be very concerned about the potential pitfalls he would face if he had been discharged back immediately into the community. We note that Nicol J considered the risk, but still considered it appropriate to make the order that he did.
19.
In any event, we do not accept that the potential risk represents a realistic appreciation of the position. For many years under
section 47
of the
Mental Health Act 1983
it has been possible for the Secretary of State to transfer those sentenced to a term of imprisonment to a mental hospital if mental illness requiring such treatment has required it. Assuming eligibility for parole, when detention in hospital is no longer necessary the responsible medical officer treating such a prisoner can doubtless recommend either a return to prison or a discharge into the community, presumably in the usual course of events through mental health facilities offering decreasing security. As identified in
Staines
, the procedure is for the Mental Health Review Tribunal, if so satisfied, to make a recommendation to the Parole Board for release. The offender remains in hospital until such time as the Parole Board makes its decision. Mr Samuels also suggests that in a secure hospital the appellant would not have access to the type of courses that would be necessary to satisfy the Parole Board that he no longer posed a significant risk to the public. Suffice to say we have no basis for concluding that ways could not and would not be devised for the appellant to demonstrate that he did not pose a risk to the public, which in any event would doubtless be necessary in order for him to persuade a Mental Health Review Tribunal that his mental illness was sufficiently abated that his continued detention was no longer justified.
20.
As to post release support, although supervision and monitoring arrangements which may be obtained under a life licence are not necessarily the same as a comprehensive and social psychiatric support package and reporting requirements which a Mental Health Review Tribunal might impose as a condition of discharge, we can see no reason why appropriate arrangements could not be made at the instance of the Parole Board. Further, what is absolutely critical for appropriate cases is the wider ability to recall for breach of a life licence, as opposed to a failure to comply with a support package put in to place by the Mental Health Review Tribunal, and in particular the wider ability to recall, absent collapse of mental health.
21.
This analysis is not of course dispositive of this appeal, because the thrust of Mr Samuels' cogent argument is that the appellant bore no significant responsibility for the crimes to which he pleaded guilty. The illness was clearly defined, as was the link between that illness and the offending, so he argued that the judge was wrong to attach that responsibility to the appellant. There was no reliable evidence enabling the court to assess the contribution that had been made in the development of the appellant's psychosis by his voluntary abuse of drugs, the consequences of which he could not have seen. Mr Bentham QC for the Crown challenges this submission and argues that the appellant bore a significant responsibility for what he had done.
22.
We revert to the judge's conclusions. He recognised that the appellant had attacked Claire Marshall because of his delusional belief that she was planning to kill him, and his failure to recognise the impact on the daughters, especially the two who witnessed attack, was a further aspect of his delusional disorder. He also recognised that the delusional disorder was a powerful driver in relation to the attempted murder of Gerald Fern. Having considered the papers with real care and having heard both the psychiatrists, he remained of the view that the appellant had regained some control by the time of his attack on Gerald and specifically concluded that his responsibility was not wholly extinguished, but that a significant degree of responsibility remained. By voluntarily ingesting prescribed drugs he had voluntarily embarked upon the course of events which led to his illness, and therefore bore some responsibility, and he had also regained a measure of control when he went on to attack Mr Fern.
23.
Nicol J was in the best position to reach conclusions about what the psychiatrist said and the responsibility of the appellant. He did so expressing his views carefully and cogently, and there is no basis upon which it would be appropriate for us to interfere with those conclusions. In those circumstances it is not realistic to argue that the judge was wrong in principle to conclude that the appellant bore a significant responsibility for the offences, and furthermore that public safety did not justify the additional protection that an order under
section 45
A of the Mental Health Act would bring. In these circumstances, notwithstanding Mr Samuel's helpful submissions, this appeal is dismissed. | {"ConvCourtName":["Crown Court at Preston"],"ConvictPleaDate":["2010-02-08"],"ConvictOffence":["Manslaughter by reason of diminished responsibility","Attempted murder"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Preston"],"Sentence":["Imprisonment for public protection (IPP) for manslaughter with a minimum term of 6 years, less time spent on remand","Imprisonment for public protection (IPP) for attempted murder with a minimum term of 4.5 years, less time spent on remand","Hospital and Restriction order under section 45A of the Mental Health Act 1983"],"SentServe":["Concurrent"],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[36],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":["No"],"OffVicRelation":["Acquaintance","Relative"],"VictimType":["Individual person","Individual person"],"VicNum":["2"],"VicSex":["All Female","All Male"],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Expert report/testimony","Medical evidence"],"DefEvidTypeTrial":["Offender admits offence","Psychiatric evidence"],"PreSentReport":[],"AggFactSent":["Extreme violence","Multiple victims","Offence committed in presence of children"],"MitFactSent":["Offender showed genuine remorse","Offender has no relevant previous convictions","Offender suffered from severe mental illness"],"VicImpactStatement":["Yes"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence"],"AppealGround":["Appellant bore no significant responsibility for the crimes due to mental illness; judge was wrong to attach significant responsibility"],"SentGuideWhich":["section 225 of the Criminal Justice Act 2003","section 45A of the Mental Health Act 1983","section 41 of the Mental Health Act 1983"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge was entitled to conclude appellant bore significant responsibility; public safety justified additional protection of section 45A order; no basis to interfere with sentencing judge's conclusions"]} |
Case No:
200905323 A8
Neutral Citation Number:
[2010] EWCA Crim 244
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 5 February 2010
B e f o r e
:
MR JUSTICE SILBER
MR JUSTICE KENNETH PARKER
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
KEVIN TOMKINS
- - - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - - -
The
Appellant
and the
Crown
were unrepresented
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE SILBER:
On 14 April 2008, Kevin Tomkins appeared at the Crown Court in Birmingham for sentence. He had previously pleaded guilty before the Magistrates' Court to a Count of burglary of a dwelling, the attempted burglary of a dwelling, and theft. He also asked for 15 offences to be taken into account. He was then committed to the Crown Court for sentence.
2.
The sentence imposed upon him was 12 months' imprisonment, suspended for 18 months concurrent on each Count. In addition, he was required to complete 180 hours unpaid work on a Think First Scheme, and 24 hours of supervision. The matter had been referred by the registrar to this court, and we grant leave to appeal.
3.
There had in fact been applications for a breach on 16 September 2008. The judge on that occasion ordered the sentence to continue with an additional 7 hours unpaid work to be imposed to mark the breach. Therefore, the order became more onerous. Subsequently, the appellant again was charged with breaching the order. This time the matter came before HHJ Inman QC, and he helpfully drew attention to the fact that the supervision period was too long. In those circumstances, counsel for the appellant appealed for leave to appeal on the basis that the 24 month supervision period was longer than the 18 month operational period, and therefore it was not justified by law.
4.
It is correct that
section 189(4) of the Criminal Justice act 2003
provides that:
"The supervision period must not end later than the operational period".
5.
As the operational period was 18 months, the supervision period of 24 months is too long and therefore unlawful. We therefore allow this appeal, reducing the supervision period from 24 months to 18 months, with effect from the date on which the sentence was imposed, which is 14 April 2008.
6.
To that extent this appeal is allowed. | {"ConvCourtName":["Magistrates' Court"],"ConvictPleaDate":[""],"ConvictOffence":["burglary of a dwelling","attempted burglary of a dwelling","theft"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes"],"PleaPoint":[""],"RemandDecision":["No"],"RemandCustodyTime":[0],"SentCourtName":["Crown Court in Birmingham"],"Sentence":["12 months' imprisonment, suspended for 18 months concurrent on each Count","180 hours unpaid work on a Think First Scheme","24 hours of supervision"],"SentServe":["Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[0],"OffJobOffence":["Other"],"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":[""],"DefEvidTypeTrial":[""],"PreSentReport":["Low risk of reoffending"],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[0],"AppealAgainst":["appeal against sentence"],"AppealGround":["supervision period was longer than the operational period and therefore not justified by law"],"SentGuideWhich":["section 189(4) of the Criminal Justice act 2003"],"AppealOutcome":["Appeal allowed and sentence reduced"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["supervision period of 24 months is too long and therefore unlawful"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]} |
Section 1 of the Sexual Offences (Amendment) Act 1992 applies in the case of Chaplin. No matter relating to any complainants shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify them as the persons against whom offences were committed.
Neutral Citation Number:
[2022] EWCA Crim 433
Case No: 202102210 A2 / 202002185 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT EXETER
His Honour Judge Horton
T20210018, S20210009
AND ON APPEAL FROM THE CROWN COURT AT IPSWICH
His Honour Judge Levett
S20200053, S202000093
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
31/03/2022
Before :
LORD JUSTICE EDIS
MR JUSTICE FRASER
and
HER HONOUR JUDGE DHIR QC
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
- and -
THOMAS PAUL CHALK
Appellant
And between :
REGINA
-and-
ANDREW GEORGE CHAPLIN
Applicant
- - - - - - - - - - - - - - - - - - - - -
Mr N Wraith
appeared on behalf of the Appellant
Ms S Wyeth
appeared on behalf of the Applicant
Mr A Johnson
appeared on behalf of the Crown
Hearing date: 4 February 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely by circulation to the parties’ representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10:00am on Thursday 31
st
March 2022.
Mr Justice Fraser :
1.
This is the judgment of the court. The appeal (in the case of Thomas Chalk) and renewed application for leave to appeal (in the case of Andrew Chaplin) are both in relation to sentence. They have been listed together because they raise common technical issues relating to the lawfulness of what occurred at the respective Crown Courts. In particular, they both concern the lawfulness of rulings made by the judge when sitting as a District Judge pursuant to
section 66
Courts Act 2003
, and the degree to which they affect the lawfulness of the sentences imposed. They both concern matters that had been committed for sentence to the Crown Court by the Magistrates’ Court, and certain steps taken in the Crown Court where the sentencing judge sat as a District Judge in the Magistrates’ Court under
section 66
(to which we shall refer as sitting as a DJ(MC)). The two cases have no other connection. The appeal and the renewed application were heard together for that reason.
2.
Neither the appellant nor the applicant raised the technical issues in question at the time, nor indeed when they submitted their respective Grounds of Appeal following their sentencing. However, these matters were noticed by the Registrar of Criminal Appeals when the papers were initially considered, and a note was sent to all the parties by the Registrar notifying them and inviting further submissions. These issues were therefore all addressed by all of the parties, including the respondent, but without any clear resolution to these technical issues emerging.
3.
Particularly because of the rapidity with which matters are now being put to defendants in the Magistrates’ Court, technical issues such as those in these two cases (or broadly similar ones) may occur in future cases. As well as resolving the technical issues that arise in these cases, this judgment is also intended to focus the minds of those prosecutors who appear in the Crown Court in particular, so that they are aware of the need for vigilance, and technical accuracy, when such situations arise.
4.
Although these two cases have been listed together, they each concern individuals and will receive entirely separate attention when we come to decide the appeal and the renewed application. They were both brought as challenges to the sentences on the basis that they are manifestly excessive, separate to the technical issues we have described. We shall refer to those seeking to appeal by their surnames in the body of this judgment; this is for brevity and does not mark a lack of respect. It also avoids the need to consider, when referring to such a person, whether they are, at that point, an appellant, an applicant, or a claimant in judicial review proceedings.
5.
We should record that each of these two cases involve attempts to solve technical problems by sitting as a DJ(MC) under
section 66
. No objections were made by either Chalk or Chaplin to this course of action at the time, and no prejudice was caused to either of them by what occurred. Indeed, Chalk did not attend the hearing of his appeal before us, and Mr Wraith explained to us that he was not engaging with his legal representatives on any aspect of his case, and was not providing any instructions. Regardless of this, we received assistance both from Mr Wraith and also from Ms Wyeth for Chaplin.
6.
Finally by way of introduction, the parties have drawn our attention to a number of authorities and the prosecution have suggested a variety of different ways in which the technical issues could be addressed. We have considered them all but we only identify those within this judgment necessary properly to resolve the appeal and the application, and give such guidance as may be helpful in other cases going forwards. We do not address all of the different permutations or suggested solutions.
The facts – the case of Thomas Chalk
7.
On 6 August 2020 Chalk assaulted his former partner, Sherrie McBay, by punching her in the back outside a Tesco Express store in Paignton. He was arrested later the same day and became violent: spitting, threatening to break the windows of the police car that attended, shouting, screaming, using foul language and abusing and threatening the officers and also their families. He bit the hand of one of the officers, PC Smart, breaking the skin; he bit PC Smart’s leg; and he grabbed and squeezed PC Deveau’s leg in a painful manner.
8.
Chalk, who was born in March 1988, had been diagnosed with ADHD as a child. For the pre-sentence report, he told the probation officer that his life had gone into a downwards spiral following the death of his mother about 11 years before, but several of his offences pre-dated that. He had committed his first offence in 2004, when he had received a warning. Since then, he had been convicted of 36 offences, including battery in 2005 and 2015, assault in 2009 and 2014, assault of a constable in 2017, two offences of assault of an emergency worker in 2020, using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence in 2015, 2016, 2017 and 2020, affray in 2015, possessing a knife in a public place in 2014 and possessing a firearm when prohibited in 2018.
9.
Chalk had commenced an on-off relationship with Miss McBay in about 2011. At one stage, she had obtained a non-molestation order against him. In 2013 he committed three offences of breach of that order. She was also the victim of two assaults by Chalk in 2014, which resulted in a restraining order being made against him. Nevertheless, the relationship continued, on and off, until May 2020.
10.
He was staying at her home on 13 January 2020 when he broke a window and was arrested, having assaulted two police officers and damaged his cell. On 6 March 2020 five suspended sentence orders were made for these offences. There were two orders with concurrent terms of 12 weeks’ imprisonment, suspended for 12 months, in respect of two offences of assault of an emergency worker. For two offences of criminal damage, there were two orders made, each with terms of 8 weeks’ imprisonment, also suspended for 12 months. These terms were concurrent with one another, but consecutive to the two 12-week terms. Finally, there was an order with a concurrent term of 6 weeks’ imprisonment for an offence of using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence.
11.
Chalk breached the suspended sentence orders by failing to attend any appointments and he was fined for that breach on 14 September 2020. From 24 September to 6 November 2020 he was remanded in custody in connection with an unrelated prosecution, which was discontinued.
12.
In respect of the instant offences, which were committed on 6 August 2020, Chalk appeared at Newton Abbott Magistrates’ Court on 14 January 2021. There were five charges in all. The assaults on police officers were charged as
assault by beating of an emergency worker, contrary to
section 39
of the
Criminal Justice Act 1988
and
section 1
of the
Assaults on Emergency Workers (Offences) Act 2018
. The assault on Miss McBay was charged as assault by beating contrary to
section 39
of
the 1988 Act
.
He indicated that he would plead guilty to the charge of assaulting PC Deveau, but not guilty to the other charges. On the charge of assaulting PC Smart he was sent for trial to the Exeter Crown Court pursuant to
section 51(1)
and (2)(b) of the
Crime and Disorder Act 1998
. On the charge of assaulting Miss McBay, he was sent for trial pursuant to
section 51(3)
of
that Act
. On the charge of assaulting PC Deveau, he was committed for sentence pursuant to
section 3
of the
Powers of Criminal Courts (Sentencing) Act 2000
.
13.
Since the conviction took place after 1 December 2020, the reference should have been to
section 14
of the
Sentencing Act 2020
, rather than
section 3
of the
Powers of Criminal Courts (Sentencing) Act 2000
, but that did not invalidate the committal. This is made clear in the case of
R v Jex
[2021] EWCA Crim 1708
at [24] to [36].
14.
Chalk appeared at a plea and trial preparation hearing before the Crown Court on 9 February 2021. By then, one of the five original charges was no longer pursued and there were four counts on the indictment, including a count in respect of the charge of assaulting PC Deveau. In relation to that count, counsel submitted that, because Chalk had not pleaded guilty in the Magistrates’ Court, but had only indicated a guilty plea, he should have been sent for trial, rather than committed for sentence.
15.
That submission was incorrect as we explain in the section “The legal framework” below.
16.
The judge was invited to exercise his powers as a DJ(MC). He accepted counsel’s submission and said as follows:
“Right, well then, that is what I’ll do. I’ll correct the sending in relation to the allegation of 6 August, assaulting PC Deveau as an emergency worker, to a sending under
section 51(1)
and (2)(b) of the
Crime and Disorder Act 1998
and therefore delete, as it were, the purported sending, or committal for sentence under
section 3
, but obviously, it will be noted and kept in mind that, in relation to that matter, if Mr Chalk pleads guilty to it, then his credit will be the full one third.”
17.
The plea and trial preparation hearing was adjourned to 19 February 2021. On 7 May 2021 he pleaded guilty to all three counts upon re-arraignment and a not guilty verdict was entered on the count that was not pursued. He was therefore sentenced on 28 June 2021 on the counts to which he had pleaded guilty on 7 May 2021, and the one count which had been sent to the Crown Court by the judge acting as a DJ(MC) relating to the assault upon PC Deveau as we have explained above.
18.
The pre-sentence report stated that, at the time of these offences, his life was in chaos due to his drug use and homelessness. He had attitudes and beliefs which supported aggression and violence and he had developed animosity towards the police. On the other hand, there were signs that he was trying to move away from his previous lifestyle and behaviour. He had moved from Torquay to Exeter and had worked hard to obtain stable accommodation. He had regular contact with his 2 year old daughter and had resumed his relationship with her mother. Chalk wrote a letter to the judge in which he expressed his regret for what he had done and stressed his efforts to better himself and his future.
19.
Prosecution counsel submitted that the assault on Miss McBay fell within category 3 in the offence-specific guideline then in force, with a starting point of a Band A fine and a range up to a Band C fine. There was no guideline then in force for the offence of assault of an emergency worker, but the judge noted that the maximum sentence was 12 months’ imprisonment, rather than the maximum of 26 weeks for the offence of common assault.
20.
In passing sentence, the judge noted that the assault of Miss McBay was a case of domestic violence. He described Chalk’s conduct towards the officers as appalling, and the incident as prolonged and violent. He had regard to Chalk’s many previous convictions, to the contents of the pre-sentence report and to Chalk’s own letter.
21.
The judge said that he gave a 20% discount for Chalk’s guilty pleas. He imposed a sentence of 12 weeks’ imprisonment for the assault on Miss McBay and sentences of 24 weeks’ imprisonment for each of the offences of assault of an emergency worker. He made those sentences concurrent with one another, but consecutive to the sentence for assault. He activated the suspended sentences, saying that the sentence would be reduced from 20 weeks to 18 weeks, which would be consecutive to the other sentences. That made a total of 54 weeks’ imprisonment.
22.
The sentence for the assault of Miss McBay was equivalent to a sentence of 15 weeks’ imprisonment if Chalk had not pleaded guilty. The sentences for the offences of assaulting an emergency worker were equivalent to 30 weeks’ imprisonment if Chalk had not pleaded guilty. The judge did not indicate which of the suspended sentences he was reducing in order to achieve the overall total of 18 weeks which he activated. In effect, he treated the suspended sentences as one suspended sentence with a single term of 20 weeks, reduced down to 18 weeks.
The facts – the case of Andrew Chaplin
23.
Chaplin pleaded guilty to a number of different sexual offences that arose out of communications on a social messaging site between 30 January 2020 and 11 February 2020. Chaplin was already subject to a Sexual Harm Prevention Order (“SHPO”) which had been in place since 24 November 2017 following earlier offending. This imposed certain restrictions upon him, including the requirement to declare to the authorities his electronic devices. He was also prevented from using a chatroom.
24.
In 2020 he began communication online on a social media site with a male who told Chaplin that he was 14 years of age. This communication was initiated by Chaplin. Unbeknown to Chaplin, this was an undercover police officer posing as a young male called ‘Ryan’. Such police officers are trained and authorised to take part in such undercover operations. An online profile is displayed and no contact is initiated by the officer. The officer will wait to be contacted by those interested in communicating, some of whom, regrettably, may turn out to be paedophiles with a sexual interest. Early in their communications ‘Ryan’ told Chaplin that he was only 14 years old. They sent messages to one another, and Chaplin sent an image of his own face and an image of a nude man sitting on the lavatory.
25.
Communication then moved to WhatsApp. During this phase of the communication, Chaplin sent ‘Ryan’ a picture of his own erect penis, and later a movie clip of himself urinating and masturbating. ‘Ryan’ sent a consented image of a young male holding a phone up to partially obscure his face. A consented image is one that has been approved as not containing any illegal element, and such images are usually sufficiently interesting or attractive to paedophiles to continue their interest in the sender of such an image. Chaplin suggested having penetrative sex, and sent a further video clip of himself masturbating, and also a video of a third party adult male inserting a sex toy into his own anus. ‘Ryan’ sent a selfie style image of a male laying on his front under a Marvel patterned duvet.
26.
Other illegal activity took place in terms of the content and nature of the messages sent to the officer by Chaplin, including express invitations for ‘Ryan’ to engage in penetrative activity with Chaplin, encouragement to send explicit photographs, further inquiries by Chaplin about his school friends, requests as to whether ‘Ryan’ used drugs, and generally illegal online sexual behaviour with someone of the age Chaplin believed ‘Ryan’ to be. On 6 February 2020 Chaplin discussed with ‘Ryan’ plans for the two of them to meet, and this was discussed again on 10 February 2020. A plan was made between the two of them to meet the following day at Christchurch Park in Ipswich. Chaplin sent a message that said “U going to fuck me r u” and sent four images of his shaved legs, groin and torso area. ‘Ryan’ sent Chaplin a selfie image of a male in a bathroom wearing a short sleeve school shirt with undone buttons.
27.
On 11 February 2020 Chaplin travelled to Christchurch Park to meet ‘Ryan’ in accordance with this plan, where he was met by police officers who arrested him. He was found in possession of two phones, one of which had not been declared to the PPU, which was therefore in breach of the existing SHPO. His home was also searched which revealed a small quantity of cannabis, a controlled Class B drug.
28.
This activity resulted in the subsequent charges brought against him following his arrest, namely:
1. Meeting a child following sexual grooming - contrary to
section 15
of the
Sexual Offences Act 2003
;
2. Sexual communication with a child - contrary to
section 15
A(1) and (3) of the
Sexual Offences Act 2003
;
3. Breach of a Sexual Harm Prevention Order (namely the possession of the mobile phone) – contrary to
section 103
I(1) and (3) of the
Sexual Offences Act 2003
;
4. Possession of a controlled drug of Class B (cannabis) - contrary to
section 5(2)
of and Schedule 4 to the
Misuse of Drugs Act 1971
;
5. Breach of a Sexual Harm Prevention Order (namely entering and engaging in messages on chat rooms) – contrary to
section 103
I(1) and (3) of the
Sexual Offences Act 2003
;
6. Attempting to cause a child aged under 16 to look at an image of sexual activity - contrary to
section 1(1)
of the
Criminal Attempts Act 1981
.
29.
A notice was served under
section 23
A
Prosecution of Offences Act 1985
that no proceedings would be continued against Chaplin for the breach of the terms of the SHPO that prevented him from entering and engaging in messages on chat rooms.
30.
On 13 February 2020 he pleaded guilty to the charges in the Suffolk Magistrates’ Court, which was plainly the first opportunity. Indeed, it was only 48 hours after he had been arrested in the park. We were told by counsel for the respondent, Mr Johnson, that this type of very short interval before defendants appear in the Magistrates’ Court is becoming increasingly common. It may explain why the charges were framed in the way they were, which is the origin of the technical issues which we will explain. However, even where there is such a short interval, this is no excuse for the type of error that occurred in this case. On the facts of this case, Chaplin could not have met a child following sexual grooming, nor had sexual communication with a child, because no child was involved.
31.
The Magistrates committed all five offences to the Crown Court for sentence under case number S20200053. The matter was listed for sentence at the Crown Court on 12 March 2020.
32.
Shortly before the matter came to the Crown Court, it was realised that the two most serious charges of the five – namely those under
section 15
and
section 15
A of the
Sexual Offences Act 2003
– had been incorrectly charged. Chaplin had neither met a child following sexual grooming, nor had he had sexual communication with a child. ‘Ryan’ was not a child; as an undercover police officer, he was an adult. The target of the activity by Chaplin was not an underage child, but an undercover police officer posing as one.
33.
Chaplin had been guilty of
attempting
to commit each of these offences contrary to the
Criminal Attempts Act 1981
. These two offences should not have been charged as substantive offences under each of
section 15
and
section 15
A of the
Sexual Offences Act 2003
, as the elements of these choate offences were not supported by the facts of what had occurred. The conclusion that the two offences should have been charged as attempts was reached just before the date when the matter had been listed for sentence, namely 12 March 2020. After some days of consideration, on 19 March 2020 the two new charges were uploaded to the DCS. These two new charges were:
1. Attempting to meet a child following sexual grooming - contrary to
section 1(1)
of the
Criminal Attempts Act 1981
;
2. Attempting to have sexual communication with a child - contrary to
section 1(1)
of the
Criminal Attempts Act 1981
.
34.
The prosecution produced an undated document headed “Charges” which was uploaded to the DCS on 19 March 2020 under the title “Amended Charges for the Next Hearing.doc”. We shall refer to this as the “Amended Charges” document. It consisted of 4 numbered paragraphs. Each paragraph consisted of the particulars of each offence. Paragraph 1 now stated the matter was being charged as an attempt, contrary to
section 1(1)
of the
Criminal Attempts Act 1981
, and in bold in brackets in the document stated:
“(This is a substitution of charge 1 under
section 15
of the
Sexual Offences Act 2003
)”.
35.
The same approach was adopted in respect of paragraph 2. Paragraph 3 charged the drug possession charge, with the words “(as per original charge sheet)” following it, and paragraph 4 charged the breach of the SHPO, with the entry “(as per charge 4 of the original charge sheet)” following. The original charge 4, namely that as set out at [28] above, was the drug possession charge as it happens, and the breach of the SHPO (possession of the undisclosed mobile phone) was original charge 3, but nothing turns on that. There was no reference in this document to the charge of attempting to cause a child aged under 16 to look at an image of sexual activity, contrary to
section 1(1)
of the
Criminal Attempts Act 1981
, which is one of the original charges set out at [28] above.
36.
The Amended Charges document was uploaded to the “Applications” section of the DCS on 19 March 2021.
37.
The sentencing judge was the same judge who had imposed the SHPO upon Chaplin in 2017 for similar offences. The 2017 offending had concerned a 13 year old boy, whose father discovered (from looking at his son’s Facebook messages) that he had arranged to meet Chaplin. The father drove to the area where his son and Chaplin had arranged to meet, and discovered his son in the passenger seat of a car with Chaplin. He told his father “he wanted me to suck his dick dad, but I didn’t want to”. On 10 June 2017 Chaplin had pleaded guilty to two offences, one a breach of Sexual Offences Prevention Order (or SOPO) (which had been imposed for similar offences in February 2015), and the second of causing or inciting a male child under the age of 16 to engage in penetrative sex with an adult contrary to
s.10(1)
(a)
Sexual Offences Act 2003
. Chaplin was sentenced on 24 November 2017 to 20 months imprisonment for this offence, with a term of imprisonment of 9 months concurrent for the breach of the SOPO. A SHPO was imposed.
38.
Therefore the sentencing judge had direct prior dealings with Chaplin, having imposed these sentences himself in November 2017. A sentencing note was prepared for him by counsel for the prosecution (not Mr Johnson who appeared before us on this appeal and renewed application). This stated at paragraph 20 the following:
“20.The defendant appeared at the magistrates’ court on the 13.02.20 and entered guilty pleas. At the hearing on the 16.03.20 both prosecution and defence counsel indicated that 2 of the charges should have been charged as attempts. The correct charges have been uploaded onto document Q2 and it is intended to request the Crown Court to utilise its power to sit as a District Judge in the Magistrates’ Court.”
39.
The following therefore occurred on 26 March 2020. Counsel for both prosecution and for the defendant were agreed that the two original charges of meeting a child following sexual grooming (contrary to
section 15
of the
Sexual Offences Act 2003
) and sexual communication with a child (contrary to
section 15
A(1) and (3) of the
Sexual Offences Act 2003
) were incorrectly charged and should not have been brought. The sentencing judge said that these two original charges should be “withdrawn”. The judge was invited by the prosecution to sit as a DJ(MC) under
s.66
. Acting in this way, he accepted two pleas of guilty to the two new charges (alleging attempts and set out at [33] above) and committed these two offences to the Crown Court for sentence under
section 3
of the
Powers of Criminal Courts (Sentencing) Act 2000
under case number
S20200093
.
40.
The judge then sought to proceed to sentence on all the offences before the Crown Court, three of the original five (which had been originally committed to the Crown Court by the Magistrates’ Court) and the two newly charged attempts (committed to the Crown Court by the sentencing judge sitting as a DJ(MC)). Chaplin was appearing by video link, visible to the judge. All counsel were appearing by telephone. Chaplin, who maintained he had mental health issues, became increasingly distressed and wished to leave. The judge therefore took the decision to adjourn the sentencing hearing part way through.
41.
Further hearings were listed for sentence on 1 June 2020 and 15 June 2020, but these were not effective for a number of reasons, including absence of Chaplin. Eventually, the sentencing hearing took place on 27 July 2020 in his absence.
42.
The sentencing judge pointed out that Chaplin had refused to engage with the probation service when a pre-sentence report had been ordered, and also that it was accepted that any mental condition or medical issues from which he was suffering were not linked to this particular offending. He explained that he considered the sexual behaviour to young boys by Chaplin to be entrenched and devoid of any self-control, and that his previous offending had consisted of sexual activity with a 15 year old friend of his son in 2015, and similar behaviour with a 13 year old boy in 2017. He observed that the current offending demonstrated that Chaplin refused to comply with licence conditions or the terms of the orders designed to protect the public, particularly young boys, namely the SOPO and SHPO.
43.
He found Chaplin to pose a high risk of causing serious sexual harm to male children, and found him to be dangerous. He found that an extended sentence was necessary to protect the public from harm in the future. He characterised count 1 as Category A in terms of harm culpability, which has a starting point of 4 years with a range of 3 to 7 years for person of good character. He adjusted that for the aggravating factors present, in particular the entrenched recidivist behaviour and the failure to comply with previous orders. He arrived at a sentence of 6 ½ years for the completed offence, reduced it to 6 years as it was an attempt and not a completed offence, and then reduced it for Chaplin’s plea downwards to 4 years. He also expressly considered totality.
44.
He therefore sentenced Chaplin to the following on each count:
1. Attempting to meet a child following sexual grooming - contrary to
section 1(1)
of the
Criminal Attempts Act 1981
. An extended sentence of 12 years, namely a custodial element of 4 years and an extended licence period of 8 years.
2. Attempting to have sexual communication with a child - contrary to
section 1(1)
of the
Criminal Attempts Act 1981
. 14 months imprisonment to be served concurrently to the sentence on count 1.
3. Possession of a controlled drug of Class B (cannabis) - contrary to
section 5(2)
of and Schedule 4 to the
Misuse of Drugs Act 1971
. 28 days imprisonment to be served concurrently to the sentence on count 1.
4. Breach of a Sexual Harm Prevention Order (namely the possession of the mobile phone) – contrary to
section 103
I(1) and (3) of the
Sexual Offences Act 2003
. 16 months imprisonment to be served concurrently to the sentence on count 1.
5. Attempting to cause a child aged under 16 to look at an image of sexual activity - contrary to
section 1(1)
of the
Criminal Attempts Act 1981
. 2 years imprisonment to be served concurrently to the sentence on count 1.
45.
Consequential other orders were also made in terms of imposition of a further SHPO, imposition of the victim surcharge, and restrictions under the Safeguarding Vulnerable Groups Act and the Debarring and Disclosure Service.
46.
An appeal was promptly lodged including a ground that the sentence on count 1 exceeded the maximum sentence of 10 years’ imprisonment for the offence of offence under
section 15
of the
Sexual Offences Act 2003
. The sentence passed was indeed in excess of that, as it was a total sentence of 12 years. The Registrar of Criminal Appeals brought this to the attention of the sentencing judge, together with the fact that the court was still within time to have the benefit of the period available to vary or rescind a sentence. This is now contained in
section 385
of the
Sentencing Act 2020
, but at the time the relevant statutory provision was
section 155
of the
Powers of Criminal Courts (Sentencing) Act 2000
as amended. The 56 day period to vary or rescind a sentence is the same under both provisions.
47.
Accordingly, the judge realised that he had passed a sentence that exceeded the statutory maximum, and exercised the powers available under this provision to reduce the sentence on that first offence. He did that on 18 September 2020 and varied the sentence for that offence, so that the custodial element remained at 4 years but the extended licence period became 6 years, thus equating to an overall sentence of 10 years. This was within the statutory maximum sentence available for the substantive choate offence, and not in excess of it.
48.
The technical difficulty in this case is as follows. The original five charges with reference S202000053 were all validly before the Crown Court, having been committed to the Crown Court for sentence entirely correctly by the Magistrates’ Court. The Magistrates’ Court was therefore
functus officio
in respect of these offences and could take no further steps. No sentence had been passed upon the two offences under
section 15
and 15A to which Chaplin pleaded guilty before the Magistrates and which were then sent to the Crown Court for sentence. No sentences were passed in respect of these offences; the sentencing judge merely stated that these were to be “withdrawn”.
The legal framework
49.
We do of course bear in mind the overriding objective in Criminal Procedural Rules 2020 rr.1.1 to rr.1.3. However, there is a limit to the ability of the court to rely upon or apply these in dealing with issues of jurisdiction. The Divisional Court in
Hubner v District Court of Prostejov, Czech Republic
[2009] EWHC 2929 (Admin)
stated at [7] (per Elias LJ) that the over-riding objective could not affect the interpretation of substantive law or regulate the manner in which principles of law must be interpreted or construed. If something was done without jurisdiction, there is no mechanism available under the Criminal Procedural Rules to remedy this.
50.
Section 66
of the
Courts Act 2003
permits holders of judicial office to act as DJ(MC) and gives them the same powers – but only the same powers – as they would have acting in the Magistrates’ Court when they do so.
51.
The section states:
"66
Judges having powers of District Judges (Magistrates' Courts)
(1) Every holder of a judicial office specified in subsection (2) has the powers of a justice of the peace who is a District Judge
(Magistrates' Courts) in relation to–
(a) criminal causes and matters
[a repealed provision which formerly extended scope to family proceedings]
(2) The offices are–
(a) judge of the High Court;
(aa) Master of the Rolls;
(ab) ordinary judge of the Court of Appeal;
(ac) Senior President of Tribunals;
(b) deputy judge of the High Court;
(c) Circuit judge;
(d) deputy Circuit judge;
(e) recorder;
[(f) – (o) then continues the list, these having been added by paragraph 4 of Schedule 14 to the
Crime and Courts Act 2013
, which appears in Part 2 of that Schedule.]
(7) This section does not give a person any powers that a District Judge (Magistrates' Courts) may have to act in a court or tribunal that is not a magistrates' court."
52.
In
R v Gould
[2021] EWCA Crim 447
the Court of Appeal considered the extent to which Crown Court judges could use the powers of a DJ(MC) to regularise or correct serious failures by the prosecution in charging criminal offences. It was made clear that the different jurisdictional limits of the different courts, which are set down in primary legislation, must be respected. That case contains a more detailed analysis of the statutory provisions, which are set out extensively in
R v Gould
at [9] to [13].
53.
That case also explains the following at [80]:
“[80] These important parameters within which the
section 66
powers may be used have been overlooked in some of the present cases and perhaps elsewhere. It is worth restating them:-
i)
When the Magistrates' Court makes an order which gives jurisdiction in the case to the Crown Court, whether by committal for sentence or sending for trial, that is the end of their jurisdiction in the case. In technical language they are
functus officio.
The Crown Court judge cannot use
section 66
to make any order which the Magistrates' Court could no longer make.
ii) There is no power in the Crown Court to quash an irregular order. Where it is plainly bad on its face, the Crown Court may hold that nothing has occurred which is capable of conferring any jurisdiction to deal with it.
We shall return to these points. We appreciate that this consequence of the decision in
R. v. Sheffield Crown Court
limits the power under
section 66
to correct errors in committals for sentence, but it is unavoidable. If quashing is required this can only be done by a Divisional Court. We have held above that it is open to the judge in the Crown Court, as a DJ(MC), to lay and commit a new charge in the correct form. The relevant Rules Committees should consider whether an expedited and summary procedure could be adopted for the quashing by consent of unlawful committals and sendings which have been overtaken by events.”
(emphasis added)
54.
The power of the Magistrates’ Court substantially derives from the
Magistrates’ Court Act 1980
(“
MCA 1980
”). Two sections are reproduced here for convenience. Section 17A states (showing amendments such as to the Sentencing Code in section 17A(4)(b) that are currently in force and have been added):
“17A
Initial procedure: accused to indicate intention as to plea.
(1) This section shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way.
(2) Everything that the court is required to do under the following provisions of this section must be done with the accused present in court.
(3) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused.
(4) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty—
(a) the court must proceed as mentioned in subsection (6) below; and
(b) he may (unless section 17D(2) below were to apply) be committed for sentence to the Crown Court under
section 14
or (if applicable) 15 of the Sentencing Code if the court is of such opinion as is mentioned in sub
section (1
)(b) of the applicable section.
(5) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty.
(6) If the accused indicates that he would plead guilty the court shall proceed as if—
(a) the proceedings constituted from the beginning the summary trial of the information; and
(b) section 9(1) above was complied with and he pleaded guilty under it.
(7) If the accused indicates that he would plead not guilty section 18(1) below shall apply.
(8) If the accused in fact fails to indicate how he would plead, for the purposes of this section and section 18(1) below he shall be taken to indicate that he would plead not guilty.
(9) Subject to subsection (6) above, the following shall not for any purpose be taken to constitute the taking of a plea—
(a) asking the accused under this section whether (if the offence were to proceed to trial) he would plead guilty or not guilty;
(b) an indication by the accused under this section of how he would plead”.
55.
In the Respondent’s Notice, the court’s powers under
s.142
of the
MCA 1980
were brought to our attention.
Section 142
states:
“(1) A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.
(1A) The power conferred on a magistrates’ court by sub
section (1
) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if—
(a) the Crown Court has determined an appeal against—
(i) that sentence or order;
(ii) the conviction in respect of which that sentence or order was imposed or made; or
(iii) any other sentence or order imposed or made by the magistrates’ court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or
(b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order.
(2) Where a person is convicted by a magistrates’ court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may, so direct.”
56.
Blackstone’ Criminal Practice
(Oxford UP: 2022) makes clear (D22.73) that this “enables an accused who was convicted in a magistrates’ court (whether as a result of a guilty plea or of a finding of guilty after a trial) to ask the magistrates to set the conviction aside.” Therefore the fact that Chaplin had pleaded guilty, rather than having been found guilty after a trial, does not mean that the power under this section was not available. However, it does not assist in this scenario because there was no sentence or other order imposed upon Chaplin which was sought to be varied. The only order the Magistrates made – which was entirely valid – was that committing him to the Crown Court for sentence. The effect of this order was to deprive the Magistrates of any further jurisdiction in the case, see above.
57.
So far as Chalk is concerned, the provisions of
section 51
of the
Crime and Disorder Act 1998
are relevant because that was the power that the sentencing judge sought to invoke in acting as a DJ(MC) and sending the matter to the Crown Court. That section states (in part only):
“
51. Sending cases to the Crown Court: adults
(1) Where an adult appears or is brought before a magistrates' court (“the court”) charged with an offence and any of the conditions mentioned in subsection (2) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence.
(2) Those conditions are—
(a) that the offence is an offence triable only on indictment other than one in respect of which notice has been given under
section 51
B or 51C below;
(b) that the offence is an either-way offence and the court is required under section 20(9)(b), 21, 22A(2)(b), 23(4)(b) or (5) or 25(2D) of the
Magistrates' Courts Act 1980
to proceed in relation to the offence in accordance with sub
section (1
) above;
(c) that notice is given to the court under
section 51
B or 51C below in respect of the offence.
(3) Where the court sends an adult for trial under sub
section (1
) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged and which—
(a) (if it is an either-way offence) appears to the court to be related to the offence mentioned in sub
section (1
) above; or
(b) (if it is a summary offence) appears to the court to be related to the offence mentioned in sub
section (1
) above or to the either-way offence, and which fulfils the requisite condition (as defined in sub
section (1
1) below).
(4) Where an adult who has been sent for trial under sub
section (1
) above subsequently appears or is brought before a magistrates' court charged with an either-way or summary offence which—
(a) appears to the court to be related to the offence mentioned in sub
section (1
) above; and
(b) (in the case of a summary offence) fulfils the requisite condition, the court may send him forthwith to the Crown Court for trial for the either-way or summary offence.”
58.
It can be seen (relevant in the case of Chalk) that by use of the phrase “
the court shall send him forthwith to the Crown Court”
, the section is dealing with the powers of the Magistrates’ Court. If the case is not before the Magistrates, or if the Magistrates no longer have jurisdiction to deal with it, then the Magistrates cannot use this power to send matters to the Crown Court. The same applies to a judge of the Crown Court who is seeking to act as a DJ(MC). He or she can only make an order if the Magistrates’ Court could do so.
59.
The relevant power to be considered in the case of Chaplin is that of the court to permit a defendant to change their plea from one of guilty, to a plea of not guilty. This is a power that does not originate in statute, but rather the common law. This is a discretion;
S v Recorder of Manchester
[1971] AC 481
, which the passage in
Blackstones
describes thus:
“The existence of the discretion was indirectly confirmed by the House of Lords in
S v Recorder of Manchester
[1971] AC 481
, when it held that,
in the context of change of plea
, there is no conviction until sentence has been passed, and therefore magistrates (like the Crown Court) can allow a change to not guilty provided they have not yet passed sentence.”
(emphasis added)
60.
The procedure for such an application is set out in Criminal Procedure Rules 25.5. Rule 25.5(2) requires it to be made in writing as soon as practicable after becoming aware of the grounds for doing so, and at (a)(ii) “in any event, before the final disposal of the case, by sentence or otherwise”. We are of the view that the term “by sentence” must relate to sentence on the count or offence in respect of which the guilty plea is sought to be vacated. Until a defendant is sentenced on that particular count, the court retains the power to allow that defendant to change their plea on that count.
61.
R v Gould
considered this Part of the Criminal Procedure Rules at [110] to [112] and concluded that the need for a written application to vacate a guilty plea was a mandatory requirement. The court also stated that the court had the power to direct that a guilty plea be vacated, even against the wishes of the person who entered it (although it was accepted that would be highly unusual and only in an extraordinary case). This makes clear that a guilty plea can be vacated at the instigation of the prosecution or even of the court.
62.
Finally, given when Chaplin was charged with the two attempts on 26 March 2020 he had already pleaded guilty to the two substantive offences under
s.15
and
s.15
A Sexual Offences Act – and was merely awaiting sentence for these in the Crown Court, where these offences had been lawfully committed for that purpose – he would have been entitled to have raised the plea of autrefois convict when these two new offences (the attempts) were put to him by the judge sitting as a DJ(MC). However, this plea, together with those of autrefois acquit and pardon, operate as what are called pleas-in-bar. This means that, if they are upheld, these pleas bar any further proceedings. This is a procedural mechanism that acts as a safeguard against a defendant being repeatedly prosecuted, or prosecuted more than once. They do not, in law, extinguish the underlying offence, or mean that the court has no jurisdiction in respect of matters arising out of the same facts as those related to the underlying offence for which a conviction already exists.
63.
There is extensive case law concerning the precise circumstances in which such pleas-in-bar can be relied upon, and what exactly qualify as findings that can form the basis of such pleas. It is not necessary to consider them in any detail here. All we would observe is that the availability to Chaplin of such pleas on the two attempt charges does not, of itself, invalidate the bringing of those new charges against him, or mean that this was done without jurisdiction.
64.
Two cases were cited to us which it was said did invalidate the bringing of two charges of attempting to commit the
s.15
and
s.15
A offence, when convictions were in place for the substantive offences themselves. These were
R v Manchester Crown Court ex parte Hill
(1985) 149 JP 257, a decision of the Divisional Court, and the far more recent decision of this court in
R v Jessemey
[2021] EWCA Crim 175
. In
ex parte Hill
, the Divisional Court found that on an appeal against conviction for a full offence (in that case making off without payment contrary to
s.3(1)
of the
Theft Act 1978
) to the Crown Court from the Magistrates’ Court, the Crown Court could not on that appeal acquit the defendant of the offence but find him guilty of an attempt and convict under
s.1(1)
of the Criminal Attempts Act. It was held that there was no power to substitute an alternative charge for that which appeared in the information before the court. The justices themselves could not have done so, and therefore the Crown Court could not on appeal either, as the powers of the Crown Court in dealing with an appeal against conviction were the same as those of the justices at the summary trial.
65.
In
Jessemey
, William Davis J (as he then was) considered an appeal against sentence, which concerned a similar offence to those brought against Chaplin, namely attempting to incite a child under the age of 13 to engage in non-penetrative sexual activity and to engage in sexual communication with a child. The “child” in question was thought by the appellant to be a 12 year old girl, but was in fact an undercover police officer. The following is explained:
“[7] In June 2020 the appellant was sent a postal requisition. It contained a single charge of attempting to engage in sexual communication with a child. The substantive offence is set out in
section 15
A of the
Sexual Offences Act 2003
. It is an either way offence with a maximum sentence of 2 years' imprisonment.
[8] On 11 August 2020 the appellant appeared at the Oxford Magistrates' Court. This was his first appearance in answer to the postal requisition. At court the prosecution preferred a second charge, namely the charge in respect of which the appellant eventually was sentenced. The underlying substantive offence in relation to that charge (namely
section 8
of the
Sexual Offences Act 2003
) also is an either way offence. Where the activity alleged is non-penetrative the maximum sentence is 14 years' imprisonment.
Although particularised as an
attempt
to commit the offence - as it had to be since there was no child to incite - the offence was described on the court record as being
contrary to
section 8
of the
Sexual Offences Act 2003
rather than
section 1
of the
Criminal Attempts Act 1981
.
[9] This is the first procedural issue which we must address. Rebecca Saillet
was concerned that the statement of the offence being in those terms might have affected the lawfulness or validity of the charge. We are satisfied that it did not. Anyone charged with a substantive offence can be convicted in the alternative on an attempt to commit the offence. It must follow that a misdescription of the statutory basis of the charge of the kind that occurred in this case will be of no substantive consequence.”
(emphasis added by underlining; italics present in original)
66.
We are satisfied that there is no inconsistency between these two cases. They deal with different issues.
Ex p. Hill
concerns the powers of the Crown Court on hearing an appeal against conviction after a summary trial before Magistrates. The Crown Court has no power to substitute a conviction for some offence other than that on which the Magistrates had convicted, even where that other offence was an attempt to commit the substantive offence when the Magistrates had convicted of the full offence.
Jessemy
decided that a charge is not rendered bad in law where it alleges an attempt but cites the statute creating the substantive offence, rather than the
Criminal Attempts Act 1981
as the offence creating provision. The reasoning in support of that proposition may require further thought if a case ever arises where the point falls for decision. It is not clear where the very broad proposition that “Anyone charged with a substantive offence can be convicted in the alternative on an attempt to commit the offence” originates. It cannot be
section 6
of the
Criminal Law Act 1967
because that relates only to the power of a jury to return verdicts of guilty to lesser offences where they acquit of a more serious offence on an indictment. No jury was involved in
Jessemey
which concerned a committal for sentence in an either way offence following a guilty plea. The position is not the same in summary proceedings as it is where there is an indictment. However, there is no reason to doubt the actual decision in
Jessemey
which is that a clearly drafted charge of an attempt is not vitiated by the citing of the provision which created the substantive offence as opposed to the
Criminal Attempts Act 1981
. The better modern practice suggests that both statutes should be cited in the charge or count, see
R v Reed
[2021] EWCA Crim 572
.
67.
In any event, the fact that in the Crown Court someone being tried for a substantive offence can be convicted, in the alternative, of an attempt, with there being no corresponding power in the Magistrates’ Court (or the Crown Court on appeal from the Magistrates’ Court) unless the attempt is separately charged, does not impact upon our analysis in this case of Chaplin.
68.
In the case of Chaplin, the Magistrates’ Court did nothing wrong, and the errors flowed from the prosecution charging Chaplin with two substantive offences under
s.15
and
s.15
A of the
Sexual Offences Act 2003
, when it was impossible for him to have committed these, given the involvement of the undercover police officer. Chaplin himself pleaded guilty to these, and all five were validly committed to the Crown Court for sentence. Applying the ratio of
Gould
set out at [53] above, the Magistrates’ Court was thereafter
functus officio
in respect of those five charges.
69.
When it was realised that two new charges were required to charge Chaplin with attempts, rather than the substantive offences (to which he had already pleaded guilty) the judge acted correctly in sitting as a DJ(MC), taking pleas and sending these offences to the Crown Court for sentence. The possible availability to Chaplin of the pleas-in-bar of autrefois convict on the two new counts does not impact upon the jurisdiction of the court to do that.
70.
All that remains is for the two pleas of guilty for the substantive offences under
s.15
and
s.15
A to be vacated. There was no factual basis for these charges to have been brought against Chaplin, and even though he pleaded guilty to them both, this should not have occurred. Vacating these two pleas can be done by the Crown Court, as the matter was correctly committed to the Crown Court for sentence and is therefore no longer before the Magistrates’ Court. We waive the requirement for a written request under Crim PR 25.5(2). Vacating these pleas cannot be done by the Court of Appeal. The court has therefore nominated Fraser J to sit as a judge of the Crown Court in this respect in order to do this. Nothing further is required in this respect because Chaplin was never sentenced by the court for either of the two offences in question, matters proceeding on the two attempts as we have explained. The effect of doing so means that Chaplin will no longer have pleaded guilty to these two offences, which were committed to the Crown Court for sentence and in respect of which no sentences were passed. They will be remitted to the Magistrates. The respondent has undertaken to issue to the Magistrates’ Court a notice of discontinuance, pursuant to
section 23
of the
Prosecution of Offences Act 1985
, in respect of both offences.
71.
Turning to Chalk, five offences were sent to the Crown Court by the Magistrates’ Court. As we have explained, four of these were sent to the Crown Court for trial, and one was sent for sentence, namely assault by beating an emergency worker, in this case PC Deveau. That is because Chalk had indicated that he intended to plead guilty to this offence. One of the four counts sent for trial was discontinued, and Chalk pleaded guilty to the remaining three of them on re-arraignment in the Crown Court. Everything that transpired on those three was valid and lawful, as were the sentences passed upon them.
72.
However, the sentencing judge on 9 February 2021 was told that the count relating to PC Deveau had not been lawfully committed to the Crown Court for sentence. He was told that this was because there had been no plea entered in the Magistrates’ Court. For this reason that count had appeared on the trial indictment. There had also been the recording error that we have explained at [13] above on the memorandum of sending.
73.
In fact, this is not what had occurred in the Magistrates’ Court. The prosecution has explained in the Respondent’s Notice before us that “neither party understood the legal effect of what had occurred in the Magistrates’ Court”. Chalk had indicated a plea of guilty to this count in which case
section 17
A(6) of the
Magistrates’ Court Act 1980
means it was validly before the Crown Court. The matter was lawfully committed to the Crown Court for sentence. The Magistrates’ Court was therefore
functus officio
, the matter was before the Crown Court for sentence and it was validly before the judge who was sitting in the Crown Court.
74.
This means that the sentencing judge had no power to act as a DJ(MC) under
s.66
of the
Courts Act 2003
. He was encouraged to act as such by the prosecution, who invited him to do so to send the charge relating to PC Deveau to the Crown Court under
section 51(1)
and (2)(b) of the
Crime Disorder Act 1998
. Having been so invited, the judge did so. He explained that in practical terms it would “be noted and kept in mind that, in relation to that matter, if Mr Chalk pleads guilty to it, then his credit will be the full one third”.
75.
However, what the sentencing judge had been told was wrong. The committal for sentence had in fact been lawful. This means that the count relating to the assault by beating of PC Deveau was validly before the Crown Court for sentence. The sentencing judge’s use of
s.66
, by purporting to correct the situation by sitting as a DJ(MC), was without jurisdiction and the steps taken thereafter in respect of this offence were unlawful. This was incorrect and this is conceded by the prosecution. Having taken the various procedural steps he did, he passed a sentence of 24 weeks imprisonment for that offence, but concurrently with the sentences on the other counts. That sentence for that specific offence was unlawful, as what he purported to do as a DJ(MC) was without jurisdiction.
76.
Accordingly, we sit as a Divisional Court. We will give leave to bring judicial review proceedings to quash what the sentencing judge did in relation to that offence acting as a DJ(MC), as it was unlawful. All procedural requirements are dispensed with and we make that quashing order. The effect of this is that the sentence of 24 weeks on that count is also quashed, as it was an unlawful sentence. The original charge, validly committed to the Crown Court for sentence, remains to be sentenced by the Crown Court.
77.
We are of the view that, given the sentence was ordered to run concurrently with the sentences on the other counts, and given Chalk has now been released having served that term of imprisonment, the interests of justice do not require him to be subject to a separate sentence for that offence. Accordingly, we nominate Fraser J to sit as a judge in the Crown Court, and no separate penalty is imposed for this offence.
78.
The sentencing judge in Chalk was also faced with activating a Suspended Sentence Order. That was activated by the sentencing judge, with the operative period of 20 weeks being reduced to 18 weeks. However, the SSO that had been imposed was itself made up of 2 sentences of 12 weeks’ imprisonment concurrent to one another (both suspended for 12 months) and 2 sentences of 8 weeks’ imprisonment, concurrent to one another but consecutive to the two sentences of 12 weeks (also suspended for 12 months). We have referred to details of these at [10] above. The activation did not make clear which sentences were being reduced to arrive at the period of imprisonment of 18 weeks. Clarification is therefore required in this respect.
79.
We turn therefore to the submissions that the sentences in fact passed upon each of Chalk and Chaplin were manifestly excessive.
The substantive appeal in Chalk
80.
This is brought with the leave of the single judge. There are three grounds of appeal. These are that the starting points adopted by the judge were too high; that there was insufficient regard had to the principle of totality; and that there was insufficient regard to the personal mitigation available to Chalk.
81.
We start by recording the aggravating factors of the assault against Miss McBay. Chalk had committed a number of different offences of violence against her, amongst his previous convictions which number 36 different offences. Not only had she previously obtained a non-molestation order against him, but in 2013 he committed three separate breaches of that order, and he assaulted her twice in 2014, leading to a restraining order. Offences committed within the context of a relationship are not lessened in their seriousness by their regularity, or by the fact that the relationship may continue. Indeed, they are more serious as a result.
82.
Victims of domestic violence and abuse suffer in everyday life, and in the location where people are entitled to feel most safe, namely at home, or doing normal everyday tasks such as going about their daily affairs in the company of their partner.
83.
Another group of people in society who are entitled to go about their daily affairs without having violence inflicted upon them are emergency workers, in this case police officers. Their job is to protect members of the public and investigate crime. The two officers involved in this case were assaulted; subjected to shouting and screaming; had foul language used against them; and were abused and threatened. This also included abuse and threats towards their families. One of the officers was bitten on the hand, and also the leg. The other officer had his leg grabbed and squeezed.
84.
Nor are these isolated occurrences. These offences took place on 6 August 2020 but Chalk was actually serving suspended sentences at the time, imposed on him in March 2020, five months earlier. Those sentences were for very similar offences which had occurred in January 2020, when he broke a window at Miss McBay’s home, and assaulted two police officers who came to arrest him. He also then damaged the cell into which he was placed at the police station. As noted by the sentencing judge, these offences were entirely consistent with the pattern of his offending over the years, and the suspended sentences passed on him earlier in 2020 seem to have had absolutely no impact upon his offending at all.
85.
There is little doubt that Chalk’s behaviour went somewhat downhill since his mother died 11 years ago, but a very large proportion of the population suffer family bereavements, and this is not an excuse for the prolonged offending, including the numerous offences committed since 2015.
86.
We are entirely satisfied that the sentences passed by the judge adopted the correct starting points, taking into account all of the relevant factors of the offending, also took proper account of totality, and fully considered the personal mitigation available to Chalk. The resulting sentences were not manifestly excessive.
87.
There is one respect in which an order of this court is required. Clarification is required in terms of which of the sentences that had been suspended, but were being activated, were reduced in order to achieve the overall total of 18 weeks. We have concluded that the correct order in all the circumstances is to activate each of the four suspended sentences (two orders with concurrent terms of 12 weeks’ imprisonment for offences of assault of an emergency worker, and two orders of 8 weeks’ imprisonment for two offences of criminal damage) but reduced by one week each, thus reducing the overall total by 2 weeks from 20 weeks to 18 weeks’ imprisonment. That 18 weeks’ imprisonment is to remain consecutive to the period of imprisonment of 36 weeks’ imprisonment on the offences, the subject of the instant appeal, that were committed on 6 August 2020.
88.
We have already dealt with the fifth offence of assault by beating an emergency worker in respect of what occurred to PC Deveau. No separate penalty is imposed for that offence for the reasons we have explained above at [77] above.
The renewal of the application to appeal in Chaplin
89.
The grounds are three-fold. They were that the court was wrong in principle to refuse to adjourn the sentencing hearing for a psychiatric report to be prepared; that the court imposed a manifestly excessive sentence as the starting point was too high for the lead offence; and the court gave insufficient weight to Chaplin’s case, alternatively failed to give sufficient weight to the fact the offences were attempts and that the victim was a police officer and not a real child.
90.
In refusing permission to appeal, the single judge said:
“1. Your first ground of appeal concerns the judge’s decision to sentence in the absence of a psychiatric report and to decline to adjourn sentencing on 27 July for that purpose. I accept that psychiatric evidence of a mental disorder may provide grounds for mitigation in accordance with the sentencing guidelines for your
s.15
offence (“mental disorder … particularly where linked to the commission of the offence”) and more generally (see the decision in
R v PS
[2019] EWCA Crim 2286
).
2. However, the judge recorded in his sentencing remarks that it was “accepted that any current medical or mental issues that the defendant has were not linked to the particular offences for which he’s being convicted on his own plea of guilty”. Whilst current mental issues could be taken into account on sentence in relation to the impact of custody, this would only be “in a limited way”: see
R v PS
paragraph [9].
3. In my view, the judge’s decision to proceed to sentence in the absence of a psychiatric report involved no arguable error of principle, and was well within the ambit of his discretion, in the context of: (i) the background described below; (ii) the fact that the judge had a detailed pre- sentence report on the issue of dangerousness (based principally on an earlier pre-sentence report), which included reference to your history of anxiety and depression; and (iii) the potential for only a limited impact of any psychiatric issues in the context of the impact of custody.
4. That background, as reflected in the comments recorded on the DCS, was that: (a) On 25 February 2020, the judge was told that the report would be served by 6 April 2020.
(b) On 28 May, the judge was told that the report “could be served by the end of June”.
(c) At this point, sentence had previously been listed for sentence on two previous occasions.
(d) On 1 June 2020, the judge adjourned sentencing to 15 June, stating that the court was to be informed as to what happening in relation to the report, with the defence to inform the court as to its relevance for sentencing. It does not appear that the defence provided any relevant information in response to this direction.
(e) On 15 June, sentencing was further adjourned to 27 July, with the court directing that the psychiatrist’s report be served by 20 July. No report was served.
(f) On 24 July, the judge asked for an update and was then wrongly informed by the defence solicitors that a report “had been refused on two occasions”.
(g) On 25 July, the judge summarised the history in a comment on the DCS, and indicated his intention to sentence on 27 July.
5. Your second ground of appeal is that the judge’s starting point of 6 years (in relation to the custodial term of your extended sentence), prior to reduction for your guilty plea, was manifestly excessive. I do not consider that this is arguable. The judge correctly treated the
s 15
offence (attempting to meet a child following sexual grooming) as the lead offence, and his sentence for that offence took into account the other offending to which you had pleaded guilty. It is not arguable that the judge erred in categorising the
s.15
offence as “Category 1” (starting point 4 years, range 3- 7 years) in view of the exchange of sexual images and the intention to commit penetrative sexual acts. In view of your prior offending, and the overall criminality for which the judge was sentencing you, a custodial term of 4 years (after credit for plea) was within the sentencing guidelines and well within the scope of the judge’s discretion on sentence.
6. Your third ground of appeal concerns other mitigating factors: in particular (i) that your
s.15
and related offences only involved an attempt (because the intended victim was an undercover police officer); (ii) the impact of Covid-19 on prisoners, particularly yourself; and (iii) your mental health condition of anxiety and depression. The judge was, however, well aware of all of these matters. Even taking them into account in your favour, a custodial term of 4 years is not arguably manifestly excessive in the circumstances of your case.”
91.
We have nothing we can usefully add to those detailed views, with which we wholly agree.
92.
We have already at [70] above explained that we vacate the two guilty pleas leading to the two convictions for the two substantive offences under
s.15
and
s.15
A of the
Sexual Offences Act 2003
, to which Chaplin pleaded guilty at the Magistrates’ Court but which were never sentenced. This is done by one of our number sitting in the Crown Court as we have explained. No other order is necessary and given no sentences were ever passed on those two offences (which were replaced by the charges of attempts, which were sentenced), doing so has no effect upon the terms of imprisonment currently being served by Chaplin, or upon any of the other orders.
93.
We refuse the renewed application for permission to appeal.
Conclusion
94.
Unlawful sentences cannot be permitted to remain in place undisturbed, and such errors should be avoided in the future. If sufficient care is taken when charges are drafted and put to defendants in the Magistrates’ Court, and accurately described and then explained (if necessary) in the Crown Court, then this type of scenario can be avoided. Speedy resolution of proceedings in the Magistrates’ Court is a laudable aim, but it cannot be at the expense of technical accuracy. Prosecutors in particular should be careful in proceeding correctly. The type of technical error that has occurred in these cases takes a great amount of court time and use of resources to correct. | {"ConvCourtName":["Crown Court at Exeter","Crown Court at Ipswich"],"ConvictPleaDate":["2021-05-07","2020-02-13"],"ConvictOffence":["Assault by beating of an emergency worker (PC Deveau)","Assault by beating of an emergency worker (PC Smart)","Assault by beating (Miss McBay)","Attempting to meet a child following sexual grooming","Attempting to have sexual communication with a child","Possession of a controlled drug of Class B (cannabis)","Breach of a Sexual Harm Prevention Order (possession of mobile phone)","Attempting to cause a child aged under 16 to look at an image of sexual activity"],"AcquitOffence":[""],"ConfessPleadGuilty":["Yes","Yes"],"PleaPoint":["on re-arraignment (Chalk)","at first court appearance (Chaplin)"],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Exeter","Crown Court at Ipswich"],"Sentence":["Chalk: 12 weeks’ imprisonment (assault on Miss McBay), 24 weeks’ imprisonment (each assault of emergency worker), concurrent with each other, consecutive to assault sentence; 18 weeks’ imprisonment (activated suspended sentences), consecutive; total 54 weeks’ imprisonment. Chaplin: 4 years’ custody + 6 years’ extended licence (attempting to meet a child following sexual grooming), 14 months’ imprisonment (attempting to have sexual communication with a child, concurrent), 28 days’ imprisonment (possession of cannabis, concurrent), 16 months’ imprisonment (breach of SHPO, concurrent), 2 years’ imprisonment (attempting to cause a child to look at sexual image, concurrent)."],"SentServe":["Combination"],"WhatAncillary":["Sexual Harm Prevention Order (Chaplin)","Victim surcharge (Chaplin)","Safeguarding Vulnerable Groups Act and Disclosure and Debarring Service restrictions (Chaplin)","Restraining order (Chalk, previously)"],"OffSex":["All Male"],"OffAgeOffence":[32,38],"OffJobOffence":["Unemployed","Unemployed"],"OffHomeOffence":["Homeless","Fixed Address"],"OffMentalOffence":["Had mental health problems","Had mental health problems"],"OffIntoxOffence":["Yes-drugs","No"],"OffVicRelation":["Acquaintance","Stranger"],"VictimType":["Individual person"],"VicNum":["Multiple (Chalk: 3, Chaplin: 0 real child, undercover officer)"],"VicSex":["All Female","All Male"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Undercover police evidence (Chaplin)","Victim testimony (Chalk)","Police testimony (Chalk)"],"DefEvidTypeTrial":["Letter of remorse (Chalk)","Pre-sentence report (both)"],"PreSentReport":["High risk of harm"],"AggFactSent":["Chalk: Previous convictions, offences committed while on suspended sentence, domestic violence, repeated violence against same victim, violence against emergency workers. Chaplin: Entrenched recidivist behaviour, failure to comply with previous orders, high risk of serious sexual harm, previous similar offences."],"MitFactSent":["Chalk: Letter of remorse, efforts to improve, some signs of moving away from previous lifestyle. Chaplin: Guilty plea at first opportunity, mental health issues (not linked to offence), impact of Covid-19 on prisoners."],"VicImpactStatement":["No"],"Appellant":["Offender","Offender"],"CoDefAccNum":[],"AppealAgainst":["Sentence is manifestly excessive"],"AppealGround":["Starting points too high (Chalk)","Insufficient regard to totality (Chalk)","Insufficient regard to personal mitigation (Chalk)","Refusal to adjourn for psychiatric report (Chaplin)","Starting point too high for lead offence (Chaplin)","Insufficient weight to mitigation/attempt/victim not real child (Chaplin)"],"SentGuideWhich":["Sentencing Council's (definitive) Guideline for assault offences","Sentencing Council's (definitive) Guideline for sexual offences"],"AppealOutcome":["Dismissed (Chalk)","Dismissed (Chaplin)"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Sentences adopted correct starting points, took proper account of totality, and considered personal mitigation (Chalk). Custodial term within guidelines and not manifestly excessive (Chaplin). No error in refusing adjournment for psychiatric report (Chaplin)."]} |
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